Individuals Accused of International Crimes as Delegitimized Agents of Truth

• Date: 01 December 2018
• DOI: 10.1177/1057567718769715
• Published date: 01 December 2018
• Subject Matter: Articles

Article

Individuals Accused of

International Crimes as

Delegitimized Agents of Truth

Mina Rauschenbach

1,2

Abstract

The workings of international criminal trials situate themselves in an era where the concept of truth

is heralded as a key aspect in the production of understandings of the past within transitional justice

(TJ) settings. Yet, in such contexts where representations of the past are multilayered, trials tend to

put to the fore certain narratives as legitimate readings, while excluding many others. This article

explores the discourses of 18 individuals accused by the International Criminal Tribunal for the

Former Yugoslavia (ICTY). It focuses on their role as generally delegitimized agents of truth and

analyzes how they reconstruct their justice experience, focusing particularly on how they make

sense of the judicial truths stemming from their case. It reveals how they reconstruct the ICTY as a

hegemonic arena which produces judicial truths, which cannot be considered as legitimate and

complete accounts of the past and which are at odds with their authoritative perspective of the

“truth.” These findings are analyzed against the backdrop of increasing scholarly debates about the

legitimacy, which can be attributed to perpetrators’ perspectives given the tendency, within TJ

discourses and practices, to position international criminal justice as a universal and authoritative

arbitrator of morality in conflict.

Keywords

perpetrators, narratives, judicial truth, transitional justice

This article focuses on perceptions of justice gathered through personal interviews carried out

with individuals accused by the International Criminal Tribunal for the Former Yugoslavia (ICTY).

These perceptions are analyzed against the backdrop of contemporaneous debates about the role of

international criminal courts in dealing with the past and in contributing to historical understandings

through the production of particular judicial truths within transitional justice (TJ) settings. In par-

ticular, the article examines how the accused reconstruct their experience of the ICTY with a specific

focus on how they make sense of the narratives that are produced as a result of the legal processing of

their case.

1

Institute of Social Sciences, University of Lausanne, Lausanne, Switzerland

2

Leuven Institute of Criminology, University of Leuven/KU Leuven, Leuven, Belgium

Corresponding Author:

Mina Rauschenbach, Institute of Social Sciences, University of Lausanne, Switzerland.

Email: minarau@bluewin.ch

International CriminalJustice Review

2018, Vol. 28(4) 291-316

ª2018 Georgia State University

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DOI: 10.1177/1057567718769715

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Accounting for the Accused and Perpetrators’ Voice Within Research

There is an emerging body of scholarship accounting for perpetrator perspectives within empiri-

cal research, despite the many critiques it has faced (Baumeister, 2012; Eaglestone, 2010; McGloth-

lin, 2016). As socially imagined and constructed figures of evil and of moral repugnance,

perpetrators of mass atrocities have often been relegated to the domain of the incomprehensible,

the illegitimate, and the unacknowledgable within academia and beyond (Baumeister, 2012; Clark,

2009). Voices expressed against givi ng perpetrators a voice have pointed to t he immorality of

considering such narratives (Levi, 1988), to the violation of the solidarity owed to victims who

listening to their voice would create (Bauer, 2002), or to the unreliability of their accounts (Brown-

ing, 1998). Owing to those concerns, some explored how and under what conditions these accounts

could constitute sources of testimonies on the past that can contribute to historical understandings of

collective violence and atrocity (Browning, 2003). Another rationale more frequently evoked has

been the need to understand how ordinary individuals could commit extraordinary evil as well as

what the causal roots of such mass violence and the processes involved in its commissio n are

(Kressel, 2002; Staub, 1989; Straus, 2006; Waller, 2002). More recently, empirical scholarship is

also increasingly turning its attention to perpetrators’ discourses as the main focus (Staub, 2003).

Such research perspectives have been applied to various TJ contexts such as Rwanda (Fuji, 2009),

the Former Yugoslavia (Rauschenbach, Staerkle´, & Scalia, 2015), Greece (Haritos-Fatouros, 2003),

South Africa (Kraft, 2014), Cambodia (Hinton, 2017), Brazil (Huggins, Haritos-Fatouros, & Zim-

bardo, 2002), or Argentina (Payne, 2008). Many of these studies have interviewed perpetrators with

the objective of understanding the complexity of their involvement in serious human rights viola-

tions. Some have focused more particularly on their thoughts, motivations, and states of mind in

perpetratorship (Kraft, 2014; Smeulers, 2008) or the role of group-level factors and structural forces

in fostering collective violence in intercommunal conflict (Fuji, 2009; Rauschenbach et al., 2015).

This scholarship has generally also added furthe r support to concerns over the tendency in TJ

processes to draw a firm boundary between blameless victims and guilty perpetrators in collective

violence contexts (Shaw & Waldorf, 2010). It also evidences the necessity for a nuanced under-

standing of the complexity of perpetratorship: the multifarious nature of involvement in conflict, the

different sociopolitical contexts that shape and promote the commission of international crimes, as

well as the collective underpinnings attached to different levels of perpetratorship.

Within international criminal law scholarship, there has been a recent surge in research interest

for defendants. Such perspectives are situated within a broader critical perspective focused on the

international criminal justice project and the dominant discourses supporting its development and

practices (see Devresse & Scalia, 2016; Me´gret, 2005). Scholarly interest for the perspective of the

accused within international criminal courts is scarcer, even though there are indications that this

field of research is developing. One can mention research focusing on defendants’ active role in

challenging the legality of international criminal courts and their practices (Gallant, 2010). There is

also an increasing interest for investigating the conduct of defendants in international criminal trials

and how they exploit opportunities within the judicial process to gain agency (e.g., Me´gret, 2005;

Meijers & Glasius, 2013).

There is also a developing body of research, which strives to analyze defendants’ discourses

within the trial process. It aims to examine these accounts against the backdrop of other narratives

that are expressed and generated in court (Bringedal Houge, 2016; Skjelsbæk, 2015). Some studies

have focused particularly on understanding how these narratives play out in relation to the truth-

seeking function of international criminal trials (Bringedal Houge, 2016; Schabas, 2012). As TJ

mechanisms, international criminal trials have been entrusted with many core purposes, including

establishing a record of past events.

1

The truth-seeking function of international criminal trials is

generally acknowledged as central to their purpose (Gaynor, 2012; Schabas, 2012).

2

As such,

292 International Criminal Justice Review 28(4)