Mass Atrocity, Mass Testimony, and the Quantitative Turn in International Law

• Published date: 01 June 2019
• Date: 01 June 2019
• DOI: http://doi.org/10.1111/lasr.12399

Mass Atrocity, Mass Testimony, and the

Quantitative Turn in International Law

Renana Keydar

†

The article identifies and analyses the development it labels the “quantita-

tive turn” in international criminal law. Addressing the cumulative effect of

the large numbers of witnesses in international processes, the article con-

siders quantity as an integral, and substantively beneficial, component of

the law’s response to atrocity crimes. The article develops a theorized

understanding of the relationship between mass atrocity and mass testi-

mony and provides a taxonomy of the functions that the quantity of testi-

monies fulfills in international trials: the evidentiary, didactic, epistemic,

and restorative functions. Focusing on a recent case before the Interna-

tional Criminal Court in the matter of The Prosecutor v. Bemba, the arti-

cle demonstrates how the different players in the international justice

system—Prosecution, Defense, Victims, and the Court—employ the func-

tions of quantity, while negotiating concerns over manageability and scale.

The goal of this article is to prompt a debate and a more careful consider-

ation of the potential benefits of a meaningful participation of witnesses

and victims in post-atrocity proceedings. This is particularly important

given the dominance of the efficiency paradigm in international criminal

law (ICL) discourse, which directly impacts the quantitative turn. The arti-

cle forges new ways for ICL institutions to maintain a plurality of voices

and their commitment to victims while safeguarding the rights of the

accused.

When one man is murdered, you investigate when, how, who,

why. ... What do you do when a whole people is murdered? You

ask those same questions and call many witnesses (Gouri 2004:

269–270)

Ever since the Eichmann trial ushered in the Era of the Wit-

ness (Wieviorka 2006), personal narratives have become a pri-

mary means for conveying information regarding atrocity crimes

†

Postdoctoral fellow, Martin Buber Society of Fellows, The Hebrew University of

Jerusalem. The Author wishes to thank Daphna Hacker, Ron Dudai, Kieran McEvoy,

Yuval Shany, Natalie Davidson, Itay Ravid, Gilat Bachar, Magda Pacholska, and Yael Lit-

manovitz for their valuable comments. The author is also grateful to the anonymous

reviewers and editors of the Law and Society Review for their careful reading and con-

structive remarks. This research was supported by the Human Rights Under Pressure

Program, Minerva Center for Human Rights, The Hebrew University of Jerusalem.

Please direct all correspondence to Renana Keydar, Mandel building, room 327, Mt.

Scopus, Jerusalem, 9190501; e-mail: renana.keydar@mail.huji.ac.il

Law & Society Review, Volume 53, Number 2 (2019): 554–587

©2019 Law and Society Association. All rights reserved.

554

and grave human rights violations.

1

International criminal trials

investigating large-scale, violent crimes and human rights viola-

tions rely almost exclusively on personal narration for establishing

facts about the past (Combs 2010).

2

The resort to testimonial nar-

ratives as a means for revealing truth and achieving justice in the

aftermath of atrocity is not limited to the criminal justice system.

Truth commissions (Hayner 2011), human rights campaigns

(Schaffer and Smith 2004), cultural narratives such as documen-

tary films, museums (Sarkar and Walker 2010), and atrocity

archives (Caswell 2014), all share a fascination with personal nar-

ration of past abuses.

Scholars across the disciplines have extensively examined the

relative merits and faults of the witness-driven model, highlight-

ing concerns such as reliability and re-traumatization, to name a

few (Ciorciari and Heindel 2016; Combs 2010; Dembour and

Haslam 2004; King et al. 2016; Stover 2005). Such studies often

focus on the experience of the individual witness as their object of

research. This concern with the single witness, while fundamental

to the understanding of the act of testimony, is also limiting. It

overlooks a distinctive, yet crucial, aspect of the witness-driven

model; namely its quantitative nature.

When invoking quantity, this article refers primarily to the

large number of witnesses and victims participating in legal pro-

ceedings dealing with mass atrocity. Since the establishment of the

ad hoc tribunals for the former Yugoslavia and Rwanda in the

mid-1990s (henceforth: ICTY and ICTR, respectively) and more

so since the inauguration of the International Criminal Court

(henceforth: ICC) a decade and a half ago, international criminal

law (henceforth: ICL) has experienced a surge in the voices it

accommodates. Recent years have seen a shift in the nature of evi-

dence presented to the courts, with less documents and other

material evidence and more eyewitnesses testimony, leading to a

sharp rise in the number of witnesses participating in interna-

tional criminal tribunals (May and Wierda 1999). In addition,

under article 68(3) of the Rome Statute (1998), the founding doc-

ument of the ICC (henceforth: RS), a high volume of victims

apply to participate in the legal process, adding a new dimension

of quantity to the proceedings (Haslam and Edmunds 2013).

1

Literature on witness testimony in the context of atrocities and human rights vio-

lations is vast. In general, see (Schaffer and Smith 2004) On witness testimonies in war

crimes tribunals, (Combs 2010; Dembour and Haslam 2004; Stover 2005). On witness

testimonies in truth commissions, see (Phelps 2011) (Ross 2003). On trauma and witness

testimonies, see (Felman and Laub 1991) (Pinchevski 2012).

2

As Combs notes, fact witnesses provide virtually all witness testimony in current

international tribunals; only a tiny percentage of prosecution witnesses at the interna-

tional tribunals are experts (Combs 2010: 12).

Keydar 555

Despite these profound changes, the quantitative turn, its func-

tions and impact on the different actors in the legal process, have

not been sufficiently researched, theorized or addressed in scholar-

ship and practice. To date, the quantity of witnesses and victims in

the legal process has been perceived mainly as a contingent predic-

ament that threatens institutional efficiency. Accordingly, the pres-

sures of quantity have thus far been answered with proposals to

broaden the courts’ reliance on prerecorded and written state-

ments and video-link testimonies (Fairlie 2017; Wald 2001), in

efforts to curtail quantity and plurality in favor of efficiency.

This article argues for a different approach. Instead of treat-

ing the large number of actors and voices in ICL mechanisms as a

contingent condition that could be mitigated by more effective

evidentiary procedures, the article considers quantity as an inte-

gral, and substantively beneficial, component of the international

justice system’s response to crimes of mass atrocity. Because the

efficiency paradigm in the field of ICL is so dominant, and

directly impacts the quantitative turn, it is particularly important

to develop a theorized understanding of the functions of quantity.

The article first identifies and describes the current quantita-

tive turn in ICL. It then examines the relationship between the

social phenomenon of atrocity crimes—characterized by

quantity—and the legal phenomenon of the quantitative turn—

characterized by large-scale testimonial schemes. The article theo-

rizes that the turn to mass testimony is an integral part of the law’s

response to the mass scale of atrocity crimes and their ungrasp-

able nature. More particularly, the article hypothesizes that the

large quantity of witnesses serves crucial functions in addressing

such grave human rights violations. The article provides a taxon-

omy of four functions of quantity, both stated and implicit: the evi-

dentiary, the didactic, the epistemic, and the restorative functions.

These functions of quantity correspond to existing scholarship on

ICL objectives, while also expanding it. Drawing on literary the-

ory and the experiences of commentators on international crimi-

nal trials, the article focuses on the social functions of quantity in

enhancing society’s ability to comprehend mass atrocity, and to

grasp its horrific nature. Developing the epistemic function, the

article suggests that quantity brings the incomprehensible excess

of the crimes to bear on the listeners—judges and audience

alike—through aesthetics of excess. To demonstrate the generated

theory and the derived functions, the article focuses on one case

study, a recent case before the ICC in the matter of The Prosecutor

v. Jean-Pierre Bemba Gombo (henceforth: Bemba) that foregrounds

questions of quantity.

The article positions the quantity of testimonies as a key to

understanding how societies deal with legacies of systematic

556 Mass Atrocity, Mass Testimony, and the Quantitative Turn