Final remarks by our bloggers on storytelling and the law

The IHJR would like to give a warm thank you to our bloggers, Tiffany Wong and Ludo Aerts, for their fascinating insights on the relationship between history and the courtroom. Over the past several weeks, they have attended firsthand courtrooms in The Hague to inform us about the complexities of justice and history as it plays out in practice. In the future, we hope that we can continue to engage in stimulating discussions about reconciliation in current events. We hereby present their final blog post:

 

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When we started on this blog a while back, we ended our first post with the desire to answer two intriguing questions: “What is the best way to render justice and reconciliation in societies torn apart by strife and atrocities? What are the things we might hope for through legal institutions, and where might we go from here?”

In the weeks after this first post we have attended multiple high profile international court proceedings at the Special Tribunal of Lebanon and International Criminal Court in the attempt to answer these questions from an extra-legal, interdisciplinary standpoint. We learned at the STL that there is always a contradiction and tension in how law both uses and creates history. We saw at the two ICC status conferences the way the very authority of these legal narratives are challenged by dissenting narratives, and how such contestation means that law can have an impact on a grassroots level that is potentially at odds with its goals of peace and reconciliation.

But if anything, the more facets of the law we have witnessed, the more ambiguous everything seems and the more questions we have. Even as we gained a better understanding of law’s limitations, we realized we had no roadmap as to how to account for the truth of the past, nor how to bring reconciliation – rather than certainty, truth and justice, we saw only contingency, unpredictability, and unknowability.

 

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Perhaps the one thing we have learned is humbleness in face of what we do not know. Some might say that this is a cynical position to take, but we would say that is a hopeful one, full of possibilities. It is knowing that we do not know – and that we may never have the perfect answer as to how to deliver justice and the truth of the past – that gives us the desire to know, to figure it all out. It is this desire that is the impetus behind our desire to listen to narratives and tell stories in the first place.

And as we have seen, narratives matters. Storytelling matters, because it illuminates that magical, mysterious process in which we recall the way the narratives of the past are told, retold, forgotten, remembered and re(discovered) – (conveyed, perhaps, in the curious way even now the word for “history and “story” in French is the same: histoire).  Storytelling as offering the very potential for the past reveals the way that history was always meant to be a companionable process between the speaker and the listener, between performer and witness. In this way, the desire to storytell, our engagement with history because we do not know, has always been a dialogue.

A dialogue never needs to end. Even though we, Tiffany and Ludo, are now saying goodbye to the blog, this is hardly a final conclusion. The Institute for Historical Justice and Reconciliation will be looking for other students to explore the relationship between narratives, justice and reconciliation. We hope that our investigation these past few weeks have been enough to encourage that own glimmer of doubt in you and chiseled at the fault lines of rock solid certainty.

Or, in the words of the great Leonard Cohen, “There is a crack in everything. That’s how the light gets in.”

We hope that you will all continue to listen, to question, and to carry on this dialogue.

Blog post 3: Laurent Gbagbo, Blé Goudé, Bosco Ntaganda, and contesting narratives at the International Criminal Court. By Tiffany Wong and Ludo Aerts

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On April 21st and 22nd, two status conferences took place at the International Criminal Court (ICC) in The Hague. The first covered the joint case against Laurent Gbagbo, the former President of Ivory Coast and Charles Blé Goudé, his former Minister. The second status conference concerned Bosco Ntaganda from the Democratic Republic of Congo. While Bosco Ntanga politely attended his status conference on the 22nd, Laurent Gbagbo was noticeably absent from his own – in fact, as the judges noted with concern, Laurent Gbagbo had yet to attend a single session of his own trial and had consistently waived his rights to do so, preferring to stay in his room at the Scheveningen penitentiary. Charles Blé Goudé, Gbagbo’s supposed right hand man and counterpart to the joint trial, was smiling during the hearing. However, as he announced early in the session, he would regrettably need to leave midway, as he had to attend to an “important visitor”; the only reason for his presence at the status conference in the first place was to “welcome” one of the new presiding judges and to “pay his respects” to the court.

Even more perceptible than the difference in presence of the main actors was the number of people in attendance. The number of viewers at Bosco Ntanga’s status conference could be counted with two hands. Yet a day earlier, even in the absence of Gbagbo himself, the public gallery was crowded. A stream of supporters filed in continuously throughout the session. Some were in tennis shoes and t-shirts. Perhaps most notably, several wore orange t-shirts emblazoned with the words “Free Gbagbo.” One man wearing such a shirt waved at Charles Blé Goudé, who waved back through the glass panel amicably.
 

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We talked in previous posts about how the law always attempts to create an authoritative, historical narrative. The creation of this narrative, of course, is not an easy process. As we have seen in the Special Tribunal for Lebanon, historical narratives are frequently contested within the courtroom. What happens, though, when this challenge of judicial narratives transcends the boundaries of the courtroom? More concretely, what occurs when the law’s very authority and legitimacy as a narrator is contested?

This might help us understand why a large group of angry people showed up at Laurent Gbagbo’s status conference, whilst a day later at the status conference for Bosco Ntanga, the public gallery was only filled with a handful of interested students and interns. The law does not take place in a vacuum. We must look at the context that these respective ICC trials are taking place, and the narratives that surround and are represented by the figures on trial. How do they corroborate one another, and how do they contradict? What are the areas of tension that might make it more difficult for a judicial narrative to become accepted?

 
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It is easy to comprehend why Bosco Ntanga is being tried by the ICC. He was a military leader in eastern Congo DR since the mid-1990s. His power stemmed from the violent repression of civilians and top-down support from his superiors. During the period 2002-03, when he was the deputy chief of general staff of the Forces Patriotiques pour la Libération du Congo, his militia ravaged the eastern parts of the Congo, supposedly conscripting child soldiers and spreading terror among the local population. For this reason, he is accused of being responsible for 13 counts of war crimes and 5 counts of crimes against humanity.

 
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At the end of Laurent Gbagbo and Charles Blé Goude’s status conference, both the prosecution and defense indicated their unease over setting the starting date for the trial for the year of 2014 due to the upcoming elections in Cote d’Ivoire. According to the analysis of a recent UN expert report, the elections were classified as “high security risk.” Not only would the safety of witnesses be potentially compromised due to heightened political sensitivity, there was also the lack of knowledge as to how courtroom narratives might impact the “polarized” Cote d’Ivoire society as a whole. “We do not know how testimony re-transmitted might be used in politics” the prosecutor stated in his address to the judges, “We cannot predict how the court might be used during the elections.”

IHJR is currently looking for an intern actively engaged in conflict prevention and reconciliation.

Please see our vacancies page for more information.

‘Crossing Borders’ exhibition: A great success

The IHJR is pleased that the photo exhibition “Crossing Borders”, organized in collaboration with the Institute Français in Instanbul, has received a warm reception. Photographers Zaven from Armenia and Mesut from Turkey have artfully demonstrated the potential for cultural understanding and bridging gaps in their exhibit of the villages of Kars, Gyumri and Ani at the border of Turkey and Armenia.

At the opening of the exhibition, the French Consul General in Instanbul, Ms. Muriel Domenach gave the following speech:

“I am pleased to welcome you this evening to the opening of the exhibition “Crossing Borders”. The exhibition – as a visual dialogue between Turkish and Armenian photographers, Mr. Mesut Tufan and Mr. Zaven Khachikyan – displays a sensitive border area closed from crossings and calls for reflection on the notion of imaginary borders. […] By visiting the exhibition, you will discover the parallels and similarities between architecture, people and daily life in Kars and Gyumri but also the unparalleled archaeological heritage of Ani, situated between the two cities and totally abandoned for decades.”

[own translation]

Click here for the full speech in French.

What started out as a small-scale project turned out to be an extremely successful exhibition that has far exceeded our expectations. We would like to sincerely thank our donors for making this possible, and especially the photographers for their diligence and cooperation. The exhibition was part of our Journey Towards Understanding project, which aimed to emphasize the shared cultural heritage in the region on both sides of the border through civil society initiatives that facilitate dialogue relatable to all. The exhibition was originally held in The Hague, at which point we garnered positive attention of the target countries. We are extremely pleased that it was able to eventually take place in Turkey, where we could engage the civil society that is directly implicated in the goals of this project. Overall, this project is a truly exemplary case for building friendship across borders.

This is the last day of the exhibition. To those in Istanbul, don’t miss it and come by for a visit.

See our Facebook album for more images of the exhibit, courtesy of Mesut Tufan.

Blog post 2: The Special Tribunal for Lebanon (Pt. 1), by Tiffany Wong and Ludo Aerts


 

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“Why do we need to learn about history? The past is behind us, we cannot change it. We should be looking towards the future – moving forward and not backwards in time!”

No doubt you have heard such a response from the people around you. Nowadays, the seductive promise of Modernism, which tells us that we are always improving, always on our way to a better, more progressive world, also tells us that history is a closed door behind us, to be left behind and forgotten.

Yet, history is far from dead – in fact, it is a force that is deeply alive and embedded in our very daily lives. Our world is flushed with the vitality of the past; the way we perceive and make sense of the events of the world, and how we subsequently conduct our lives are all deeply intertwined with the historical narratives that we choose – or don’t choose – as reference points, the islands of stability to rest upon amongst the tumultuous, unpredictable waves of life itself. The question then isn’t so much about leaving history behind, but whether or not we acknowledge its indelible presence. Or as the Spanish novelist Carlos Ruiz Zafon poignantly wrote:
“I tend to think we are what we remember, what we know. The less we remember, the less we know about ourselves, the less we are.” (Interview with Three Monkeys Online, October 2008)

 

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This dual force of history – as one that gives meaning to the events of our lives and helps orient our actions in the present – is ever more palpable in the courtroom. To give its own judgments legitimacy the law will always rely and draw upon the authority of history. One might then expect this “truth finding” work of lawyers be very similar to that of historians.

Yet in practice, there is a huge disparity between historians and lawyers in the usage of history and the type of history created. While “historian’s history” is drawn from extensive research with primary and secondary sources, and self-consciously tries to be as impartial and objective as possible, “lawyer’s history” is inescapably “romantic” and interested in rendering a “usable past” that can impart moral instruction upon the present. [1]

Put simply, the distinctive roles of the prosecution and the defense within the courtroom determine how both deal with the pool of knowledge we call history. While prosecutors have the clear goal of making sure the accused is found guilty, the defense team attempts to counter the prosecution’s narrative such that their clients is found less culpable. Thus, both purposefully select bits and pieces of history, creating competing narratives for the same case. These narratives are then evaluated by the judge who has the ultimate say as to which narrative is most plausible, and issues the judgment based on this final “history.”

 

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On April 9th, we saw these tensions at play in the open session of Ayyash et al. (STL-11-01) at the Special Tribunal for Lebanon (STL). [2]

The proceedings that day involved the questioning of the prosecution’s witness Mustapha Nasser, a former journalist and advisor who had acted as a liaison between the former prime minister and Hezbollah. Nasser was a passionate, loquacious man, prone to bouts of effusive commentary and storytelling. When asked about the details of the meeting between the late Prime Minister Hariri and Hezbollah Secretary-General Sayyed Hasan Nasrallah on the topic of placing pro-Syrian political candidates on the ballot, Nasser surged past the question, excitably talking of not only Hariri’s refusal of a pro-Syrian candidate on the ballot, but also alluding to the proposal of an Armenian candidate – (“Where does the Armenian come in? Who is the Armenian?” Judge Re interjected, bewildered) – and his own proposition of placing himself on the ballot- (“But why?” Judge Re interjected once again, confused) – as a compromise candidate to alleviate the potential tension that that was rising out of Hariri and Nasrallah’s disagreement.

Sensing that the prosecution had lost control of their witness, Judge Re said to Nasser in a long-suffering, pointed way, that “[they] need[ed] to take this in bite size chunks…less narrative more question/answer. Let [Prosecutor] Mr. Cameron lead you through.” Upon which Nasser cheekily replied, “Between being brief and explaining I will have a problem – how about we can work on it together.”

Nasser’s response, though probably meant with some impudence, is illuminating because it speaks to the negotiation that takes place between witness testimonies and legal narratives in the courtroom, between “explaining” and being “brief.” The lawyer must lead the legal narrative through a question-answer session as if it were “forced to its inevitable conclusion by the logic of the situation” [3]. Yet, these legal historical narratives must always hide the fact that they selectively draw upon the subjective recollections of witnesses for its own construction. There will then always be a kind of mismatch between the two, as the prosecution’s historical narrative will always leave out the full scope of the witness’ actual experiences.

In the Special Tribunal for Lebanon trial, the prosecution’s historical narrative is clear: the late Prime Minister Hariri was assassinated by members of Hezbollah due to political animosity. We witnessed this legal script start to unravel as Nasser talked extensively about Hariri’s close relationship with Hezbollah (a “close friendship” with one of Nasrallah’s top aides, Nasser explained, much to the woe of the prosecution) and alluded to the ghostly specter of potential Syrian and Israeli involvement. The way the prosecution tries to contain the scope of Nasser’s explanations shows the boundaries of legal narratives in giving voice to the intricacies and complexities of the issue at hand.

On April 15, Nasser was once again on the stand for questioning. This time, he was noticeably subdued. Whereas previously he burst with things to say, the Nasser on Wednesday was a wholly different man. He obediently answered “yes” or “no” to the questions. His explanations, when there were any, were precise and brief. Here, the law told Nasser: tell the truth of what you know about the past, but only in a certain way, and only a truth that is relevant and applicable to the purposes of legal judgment.

As we have witnessed, history, far from guiding the proceedings of the trial, can become a mere toolkit to be used by the actors in the courtroom for the construction of new “legal history.” The questions to keep in mind are then the following: What are the boundaries distinguishing this type of “legal history” and mere rhetoric? At what point does legal truth become simply not the truth at all?

 

 

[1] Kalman, Laura: The Strange Career of Legal Liberalism. New Haven: Yale UP, 1996. 184

[2] The Special Tribunal for Lebanon was set up to address the attack resulting in the assassination of Rafic Hariri, the former Lebanese prime minister, and the deaths of 22 others on 14 February 2005. The indictment and accompanying arrest warrants were transmitted to the Lebanese authorities on 30 June 2011. The four individuals named in the indictment are: Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, Assad Hassan Sabra – all of whom are members of Hezbollah

[3] James Boyd White, “Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life,” Universal of Chicago Law Review 52, 688