All entries for September 2021

Degrees of separation: examining space and place in international jurisdiction trials

(Credit: Alex Jeffrey)

Written by Alex Jeffrey & Briony Jones[1]

The concept of international jurisdiction purportedly erases the role of space in deciding which acts are appropriate for legal action. But in the operation of judicial processes the role of space plays a crucial role in the possibility and success of trials. Work over recent years has focused on the challenge of giving or gathering testimony across international boundaries, reflected on the role of different legal cultures in creating barriers to the completion of trials, and debate over the location of trials for both logistical and/or symbolic reasons. This blog reflects on an expert discussion held on the 3^rd of May. Bringing together academics and practitioners[2] we focused on two key areas: evidence and expertise; and court location and legitimacy. For the first area we were interested in discussing how issues of proximity and distance, materiality and embodiment shape the possibilities of gathering testimony or accumulating evidence, as well as how particular kinds of knowledge become legally legible and useful. For the second area we were interested in discussing the implications of trial location and what the consequences are of distance between the alleged crime and the site of legal redress.

The two concepts of proximity and distance were central to the discussions. The idea of proximity is often attached to questions of intimacy, of embodiment, of place. Distance is often understood through ideas of separation, of being dispassionate, of being technical or instrumental in ways in which legal processes unfold. The questions of proximity and distance feed into a whole array of further issues of the very unequal landscapes of power that international legal processes unfold within. So, when we think about proximity and distance we quickly arrive at questions of the relationship between legal processes and peacebuilding; of what kind of justice is being pursued – restorative, retributive, distributive justice; of technical issues surrounding the organisation of legal processes; of how the issues of proximity and distance play out within the unfolding of trials, for example, or the organisation of court spaces; and of which kinds of knowledge are drawn upon in how the legal processes are organised and unfold.

Our discussions quickly identified a tension between international jurisdiction and continued presence or pressure of bounded territory and their applicable laws. We first heard from Sara Kendall and Jennifer Burrell who offered insights from the National Sciences Foundation (United States) funded project ‘Evidentiary Dilemmas and Emergent Publics: How Contestations Over New Geospatial Technologies are Shaping International Justice’. International jurisdiction such as the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Court, and the Special Court for Sierra Leone have used satellite imagery before, but the status of Geo-Spatial evidence gathered by other actors such as civil society organisation and the family members of disappeared persons raises new questions about evidence and expertise. For international bodies such as the International Criminal Court, evidence has traditionally been the preserve of experts, governed by strict standards of admissibility. However, work by civil society and families of victims gathering Geo-Spatial data, for example on the location of graves, raises questions about the different constituencies in accountability projects: in whose name, by whom, and for whom is justice carried out? What constitutes evidence and how should it be sourced? Such developments and the questions they prompted have led to changes in the legal landscape. There has been an increase in technical training for using such technology, the development of apps by civil society organisations to establish chains of custody in crowdsourced evidence, and the establishment of a Scientific Advisory Board at the International Criminal Court. There has also been a challenge to previous ideas of the ‘expert’ as families of the disappeared develop knowledge of Geo-Spatial technologies that go beyond the knowledge of prosecutors.

We then heard from Holly Porter who reflected on the epistemological implications of space and place with reference to the trial and conviction of Ugandan Dominik Ongwen at the International Criminal Court. In particular she recounted her experience of watching on television the confirmation of charges hearing, whilst sitting in a hotel in Gulu, Northern Uganda, where many of the atrocities Ongwen was convicted of had been committed. During this hearing there was an extension of the crimes to include sexual crimes, and both the prosecution and defence spoke directly to this. When they did so, there was an illuminating contrast between the Latin references of the prosecution, who referred to the rape of women in Roman mythology, and the cultural references of the defence attorney, who referred to the customary ceremonies and performances of marriage. As Holly Porter argued, it was clear that international jurisdiction was bringing together multiple loci of enunciation in one moment. The events were live streamed, and experienced, enunciated, and apprehended, in multiple places at the same time, with different audiences in mind. The technology of livestreaming made this possible, for justice to ‘speak’ from and to different places. This confluence of the local, national, and global was at the heart of this instance of international jurisdiction.

In the following presentation Megan Hirst from Doughty Street Chambers offered a practitioner’s view of the relationship between the physical proximity of the court and victims, and the legitimacy of the court. She spoke with reference to the Extraordinary Chambers in the Courts of Cambodia, created by a 2001 law to try serious crimes committed during the Khmer Rouge regime from 1975-1979, and the International Criminal Court investigations into Bangladesh-Myanmar. Working on the assumption that there is a connection between legitimacy and victim-centredness[3] Megan reflected on the intimidating physical set-up of international court rooms, of the limited cultural and linguistic local knowledge of international lawyers, and of the need for a court to be accessible to victims in the case of delayed or lengthy justice processes. Community engagement, inclusion of civil parties, opportunities to attend hearings, and opportunities to interact with other victims and lawyers were all cited as ways to approach effective court outreach. Importantly, we need to know more about what individuals’ value about participating in court activities and what individuals who have not participated feel they have missed. This will vary hugely, and as Megan pointed out it is not necessarily only the experience of going to court and testifying which is relevant but the associated interactions which may have value for victims.

In all of the presentations and discussions during the workshop it was clear that proximity per seis not a good thing for victims. Conditions of accessibility to justice processes, of modes of participation, and constructions of expertise all shape the degrees of separation between court and victim and how they are experienced. Moreover, we can think of proximity in multiple ways. There is the proximity of knowing – of how much information is shared, accessible and moving between victims and lawyers. There is the proximity of place – of the physical location of the court and how it might operate outreach activities. And there is the proximity of empathy – how much individuals in the international justice process can understand and empathise with the situations and experiences of victims. The degrees of separation between victims and international justice processes are real and relevant but we need to know much more about how the complexities of distance and varied proximities shape the experience of victims as well as the perceived legitimacy of a given court or justice process.

Author Bios

Alex Jeffrey is a Reader in Human Geography at the University of Cambridge and a Fellow of Emmanuel College. Alex’s research has focused on the politics of international intervention in post-conflict societies with a particular focus on the role of legal practices and institutions. Alex is author of two single-authored monographs: The Improvised State(Wiley-Blackwell, 2013) and The Edge of Law (Cambridge University Press, 2020).

Dr Briony Jones is a Reader in International Development in the Politics and International Studies Department of the University of Warwick. She is also Co-Director of the Warwick Interdisciplinary Research Centre for International Development. Briony’s research takes place at the intersection between development, peacebuilding and transitional justice with a strong focus on citizenship, the politics of intervention, and the politics of knowledge.

Mouzayian Khalil : 29 Sep 2021 10:16 |  Tags: International Criminal Court International Jurisdiction International Law Justice Peacebuilding |  Comments (0) |  Close comments |  Report a problem

‘Brand Modi’ and India's Policy Concerns

Photo by Kremlin.ru; licensed under CC BY 4.0

As India was struggling with its devastating second wave of the COVID-19 pandemic, help poured in from expected and unexpected corners of the world. For the first time in 16 years, India began accepting assistance not only from its friendly strategic partners like the US and Russia but also from its fiercest economic and geopolitical competitor, China. However, India has been reluctant to acknowledge the help provided as “aid”. Instead, India’s External Affairs Minister, S Jaishankar, has referred to it as “friendship and support” and as a favour returned for the earlier COVID-19 assistance India provided the world. Even as its socio-economic, public health, democratic freedom and other indicators continue to plummet, India wants to be seen as an equal partner, not in need of aid but rather only “support”. As India resumed trade talks with the UK, EU and others, it continued its wordplay by emphasising the ideal of Vasudhaiva kutumbakam (“the world is one family”) as Modi’s catchphrase Atmanirbhar Bharat ("self-sufficient India") conveniently took a backseat. Such moves reveal India’s excessive preoccupation with maintaining its image both domestically and internationally. What is troubling though is that this posture within India’s ruling elite has also led to the mismanagement of covid crises. The state risked the lives of many by allowing mass religious and political gatherings, irrational vaccination policies, undercounting and underreporting of covid cases and the like. This post delves into why the Modi government is engaging in semantic manipulations to protect its image and how such manipulations harm India.

One possible reason for the BJP bending over backwards with its wordplay is to defend its “Vaccine Maitri” initiative. The initiative, which provided vaccines to countries of the global south, met with immense criticism as India faced vaccine shortages amid its devastating second wave. Two months after the initiative was launched, the government proudly proclaimed in the parliament that more shots were sent out of the country than were administered to its citizens. Thus, as the government was being condemned, framing the aid as a favour returned was essential for party interests, especially as state election campaigns were underway. The government needed to vindicate itself by arguing that the aid it provided was a beneficial foreign policy investment for India.

However, such a defence of vaccine maitri needs to be viewed from the broader BJP agenda of protecting “Brand Modi”. Since the 2014 national elections in India, Hindutva realism has become a mainstay of the BJP’s playbook. The BJP emphasises a strong centralised leadership and a doctrine of self-help or self-reliance. Modi has become the face of BJP’s Hindutva realism. The 2016 demonetisation of Indian currency, the surgical strikes across the Line of Control, abrogation of special status to India’s only Muslim majority state, imposition of a nationwide lockdown with only a few hours’ notice, and Atmanirbhar Bharat are only some projects the government undertook to portray Modi as a fearless leader working for India’s integrity and sovereignty. Even the recent cabinet reshuffle, which saw some of BJP’s top-leadership lose portfolios, was not shown as the government’s acceptance of its failures but rather portrayed Modi as a dynamic Prime Minister, who could punish his own ministers for poor performances. Despite running a heavily centralised administration, where every major policy decision requires his approval, Modi is seen shifting the blame onto his aides.

The BJP government was also pressured into paronomasia due to its obsession with building its brand. As Modi began to depict himself and India as a strong and rising power, Indians in India and abroad began to feel emboldened and prematurely succumbed to the vision of India as a vishwaguru (“ a teacher to the world”). Thus, as India, in a matter of days, was reduced to an aid recipient from its cultivated image of an aid donor, Indians and the Indian diaspora were embarrassed. They were ashamed and resented that the country was brought to its knees. Therefore, in a move to prevent its supporters from feeling disaffected, the BJP began terming the aid received as “friendship”.

The cost of BJP’s rhetoric has been high for India. Firstly, by denying and downplaying the crisis, the Indian political elite had allowed itself to be blindsided in its handling of the crisis. In January this year, instead of preparing for the second wave by ramping up testing and vaccine production, Modi was busy claiming to the world during the 2021 WEF summit that he had crushed the COVID pandemic. As the state can’t fix what it doesn’t recognise as a crisis, India underwent critical failures in governance and administration. Modi proclaiming his victory over the pandemic in both the international and domestic arena also made matters worse as it infused irrational confidence among Indians. Ordinary citizens and political leaders alike, taking Modi’s claims for granted, threw caution to the wind and began attending gatherings in hoards. Millions worshipped their gods at the Kumbh Mela, and their leaders in political rallies with no social distancing or masks putting lives at risk.

Modi’s BJP did not only fail to prevent a crisis, but it failed to mitigate one when it inevitably arrived. The government’s ministries surrendered national interest, democratic freedoms and civil liberties to protect the regime’s interest. As the living begged for oxygen and the dead for a space to lay their bodies, the Government showed little concern for its citizens. It hid its cases and resorted to draconian laws to suppress criticism. The External Affairs Minister also called on his diplomats to counter the apparently “one-sided” criticism of the government by international media. To make matters worse, BJP indulged in medical humbuggery. Vijay Chauthaiwale, the head of the national party's foreign affairs department, encouraged the consumption of bovine urine and turmeric as possible cures. Furthermore, reacting to the criticism over the Kumbh Mela, the Uttarakhand chief minister declared on March 20, “nobody will be stopped in the name of COVID-19 as we are sure the faith in God will overcome the fear of the virus.” National and Global networks need credible data to assess damages and determine disease dynamics and such actions by the government only make policymaking weaker and more difficult. As The Washington Post's aphorism goes, “democracy dies in darkness”.

In the realm of foreign policy, India’s failures have only played to China’s advantage. Not only have China’s doors to South Asia been left unguarded, but Modi’s obsession with image building and photo-ops has made him a liability in dealing with China. Modi had become tone-deaf to Chinese aggression as Xi Jinping met him at least 18 times since 2014 to give him the photo-ops he wanted. This only led to BJP making extremely bold statements such as their intention to take back Aksai Chin from China rather than be vigilant of Chinese transgressions at Eastern Ladakh last year. Instead of taking action, the government was busy denying Chinese occupation. This only let China take control of the public narrative. Though Modi appears to be taking a hard stance on China now, the damage has already been done.

Expectedly, Modi’s excessive preoccupation with protecting his image first and the party’s image second has only decreased India’s standing in the world. As India silences criticism and dissent, with an ever-tightening iron fist, and turns a blind eye to tragedy amidst a “once in a century crisis”, the international and domestic community has now begun to doubt India’s long-standing credentials as a liberal democracy. Modi needs to stop worrying about his image and start working on reality. The BJP is agitated, and perhaps understandably so. However, to save face by sticking its head in the ground is only going to exacerbate the situation.

Author Bio

Manjeeth S P is a Masters student in Political Science and International Relations at Indira Gandhi National Open University in India. His areas of interest are Indian foreign policy, political philosophy, political economies of marginalised communities, climate policy and education. He is currently preparing for the Civil Services Examination in India.

Mouzayian Khalil : 14 Sep 2021 23:46 |  Tags: Aid Covid 19 Support Foreign Policy India Politics Of Vaccines |  Comments (0) |  Close comments |  Report a problem