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September 29, 2021
(Credit: Alex Jeffrey)
Written by Alex Jeffrey & Briony Jones
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 3rd of May. Bringing together academics and practitioners 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 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.
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.
We would like to thank Shreyanshi Upadhyaya for her valuable Research Assistance in preparing this blog.
We would like to thank and acknowledge the participants of this expert discussion: Hirad Abtahi, Julie Bernath, Megan Hirst, Sara Kendall, Tonny Kirabira, Holly Porter, Emma Wabuke, Liana Minkova.
This can refer to treating victims as important, giving value to victims, or listening to victims.