Fifteen Eighty Four

During the ongoing Russian invasion of Ukraine, the Secretary General of the United Nations, Antonio Gutteres, went to Ukraine. Apart from capital city, Kyiv, Gutteres visited the town of Bucha which had been retaken by Ukranian troops only two weeks before. After the Russian soldiers had left Bucha, dozens of dead bodies of civilians were found, apparently killed by the Russian occupiers. On his Twitter account, Gutteres called for the International Criminal Court to start an investigation into possible war crimes. In his official statement he made reference to his own emotions: “When I see this horrendous site, it makes me feel how important it is to have a thorough investigation and accountability. I am glad that the International Criminal Court is seized of the situation and that the prosecutor’s office was already here.”

Large scale military conflict goes hand in hand with unspeakable violence and suffering — not only for the fighters, but for everybody who happens to be caught in the middle of it. War destroys the social and cultural fabric of whole societies. In order to address such mass violence, international organizations have been set up with the explicit goal to punish those responsible and to facilitate “transitional justice” – a process through which a war-torn society can heal. One of the most prominent of such institutions is the International Criminal Court. Based in The Hague in the Netherlands, this international court punishes individual perpetrators such as military commanders and politicians for crimes are listed in the Rome Statute, a body of international criminal law.

Processes connected to violence, suffering, punishment and healing are all inextricably entangled with strong emotions. It is therefore not surprising that politicians such as the UN Secretary General voice these emotions in their political rhetoric when they call for the International Criminal Court to punish the perpetrators of war crimes. In international criminal law itself, however, such affective dynamics seem to be absent. Judges in war crimes trials before the International Criminal Court are expected to assess a case without any reference to feeling. An international court proceeding is carefully policed so that the participants are not swept away by their emotion.

International criminal law, so the dominant narrative grounded in European modernity, shall be free of emotion in order to be able to operate rationally. Because only rational proceedings can bring about equal justice. In this telling, emotions should exclusively belong to the space of politics with its passionate speeches and ardent commitments to partisan agendas. As such, emotions serve as a fundamental differentiating marker between law and politics. Consequently, political justice and legal justice can be two very different things, and they must be neatly kept apart in modern society.

In international criminal law, this narrative has been criticized. Many argue that “legal justice” with its absence of emotion is not sufficient to bring about “transitional justice”. The reality of mass violence is so messy that only a mixture of law and politics is able to address it. The law alone might obscure the political roots of mass violence and court proceedings before the International Criminal Court might not be well equipped to deal with the legitimate needs of people to express their emotions. Often such scholarship argues for other instruments in transitional justice instead of court proceedings — for instance truth commissions, amnesty laws, or reconciliation procedures. In the last two decades there is a wealth of studies on the need to “bring emotions into transitional justice”.

But there is also another way to tackle the question. Is this modern narrative of the neat separation between unemotional (and hence unpolitical) law and emotional politics even describing adequately what is going on in international criminal law proceedings? And is it even worthwhile to aspire to the ideal of separating law and politics along the lines of emotion? If one observes international criminal law proceedings closely, one can find that even the most legalist and technical court proceeding is full of emotions. But they are often simply not recognized as such. Calm deliberation, a quiet temperament in rhetoric, even outright boredom might not indicate the absence of emotion, but they can be seen as affective modes in their own right. In this view, the law is not without affect, but dominated by a certain kind of affective dynamics.

What does such a perspective contribute to the analysis of international criminal law and transitional justice? It suggests that common dichotomies between law and politics, rationality and emotion might obscure more than they reveal. Maybe trials before the International Criminal Court might not be less political than a truth commission, just because they affect participants in different ways. An analytical blindness for how modern forms of law are themselves grounded in culturally specific modern affects might create dangerous blind spots. All-too often, analysts might label only those kinds of situations as “emotional” and hence “overly political” which do not conform to the kinds of emotions they themselves have come to understand as normal, and which they do not even recognize as emotions at all. As such, scholarship on international criminal law and transitional justice is well advised to take stock of the affective life of international criminal justice.