Shifting Accounts of Justice: The Legalisation and Politicisation of International Criminal Justice
| Author | Henry Redwood,Hannah Goozee |
| DOI | 10.1177/09646639211058832 |
| Published date | 01 August 2022 |
| Date | 01 August 2022 |
| Subject Matter | Articles |
Shifting Accounts of
Justice: The Legalisation
and Politicisation of
International Criminal
Justice
Henry Redwood
Division of Social Science, London South Bank
University, UK
Hannah Goozee
Department of War Studies, King’s College London,
UK
Abstract
In December 2015, the International Criminal Tribunal for Rwanda delivered its final
verdict in Butare, bringing the International Criminal Tribunal for Rwanda to a close
after 21-years. Despite the important role that the tribunal played in confirming inter-
national criminal justice as a key transitional justice mechanism, and tool of international
peace and security, there has been little retrospective analysis of the court’s history. This
article draws on a Bourdieusian field analysis to address the absence and makes two con-
tributions. First, it demonstrates that over the International Criminal Tribunal for
Rwanda’s history the tribunal’s conception of justice shifted from a weak form of
restorative justice to a more traditional form of retributive justice. Second, it reveals
that this shift was the result of a ‘settling’on the law and, more importantly, UN
Security Council interventions. This legalisation and politicisation of trial practice saw
a shift in the field from prioritising moral authority to legal and delegated authority.
Corresponding author:
Henry Redwood, Division of Social Science, London South Bank University, 103 Borough Rd, London,
SE1 0AA, UK.
Email: henry.redwood@lsbu.ac.uk
Article
Social & Legal Studies
2022, Vol. 31(4) 623–643
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639211058832
journals.sagepub.com/home/sls
Keywords
International criminal justice, International Criminal Tribunal for Rwanda, Bourdieu,
justice, witnesses, practice, United Nations, transitional justice
Introduction
In December 2015, the International Criminal Tribunal for Rwanda’s (ICTR) appeals
chamber delivered the final verdict in Prosecutor versus Nyamirashoko et al., which
brought the ICTR’s 21-year existence to a close.
1
The tribunal, along with the
International Criminal Tribunal for the Former Yugoslavia (ICTY), significantly contrib-
uted towards the solidification and institutionalisation of international criminal justice
(ICJ) (Drumbl, 2005; Hagan et al., 2006; Mégret, 2016), introducing ICJ as a main
stay of the international system and a key transitional justice mechanism (ICTR,
1994). Despite this, however, there has been little retrospective analysis as to what the
ICTR’s history can tell us about how the field of ICJ changed during this important
moment in its development, why it took the course it did and what this reveals about
the function and purpose of ICJ within the international community.
2
To address these questions, this article joins a number of scholars who have drawn on
Bourdieu’s concept of a ‘field’to explain the functioning of ICJ (Dezalay, 1986; Dixon
and Tenove, 2013; Hagan and Levi, 2005; Madsen, 2018; Mégret, 2016). Whilst each of
these studies, discussed further below, offer important insights into the generation of ICJ
as a distinct field of practice, this article directly examines how and why ICJ as a field
evolved as it did and the political consequence of a shifting approach to justice. This reso-
nates with Eltringham (2019) and Hinton (2012 and 2019), who demonstrate how courts
function first and foremost as spaces of social interaction, where the norms and rules of
the court are constituted by the performances of different agents (see also Clarke, 2016,
2019). In this article, we build upon these ideas by thinking about how such performances
changed overtime and with what particular effect.
This contribution is important for two reasons. First, it offers an insight into what these
courts have tried to achieve and how this has changed overtime. This is significant both
for the legitimacy of these institutions and for understanding what can be expected of
international courts as responses to violence. Second, in placing these institutions
within a wider field of practice that extends beyond the court itself, it examines how prac-
tices and decisions made ‘outside’reverberate ‘within’the walls of international court-
rooms (Hagan et al., 2006). This challenges the idea that law and politics are two
different domains, which remains a persistent view in the study of ICJ. Even studies
that explore the political nature of these institutions tend to emphasise the court’s
ability to maintain an essentially legal sphere of action within the courtrooms themselves
(Bassiouni, 2005; Moghalu, 2005). Indeed, scholarship attentive to the political nature of
ICJ has tended to focus on the relationship between international courts and third parties
(Clark, 2018; Kerr, 2004; Rodman, 2014), rather than on the political nature of the law
itself (e.g. Kelsall, 2010 and Otto, 2009). In this respect, this article builds on the work of
scholars such as Hagan and Levi (2005), Peskin (2008) and Palmer (2015) who show
clearly how the interrelation between the court and the ‘outside world’shapes practice
624 Social & Legal Studies 31(4)
To continue reading
Request your trial