From a System To A Culture of International Justice : Addressing Its Challenges Through Art

by Fiana Gantheret

International Justice faces challenges that need to be addressed

On 21st November 2016, the WAYAMO Foundation organized a panel discussion to celebrate the one-year anniversary of its Africa Group for Justice and Accountability (AGJA) : Through the Looking Glass – Imagining the Future of International Justice. This discussion, organized as a side-event to the Assembly of States Parties to the Rome Statute (ASP), sought to explore the future of global accountability in the light of the recent declaration of withdrawals of South Africa, Burundi and Gambia from the Rome Statute of the International Criminal Court. More particularly, and through a preview of Weights and Measures : Portraits of Justice, by American artist Bradley McCallum, it explored the question of opening a dialogue on the challenges faced by international criminal justice.

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Members of the AGJA participating to the panel were Dapo Akande (Nigeria), Richard Goldstone (South Africa), Hassan Jallow (The Gambia), Athaliah Molokomme (Botswana) and Fatiha Serour (Algeria). The discussion was moderated by WAYAMO’s Research Director Mark Kersten. These prominent members tackled in a compelling way the difficult question of how a global system of international justice, while contemplating its achievements, will face and discuss challenges and, if necessary, renew itself.

Following introductory remarks by Bettina Ambach, Director of the WAYAMO Foundation, the President of the ICC Silvia Fernandez de Gurmendi reaffirmed that addressing the current difficulties faced by the ICC must be taken seriously and done in an appropriate manner. She put international criminal justice in an historical perspective, recalling that it was a long-term project, requiring efforts to preserve accomplishments and to move forward. Professor Dapo Akande also interestingly placed the discussion on a historical level, emphasising on the fact that this particular moment in time – seeing countries leaving the global justice system they helped to build, as recalled by Richard Goldstone – is part of a process going in the « right direction ». As stated by Hassan Jallow, this process encompasses various elements, such as international tribunals, domestic jurisdictions, and regional mechanisms, each possessing their advantages and disadvantages. President de Gurmendy had also recalled that the role of the Rome Statute goes beyond the reach of the ICC, referring to the definition of crimes in national bodies of law. In that sense, a global justice system is designed to encompass not only international institutions, but also regional and domestic jurisdictions : a « mutually reinforcing global justice system ».

Fatiha Serour emphasized on necessary elements that must be present when setting up a dialogue : respect, trust, and mutual understanding. With these ensured, addressing concerns and working towards identifying common core values can take place. The common core principle, or goal, is stated in Security Council Resolutions 827 and 955, founding the ICTY and the ICTR, as well as in the Preamble to the Rome Statute: to deter the recurrence of international crimes, and to hold the persons responsible for these crimes as accountable. Allowing for a dialogue on the difficulties faced by a global system is necessary to ensure that the international criminal justice process fulfills this goal, also referred to as the « fight against impunity ».

This aim is not as such questioned by the actors of international justice. Indeed, South Africa, in its letter of withdrawal, reiterated its commitment to justice and accountability. Similarly, even though the reasons of Burundi and Gambia for wanting to leave the ICC differed from those put forward by South Africa – they both referred to a policy of the ICC they deemed « racist », the two countries still did not imply that impunity should prevail over accountability for international crimes.

The challenges to be discussed pertain rather to the way the goal is achieved, i.e., for example, the application of the law on immunities, enhancing capacity building for national jurisdictions, reflecting on the role of the Security Council in the referral process to the ICC, or reinforcing complementarity. It is suggested here that similarly, issues pertaining to principles such as the presumption of innocence (from which fair trial rights and more generally the rights of the Defence ensue from) must be part of the dialogue. Indeed, the fight against impunity cannot be achieved if all parties involved do not seriously think that the court is able to fulfill both its repressive and protective functions.

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President de Gurmendy and panel

From a system to a culture of international justice

The way to construct this dialogue is manifold. The panel discussion organized by the WAYAMO Foundation added a significant stone to the edifice, as have different working groups and conferences that took place since South Africa’s announcement in October 2016. Not to mention the ASP taking place every year, where many decisions concerning the functioning and the policies of the ICC are made. In this respect, the will of the WAYAMO Foundation to collaborate with artist Bradley McCallum in presenting his project Weights and Measures : Portraits of Justice, is telling of the existing interest towards the different and unconventional ways to build a dialogue around the challenges faced by international justice. Beyond the culture of justice that is promoted by institutions such as the WAYAMO Foundation, is it possible to build a culture of dialogue about international justice, inclusive of all viewpoints and able to tackle difficulties and challenges ?

Weights and Measures : Portraits of Justice is a global art project by artist Bradley McCallum, dedicated to connecting people from different communities, through the universal language of portraiture. After four years of research, including a one-year residency with the Coalition for the International Criminal Court, the project evolved to encompass painted portraits of individuals standing trial for international crimes, photographic portraits of justice practitioners, and audio portraits of witnesses and survivors, thus giving a panoramic angle to the discussion as well as a physical space for it. The audio testimonial portraits, when paired with the photographs of the Justice Practitioners, will speak back to the persons in the paintings and suspend the viewer within the space of the dialogue. All the different stakeholders will therefore come together to discuss the challenges and achievements of international criminal justice.

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Artist Bradley McCallum addressing the audience

The exhibition will tour in different countries. It will launch in March 2017 in Johannesburg, South Africa, and then travel to Kampala (Uganda), Nairobi (Kenya), and Goma (Democratic Republic of the Congo). It will reach its final destination, The Hague (The Netherlands), in October-November 2017. The presence of the exhibition in these locations will be marked by special dialogues on themes such as abuse of power, accountability, presumption of innocence, peace, and justice. In this way, Bradley McCallum seeks to create an atmosphere of intimacy and empathy and draw the participation of civic-based organizations and a broad general public. The goal of this dialogue is to allow the framework of how we understand the efforts towards accountability to be more global by including non-legal audiences, but also by creating a dialogue between the different parties to the system of international justice.

Creating Rights supports this project as it does not shy away from the difficult questions linking the practitioners of international justice together, as well as with the affected populations and the broader public: is a dialogue possible, and what do the forms it takes say about the culture of international justice being promoted ?

Bradley McCallum’s diptychs of individuals standing trial for international crimes, and audience

Credits to: Kris Kotarski/Wayamo

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Save the date: dialogue on the future of international justice with artist Bradley McCallum

You are invited to join in the Assembly State Parties side-event organized by the WAYAMO Foundation to celebrate the one-year anniversary of the creation of the Africa Group for Justice and Accountability (AGJA). The event will take place on Monday 21 November 2016 from 6 to 7.30 pm (followed by a reception) at the Marriott Hotel in The Hague, The Netherlands.
On this occasion, a panel discussion on the future of international justice and its challenges will gather members of the AGJA, as well as artist Bradley McCallum who will introduce his project entitled Weights and Measures: portraits of justice.
Organized by Conjunction Arts, Weights and Measures is an international exhibition with the aim to start a discussion on the underlying issues of international justice, through portraiture. The exhibition will take place internationally from February to November 2017 in South Africa, Democratic Republic of the Congo, Uganda, Kenya, and the Netherlands. It comprises large-scale oil paintings of defendants, photographs of justice practitioners and audio installations of witnesses and victims. A preview of the exhibition will be visible during this side-event.
Through this collaborative event, we are hoping to not only discuss the existence of a system of international justice and its challenges, but whether a culture of international justice exists today, and how it can contribute to the debate.
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Ahmad Al Faqi Al Mahdi pleads guilty – Trial is held this week

by Fiana Gantheret

As mentioned here on Creating Rights, on 1st March 2016, the Pre-Trial Chamber I of the International Criminal Court held the confirmation of charges hearing in the case The Prosecutor v. Ahmad Al Faqi Al Mahdi. On 24 March 2016, it issued its Decision on the confirmation of charges against Ahmad Al Faqi Al Mahdi, in which it confirmed the war crime charge regarding the destruction of historical and religious monuments in Timbuktu (Mali). The Pre-Trial Chamber found that the evidence presented by the Prosecutor is sufficient to establish substantial grounds to believe that Mr Al Mahdi is criminally responsible, pursuant to article 25(3)(a) (perpetration and co-perpetration); article 25(3)(b) (soliciting, inducing); article 25(3) (c) (aiding, abetting or otherwise assisting) or article 25(3) (d) (contributing in any other way) of the Rome Statute, for the commission of a war crime regarding intentionally directing attacks against the following buildings:

1) the mausoleum Sidi Mahamoud Ben Omar Mohamed Aquit, 2) the mausoleum Sheikh Mohamed Mahmoud Al Arawani, 3) the mausoleum Sheikh Sidi Mokhtar Ben Sidi Muhammad Ben Sheikh Alkabir, 4) the mausoleum Alpha Moya, 5) the mausoleum Sheikh Sidi Ahmed Ben Amar Arragadi, 6) the mausoleum Sheikh Muhammad El Mikki, 7) the mausoleum Sheikh Abdoul Kassim Attouaty, 8) the mausoleum Ahmed Fulane, 9) the mausoleum Bahaber Babadié, and 10) Sidi Yahia mosque (the door).*

The confirmed charge concerns a crime allegedly committed in Timbuktu between around 30 June 2012 and around 11 July 2012. From January 2012, a non-international armed conflict broke out in the territory of Mali, and led to different armed groups taking control of the north of the country. It is alleged that Mr Al Mahdi, born in Agoune, 100 kilometres west of Timbuktu, Mali, was an active personality in the context of the occupation of Timbuktu. He allegedly was a member of Ansar Eddine, a mainly Tuareg movement associated with Al Qaeda in the Islamic Maghreb (“AQIM”), working closely with the leaders of the two armed groups that took control of Timbuktu, Ansar Dine and AQIM. During the ten months occupation period, the two groups imposed their will in Timbuktu through a local government, which included an Islamic tribunal, a morality brigade (Hisbah), and an Islamic police force. It is alleged that, until September 2012, he was the head of the Hisbah. In addition to his role as head of the Hisbah, It is alleged that Al Mahdi was very active in other structures such as the Islamic Tribunal, and oversaw the execution of its decisions. It is alleged that he was involved in the destruction of the buildings mentioned in the charge, as it was decided by the leaders of Ansar Dine and AQIM.

The Chamber also indicated that these buildings were cherished by the community, were used for religious practices, constituted an important part of the historical heritage of Timbuktu, and embodied the identity of the city, known as the “Pearl of the Desert” and the “City of 333 Saints”. As such, they did not constitute military objectives. They were specifically identified, chosen and targeted precisely in light and because of their religious and historical character. As a consequence of the attack, they were either completely destroyed or severely damaged.

Al Mahdi pleaded guilty this morning, as announced at the confirmation of charges hearing of 1 March 2016.The Trial will be held before Trial Chamber VIII, composed of Judge Raul C. Pangalangan (Presiding Judge), Judge Antoine Kesia-Mbe Mindua, and Judge Bertram Schmitt. The international Judges put questions to the accused, as foreseen in the Rome Statute, concerning the voluntary aspect of his admission of guilt, his awareness of the charges brought against him and of the possible sentence that might be decided.

Al Mahdi then made a short statement, in which he apologized to the ancestors that built the monuments and promised the people of Timbuktu that he will never engage in such acts ever again. He reminded them to he was a son of Mali that had lost his way and that he was part of the “social fabrique” of Timbuktu in that he also contributed to the life of the country. He stated that he had been influenced by groups, and warned the Muslims of the world that they should stay away from such acts from which no good can come for humanity.

As explained on the ICC website, the Office of the Prosecutor will have three hours to present its case and a maximum of nine hours for the examination of its three witnesses who are staff members or experts. The Legal Representative of victims will then have one hour to present their views and concerns, and the Defence will have a one hour and a half to present submissions.

This morning, the Prosecutor Fatou Bensouda addressed the attack on the identity of the people of Mali that was carried out through the destruction of the buildings. She defined these mausoleums as physical embodiment of Mali’s historical development. She also insisted on the significance of these attacks for the entire humankind, and the necessity of fighting against the revisionist goal of these attacks. The restructuration of the cultural heritage and the recognition of the crime of their destruction will help the reconciliation process taking place in the post-conflict phase. Finally, she emphasized that historical, religious and cultural heritage is no luxury and is necessary to the development of humanity.

You can follow the proceedings here.

* With regard the names of the religious and cultural sites, I will be grateful if anyone has information regarding the accuracy of their spelling. 

 

On 1st March, the destruction of cultural heritage as a war crime: the case of Al Faqi at the ICC

by Fiana Gantheret

On 1st March 2016 at 9.30 a.m. (The Hague time), the International Criminal Court (ICC) will hold the confirmation of charges hearing in the case The Prosecutor v. Ahmad Al Faqi Al Mahdi. If Pre-Trial Chamber I confirms the charges against Mr Al Faqi, a trial chamber of the ICC will then conduct the trial, in accordance with Article 61(7)(a) of the Rome Statute.

This former jihadi leader is accused of war crimes allegedly committed in Timbuktu, Mali, between about 30 June 2012 and 10 July 2012, through intentionally directing attacks against buildings dedicated to religion and/or historical monuments, including nine mausoleums and a mosque. These buildings were under the protection of the United Nations Educational, Scientific and Cultural Organization (UNESCO), some of them being World Heritage Sites, namely they were placed on World Heritage list by a special UNESCO committee. It is alleged that as a result of these attacks, the buildings were severely damaged, destroyed in certain cases.

Another case at the ICC involves allegations under Article8(2)(e)(iv) of the Rome Statute, namely intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives. Attacks that constitute serious violations of the laws and customs applicable in armed conflicts not of an international character other than grave breaches of the Geneva Conventions of 12 August 1949. Indeed, in the case The Prosecutor v. Bosco Ntaganda, the former alleged Deputy Chief of the Staff and commander of operations of the Forces Patriotiques pour la Libération du Congo is accused of having destroyed a church and a hospital.

The International Criminal Tribunal for the former Yugoslavia and the case The Prosecutor v. Prlic et al also brought attention to the question of cultural sites in times of war, with the destruction of the Stari Most of the city of Mostar in Bosnia-Herzegovina during the war between Bosnia and Croatia.

The fate of our cultural heritage is tied to the will of those who want to destroy it in order to assert power in times of war and conflict. It is said that to destroy a monument is like committing a parricide. According to the charges, these monuments were destroyed for the specific reason that they constituted religious and historical monuments, and did not constitute military objectives. 

 

Impunity through the eyes of Bradley McCallum at the Robert Blumenthal gallery in New York

by Fiana Gantheret

The work of Brooklyn based artist Bradley McCallum is in David Ebony’s Top Ten New York Gallery Shows this Winter. More specifically, his series of painted portraits, part of the Weights and Measures project, is. More specifically, international justice is.

Until March 5th, the Robert Blumenthal Gallery shows – together with six paintings of the Protest series – Bradley McCallum’s collection of oil paintings based on photographs of defendants being tried before various international criminal tribunals. This series aims at exploring the well-known public images of individuals such as Radovan Karadzic and Charles Taylor sitting before their judges as well as their reversed versions like negative film of photographs. In so doing, Bradley McCallum delves into less explored aspects of the fight against impunity such as the loss of a man’s freedom or the humane dimensions of trying mass criminals…

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Triptych and ‘reversal’ triptych of Slobodan Milošević, Thomas Lubanga, and Charles Taylor. Photographs of the painted portraits can be seen here.

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Bradley McCallum’s endeavor to help create a dialogue and raise awareness on international justice has already been described here on Creating Rights in the context of his one year residency with the Coalition for the International Criminal Court started in 2014.

Weights and Measures will concern other series of portraiture, namely photographs and audio recording that explore issues of international justice and accountability by poetically reflecting its various actors. Weights and Measures will begin an international tour in April, 2016 and will include exhibitions in The Hague, Netherlands, Limerick, Ireland, communities in the Democratic Republic of the Congo and Uganda, Johannesburg and Cape Town, South Africa, and Beijing, China before returning to the United States.

As explained on our Projects page, Creating Rights is actively supporting Bradley McCallum’s Weights and Measures project by being a partner in the Hague, the city of international justice.

Making Justice through Art – with Prof Rosemarie Buikema

The upcoming lecture by Professor Rosemarie Buikema organized by the Research Center for Gender and Sexuality of the University of Amsterdam will take place on Thursday 10 December 2015 on the fascinating subject of the definition of justice in transitioning countries.

Reflecting on the work of Professor Shoshana Felman, Professor Buikema describes how this definition has evolved from a conception encapsulated by transitional justice mechanisms such as criminal prosecutions and truth and reconciliation commissions towards the notion of absence of violence. This evolution leaves room for mediums such as art to explore their role in transitional states.

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Shattering the Silence: Confronting Impunity

By Andrea Breslin

“The right to the truth – which is both an individual and collective right – is essential for victims but also for society at large.  Uncovering the truth of human rights violations of the past can help prevent human rights abuses in the future.”

UN Secretary-General Ban Ki-moon

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The Look of Silence, Joshua Oppenheimer’s diptych to the Act of Killing, explores the right to the truth in the face of massive human rights violations and abuses. Truth can be a form of redress in transitional justice initiatives, and its significance has been recognised in many transitional societies in different regions of the world. There have been efforts to set up at least 40 truth commissions in diverse contexts internationally. In the Look of Silence, the themes of exposing the past, of memorialisation, of seeking acknowledgement if not redress, of impunity solidified through silence, are explored through the determined and fearless quest of Adi, an individual who is in some ways representative of hundreds of thousands of families who were victims and survivors of the torture and killings which took place in Indonesia in 1965/66. The focus on an individual, his pain, his story, his family, offers a single perspective to help us make sense of an overwhelming tragedy that seems impossible for us to wrap our heads around in any meaningful way by the sheer scale of the inhumanity involved.

The focus in the Act of Killing was on the perpetrators, on the banality of evil, in some ways evocative of Hannah Arendt’s interpretation of the Nuremberg trials, while this documentary gives voice to the victims, perhaps partially in reference to the earlier documentary exposure 40 Years of Silence: An Indonesian Tragedy. Adi’s approach and demeanour is the polar opposite of what he seeks to expose. In the face of denial, personal risks, thinly veiled threats to him and his family, and even outright mockery – he remains respectful, dignified, and composed throughout. Adi is cautioned repeatedly to maintain the oppressive silence, to avoid digging into the past and ripping open wounds which have supposedly healed. Why he cannot accept the silence is not directly addressed, but it is clear that amnesia is not a reality, and forgetting is not an option. The answers that victims may seek will haunt them regardless and in this case are sought out despite any potential personal, social or political consequences. Adi’s poised attitude seems to reflect a deeply rooted knowledge that almost inevitably nothing will come out of his quest in terms of accountability. His quest as an individual is not about establishing guilt, or paving the way for transitional justice processes. Adi will continue, like tens of thousands of others, to suffer from the loss of his brother at the hands of killers who participated in the annihilation of thousands of other lives. His belief in confronting the pervading silence gives him the courage to challenge his brother’s killers, and to achieve what seems to his objective, namely that he will bring others to say what he has been saying, namely that what happened was not normal; that it was a crime.

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The idea of confronting seemingly weak and fragile old men with violations they committed when they were strong powerful young men often invokes pity and resistance; why bother these poor old men? What will come of it? What good does it do? Images of former dictators, ageing Nazi generals and elderly Cambodian leaders from the Khmer Rouge come to mind. Many, such as Slobodan Milosevic, never survive through their lengthy criminal trials if such a stage is even reached. Can remembering attempt in some small way to address the abuse and even seek redress for the violations committed decades before? Can breaking the silence even for a second shift the power dynamics? Perhaps the least that can be expected is for some sliver of truth and memory to be captured before it is lost with the generation at the end of its prime.

In both films, when parts of the truth are revealed through direct questioning, the complete lack of apparent remorse is terribly hard to swallow. The seeming absence of regret, of shame, of any ‘human’ response to the acts committed is incomprehensible. Audiences may find it difficult to identify with this absence. The suspicion one is left with, however, in the Look of Silence, is that an unruly mob of challenging complex emotions do indeed lurk just beneath the surface, but when the very suggestion that they should exist is raised, anger is propelled at the instigator to protect the thin veneer of sanity and stability of the individual, just as the killers admittedly drank the blood of their victims while slaughtering them in an attempt to avoid a descent into insanity. This defensive action explicitly acknowledges an awareness of the heinous nature of their crimes.

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Adi’s profession as an optometrist – providing prescription lenses to people living in remote villages and communities, helping people see more clearly – couldn’t be any more symbolic, given the ubiquitous ‘willed myopia’ portrayed throughout. At one point in the documentary he tenaciously explains to his son that the propaganda taught in his school is false, that the son’s teacher is maintaining the suffocating shroud of silence, reinforcing the same hate speech that provided the conditions which propagated mass violence half a century before. What becomes clear is that in the absence of sight, of seeing the crimes, in the absence of challenge to the authority that committed them, in the absence of vetting, of any transitional justice approaches (despite numerous attempts to establish such), the silence is simply a deafening absence of justice, and creates the space for the atrocities committed to be replicated. Denial and omission pave the way for repetition among this ‘gerontocracy of tyranny’. Joshua Oppenheimer shows us what silence looks like. A society that refuses to address human rights violations committed on a massive scale, and to open the narrative to victims, will result in a new generation of indoctrinated individuals living in ignorance and a community continuing to endure paralyzing fear.

It is typically the victors who maintain control of the dominant narrative. If the truth is not sought and established, how are other mechanisms, such as reparations, criminal accountability, vetting, and reconciliation even possible? If the truth is absent, arguably no mechanism of transitional justice can function – only a tacit amnesty and absolute impunity for all perpetrators of violence can exist. Without sustainable peace and reconciliation brought about through confronting the truth and somehow addressing it, how can a recurrence of human rights violations be avoided? Often truth commissions go hand in hand with amnesty or pardon, in order to encourage perpetrators to come forward and admit their crimes. In this documentary no such incentive is necessary, as no repercussions are expected for the admissions; no negotiations are required, no plea bargaining entered into as the perpetrators rest assured that no accountability will be sought. Perhaps the only form of redress available to the victims is the gradual eradication of silence.

 

 

 

For more on the “tension between remembrance and performance, the function of moving images in the execution of political violence, and nonfiction filmmaking methods that facilitate communities of survivors to respond to, recover, and redeem a history that sought to physically and symbolically annihilate them”, see Killer Images, Documentary Film, Memory, and the Performance of Violence, a book edited by Joram Ten Brink and Joshua Oppenheimer,with contributors such as Ben Anderson, Errol Morris, Harun Farocki, Rithy Phan, Avi Mograbi, Brian Winston, and Michael Chanan.

Galway Arts and Human Rights Summer School exploring the theme of “Belonging”

The Inaugural Galway International Summer School on the Arts and Human Rights will take place from 9 to 11 July 2015 at the National University of Ireland, Galway, and is co-directed by Professor Micheal O’Flaherty, Director of the Irish Centre for Human Rights, and Dr Dominique Bouchard, curator at the Hunt Museum. The summer school will explore the intersections between the arts and human rights through panel discussions, exhibitions, performances, and three parallel workshops on the topics of literature and human rights, the visual arts and human rights, and music and human rights. This year, the theme of the event will be “Belonging”.

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A photography competition is organized as part of the summer school, inviting photographers from around the world to submit photography exploring the theme of “Belonging”. Up to 20 photographs will be considered to take part in an exhibition hosted during the summer school at NUI Galway alongside the1949 UNESCO photographic exhibition that will be mounted at St Nicholas’ Collegiate Church in Galway City.

The artist selection will take place on 17 June 2015. You can register and vote here. Dr. Andrea Breslin, an alumni from the Irish Centre for Human Rights – as well as a contributor to Creating Rights – presented photography work on internally displaced persons in South Sudan, where she worked with the Human Rights division of United Nations Mission in South Sudan. Her submission can be viewed here. Her “pictures depict those caught up in the current conflict in South Sudan; civilians displaced; homes burnt; buildings and belongings abandoned; children orphaned; animals fleeing; soldiers sleeping while keeping their fingers on the trigger. No one and nothing in these photos has been able to remain in the place where they belong. Home is no longer part of their reality”.

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Photograph by Andrea Breslin

Artistic exploration into international legal work: a matter of evidence?

by Fiana Gantheret

The question of the way different fields come together to enrich international criminal investigations and legal work was already touched upon here on Creating Rights when looking at Eyal Weizmann’s and Susan Schuppli’s project Forensic Architecture, a research project at the crossroads of international human rights law, architecture and engineering.

See You in The Hague by Stroom Den Haag, “a multifaceted narrative about the ambitions and reality of The Hague as international city of peace and justice”, offers further reflection on the encounter between artistic practice and international criminal processes, rendered here through the projects of Susan Schuppli and Jason File.

It presented last fall Susan Schuppli’s Evidence on Trial, a project featuring a conference and a video installation, as well as the screening of a documentary, Material Witness. Through these artistic manifestations, Susan Schuppli explores the path followed by media materials when presented in various public and legal forums such as international tribunals and agencies. What impact does court’s processings have on their evidentiary capacity to produce the truth, as required from them? Susan Schuppli’s project explores “how histories are materially and computationally encoded by media and by which means the complex political realities they are embedded in are rendered visible. In short, it is an inquiry into how objects become agents of contestation between different stake- holders and truth claims“. A methodology of a forensic nature in line with the one governing Forensic Architecture.

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Evidence at Trial, Stroom Den Haag – 16 November 2016                                                   Photographs by Fiana Gantheret

More recently, a duo exhibition was visible at Stroom Den Haag, entitled A Crushed Image (20 Years After Srebrenica), and presenting artwork by Jason File and Peter Koole. Peter Koole is a Dutch artist who, after having seen repeatedly the word Srebrenica on medias, decided for the first time to include it in his art work. Jason File is a contemporary visual artist, as well as a prosecutor at the United Nations International Criminal Tribunal for the former Yugoslavia. In the exhibition, Jason File presents various art works staging evidentiary documents in front of the international tribunal. As he explained himself during the finissage of the exhibition that took place in Stroom Den Haag on 12 April 2015, Jason File is interested in the ambiguity and subjectivity made possible through art, which legal work cannot offer. He uses evidence material such as autopsy drawings, hearings’ transcripts, and the day-to-day gesture of shredding confidential documents, and, by presenting them through artistic lenses, introduces ambiguity into legal work by interrogating their identities as objects.

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A Crushed Image (20 Years After Srebrenica) – Jason File – The Earth and the Stars / Photographs by Fiana Gantheret

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A Crushed Image (20 Years After Srebrenica) – Jason File – The End                                 Photograph by Fiana Gantheret

Both Jason File and Susan Schuppli’s projects raise the following question: is it possible to think as artists in a domain that isn’t artistic? In other words, what to think about what art has to say and the relevance of it for international legal processes? As Jason File puts it in Post Script – a text written in an attempt to answer the question of whether it is possible for someone in the legal profession to have a double articulation that includes the making of art – “aesthetic critique is incompatible with properly-functioning judicial systems from the internal perspective of the operations of a trial”. Rather, if critique there is, it will follow an internal pattern of rules. Jason File explains this by referring to the mandate given to international criminal proceedings to establishing facts beyond a reasonable doubt and applying a normative judgment to them. He also refers to the underlying assumption that there is an objective truth that the international criminal justice system tends to ascertain, to a degree that allows confidence in the system’s ability to do “justice”.

He therefore describes a criterion, presiding over the choices made in determining which sets of rules will define the field in question. In Justice, Uncompressed, published along with the exhibition, Jason File compares these choices to those driving digital image compression:

In its laws, rules, procedures, technology and practical resource constraints, an international criminal tribunal has its own compression algorithm. Under a tent, the physical remains of a victim excavated from a mass grave are converted into words and images on paper through the mediating influence of an investigator drafting a report. The report becomes a proxy for the real thing, the smell of the location, the dirt, the feel of a bone which itself stands in for the personal experience of the victim itself, now irretrievably lost. Much raw information and experience is removed in order to distill the facts that are relevant for the purpose of the investigation.

The question of the confrontation between the fields of justice and art was at the core of the debate that ended Susan Schuppli’s Evidence on Trial, and which took place on 16 November 2014 in The Hague Institute for Global Justice. There, Susan Schuppli’s text Entering Evidence, in which she “conceptually interrogate(s) the ways in which the post-production treatment of media materials – their copying, editing, digitalizing, and chain-of-custody handling – impacts upon their evidentiary capacity to produce the truth claims that are required for ‘the justice of law’ to answer the ‘injustices of war’”, was discussed by practitioners of international criminal justice. They made the remark, in particular, that “the research of media materials in the ICTY archives should be left strictly to legal professionals” (for a thorough account of the debate following the conference, as well as interesting thoughts on the relationship between arts, peace and justice, see Brigitte van der Sande’s post on See you in The Hague Blog).

Jason File and Susan Schuppli concur to think that there should be more opportunities to communicate between both worlds, which would each benefit from such collaboration. From the internal perspective of international criminal processes, forensic work such as the one performed by Susan Schuppli could bring a meaningful contribution by interrogating evidence material, provided that the conditions of admissibility and evaluation of evidence be respected, namely in accord with the “internal pattern of rules”. Even if Susan Schuppli’s approach has an artistic aim that is external to its object of study – international criminal operations – it can be made compatible to a judicial evaluation of the evidence from an internal point of view and therefore contribute to the judicial truth, the “objective truth”, as described by Jason File in Post-Script. On the other hand, one must distinguish between the judicial truth as produced by international tribunals and a broader artistic approach which, as in the case of Jason File’s work, takes part in a collective and socio-philosophical vision not focusing on individual criminal responsibility. In the latter case, the object of study is extracted form its context and submitted to an artistic and external understanding. In this instance, there is, in our view, no other relation between the two fields than one of mutual respect and interest.

 

L’art de tracer la ligne entre liberté d’expression et incitation à la haine raciale

Par Fiana Gantheret

English version available here

A la suite des évènements tragiques de janvier 2015 à Paris, un débat impliquant deux principes a resurgi : la liberté d’expression, d’une part, et la prohibition de discours appelant à la haine, de l’autre. La raison principale en est la mobilisation massive qui a suivie l’attaque de Charlie Hebdo. En effet, plus d’un million de personnes en France ont manifesté afin de proclamer « Je suis Charlie », et par là-même leur « attachement indéfectible à la liberté d’expression ». Une autre raison est qu’à la suite de la tuerie à Charlie Hedbo, qui a été suivie, entre autres, par une attaque à caractère antisémite, plus de 70 procédures ont été initiées pour apologie du terrorisme ainsi que pour incitation à la discrimination et à la haine raciale, en réaction à des propos tenus par des individus soutenant les actions des terroristes ou à tout le moins les minimisant. A cet égard, la Garde des Sceaux, Christine Taubira, a donné les instructions suivantes dans une circulaire aux parquets :

A l’heure où la France est frappée en plein cœur par le terrorisme et où les fondements même de la démocratie sont visés, le ministère public doit veiller à préserver les grands principes de la République et poursuivre son action de protection de la liberté d’expression, indissociable de la démocratie.

L’article 10 de la Convention européenne des droits de l’homme ainsi que les articles 10 et 11 de la Déclaration des Droits de l’Homme et du Citoyen proclament les principes de liberté d’opinion et d’expression qui ne peuvent être limités que dans les cas déterminés par la loi.

Dans ces moments où la nation doit montrer son unité, les propos ou agissements répréhensibles, haineux ou méprisants, proférés ou commis en raison de l’appartenance à une religion doivent être combattus et poursuivis avec la plus grande vigueur.

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