Interview with Professor Dr. Carsten Stahn
Professor Dr. Carsten Stahn LLM., Professor of International Criminal Law and Global Justice at the University of Leiden, completed his habilitation in July 2020 at the Humboldt-University zu Berlin and acquired the Venia for Constitutional Law, International Law and International Criminal Law. The book "Justice as Message", which was published by Oxford University Press, arose from this habilitation process.
In the following interview from March 2021, students of the Human Rights LLM at Leiden University have asked various questions about, among other things, the content, meaning and challenges of the book as well as its practical relevance in the courtrooms. In particular, the question arose of what significance the book has for the human rights sector.
Your book explores the concept of expressivism and its role in international law, particularly in the field of criminal justice. Can you explain to our readers what the concept entails and how it has affected your perception of international criminal justice?
Expressivism is a concept that seeks to explain how social meaning is created. It transcends disciplines. For instance, in an essay on ‘What is art’, Leo Tolstoy argued that art is the expression of emotion to an audience through a medium, such as words, painting or music. At the end of the 19th century, the French sociologist Emile Durkheim used this idea to explain reactions to crime. He argued that the evil nature of criminality lies not so much in the crime itself, but rather in its destructive effect on common beliefs. He claimed that judicial institutions are guardians of public conscience which are entitled to express social condemnation of crimes through punishment. Since the 1960s, expressive theories have been invoked in general theories of law to explain public regulation and domestic justifications of punishment. Expressive theories suggest that law has value because of its ability to convey social meaning, in addition to its ability to control behavior. Expressivists recognize that legal norms have social value and produce certain effects on behavior, even if they are not enforced or do not provide sanctions in case of violations. For instance, a prosecutor may have good reasons to bring a case in relation to criminal behavior, even though it might not necessarily lead to conviction. The very act of starting criminal action may carry certain benefits, such as signaling gaps in law or the need for further public action.
International law is full of such examples. It has weaker enforcement structures than domestic systems. Expressivism is to some extent part of the methods of international law. If we take a closer look, we encounter expressive language in treaties, UN resolutions or judgments, which seek to inspire certain types of behavior, independently of compliance mechanisms. Legal actions involve not only application of formal legal rules, but speech acts to different audiences or performative features, such as rituals, coded words, or actions that ought be seen by others. Think about the United Nations. States shift vocabularies, argumentative patterns or behavior when they speak on the global ‘stage’, such as in the context of UN or treaty forums. The Universal Periodic Review (UPR) does something to states beyond the formal obligation to report. The periodicity creates a certain routine and repetition, as well as expectations that states abide by procedures because they are seen in relation to others.
Expressive theories are fascinating, since they allow us to go beyond legal formalism and look ‘behind the curtain’. They enable us to see law in context, decipher narratives, rhetorical techniques or behavioural patterns, and to understand better why legal agents, such as regulatory bodies, judicial entities or individuals behave in the way they do. This lens has helped me to understand practices, politics and criticisms of international criminal justice in a better way. Justice becomes more multi-dimensional.
You distinguish between four different dimensions of expressivism. Could you shortly explain each of them by also referring to their challenges? Do these dimensions influence one another or are they independent of each other?
In domestic law and international criminal justice, expressivism has traditionally been used to understand and justify punishment. Punishment is not only a means to provide retribution, inflict suffering or protect society from the offender, but a means to publicly denounce wrongdoing, affirm the legal order, send messages to future offenders or communicate wrongdoing to the convicted person. In my book, I go a step further and argue that expressivism has a broader role in international criminal justice beyond explaining rationales of punishment. Crimes often entail messages. Regulatory acts, such as treaties, or judicial practices, like trials or judgments may be seen as normative responses or counter-performances to the messages sent by crimes. I call this ‘normative expressivism’. Sometimes, the act of creating an international institution entails a message that is partly independent from the goals of the institution. For instance, the establishment of the ad hoc tribunals for Rwanda and the former Yugoslavia was partly a ‘purification ritual’. States sought to come to terms with their own failure to prevent or stop crimes committed in front of their eyes. The Malabo Protocol, which extends the jurisdiction of the African Court on Human and Peoples’ Rights to international crimes is partly an act of protest, namely a reaction to critiques that the International Criminal Court (ICC) has turned into a ‘criminal court for Africa’. It signals the effort to promote ‘African solutions to African problems’. Similarly, regional systems, such as the EU or the Inter-American system on human rights rely on messaging, in order to foster macro goals or promote norm internalization. This is what I refer to as ‘institutional expressivism’.
Procedural expressivism is a third form of expression. It has long been recognized that trials bear synergies with theatre. They involve role play, staging, scripted speech and communication with audiences. International criminal trials, such as the Nuremberg trials, have early on been viewed as ‘spectacles of legality’ with an educational function for societies. For example, when German Prosecutor Fritz Bauer carried out the Frankfurt Ausschwitz trials in Germany in the 1960s, he argued that these trials were first and foremost designed to send message to members of German society, namely a reminder that they should have behaved differently and objected to Nazi rule (‘Ihr hättet Nein sagen müssen’). Drawing on Niklas Luhmann, I try to illustrate that expressivism goes beyond this pedagogical rationale and entails signals, speech relations and performances inside the Courtroom, which correspond to different roles allocated in the legal process and contribute to a discursive understanding of justice.
Last but not least, I make a case that criminal justice proceedings have an important humanistic role, since they affirm the personhood and dignity of perpetrators and victims. Modern criminal trials do not approach offenders as ‘enemies’ of society, but rather as rational agents who are to some extent re-humanized through legal proceedings. For instance, Hegel has argued that punishment ‘honors’ the defendant. The empowerment of victims is inter alia reflected in the trend to award reparation for victims through criminal proceedings. These reparations are often collective, symbolic and ill-equipped to remedy the harm inflicted, but make the offender directly accountable towards victims and recognize that harm has been done to them. This is what I call ‘remedial expressivism’.
International criminal justice needs to constantly justify itself to different audiences: states, other international institutions, offenders, victims, civil society etc. This is why the different forms of expressivism are interrelated. They are grounded in an urge of international criminal justice to provide meaning to its actions and allow justice to be ‘seen to be done’.
International or national criminal justice constitutes an area of law which is highly regulated. All procedures conducted by various institutions have to follow a specific structure. Moreover, criminal provisions are most of the time formulated in a precise and clear way due to the principle of legality, which limits the interpretative leeway for judges and other actors in criminal proceedings. Is there still enough of a margin in criminal proceedings to maneuver communication, expression or linguistic nuance in such a way that it would influence our sense of justice, particularly where every step seems prescribed in advance?
As a normative project, international criminal justice is still less developed than many domestic systems. There are striking gaps, for example in relation to cyber-crime or environmental crime, historical injustices, such as colonial crimes, or corporate criminal responsibility. There is thus still a lot of space for normative development. New norms and principles often start with expressive practices. The principle of legality has generally been applied in a more relaxed way in this field, since it is assumed that international crimes are of particular gravity and relevance to international society as a whole. Courts have thus traditionally played an important role in the development of the law and will probably continue to do so. The procedures of international criminal courts and tribunals differ. Some are more adversarial, others are more inquisitorial. The space and nature of communication differs according to the set-up. More and more systems have to engage with the question how justice can be made more meaningful to victims and affected communities. Giving victims an active voice in the Courtroom, not only as witnesses for the Prosecution or the Defence, but as subjects in their own right, is still a relatively novel paradigm. Courts, such as the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, or the ICC have applied different approaches of victim participation. We still have to figure out how such participation may be facilitated in an effective way, without interfering with fairness and fair trial rights of defendants.
You argue that “international criminal proceedings convey messages beyond the Courtroom”. What do you mean by that, and to what extent does expressivism play a role in the context of the ICC or international ad hoc courts like the SCSL?
International criminal proceedings entail a wide range of speech relations, which reach beyond those who participate in proceedings. For instance, at the ICC, proceedings are triggered by civil society communications, State referrals or Security Council resolutions. The Court has multiple constituencies: information providers, states, civil society, its own governing bodies, victims and affected societies. This places the court in a communicative relationship with diverse entities, which often pursue competing interests. For example, the Office of the Prosecutor needs to engage in discussions or negotiations to obtain evidence or secure arrest of defendants by states. It has initiated preliminary examinations to draw attention to crimes and developed a policy paper to identify strategies to tackle global challenges, such as sexual and gender-based crimes, crimes against children or protection of cultural heritage. The ICC system as a whole seeks to ensure that domestic jurisdictions live up to their primary responsibility to investigate and prosecute crimes and contribute to prevention. Whatever the Court does, is closely monitored by states, other international bodies or victim communities. Both Court action, and Court inaction, entail speech acts. Take the recent Pre-Trial Chamber decision, which has confirmed ICC jurisdiction in relation to the situation Palestine. It has triggered strong international reactions, even before any concrete investigative action. Some have interpreted it as a purely political act, which threatens the prospects of peace, while others have celebrated it as a recognition of the right to self-determination of Palestinians and their functional claim to statehood. The decision has taken a life of its own after its formal pronouncement. The ICC Pre-Trial Chamber has foreseen this and addressed political critiques already in the decision. The majority stated that ‘the judiciary cannot retreat when it is confronted with facts which might have arisen from political situations and/or disputes, but which also trigger legal and juridical issues’. This a message beyond the courtroom.
Other expressivist practices are outreach and legacy strategies. They send messages about trials, judgments, Court narratives or records to a wide range of audiences, including local communities, victims, journalists or NGOs. For instance, the SCSL is often credited for having established a new culture of outreach activities. They are designed to contribute to broader objectives, such as education, memorialization or reconciliation, but often carry traces of ‘marketing’ or self-validation.
If so much weight is attached to symbolism and forms of expression in the judicial process, does this not clash with the general sense of justice and carry the risk of non-desirable “show trials”?
Yes, this risk certainly exists. International criminal proceedings are easily perceived as ‘show trials’ in the pejorative sense. It is questionable to use criminal proceedings against individuals simply as a medium to send certain messages. This carries the risk of instrumentalizing defendants and victims for ulterior motives. Proceedings come close to ‘political trials’. Kant has already cautioned that defendants should not be turned into objects, and this is the dominant understanding today. At the same time, some defendants have tried to use the trial as a stage to promote their own political messages, namely to promote heroic war narratives or discredit the credibility of courts. This may turn international criminal trials into ‘show trials’. Both risks need to be controlled. But in my view, the notion of ‘show trial’ may also have a positive connotation, i.e. a valuable demonstration effect. Trials may provide a counter-performance to crime, reaffirm equality before the law or restore the dignity of victims. This is a vision of ‘show trials’ that I would promote. Ultimately, I argue for a more communicative approach towards justice. Expressivism is part of such a holistic justice theory.
For your research you were forced to leave the mainstream legal discourse and also engage with philosophical, sociological, criminological or psychological aspects that influence law, since you scrutinized expressivism in a holistic way. Was it easy for you to switch perspectives, and how did that influence the conclusion of your research? Do you think that lawyers should not only pursue legal approaches, but also change their perspective once in a while in order to arrive at more substantive arguments or more comprehensive results?
It is never easy for a lawyer to integrate theories and concepts from other fields, since law relies on specific ways of reasoning and thinking, which may limit the ability to see other ways of seeing things or approaching problems. Sometimes, concepts from other fields are not easily accessible, and there is always a risk of misinterpreting or misreading scholarship in other fields. However, many of our legal concepts rely on philosophical, sociological, or criminological foundations, which are necessary to explain why we do things we do them, to understand critiques or consequences of legal actions, or to engage with the limits of the law or improve legal practices. For example, the justification of punishment cannot be properly understood without the philosophical or criminological underpinnings of crime. International criminal justice involves macro criminality. Legal acts, such as the qualification of conduct as international crime or the justification of sentencing, require an understanding of the political and social context of action, group dynamics, peer pressures or ideologies driving crime. If we assess justifications or excuses, we need to determine what behaviour can be expected of an individual in these specific circumstances. The Ongwen case before the ICC, involving a child soldier who has risen to the rank of commander in the Lord’s Resistance Army in Uganda, is a compelling example. To what extent can we expect a former child soldier, such as Ongwen, who has been abducted as a child, to act as a fully rational and non-violent agent, if all what he has experienced is a coercive environment and violence? In my view, engaging with these social-legal or even non-legal dimensions makes us better lawyers. It allows us to take well- founded decisions, develop more persuasive reasoning and remain conscious of the limits of law.
Does the concept of expressivism have any value in human rights discourse in general and are expressivist techniques already used by human rights bodies to justify certain interpretations of human rights?
Yes, of course. International criminal justice is just one illustration of the concept. The same typology, i.e. normative, institutional, procedural and remedial expressivism, can be applied in other fields, including human rights law. For example, UN human rights and fact-finding bodies use expressive language and rhetorical techniques, such as story-telling, appeal to emotions or obiter dicta, to draw audiences in. Contemporary judgments of the European Court of Human Rights are in constant ‘conversation’ with earlier rulings of the Court, or decisions taken by other national or international courts. Earlier on, I have already referred to the ritualistic nature of the UPR, which produces effects through its repetitive nature. The views or general comments of the Human Rights Committee are paradigm examples of expressivist practice. They seek to ‘protect human rights through communication’, rather than binding legal force. They do not only contain speech acts to participants in complaint procedures or the Committee itself, but are geared to increase international human rights compliance, engage with other human rights bodies or reach global audiences. Institutions, like peoples’ tribunals send messages about human rights violations, without having the legal power to adjudicate them. Collective and symbolic reparations form an important part of the jurisprudence of the Inter-American Court of Human Rights. These are just a few examples. It would be great to see more studies on this in the future.
How does this publication interact with your role as a Professor and Director of the Advanced LLM Programme in Public International Law?
The book is part of our Research Programme on Exploring the Frontiers of International Law. It has greatly benefited from conversations with our Adv. LL.M. students and colleagues at Leiden. It has been in the making for a couple of years. I devoted my inaugural lecture at Leiden to the question by what standards we should assess international criminal justice. I have always felt that we cannot measure the role of justice institutions merely through quantitative factors, such as the number of cases or judicial outputs. This book is the culmination of this thinking process, which has matured over time. It has been rewarding to discuss many of the ideas with our excellent students in the Advanced LL.M. programmes in International and European Human Rights & Public International Law. This process illustrates how teaching and research may mutually strengthen each other. I hope that the book will serve as a basis for continuing conversations and research, and inspire both academics and practitioners to see justice institutions and processes and the role of law from a different perspective.
Thank you, Prof. Stahn, for giving us these valuable insights into your interesting book. If readers are interested in reading the book, they can find it in Leiden University’s online library catalogue.