‘Legacy Talk’ at the International Criminal Tribunal for Rwanda

As mentioned in Marko Milanovic’s recent post, the American Journal of International Law will soon publish a Symposium at the occasion of the closure of the ad hoc tribunals. Marko’s article considers the impact of the International Criminal Tribunal for the former Yugoslavia (ICTY). We were asked to reflect upon the legacy and impact of the International Criminal Tribunal for Rwanda (ICTR). An advance (original and longer) version is available here.

Before turning to the ICTR’s potential legacies, our article explores the ways in which the concept of “legacy” can be understood in the context of an international criminal tribunal. Although rarely defined and even less frequently theorised, the term has recently been much in vogue in international criminal law, so much so that Viviane Dittrich has observed a “legacy turn” within the field.  Even before it closed down, the ICTR dedicated human resources, a website and a video to publicise its legacy.

As the ICTR’s legacy website and video demonstrate, the Tribunal has made claims about its legacy in no uncertain terms. For instance, the video lists the Tribunal’s monumental contributions to international criminal law, but it also describes a much broader impact: “a record of legal reform in Rwanda, and outreach, education, legal training, and healing.” The narrator claims, “today in Rwanda, it’s safe to listen to the radio again: the sound is of a nation rebuilding.” Yet the film’s final words are not about Rwanda, but affirm “a world pushing forward despite great imperfection, each day closer to a time when international law offers justice to all people, everywhere.”

This rhetoric about one’s own legacy exemplifies what we call ‘legacy talk’. Unlike legacy planning, which concerns ensuring that there will be something to leave behind, legacy talk attempts to consolidate a set of interpretations about what is left. Legacy talk often uses the future perfect (‘will have’ done/been). This grammatical sense harbors an epistemological conceit by projecting an impossible knowledge of what is still to come. At the same time, it reveals a desire to influence interpretation and uptake through the grammatical closure of the future perfect.

Legacy talk can be viewed as a ‘bid for immortality’, in the words of social theorist Zygmunt Bauman. Bauman has shown that not only individuals try to live on beyond their embodied existence, but also institutions. Just as individuals rework their life stories as a means of living on in the future, the ICTR recounts its own existence not as a limited institutional response to a horrific moment in history, but as part of a broader narrative in which the Tribunal has secured a place in the legal lineage of a global movement against impunity, a movement that is likely to exist long after the Tribunal will have departed.

In the ICTR’s reworked life story, the focus has shifted from what was envisaged in the UN Security Council resolution that created it. Whereas the latter focused on peace and reconciliation in Rwanda, ICTR legacy talk emphasises its contributions to the field of international criminal law, including the claim that it will have been, in the words of the ICTR’s legacy video, “an important step in a global movement towards accountability, everywhere.” The shift in emphasis from contributing to Rwanda toward the international legal order has been accompanied by a shift in focus on audience. Rather than directed to Rwandans, the Tribunal’s legacy claims appear to be oriented primarily toward international criminal law’s sites of production in The Hague and elsewhere, and even more broadly toward global policy-makers, who establish and fund international criminal tribunals and may be persuaded that such tribunals will “deliver” in terms of legacy.

In examining the potential legacy that the ICTR may leave in Rwanda and beyond, we explore a spectrum of possibilities, ranging from what is most clearly the case to what is least certain. As a large body of scholarship in international (criminal) law shows, the tribunal has clearly had a significant effect upon the developing jurisprudence in international criminal law, and on sustaining a professional community of advocates for this particular vision of post-conflict response. Less clear is the effect of the criminal processes on individuals and conflict-affected communities.

Arguably least clear is the impact of the tribunal on reconciliation within Rwanda and upon its broader political context. There is little empirical evidence of reconciliation in Rwanda in the first place, and those attempting to measure and quantify reconciliation have noted that responses were compromised by the respondents’ freedom to answer sensitive political questions. There is even less empirical research on the impact of the ICTR itself on peace and reconciliation in Rwanda. There are Rwandan views concerning the ICTR’s contribution to reconciliation but these do not necessarily illustrate the Tribunal’s actual impact on reconciliation. In the absence of empirical data on the Tribunal’s actual contribution to peace and reconciliation, international criminal justice pursued in the name of these objectives remains a form of what Jean-Marie Kamatali has called “experimental justice.” Indeed, one legacy of the ICTR and the ICTY is that empirical evidence on their contribution to peace and reconciliation has practically become less relevant, for they have successfully transformed “no peace without (criminal) justice” and “no reconciliation without (criminal) justice” into idées fixes.

Discussing a tribunal’s legacy may inspire more reflection upon its work in practice, but less legacy talk – the bid for immortality – may be a productive development. There are many reasons for an ethos of modesty when evaluating the legacy of an international criminal tribunal. Apart from issues of temporality and epistemology, which pose challenges to ascertaining what a legacy will be, there is the risk that the practice of legacy talk degenerates into decontextualized assertions about institutional performance and value. It is perhaps tempting to celebrate an impressive list of jurisprudential innovations, the number of cases tried, and the individuals who have contributed to the Tribunal’s work. Yet there is a risk that by focusing on the institution and its accomplishments, events that should never become normalized—the “unimaginable atrocities” that provide the raison d’être of international criminal tribunals—become occasions for institutional self-aggrandizement. Such self-aggrandisement can come at the cost of losing international criminal law’s object; namely, the sombre task of adjudicating grave crimes. Trials by international criminal tribunals alone cannot do justice to the enormity of mass atrocity or to the populations affected by it.  Doing justice in that sense goes beyond the international tribunal’s mandate. But the bare minimum of doing justice to genocide calls for recognition of the limits of the retributive legal form and an ethos of institutional modesty.