Chapter 9 is an investigation of mythico-history, with a particular focus on the narrative construction of dictatorship. It tells a disturbing story of how and why, in post-genocide Rwanda, law became “a dramatically enacted thing.” To this end, the chapter analyzes the RPFs media campaign in support of the gacaca courts alongside its assault on international law.

This first chapter sketches a brief conceptual history of reparations in international criminal justice and introduces some key concepts and terms used throughout the book. Chapter 1 shows how questions of justice in response to mass atrocities have been informed by two international normative demands: the ‘fight against impunity’ and the corresponding rise of international criminal justice; and the emergence of international human rights and the increasing attention paid to victims of crimes. These two main normative responses – punishment of perpetrators and redress for victims – gradually converged over time, laying the ground for the emergence of reparations mandates at international(-ised) criminal courts. That this was not a linear development is demonstrated by interrogating the absence of reparations at the two ad hoc international criminal tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).

This traces the UN’s involvement in Rwanda from the build-up to the genocide to the creation of the tribunal and the archive. It examines why, having been willing to stand by during the genocide, an international court came to be seen as a solution to the genocide, and what this reveals about the politics and purpose of the archive. I argue that the introduction of the legal terminology of ‘genocide’ during the violence was a key turning point in the UN’s intervention, as the violence became something that targeted the international community as a whole. The chapter also offers a brief overview of the ICTR and the archive, and here shows that, at the start of the tribunal, a very broad set of strategies underpinned the archive and emphasised the tribunal’s role in determining individual responsibility, establishing the truth, providing a space for victims to testify and reconcile with their pasts, and contribute to the development of international criminal law and international peace and security.

This chapter focuses on the archive’s concepts and objects. This first examines how the tribunal’s legal rules shaped the archive, setting out how the court’s statute and ever-evolving jurisprudence created the framework through which the archive’s records were produced. Beginning to get to the political nature of this imagining, the chapter also demonstrates how certain interpretations of the law ended up preventing records from being produced – such as about the international nature of the genocide from entering the archive – and cemented the use of trials as a key governance tool within the international community. The second part zeros in on arguably the two most important objects for the archive: victims and perpetrators. Exploring how these were constituted in particular ways points to how this produced distinctive visions of community and also how this resulted in a number of conflicts between the archives strategies.

This chapter looks at how other ICTR actors influenced the way in which the archive was contested. It begins by returning to the themes set out at the end of Chapter 2 and explores how the legal actors of the court initially pursued an expansive approach to the trials in search of truth, justice and reconciliation. However, this approach to prosecutions changed over time as the tribunal began to focus simply on getting as many verdicts as possible, as quickly as possible. As such, the conception of justice underpinning the archive became far more restricted and more closely resembled a more traditional form of retributive justice. This, then, shows the fragmenting of the tribunal’s initial purpose. This chapter identifies three main factors behind this shift: the solidification of the legal rules that underpinned the trials; the relationship between the tribunal and other UN organs – and particularly the Security Council’s decision in early 2000s that the tribunal had to close down as quickly as possible; and the ICTR’s acquiescence to the RPF’s demands that the tribunal halt investigations into RPF crimes during the genocide.

Chapters 4 and 5 explore how various subject positions (or what Foucault describes as enunciative modalities) influenced how knowledge was produced within the archive, from which perspective records were constructed and, ultimately, what was to be archived. In Chapter 4, ‘Contesting the Archive’, I focus on the witnesses, who played a far more significant role in constructing the archive than scholars normally credit. Whilst this shows how legal actors constrained what witnesses could record within the archive, it also demonstrates how witnesses were able to contest these parameters both in terms of which crimes would be recorded, but also how the law was to account for violence. This contestation also destabilised many of the objects and subjects that the legal discourse tried to produce, such as what constituted a victim or perpetrator.

This brings these findings together and considers what this tells us about the role of archives in international criminal justice and international politics. This reveals a complex picture where the principles and strategies that underpinned knowledge production within the ICTR’s archive shifted over time, from a form of restorative justice to a more strictly retributive model. This also meant a shift from more far-reaching records of violence produced under the witnesses’ influence to a more legalistic record of violence. Over time, the archive, then, less closely reflected the needs and priorities of those affected by the genocide and arguably also produced a more conservative vision of the international community. The chapter also examines the extent to which these dynamics are an inevitable part of international criminal justice,. as a liberal tool of international governance, in part by examining the ICC. This argues that whilst there is little to suggest international criminal justice must necessarily act with such a reductionist view of its function, that these issues continue to underpin current practices of international courts.

In this chapter, I outline how the approach I have can raise new questions, both for ICL and for general criminal law theory.

The study of extreme cases can unsettle and refine our understandings of the principles developed in everyday experience. I will show how studying ICL problems may require us to unpack the roles traditionally played by ‘the State’ in criminal law thinking, and to re-examine many familiar tools of criminal law thought (such as ‘community’, ‘citizenship’ and ‘authority’). The criminal law theory of ICL might draw on ‘cosmopolitanist’ scholarship, which contemplates forms of governance other than the state, and which is therefore particularly challenging for mainstream criminal law thinking.

I will also highlight ‘promising problems’ in ICL. Exploring such problems can help us refine ICL doctrines and also make contributions to mainstream criminal law theory. These include: legality without a legislature; a humanistic account of duress and social roles; and superior orders and state authority. I will then do an even deeper delve into a selected set of controversies in Chapters 6 to 8, in order to demonstrate the method at work and thereby clarify the method, the work it can do, and the themes it raises.

Chapter 2 dwells upon the operationalization of the reparative dimension of international criminal justice at the international level, with a focus on the historical evolution of reparations by international criminal courts and tribunals prior to the ICC, and the reparative justice model devised by the Extraordinary Chambers in the Courts of Cambodia (ECCC). The goal of this chapter is to retrace the diverse models in place in international criminal tribunals in regards to reparations, from a model that excludes reparations from criminal proceedings to one that has a role for victims and encompasses reparative dimensions of justice. Concerning the latter, this chapter analyzes in-depth the reparation regime developed at the ECCC, including the role of parties civiles, and the rich developing case law of the court regarding reparations. This chapter provides a careful analysis of all decisions on reparations and submissions of the parties, it engages with critical scholarship on the system developed at the ECCC, the impact of reparation orders for victims and discusses practical and policy considerations of the types of reparation that can be ordered (collective and moral reparations). It also analyses the partie civile system under which the ECCC operates and discusses the contribution of the evolving case law to the development of reparative justice for international crimes.

The effectiveness of transitional justice is hotly debated. We highlight a largely overlooked source of such war crimes evidence: intelligence provided by third-party states. We argue that such countries often wish to provide this information but withhold it to avoid revealing intelligence sources and methods. The adoption of confidentiality systems by war crimes tribunals can ease this tension. Courts can integrate national intelligence to gain insights into culpability for atrocities while protecting sensitive details. However, supplying states will constrain their disclosures based on their political interests. We analyze US intelligence disclosures to war crimes tribunals for the former Yugoslavia and Rwanda. Drawing on newly reviewed archival materials, elite interviews, and secondary sources, we show that confidentiality protections elicited considerable intelligence disclosures when the United States had a political interest in prosecuting the case, thus increasing arrests and indictments.