The expressive turn of international criminal justice: A field in search of meaning

Abstract

As the glow that accompanied the kinetic judicialization of the field of international criminal justice has faded over time, scholars have increasingly turned to expressivist strands of thought to justify, assess, and critique the practices of international criminal courts. This expressive turn has been characterized by a heightened concern for the pedagogical value and legitimating qualities of international criminal courts. This article develops a unique typology of expressivist perspectives within the field of international criminal justice, distinguishing between three strands of expressivism: instrumental expressivism, which concerns the justification of different practices of international criminal courts in terms of the instrumental value of their expressive qualities; interpretive expressivism, which concerns the identification of expressive avenues for improving the sociological legitimacy of international criminal courts; and critical expressivism, which concerns the illumination of the expressive limits of international criminal courts, as well as unveiling the configurations of power that underpin the messages and narratives constructed within such courts in different institutional contexts. Reflecting on the limitations of these perspectives, the article elaborates a nascent strand of expressivism – strategic expressivism – which concerns whether and how different actors in the field may harness the expressive power of international criminal justice in line with their strategic social and political agendas.

Narrating Communist Repression in and Outside the Courtroom: The Case of Former Prison Commander Alexandru Vișinescu and its Resonance with (Societally) Available ‘Narrative Worlds’

“…Criminal trials, accordingly, can be analysed as courtroom dramas in which multiple actors, including judges, witnesses or prosecutors, contribute to the construction of a particular version of the adjudicated events that is set out in the verdict. Yet, knowledge about the events enters the courtroom only through various formal or structural filters (Douglas, 2006), according to which criminal judgments construct fragmented and distorted histories (Sander, 2019). Studies on the epistemic function of trials further emphasise that criminal law's narrow focus on individual guilt compromises the historical value of proceedings by promoting a reduced, simplified and depoliticised understanding of the events (Osiel 1995; Simpson, 2007).…”

“…These, at least, are the normative assumptions attached to criminal trials in their capacity as epistemic engines. Yet, “there has been a notable dearth of empirical grounding” (Sander, 2019: 8) to these assumptions, especially in the context of national proceedings 1 .…”