International law can be thought of in a number of ways. Most evidently, international law is a wide set of norms, rules, and standards that define and regulate relations among states and at times within them. The domains covered by international law are multiple: from diplomacy to economics, from warfare to human rights. But international law is not just concepts and norms. To exist, international law is practiced, performed, conceptualized but also contested by agents across the globe in multiple ways. The actors involved with international law include policy makers, parties to a conflict, members of the civil society, intellectuals as well as the wider public. International law can therefore also be seen as a constantly changing social phenomenon that not only accommodates opposing views and narratives, but which actively encourages conflict (see Hakimi). It is through these social interactions that international law is shaped.
Over the years, numerous authors have therefore focused on law as a social practice creating and created by individuals and groups, whether in the field of international law or in other disciplines such as International Relations, sociology, psychoanalysis, ethics and communication. Looking at international law as sets of practices rather than just normative outcomes has therefore opened up a multitude of approaches and understandings to international law.
Our first ARTIJ workshop on ‘Art and International Courts’ co-organized with iCourts at the University of Copenhagen on 25-26 April 2019 aimed to open up a discussion on what we deem is an overlooked aspect of the practice of international law, namely the relationship between art and international courts, as the loci where and through which international law is most obviously performed. What is the role that art plays in the discourse and practice of international law? How do aesthetics – whether understood as the study of visual, sensorial or rhetorical expressions - shape perceptions of law and courts? To what extent do they matter, across time and space, in the law’s actualization? How have different forms of art been used by courts, and for what purpose? How do international law and international courts deal with cultural heritage and protection of art? Bringing together a number of scholars working across law, International Relations, sociology, history and philosophy as well as artists this two-day workshop thus aimed to initiate a new and interdisciplinary conversation directly tackling these questions.
At ARTIJ, we engage with different forms of ‘art’, including visual art, fine art, performative art, moving art and applied art. In the context of this workshop we thus wanted to operate with a similar understanding of the concept to allow for the widest possible conversation. The challenge of defining art for the purposes of an academic discussion (no matter how transdisciplinary this conversation may be) is that in its widest possible sense, art lies beyond concept and therefore beyond description and categorization. Yet, we do believe that it is possible to distill and discuss art in a number of ways: art as experience, art as emotion, art as a form of representation of reality, art as a set of practices, as well as art’s functions across time and space. Moreover, a focus on art allows connecting all the actors involved in the processes of conceiving, making and receiving the artwork. The objects of art - whether explicitly called as such, as in the context of an exhibition, or in the form of a decorative item placed in a building hosting a legal institution- are the carriers of meaning both intended by the creator and attributed to them by the person experiencing the object in question.
We suggest that three core reasons define the need for exploring the role of art in the practice of international courts, directly connecting with the various contributions to our workshop and ensuing symposium.
Firstly, art is an inalienable feature of any social practice, international law included. Some art theory is helpful in explaining this point. John Dewey in particular eloquently argued that in the course of history art became artificially separated from the conditions of its creation.
Dewey points out that art traditionally was a manifestation of the processes and tasks of everyday life, such as worship, war or hunting – “all the rhythmic crises that punctuate the stream of living”. Later on, and especially in Europe, art became increasingly confined to closed spaces only accessible to some such as museums, opera houses and so on. Yet, it is undeniable that there is an obvious continuity between artworks and everyday events and practices. For instance, the Greek Parthenon in Athens’ acropolis is regarded today as an art masterpiece. However, it was originally designed and built as a temple dedicated to civic commemoration. In a way not dissimilar to the past, the Peace Palace in the Hague was built at the beginning of the 20th century with the intention of transforming it into the ‘temple of peace and justice’. The building though also presents an incredibly rich décor, including manifold artworks, making of it not just the temple but also the museum of peace and justice, at a given point in time.
International law is a social practice concerned with issues of interest to the multitude of states and actors operating within them. If one accepts Dewey’s position that art is inherent in social life, then it is easy to see how artistic practices accompany the administration of international law. Art is inherently part of the process of international justice through architecture of the courthouses, through judicial rhetoric, through iconography and other forms of expression. A number of contributions at the workshop thus sought to shed light onto this ‘hidden’, or unspoken, aspect of international justice and examine what questions and contradictions it may hold. Mark Drumbl’s contribution speaks directly to this latter point. The author investigates the rituals of commemoration, remembrance and tribute stemming from the activity of international courts. In particular, Drumbl draws attention to the celebration in Japan of Judge Pal, an enthusiastic dissenter at the post-World War II Tokyo War Crimes Tribunal organized by the Allies, winners of the war. In his contribution, Drumbl argues that visuality brings with it unintended consequences, it opens up the space for a multitude of interpretations.
Jayati Srivastava’s contribution explores, in turn, international justice’s iconography. She points out that its emblems and symbols serve representational purposes whilst carrying specific meanings. This, the author claims, is visible for instance in the simple architecture and in the logo of the International Criminal Court (ICC), both seeking to convey notions of trust and transparency. Yet, Srivastava tells us, these aspirational messages are in clear opposition to current international criminal justice, which in practice is both hierarchical and imbalanced. The tension between ethics and aesthetics that the author uncovers stresses the discord between symbolic and substantive justice. Miriam Bak McKenna further explores the dichotomy between the aspirations and the actual reality of international justice reflected through aesthetics. More specifically, McKenna investigates the architectural design of international courthouses, drawing particular attention to the ICC structure: while the ICC was created with the ideas of internationalism in mind, the architectural aesthetic of the building is reminiscent of the sleek, glass structures common in Northern Europe.
In his piece on international justice and photography, Raphael Oidtmann ponders about the role of photography in eliciting truth.
He argues that photography opens a unique window to reality. In the context of international criminal justice, photography therefore constitutes evidence that certain actors or even the wider public may doubt or refuse to believe. In the form of public exhibitions, photography can also participate to reconciliation processes, including all the actors involved in a given conflict as well as external observers, in a unique conversation. Finally, Oidtmann invites us to stop and think about the ethical implication of using photography for the purposes of international criminal justice.
Secondly, a number of contributions to the workshop and symposium stress how art can be thought of as experience. This approach is fundamental to seeing international justice as a process and not only as an outcome-driven activity. Art may offer a different lens through which to see the activities of international courts. This alternative lens can yield positive results when it comes to attaining broader social legitimacy of international law.
Simon O’Sullivan argues that art has two functions: to represent reality and to create an affective state in the person or parties experiencing art. This latter function is an instrument of transformation. The experience of art creates an opening where the person is taken outside the familiar frame of referencing, or as Sullivan calls it, outside of the habitual time and space register. The function of art lies therefore in creating a possibility for making visible the invisible, placing attention to where it has not been placed before. The experiential function of art and its ability to focus on the process rather than the outcome is particularly useful in understanding broader outreach efforts of international courts and their attempts to foster a dialogue with various communities.
More specifically, art may be helpful in talking about the goal of reconciliation of international (criminal) justice. Although not expressly mentioned in the statutes of international tribunals, reconciliation became one of the objectives sought by international justice.
Can international justice contribute to healing of the communities affected by violence? Can the deployment of outreach instruments with artistic value lead to a meaningful transformation? Contributions by Rachel Kerr and Fiana Gantheret explore these questions in depth. Rachel Kerr claims that artistic interventions may create space for a dialogue in which people can engage emotionally physically, and intellectually. Yet, she goes on, one should resist the temptation to fully instrumentalize art as a ‘tool’ of transitional justice. For it is a more complex practice that creates room for opposing views whilst allowing their co-existence. In turn, in her contribution, Fiana Gantheret maps out reconciliation efforts by the International Criminal Tribunal for the Former Yugoslavia and by the ICC. She argues that because reconciliation as a goal lies outside of the mandate of international courts and tribunals, express legal work towards its attainment, especially when embracing an artistic component, should be modest.
Thirdly, art can be seen as a protected value in its own right. It is clear that international justice is moving in the direction of increased recognition of culture, including but not limited to artworks, as internationally protected objects.
For instance, the recent report of the Canadian National Inquiry into Missing and Murdered Indigenous Women and Girls found that Canadian policies of assimilation, which included the imposition of laws, institutions and cultures on indigenous peoples resulted in racial colonial attitudes and may well amount to genocide in both social and legal understandings of this term. This finding is a clear recognition of the central role of art and culture in forming and sustaining the existence of indigenous communities. The attack on language, rituals and cultural practices, amounted to an attack on the people(s) themselves.
In line with the logic of the report by the Canadian National Inquiry, Giulia Bernabei draws attention to the legal lacunae in the protection of cultural heritage when it comes to the specific field of international criminal justice. She insists that cultural heritage has value that goes beyond the physical objects that constitute it; it extends to their role in preserving life in a collective and communal sense. In her contribution, Shea Esterling explores the same topic in depth by focusing more specifically on the Al Mahdi case decided by the ICC. She argues for the importance of incorporating the narrative of cultural intra-nationalism in international criminal adjudication. This means that the court is to acknowledge the significance of cultural heritage to the local communities. Law is there to underscore arts’ vital role for the survival of such constituencies. This view of culture as significant locally should complement the dominant view of cultural internationalism that treats the works of art as a legacy of humanity as a whole.
To conclude, we hope that the symposium provides insightful takes on the interaction between art and international justice on all the different levels mentioned in this short introduction. As co-founders of ARTIJ and editors of this symposium, we therefore hope that this is just the beginning of a new yet essential conversation.
About the Authors
Marina Aksenova is Professor IE Law School at IE University and Director ARTIJ Initiative.
Maja Spanu is Junior Research Fellow in International Relations at the University of Cambridge.
Marina Aksenova and Maja Spanu are the co-founders of ARTIJ, which brings together art and international justice.
Marina Aksenova (left) and Maja Spanu