In a world of continuing conflict, mass violence and foreign interventions—and with the terminology of ‘war crimes’, ‘genocide’ or ‘crimes against humanity’ widespread yet little understood both in academic disciplines and in the media—the wide contemporary significance and need for greater understanding of the language and theoretical perspectives applied to the subject of war crimes trials and investigations could hardly be clearer.
War crimes and atrocities represent a series of powerful challenges that play out in the courtroom, but whose significance extends far beyond the legal sphere. They legitimize international action against perpetrators; they determine how a post-conflict society is structured and struggles to make sense of and respond to atrocities both historic and present; and they inform the development of the international laws of war concerning prevention and intervention. For these reasons, we must study the conduct of these trials and investigations, as well as their priorities, limitations and contextual exigencies. It is only through the process of prosecution that we develop and propagate a vocabulary and interpretational framework for dealing with atrocities and war crimes and, as such, the study of these trials continues fundamentally to shape how we understand and respond to conflicts and mass violence in the world today.
A thorough understanding of how the knowledge informing war crimes trials was generated is essential, but is as yet significantly underdeveloped. Although war crimes prosecutions have been studied from numerous disciplinary perspectives, each of these has its drawbacks and limitations, as well as its specific points of focus. We believe these approaches will benefit greatly from dialogue. The subject is so complex that it is impossible to study without constant confrontations with issues outside of one’s professional ‘comfort zone’. A historian is inevitably confronted with complex questions of international law with which even specialists in the latter field continue to struggle; likewise, political scientists interested in conceptualizing genocide at an abstract level rely on historians’ accounts, which themselves are constructed from the prosecutorial evidence generated in a given trial and political context. Perhaps most problematically, almost all disciplines draw unquestioningly on the evidence and conclusions of the forensic scientists who exhume and analyse the human remains of mass violence , but with little understanding of the significant limitations and subjectivity of the conclusions generated within that field. In other words, numerous disciplines build upon each other’s works, but with little dialogue and, hence, very limited understanding of their respective foundations.
This book represents a first collaborative effort to establish a more systematic, integrated and original introduction to the study of war crimes investigations and prosecutions, anchored in history, but with a sharp awareness of the present-day and future implications. Contributors are experts in their respective fields, who write here with in-depth knowledge but in an accessible style with non-specialist readers borne strongly in mind. This volume intends to orientate rather than overwhelm, so these chapters are deliberately non-encyclopaedic: they do not attempt to describe a discipline from every angle or to cover the entire field. Rather, they highlight the major trends, debates, methods and approaches, and the interactions with and relevance of these to other disciplines.
To do interdisciplinary work, we must begin with a strong understanding of the other disciplines. We need this firm ground beneath our feet before we can begin more complex projects, so this volume aims to provide a clear introduction to neighbouring disciplines’ work on the shared subject area of war crimes trials and investigations, allowing readers to develop their own work and knowledge beyond the traditional, artificial boundaries of their field.
The sequence of chapters mirrors both the chronological and disciplinary succession of the investigation and analysis of war crimes, proceeding from the initial gathering and study of evidence; on to the attempts to institutionalize and professionalize the prosecution of individuals for war crimes; and then the writing of histories based upon these events. We then turn to the ways these histories are thereafter used to generate analyses of the mentalities and psychologies of perpetrators of mass violence ; before moving on, on the basis of all this, to theories and efforts at preventing future occurrences of mass violence ; and, completing the cycle, philosophical reflections on the ethics and morality of war and conflict. This structure thereby demonstrates how each discipline builds upon others, but also how this process is cyclical, with the philosophical reflections and the theories of International Relations scholars feeding directly back into how wars are conducted and perceived by states and their leaders. This volume thereby encapsulates both the breadth of approaches to the subject and, crucially, their interdependence.
However, before we embark on this journey, it is vital that we orientate ourselves. The chapter, by Devin Pendas, provides an eagle-eyed view of the broad currents of how people have thought about and punished international crimes through the ages, from their earliest inception to the landmark post-Second World War Trials. He shows how important it is for war crimes trials to be situated in the history of their intellectual, philosophical and practical development, all of which are deeply interconnected. The aim is to establish common ground and a broader framework in which the more specialized chapters then sit. He illuminates the crucial themes which play a principal role in the more in-depth chapters, but which we must first understand in the broader perspective.
Each chapter will then outline, discuss and demonstrate a particular disciplinary approach, followed by a bibliographical essay which will offer crucial orientation for approaching the specialist literature in each case. These essays do not aim to be comprehensive, but instead provide a targeted overview of the most relevant and stimulating works. The book will thereby equip readers with what they need to know in order to use effectively the specialist literatures of different fields, to understand the principal debates and foci of particular disciplines, as well as the terminology those disciplines employ.
Each chapter endeavours to answer several key questions: What does this discipline do? What questions drive it in the study of war crimes? What tools, techniques, theories and so on, does it employ? How have its priorities grown and developed over time? And how, in the author’s view, can their discipline both strengthen and be strengthened by others? In considering this latter point in particular, we explicitly asked contributors to be critical of their own disciplines and to consider with an open mind the most common concerns raised about them by others.
However, by initiating these reflections, neither we nor the authors are promoting interdisciplinarity for the sake of it. The aim of this book is not to offer unconditional praise or support for interdisciplinary approaches, but rather to explore where they can be of benefit, and where they fall short, or even become detrimental to analysis. We consider it a strength to complicate an orthodoxy rather than to offer straightforward ‘answers’; indeed, the intention of approaching war crimes and investigations from multiple disciplinary perspectives is precisely to disrupt prevailing, rather balkanized assumptions and practices . This strongly critical approach is not aimed at undermining either trial processes or the disciplines which study them; on the contrary, the approach of identifying weaknesses honestly and without self-deception enables us ultimately to strengthen them both.
While handbooks and encyclopaedias provide comprehensive overviews, they frequently leave things at an abstract and theoretical level, offering little to no coverage or discussion of the numerous disciplinary ‘toolkits’ employed to study war crimes, trials and investigations. We therefore chose to include a case study in each chapter that illustrates how the respective disciplines work in practice , using examples drawn from cutting-edge research. Some of the cases are well-known, but we also draw into focus less famous, but extremely influential and telling, examples for the first time.
Overarching Themes and Key Issues
Although, from the perspective of the twenty-first century, holding trials after a conflict now seems like an obvious and natural step, in reality, ideas about having international tribunals at all have waxed and waned over the years. In considering their uncertain and uneven development, several overarching themes emerge and formed the subject of intense discussion at the workshops which preceded this volume. Therefore, in addition to the more specialized debates charted in the individual chapters, we highlight some of these broader issues here.
Terminology
The first of these concerns the aforementioned tension around the terminology we use to describe acts of mass violence and their prosecution. Often, when attempts are made to overcome interdisciplinary misunderstandings and divisions, scholars focus on issues of terminology, hoping that this will provide clarity, as though this alone would enable perfect dialogue across disciplines. In practice , these attempts rapidly devolve into one discipline trying to enforce its conventions on the others, especially lawyers, who can, with confidence, point to strict legal definitions which have tangible real-world consequences. However, legal terms do not emerge in a vacuum; rather, laws are birthed by specific political, cultural and social environments: as this volume shows, especially in the pieces by Pendas and Lemnitzer, these terms mean different things at different times, even in the courtroom.
Today, these terms may have a firmer, stricter legal definition, but they are also so widely used in the general and academic population that they continue to be surprisingly flexible. Although criminal lawyers express frustration at the imprecise way that everyone outside their discipline uses terms like ‘crime against humanity’, it is deeply limiting to think that they can own such terminology. Codification is self-evidently important, but legal definitions aim at binary outcomes (guilty/not guilty), whereas other fields are interested in many, more complex and less clear-cut questions and connections.
With this in mind, it is perhaps less surprising than one might have expected that, at the workshops which preceded this volume, terminological debates were not a big issue. These debates consume a great deal of energy, but ultimately produce more heat than light. The overwhelming feeling at the workshops was that an excessive focus on the specific terms used was counterproductive; it is an illusion to believe that we can definitively name and, thereby, somehow contain what are always complex and unique events. Even the classical tripartite division of ‘perpetrator’, ‘victim’ and ‘bystander’ rapidly breaks down when we examine particular case studies, dealing a serious blow to any theorists who would prefer their subjects to remain in orderly and cleanly divided categories. Instead, interdisciplinary discourse is most fruitful when we remain open to the perspectives of others.
The Holocaust Problem
The Holocaust is ever-present in the background of any discussions about mass violence and trials. As the single worst example of state-sponsored mass violence against a particular community in modern history, the Holocaust continues to mesmerize us not only due to its sheer proportions, but because it is synonymous with the dark side of Western modernity, and illustrates how technology and science can be harnessed to register, categorize and ultimately exterminate millions, all under the premise of rational action .
Thanks to Nuremberg and the subsequent trials, an unprecedented volume of evidence was generated, allowing researchers to probe numerous questions in unparalleled depth. Psychologists continue to be fascinated by the minds of perpetrators; philosophers grapple with the challenge presented by a shift in norms on such a wide scale; and, more concretely, scholars of Transitional Justice and International Relations—who frequently play an advisory role to modern states emerging from or at risk of descending into violent conflict—also use the Holocaust as the principal example of failures to be avoided in future.
Moreover, many scholars working on other instances of mass violence frequently use the Holocaust to give their own topics relevance and context: both academics and the general public are so much more aware of the Holocaust than other atrocities that it functions as the default comparator and helps to illustrate the seriousness of other examples. This can have its drawbacks, however, because events do not always unfold according to the same formula and so there are limits to the usefulness of a Holocaust-centred approach to the study of mass violence . There is a problematic but understandable temptation to place the word ‘Holocaust’ in one’s book title in order to generate interest, even if the relationship to the Holocaust itself is minimal. The unintentional side effect of this is to simultaneously make the Holocaust ubiquitous, but also to drain it of real meaning.
We must be cautious, therefore, not to allow the long shadow of the Holocaust to conceal from us the particularities and backgrounds of other cases. However, we must be equally aware that, at the other end of the spectrum, one finds a strong resistance to all comparisons between the Holocaust and other instances of mass murder, wherein comparisons are interpreted as somehow downplaying one or judging another to be ‘worse’. This desire to emphasize ‘uniqueness’ is misplaced: comparison is essential to sharpen and contextualize our understanding of mass violence . In any case, the assumption that something is unique is itself based on an implicit comparison which goes silently untested.
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