On 3 March 2017, Barrie Sander defended his PhD thesis in International Law entitled “Doing Justice to History: The Construction of Historical Narratives within International Criminal Courts”, at the Graduate Institute. Professor Paola Gaeta presided the committee, which included Professor Andrea Bianchi, Thesis Director, and Professor Gerry Simpson, from the London School of Economics, UK. In this brief interview, Mr. Sander explains how he came to choose the topic and provides an insight into his doctoral experience more generally.

How did you come to study international criminal law and what made you choose your particular research topic?

I initially studied international criminal law during my LLM at Leiden University in the Netherlands. During this time, I was fortunate to have the opportunity to intern for Judge Moloto at the International Criminal Tribunal for the former Yugoslavia, an experience which illuminated first-hand many of the tensions confronted by the field of international criminal justice in practice. It was also during this period that I discovered some of the most thought-provoking literature on international criminal law, including classic texts by Hannah Arendt and Judith Shklar, as well as more recent scholarship by Mark Drumbl and Gerry Simpson. I was particularly struck by the diversity of disciplinary perspectives from which the field of international criminal justice was studied. Rather than focusing on international criminal law as a set of rules, these scholars sought to critically examine the assumptions that underpinned the law, relying on fields as diverse as social psychology, criminology, sociology and history for the purpose.

My specific interest in examining the construction of historical narratives within international criminal courts arose from reflecting on the purposes of international criminal justice. Scholars such as Mirjan Damaška had begun to identify the emergence of a gap between the ambitious goals of the field – deterring international crimes, reconciling local communities, rendering justice for victims – and what international criminal courts could realistically be expected to achieve in practice. In light of this gap, I wanted to understand whose interests had been foregrounded within the field and whose interests had been marginalized and excluded from view.

Inspired by the scholarship of Mark Osiel, Lawrence Douglas and Richard Ashby Wilson on the relationship between history and international criminal law, as well as a growing critical literature in the field, I sought to unveil the clash of interests in the field by critically examining the scope and content of the historical narratives constructed within the judgments of international criminal courts. International criminal judgments constitute not only acts of remembrance and acknowledgement, but also moments of amnesia and oblivion. By revealing the narrative inclusions and exclusions within international criminal judgments, my thesis illuminates whose interests have been legitimated and whose have been neglected within different international criminal contexts.

What are your major findings?

Drawing on insights from field theory, my thesis demonstrates how the scope and content of the historical narratives constructed within international criminal judgments have been shaped and restricted by the practices of different social actors – including states, judges, prosecutors, defence counsel, civil society groups and scholars – interacting within the field of international criminal justice at particular moments in time. More specifically, I demonstrate how these social actors have interacted over the questions of whether particular categories of crimes have been committed and whether criminal responsibility for their commission may be attributed through particular categories of culpability to particular categories of persons.

By conducting a detailed examination of the range, scope and content of the categories of persons, crimes and culpability adjudicated within different international criminal settings, my thesis concludes that the historical narratives constructed within international criminal judgments have tended to be shaped and restricted in accordance with the established relations of domination that exist between and within states on the international plane.

Looking to the future, therefore, my thesis calls for a humbling of expectations amongst those who have invested significant faith in the emancipatory potential of international criminal justice and emphasizes the importance of developing and maintaining a critical capacity for unveiling the forms of legitimation that are embodied within the historical narratives constructed within international criminal judgments. Rather than mechanisms of narrative closure, international criminal judgments are better characterized as discursive beginnings for victims, local communities and future generations to engage with and debate the past beyond the courtroom.

What are you going to do now?

I have recently relocated to Rio de Janeiro, Brazil where I will undertake a Visiting Researcher position at FGV Direito Rio. In the coming year, I intend to divide my time between converting my thesis into a book, developing new research projects at the intersection of human rights and technology, and teaching new courses in the field of international criminal law.

How will you remember your doctoral experience?

I found my doctoral experience enriching and challenging in equal measure. The experience developed my capacity for critical thinking and broadened my awareness of the range of theoretical perspectives from which fields of law may be examined. In the latter regard, I am particularly grateful to my supervisor, Andrea Bianchi, whose course on theories of international law proved pivotal to the way I think about international law.

Having the freedom to choose where to focus your research is clearly a privilege and something to be cherished, but it can also be a significant challenge to zone in on a research question that is both unique in substance and viable in scope. For me, it was the delineation of the research question which proved to be the trickiest aspect of the process.

The doctorate also provided me with several opportunities to visit different research centres around the world, including Harvard Law School, the University of Copenhagen and FGV Direito Rio. Conducting research stays at different universities was a great way to engage with diverse communities of scholars and proved useful in developing the core arguments of my thesis. In some instances, research stays also led to collaborative research projects and teaching opportunities, each of which provided further avenues to develop my thinking on my thesis.

Finally, I will always remember and be grateful for the invaluable support provided by my friends and family throughout the journey, without whom the completion of my thesis would not have been possible.

Full citation of the PhD thesis: Sander, Barrie. “Doing Justice to History: The Construction of Historical Narratives within International Criminal Courts”. PhD thesis, Graduate Institute of International and Development Studies, 2017.

Illustration: Permanent Premises of the International Criminal Court, The Hague, Netherlands, 19 April 2016. UN Photo/Rick Bajornas, licensed under CC BY-NC-ND 2.0.