Negotiating international criminal law: A courtroom ethnography of trial performance at the International Criminal Court

The ICC is a permanent tribunal located in The Hague, Netherlands, which became operational in 2002. It prosecutes individuals charged with genocide, war crimes, crimes against humanity and aggression. Unlike established domestic legal systems, the ICC represents an emergent, amalgamated form of criminal justice that is still under development. It still faces unresolved uncertainties in fundamental law and procedure, and it administers justice across a variety of linguistically and culturally diverse constituencies which often have different expectations of the legal process. The context in which it operates is inevitably (geo)political, and as a result, the court's legitimacy is frequently challenged by external forces. The ICC has also repeatedly been accused of being a ‘political’ or ‘neocolonial’ court.

This project combines linguistic anthropology and interaction analysis with socio-legal and legal doctrinal expertise in order to address the various tensions surrounding this emerging form of transnational criminal adjudication. We examine how ICC trial actors manage these challenges in their courtroom conduct and how they in the process ‘consolidate’ the tribunal-in-emergence. Our research elucidates the incremental unfolding of adjudication over successive trial hearings by tracing the various texts and discourses that ICC actors produce and charting their intertextual connections. This also includes the various unscripted spoken interactions produced live in the trial hearings, a ‘black box’ that is often overlooked in legal doctrinal analyses of international law. More specifically, our investigations have centred on the following (interrelated) themes:

(1) The discursive production of legitimacy: ICC trial actors attend to external challenges to the Court’s legitimacy by metapragmatically reframing the ongoing speech event and projecting trans-local dialogues with audiences and constituencies outside the Court (for example, by aligning with UNESCO discourse in a Mali-related trial concerning the destruction of cultural heritage by jihadists in Timbuktu). Similar concerns are addressed in a methodological paper examining how the Court’s architectural landscape and website project an image of transparency.

D’hondt, Sigurd (2019). Humanity and Its Beneficiaries: Footing and Stance-Taking in an International Criminal Trial. Signs and Society, 7(3), 427-453. https://doi.org/10.1086/705279

D’hondt, Sigurd (2021). One confession, multiple chronotopes: The interdiscursive authentication of an apology in an international criminal trial. Journal of Sociolinguistics, 25(1), 62-80. https://doi.org/10.1111/josl.12447

D’hondt, Sigurd, Baudouin Dupret & Jonas Bens (2021). Weaving the threads of international criminal justice: The double dialogicity of law and politics in the ICC al-Mahdi case. Discourse, Context & Media, 44. https://doi.org/10.1016/j.dcm.2021.100545

D’hondt, Sigurd (2021). Why being there mattered: Staged transparency at the International Criminal Court. Journal of Pragmatics, 183, 168–178. https://doi.org/10.1016/j.pragma.2021.07.014

Barrett, Elena & Fabio Ferraz de Almeida. Accepted. From Timbuktu to the international community: Intertextuality, expressivism and legitimacy in the ICC's Al Mahdi trial. To appear in Journal of African Law.

(2) The interactional negotiation of trial procedure: ICC trial actors continually make ad hoc decisions to ensure that compromises made on paper also work in practice. One such grey area concerns the role of victims of atrocity crimes in trial proceedings and the unresolved tension between the witness role, which involves providing sworn testimony, and the role of 'victim-participant', which involves making unsworn statements. This is important because it greatly affects how narratives of suffering are presented to the court. Another procedural grey area that is directly related to the ICC's amalgamation of common law and civil law systems, is the tension that ICC judges experience between their accusatorial umpire-role and their inquisitorial truthfinder-role. Here too, interaction analysis provides a unique perspective on the day-to-day implementation of the Rome Statute's legal framework, which is usually overlooked in legal doctrinal analysis. 

D’hondt, Dupret, Juan-Pablo Pérez-León-Acevedo & Elena Barrett (2021). The Indeterminacy of Precedent: Negotiating the Admissibility of Victim Participant Testimony before the International Criminal Court, International Criminal Law Review (published online ahead of print 2021). doi: https://doi.org/10.1163/15718123-bja10082

D’hondt, Sigurd, Juan-Pablo Pérez-León-Acevedo, Fabio Ferraz de Almeida & Elena Barrett. 2022. Evidence about harm: Dual status testimony at the International Criminal Court and the straitjacketing of narratives about suffering. Criminal Law Forum 33(3):191-232. https://doi.org/10.1007/s10609-022-09442-8

Ferraz de Almeida, Fabio & Elena Barrett. In press. The ambivalence of judicial interventions at the International Criminal Court. In Tatiana Grieshofer & Kate Haworth (eds.). Communication in Legal Practice. Cambridge: Cambridge University Press.  

(3) The ICC’s response to cultural diversity and the plurality of normative orders: Here, our analysis reveals that the entextualization and recontextualization of local contexts (for example, spirit beliefs in the trial of a Ugandan rebel commander, and Islamic law and jihadist bureaucracy in the case of a Malian jihadist) draw on prejudicial norms such as notions of 'belief' and the rational subject, or tacit judgements about acceptable forms of Islamic normativity. Despite projecting an image of neutrality, accountability and transparency, the ICC’s reliance on such prejudicial norms impacts the legal outcomes and legal realities established in its proceedings. In doing so, the ICC risks reinforcing pre-existing hierarchies and eventually becoming a ‘political’ actor itself. It also limits the court’s transitional justice potential, as it might prevent certain categories of trial participants from projecting their own voice and participating in the construction of new post-conflict narratives.

D’hondt, Sigurd, Pérez-León-Acevedo, Juan Pablo, Ferraz de Almeida, Fabio & Barrett, Elena. 2022. Spirituality and Duress: Local culture beliefs at the International Criminal Court. Opinio Juris, February 15, 2022. http://opiniojuris.org/2022/02/15/spirituality-and-duress-local-culture-beliefs-at-the-international-criminal-court/

D’hondt, Sigurd, Juan-Pablo Pérez-León-Acevedo, Fabio Ferraz de Almeida & Elena Barrett. 2025. Trajectories of spirituality: Producing and assessing cultural evidence at the International Criminal Court. Language in Society 54(2), 367–388. https://doi.org/10.1017/S0047404523001008

D'hondt, Sigurd. In press. Discourse and contingency in international criminal justice. In Tatiana Grieshofer & Kate Haworth (eds.). Communication in Legal Practice. Cambridge: Cambridge University Press.  

Events hosted by the project

Online workshop “Anthropological, socio-legal, and linguistic-anthropological perspectives on the international criminal trial of Ahmad al-Faqi al-Mahdi”, University of Jyväskylä, 28 & 29 October, 2021.

Online workshop “Lights and Shadows in the Ongwen Case at the International Criminal Court: Inter- and Multi-disciplinary approaches.” University of Jyväskylä, 13 & 14 October 2022 (Convenors: Juan Pablo Peréz-León-Acevedo, Fabio Ferraz de Almeida).about project here