A Kind of Judgment: Searching for Judicial Narratives after Death

Timothy W. Waters, Indiana University - Bloomington

Abstract

This Article is a work of original research interrogating the relationship between international criminal law and post-conflict reconciliation. Much of international criminal law’s attraction rests on the authoritative narrative theory: the claim that law’s authoritative judgments create incontestable narratives, which form the foundation for reconciliation in divided societies. So what happens when there is no judgment? By turning scholarship’s attention towards a terminated trial, this Article develops an indirect but powerful challenge to one of the dominant views about what international criminal law is for, with interdisciplinary implications for international law, international relations, diplomacy and political science.

What can be salvaged from a terminated trial? This is the situation that confronted the International Criminal Tribunal for the Former Yugoslavia when its most prominent defendant, Slobodan Milošević, died before judgment could be rendered. One candidate for ersatz judgment was the Decision on the Motion for Acquittal brought two years earlier under the Tribunal’s Rule 98bis: When the Prosecution rested, the Trial Chamber had to decide whether there was a case to answer. The judges declared that the trial should go forward, though what they actually decided was ambiguous: The Prosecution had presented enough evidence that a court could find Milošević guilty – but they didn’t say that this court would.

Since there never was a final verdict, the Decision has become a site of contestation and ambiguous value. This Article examines how the Prosecution, Defense, Chambers and outsiders have deployed the Rule 98bis Decision to tell a story about Milošević’s guilt or innocence and craft a final judgment in the eyes of the world, if not in the law.

The doctrinal constraints imposed on efforts to extract a substitute judgment from this one case suggest real limits on international criminal law’s ability to create authoritative and transformative narratives – even, it turns out, in completed trials. The authoritative narrative theory is flawed in theory, failed in practice: international trials – whether finished or unfinished – do not create reconciliation.