time and legal stories.

I sometimes wonder whether international criminal tribunals allow time to pass in the right way. By indicating that time may pass in right and wrong ways, I do not mean to be prescriptive about how it ought to pass. But I do wish to draw attention to the importance of thinking closely about what it means to make choices about storytelling.

International criminal trials tend to take 5–10 years to come to their conclusions, and so they stretch across an expanse of time that is worth marking. What does it mean that it may take ten years to tell what is already a very narrow version of a much more complex story of aggression, violence, and destruction both of persons and of the worlds within which they dwell? How is all that time spent in the courtroom, and what does it add up to?

Since 2012 I have spent 2–3 weeks per year observing proceedings in the trial against Ratko Mladic at the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague, The Netherlands (The Europe). I’ve also observed some of the proceedings of the Ruto/Sang case at the International Criminal Court (ICC). As an observer I’ve experienced wonder, rage, horror, perplexity, sadness and admiration, all in rough equivalence, time-wise. But the predominant mood or experience of observing is probably boredom. (I learned later that I was not alone in this observation, even if my conclusions might differ. Rebecca West remarked about the Nuremberg trials: “the courtroom was a citadel of boredom…. The most spectacular process in the court was by then a certain tug-of-war concerning time.”)

Those who work in the court as attorneys (some of whom I’m met with to talk about law and time’s passing) do not experience the passing of time as boredom. They are engaged in the work of arguing the case, introducing evidence, remembering the complexities of the case at hand and its relation to other cases, etc. Court security guards probably experience a mixture of the two. They stand around talking about their lives or joking, sometimes loudly, while otherwise serious court business proceeds. But they also are called up on to be vigilant about any number of rules and security threats, and are not lax in their oversight.

I’m hoping my next book will be a phenemonology, of sorts, of how time passes in law, looked at from various angles (aging and child soldiers, international tribunals, indigenous oral history interacting with western legality, refusal to pass a bill that would study the impact of offering reparations for slavery in the U.S.). So I’ve subjected myself to sitting and observing, all day for many days in a row over a period of years, so that I could undergo the passing of time and thereby possibly learn something from that. On any given day I might hear a story that is both horrific and makes no sense because of the trauma of the witness (I wish I could tell you the story about the dogs and the severed heads but neither my memory nor my notes can make it into a legible story and the transcript I thought I could come back to later was heavily redacted), or I might hear a story that brings the room to tears, or one that teaches me a lot about forensic science, exhumations of bodies or ballistics. Or I might spend a whole day listening to silence while watching the court because a witness is giving protected testimony (and thus the sound system is turned off so you can watch but not hear). Or I might spend hours watching narrow and repetitive questioning, or court officers getting procedural things done. One thing I’ve learned is that reading a transcript of a case cannot tell you everything you might want to know about what happens in a courtroom during a trial.

Being able to see (or feel) the various interactions in the court as they transpire (looks given between parties or court officers, reactions of those observing, etc.), and undergoing how long it takes to do certain things (like bring up an exhibit in the electronic docket system, get a submission marked with an exhibit number, deal with a discrepancy in the real-time transcript, or bring in a new witness) begins to offer a different narrative — a legal story, differently paced from a transcript, differently framed from a video, and certainly differently narrated from any other kind of story one might set out to tell. This different narrative reveals both what a trial does (takes tremendous care in pursuing a specifically legal truth) and what it could never do (tell the broader story about a destroyed world, fix the lives and communities of those robbed of home, time, health or a sense of safety, respond to the urgency of rebuilding worlds). This matters, I think, because stories get impacted not only by the form they take but by the timespan in which they are told (watching one episode of Law and Order requires a different form of attention and retention than does watching the full first season of Mr. Robot or seven years of Buffy the Vampire Slayer, just as reading US Weekly requires a different kind of attention than does reading Middlemarch or Brief Interviews with Hideous Men.). So what, really, does it mean that it takes ten years to tell this narrow slice of a larger story? What gets heard and what goes missing when this is the format? And what can that tell us about whether time is passing in the right way?

So, yeah, legal trials are caught in time. A legal case adjudicates a past harm in a present moment in the hope of redressing that past and thereby helping to open up a future that is not fully determined by past harms. What I mean is this: if you have been the victim of a grave harm, that is not an easy thing to let go. It is especially hard to let it go if the persons responsible for that harm have not been punished for its commission or if, perhaps, you live in a community where what happened to you isn’t even recognized as a harm. If that’s the case, the past isn’t really past, because it hasn’t stopped happening yet. And so the future is also foreclosed — there isn’t much hope of it being freed from past harms that are still happening and thus aren’t past. Law tries to release us all from this closed loop by finding people responsible for crimes and making them pay for what they’ve done (redressing a past) and also by establishing publicly that certain kinds of harms are not allowed and will not go unpunished (opening up a future). We saw last week when I discussed the case of Dominic Ongwen the limits to what a verdict of individual criminal responsibility can do in a case where the harm couldn’t have happened unless there was also a very widespread indifference to its infliction. Law can’t fix everything. Nonetheless, law does aim, and sometimes achieves, a kind of redress of past events.

There might be something wrong here, in how the law of a legal trial implicitly conceives what time is, however. In a legal case victims’ stories matter only if they help establish the facts of the case at hand. More expansive stories about a broader destruction of a self and/or a world are not permitted unless prosecution or defense teams thematize them for the court. (This means, basically, that the most important parts of a story, for someone who was victimized or who lost a love one, may not matter — may not even get heard in a court of law. That flattens out time and harm by abstracting them from their context.) That will also have extra-legal effects. So, legal stories are wrapped up in the passing of time, but there are very real limits to what legal stories can achieve, and often these courts are saddled with extra-legal expectations like accomplishing reconciliation or healing victims.

And here’s my point about time, for now. Many of these expectations view time as a linear progression and harm as something that can be compensated and then left in place on that line, in the past. The time of aging (as I also discussed last week with regard to the case of Dominic Ongwen) and the time of recovery from harm has much more at stake than that, and is much more complicated — harms return, the past may not stay in the past, and the future may start to resemble the past if no one attends to the work of acknowledging time not only as a discrete recording of events but as a recurring frame in which the worlds we live in get built or diminished. Part of what I tried to show in my last book was that law could never accomplish such a complex task of repair on its own, and thus I argued that responsibility for that repair falls on all of us, that is, everyone who thinks justice ought to matter.

In whatever it is I end up writing next, I’m hoping that spending time thinking about time and subjecting myself to its passing will help me understand something more about how we might all give ourselves a better set of expectations about what law can and cannot do and what, in addition to law, we need if we are to fix some of the world-destroying and unforgivable shit we humans all keep doing to each other.