If one holds to its etymological sense, dialogue — that is, in Greek dia (through) and logos (speech) — is, then, “the speech that passes through.” By erecting “impassable barriers” between “them” and “us”1, the violence of massacres crystallizes the decomposition of the social bond and, with it, the end of all possible dialogue. It is first of all a “new” language, poisoned by the venom of propaganda — the Nazi Lingua Tertii Imperii or the broadcasts of Radio Télévision Libre des Mille Collines (RTLM) in Rwanda — that dehumanizes some and arms others, symbolically and then concretely. It is, next, the suffering inflicted and the trauma, which have a part that is ineffaceable and incommunicable2. After this disaster, how is one to remake a common language? How is one to recreate dialogue and the political?
By foregrounding the objectives of “reconciliation” and “democratization” as the condition for a lasting exit from conflicts, reconstruction programs — in the wake of the ambitious Agenda for Peace published by the UN in 1992 — are confronted with this challenge. To meet it, a new approach has progressively imposed itself, reversing the traditional opposition between peace and justice so as to make the latter an essential condition of the former. The unity of the shattered nation is no longer achieved through silence and amnesty. Justice, in its penal form or in other forms, has renewed and innovated itself, notably through the creation of international tribunals or truth-and-reconciliation commissions. In every case, one of the essential missions of this justice is to recreate lost bonds and to allow survivors to rebuild themselves, by “giving back” or “freeing” speech, by constructing legal and historical accounts, or a narration and public debates. Although situations of mass crime are all singular and atypical, we propose in this article to follow this “return” of speech promoted by penal and non-penal justice (also designated by the term “transitional justice”), distinguishing its stages, its modalities, and its actors: the co-presence of the parties and the argumentative confrontation; the deliberation and the dialogue of the judges; the exposition of the decisions and public debate.
From impossible dialogue to adversarial debate
In his essay Mass Atrocity, Collective Memory, and the Law (Juger les crimes de masse. La mémoire collective et le droit), Mark Osiel explains why, in the liberal morality “underlying the greater part of our criminal law,” “a criminal trial constitutes a useful way of beginning a discussion with an interlocutor who is not, at the outset, of good will”3. The interlocutor is, of course, the accused — and with good reason! — rarely eager to come and explain himself before the judges, whereas the victims are often, for their part, constrained to demand justice.
It was by force that the former Chadian dictator Hissène Habré, who wanted to boycott his trial, was brought to the hearings of the special tribunal of Dakar in September 2015. “I was relieved when I saw that he had been brought in like a child,” one of the victims declared to a journalist present; “I will at last be able to speak in front of Habré”4. Let us underscore that for this victim, Haoua Brahim Faradj, what mattered was not to speak directly to Habré, but to speak in his presence. This is not always possible: in 1987, Klaus Barbie refused to attend the proceedings, and it was before a dock deserted by the accused that the survivors and witnesses gave their testimony. For some, the appearance will be the occasion to address their executioners more directly. Often to ask them (with the judges’ agreement) for additional information on the fate of the disappeared5, sometimes (without the judges’ agreement) to hurl invective at them6, or else to make them feel the weight of the absent. During her testimony at Nuremberg, Marie-Claude Vaillant-Couturier approached the accused to look them full in the face and fix them with her gaze:
I had the miraculous good fortune to come out of Auschwitz and Ravensbrück and to find myself at Nuremberg facing Goering and the other high Nazi dignitaries. (…) You can imagine that I felt an extraordinary feeling. I thought, looking at them: Look at me, for through my eyes it is hundreds of thousands of eyes that are looking at you, through my voice it is hundreds of thousands of voices that are accusing you.7
But other victims are inhabited by fear and are not in a position to withstand the gaze of their former executioners, either because the latter still represent a threat to them or because the trauma is still too raw. More rarely it is the victims, and not the accused, who refuse to come: in 2002, the associations of Rwandan victims called on their members not to go to Arusha to testify before the International Criminal Tribunal for Rwanda (ICTR) in protest against the dysfunctions of the Court. This movement had, at the time, almost completely blocked the ad hoc jurisdiction8.
The protagonists of a trial are not brought together at random, nor grouped together at random. Each occupies a determined “place,” which makes it possible to set in motion a process of mutual recognition — that is, a recognition of the other’s place, a social recognition and not a “fraternal recognition.” Hence the importance of co-presence, and the insult Barbie dealt to the despised victims — even more than to the judges — by boycotting his trial. Not that they expected from him a reaction to their testimony, but without him their speech does not have quite the same meaning.
But the success or failure of this co-presence in the courtroom does not hinge solely on the good or ill will of the protagonists: the specificity of mass crime renders it, in any case, very complicated. The thousands of dead will not return. And what a desolate, terrifying spectacle, the absence of any direct victim on the bench of the civil parties at the trial of the Rwandan génocidaire Pascal Simbikangwa, tried in France in 20149. It is therefore the survivors and the relatives of the deceased who can come, either — according to the possibilities of the procedures — as a civil party or party to the trial, or as witnesses or members of the public. But even in this last case, the relocation of the international tribunals, often installed far from the sites where the crimes took place when not abroad altogether, is an obstacle to their coming. And when they can take part in the procedure, their representation will be by the intermediary of a lawyer who will represent them, sometimes collectively with one or more other colleagues. Thus, although the starting configuration is altogether exceptional, one will find in the end the traditional disposition of the trial, with two or three parties (if the representation of the victims is distinct from that of the Prosecutor, which is the case, for example, at the International Criminal Court) who take the floor in turn.
The representatives of the prosecutor and the lawyers of the accused and of the victims will thus each question the witnesses. Obviously, judicial examination and cross-examination are not to be conflated with an open and free conversation. They tend toward one and the same objective: to answer the question of the guilt or innocence of the accused for the crimes retained by the prosecutor. They must submit to very precise modes of questioning, variable according to the procedures: the questions must be relevant within the frame of the case under examination, they cannot be leading (include or suggest the answer), they may be open, allowing the witnesses to develop their answer, or, on the contrary, they will be closed, calling for an answer of just yes or no. Finally, they fit into a ritual that solemnizes and changes the meaning of the communication among the protagonists.
This ritual borrows as much from the ceremonial register as from the theatrical genre. It therefore has its codes, conscious and — what gives them still more force — unconscious. Does the eloquence of the lawyers, which proceeds from a certain number of rules, distort the proceedings? No, of course not; it is their leaven, and one cannot imagine good trials without good orators. But when two lawyers clash at the bar, can one really speak of dialogue? For Jean-Denis Bredin, no, for these are “two monologues that confront each other. The speech is not a speech that goes toward the other”; it seeks to vanquish, it is without attention or openness. For Thierry Lévy, less categorical, “confrontation is in every dialogue,” and what distinguishes the debate before the judges from a more amicable dialogue is the dose of prior opinion and prejudice. The lawyer “has a made-up opinion, a settled idea, facing his interlocutor”10.
The exchange between lawyers is not, however, to be considered within the frame of a personal relationship, but on the scale of the trial as a whole. It is within this frame that one can speak of a form of dialogue, in the sense of a constructive exchange of speech, for the arguments of one side and the other do indeed concur in a “common work” destined to approach as closely as possible a form of truth, the judicial truth, or a denouement, the judicial decision11. And it is precisely because one is not in the context of an ideal community where Habermas’s ethics of discussion could freely realize itself, but in debates marked by the use of rhetoric and sophistry, that the procedure frames the debates within the enclosure. It is one thing to inflame the audience or to seduce the jurors; it is another to convince experienced judges.
The appearance — that is, the fact, for a party or a witness, of responding to a summons to court — is therefore not a frontal face-to-face, still less a dialogue between the victim and the executioner. “In the traditional penal conception, any direct face-to-face must be avoided between the offender and his victim,” Mireille Delmas-Marty reminds us, “and the right to punish is reserved to the State.”12 The judicial apparatus functions with the aid of intermediaries and representatives, the lawyers, and rests on the introduction of a third party, the judge, who will seek not to renew a dialogue between the parties but to decide between them.
From adversarial debate to the deliberation of the judges
The judge — or more exactly the judges, since the chambers trying mass crimes are always collegial, even if the presidency of the proceedings falls to one of them — the judges, then, do not aspire to abolish or to make conflicts disappear, but to master their manifestations within the courtroom in order to render justice — that is, to refer the authors of collective crimes to their individual responsibility, to sanction them, and — depending on the jurisdiction — to open the right to reparation for the victims. Their role will be more or less active in the exchanges among and with the parties, according to whether the procedures — which are generally hybrid in international justice — or the magistrates who apply them are imbued with a culture of common law (the Anglo-Saxon procedure, which remains in fact dominant) or with a culture of civil law (where, as in France, the judge is not confined to a role of arbiter but takes an active part in the search for truth).
The success of a trial will hinge as much on the force of the law to which the tribunal refers as on the pertinence of professional practices in daily operation. A judge, in order to embody the authority of the law, must know how to assert his personal authority, and thus to enforce a form of hierarchy among the interlocutors, who are equal before the law but who are not, for all that, in a horizontal dialogue with the judges.
As we have already said, in a trial each will have a very precise place. It is for the judge to ensure that speech is distributed equitably. Personal attention and courtesy are then necessary so that authority is not conflated with authoritarianism and so that the exchanges unfold properly. Relating his experience at the International Criminal Court (ICC), Judge Bruno Cotte shares his astonishment at “the small place accorded to the accused during his trial, if only by reason of his physical positioning, for he finds himself relegated to the back row, at one of the extremities of the room. In the common law procedure, it is essentially the witnesses in whom the parties take an interest, and the accused do not intervene, or barely. The chamber would therefore greet them as they entered and left the courtroom. The president regularly asked them whether ‘all was well’ and whether they understood what was happening — and this to the surprise of the Anglo-Saxon defense teams, stupefied that one should address the accused so directly.”13 Respect for the law passes through respect for the other. Trials are scenes of extreme tension, owing to the horror of the testimonies and the gravity of the accusations. The attitude of the judges must contribute to displacing the bodily brutality of the past crime and the psychological tension of the courtroom toward a more appeased exchange, in a register at once reasoned and technical, that of the law.
The judges must make decisions in the conduct of the trial and build an argumentation out of the arguments exchanged in the courtroom and out of the law they are charged with applying — that is, with interpreting. The dialogue among the judges is constant and primordial. It takes place within the chamber — generally under the seal of secrecy — but also more broadly, and this time publicly, through emulation between chambers and between international and foreign jurisdictions, in the form of references to other judicial decisions. According to Benoît Frydman, there is a hidden meaning to this dialogue of the judges which, by its intensity and its transnational character, goes beyond the traditional “inter-glossing” of law. It “harbors within itself the germ of a conception, if not new, then at least different, of law and of justice.” For now the river that, in Pascal, bounded the field of truth and justice (“Truth on this side of the Pyrenees, error beyond”) no longer halts the judges: “this, then, is why,” Benoît Frydman continues, “citations of foreign decisions arouse such passions. They trigger enthusiasm or indignation, for they postulate, discreetly and perhaps unconsciously, the ideal of a common law, the ‘implicit perspective of a universal justice’”14. This common judicial culture now taking shape is called forth by the very nature of mass crimes, which — need it be recalled — prompted the creation of the charge of “crimes against humanity.” It is made possible by globalization and by the “rise in power” of the judges, so much so that the universalism of the foundations becomes progressively normative, giving certain “legal concepts of universal vocation a status of positive law,” and culminating in a genuine reversal between “the relative and the universal”15.
The theme of the dialogue of the judges was the object of multiple studies at the turn of the 2000s, and of an enthusiasm regarding its benefits and its universality. Inevitably, the “dialogue of the judges” — calling forth the “academic dialogue of scholars” to treat of the first — provoked, by way of reaction, studies on the “competition of controls and rivalry of judges”16. Even if the judges have, by nature, the art of practicing concertation, and that of calibrating the application of norms with the human and personal dimension, one ought not, for all that, idealize the society of the judges. One magistrate (writing under a pseudonym) describes thus the International Criminal Tribunal (ICT) to which she was appointed in the mid-2000s: “The mode of functioning of the jurisdiction has instituted a court logic. The judges, like monarchs, have counselors. Around the courtiers gravitate various official and unofficial assistants. The interactions among the networks are not clearly defined, and rarely harmonious. The zealous collaborators multiply notes on technical points that often prove contradictory. Coordinators see to it that the judges are given an enlightened and coherent point of view on a case whose stakes they were unaware of until their arrival. Clans form and sometimes clash. The judgment will be the reflection of subtle balances found in extremis, or of the victory of one of the camps”17.
Ideally, the statement and the application of the law ought not to suffer from ambiguity, hence the monolithic character one attributes to, or often expects of, a judicial verdict. Monologism, however, is no longer in order before an ICT or the ICC. Dissenting opinions are mentioned in the verdict and may be the object of a separate pronouncement. This pluralism has the advantage of marking that, despite its solemnity, judicial speech remains a human speech and the result of interpretations and decisions that may be contested.
Thus, contestation does not reside only in the adversarial debates conducted before the judges: the procedure also provides for appeals in the course of the procedure or at its term, before an appeals chamber, so as not to leave the judges of “first instance” the monopoly of decision. The appeal is a mechanism that, by soliciting the opinion of an alternative panel of judges, guarantees the fairness of the trial and remains capable of sometimes completely overturning the first judgment. The verdict — etymologically, “to say the true” (veridictum) — without necessarily denying the existence of a truth, is becoming democratized. Thus can converge the demand for transparency and the consecration of expertise, with a relativization in the form of competing opinions, and “the domination of majority truths” with, Julie Allard notes, for society “the risk of being duped by stagings of the truth, to which justice can contribute”18.
The dissenting opinion reflects a minority point of view within the panel of judges, and has no concrete impact on the judgment; it marks the impossible concord of the deliberation and, rather than the culmination of the dialogue, the limit on which it foundered. The dissenting opinion can, however, sometimes prove more convincing or better relayed than the opinion of the majority. At the Tokyo trial, where 28 high-ranking Japanese leaders were judged by 11 judges of different nations, the 1,200-page judgment, rendered after seven months of deliberation, was accompanied by dissenting opinions, including the 1,235-page opinion (35 more than the majority judgment!) of the Indian judge Pal, opposed to almost all the decisions of the majority and favorable to the acquittal of all the accused. His arguments, recognizing Japanese self-defense and even the soundness of its expansionism, on the basis of a culturalist approach (“Asia for the Asians”) and a denunciation of the “double standard” (“Only a lost war is an international crime”), achieved immense renown — to the point that Pal was decorated in 1966 by the Emperor of Japan and a monument erected in his memory19.
This reversal can at times appear salutary, but it may just as well be open to challenge. In every case, it risks provoking a disturbance such that the voice of justice can no longer make itself understood, that it reflects no more than the dialogue “of opinions” and no longer the state of the law, that it brings down the subtle alloy between truth of opinion and truth of fact. Can pluralism, which is at the heart of the trial, by extending right into the judgment, lead to a relativism that would make the trial lose its very meaning? According to Mark Osiel, “to recognize publicly the validity of a narrative indeterminacy would not ruin the legitimacy of justice, any more than to recognize the equivalent validity of different ‘right answers’ to the same legal question”20. The question would nonetheless deserve to be deepened.
From the deliberation of the judges to social debate
In themselves, the conclusions of the judges can be presented in lapidary fashion (and they generally are, in this form, in the media): guilty or not guilty, and if so, here is the penalty inflicted. A deceptive simplicity. The difficulty of rendering comprehensible trials that often stretch over years, and the decisions of the judges, to the populations affected by these crimes, is real. To be comprehensible, as we know, judgments must be justified in sufficient fashion. If they are — and, apart from a few notable exceptions, such as the judgment on appeal acquitting General Gotovina before the ICTY21, they are so in detail before the international tribunals — this does not suffice to resolve the problem. For the readability of these judgments, which run to several hundred pages, remains of course very arduous, if not impossible, for the uninitiated. Hence, indeed, the recourse to other means of communication, such as conferences or press releases. The international tribunals have equipped themselves with units dedicated to communication with the public, strategically divided into subgroups, each of which will be the object of particular targeting. This is one of the major challenges that international justice must meet. Justice must not only “render” justice, through the holding of a trial and the fairness of the debates. It must not only “show that it renders” justice, through the publicity of the debates. It must also “explain how” it has rendered justice, and make the judgments less abstruse.
Of course, it is not a matter of introducing law courses into all the elementary schools, nor of making the public into budding lawyers or magistrates. To debate, jurists have their journals and their cenacles, but one does not expect a trial to engender a debate of jurists; one expects, rather, a public debate. If one considers the way in which the latter has evolved in recent decades, this is what is happening, and even very well so, at least in Western societies.
For Annette Wieviorka, “the Eichmann trial freed the speech of the witnesses. It created a social demand for testimonies, as other trials would later do in France, such as the trial of Klaus Barbie, of Paul Touvier, or of Maurice Papon”22. This trial had, however, the advantage of benefiting from a unanimous condemnation of the Nazi crimes, which no one would dare to defend publicly and directly (Holocaust denial and antisemitism take other routes). This unanimous reprobation of mass crime, which seems to us self-evident, is, however, more the exception than the rule. In contemporary conflicts and in torn societies, penal justice is not in a position to arouse shared sentiments and a univocal collective consciousness with regard to the massacres of the past. “For all that,” Mark Osiel underscores, “it is not excessive to hope that the tribunals of these societies make full use of the public attention then turning toward them in order to stimulate deliberation on the merits and the meaning of liberal principles. (…) This debate can contribute significantly to the particular form of solidarity — passing by way of civil dissensus — to which a modern pluralist society can rightly aspire.”23 For Mark Osiel, the trial makes it possible to “make public memory in public,” even if the influence of the games of power and interest unfolds behind the scenes. In this perspective, the judges become the directors of a drama, of a “grand spectacle,” played out in the tribunal in the manner of a “theater of ideas,” “formulating interrogations important for the collective memory and even the national identity.” But is this not to ask too much of the judges?
According to Marcel Lemonde, French investigating judge for the international trial of the Khmer Rouge, a magistrate working in an international penal tribunal cannot content himself with thinking and acting as if he were before an ordinary Court. He must superimpose functions and competencies, be a judge first of all, but also a bit of a historian and a bit of a diplomat. Yann Thomas has perfectly explained why the crime against humanity, by integrating the context into an act in order to qualify and impute it, blurred the usual distinction between the judge and the historian. But he also underscored that only the judge was, by his function, bound to the obligation of a decisive judgment (guilty or not) within the strict frame of an act of indictment. But before the instance of judgment, the inquisitorial phase and the accusatory phase ensure “a constant plasticity of the object of debate. Provided it be directly or indirectly referred to some datum inscribed in the act of indictment, the debate — however regulated it may be — but also the depositions that attach to it, the testimonies, the expert reports, can integrate all data”24. Moreover, the debates outside the palaces of justice will almost always lead to discussing subjects that have been excluded or that have no place within the strict limits of the procedures undertaken. “It is in this sense,” Marcel Lemonde argues, “that the fact of judging thirty years late is not necessarily negative; a trial also has the aim of organizing a public debate, so that the awkward questions are not necessarily evaded. Doubtless Kissinger could not be penally condemned, but that did not mean that the American bombings of Cambodia would not be evoked. At the Papon trial, one spoke of events dating from 1961, thus foreign to the prosecution, which was nonetheless not without use”25.
The pluralization of the spaces of dialogue
Justice is not rendered only in the tribunals. “Transitional justice” has given it other forms. The trials are replaced by written declarations and public hearings. The judicial judgment is replaced by a report produced by a panel of commissioners, gathering recognized and consensual figures, scholars, religious figures, etc. These mechanisms, called “Truth and Reconciliation Commission(s),” constitute a para-juridical device, which substitutes itself for trials or accompanies them. They are strongly imbued with other approaches (religious, psychoanalytic…) and proclaim reconciliation through truth as their priority objective. The power of speech is central there, to the point of sometimes taking the form — alas illusory — of a self-realizing force. In calling their commission the “Dialogue, Truth, and Reconciliation Commission,” the authorities of Côte d’Ivoire perhaps did not escape this declarative self-persuasion.
The exchanges are not organized on the mode of the argumentative confrontation of the penal; there are no cross-examinations, but the plurality of points of view is taken into account. The discourses held no longer have the technical coldness of the law. Emotion — controlled, indeed banished from the palaces of justice — is sought and staged in the name of a cathartic will. During the public hearings of the famous Truth and Reconciliation Commission of South Africa, a candle was lit in memory “of all the dead of the confrontations of the past,” prayers were addressed, poems were read, and after the testimonies heard, its president Archbishop Desmond Tutu summed up the sentiment of the assembly thus: “We have been moved to tears. We have laughed. We have kept silence and we have looked straight into the eyes the foul beast of our dark past. Having overcome this terrible ordeal and becoming aware of our common humanity, we begin to realize that we are capable of overcoming the confrontations of yesterday and of extending a hand to one another”26.
A wholly different configuration in Burundi. To remedy the extreme slowness in the establishment of a national “Truth and Reconciliation Commission” — still inactive more than a decade after the signing of the peace accords that provided for it — small local initiatives have multiplied. The objective was equally to “free” speech, but in a culture that valorizes the control of emotions (“A man’s tears flow into his belly,” says a Burundian proverb) and by way of small discussion groups organized according to a very precise methodology (some twenty participants who do not know one another, with a balance among the various social or ethnic groups, an arrangement in a circle and at the same height, etc.). The discussion was opened on the basis of reactions not to a trial (none having been able to be conducted in the country), but to a play about the past crimes, staged for the occasion. The question of justice was systematically addressed there. More than 300,000 Burundians attended the performance and nearly 5,000 took part in the speaking groups27.
In the first case, in South Africa, where the device was set in place according to a logic impelled “from the top down,” pacification ultimately functioned above all at the level of the elites, ensuring the success of the transition. In the second case, in Burundi, the efforts, impelled “from the bottom up,” were not relayed within the population by leaders who, in the name of their political interests, ultimately scuttled the peace process. Drawing the lessons of the successes and the limits of the commissions established over these last three decades, Kora Andrieu argues for the strengthening of the participatory dimension and of the empowerment of victims: “the objective, from then on, would be less ‘reconciliation’ than, more modestly, the creation of a space of free dialogue for the survivors of violence, aiming to empower them. […] This inscription of deliberation at the heart of transitional justice can recall, in certain respects, the Habermasian ethics of discussion: the members of the community there seek together the norms of judgment, on the basis of a free and open argumentation. Beyond the dichotomy of a justice that punishes and a justice that pardons, the Truth and Reconciliation Commissions can therefore be thought under this angle of an undistorted discussion that respects a priori the pluralism of values and interests”28.
The direct influence of the frame on the form, the scope, and the very meaning of the words exchanged implies the necessity of thinking and working toward the plurality of the spaces of dialogue. Justice is one such space among others, very imperfect in certain respects, but nonetheless indispensable. By enchasing different modes and scales of discourse and exchange — an enchasing that does not form a system, but is more than a simple accumulation — justice makes it possible to revive in society a capacity for dialogue that mass crime had shaken or destroyed. Speech has resumed its rights. It can once again pass through the various points of view and go from one to the other.
Notes
Jacques Sémelin, Purifier et détruire (Purify and Destroy), Seuil, 2005, p. 118.↩︎
After the death of his comrade Henri Frager, Jorge Semprún writes that the latter would have been the only person in the world to whom he could speak of his experience of torture “with some detail, without complacency or embellishment” (Exercices de survie (Survival Exercises), Paris, Gallimard, 2012, p. 47).↩︎
Mark Osiel, Juger les crimes de masse. La mémoire collective et le droit (Mass Atrocity, Collective Memory, and the Law), trans. J.-L. Fidel, Paris, Seuil, 2006, p. 83.↩︎
“Hissène Habré returns by force to the dock of the accused,” Le Monde, September 9, 2015.↩︎
See the scene between the witness Habiba Hadzic and the accused Dragan Nikolic at the International Criminal Tribunal for the former Yugoslavia. It is reported by Stéphanie Maupas (Juges, bourreaux, victimes. Voyage dans les prétoires de la justice internationale (Judges, Executioners, Victims: A Voyage Through the Courtrooms of International Justice), Autrement, 2008, p. 57). “Habiba Hadzic: ‘I simply wish to ask Dragan where my children are, in which mass grave, so that their mother may give them a decent burial, and then I can disappear myself. That is all I have to say.’ Judge Wolfgang Schomburg then turns to the lawyer of the accused: ‘Is your client prepared to respond to the desperate appeal that has been made to him by the witness?’ Dragan Nikolic consents to it.” I underscore the fact that the witness posed the question to the accused, calling him by his first name, and that she did so even though the prosecutor had refused to relay this request, which she had previously addressed to him. I also underscore that the chamber does not, for all that, let a direct dialogue install itself between the witness and the accused, and that the judge turns first to the lawyer to solicit a response.↩︎
See the session before a gacaca tribunal in Rwanda, reported by Hélène Dumas in Un génocide au village (A Genocide in the Village), Paris, Seuil, 2014, p. 279–280. Domitilla, a survivor, intervenes less to give an account of the events than to express “a feeling of revolt” in the face of the ferocity of her neighbors: “After you murdered my children, you again counted all the corpses of Tutsis, and only mine was missing, she tells them. You laughed a great deal, believing you were going to catch me, but I would like to tell you that you did not catch me, for I was in the sorghum fields.” The author specifies that the jurisdiction had just begun and that its president still appeared hesitant in the conduct of the debates.↩︎
Testimony of M. C. Vaillant-Couturier at Nuremberg, http://www.fndirp.asso.fr/informations-et-documentation/temoignagede-marie-claude-vaillant-couturierau-procesde-nuremberg/↩︎
Fédération Internationale des Droits de l’Homme (FIDH), “Situation report: between illusions and disillusions, the victims before the International Criminal Tribunal for Rwanda,” report no. 343, October 2002, (https://www.fidh.org/IMG/pdf/20021000_rwanda_tpirn_no343_fr.pdf).↩︎
Simon Foreman, “Civil party in a genocide trial: a lawyer’s experience,” Les cahiers de la justice, no. 4/2014, p. 581.↩︎
Jean-Denis Bredin and Thierry Lévy, Convaincre. Dialogue sur l’éloquence (To Convince: A Dialogue on Eloquence), Paris, Odile Jacob, 1997.↩︎
In the culture of civil law it will be the former that is sought, and in the culture of common law rather the latter. In every case, the point of arrival is not the point of departure, and the argumentative exchanges of the parties influence the evolution toward a final argumentation, that of the judges.↩︎
M. Delmas-Marty, Les grands systèmes de politique criminelle (The Great Systems of Criminal Policy), Paris, PUF, 1992.↩︎
Sophie Delval, “Judging mass crimes: an interview with Bruno Cotte and Olivier Leurent,” February 2015, available at http://www.ihej.org/juger-les-crimes-de-masse-entretien-avec-bruno-cotte-et-olivier-leurent/↩︎
Benoît Frydman, “The dialogue of the judges and the ideal perspective of a universal justice,” in Le Dialogue des juges, proceedings of the colloquium organized on April 28, 2006 at the Université libre de Bruxelles, Les Cahiers de l’institut d’études sur la justice, 2007, p. 149 and p. 161.↩︎
Mireille Delmas-Marty, Les Forces imaginantes du droit. Le relatif et l’universel (The Imagining Forces of Law: The Relative and the Universal), Paris, Seuil, 2004.↩︎
Title of the work directed by Julien Boudon, Concurrence des contrôles et rivalité des juges (Competition of Controls and Rivalry of Judges), Paris, Mare et Martin, 2012.↩︎
Lise Bonvent, Les gens d’Arusha (The People of Arusha), Paris, Cartouche, 2011, p. 65.↩︎
Julie Allard, “Truth against politics, truth as politics: what does the judge do?,” in Julie Allard, Olivier Corten, Martyna Falkowska, Vincent Lefebve, and Patricia Naftali (eds.), La Vérité en procès. Les juges et la vérité politique (Truth on Trial: Judges and Political Truth), Droit et société, LGDJ, 2014, p. 325.↩︎
Étienne Jaudel, Le Procès de Tokyo. Un Nuremberg oublié (The Tokyo Trial: A Forgotten Nuremberg), Paris, Odile Jacob, 2010, p. 129.↩︎
Mark Osiel, Juger les crimes de masse, op. cit., p. 359.↩︎
For further details on this case, see Joël Hubrecht, “Is international justice on the wrong track?,” July 2013, available at www.ihej.org/tpiy-la-justice-internationale-fait-elle-fausse-route.↩︎
Annette Wieviorka, L’Ère du témoin (The Era of the Witness), Paris, Plon, 1998, p. 117.↩︎
Juger les crimes de masse, op. cit., p. 425. It should be noted that, in Mark Osiel, liberal principles are to be understood as ethical principles of a democratic order, guaranteeing the fairness and the plurality of debates and assuming a moral pedagogical dimension. Mark Osiel speaks of “liberal show trials.”↩︎
Yann Thomas, Les Opérations du droit (The Operations of Law), Paris, Seuil/Gallimard, 2011, p. 260.↩︎
Marcel Lemonde (with the collaboration of Jean Reynaud), Un juge face aux Khmers rouges (A Judge Facing the Khmer Rouge), Paris, Seuil, 2013, p. 222.↩︎
Desmond Tutu, Il n’y a pas d’avenir sans pardon (No Future Without Forgiveness), Paris, Albin Michel, 2000, p. 121.↩︎
The result of this work is presented in Anne-Aël Pohu and Emmanuel Klimis (eds.), Justice transitionnelle. Oser un modèle burundais. Comment vivre ensemble après un conflit violent ? (Transitional Justice: Daring a Burundian Model. How to Live Together After a Violent Conflict?), RCN Justice et démocratie, Facultés universitaires Saint-Louis de Bruxelles, 2013.↩︎
Kora Andrieu, “Transitional justice, deliberation, and capabilities after conflict,” in Julie Saada (ed.), La guerre en question. Conflits contemporains, théorie politique et débats normatifs (War in Question: Contemporary Conflicts, Political Theory, and Normative Debates), Paris, PUL, 2015, p. 299.↩︎