1 Emotion and International Criminal Law

There is limited research on the role of emotions within the icc, although there are some contributions that engage – albeit sparsely – with the role of emotions in international criminal legal fora from other disciplines. These papers mostly focus on transitional justice. The following section will briefly review some of the material that engages with international criminal legal fora and emotions, but is not an exhaustive literature review. This snapshot will show how emotions analysis has been deployed in other academic disciplines to engage in strong analysis of existing doctrinal law and draw novel and useful conclusions about how the law operates in practice.

The literature on emotions and transitional justice largely focuses on one aspect of these relationships, the victims. Usually it is characterised by an empirical study that explains the way that the victim felt during or after the trial or adjudication process.¹⁰ Most of the literature that emotions and transitional justice scholars use is grounded in psychology or criminology. The psychological and criminological literature views emotions and transitional justice issues from the lens that transitional justice seeks to repair and restore a sense of normality to broken societies. In this way, the transitional justice project is intrinsically linked with emotions of anger, shame and outrage which may require dissipation for societies to move on.

Susanne Karstedt’s 2016 intervention into the transitional justice and victims’ rights and representation literature concerning emotions is important when considering emotions literature on international criminal law. Karstedt, a criminologist by training, uses an ‘emotion sharing’ framework¹¹ to understand the way that transitional justice mechanisms fail to deliver their justice outcomes.¹² Karstedt considers evidence from the International Criminal Tribunal for the Former Yugoslavia, the Gacaca Courts of Rwanda, the Extraordinary Chambers in the Court of Cambodia, and a number of truth and reconciliation commissions in her study. Citing a United Nations Security Council report, she notes that the core aims of transitional justice are to ‘come to terms with the legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’.¹³

The main focus of Karstedt’s article is to explain the way that transitional justice bodies have a ‘built-in dilemma’ that sees perpetrators refrain from full engagement in the emotion sharing process, and victims re-traumatised as they explain their emotions throughout the process.¹⁴ Conversely, the victims seem to take solace from the way that transitional justice bodies reframe trauma in a constructive and emotional way by contributing to the justice process through being able to play a role in the trial.¹⁵

Karstedt sets the parameters for a new line of inquiry in studies of victims and transitional justice, which seeks to understand the interplay between transitional justice bodies, victims, perpetrators and emotions. She calls this an ‘emotions sharing framework’ because of the importance that sharing emotions can have in meeting the aims of transitional justice.¹⁶ According to Karstedt, all emotions can be responded to in a socioaffective and cognitive way.¹⁷ A socioaffective reaction could be nonverbal and take the form of ‘comfort[ing], consolation, empathy, and bonding’ as the emotions of the sharer are recognised and validated by the listener.¹⁸ A cognitive response is one where the listener attempts a ‘reframing [of] the emotional experience’ through a cognitive response to the emotional story told.¹⁹ A cognitive response may assist the sharer in more effectively coming to terms with their emotions through the mediated cognitive response such as reframing or reinterpretation.

Karstedt argues that an emotion sharing framework ‘lends support to the importance of’ the transitional justice approach to post-conflict stabilisation and the rebuilding of societies.²⁰ To this end she suggests that the strength of transitional justice bodies²¹ over international criminal legal fora may be in their greater focus on emotion sharing.²² Thus through an emotions analysis, Karstedt is able to compare and contrast different approaches to post conflict justice processes and concludes that transitional justice is better equipped to deal with negative conflict based emotions. The distinction between transitional justice bodies and international criminal tribunals may not be so clearly differentiated, nonetheless, Karstedt’s article remains a useful example in illustrating the utility of emotions analysis within the subject area of seeking legal redress for justice perpetrated in conflict.

A further example of emotions analysis in transitional justice is the contribution of Bernard Rime and Patrick Kanyangara. Their literature provides a good example of the psychological literature on transitional justice bodies. They have extensively analysed the effects that the Rwandan Gacaca Tribunals have had in the post genocide period. The Gacaca Tribunals were a form of culturally specific court that allowed the victims to have their voices heard by the perpetrators of the crimes against them. Rime, Kanyangara and their co-authors found that negative emotions within the society increase after Gacaca participation.²³ Shame was one of the emotions that resurfaced most strongly after Gacaca participation.²⁴ In another paper, Rime, Kanyangara and their co-authors reaffirmed their findings that there was ‘emotional reactivation’ for victims and perpetrators who have participated in Gacaca.²⁵ This later study also demonstrated how Gacaca participation by victims provided closure for the wider community.²⁶ Community closure occurs when the community is able to begin reconstructing a new collective identity for themselves.²⁷ In this way Rime, Kanyangara and their co-authors are able to demonstrate how emotional closure is an important aspect of the transitional justice process.

The psychological studies are usually more empirical than those grounded in the social sciences. Rime and Kanyangara’s methodology involved the administration of a questionnaire by psychologically trained personnel.²⁸ The results were then analysed by the authors, all of whom are psychologists. The psychological studies deploy quantitative analysis and are informed by psychological theory and modelling. In that respect the psychologically informed literature is laced with a greater depth and medicalised rigour when compared with the papers written by lawyers and other social scientists. All of this literature is important in developing the research agenda of law and emotions within areas of the periphery of the academic discipline of international criminal law.

Another emotion and transitional justice article is focussed specifically on the Extraordinary Chambers in the Court of Cambodia (eccc). Renee Jeffery, a political scientist by training, investigates whether the eccc is positive or negative in cultivating the emotion of forgiveness.²⁹ Jeffery narrows her focus to the case of Kaing Guek Eav or Duch. Her analysis considers the role that victims played in this trial in order to see how it affected their sense of forgiveness.³⁰ In this intervention, Jeffery specifically narrows her focus on one emotion and how it relates to the victims in a micro study.

A large portion of Jeffery’s article theorises ‘forgiveness’. She contrasts the ‘restrictive form of forgiveness’ which is the view that forgiveness ‘is a process of overcoming attitudes of resentment and anger that may persist when one has been injured’,³¹ with the expansive definition which ‘mandate[s] the replacement of negative emotions with positive ones’.³² Jeffery analyses the work of the eccc through transcripts and judgments. She also refers to psychological and philosophical literature to theorise forgiveness. Her conclusion is that allowing victims to participate in the trial allows their negative emotions to subside.³³ The eccc’s approach, which does not demand or expect forgiveness from the victims, prevents feelings of resentment from entering into their consciousness.³⁴ Jeffery’s nuanced analysis evaluates the eccc’s approach to victims’ participation whereby the victims feel a sense of closure, but do not feel obligated to forgive.

Conversely James Sedgwick takes a different approach to analysing international criminal law and emotions. Whilst the works of Karstedt and Jeffrey are theoretical in nature, and Rime and Kanyangara are psychological, Sedgwick applies an historical approach. Sedgwick analyses the emotions of actors at the International Military Tribunal for the Far East.³⁵ Sedgwick uses archival documents to chart the role that emotions played as drivers and detractors of the work of individuals within the Court. His main methodology is to analyse the letters between the individuals and their families. He separates his analysis between the Prosecution, Defence team and Judges. His conclusions suggest that sometimes the shortcomings of the Tribunal can be attributed to the emotions of the key players in the Tribunal instead of any errors of law, errors of fact, or other political factors.³⁶

To take an example, Sedgwick follows the stories of individuals through the Tribunal, such as Walter I McKenzie. McKenzie was a member of the prosecution service. McKenzie was zealous in undertaking his duties; however, Sedgwick shows how he increasingly became emotionally affected by the work that he was doing at the Tribunal.³⁷ Whist McKenzie struggled with an ever-increasing workload, it was the personal strain that ultimately led to his resignation.³⁸ Sedgwick notes that McKenzie never became comfortable with the fact that Japan was his temporary home through the course of his work with the Tribunal; he often placed a question mark after the word whenever he used it to describe Japan.³⁹ McKenzie was sad about missing important family occasions because of his work, especially when he became a grandfather.⁴⁰ As McKenzie’s workload increased, he began to take days off from work to engage in leisure activities like fishing, golf and shopping.⁴¹ Ultimately, the personal pressures, which compounded the work stress led to McKenzie’s resignation before the work of the Tribunal was complete.⁴² When he returned to the United States of America, he returned to domestic legal practice. However, he frequently gave public lectures about the work of the Tribunal, and importance of international law.⁴³ Thus from the brief example of McKenzie, Sedgwick is able to show the complex emotional nuances which influenced his performance in work and wellbeing.

As would be expected from his disciplinary background, Sedgwick does not engage with emotion theory. His article uses textual analysis to understand the way that individuals felt about their work, moving to Japan, their colleagues working in the Tribunal and their role in the Tribunal. His article draws attention to the personal motivations, tensions, traumas, and drivers that people have in the work that they do. Through textual analysis of written representations, Sedgwick starkly shows how the personal circumstances of actors within the legal system can influence their interactions with the legal system.

Thus the literature that draws on areas related to international criminal law and emotion, mostly through transitional justice, is quite sparse. The literature is also varied in terms of the starting assumptions, what the work sets out to achieve, and the conclusions that are drawn. Notwithstanding the divergences, the conclusions of each of these articles demonstrate that emotions play an important role in the way that the law and legal processes – and individuals within those processes – operate. Accordingly, emotions analysis leads to interesting conclusions when applied to specific research questions related to international law.

Two other papers that have been written on aspects of emotion and international law more generally are instructive of different approaches to emotion analysis and how it can be useful for understanding law. Gerry Simpson’s fascinating paper on ‘the sentimental life of international law’ is self-described as an ‘argu[ment] for an international law that keeps an eye on its own emotional life and one that adopts a form of life that resists tears but stays close to them’.⁴⁴ Simpson ruminates on the life of an international lawyer and how one juggles the interplay between the ‘unsentimental appraisal’ required in legal practise,⁴⁵ and use of the ‘language of sentiment’ to convey the human aspects of why people enter the legal system and the law’s effects.⁴⁶ Rather than provide answers, this article teases out Simpson’s thinking on the subject of how emotions influence scholars and practitioners of international law. His piece is reflective and thoughtfully laced with anecdotes. He mentions in his piece that he is using this work to compile an edited volume called The Passions of International Law.⁴⁷ Simpson, in a way that is somewhat similar to what Sedgwick does in his analysis, is concerned with the way that the law, and the situations that legal practise places individuals in, has an effect on the way that legal systems operate. Simpson approaches the task from the perspective of an insider – an international law scholar – whereas Sedgwick approaches it as an objective outsider who works with historical records. Thus Simpson implores us that through understanding the ‘sentiments’ of law, we can think deeply about the way that the law can be shaped and crafted by emotions. Simpson’s analysis is important as it encourages international law scholars to further engage with emotions, a crucial part of human interaction and conduct, to see what role they are, or can be playing, within international law.

Not all of the scholars working on emotions and law are positive about the role that emotions may play in legal processes. Vesselin Popovski’s essay on ‘Emotions in International Law’ is a restatement of the conventional legal assumption that emotions serve no place in the law.⁴⁸ It is rare to find such a direct attack on the role of emotions in law as Popovski’s work. Most conventional accounts delegitimise emotions through failure to mention their role and impact in legal proceedings.⁴⁹ These works also restate positivist assumptions around the objectivity and rationality of law.⁵⁰

Popovski begins by analysing the role of emotions in domestic law, and then engages with aspects of international law such as war victims, human rights violations and briefly international criminal law. In the final section he attacks international lawyers Christine Chinkin and Geoffrey Robertson for their ‘bias’ in undertaking their international legal roles.⁵¹ Throughout his analysis he seeks to further the thesis that emotions make bad law. Interestingly, Popovski takes a route which is unusual for conventional legal scholars. Instead of restating the classic positivistic formulations that law is rational, objective and impartial, ergo the law is devoid of emotion, he instead proceeds to identify aspects of the law that have been influenced by emotion to demonstrate why emotions should not play a role in the legal process. In doing so, Popovski engages in emotions analysis as he identifies and explains the role the emotions play within international law.

Accordingly, some international law and transitional justice scholars are beginning to consider the way that emotions influence the law and its processes. However, these works are fragmented. Furthermore, there has not been a systematic analysis of the way that emotions operate in international criminal law or – more generally – public international law. In contrast, municipal legal scholars and international relations scholars have begun to construct systematic analyses of the way that law and emotions interact. The conclusions that the works of these scholars have drawn all attest to the importance of emotions within the systems and structures of law and demonstrate the benefits that an emotions turn in international criminal law will bring through an enriched analysis of international criminal law.

2 Municipal Law, International Relations and Emotions

Municipal law and emotions scholarship usually consists of microanalysis of situations or case studies. Law and emotions scholarship began in the 1990s, with an early major intervention being The Passions of Law, edited by Susan Bandes in 1999.⁵² The edited volume focussed on theorising the role of emotions in law, and took most of its cases studies from criminal law. Its stated aim is to ‘humanize law and [reveal] how this previously unacknowledged aspect of decision-making exerts a much greater impact on justice and the practice of law than most tend, or like, to think’.⁵³ An example of this is Robert Solomon’s chapter on vengeance. Solomon seeks to understand the role that ‘justice’ plays in seeking vengeance and providing a sort of emotional satisfaction for the individuals participating within the system.⁵⁴ Solomon’s piece is more theoretical than more recent municipal works on law and emotion; however, he focuses narrowly on the emotional case study of vengeance. In doing so, he draws distinctions between vengeance, retribution and rehabilitation.⁵⁵ He charts the development of vengeance theory through the Bible, Qur’an and early Greek texts to see where its foundations in the criminal law lie. Thus he charts a history of an emotion through criminal law over time, constructing a genealogy of how it came to play a role in the criminal law.

Since Bandes’ initial intervention, which saw scholars focus on particular emotions in a detailed conceptual way, the law and emotions literature has narrowed further. Recent literature focuses on particular emotions, in very particularised and discrete situations. For example, Feigenson and Park endeavour to map the processes that judicial officers undertake when they attribute legal responsibility and blame in criminal matters.⁵⁶ Feigenson and Park analyse a broad range of empirical literature to develop a model for the attribution of legal responsibility and blame.⁵⁷ Their model is therefore substantiated by a number of empirical studies that have observed and analysed particular criminal trials. This can be contrasted with the approach of Bergman Blix and Wettergren who take a different approach by comparing how theories of judging in United States of America differ from the role of the judiciary in Sweden.⁵⁸ They look at the ideal type of a judge in the USA compared with Sweden. Then they investigate if, and how, the judiciary show emotions in the trial process. Finally, they consider whether judges in the USA and Sweden show their emotions in similar or different ways. Bergman Blix and Wettergren draw on both their own empirical work, and the empirical work of others, to compare the approaches of the judges. Thus the municipal law literature on emotions has developed in a more systematic and particularised way which often provides conclusions on how emotions operate in very specific contexts.

In international relations, the investigation of the role of emotions is more recent and more deeply intertwined with the political. The first major work in this area began in 2014 when Roland Bleiker and Emma Hutchison edited a special edition of International Theory which brought together articles on international relations and emotions.⁵⁹ The focus in international relations is on theorising the relationship between emotion and power in global politics. For example, Jonathan Mercer theorises about whether non-human entities can have emotions.⁶⁰ He attempts to construct a typology whereby collectives of individuals, such as the state, may also be analysed as emotional agents. In doing so, he sets out a framework for understanding emotions through political structures and institutions, and not just persons. He notes that sometimes collective emotions can be even more powerful than individual ones.⁶¹ Neta Crawford seeks to understand the role of positive emotions like passion and empathy, and how they can be used as an ‘antidote’ to fear.⁶² In other words, she looks at how one set of emotions can be used against another set of emotions in politics. Her work draws on insights from the post September 11 period and Apartheid South Africa to engage with this question. In doing so, she shows how personal relationships constructed through empathy and one-on-one connections can become politically constructive.⁶³ Thus international relations and emotions scholarship is mostly theoretical and concerns patterns and relationships of power, whereas law scholarship concerns micro levels of study and draws upon empirical work. Both approaches contribute useful insights to their respective disciplines about the role that emotions play in shaping and framing action.

In this way, the two disciplines of both law and international relations have the potential to provide a holistic image of how emotions and affect operate within international criminal law. Through a microanalysis of international criminal law, scholars can see how instantiations of aspects of law and the trial process are influenced by emotion. Additionally, through the theoretical works of international relations, scholars can draw emotion’s influence across the wider legal landscape, and through organisations like the International Criminal Court or the ad hoc tribunals. On both the micro and macro scales, the intrinsic link between emotions and the politics of international criminal law is clear.

One of the most daunting aspects of law and emotions research is that there is no well-established and theorised methodology for investigating emotions. Terry Maroney describes emotions research as one of ‘complex multidimensionality’.⁶⁴ There is a plethora of information across numerous social science disciplines on how to do emotion analysis which lawyers can draw upon.⁶⁵ However, this makes the task all the more challenging. To further demonstrate how emotion analysis is useful in providing new insights and ways of looking at international criminal law, this chapter will apply emotions analysis to a part of the Lubanga trial in the icc. In accordance with Terry Maroney’s taxonomy of ‘analytical approach[es] to emotion and legal analysis’, this chapter follows the ‘legal doctrinal approach’.⁶⁶ This approach seeks to ‘[a]nalyze how emotion is, could be, or should be reflected in a particular area of legal doctrine’.⁶⁷ A conventional account of doctrinal research suggests that the intention is to ‘systematise and critique…a defined body of positive law’ from a position where it is considered as a ‘participant act in the legal system’.⁶⁸ As the focus of doctrinal research is the body of positive law, it conventionally considers the official texts of trials, such as transcripts and judgments. Accordingly, this analysis will specifically focus on the way that emotions were made present through the dissenting sentencing judgment of Elizabeth Odio Benito.⁶⁹ In doing so, the doctrinal analysis will use the words in the judgment as signs and signifiers of emotion for analysis. In discussing the emotions within this judgment, there is no intention to suggest that the judgment is exclusively emotionally driven; rather, that emotions are one of a multiplicity of factors that influence the way that a judge comes to a decision.⁷⁰ Thus it is not asserted that everything within legal processes can be reduced to the mere product of emotions. What is instead suggested is that emotions are a useful means of analysing the way that the legal system operates, and that international criminal scholarship should be more attentive to their consideration. Briefly put, this analysis of Judge Benito’s judgment is not intended to be exhaustive, but illustrative of the fact that the emotions turn in international criminal law will provide a useful new approach to analysing the work of the International Criminal Court and other international criminal tribunals, which should be replicated through the broader body of international criminal law scholarship.

3 Lubanga

The Lubanga case was the first icc case to reach a verdict, in 2012. After three years of trial, Lubanga was convicted and sentenced to fourteen years imprisonment for war crimes, most notably the use of child soldiers over the period between 2002–2003.⁷¹ This chapter will focus on the Dissenting Opinion of Judge Benito, which was delivered in sentencing. This analysis is not intended to be exhaustive, and will briefly canvass three areas: (1) appeals to victim’s suffering; (2) evidence of psychological trauma, and (3) frustrations with the trial. The focus on Judge Benito’s dissent is warranted because the emotion within her judgment is raw and easily detectable. Moreover, sentencing is the part of the adjudication process where aggravating and mitigating factors⁷² are considered, which includes a range of inherently emotional factors such as the suffering of victims, impact on communities, and remorse from the defendant.⁷³ To this end, the sentencing phase is one of the most obvious aspects of a trial where emotions play a role.

Judge Benito’s dissent is also somewhat emotional in nature by the mere fact of being a dissenting judgment. Dissents are only rendered when a judicial officer has a view that the approach of the majority is incorrect and has been unable to negotiate with the majority to assuage their concerns. To this end, dissents are usually candid assessments of the law and facts, often written with emotive persuasion. The Rome Statute specifically implores the presiding judges to strive for unanimity, and only a failure to achieve unanimity will result in the publication of both majority and minority opinions during the trial phase of proceedings.⁷⁴ Accordingly, majority judgments are often the product of meticulous drafting and negotiations between judicial officers, which result in careful and precise judgments. Dissents, therefore, only occur within a state of disagreement and disagreements are rarely devoid of emotion.⁷⁵

The suffering of victims is a theme that has long figured in the criminal justice system.⁷⁶ Suffering can be described as a state of pain or hardship.⁷⁷ The icc is no different to many other criminal jurisdictions in having to deal with complex stories of suffering. Suffering is especially evident given the nature of the crimes for which Lubanga was convicted, which primarily relate to child soldiers. Over time, charges relating to the recruitment and use of child soldiers have been seen as less politically contentious, as they are almost subject to universal reprobation on humanitarian grounds,⁷⁸ because children have historically been clothed in an assumption of affective innocence.⁷⁹ This state of innocence may render children more vulnerable to exploitation and suffering in the face of harm. Judge Benito explicitly mentions suffering in nine places in her opinion. The invocation of the language of suffering is used by Judge Benito to demonstrate the effect that the crimes committed by Lubanga has had on the victims. She directly quotes the oral testimony of the victims, and recounts some of their stories in an effort to demonstrate the suffering that has transpired. For example:

P-0016 described the circumstances of two individuals who died as a result of being punished, one of whom was a child about 14 years old. The same witness testified that a child who informed the witness about these deaths was subsequently flogged until he lost the use of his right arm, which remains defective [references omitted].⁸⁰

Judge Benito’s use of the discourse of suffering bolsters her dissent on the grounds that the suffering and harm caused to the victims by sexual violence should be considered when rendering sentence.⁸¹ Thus the emotive invocation of suffering in regards to children is intended to add to the persuasive legal reasoning of Judge Benito’s dissent.

Additionally, Judge Benito relies on the expert evidence to support the claims of suffering from the victims. She relies heavily on the evidence of Elisabeth Schauer, an expert on the psychological impacts of being a child soldier. Judge Benito reiterates Schauer’s evidence, which stated that ‘psychological exposure and suffering from trauma can cripple individuals and families even into the next generations’.⁸² Judge Benito used this particular quotation with Schauer’s medicalised language in two places in her opinion.⁸³ Use of psychological evidence and terminology such as trauma provides legitimacy to the feelings of the victims. Invocation of these terms by Judge Benito also increases the iterative force of the emotions felt by the victim in the trial and demonstrates how they will continue to have an effect over time. The transitional justice literature has engaged with the way that judicial mention of the victim’s emotions of suffering assists in providing closure for the victims as they feel as though they have been listened to in the process of the trial.⁸⁴ This is an important aspect of the politics of icc trials. The use of expert evidence is one way in which the icc provides legitimacy to emotions in the trial process, a forum where emotions are usually cast aside. The experts proceed to explain the rationale for the emotions of the victims and witnesses and contextualise them through providing an understanding of how these emotional experiences will affect the emotion bearers for the rest of their lives. Thus Judge Benito’s use of expert psychological evidence assists in legitimising the emotions of the victims. Thereby Judge Benito’s invocation of expert language may assist in the creation of closure for the victims in the trial process as part of the sentencing process.

Finally, Judge Benito’s judgment carries a tone of frustration: Frustration towards the majority judges, and frustration towards the Prosecutor for the way that they conducted the case.⁸⁵ Frustration can be described as ‘an unpleasant…state resulting from the blocking [of motives]’.⁸⁶ Her frustrations are evident in the preliminary remarks of the opinion where she ‘strongly disagrees’⁸⁷ and ‘firmly disagrees’⁸⁸ with two aspects of the majority findings. The very nature of a dissent is the expression of frustration. The majority judges have made a decision on one basis, but the dissentient judge, in this case Judge Benito, has a reasoned conviction that the matter should have been decided in another way. This reasoned conviction is to such an extent that it warrants the drafting of another opinion in the decision. In other words, there is discomfort caused by blocked intentions to such an extent that the Judge feels compelled to present an alternative view on parts of the decision.

Perhaps the starkest indicator of Judge Benito’s frustrations is at the beginning of the opinion. She reproduces a long quote from the majority decision which indicates that the majority considers that there has been harm caused to the victims and their family.⁸⁹ She then states ‘[d]espite this affirmation, it [the majority] subsequently disregards this fundamental factor which shall be considered by the Chamber.⁹⁰ Later Judge Benito states ‘[i]t is my opinion that the Chamber received ample evidence during the trial related to the conditions in which boys and girls were recruited and the harms they suffered as a result of their involvement with the [militia]’.⁹¹ She also forcefully writes ‘[i]n light of the abundant evidence rehearsed above, it is my opinion that the damage caused to these children is a factor that shall be considered by the Chamber in the determination of sentence’.⁹² Accordingly, Judge Benito’s frustrations are obvious by her use of emotive language throughout her opinion. She clearly believed that the majority has not properly considered the evidence that was put before the Court regarding the effects of the violence on the children. The corollary of this is that the sentence may be inadequate for the gravity of the crimes that were committed.

Additionally, Judge Benito reinforces the majority’s frustration with the prosecution for failing to include sexual violence charges against Lubanga in the Confirmation of Charges phase of the trial.⁹³ The majority’s frustrations were put in the strongest possible terms, and in a way which is quite remarkable for judicial officers. The majority stated:

The Chamber strongly deprecates the attitude of the former Prosecutor in relation to the issue of sexual violence. He advanced extensive submissions as regards sexual violence in his opening and closing submissions at trial, and in his arguments on sentence he contended that sexual violence is an aggravating factor that should be reflected by the Chamber. However, not only did the former Prosecutor fail to apply to include sexual violence or sexual slavery at any stage during the proceedings, including in the original charges, but he actively opposed taking this step during the trial when he submitted that it would cause unfairness to the accused if he was convicted on that basis. Notwithstanding this stance on his part throughout these proceedings, he suggested that the sexual violence ought to be considered for the purpose of sentencing [references omitted]⁹⁴

The frustration of the judges is clear from this passage. The first sentence is a strong admonition of the Prosecution. Judge Benito merely had to refer to this passage to reinforce her message because the majority’s language was so strongly worded. The manifestation of frustration has the effect of conveying the emotional state of Judge Benito and the other judges to the other actors within the Court, especially the Prosecutor. As judgments are official documents, the rhetorical force of judicial frustration should not be underestimated. The tone of judgments is readily picked up by scholars, legal practitioners and non-governmental organisations interested in the work of the icc.⁹⁵ As Lubanga was the first decision of the Court, the judgment was analysed and scrutinised in an especially detailed manner.⁹⁶

As this brief emotions analysis of Judge Benito’s judgment shows, emotions certainly play a role in the work of the icc. The emotions of other actors, like the victims, which are conveyed through the trial, are used to substantiate the arguments of the judges. Judicial recognition of the emotions of witnesses may assist those witnesses through legitimising their feelings and may also provide both the witnesses and some victims with a sense of closure because their emotions have been recognised by someone in authority. Expert psychological witnesses also convey the importance of emotions within the trial context, as the Court recognises that emotions are more complex than merely a fleeting sentiment that one conveys. The experts validate, mediate and interpret the causes and effects that the emotions will have on the carrier. Finally, judicial frustrations are expressed through a dissenting judgment. The judgment is the chance for the judge to provide their opinion on the conduct of the case, and legality of the impugned conduct. Judge Benito does this in a particularly emotive way, which considers the suffering of the victims to be significant. This is not to dismiss the role that other factors played in influencing Judge Benito’s judgment; however, it demonstrates that an emotions analysis of the work of the icc is a fruitful enterprise. Emotions analysis allows scholars to map the silence that exists within current international criminal law scholarship regarding emotions, and the role that they may play within the trial process. Mapping this silence contributes novel analysis and conclusions to the existing international criminal law scholarship. In the case of Judge Benito’s judgment an emotions analysis demonstrates that emotions are deployed and used for a number of different purposes which were outlined above. Thus an emotions turn in international criminal law is warranted and, as this brief case study shows, will provide useful conclusions for international criminal law which demonstrate that emotions are already active and under theorised and recognised within the work of the Court.

4 Moving Forward

Emotions analysis within international criminal law can be a useful exercise. Emotions analysis adds a new dimension to understanding what transpires in the courtroom. It also prevents the setting aside of an essential human characteristic, emotion, and seeks to understand exactly how emotions play a role in influencing outcomes within the justice system which in turn, influences politics. Some theorists of emotion, like Martha Nussbaum, go as far as suggesting that emotion is inseparable from reason.⁹⁷ As is evident from the analysis above, aspects of Judge Benito’s judgment that may prima facie represent the conclusion of formal legal rationality can also be read through an emotions lens. Thus scholars like Nussbaum would suggest that it is unhelpful to separate the analysis of emotion from the analysis of reason.⁹⁸ To this end, to even up the ledger, law and emotions scholars should expand their gaze to include international criminal law. Additionally, international criminal law scholars should not be afraid of using emotions analysis to provide new analytical and theoretical insights into their branch of substantive law.

There is much work to be done for international criminal law and emotions scholars to further develop a literature of international criminal law and emotion, which is barely existent. Kathryn Abrams suggests that there are three core tasks for law and emotions scholars. She suggests that they should engage in recognition, reconnaissance and regulation to tease out the role that emotions play in the operation of the law.⁹⁹ Abrams worked in a family law context, but her logic similarly applies to international criminal law. Using Abrams’ three step approach, the next steps in the development of a body of literature on international criminal law and emotions become clearer.

Recognition is described by Abrams as ‘our ability to recognize the range of emotions that infuse’ the law.¹⁰⁰ Lying at the core of recognition for Abrams is the idea that emotions are ‘everyday occurrences’ but have remained absent from legal scholarship until recent times.¹⁰¹ Accordingly, scholars should build the case for recognition of emotions in international criminal law. By engaging in works which render these emotions visible and recognise that they play a role in the legal processes of international criminal law, the barriers that conventional legal scholarship has towards emotions may begin to weaken. Simply put, international criminal law and emotions scholars need to engage in research which leads to the recognition that emotions are, have, and will continue to play a role in the way that the legal system operates. International criminal law and emotions scholars need to demonstrate to other scholars that there is validity and usefulness to the work of studying emotions. This chapter contributes to recognition work within international criminal law and emotions, as it maps out the role that emotions play through Judge Benito’s dissent in the Lubanga sentence.

Once there is broader recognition that emotions play a role in the legal system, reconnaissance is required. Abrams describes reconnaissance as a process where ‘scholars ventured out from the law into fields where the emotions had a much longer history of theoretical and empirical investigations; they drew from these fields understandings that could inform the law’s engagement with particular emotions’.¹⁰² Works of reconnaissance will show how emotions study has been done in other disciplines. This chapter partially contributes to the reconnaissance work by briefly reviewing some of the literature from transitional justice and international law on emotions. Reconnaissance will assist international criminal law and emotions scholars with ontological and epistemological questions about how to gather data, and what constitutes the different emotions. The reconnaissance work will move international criminal law and emotions from a stage where scholars understand that emotions analysis is useful, to one where there is recognition of utility and a broader understanding of how emotions can be studied and the sorts of conclusions that emotions analysis can create. Much of the reconnaissance work has already been done by the transitional justice and domestic criminal law scholars who are already engaging within emotions in the works of other Courts and Tribunals. Emotions scholarship opens academic spaces up to greater levels of interdisciplinarity and sharing of theoretical approaches and methodological tools with other disciplines.¹⁰³ Thus the main role for works of reconnaissance will be to see which literature from transitional justice, criminal law and the broader social sciences, best applies to emotions analysis within international criminal law.

The final area for the intervention of international criminal law and emotion scholars is through regulation. In Abrams’ particular context she described this as ‘a turn toward the task of normative prescription’.¹⁰⁴ In her substantive legal area, family law, there is a clear role for the law to intervene in emotional situations. This may not necessarily be the case in every substantive area of law. However, the following normative questions may be relevant for all areas of substantive law: how does the law regulate emotion? How does the law respond to emotion? How is the law influenced by emotion? How should the law operate in relation to emotion? International criminal law already engages in emotional labour as it delineates between permissible/impermissible conduct through the creation of crimes of genocide, war crimes, crimes of aggression and crimes against humanity. The emotionally charged nature of these crimes means that there is also work for international criminal law scholars to consider questions about what is criminalised, and where the boundaries lie for these crimes. In this way, the work of the Court is incredibly political, and the mere act of regulation, or delineating between things is making political judgments. In the regulation phase, thought must be given to the way that the relationship between law and emotions should be regulated by law.

One approach may be to disaggregate the different aspects of law and law making through political processes. One approach is that taken by feminist scholars who attempt to understand the operation of laws on particular groups within society. Vera Mackie, in her work on family law in Japan, has found it useful to separate aspects of legal analysis regarding gender to ascertain a holistic picture of how gender operates across the totality of the legal system. Mackie suggests that one must analyse positionalities through the specific subjectivities of the actors occupying positions of power, both the intended and unintended consequences of policies, and the wider normative framework that the policies were created within.¹⁰⁵ In splitting the legal analysis up in this way, it allows for a more nuanced view of emotion’s influence on law to develop. To disaggregate the study of emotions in this way also allows scholars to understand how different aspects of international criminal Courts and Tribunals may converge and diverge on the regulation, use and disciplining of emotions in their work, and how this is an inherently political process. So the regulation phase sees scholars turn their attention to how international criminal law should interact with emotions.

The work of international criminal law and emotions scholarship may be useful from a comparative law perspective. The icc, in particular, is a fitting jurisdiction for consideration. The icc is a relatively new forum which may have many lessons for other jurisdictions. Victims are represented within the icc and play an active role in the trial through their intermediary, Counsel for Victims. Additionally, the reparations phase of the icc provides a tangible opportunity for victims before the Court to make a claim for some sort of recompense for the effects of the crimes that have been committed against them. The icc is a jurisdiction which has a unique judicial composition, with judges who vary in their legal, gender and ethnic backgrounds elected by the Assembly of States Parties to the Rome Statute.¹⁰⁶ Gender and judging literature has demonstrated that the positionalities of judges matter to the outcomes delivered by different Courts.¹⁰⁷ Accordingly the work of international criminal law and emotion scholars should have wider appeal within law and emotions scholarship because of the differences in the composition of the icc compared with other Courts.

This chapter has argued for greater awareness and scholarship regarding the role that emotions play in international criminal law. Emotions are everywhere – we know this from our day-to-day lives. Emotions are definitely present within international criminal law and its processes, but are poorly understood and theorised. Using Kathryn Abrams’ steps for emotion analysis in law, scholars could develop a vast and useful body of literature on international criminal law and emotion. This body of literature will not only be conceptually and empirically interesting, but may have important conceptual and political implications for the way that we understand international criminal law and its operation both within the court room and the political processes that shape and craft the icc and its operations. More broadly, international criminal law and emotions literature will contribute to the growing body of law and emotions scholarship, and also feed into comparative legal analysis. An emotions turn in international criminal law is long overdue as emotions are crucial to human functioning and interaction but still remain absent from our understandings of this important area of law.