Propaganda on Trial: Structural Fragility and the Epistemology of International Legal Institutions.

Abstract

This paper is part of a volume on the anthropology of global institutions and it draws from the anthropology of law and knowledge to analyze a at an international criminal tribunal. The majority of high-level defendants who are charged at international criminal tribunals with ordering or instigating crimes against humanity are not accused of participating directly in physical acts of violence. Prosecuting political leaders for speech acts conventionally requires proof of a direct causal nexus between a speech act and subsequent felonies. This paper looks closely at what demonstrating causation involves in the trial of Serb nationalist Vojislav Seselj, and it examines the assumptions and models of cause-and-effect used by prosecutors and judges at the International Criminal Tribunal for the Former Yugoslavia. To qualify as instigation, international criminal law requires that speech acts directly cause the crimes in question, and this necessitates a paring down of multiple factors into a single chain of causation that can be proved beyond a reasonable doubt. The model of causation commonly employed at international tribunals is markedly different from that of social science, and actors in the two systems handle evidence in distinctive ways. Despite the very high standard of proof required by criminal law, in practice prosecutors, lacking solid insider testimony, rely upon weak chronological evidence to demonstrate causation. The paper concludes by assessing the pitfalls of arguing legal causation by way of temporal proximity and chronology, and by reflecting on wider epistemological problems in criminal law’s understandings of propaganda and inciting speech.