Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood

Abstract

They cannot represent themselves; they must be represented. (1) Karl Marx I REPRESENTATIONAL PRACTICES AT THE INTERNATIONAL CRIMINAL COURT Representation is one of most ingrained practices at International Criminal Court (ICC). (2) ICC defense counsel engage in probably best known practice of representation by directly representing interests of accused. But prosecutor and chambers also represent: The prosecutor prosecutes and chambers adjudicate on behalf of--at minimum--all states that have ratified Rome Statute of International Criminal Court (Rome Statute). (3) If court has jurisdiction over a situation pursuant a UN Security Council referral, prosecutor and chambers also act on behalf of all member states of United Nations. This article focuses on a more novel practice of representation in criminal law: practice of speaking, directly or indirectly, for of crimes. Like other practices, practice of representation produces effects. (4) Political and social theorists have studied effects of practice of political representation. As this article will show, some of their insights illustrate effects of legal representation as well, despite formal differences in representational practice. One such insight is that, as Hanna Pitkin explains, representation is re-presentation, a present again that is not merely a literal bringing into presence but a making present in some sense of something which is nevertheless not present literally or in fact. (5) For Pitkin, representational practice is characterized by absence of object of representation: Some other entity carries out this act of making present, introducing a rhetorical space where claims are made on behalf of absent constituents. (6) In field of law, practices of representation also allow various actors stand in for others and make claims on their behalf. Unlike defendant, a disembodied concept such as the state or the community is not physically present in courtroom. When constituents are absent, representation produces what Pierre Bourdieu refers as an effect: A spokesperson gives voice group in whose name he speaks, thereby speaking with all authority of that elusive, absent phenomenon. (7) In politics, Bourdieu writes, a whole series of symbolic effects ... rest on this sort of usurpatory ventriloquism, which consists in giving voice those in whose name one is authorized speak. (8) The oracle effect that is produced through representational practices of speaking on behalf of others thus entails an appropriation or usurpation of voices (and indeed authority) of represented. This oracle effect is evident at ICC as well. When prosecutor prosecutes or judges adjudicate crimes--whether they do so on behalf of states that have ratified Rome Statute, or on behalf of member states of United Nations, or even on behalf of the victims of crimes--these actors simultaneously give voice to and appropriate voices and authority of those they claim represent. But relationship between representative and represented is more dynamic than one in which representative merely usurps authority from represented: The relationship is mutually constitutive. As Bourdieu argues, representative is both constituted by and constitutes represented group: It is because representative exists, because he represents (symbolic action), that group that is represented and symbolized exists and that in return it gives existence its representative as representative of group. (9) This circular relationship between representative and represented exists in law as well. While representative relies upon represented entity confer representative's authority, represented entity--whether a defendant, a victim, crown, or international community--relies upon representative make it present. …