Kirsten Campbell

Legal Memories: Sexual Assault, Memory, and International Humanitarian Law

How does law constitute memory? To explore this question I trace the constitution of legal memory in the juridical field through a reading of Prosecutor p. Furundzija. In my reading of this case I trace the formation of justiciable procedural and evidential memory. I first examine the recognition of sexual assault as a war crime in substantive international humanitarian law and argue that the legal recognition of such a crime is the condition of the justiciability of memory and hence of its hearing before a court of law. I then examine the constitution of memory in legal practices and contend that prosecutorial and procedural practices operate to constitute legal memory. Third I consider the different accounts of memory that are deployed in Furundzija each account understanding legal memory in a different way. Finally I analyze the legal construction of memory in relationship to sexual difference. I trace the juridical constitution of gendered memory in the case of Prosecutor p. Furundzija through its formation of justiciable and procedural memory the legal conception of evidential memory and its judgment on memory itself. (excerpt)

The Trauma of Justice: Sexual Violence, Crimes Against Humanity and The International Criminal Tribunal for the Former Yugoslavia

This article explores the relationship between the concepts of trauma and justice in the jurisprudence of crimes against humanity of the International Criminal Tribunal for the former Yugoslavia, focusing upon cases of sexual violence. It argues that the Tribunal’s jurisprudence conceives this crime as a traumatic violation of both the subject of rights and of universal humanity. The Tribunal’s models of international justice as procedure, punishment, recognition and therapy understand justice as the legal suturing of this trauma. In these models, the notion of ‘justice’ functions as phantasy in the psychoanalytic sense of an imaginary scene that veils its impossibility. However, figuring international justice as the resolution of the trauma of crimes against humanity reiterates the traumatic wrong in humanitarian law. Humanitarian law therefore requires a new model of international justice - a model that does not reiterate the past but which can institute the future.

Theory: The Plague of the Subject: Psychoanalysis and Judith Butler's Psychic Life of Power

In her book The Psychic Life of Power, Judith Butler explores the relation between power and subjectivity. The Psychic Life of Power presents a political account of the formation of the subject. For Butler, psychoanalysis is a crucial theoretical tool for providing such an account of the subject. This essay considers Butlers Foucauldian rereading of psychoanalytic theory through an analysis of her theory of the formation of the subject. In particular, the essay examines Butlers appropriation of psychoanalysis for her theory of subjectivity. The author argues that while Butlers theorising of “the psychic life of power” represents an important linking of Foucauldian and psychoanalytic theories, nevertheless, her use of psychoanalysis does not fully engage with the complexity of its theory of the subject nor with the implications of that theory for her political project.

The spoils of war

Antony Beevors Berlin: The Downfall 1945 has been an international best-selling history of the fall of Berlin to Soviet troops in 1945. Now published in paperback, Beevors magisterial narrative of Berlins downfall has become a leading work of contemporary popular history. The public discussion of this book has been dominated by two themes: first, the ‘normalization’ of the suffering of German civilians and, second, the ‘disclosure’ of mass rapes by the liberating Soviet army in Germany. This review traces how key debates concerning the remembrance of the Second World War form these dominant readings of Berlin. In particular, it examines the formation of the re-remembering of the wartime rapes of Berlin women, and considers the implications of Beevors account of the downfall of Berlin for how we understand sexual violence in armed conflict.

The Laws of Memory: The ICTY, the Archive, and Transitional Justice

The International Criminal Tribunal for the former Yugoslavia (ICTY) has generated huge archival holdings. With the ICTY’s impending closure, the archive has become part of broader debates regarding its legacy for the former Yugoslavia. In particular, the memorial function of this archive has now become highly contentious. Ultimately, these concern the relationship between law and collective memory. This article uses the example of the ICTY archive to explore the relationship between law and memory in post-conflict transition. It argues that this ‘legal archive’ functions as a mnemonic system that produces ‘legal memory’ through its juridical, international, and transitional structure. It then considers the competing discourses of how the legal archive remembers or forgets the justice of law and the injustice of war. Ultimately, these discourses figure the archive as a ‘legal memorial’ that fails to produce collective memory. For this reason, I develop an alternative concept of ‘memorial law’ in order to suggest other memorial practices that can sustain legal memory as a living memory, rather than as a dead archive.

Rape as a Crime against Humanity: Trauma and Justice in the ICTY

Expressing once again its grave alarm at continuing reports of widespread violations of international humanitarian law occurring within the territory of the former Yugoslavia, including reports of mass killings and the continuance of the practice of ‘ethnic cleansing’, Determining that this situation constitutes a threat to international peace and security, Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them, Convinced that in the particular circumstances of the former Yugoslavia the establishment of an international tribunal would enable this aim to be achieved and would contribute to the restoration and maintenance of peace. UN S/RES/808 (1993)

The Making of Global Legal Culture and International Criminal Law

It is commonly agreed that international criminal law (ICL) is a ‘hybrid’ legal culture, which mixes the legal traditions of the common law and civil law. However, the precise nature of this legal culture remains a contentious legal and theoretical issue. The paper identifies the two dominant models of ICL within these debates as either a clash of cultures or a sui generis system, and shows how neither satisfactorily engages with the concept of legal culture itself. To address this problem, the paper develops a new account of ICL as a global legal culture. The paper first identifies the distinctive ‘cultural logic’ of ICL, drawing on the example of recent developments in sexual violence offences. It then examines how ICL takes a global legal form, which ‘globalizes’ liberal legal culture. Finally, the paper shows how this process of making the legal culture of ICL ‘global’ creates its cultural contradictions, but also enables the possibility of making a new legal culture at the international level.

Out of Conflict: Peace, Change and Justice

IN MAY 2003, the Transitional Justice Working Group reported on its ‘transitional justice plan’ for Iraq. The working group was part of the ‘The Future of Iraq’ project established by US State Department. A couple of months later, in July 2003, the UN Office of the Special Representative of the Secretary-General convened a workshop on the theme of ‘Transitional Justice and the Principle of Accountability of Past Human Rights Violations’. In its press statement, the Office described the workshop as ‘the first step in the long and ever-widening path in which Iraqis will participate to decide how best they should address the human rights violations of the past – not at the risk of prejudicing the future, but in order to guarantee a more peaceful, prosperous and equitable future for all the people of Iraq’ (UN Office of the Special Representative of the Secretary-General for Iraq, 2003). For both the UN and the US, justice represents a key mechanism for the transition of Iraq from conflict to peace. This model of the governance of post-conflict societies draws primarily upon contemporary notions of transitional justice. The ‘transitional justice’ first emerged in relation to the transition of Eastern European states from authoritarian to democratic regimes (Hesse and Post, 1999). The issue facing these nations was how to deal with past systematic violations of human rights. Now forming an established body of scholarship, transitional justice theory conceives accountability for human rights abuses following war or authoritarian rule as necessary when establishing stable post-conflict liberal societies. In this model, law plays a central role in post-conflict transformation (Teitel, 2000). The reconstructive work of transitional justice is not only to establish legal responsibility for human rights violations, but also to establish the rule of law. In turn, the rule of law provides the foundation for the establishment of liberal and democratic regimes. However, the vociferous contestation of the meaning of ‘transitional justice’ in Iraq indicates the difficulty of the emergence of nations out of

The politics of kinship

Judith Butler’s Antigone’s Claim explores our most intimate ties to others – the ties of kinship. Antigone’s Claim explores the politics of kinship through a reading of the figure of Antigone. For Butler, Antigone represents a crisis of the Oedipal order of kinship, revealing the possibility of new forms of kinship itself. Butler presents a persuasive and moving argument for the necessity of changes in our conception and practice of kinship. However, her account of new kinship forms is less persuasive, failing to engage adequately with the sociality of kinship or to provide a radical model of its new forms. Butler argues that Antigone does not represent a feminist politics. However, Antigone’s Claim suggests that, if we are to re-conceive the politics of kinship, then it is necessary to reread Antigone as a political figure.

The City of Law

There is now a well-established ‘spatial turn in law’. However, it remains oriented towards notions of space rather than law. How, then, to capture both the spatiality of law and the legality of space? This article draws on Bruno Latour’s concept of the legal construction of the ‘social’ to explore the assemblage of the city of law. It shows how law functions as a particular form of association in urban life by tracing two key forms of urban legal association in London, the city of law. The first form is ‘legal ordering’. This seeks to order urban life through domination, and includes citadel law, police law and laws of exception. The second is ‘legal consociations’, which build new forms of urban life, such as urban rights, the rights of the city and the right to the city. Finally, the article explores the creation of a spatial justice that can build more just legal associations.