UC Berkeley

Abstract

The Therapeutic Turn in International Humanitarian Law:

War Crimes Tribunals as Sites of "Healing"?

by Diana Elizabeth Anders

Doctor of Philosophy in Rhetoric

Designate Designated Emphasis in Women, Gender, and Sexuality

University of California, Berkeley Professor Judith Butler, Co-Chair Professor David Cohen, Co-Chair

This dissertation examines the growing tendency to figure international war crimes tribunals in terms of their therapeutic value for their victims. My project documents and questions how the discourse of juridical healing emerged from what I term "the therapeutic turn" in international humanitarian law (hereafter, IHL). I analyze this phenomenon in terms of its key features, conditions of possibility, modes of legitimization, and effects, focusing on legal institutions designed to adjudicate crimes such as genocide, mass rape, and torture. My central argument is that the rhetoric of juridical healing, despite its commendable achievements, comes at an important cost, in that the appeal to law can invite new forms of regulation and domination. In short, this novel form of justice produces and authorizes its own forms of violence. It does so in part by obscuring the political effects of the law's promise to heal. To bring this uncomfortable fact into relief is but a first step towards countering such ill effects.

This project focuses on the first two international ad hoc tribunals -- the International Criminal Tribunals for the former Yugoslavia and the International Tribunal for Rwanda -- as well as the International Criminal Court (hereafter, the ICTY, the ICTR, and the ICC). All were established in the 1990s in the beginning of what has been called the "tribunal era," which has ushered in an unprecedented emphasis on victims of atrocity. Primarily by means of discourse analysis, I examine court documents and trial transcripts, as well as relevant statements made by diplomats, politicians, court officials, scholars, and non-governmental-organizations. Such analysis aims to chart the expansion of a new norm of justice as healing that has so far largely gone unrecognized.

Chapter One outlines the general problem of the dissertation, introducing the phenomenon of juridical healing and situating it historically. Although such healing has become a powerful, even normative trope in humanitarian discourse, it has not been well defined. The chapter raises questions concerning what juridical healing can realistically achieve, and how it might constitute a new mode of power that paternalistically regulates the very subjects it pledges to heal. It also examines how the special status of healing discourse as "above reproach" has shielded it from critical scrutiny.

Chapter Two surveys the growing scholarly discourse on juridical healing, arguing that such inquiries tend to uncritically accept the core terms of the therapeutic turn. This work can thus serve to reify the problematic notion of healing promulgated elsewhere. Such thinking holds that tribunals can occasion forms of "catharsis" and "closure," both for individual victim-witnesses and more broadly. I argue that this belief in "disclosure for closure" forecloses critical reflection on the effects of juridical healing, or on alternatives to this conception.

In Chapter Three, I develop a genealogy of juridical healing in relation to new legal institutions. I analyze how the promise of healing has served as a means of legitimization, even as it has led courts into uncharted legal territory. Even as the tribunals of the 1990s derived their credibility from the Nuremberg and Tokyo tribunals that followed World War II, they also had to distance themselves from the accusation that the latter had only dispensed "victors' justice." In an uncanny echo, recent tribunals can be said to have produced forms of "victims' justice." I examine how such rhetoric threatens to undermine the same credibility that it otherwise means to establish, even at the cost of the victims it purportedly champions.

Chapter Four considers the tribunals' adjudication of sexual violence as a war crime. Here I use individual case studies to show the unforeseen costs of such procedures. I examine how the female victim of sexual violence is effectively condemned to victimhood by the very discourse that promises to heal her, but denies her meaningful agency. At the same time, "other" victims of wartime sexual violence--such as men, boys, or women from the "enemy camp"--are marginalized. My analyses of these cases explore how therapeutic-juridical interventions can undermine their avowed aims, while concealing the power relations on which they rely and which they perpetuate.

The final chapter is based on fieldwork that I carried out in 2009 in The Hague, Netherlands, and examines the depoliticizing effects of juridical healing. Drawing on interviews with ICTY and ICC officials, the chapter outlines the temporal and spatial coordinates of the rhetoric of healing. I focus on the ways in which such rhetoric enacts movements of deferral and displacement, and thus neutralizes potential forms of political activity. As an alternative, I examine Hannah Arendt's account of politics, which is centered on collective, participatory action and antagonistic debate. Such a view allows us to imagine a more capable subject of politics, one with the potential to recover, resist, and revolt.

The Epilogue evaluates the current and future implications of the rhetoric of healing, exploring alternative responses to extreme violence. I claim that juridical healing can be understood as the latest "last utopia" or the least "lesser evil" in a time when "human rights" and "humanitarianism" have become increasingly wed to military interventions. I proceed to trace additional contradictions in the discourse of juridical healing, in that contemporary IHL also identifies with the ideology of militarized humanitarianism in its endorsement of the UN doctrine of "Responsibility to Protect." I close by suggesting that juridical healing presents the international community with an aporia that might ultimately be generative, insofar as it produces conditions under which the very politics it stifles might also be aroused. By rethinking and reframing this rhetoric, I hope to indicate avenues for differently imagining and producing the future--a future not destined to repeat or be dictated by the violence, injustice, and pain of the past.