The International Criminal Court’s Intimate Immensity

by Ruby Turok-Squire

Image: Navid Nuur, The Gift.
wikimedia commons

Introduction

One moment transparent, the next translucent, the next any number of greens and blues, depending on the paths the clouds take overhead, the little glass bricks that make up the walls of the International Criminal Court (ICC), which crouches in the dunes on the outskirts of the Hague, might to a passing observer recall the opening metaphor of the Preamble to the Rome Statute, the treaty that established the ICC:

‘Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time…’

Here is a mosaic that shatters again and again, whenever the degree or angle of the sunlight changes. In the day, it casts fragile boxes of light on the concrete beneath, their edges hazy; at night, it shimmers. A reminder both of unity and its potential to end suddenly; a call, perhaps, to honour unity’s delicacy. This scene holds the key to my thesis. I argue that the space of the ICC brings to life a basic principle of International Criminal Law (ICL) and reinvigorates and legitimises ICL in the process. That principle was hinted at in the ICC’s architects statement, which claimed the building was impressive and grand while relating to the human scale. I describe it as ‘intimate immensity’, inspired by Bachelard’s theory of space. I call intimate immensity, in short, a dynamic within the experience of space, one in which intimacy and immensity give rise to one another. Intimate immensity might also be described as human-scale grandiosity, following the ICC’s architects, or the known one meeting the unknown many (Ibidem). I argue that intimate immensity underpins ICL and the ICC, such that the ICC reflects and supports a dynamic central to ICL’s practice. This co-operation of written and spatial elements of the law reinforces the law’s legitimacy and helps to make it ‘real in people’s minds’, to quote Vos and Stolk (p.81). It may even enable a branding of ICL (Schwöbel-Patel) by endorsing ICL’s principle of intimate immensity and thereby assisting ICL in gaining legitimacy and achieving the immense stature and universal applicability to which it aspires. This would seem to align with the then President of the ICC’s remarks, given at the ICC’s opening, on the building’s role as being to safeguard the independence, credibility and legitimacy of the court.

This essay consists of four parts. Firstly, I identify the mode of criticism I aspire to produce. In short, I will try to ‘understand understanding’ within ICL, to invoke Mégret’s position, by recognising ICL’s space as part of its law and adding Bachelard’s poetic theory of space to my critical palette in order to highlight the experiential aspect of space. Secondly, I lay out Bachelard’s  theory of intimate immensity. Thirdly, I argue that ICL calls on its observers to engage with intimate immensity in conceiving of the crimes that it addresses. Analysing the most recent ICC judgment against Ongwen, I notice ICL’s victims and perpetrators standing in for others, pars pro toto, and so becoming intimate and immense. Finally, I take the reader on a walk around and through the ICC, analysing intimate immensity. I suggest that the intimate self can sense both intimacy and immensity giving rise to one another within the space. I hope to establish how the ICC is echoing intimate immensity at work within ICL, and so giving strength to ICL’s foundations.

I.Understanding ICL’s Understanding

I aim, following Mégret, to criticise ICL with a view to understanding how the law itself understands. I recognise a project, political and legal, called international criminal justice, relying on particular epistemological assumptions and beliefs. I then ask after ICL’s understanding, recognising this as only one possible way of conceiving of and structuring a project of justice. I do not ask the law to be the best that it can be, which Mégret (p.19-20) has described as a liberal approach that looks to address detail, and Drumbl has called insightful but not structural (p.1304). I also do not dismiss ICL as aspiring to impossible ideals, which Mégret has described as a realist approach (p.19-20). Instead, I take with Mégret a position ‘not as dismissive as the realist but certainly not as optimistic as the liberal’ (p.19-20). In the interests of seeing ICL from enough of a distance to reflect upon it without being swayed by a commitment to its project, and also hoping not to dismiss its project outright, I intend, following Mégret, to adopt an ‘ambivalent, skeptical, or uneasy’ tone (p.21). Following Foucault, my project is one of ‘how not to be governed’ (p.35), pursued by asking how a powerful structure of experience, intimate immensity, might be sustaining ICL.

Mégret has identified a toolkit for the critic writing in this vein, including epistemological deconstruction, interdisciplinarity, and field analysis (p.21). To those tools I add a poetic theory of space, as a means of exploring the experienceof space, that is, space’s temporal and personal aspects. Bachelard’s theory of intimate immensity is evidenced by poetry, which seems to provide him with ‘an instrument for embodied experience’, to invoke Rich’s perspective on poetry (p.13). Criticism of the spaces of law have focussed on space as a kind of material, or, as Vos and Stolk have put it, on ‘law’s concrete imaginaries’ (p.81). I posit that materiality includes temporal, experiential aspects, and the term ‘concrete imaginaries’ may not reflect that. ‘Law’s spatial imaginaries’ may be a more all-encompassing term, able to acknowledge the intangible, non-concrete aspects within the experience of space. I explore the performance of ICL and the space of the ICC as engaging with intimate immensity, such that spatial and written law learn from each other.

I seek to understand more deeply the matter of the law, ‘how it resides in physical objects’, to quote Vos and Stolk, and ‘law’s physical presence’, to quote McKenna (p.2), by exploring the ICC as a space that is experienced by the intimate self. With LeFebvre, I recognise space as both political and ideological, ‘a product literally filled with ideologies’ (p.30). I do not underestimate the ICC’s artistic potential to create and sustain a perspective and experience for its inhabitants, recognising with Goodman buildings as being able to open or close off ‘avenues of meaning’ and ‘inform and reorganise our entire experience’ (p.642). Consequently, I argue that the ICC is capable of reflecting and strengthening ICL’s intimate-immense ideology.

During this analysis, I keep at the back of my mind ICL’s relationship to marketisation (Schwöbel-Patel, Kennedy). Space’s ability to reflect and reinforce law might be particularly crucial for international law, which Mégret has described as constantly seeking legitimacy, given the fragile political mosaic of which such law is made. The capitalist environment inhabited by ICL may turn states into property owners and the law itself into a commodity (Miéville). Schwöbel-Patel has described ICL as ‘a process… perpetually sent in search of new markets’ and as inhabiting a narrative of growth, involving the subsuming of new crimes into wide interpretations of existing crimes (p.266-7). I wonder if the ICC might be supporting ICL’s branding, by legitimising the dynamic of intimate immensity within ICL.

Klein has described the tendency of branding to place emphasis on image over content and symbolism over substance. I show how the ICC may emphasise ICL’s symbolism, and so contribute to its branding, by reflecting ICL’s intimate immensity, a dynamic which appears to support symbolic constructions of victims, perpetrators and situations. Aware that the ICC may be enabling ICL’s aspiration for expansion and immense international statue in such ways, I remain suspicious of the potentially over-reaching immensity of ICL (Schwöbel-Patel p.265-75).

II. Intimate Immensity

Before analysing ‘intimate immensity’ within ICL and the ICC, it is necessary to outline the theory behind the term. We do not have to go far into a forest, Bachelard noticed, to feel we are ‘going deeper and deeper into a limitless world’ (p.203). There is an ‘immediate immensity’ to the forest (p.204). For Bachelard, ‘immensity is within ourselves’ rather than the external world; it is ‘the movement of motionless man’ (p.202). Intimacy becomes the medium through which immensity is experienced. There is ‘an intimate call of immensity’ at work in the world, he proposed (p.215). ‘Poets know this’, he asserted, quoting Supervielle’s description of poets as ‘sensitive inhabitants of the forests of ourselves’ (p.205).

For Bachelard, when the world’s immensity meets the ‘intensity of our intimate being’, correspondence, communion and transformation is possible (p.210). He quoted Rilke’s imperative to invest a tree with our inner space in order to realise its immensity (p.216). In the realm of the imagination, Bachelard wrote, ‘there are no young forests’ (p.206). A temporal dimension to immensity enters the picture: ‘the forest is a before-me, before-us’ (p.206). The being experiencing the immense, Bachelard declared, escapes the limits of their own cares and thoughts (p.202). Bachelard described the daydream as an example of such escape, a contemplative state that ‘transports the dreamer outside the immediate world to a world that bears the mark of infinity’ (p.201).

Crucially, Bachelard implied that the dreaming being can link the infinitesimal and the immense, transcending ‘the contradiction of small and large’ so that a relationship between small and large emerges (p.206-8). He provided evidence in the form of Milosz’s detailed and expansive descriptions of white nettles connected to blue skies, and the edges of pebbles alongside clear springs (p.207). Such experiences of space, he wrote, show ‘the intensity of a being evolving in a vast perspective of intimate immensity’ (p.210).

I conceive of ICL and the ICC as immense forests, intimately-perceived, following Bachelard (p.203). I argue first that the performance of ICL within the ICC is committed to a dynamic of intimate immensity, which it conjures in the minds of its observers. I then argue that ICL’s own belief in intimate immensity is reinforced, or made ‘real within people’s minds’ (Vos and Stolk p. 81) by the experience of the ICC. The experience of each element of the intimate-immense dynamic, I posit, deepens the experience of the other.

a) Within ICL

Intimate immensity underpins ICL. ICL’s mandate is to deal with crimes affecting immense numbers of people, arguably beyond the reach of any one person’s imagination or empathy. Individuals involved with ICL cases immediately become linked to immensity. Following Bachelard, ICL calls for its observers and judges to dream far beyond the available evidence, and to overcome the contradiction of small and large, in conceiving of victims, perpetrators and the situations in which they acted. The accused will not have personally committed all of the crimes in question, but may be deemed most responsible for them. Victims who do participate in a case, and who are called as witnesses during trials, appear to stand in pars pro toto, representing those who are not and could not be involved.

The intimacy of individuals appears evoked to assist the court in comprehending and handling immensity. This is an immense proposition, but I seek only to show such evocations within the ICC judgment against Ongwen.

In the judgment, an emotional sense of the immense environments in which many Lord’s Resistance Army (LRA) fighters committed atrocities is constructed through the appreciation of intimate moments. The chamber noted that it found the following account, given by an abductee who had become an LRA fighter, ‘very compelling’:

‘Nowhere you could form friendship in the bush, one witness said, otherwise they’d think you were planning escape…This, even if just a personal perception on the part of the witness, illustrates the constant state of fear and apprehension created by the conditions in which LRA members lived.’ (Trial Judgment, The Prosecutor v. Dominic Ongwen [1011-1012])

One personal, intimate perception is taken as illustrative of the emotional states of countless LRA fighters as they killed and brutalised countless people. Similarly, elsewhere in the judgment, one LRA fighter is presented as recalling that ‘in the bush, you do not think of time, only that you are alive’ (Trial Judgment, The Prosecutor v. Dominic Ongwen [485]). Glimpses into a life that is possibly completely alien to the observer – a companionless, timeless life – call to be extrapolated from and offer hope that an immense scenario can be emotionally comprehended by ICL. Can one believe that such intimacy truly represents the conjured immensity?

Victims of immense LRA attacks are presented in a way that draws the intimate into communion with the immense. Lists of casualties often begin with those whose names, ages or backgrounds are known, and progress towards those about whom less is known. Some such lists begin with full names, and some of their endings are as follows: ‘a girl found by the river’; ‘a woman shot in the mouth’; ‘one child was left in a rubbish pit’; ‘an unnamed girl with a burnt leg’ (Trial Judgment, The Prosecutor v. Dominic Ongwen [168, 169, 173, 184]).

These final anonymous victims are connected to the intimacy of the names preceding them, perhaps making them less abstract and more human. At the same time, the anonymous victims seem particularly symbolic, compelling us to imagine how many others were not found, by the river elsewhere, other women, other children, in other rubbish pits, other unnamed girls. It is significant, I posit, that the judgment explicitly mentioned the ‘girl with the burnt leg’ as being unnamed; her anonymity was over-exposed, and so her symbolism was made more pronounced. Suffering is held in the details: ‘shot in the mouth’; ‘a burnt leg’ (Trial Judgment, The Prosecutor v. Dominic Ongwen [184]). At once, the reader comprehends suffering through intimacy, and feels compelled to imagine an immensity of undocumented suffering, or, following Bachelard, to sense a ‘before-me, before-us’ (p.206). I am suggesting that a strategy is at work within the judgment’s presentation of evidence, and that neutrality and accuracy may be compromised.

An intimate appreciation of the single person accused, Dominic Ongwen, charged with 70 counts of crimes against humanity and war crimes, seems differently crucial to the judgment. Here is a child soldier who, on the stroke of midnight when he turned 15, as his defence forcefully argued, grew into a perpetrator. The judgment contains details of Ongwen’s family, school records, medical assessments and accounts of his personality given by fellow LRA fighters; an intimate portrait is before us (Trial Judgment, The Prosecutor v. Dominic Ongwen [26]-[31], [2450]–[2503], [2506]–[2516]). But ‘Ongwen’ is held at a distance. His eyes seem hollow in the close-up photographs from his trial released by the ICC. Hollow things may be empty, but they also contain. ‘Ongwen’ becomes a cadence, drawing immense accounts of LRA attacks to a close, uncloseable though they may be. The name is like a vessel to contain the unimaginable. ‘Ongwen took responsibility’, we read (Trial Judgment, The Prosecutor v. Dominic Ongwen [189]); responsibility is located, and an attack, in being described, ends all over again. ‘Ongwen’ signposts a limitless world, following Bachelard, marking an edge where there is none, reassuring the reader of some kind of closure.

Ongwen’s ‘personal’ decisions and orders are emphasised, implying they were not mechanical, calculated, or replicable, but intimate and his own (Trial Judgment, The Prosecutor v. Dominic Ongwen [131, 132, 150, 216, 949]). Such arguably simplistic accounts of decision-making may call into question ICL’s integrity in representing Ongwen. The ICC’s photographs show Ongwen’s eyes and brow so clearly that one can imagine thoughts flickering across his mind; we seem encouraged to ask, how could hehave thought of such crimes? And beneath that question, to make the assumption that only he couldhave. Immensity takes root in a tangible, present, and accessible someone. Intimacy seems employed to contain – impossibly – immensity.

b) Within and Without the ICC

If intimate immensity is one of ICL’s central dynamics, or principles, enabling ICL’s comprehension of situations, victims and perpetrators, might intimate immensity also be expressed in ICL’s space? I take an imaginary journey around and through the ICC, using images available in the gallery at the end of this piece, discovering and analysing intimate immensity.

Walking underneath intimate-immense, mosaic-like glass walls – each minute brick almost always a different shade from those surrounding it – I glimpse more or less of the ICC’s five towers. Even a panoramic shot struggles to capture their entire dimensions. A forest of towers? Something remains hidden – something immense, perhaps – wherever I am standing. The building’s dimensions compel me to dream constantly beyond what can be seen, into immensity.

The presence of towers and a moat might be felt to echo a fortress, conjuring a temporal immensity, a ‘before-me, before-us’. This perhaps grafts some permanence onto the ICC and its young law, which might seek, as Schwöbel-Patel has described, to be heroic, as the ‘beacon of global justice’.

This exterior, though finished, looks to me still shrouded in scaffolding, as rough-edged as the surrounding clouds and dunes.  There is intimate vulnerability to the metal bars lining the windows, suggesting openness to change, or re-building, as ICL learns and evolves from the cases that come before it. Plants climb up inside the glass; a green scaffolding is holding up the ICC too, some wildness threatening to take over, intimacy revealed in the vine’s textures, and immensity apparent in the heights they reach, amidst smooth planes of metal and glass.

The colours in the moat before the ICC’s entrance are reflected in the surrounding glass walls, and vice versa, until which mirrors which becomes impossible to tell. Here is a dialogue between water and glass, within which minute differences in colour are brought to life. Small choppy waves that form in the wind imbue the colours of the glass with roughness. At moments, according to the wind, intimacy of texture emerges in the water, while a glass expanse guards overhead.

One little bridge later and I am almost inside. In the evening, lit from underneath, the single bridge on its slight incline seems so delicate. It becomes an intimate magnet for the gaze, resembling from certain angles the narrowest point of a sand-timer. It is like a tender, thin line drawn across an expanse of something unseeable. Like a train of imagination, perhaps. Seeing the bridge encourages a joining of intimacy to immensity, or a traversing of immensity via intimacy. Sometimes, in the distance, a glimpse of what could be a forest, unexplored: immensity hiding in plain sight.

As if it were its own country, a passport is required to enter the ICC. Countless flags lining the foyer; countless lights, star-like, above.So many staircases; an immensity of directions of travel. From all of the ceilings, little lights casting long shadows on large grey slates. The same lights, now runway-like, along vast corridors, charting paths towards something beyond themselves? Long, thin lines engraved in all the ceilings, giving a feeling, I would imagine, of space extending as one walks underneath. Pervading the hallways, a sense that if only I walked a little further, I might see more than I expected. Something tempting about the building and its trails of breadcrumbs leading to immensity.

Happening upon a new outside: the garden rises into open air on a spiral of wooden slats. There is no foliage, no obvious immensity of that kind – instead, spots of greenness, careful dots, again recalling constellations. The empty space surrounding this greenery lends the viewer’s imagination a certain power to extrapolate. There is always intimate detail, yet the details are held apart from one another. There is always also an intermediary sparseness, evocative of immensity.

The white walls that are everywhere inside feel larger than themselves, their smoothness perhaps expressing a hope of things being solved, or healed over. That expansive whiteness gains warmth, or intimacy, from long lines of potted plants, of various species yet identical proportions, which seem always nearby.

Some interior walls are not walls at all, only more windows. These create immensity by extending the space that one expects to be able see into when one encounters them. Just as the view unexpectedly opens out, the frames of the glass walls cast shadows on the floor that look like bars. An echo of imprisonment? A haunting of imprisonment, even. But this is an immense imprisonment, in that the shadow-bars never quite close upon one another. They stretch diagonally away in all directions, like the lines a painter might draw when constructing the perspective of their picture. The action of zooming out, of looking for more than is visible, seems illustrated by, or even built into, those shadows.

Finally, the courtroom. A series of bars stretching across the ceiling and across the glass of the gallery: another immense but fragile echo of imprisonment. The chairs are so far away from one another. There is space for everyone who is not here, like those victims with unknown names in the Ongwen judgment. I cannot help wishing to fill it with more chairs. The space invites this feeling. It has a negative capability, Keats might say. I feel called upon to be witness to more than I can see and hear – a task, it has been argued, which this small court, in its big building, hopes to accomplish in the practice of its law.

Conclusion: A Courageous Building

‘The building requires the courage to be an ambassador for the credibility and values of the ICC. The project and its architecture are impressive and grand in scale but always relate to humans and the human scale.’

So begins the statement released by the ICC’s architects, introducing their building to the public. It recalls in its mentions of the ‘impressive’, ‘grandiose’ and ‘human scale’ the intimate immensity I have analysed here. It may seem strange to describe a building as having courage, and to invest space with emotion. But given the immensity of the international project to which ICL is committed, courage may be appropriate. Moreover, in giving its inhabitants an experience of intimate immensity, perhaps the ICC is indeed emotive, expressive, and courageous.

Perhaps the ICC is also encouraging. I have argued that intimacy and immensity unfurl alongside one another, and create one another’s experiences, within ICL and the ICC. In supporting ICL’s intimate immensity from all sides, the ICC may be contributing to ICL’s striving for international immensity. The ICC appears to encourage the intimate-immense principle, which within ICL may emphasise symbolism over substance – and so acts as a form of branding, one might say – by creating symbolic subjects of the law.

By bringing Bachelard’s theory of the experience of space to bear on legal architecture, I have hoped to deepen the ability of criticism to see into the experience of the ICC, and into ICL’s own understanding (Mégret). I have argued that the temporal, intangible, personally-experienced reality of the ICC’s space, which shifts with the light and with one’s place within it, gives rise to intimate immensity. Intimate immensity might appear to be another tension within the ICC’s space, following those identified by Vos and Stolk, which included unity and isolation, and transparency and safety (p.75). I would suggest, however, that intimate immensity is less of a tension or contrast, insofar as those terms imply division, and more a dynamic in which seeming opposites strengthen and enable each other. It has been as unpredictable as birdwatching, noticing suddenly something intimate, suddenly something immense, within ICL and the ICC. The two exist, it seems, in a continuous, complex relationship.

Considering intimate immensity within the written, performed and spatial elements of ICL may steer criticism of ICL towards acknowledging more comprehensively the experience of the law’s space as sustaining and shaping the law, and towards acknowledging complex dynamics within the law’s space as creating those experiences that sustain the law. My analysis would suggest that an understanding of ICL’s understanding requires a continued appreciation of the material, intangible, personal and temporal aspects of the ICC as existing in relationships that enable one another. To facilitate such understanding, new courage might be called for within criticism of ICL itself.



Ruby Turok-Squire completed an LLM in International Development Law and Human Rights at the University of Warwick and the GDL at City, University of London. She has worked as general operations assistant for Action for Child Trauma International and as a research assistant for the Central England Law Centre

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