The Areopagus and the International Criminal Court

I. Law as a performative mode of practice

 In July, I went to the International Criminal Court in The Hague. After a series of security, passport and baggage checks, I seated myself on the audience balcony in courtroom 1. At 12.30 the judge called for recess and we rose to mark respect. As the judges left the room, I too turned to leave, but just then, curtains snaked across the glass fronted balcony. Heavy pale green velvet, slowly cloaked the courtroom and it was then that realised that sometime in the last few hours the line between reality and play, trial and performance was not so crisp anymore.

The use of the word theatre to define the courtroom is so commonplace, that it has generated a body of work – by legal practitioners – geared towards qualifying, and more urgently, differentiating the qualities and processes that distinguish the theatre of justice vis-à-vis the theatre as a space of entertainment. Despite these assertions, Katherine-Fischer Taylor, for example, in her research on the Palais de Justice shows that when searching for a new form for the courtroom, in post-revolutionary France, the legislators looked towards the theatres, for their spatial organisation as much as for their socio-political formal attributes, to adapt to both the assembly and the law courts. To go back even further, the Greek word agon – which was used to refer to the agonistic or adversarial practice of a trial, is believed to have informed Greek comedy. The courtroom is spatially and procedurally inextricably bound to the theatre.

Alan Read, the author of Theatre and Law describes law as a ‘performative mode of practice’ and, he articulates 10 rules of engagement that show how the two forms of practice are structurally similar. Milner S. Ball, in his essay, ‘The Play is the Thing: An Unscientific Reflection on the Courts under the Rubric of Theatre’, accepts the similarities between a theatre and a courtroom, while methodically identifying the particularities of the legal theatre, and more importantly, articulating the relationship between the theatrical form and the legal processes and operations.

Departing from the work of both Read and Ball, it can be understood that, through the performative form of practice of law, legal and spatial processes are intertwined.  I would like to focus on three ends that clearly evidence this legal-spatial weaving:

  1. The formation of the juridical subject

The spatial organisation of the theatre elaborates the inter-relations between the different protagonists – the performers and the audience. It establishes the collective as responsible for maintaining order, and on whose behalf order is maintained. It constructs the juridical subject on whose behalf judgements are voiced and, who in turn accepts, the judgement.

  1. Enabling legal interpretation.

The trial is structured such that it constructs a process of deliberation and judgement based on numerous points of view, a series of precedents and other social and cultural predilections. This is evident and is programmed in the relationship constructed between the judge and the other protagonists in the courtroom. The interpretive quality of law is the reason that law cannot be considered only as a body of rules but is deemed contextual and intimately connected with politics. In the words of China Miéville in

“…if law is a process, something that is done, then legal interpretation becomes of paramount importance…Contextual interpretation is the very mechanism by which law is made part of political reality: law is either static or it is open to interpretation…Interpretation is not something we do to understand the law, it is part of the process that is law.” China Miéville (Between Equal Rights: A Marxist Theory of International Law)

  1. The establishment of legitimacy for the institution.

Law cannot be spoken in any and every forum. To be a legitimate ruling, the space itself should be accepted as a space where law can be spoken and this is done through the articulation of repeated spatial elements, legal processes and procedures, costumes and the utterance of oaths. It must be immediately recognisable, knowable and differentiated from other spaces. This quality allows us, like Alice, to ‘know’ a space of law:

“Alice had never been in a court of justice before, but she had read about them in books, and she was quite pleased to find that she knew the name of nearly everything there.”

Essentially what the three ends – the juridical subject, legal interpretation and the legitimacy of the institution – unveil is the intimacy, between law and politics. With the understanding that legal and spatial processes are intertwined in the practice of law, and that politics and law are mutually reinforcing, it would not be incorrect to surmise that politics constitutes and in turn is constituted by a legal system and thus, is closely related to both the legal and spatial processes and operations practiced in the law courts.

Since 1989, the number of international law courts has multiplied. While, legal theorists and political scientists have focused on the, formal and informal, institutional relationships between domestic and international adjudication, and how it constructs political agency for international adjudication. However, there is an equally relevant discussion in the role that spatial processes, through their relationship with legal practice, can play in framing the politics of international adjudication.

II. Aeschylus’ Eumenides

Eumenides, the third play in the trilogy Oresteia by Aeschylus, is one of the only surviving Greek plays that is staged as a law court. It deploys the space of the theatre to present a legal system that it projects for a new political order that was being enacted in 5 B.C.E Athens. It is a paradigmatic play, which is extensively studied by both legal scholars and classicists to understand Athenian society and its legal structure. In addition to the legal theme of the play, I am focusing on it because:

  1. The play stresses on the importance of space within the legal process using a variety of techniques – narrative, theatrical, temporal and mythological.
  2. Of the specific focus on the Areopagus, as an institution and a courthouse that required transformation and re-presentation during that political climate.

Contextually, the Oresteia can be read as a political project rooted in the legal reforms that were being enacted through the 5th century B.C. serially by Dracon, Solon and Ephialtes. It was primarily the Ephialtic reforms, enacted only three years before the play was performed, and its relevance to the Areopagus that appears as the impetus for the play. Before the reforms, the Areopagus, a council of aristocrats, was politically powerful and controlled the constitution and the judiciary of Athens, but after the reforms were rolled out, the institution was reduced to purely a legal function. However, the cases that were tried in the Areopagus were considered the gravest crimes against society and included homicide, treason and sacrilege Though some scholars caution that the Eumenides is not to be considered as Aeschylus’ ideological leanings, it is difficult not to intuit that he was very much in favour of the reforms and the political reordering of the city in their wake, echoed in Athena’s words.

“I will appoint judges of homicide bound by oath, and establish a tribunal, a tribunal to endure for all time. Do ye call your witnesses and adduce your proofs, sworn evidence to support your cause; and I will return when I have singled out the best of my burghers, that they may decide this issue in accordance with the truth having bound themselves by oath to pronounce no judgement contrary to justice” – Athena

 These lines summarise Aeschylus’ project. In it one can read the suggestive relationship between politics, its legal system and the role of spatial processes.

The Juridical Subject is constructed through a transformative spatial process where the space or its organisation is changed to suggest an ‘alternity’ or a potential. It is done using both the narrative and the theatrical space. The move from ‘private vengeance’ to public retribution as a form of regaining order was an important theme in the play and it was spatially enacted through the move from the home to the agora across the narrative of the trilogy. This move is complemented with the use of language in different ways in both the spaces. The confrontation between the Furies and Apollo and the manner in which, the play itself was resolved stresses on the change in the civic ordering system, its relationship with tradition and the responsibility of the collective within this system. The construction of new inter-subjectivities using the stage and its relationship with the audience. This is suggested visually and associatively through the stage sets, as described in the following quote by Geoffrey W. Bakewell:

“The break with the past becomes immediately apparent in the direction that the jurors and Athena move to cast their ballots…The implications are profound. For one thing, justice has become more transparent: administered in an outdoor setting, it is now visible to and verifiable by all. For another, Athena has repeatedly addressed the jurors as the Athenian People…their movement towards their peers in the audience suggests that the demos now has a greater role to play, in judging the affairs of its ‘brilliant dynasts’. Put simply, justice takes a new course in Eumenides.”

 Legal Interpretation was enacted using the space of the stage to choreograph legal procedures. This is best when Athena judge the matter solely on the foundation of oaths, as was common then. Moreover, she institutes a procedure that displays a form of rebuttal between the defendant and the prosecutor. This is augmented in the arrangement on stage. My drawing of a text describing the stage, as seen in the plan, is that it can be understood as series of parallel layers approaching the space of the audience. Furthest from the audience is an image of the temple to Athena as would be visible from the Areopagus. The benches of the jury precede this layer and in turn are preceded by the prosecutor and the defendant. The adversaries commence the line of bifurcation that splits the chorus and is terminated at the voting urn that directly fronts the audience as a singular body.

Legitimacy was suggested by using objects, the Areopagus and the Statue of Athena, that were very much part of the city, historically, mythically and contemporaneously, and were most probably within the peripheral vision of the audience watching the play. The focus on the Areopagus, which had recently undergone a restructuring by the Ephialtic reforms, as the primary space in the play provides an ‘aition’ to the hill as a judicial space. The trial of Orsetes was deliberately staged on the hill by Aeschylus, even if it was not an obvious choice in view of the elaborate system of jurisdiction of the different law courts in Athens during the time. Athena herself references the hill and its historical role in other mythological trials, for example, that of Ares. Whereas, the statue of Athena was one of the largest public works to be commissioned in the city after the pillage by the Trojans in thirty years and it symbolically suggested the resurrection of the city and its radical democratic government. During the play, the statue would have been in construction atop the Acropolis and eventually it would dominate the skyline of Athens. It was this very statute, that was used as the model for the Athena who appeared before Orestes.

III. Athena’s Tribunal

Larry May and Shannon Fyfe, in A Normative Defense for International Tribunals, while discussing the legitimacy of international tribunals, use Athena’s tribunal in the Eumenides, as a charter myth for international adjudication, arguing that is a proto-international court with universal jurisdiction. Their argument essentially rests on the role that Athena plays, as a goddess and third party not affiliated either to the victim or to the defendant, in initiating and legitimising a tribunal ‘to endure for ever more’. They evidence that Athena is aware of her lack of jurisdiction in the matter when she refers to both Orestes and the Furies as ‘strangers.’

This particular reading does offer a novel perspective to Aeschylus’ work and suggests that he was envisaging a greater political ambition for the diminished Areopagus, and for the role of Athenian law, across Greek territory. In addition, using their method, further parallels between the Areopagus and the contemporary International Criminal Court (ICC) in The Hague can be drawn, for example, the autonomy and the stature of the judges, the personal investigative power of the institution in serious crimes that threaten the order of society, the lack of a police force that compels citizens to inform the court and initiate legal action and more particularly, the trial of Orestes who was the head of a noble house.

However, the comparison between Athena’s tribunal and say for example, the International Criminal Tribunal for the (former) Yugoslavia or even the International Criminal Court, should be accepted with a pinch of salt especially because the method used to construct it is purely based on the operational similarities between the two institutions. The role of the law in regulating the relations between the Greek city-states in 5 B.C.E is rather unclear. A coherent argument about the similarities between the institutions can only be framed with an understanding of the legal relations between the autonomous ‘equal’ political, which is the essence of international law.

IV. The International Criminal Court

Since 1989, 24 new or restructured international law courts have been formalised globally. Legal theorists and political scientists state that these courts show three main structural transformations compared to their predecessors, that have increased their political agency.

  1. An increased reciprocity between domestic and international laws primarily because of the legal practitioners who participate equally in both spheres
  2. A multi-scalarity of institutions that span domestic, transnational, regional, supranational and the international creating an interconnected institutional system
  3. The introduction of private protagonists in international adjudication, for example, legal practitioners, nongovernmental organisations and multinational corporations.

While the legal theorists and the political scientists argue that international law has gained a greater political agency because of legal practitioners, and their institutional interrelations, however, this perspective in isolation is divorced from politics in every form and is based on a purely legal viewpoint, which in fact, counter intuitively detaches the realm of international law from that of politics. I would argue that instead, it is through the practice of international law that the politics of international adjudication can be (re)framed.

The trials of Nuremberg were most definitely a political project, aimed towards advancing the reason and sensibility of the international ‘rule of law,’ similar to Aeschylus’ project with Eumenides.

“The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs, which we seek to condemn and punish, have been so calculated, so malignant and so devastating, that civilisation cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgement of the law is one of the most significant tributes that Power has ever paid to Reason.” – Justice Robert Jackson

Important inclusions within the trial was that of movies as evidence, and the live broadcasting of the trial as a public pedagogical and opinion tool. To allow for these inclusions the legal process underwent changes. The change that I would like to focus on is the inclusion of the screen in the courtroom as it explicitly displays the relationship between the legal and spatial processes. The inclusion of the screen altered the space of the courtroom in the following ways

  1. The dimming of the lights to enhance visibility for the projection was counterpoised with spot lights focused on the defendants’ bench, exacerbating the theatricality and the politics of the trial
  2. The screen that was introduced in the courtroom was positioned facing the audience who came to scrutinise the proceedings, reinforcing and reorganising new relations between the public audience and the judges, in the space of the trial through the evidence.
  3. It altered the format of evidence not only in the inclusion of cinema, but through the affidavits, procedures and oral testimonies that were part of the cinematic evidence to prove its validity in a court of law. This changed the role and the variety of the protagonists and specialists and in effect the constitution of the legal forum.

The screen though initiated as part of the legal process, through its positioning in space, constructed alternative inter-subjectivities within the space of the courtroom, which are still constantly being modulated, redefined, and reformulated in every international trial that has been performed till date, and which in turn transforms the legal process itself, and eventually the politics of international adjudication. The impact of this is most evident in the International Criminal Court, which is the most powerful international law court constructed till date and relies extensively on the role that the public audience and the private protagonists play in constantly reinventing the international legal arena. This can be experienced in the section of the courtroom, which reinforces the relationship between the judiciary and the public audience while constructing different roles for each of them as judges of the trial.

To conclude, it is through the relationship between the legal and spatial processes and the institutional structure that a political transformation in the international order can be imagined.

Other reading in the same vein: Black Box- White Box- Light Box?

– as presented at the University of Tampere, (im)Possible Cities Conference: Urban Literary Studies on 23, August 2017

The image is a drawing of the stage, done by me, on the quote by Bakewell cited above.

 

 

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