Radhika Kapoor joins JiC for this guest-post on empathy and defendants at international tribunals. Radhika is a Harvard Kaufman Fellow at the Public International Law and Policy Group, Washington DC. She graduated from Harvard Law School’s Master of Laws Program in 2019, and is currently working on peace negotiations in Sudan and transitional justice in BangladeshThe views and opinions expressed in this article are those of the author and do not necessarily reflect those of her organization.

Viewers watch the trial of Slobodan Praljak (Photo: Reuters / Dado Ruvic)

Given the nebulous structure of the international criminal justice project and the uncertainty of its purpose, it is difficult to formulate a coherent framework to evaluate its efficacy or success. Does an international criminal tribunal intend to establish a historical record, to develop a means to deter potential war criminals from engaging in similarly pernicious acts, or to dampen recurrence rates?

While every one of these options merits lengthy analysis, here I examine one remarkable, albeit contested, function served by international criminal trials: that of humanizing the international criminal defendant. I also assess whether this may be useful in the context of understanding atrocity, transitioning to stability, and finding space for empathy.

Showcasing Humanity at International Criminal Courts

Watching the graphic documentary screened at Nuremberg to illustrate the horrific conditions of German concentration camps, Nazi defendants had varied reactions: while the New York Times recorded the prisoners as “the coolest and most collected spectators,” prison psychologist Gustave Gilbert remembered differently. Per his account in Nuremberg Diary, defendant Hjalmar Schacht refused to watch the film; Albert Speer looked sorrowful; Arthur Seyss-Inquart seemed impassive; Hans Frank was tearful. Gilbert’s insight into the defendants’ psychological states is illuminating, making the viewer realize that while each of these persons was implicated in a systematic policy of murderous criminality, they all nevertheless undertook vastly dissimilar mental journeys during the trial. It also raises questions about the capacity of humans to respond to public castigation: In such a situation, where the worst of one’s acts are revealed to the world – a moment which for some defendants possibly marked their first encounter with the ‘truth’ – would one show dignity, stoicism, or remorse?

Such glimpses into the humanity of the defendant are transformative for the viewer or reader: it precludes her from considering the defendant as a monolithic, one-note monster. This experience can be uncomfortable; there are few things as disconcerting as tempered hatred, or the sensation of lukewarm outrage against an evildoer. However, a confrontation with the humanity of the perpetrator holds tremendous significance.

First, criminal justice processes predicated upon rejecting the humanity of the accused can help perpetuate the precise animosities that they purport to curb; the institutionalized, egregious human rights abuse of suspected terrorists in Guantánamo Bay has become a “rallying point in jihadist propaganda.” Furthermore, dehumanization may have ripple effects, culminating in fear or otherization of an entire group for the actions – real or perceived – of a few. We may muse today, for instance, whether the mere fact of being Muslim plays a part in determining an individual’s susceptibility to detention on charges of extremism. In the 1930s, journalist Rebecca West lamented that every German man, woman and child had not been slaughtered after the first World War. (She argued later that she was capable of distinguishing between decent Germans and Nazis.) Some of these ideas continue to find resonance today, as evinced in the US President’s immigration policy, calling for a border wall on the basis that unregulated migrants brutally kill thousands of Americans, and deserve to be kept out at all costs. Here in India, the otherization of Indian Muslims in the form of generalized blame for the Covid-19 pandemic continues to fuel communal violence.

More broadly, however, as stated by the fictitious presiding judge in Hollywood’s retelling of the Nazi judges’ trial of 1947, the commission of atrocities holds more moral significance than, say, natural disasters do, purely because the perpetrator is not in actuality a sadistic, maniacal monster who can be relegated to the precincts of inhumanity: these were real persons – ordinary human beings – who made choices, crossed lines, and continued to live their lives. To deny the humanity of these individuals would be to fail to appreciate that this can happen again, and that this can happen here – or anywhere.

It is true that an appreciation of the human frailties, predilections, and sentiments of all parties involved in an international criminal trial, including the accused, can foster leniency and compassion, as revealed by international tribunals’ decisions to grant some degree of clemency to those convicted, as a reward for genuine remorse. However, humanity is in fact open-textured; acknowledging room for the humanity of the accused is unlikely to exclusively encourage generous feelings such as charity, sympathy or understanding. For instance, viewing a Nazi defendant as a greedy, fickle man driven by avarice and a desire for luxury – rather than as an evil, criminal mastermind – may trigger even deeper feelings of revulsion and contempt. As noted in a reflection on the film Downfall (2004), while Hitler’s depiction as the banal, unexceptional loser of a war did humanize him, it ended up making him “far more grotesque and sulphurous.” Let us remember, then, that humanization need not signal apologia.

Empathy for ‘Monsters’?

Stripped of their military uniforms and official crests as they occupy the defendants’ dock in the international courtroom, erstwhile leaders of armies and governments look strangely ordinary while waiting for judgment to be pronounced against them. Staring at war crime defendant Milan Martić’s defeated face as the International Criminal Tribunal for the former Yugoslavia (ICTY) announced his thirty-five year sentence, it is difficult to feel a sense of unadulterated triumph. In this respect, perhaps another ICTY defendant’s frenzied theatrics in the courtroom – including his decision to hurl abuses at the judges – inspire less discomfort.

In late 2017, I was working under President Carmel Agius at the ICTY, which was due to render its appeals judgment in the case of Prosecutor v. Prlic et al. Consequently, I was in the premises when General Slobodan Praljak, one of the defendants in the case, committed suicide while his sentence was being pronounced. There was pandemonium at the tribunal. Amidst all the chaos, I recall that my immediate reaction – despite having spent months researching atrocities perpetrated by the military in the former Yugoslavia and considering them under the paradigm of international criminal law – was one of empathy. In particular, I thought of his family, and others who may have loved him.

Such sentiments prompt thorny introspective queries: when does stoicism in the face of the pain of the other – even where the other has committed despicable acts – become pernicious? Conversely, when does sympathy to one become apathy to the other, and compassion complicity? Even if all they do is to give these complex thoughts some space to exist, international criminal trials do accomplish something.

In his opening statement before the International Military Tribunal at the Nuremberg Trials, Justice Jackson emphasized the value of “just and measured retribution”, as distinguishable from an “unthinking cry for vengeance.” I find that the Allies’ decision to afford the Nazi defendants some semblance of fairness (at least in principle) by conducting international criminal trials not only sowed the seeds of the international criminal justice project for posterity, but also provided an official platform for such fragile, multifarious sentiments as anger, guilt, pain, sorrow, betrayal, shock, denial, fear, horror and shame to interact, bubbling to the fore in the wake of conflict, albeit in legal garb. In this respect, at least, the echoes of Nuremberg are welcome.