I. Defining a Coherent, Shared Narrative

Under Article 75 of the Rome Statute, the International Criminal Court is empowered to demand reparations from criminal violators to assist victims with rebuilding after mass atrocities and to enable victims to reintegrate into society.2 The Court has not yet determined what form reparations will take; however, the Court appears to have broad power to demand various methods which serve “the restitution, compensation and rehabilitation” of victims.3 Monuments and museums can be created to correct the wrongs committed by a violator and can be an effective tool to return dignity to those who have been harmed by mass atrocities. Moreover, monuments and museums can end the cycle of blame for crimes therefore preventing future leaders from using past crimes to justify future aggression. Monuments and museums can promote the restitution, compensation and rehabilitation of victims, therefore, the Court is empowered to create these sites.4

It is important to determine under what circumstances, then, monuments and museums can promote the restitution, compensation and rehabilitation of victims. If monuments and museums are to be effective, the parties to a conflict must come to a coherent, shared understanding of the facts being memorialized. For a narrative to have value, it must be coherent; a narrative which misstates facts or contains bias will be overcome by anyone who seeks to challenge it. Moreover, the narrative must be shared by the parties to a conflict; a one-sided narrative will be ignored by other parties to the crimes. To determine if a shared narrative has emerged, the Court should look to the majority views within the parties to a conflict to determine if there is agreement as to the occurrence of crimes and the roles of the parties in those crimes. While there will be individuals who deny or disbelieve the facts surrounding crimes, the Court must look to the majority of opinion to bind the greatest number of members within each group. Once parties have agreed upon a coherent, shared narrative, the Court may order the creation of monuments and museums to memorialize this narrative.

It is important to determine what is meant by a coherent narrative. A coherent narrative is a narrative which is factually accurate and includes all parties to a conflict. There is little value in a narrative which is agreeable to all parties, but which is clearly contradicted by fact or a narrative which is biased toward one party as future generations will not feel bound by that narrative. As an example, it would be misleading to spread blame for aggression across all groups in a conflict if one group appears to have been the primary aggressor. When future generations can point to inaccuracy in the narrative, they are free to reinterpret the role of their group in past crimes—and it is likely that they will place blame for past crimes on other groups. To ensure that the narrative which monuments and museums seek to communicate is lasting, it is important that the narrative be coherent. Lastly, one must note that a misleading narrative which mischaracterizes members of a certain group is unlikely to become a shared narrative.

A shared narrative is a narrative accepted by the majority of members within the parties to a conflict. The parties must agree to their role in the conflict and recognize the major factual events of the crimes which occurred. A shared narrative may be as simple as an acceptance of responsibility for crimes which occurred and statements acknowledging the horrors of those acts. Moreover, instances where parties cooperate with the Court as well as official statements acknowledging crimes can be seen as evidence of the emergence of a shared narrative.5 While it is likely that there will be individuals who deny or disbelieve the narrative presented by the majority within the parties to a conflict, the Court can rely on the narrative shared by the majority within the parties to a conflict to demonstrate a sufficient shared narrative. Lastly, by meeting with leaders within the parties to a conflict or even through sociological study of the region, the Court can determine if a shared narrative has emerged.

Although the Court cannot impose a narrative on the parties, it can have an active role in fostering the emergence of a narrative within a community. The Court can use the significant amount of time during which it investigates and prosecutes crimes to raise awareness within the affected community—as has been done by the International Criminal Tribunal for the Former Yugoslavia. Through the distribution of literature, a presence in the media and the hosting of conferences, the Court can inform parties to a conflict and therefore encourage the emergence of a shared narrative.

II. Monuments and Museums as Reparations

Only a coherent, shared narrative can end the cycle of blame which might be used to fuel future conflicts. The cycle of blame refers to the tendency of closely situated groups to pass blame for different social, economic and political ills onto members of another group. Oftentimes, differing groups who have lived in close proximity for generations have a narrative of past wrongs which presents the other groups as aggressors. For example, in the former Yugoslavia, parties on all sides of the conflict maintained a narrative of victimization by the other parties and justified recent crimes as retribution for past crimes by other parties. Such a cycle is dangerous because it encourages aggression masked as retribution and presents a threat to the stability of a region. It is important to memorialize the coherent, shared narrative of the parties to mass crimes in the form of monuments and museums to ensure that future generations can witness those findings. Once the parties to mass crimes have formed a coherent, shared narrative, the Court can use monuments and museums to combat the cycle of blame for past crimes wherein past crimes are used to justify future aggression by preserving the facts for future generations against the efforts of leaders seeking to use conflict to enhance their power.

Monuments and museums also bring restorative justice to victims and may be used as a form of reparations which restores the status of victims after mass atrocities. Although a monetary settlement also serves to restore victims, monuments and museums can publicly communicate a shared narrative to a whole community about those who were lost. Victims of mass crimes suffer a loss of status in their community; criminal violators seek to minimize the worth of victims. Monuments and museums might be seen as a way for victims to assert their worth and to restore their status as valuable members of a community. Moreover, victims of mass crimes have been found to express satisfaction from processes which offer little monetary compensation if these processes show a respect for the human losses which resulted from the crimes.6 As such, victims of mass crimes may in some circumstances prefer lesser monetary compensation when placed alongside monuments and museums which recognize their worth rather than the greatest settlement. Money compensation may fall short of the desires of victims of mass atrocities and monuments and museums may be necessary to make victims feel whole.

Monuments and museums also enable the Court to demand respect for the many victims of crimes who cannot be identified. Whereas a money judgment requires a finding by the ICC against a specific defendant in relation to a specific victim, the creation of monuments and museums can recognize the loss of those who cannot be identified or who could not bring their attacker before the ICC. The ICC will focus its efforts on those it finds bear the greatest responsibility for mass crimes therefore the majority of mid—and low-level violators will not be tried before the Court. Moreover, the Court might find it difficult to gain custody over powerful violators or those who can evade arrest. Yet the creation of monuments brings recognition even to those who do see their attacker tried before the ICC or who cannot collect from a judgment against an indigent violator. Monuments and museums also avoid the possibility in which certain victims receive money judgments where as others might be left with nothing. Therefore, monuments and museums offer relief to victims beyond what could be offered simply by money settlements to those who see their violator tried before the ICC.

It is important to note that most scholars agree that there will be a limited—and in many cases insufficient—amount of money available by which the ICC may pursue reparations for victims. On the one hand, some scholars see money held by the criminal violator as assets which should be seized to compensate victims after a finding of guilt by the Court.7 However, few criminal violators have funds available to them which could compensate numerous victims for crimes which occurred over the span of years, and which caused unimaginable destruction. On the other hand, others believe that the Trust Fund for Victims might be used to compensate victims using monies donated to the Fund separate from a finding of guilt by the Court.8 Unfortunately, it is similarly unlikely that the Fund will receive enough in donations to restore entire communities. Regardless of which source the ICC selects to fund victims’ reparations, one can assume that the amount will be limited; therefore, the Court must seek maximal effect with the funding it has available to it.

The creation of monuments and museums does come at a cost, however, and the cost of creating and preserving these sites may outweigh their benefit in certain instances. Where the ICC finds that the immediate needs are greater, such as in a famine or where a community is on the brink of extinction, there is likely no place for monuments or museums in the community. It is most likely that monuments and museums will become relevant only where relations between groups have stabilized and victims are moving forward with their lives; only then can a coherent, shared narrative emerge. However, it is important to look to the successful reparations scheme in South Africa which stressed “material reconstruction and the restoration of dignity” to take those in a desperate condition to greater possibilities.9 Even in instances where there was great physical need, there is also a need to restore dignity of victims to restore their status and enable victims to begin to participate equally in their community.

III. Instances in which Monument and Museums Discourage Reconciliation

The ICC must not demand monuments and museums be created in instances where a coherent, shared narrative does not exist. In such instances, the Court may in fact be creating an obstacle to peace by presenting a narrative which parties are not ready to accept. For example, creating a monument to victims of political violence might be rejected by those who see those victims as dangerous rebels or even as aggressors. Moreover, in instances where all parties feel victimized, to create a monument to some victims might appear to slight others who also feel victimized by either past or present crimes. In such instances, monuments or museums could become a rallying point for those who interpret the sites as blaming the real victim of mass crimes. Such could restart the cycle of distrust between groups and ultimately lead to greater violence. Moreover, to maintain the integrity of the Court, it must not be seen as favoring one party against another or seeking to impose its interpretation of facts on those affected by mass crimes. Recognizing the suffering of victims will be futile if it begins a new cycle of conflict within a community.

Because the ICC must not insert itself into a situation where a coherent, shared narrative does not yet exist, the Court must be cautious and move slowly. In most instances, it will take years before a coherent, shared narrative emerges after mass crimes. In such instances, the long timeframe between the initial investigation and final judgment might enable the Court to observe the relations between groups before making its recommendation. During this time, the Court might also rely on scholars to identify the sentiments of those in the region. Critics will argue that the deliberative movements of the Court could detract from its credibility and leave victims without reparations for too long. However, it is important to note that other avenues exist which could begin the process of making victims whole. For example, the Victims Trust Fund could proceed to deliver reparations before cases have been determined—monuments and museums are not the exclusive remedy for victims.10 Moreover, it will take time to determine the facts of alleged crimes and the Court could exacerbate tensions by rushing to create monuments and museums before first settling the facts necessary to create a coherent narrative. Therefore, the ICC can successfully use its caseload and protracted schedule to ensure that a coherent, shared narrative exists before it proceeds with the creation of monuments and museums.

Another criticism of the use of monuments and museums might suggest that such sites label one party to a conflict the “criminal” group and another party the “victim” group. Some might argue that by recognizing crimes against one group, another group is inherently depicted as the aggressor. However, this criticism reinforces the importance for the Court to wait for a shared narrative to emerge between the parties. Moreover, such a depiction likely oversimplifies the message of monuments and museums; rather than labeling one party, sites might seek to present the human tragedy to viewers and to restore victims to equal status within their community. Lastly, if the monument or museum reinforces an agreed upon narrative it will be a lasting statement of the understanding of the parties to the conflict. In instances where parties have accepted responsibility for their role in crimes and begun to make amends, it is unlikely that a group would feel slighted by monuments or museums which echo their own understanding.

Conclusion

The ICC should use its authority to demand reparations to create monuments and museums which will reinforce the coherent, shared narrative of events created by parties after mass crimes. After crimes have occurred, a shared narrative can break the cycle of blame between parties and therefore make a reemergence of conflict less likely. Moreover, monuments and museums meet the needs of victims who seek to restore their status within a community. Museums and monuments can satisfy the needs of victims who do not see those who harmed them tried before the Court and those victims who cannot be identified. However, the ICC must not demand the creation of monument and museums before a shared narrative has emerged as individuals might feel blamed for crimes for which they do not feel responsible. If the ICC is seen as forcing blame upon a party, the creation of monuments and museums will likely be in vain and may even serve to heighten the divide within a community. Therefore, the Court should demand the creation of monuments and museums only where a coherent, shared understanding of the crimes has emerged between the parties.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   I do not argue that monuments and museums should be the sole form of reparations which the ICC should seek; the creation of monuments and museums is simply a unique remedy to be pursued alongside other remedies such as monetary compensation and rehabilitation. ↩

2. 2.

   Rome Statute of the International Criminal Court, art. 75(2), Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute]. ↩

3. 3.

   Id. ↩

4. 4.

   See Frédéric Mégret, Of Shrines, Memorials and Museums: Using the International Criminal Court’s Victims Reparations and Assistance Regime to Promote Transitional Justice, 16 Buff. Hum. Rts. L. Rev. 1, 4 (2010). Scholars have suggested different ways to pay for “sites of conscience” such as museums and monuments; some suggest relying on funds seized from violators while others suggest the Trust Fund for Victims. For the purposes of this paper, the source of the funding is not important—however, it is important to note that regardless of the source, funding will likely be limited. ↩

5. 5.

   The emergence of a shared narrative will likely take time. It is possible that this process will take many years, however, it may be years before alleged crimes are presented before the Court. ↩

6. 6.

   Thomas M. Antkowiak, An Emerging Mandate for International Courts: Victim-Centered Remedies and Restorative Justice, 47 Stan. J. Int’l L. 279, 285 (2011). ↩

7. 7.

   Mégret, supra note 4. ↩

8. 8.

   Id. ↩

9. 9.

   Carlton Waterhouse, The Good, the Bad, and the Ugly: Moral Agency and the Role of Victims in Reparations Programs, 31 U. Pa. J. Int’l L. 257, 283 (2009). ↩

10. 10.

    Mégret, supra note 4. ↩