30 years ago today, the court began to play – for real.1
James Gow
On Tuesday 7 May 1996, the usher opened the witness entrance door to the Trial Chamber and asked how it felt to be making history… After my brief hesitation, he added ‘you’ll be in the history books now.’
In August 1994, as the universe of the International Criminal Tribunal for the former Yugoslavia was emerging in its primordial soup stage of remotely appointed judges, and seconded lawyers and investigators — largely out of sight of anyone —I returned the third of three calls from Terree Bowers, a US-government seconded lawyer to the Office of the Prosecutor (OTP). He told me that someone at the US State Department had suggested that I might be able to assist the OTP. He arranged for Minna Schrag, a Senior Trial Attorney to fly to London to meet me two days later. She persuaded me that the Tribunal was more than the gesture that many of us assumed it to be. She also seemed impressed with what I might offer. Another couple of days later, I was in The Hague and in a room with no more than 20-30 people in it — the whole workforce of the OTP, give or take, at that point. They had legal needs, in terms of the ICTY Statute; and no one knew anything about the region and events that was their focus. It seemed that, as the one-eyed in the land of the blind, I could offer them the empirical assistance they needed to have subject matter jurisdiction — to be able to lay charges at all. I was offered and took up a role as expert advisor to the OTP. In that role, I became the first ever witness at an international criminal (as opposed to military) tribunal in the Rule 61 hearing for the Prosecutor v. Dragan Nikolić — a judicial hearing to confirm prima facie evidence and get an international arrest warrant. And on that day in May 1996, I entered the Trial Chamber as the first ever witness at an international criminal trial.
When the usher suggested I would be making history, I was already feeling the weight and the nerves of the moment, my brain moved left, seemingly outside my body for a moment. I was already highly conscious of the moment, aware of myself, my shuffling slow movement, the acute lower back pain that, combined with nerves, had meant barely any sleep. I had to get to the stand and focus. With heightened awareness of every feeling and thought, I sat gingerly in nice witness chair — thank goodness it had arms to ease me down and up and down again, and on which at times to rest and take some pressure from the back. I scanned the cameras in the highly visual courtroom and made an internal note not to look at them again — though, on the first day of trial, the visual courtroom was nothing compared to that which it would become. This was embodied and visual research in action.
Embodied and visual research is a growing field — developed at King’s College London by the Visual and Embodied Research Network. The research agenda was set out by Ben Spatz in 2015 as an investigation of what bodies can do in research, linked to the arts, performance, or practice (or action).2In some regards, this might be seen as a shift from more conventional, Enlightenment imbued with empirical objectivity methods. Yet, the basic tenets of critical evaluation remain, allowing the newer approaches to research to inspire those who rely on Enlightenment objectivity. This shapes the present reflection, which clearly relates to practice and something that had a strong visual aspect. However, beyond those foci, it is an initial meditation on the key question: ’What can bodies do?’ In the following paragraphs, I sketch a reflective and initial answer to that question.
The witness in court is a vehicle for evidence. That can mean serving as a mechanism for introducing documents into evidence. Literally, these are ‘proof’, with an origin in education. But, they never speak for themselves. They have to be interpreted — and also authenticated. Each piece of evidence needs to be introduced through a witness, who can speak to the documents, confirm their authenticity and value, ideally, and offer interpretation of them, as relevant. The witness is there to assist the court, but invited by one party or the other, so the witness’s testimony and their views on documents can be challenged by the other party.
Mostly thought of as written material, documents can also be visual and audio material, or artifacts. Crucially, if we understand that witnesses are also led through questions to which they give answers, they build evidence beyond the particular items introduced through them. They give testimony in writing, but more notably, orally. That oral evidence is turned into written record through transcript — and in the case of the ICTY, audio-visual record through constant recording of proceedings. Sitting in the witness chair, the human ‘expert’ becomes a ‘person-document.’ The witness is embodied evidence. They are tools of proof, not only for what they facilitate, but, in themselves. They are documents in bodily form.
Witnesses are ‘vital’ in a dual sense: they are essential to proceedings that cannot occur without them; but they are themselves ‘vital’ — living beings. Witnessing in court is a bodily experience and also a visual phenomenon. To be a witness is to be a living document — which is not comfortable (even if not suffering significant lumbar misery). Maintaining appearance is important — how one looks and how one responds, whatever the pain in the experience. Witnesses are subject to testing and inquiry. In the courtroom, prosecution and defence trial attorneys, and also judges, question them. The process tests the witness as an embodied document. To be tested in this way is not normal — and it is not something, generally speaking, for which anyone ‘normal’ would volunteer. But, the person-document is essential to the process and to establishing justice.
Personally, being the embodiment of evidence as that first trial opened was especially uncomfortable. The first four days, Tuesday to Friday, were spent in considerable discomfort, shuffling as best I could in and out of the Trial Chamber, and between the reasonable but far from luxurious Bel Air Hotel (as it then was — it later became a far nicer part of the Marriott family) and Aegon Building, the home of the ICTY. Because of the back pain and also because of the sheer tension involved in being a witness, I had hardly any sleep in that week. I felt a kind of desperation that things were drawn out more than I thought should be necessary at times — especially when half-way through the first morning of evidence, the Presiding Judge, Gabrielle Kirk MacDonald, stopped me and asked me to go back to the 14th century and give a chronological narrative historical account. This history did not fit my view of why I was there — although the lead trial attorney Grant Neiman has insisted on taking me (against my preference, but he was in charge) — and so the court — through various bits of geography and history as background. My response to Judge MacDonald’s instruction was to ask if I could go back to the 4th century… She encouraged me to do this.
At that moment — and suffering, as noted, on the witness stand — this was exasperating, but I approached it patiently. It seemed to me to be far from the mission I had taken on, following that first trip to The Hague almost two years before. That mission was to introduce evidence that would help the OTP to help the court to establish subject matter jurisdiction for the crimes charged: under Article 2, Grave Breaches of the Geneva Conventions — the empirical existence of an international armed conflict; Article 3, the Laws and Customs of War — the existence of an armed conflict; and Article 5, Crimes Against Humanity — the existence of widespread or systematic relevant activity with a nexus to armed conflict. During the lunch break, members of the OTP trial team were incredulous at the Presiding Judge’s request, deeming her to be, perhaps, a bit dim. In retrospect — initially soon after finishing testimony, but also more and more over the years, as I observed proceedings in many other trials — Judge MacDonald, did just the right thing, in terms of helping her fellow judges, who knew nothing of ‘Yugoslav’ matters, to hear and see more, giving them greater context for the trial, as a whole.
The most frustrating moment of the week came at the end of Friday. Alphons Orie, who had conducted a steady and fairly expected line of cross-examination, pulled a stunt that left me literally unable to speak and exasperated and frustrated at the injustice of the moment. He had produced an article that I had written, the substantive content of which had been brought out during evidence-in-chief. This material was important in understanding, factually, not only important ideas and constitutional arguments as background to the armed conflict, but also — and critically — one part of the ‘International’ needed to establish international armed conflict. The title — one of the playful, quasi-literary flurries that I enjoyed in those years — was, ‘Serbian Nationalism and the Hissssing Ssssnake in the International Order: Whose Sovereignty? Which Nation?’. Orie took the mere title and asked if this did not prove that I was biased and anti-Serbian, ‘No!’ I emphatically replied. Before I could say more — and I was trying to speak, slightly gasping, trying to be allowed to speak — he turned to the bench and asked if this would be a convenient moment to end proceedings for the week (with an hour or more of the scheduled day to go). The bench took his cue and ended the session and the week. The very embodied document was escorted from the Trial Chamber, somewhat spluttering and pulsing at being denied the chance to say, ‘if you look at the relevant page, you will see that I say the Serbs had a legitimate question that had been nullified by the resort to violence.’ The impotence of the moment remains, though the strength of reaction had quelled and I have since come to see the same practice — what I continue to regard as a ‘cheap trick’ — used in many instances and understand it to be standard practice in cross-examination.
What should have been relief at getting out of the Trial Chamber was fogged by the psychology of that moment. However, it was good to get out of the courtroom and to get home. In a manner quite unimaginable for later witnesses in succeeding years, compelled to stay in the Bel Air or some other hotel without contact, I was chauffeured (as always happened to me in those days) to Schipol Airport to fly home for the weekend. At home, I was able to take not only analgesic for the back pain, but also something to help me sleep. I slept. I rested. The person-document needed restoration.
Having slept and largely shaken off the back problem, I flew back to The Hague and late on the Sunday afternoon to meet with members of the Trial team — something else that would be unthinkable later as the Tribunal developed. I came into a sharp discussion between legal cultures: Grant Nieman, Australian in the English legal tradition, believed that as a barrister, he should have no contact with the witness and no role in preparing the latter — and would be struck off for doing so; Alan Tieger (later to lead the crucial prosecutions of Serb Bosnian leaders Radovan Karadžić (political) and Ratko Mladić (military)) and other Americans, quite to the contrary, believed that the trial attorney had a duty to prepare the witness —and would be at fault and disbarred for negligence. In the middle of this, there was personal appreciation for the idea of being prepared. As it was, I could share what I’d thought over the weekend. Rested and feeling better, I had reflected on what had happened and on some other observations, I returned to The Hague knowing exactly what Orie was going to be asking on Monday morning. My sense of what to expect closely aligned with Alan Tieger’s. On Monday morning to torture a cricket analogy, having spent much of the first week defending the wicket and often playing a dead bat, I felt like I came out knocking each ball to the boundary. Orie decided to finish early again, cutting his cross-examination short — this time, because it was not working out.
The researcher-witness is inevitably a conscious witness researcher —that is, called as a witness to introduce research, the very practice of giving evidence is a form of research in itself. On one level, that research is about the courtroom and the process; on another it is about how to answer questions — and how not to do so; and on yet another level, it is about the very experience itself, the visceral and the physical, existentially aware, noting, absorbing and evaluating. This makes it about performance. That adds to the pressure on the person-document. Some witnesses might be more comfortable than others — perhaps more born to perform, or less bothered about carefulness and accuracy.
And, of course, the embodied document is also tested in some ways beyond the courtroom. This might mean the commentary of ‘dull, dull, dull,’ as Michael Scharf reportedly told audiences about my giving evidence in Prosecutor v. Tadić, regretting the cancellation of his TV contract with Court TV, as I understand it. My perspective was always that the point was not entertainment. The trial was a serious business, about the lives and deaths and suffering of victims, but importantly also the life and liberty of the accused, as I reflected in one moment where Duško Tadić and I fleetingly caught each other’s eye across the courtroom; at that moment, I reflected (as I have often since as moment of eyes meeting comes back to me) on the strangeness of two minor, footnote figures being briefly centre-stage in an historic venture.3
Or, it might mean treatment and analysis of testimony appearing as evidence about ‘narratives’ in trials at the ICTY, as I found, reading a PhD dissertation, recently. The references to Dr. Gow and to the prosecution narrative established in that first case also showed that the same narrative ran through subsequent prosecutions of Serb accused (albeit with inevitable shifts of emphasis along the way). That narrative was carried forward in written transcripts and records of witness statements. But, its origins — and everything in that scriptural record — lie in the embodied evidence of the Trial Chamber in Tadić (but, also in other cases). And the PhD mentioned above (reflecting a record of occasional references over three decades) confirmed that the court usher’s comment about being in the history books was partly right — the person-document was at least, a footnote in the history books.
Professor James Gow is Professor of International Peace and Security and co-Director of the War Crimes Research Group in the Department of War Studies at King’s College London.
- This piece is a personal reflection and a draft of what is hoped will become an article on embodied evidence. Its origin lies in exchanges with Prof. Bob Hayden, who appeared at the request of the defence in Prosecutor v. Tadić and who suggested writing a joint article on our pioneering experiences. I liked that idea and would have liked to do it; but, Bob could not wait for me to be in a position to write, and so published his own ‘after action’ report: Robert M. Hayden, ‘Minerva’s Owl Flees from Gunfire: An After Action Report from a Veteran of the Scholarly Wars about Ex-Yugoslavia’ Ethnologia Polona 44, 2023, pp. 41-54; that piece still leaves scope for that joint piece between scholars who, as Bob writes, ‘were often at odds on many issues’ (p.52) — and perhaps it might still happen in some form. ↩︎
- Ben Spatz, What a Body Can Do: Technique as Knowledge, Practice as Research, New York and London: Routledge, 2015; and ‘Embodied Research: A Methodology’, Liminalities: A Journal of Performance Studies Vol. 13, No. 2 2017, p. 5. ↩︎
- In a curiosity of this experience, a series of paintings attributed to Duško Tadić appeared at a gallery in London at some point later, one of which was called ‘Dr. Gow and the Serbs’ — which should have been the name for a band. ↩︎