In this talk Professor Allen responds to the critique of international human rights tribunals as not “real” courts (with sovereign force behind them) by looking at what these courts do as a kind of theater.
At first focusing on the theatricality of international tribunals may seem to validate the view that these courts produce only a “show” of justice as opposed to the real justice of domestic courts. In her view, however, the theatrical nature of international rights adjudication has two different aspects, both of which are always present. No doubt, there is always the problem of show trials. The spectacular aspect of adjudicative theater creates an artificial illusion of legal constraint and legitimacy behind which governments may remain free to continue violating international legal norms. At the same time, however, adjudication’s theatrical nature is part of what gives it the capacity to shape the way we think and feel and ultimately behave – and thus potentially to strengthen adherence to rights and resistance to their violation.
This double effect of formal rights adjudication – its simultaneous capacity to both hide and reshape the social reality from which its forms diverge – is not limited to international courts. All theater has both a reality obscuring and a reality constructing capacity. And all law courts have a significant theatrical aspect. The fact that international human rights courts lack a direct line to sovereign force does not make them uniquely theatrical, but it does make their theatrical qualities particularly important. It also makes them a good place to isolate the theatrical qualities of adjudication.
The talk concludes by contrasting the audience effects of two public presentations describing governments’ use of lethal force to make individuals disappear. One is an example of international human rights adjudication: a video of a public hearing at the Inter American Court of Human Rights in the case of Masacres de El Mozote y Lugares Aledanos vs El Salvador. The other is the media coverage of the Obama Administration’s killing of Osama Bin Laden. One might expect that President Obama’s straightforward acknowledgment that Bin Laden was targeted for death and violently dispatched in retaliation for his previous aggression against U.S. citizens would at least have the advantage of transparency. This account is surely free of any illusory submission to an adjudicated rule of law.
But Professor Allen’s analysis suggests that the U.S. government’s presentation of the Bin Laden killing was as much a public performance as a formal sitting of the Inter-American Court. The Administration’s tweets, press releases and photographs have a different but equally developed aesthetic. In this light the contrast is not between the reality of extralegal national force and a show of governmental submission to international law. Rather the question is how the styles of presentation vary and how those variations affect the production of rights. Perhaps paradoxically, the deliberate artificiality and heightened formality of the Inter-American Court’s public hearing may be less likely to cover up the realities of injustice and partial justice than the U.S. Government’s apparently more straightforward informal account of the Bin Laden killing.
Convenor: Associate Professor Peter Rush
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