Tracing inclusions and exclusions in international criminal law's historical linearity via law and literature

Abstract

This article analyses the linear historical trajectory of international criminal law. This discipline is traditionally viewed as a linear axis of main historical events: the 1945-1946 Nuremberg Trials, the creation of the two ad-hoc tribunals, the ICTY and the ICTR, in 1993 and 1994, respectively, and the establishment of the ICC in 1998 - with the subsequent work they produced. Focusing solely on this linearity of pivotal events excludes a variety of noteworthy objects of inquiry: underexplored trials, such as the Moscow Show Trials; and how this historical narrative obsessing over an 'anti-impunity goal 'ignores, distracts from, or even facilitates colonial and neocolonial oppression' (Nesiah, 2021). Additionally, this linear history overincludes a seating of hegemonic histories and an account of 'victors' faux official history' (Simpson, 2014). The grand, politicised events constituting the linear history also obscure other stories about ICL, primarily those closer to ordinary people. Delving into the latter, this article uses the book Waiting for Hitler as a literary artifact to disrupt ICL's mainstream history via personal accounts of people living in 1930s Britain under the threat of German invasion. A methodology of law and literature is therefore deployed for the disrupting exercise. This enables us to understand the discipline of ICL better than by holding tight onto its linear narrative.