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UI law professor looks at 'story' of mass atrocity trials

IOWA CITY -- Public trials of government officials accused of mass atrocities can be quite effective in helping countries heal their psychic wounds, University of Iowa Law Professor Mark Osiel argues in a new book that has attracted attention from judges currently investigating war crimes. "Mass Atrocity, Collective Memory, and the Law" (Transaction Publishers, 1997) lays out Osiel's arguments that the law -- and its manifestation in public trials -- can help societies make sense of their with traumatic pasts.

Prosecutors and judges in such cases have to recognize that trials are forms of storytelling, a function that has long been recognized by the media and the public, but is not often tapped into by the legal system.

"There's been a view that the criminal law and its liberal underpinnings is ill-suited to this kind of grand scale, national storytelling," Osiel says. "I'm trying to refute that view.

"I'm saying that consistent with the law's commitment to liberalism -- mutual respect, civil dissension, individual rights -- a well-staged prosecution can still be very effective in influencing the public's collective memory of these horrific events," he says. "It can be fair to the defendants and make a good story at the same time."

The book, planned as the first of three, has drawn attention from judges investigating war crimes in the former Yugoslavia and in the former East Germany. Members of South Africa's Truth and Reconciliation Board, investigating human right violations committed during the apartheid era, have also been in contact with Osiel.

Osiel, who holds a doctorate in sociology as well as J.D. from Harvard, joined the Iowa law college faculty in 1992. He regularly teaches a course on military law, as well as courses on legal ethics and remedies.

Osiel first began pondering the storytelling nature of the law during research trips to Argentina in the 1985 to study the trials of deposed military leaders.

He ended up as a quasi-advisor to the prosecution in a much larger drama.

He realized that the story that would play out in court had the potential to affect not only the fate of the former military rulers, but also how Argentina would recover as a nation and a culture.

"The experience in Argentina made me aware that there are decisions being made in the prosecution that were quite self-consciously theatrical, about how different approaches would play with the public at large," Osiel says.

"It became clear to me that the law in cases of mass atrocity isn't just aimed at prosecution or deterrence, but also at shaping public memory of mutually traumatic events."

"If the story is told effectively by prosecutors in courts, then the story will resonate with public concerns," Osiel says.

Osiel acknowledges that there are risks in asking the law to perform a storytelling function. He identifies six specific types of potential pitfalls.

They include ignoring defendants' rights in pursuit of social cohesion; distorting historical understanding; misreading the precedent set by past incidents of mass atrocity; requiring too much repentance from nations; and failing to be open about the process of creating collective memory.

Although he describes himself as a "problem-finder" and "problem-clarifier," rather than a "problem-solver," Osiel argues that none of these potential drawbacks is insurmountable.

"The upshot of this analysis is that judges sometimes should admit evidence that would not otherwise be admissible because it's necessary to situate a defendant's conduct in a larger historical context which may be exculpatory or maybe more inculpatory," he says.

For example, in Argentina, the accused generals wanted to introduce evidence that would provide some context to their actions. In traditional readings, that evidence, such as the public's support for them, would be barred as irrelevant to the actions the generals were responsible for. Osiel argues that, sometimes, such evidence should be allowed.

"If the story that the court ultimately tells is going to be compelling -- persuasive to the public at large -- the court often can not stick to rigid rules of evidentiary admissibility, because those will often exclude considerations and facts that the public at-large considers highly relevant in allocating responsibility between the people in the dock and their accusers."

Prosecutors and judges already face an array of choices that affect the political and social story of a trial. Prosecutors have options and choices about who to indict, what offenses to charge defendants with, which procedural mechanisms to use and which ones not to use.

"Those choices are sometimes made on the basis, roughly speaking, of political calculations about how the story will be interpreted by different segments of the public," Osiel says.

If judges, prosecutors, defense attorneys, witnesses, the media, and the public recognize that telling a national story is part of the goal of a trial of mass atrocity, society will gain in the long-run, Osiel argues.

But complete agreement on the story is not necessary. A little disagreement may actually be better than none.

For example, in eastern Europe, arguments continue to be held at kitchen tables, in bars, restaurants, on street corners about the recent past.

"I think it's healthy for a society to have that kind of discussion," Osiel says. "The trials kind of jump-start or kickstart a larger discussion in society at-large that is salubrious. Even if people don't ultimately agree with one another, they've engaged one another more honestly."

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Mark Osiel, professor of law at the University of Iowa, can be reached at
(319) 335-6553.

Scott Hauser
Associate Editor
University News Services
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