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42 George Washington International Law Review 279 (2011)


Much of international criminal law's attraction rests on the 'authoritative narrative theory '--the claim that legal judgment creates incontestable narratives that serve as the foundation, or at least a baseline, for post-conflict reconciliation. So what happens when there is no judgment? This is the situation that confronted the International Criminal Tribunal for the Former Yugoslavia when its most prominent defendant, Slobodan Milosevic, died. By turning scholarship's attention towards a terminated trial, this Article develops an indirect but powerful challenge to one of the dominant views about what international criminal law is for, with interdisciplinary implications for human rights, international relations, diplomacy, and political science.

What can be salvaged from the terminated Milosevic trial? One candidate for substitute judgment was the Decision on the Motion for Acquittal brought under the Tribunal's Rule 98bis. Halfway through the trial, when the prosecution rested, the Trial Chamber had to decide whether there was a case to answer. The Chamber declared that the trial should go forward, though what the judges actually decided was necessarily ambiguous: The prosecution had presented enough evidence that a court could find Milosevic guilty-but they didn't say that this court would.

Since there never was a final verdict, the decision has become a site of contestation and ambiguous value. This Article examines how the prosecution, defense, chambers, and outsiders deployed the Rule 98bis Decision to tell a story about Milosevic's guilt or innocence and craft a final judgment in the eyes of the world, if not in the law. The doctrinal constraints on these efforts suggest real limits on international criminal law's ability to craft authoritative and transformative narratives through any trial process short of final judgment. By forensically exploring these limits, the Article also indicates parameters for an even more consequential investigation into whether the strong version of the authoritative narrative theory works under any circumstances.