Should Videos of Trees Have Standing

An Inquiry into the Legal Rites of Unnatural Objects at the ICTY

Arguments, or the rhetorical construction of truth about historical events, have always lain at the heart of legal trials. In this sense, it is not bare facts in themselves but how they can be assembled into a coherent and convincing narrative that provides the foundation for law’s findings on the truth. However, through the course of the twentieth century, the materials upon which arguments could be built have radically altered. This chapter sets out to explore mediated evidence, the role of scientific expertise, and the ways in which they combine to create new legal assemblages. More specifically, it considers how visual media, especially videos and photographs, are increasingly engaged in the construction of the arguments that legal practitioners deploy and that courts are called upon to adjudicate. As visual images proliferate in courts, visual rhetoric and visual argumentation unfold alongside the traditional rhetoric of words alone (Sherwin 2007). This broadening of the rhetorical spectrum within legal practice calls for new forms of expertise and eloquence based on an expanded capacity to decode, in order to meaningfully examine, visual evidence and visual advocacy. 

The title of this chapter is both an invocation of and homage to a now landmark legal essay written in 1972: Christopher D. Stone’s Should Trees Have Standing? – Towards Legal Rights for Natural Objects (Stone 1972). In adapting Stone’s title and leading question, the chapter aims to unfold some of the ways in which the procedural arrangements of international criminal courts such as the International Tribunal for the former Yugoslavia (ICTY) manage, and are challenged by, the non-human witnesses or “unnatural objects” that enter into its vast legal machinery. Despite the primacy of human testimony within the majority of the war crimes allegations prosecuted by the Tribunal, in a number of instances, non-human witnesses and media forensics have played a significant role in the argument and resolution of cases. Using the trial of Slavko Dokmanović as my primary case study along with supplementary references to other ICTY prosecutions, this chapter considers the role of non-human witnesses in the production of contemporary legal truths. 

A Cultural History of Law in the Modern Age edited bDanielle Celermajer (Professor Department of Sociology and Social Policy, University of Sydney) & Richard Sherwin (Wallace Stevens Professor of Law, NYU), Bloomsbury Publishing, London. This collection seeks to illuminate through representative stories of conflict larger cultural and legal patterns or events during the 20th century. Each conflict, while singular in its particularity, is suggestive of a meta-story: reflecting larger trends in the distribution or exercise of state power, wealth, and social opportunity or the creation or exploitation of vulnerable populations in conjunction with the operation (or breakdown) of the rule of law.

Tree branches

List of contributors:

Chapter 1, Justice: Desmond Manderson, Future Fellow, Australian National University College of Law and ANU College of Arts and Social Sciences.

Chapter 2, Constitution: Craig Elliott, Senior Anthropologist, Central Land Council, Northern Territory, Australia, has held teaching positions at Australian National University and University of Canberra.

Chapter 3, Codes/norms: James Parker, Director: Law, Sound and the International at the Institute for International Law and the Humanities, University of Melbourne Law School.

Chapter 4, Agreements: Diana Taylor, University Professor, Performance Studies and Spanish, Founding Director, Hemispheric Institute of Performance and Politics, New York University.

Chapter 5, Arguments/rhetoric: Susan Schuppli, Visual artist, Acting Director & Senior Lecturuer, Centre for Research Architecture, Goldsmiths, University of London.

Chapter 6, Property and possession: Alison Young, Professor in the Faculty of Arts, School of Social and Political Sciences, University of Melbourne.

Chapter 7, Wrongs: Joshua Oppenheimer, Oscar-nominated American film director based in Copenhagen, Denmark (‘The Act of Killing’ [2012]; ‘The Look of Silence [2014]).

Chapter 8, The Legal Profession: Christian Delage, Professor at the University Paris 8, Sciences Po Paris, the Ecole des Hautes Etudes en Sciences Sociales, and Visiting Professor of Law, Cardozo Law School; filmmaker