Histories Written by International Criminal Courts and Tribunals: Developing a Responsible History Framework [1st ed.] 9789462654266, 9789462654273

Citation preview

International Criminal Justice Series

Volume 26

Histories Written by International Criminal Courts and Tribunals Developing a Responsible History Framework

Aldo Zammit Borda

International Criminal Justice Series Volume 26

Series Editors Gerhard Werle, Berlin, Germany Moritz Vormbaum, Münster, Germany

Series Information The International Criminal Justice Series aims to create a platform for publications covering the entire field of international criminal justice. It, therefore, deals with issues relating, among others, to: – – – –

the work of international criminal courts and tribunals; transitional justice approaches in different countries; international anti-corruption and anti-money laundering initiatives; the history of international criminal law.

It is peer-reviewed and seeks to publish high-quality works emanating from excellent scholars. Editorial Office Prof. Dr. Gerhard Werle Humboldt-Universität zu Berlin Faculty of Law Unter den Linden 6, 10099 Berlin, Germany [email protected] [email protected]

More information about this series at http://www.springer.com/series/13470

Aldo Zammit Borda

Histories Written by International Criminal Courts and Tribunals Developing a Responsible History Framework

123

Aldo Zammit Borda Centre for Access to Justice and Inclusion Anglia Ruskin University Cambridge, UK

ISSN 2352-6718 ISSN 2352-6726 (electronic) International Criminal Justice Series ISBN 978-94-6265-426-6 ISBN 978-94-6265-427-3 (eBook) https://doi.org/10.1007/978-94-6265-427-3 Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the author 2021 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This T.M.C. ASSER PRESS imprint is published by the registered company Springer-Verlag GmbH, DE part of Springer Nature The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

To Ash. Thanks for your patience, support and good humour…

Foreword

‘Off with his head’ Perfect for resolution of the war crimes trials of William Wallace (1305) and King Charles 1st (1649), assuming either trial was a war crimes trial: Retribution: maximum, total, complete; Deterrence: Total for the man decapitated; possibly quite strong for his followers; Rehabilitation: Not required. Each event would have featured in relevant histories: of the independence of Scotland or of events leading to Oliver Cromwell’s republican commonwealth. But did the trials—indictment read to Wallace before he was so cruelly deconstructed; some 30 witnesses for Charles—add much to the overall history of the two conflicts themselves? Perhaps not. Happening between these two beheadings was another of significance. Sir Peter von Hagenbach beheaded in Breisach in 1474 for atrocities committed when serving the Duke of Burgundy is famously, if controversially, relied on as the sentence imposed by the first international war crimes trial.1 Von Hagenbach was tried by 28 judges from regional cities for murder and rape, crimes counted by some as early forms of ‘crimes against humanity’. Von Hagenbach was tortured into confession and six witnesses were called against him. The trial and beheading led to revenge by the Duke of Burgundy, von Hagenbach’s master; but the trial record is not itself often, or ever, relied on for an account of anything except the particular acts of von Hagenbach himself.

Perception as history’s first ‘international war crimes trial’ started with a Manchester Guardian op-ed by English jurist Georg Schwarzenberger, published while the International Military Tribunal (IMT) at Nuremberg was deciding the fate of major Nazi war criminals. The op-ed argued that von Hagenbach’s trial acted as precedent for many of the legal positions taken by the IMT prosecution at Nuremberg, including charging crimes against humanity and rejecting the defence of superior orders. See Oxford Scholarship Online. https://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199671144.001.0001/acprof9780199671144-chapter-2.

1

vii

viii

Foreword

But maybe it was not just in the fourteenth, fifteenth or seventeenth centuries that trials or atrocities are no more than they seem and often seeming less like proper trials and more like political events. Passing over the few (Germans only) tried for fairly minor offences at Leipzig after WWI—the Kaiser himself was given sanctuary in the Netherlands—what of the Nuremberg trials that followed WWII? Critically tagged as ‘victor’s justice’ they were efficient with short sharp drops to neck break or strangulation for ten of those tried in the first famous leadership trial: 11 were sentenced to death—Göring cheated the hangman. Two statements of the value of war crimes trials were delivered but possibly in chronologically reverse order of relevance. Hartley Shawcross, British prosecutor at Nuremberg said: This tribunal will provide a contemporaneous touchstone and authoritative and impartial record to which future historians may turn for truth and future politicians for warning.

Hannah Arendt on the Eichmann trial—about which more below—said: The purpose of the trial is to render justice and nothing else; even the noblest of ulterior purposes can only distract from the law’s main business: to weigh the charges brought against the accused, to render judgement and to mete out punishment.

The Nuremberg trials after WWII were short and efficient but discredited because no thought was given to criminality of the other side—our side if from the UK or US. There was a great deal of evidence but has the evidence from those trials featured much in the works of historians explaining the context in which the crimes were committed? Not too much. Evidence was mostly focused on the criminal acts of individuals. Arendt’s approach seems more applicable than Shawcross’s. The privilege of writing this foreword to Aldo Zammit Borda’s book on Histories Written by International Criminal Courts and Tribunals: Developing a Responsible History Framework allows me, as a sometime bystander and then practitioner in various courts, not only to suggest that there may have been limited value for historians in the record of the trials reviewed so far, but to go further. Between the Nuremberg and Tokyo trials, which only lasted a few years altogether, and 1993 when the two ad hoc tribunals for Rwanda and the Former Yugoslavia were established, what was going on in the world of international criminal trials? Not much. Let me explain without reference to scholarly authority. In the period after the war, parents in Britain did not spend time talking to their children about the war—at least mine did not and neither did my aunts and uncles, the parents of friends, schoolteachers. When I got to university—only about 20 years after the end of the war—it was rarely mentioned. The 1948 Declaration of Human Rights did not feature in either the philosophy or politics (not law) that I studied. The Genocide Convention was unheard of. We were concerned with rights and freedoms, but not the freedom from war; that was over. Sexual freedom in the 1960s was more of a preoccupation along with some interest in social diversity and gender inequality. In the background, it is true, efforts were being made—starting immediately after WWII—to create a permanent international court.

Foreword

ix

There were resolutions in the General Assembly of the United Nations as early as 1950 on the subject. Draft statutes were produced and much work was done between then and the time when the two ad hoc courts were created;2 but no one outside a narrow circle of lawyers and politicians knew anything about them. They were irrelevant to the rest of us. And this is easy to check. Google, I am quite sure, is never turned to by serious academics but it can be the researcher’s friend, if carefully used. Interrogate it about UK films, year by year starting immediately after the war; ask: ‘UK films 1946’ ‘UK films 1947’ and so on. Or ask Google about ‘first Holocaust films’. Imprecise or incomplete though the answers may be, they accord with personal memory and are, in any event, overwhelming. There was little public appetite for films about the war or the Holocaust. A few war films—derring-do more than reflections of history—started in about 1955. Nothing about the Holocaust. Plenty of ‘Carry On’ films, humour of the most silly kind. That is who we were in the UK and there is little point in deceiving ourselves. We were not bothered.3 We had by some means—and for some unexplained reason—been inured to the agony we should have felt every day in contemplation of what happened to the Jews. Shoah, the 9½ hour film on the Holocaust made over nine years by Claude Lanzmann, came out in 1985. It was almost impossible to watch or not to watch. It showed in a way that could not be resisted quite how evil had been the treatment of Jews by the Nazis; it showed how I—perhaps we—had been content to put to the back of our minds what as citizens we should have had right there at the front. And it was not the case of our not being on notice. Adolf Eichmann was tried in Jerusalem in 1961–2 and hanged for crimes connected to the Holocaust. That trial—at least for its Prosecutor Hausner—was purposefully leaving a historical trail and was not focused only on Eichmann’s acts. Hausner’s opening speech began, It is not an individual that is in the dock at this historic trial and not the Nazi regime alone, but anti-Semitism throughout history.

Of the two statements above, for this trial Shawcross’s statement would seem a better description of the prosecution’s purpose and Arendt’s—spoken in assessment of her critical appraisal of the trial itself—not. Eichmann’s trial did stimulate some interest in the Holocaust outside Israel. But not that much. And so, how else did we deal with the horrors of being human? Certainly not by thinking the law could help. Consider the Vietnam War that lasted over two decades from 1955 to 1975. The US committed obvious war crimes—as did the Vietcong—and the war drew mass protests around world of intensity and great anger. But what did we want, 2

Triffterer (ed.) (1999) The Rome Statute of the International Criminal Court (Nomos), p 19. Contrast the former Yugoslavia 15/20/25 years after the ends of the conflicts. In the region, there is much—almost endless—talk of the wars. Films and books are often—may it be nearly always? —rooted in the wars. They have not been forgotten, and at the time of writing, it is hard to conceive of when they will be. 3

x

Foreword

those who protested? To stop the war, to have the troops withdrawn. Ask Google, again, to help with ‘Vietnam War protests’ and then press the ‘images’ icon. There are one or two placards saying Presidents Johnson and Nixon were war criminals but by far the majority—page after page of the images of the protests—were aimed at getting out of the war, of bringing troops home. No mention of having people tried, not least I suppose because there was nowhere to try them and the idea had not taken root. The citizens’ public interest and concern was political not judicial. And no US leader was ever even close to a criminal dock. It is true that Lord Bertrand Russell, the British philosopher, together with Jean Paul Sartre, the French philosopher, and others, established in 1966 a ‘People’s Tribunal’ to consider whether war crimes were committed by the US in the Vietnam War. And it is true that in an opening statement, Sartre said: It would have sufficed that the body created for the judgement of the Nazis had continued after its original task, or that the United Nations, considering all the consequences of what had just been achieved, would, by a vote of the General Assembly, have consolidated it into a permanent tribunal, empowered to investigate and to judge all accusations of war crimes […].

But that had not happened. Meanwhile some protestors self-immolated as the only way to achieve change in US policy—one Quaker famously killing himself in his personal fire of desperation outside Defense Secretary Robert McNamara’s window—but there was no cry for a court to hear evidence of criminality; neither during the war nor when—finally—it ended in 1975. In 1975, the ad hoc tribunals for Rwanda and Yugoslavia were still about 18 years away. Why may this be relevant? Because the real law is the law as comprehended by the citizen, not by what is going on in the minds of specialist lawyers and academics; it is what is in the minds of the people and they cared nothing for war crimes courts until perhaps, for whatever reasons good or not so good, the Rwanda and Yugoslav Tribunals, and later the so-called permanent International Criminal Court, came into being. It was the work, encouragement, pressure of very many committed people, such as Cherif Bassiouni and Antonio Cassese that made these courts. Ben Ferencz, another long-term supporter, had prosecuted the Einsatzgruppen trial that followed the leadership trial in Nuremberg; he celebrated his hundredth birthday in 2020 still arguing for ‘Law Not War’. Without him—and the many other others like him who saw the need not to leave the Nuremberg trials as isolated events—we might never have had any international criminal courts. But for about 40 years between 1950 and 1993, the general public thought little or nothing of them.

Foreword

xi

Lawyers, historians and academics of all sorts enjoy finding connections, especially connections of modern events to things happening in earlier times.4 But given how the non-expert citizen has truly wanted peace where there is war it may not be helpful to suggest, however lightly, that what has been wanted was courts of law in place of fields of war. It may be better to consider what has happened in international courts of law since 1993 as new work by new people. Good work at that. And good to keep in mind these few things: leading prosecutors Hartley Shawcross and Robert Jackson had both experienced something (at desks) of the war criminally pursued by those they prosecuted; the courtroom itself had the presence of men still in the uniforms of all sides of the conflict; Ben Ferencz charged—rightly I have absolutely no doubt —with prosecuting the Einsatzgruppen trial has recorded the following: As soon as I received my law degree I became a private in the supply room of an anti-aircraft battalion being trained for the invasion of France. […] After almost three years of military service, I was honorably discharged as a Sergeant. […] [As prosecuting lawyer at the military tribunal] Witnesses were ordered to write out a complete description of the criminal event—under penalty of being shot. Confessions from accused were obtained by similar persuasions. I entered several concentration camps, such as Buchenwald and Mauthausen strewn with putrid bodies of the dead and dying. […] Amid the overwhelming stench of burning skeletons, I was exposed to the filth of dysentery, diarrhea, typhus and other diseases that racked the emaciated bodies of the liberated inmates. I uncovered many mass graves as I followed trails of starving prisoners who had been whipped through the woods by fleeing guards—only to have their brains blown out when they could no longer go on. To keep from going mad, my senses became numbed as my mind built an artificial barrier and refused to be derailed by what my eyes saw. But the trauma was indelible and will remain with me forever.5

And in his account in the Washington Post: Someone who was not there could never really grasp how unreal the situation was […]. I once saw DPs (displaced persons) beat an SS man and then strap him to the steel gurney of a crematorium. They slid him in the oven, turned on the heat and took him back out. Beat him again, and put him back in until he was burnt alive. I did nothing to stop it. I suppose I could have brandished my weapon or shot in the air, but I was not inclined to do so. […]

4

For example: Cyrus’s 539 BC cylinder shows how to rule a multifaith empire. Sound practical advice as a minimum turned to by Thomas Jefferson when founding the US. But does it connect directly, as some would like, to the concept of inalienable human rights, as also claimed—or is that a step too far? 5 Ferencz (1999) A Prosecutor’s Personal Account—Nuremberg to Rome. URL: https:// benferencz.org/articles/1990-1999/a-prosecutors-personal-account-nuremberg-to-rome/ Accessed 28 July 2020.

xii

Foreword You know how I got witness statements? I’d go into a village where, say, an American pilot had parachuted and been beaten to death and line everyone one up against the wall. Then I’d say, “Anyone who lies will be shot on the spot.” It never occurred to me that statements taken under duress would be invalid.6

Now consider the 1993 Tribunals and the ICC. Few lawyers, investigators, researchers, etc., if any, with military experience or direct knowledge of the conflict they are prosecuting or defending. They would be excluded altogether if it was thought they had experience that might render them biased or predisposed one way or another . Everyone working in office blocks with at most civilian or UN security presence. Endless discussions about the law (which, of course, did enjoy development at Nuremberg on which later courts have relied), procedure, history of conflicts, involvement of governments. Everyone versed in the 1948 Declaration, the European Convention and countless other codes. Trials so ‘meticulous’ that one trial for one defendant—Seselj—could last ten times as long as the 11-month first Nuremberg trial of 21 military and political leaders of Nazi Germany, even if the Seselj trial can be heavily criticised for other reasons. It is possible to argue that it is best to conceive of all the 1993 and later courts as entirely new things and still in experimental development. After all, what modern lawyer would want to be associated with a trial where evidence—even confessions —could be taken at gunpoint, where only one side of a conflict was ever considered for investigation and where capital punishment (with ropes too short for speedy death, as is sometimes alleged) was the norm? Commentators and jurists may argue for connection to Nuremberg and continuity with earlier objectives—whether the Versailles Treaty that provided for trial of the Kaiser or the arrangement made for the Nuremberg trials that Churchill and some others would have preferred rendered unnecessary by confronting Nazi leaders with firing squads. But why? Perhaps because the Allies were victorious and the trials did what firings squads would otherwise have done. Perhaps because the pictorial images of Göring in the dock are unforgettable and constitute a real image of his loss of impunity. Possibly because the prosecution advocates gave great examples (sometimes—the US’s Jackson did have an occasional off-day) of theatrical skill that gave voice to the defeat of wickedness. Perhaps because prosecuting with every required document to hand and no plausible alternative argument meant the trials, however flawed they might otherwise be, need never be seen too obviously to have been failures. We have all wanted them to have been successes; they were part of the end of the war. Brzezinski (2005) “Giving Hitler Hell”, Washington Post Online, p W08. URL: https://www. washingtonpost.com/archive/lifestyle/magazine/2005/07/24/giving-hitler-hell/1855bf5b-415b41c1-950f-a5745b491b0a/ Accessed 28 July 2020. Ben Ferencz has been an inspirational contributor to annual Master Classes run by the Geoffrey Nice Foundation with video talks addressed to the students that can be found at: https://geoffreynicefoundation.com/lectures/special-guestlectures/. His terrible experiences—and appointment at a very young age to prosecute the world’s largest ever mass murder trial—showed him how to spend the rest of his life pursuing peace through law, mindful of what he understood of the wickedness of the world even and of how it had to be countered by every means at our disposal.

6

Foreword

xiii

Conceiving of all the 1993 and later courts as entirely new things is effectively what Aldo does in this book, respectful though he is of the past and able to draw on academic research from the long history to prove how modern international trials for war crimes can—and must—serve purposes beyond Arendt’s narrowly defined rendering of justice and nothing else. Tussle as he does with modern preoccupations of lawyers—the adversarial forms of trials, free assessment of evidence without technical restrictions, access to and availability of evidence—Aldo speaks not from the pulpit occupied by those lawyers and academics with past errors to defend or justify. As a modern man, he can demonstrate that the role of war crimes trials in the writing of history must never be confined too severely because the purpose of trials is not just to try and punish those who emerge from a process as guilty. Maybe it once was, if Arendt got it right, but no more. Or maybe it never really was as she suggested it should be. The criminal trial process is a part of the setting in which the crime occurred—whether for the domestic rapist or the politician with criminal responsibility for war crimes. It always was absurd to think otherwise and only those whose sole interest in criminal process was to watch mediaeval executions of immense savagery or to see modern convictions as confirmation or disproof of a bigoted political ideology would think differently. The book’s central issue of whether history can and should be established in courtrooms can be helped by common sense. Turn, in your imagination, to any domestic legal system that uses juries and imagine being allowed to interrogate a juror who has just finished a trial. The trial was—say—about a killing in the juror’s home town by one gang member of another in a setting of an extensive but well-hidden gang culture, something of which the juror was previously unaware. Asked after the trial whether s/he had learnt anything about the true nature of his town s/he would not say, ‘No—the evidence was about the defendant and nothing else’. Of course not. For war crimes trials—indeed any large well publicised trial— the public generally, historians in particular, as well as international court judges are in no different a position from the domestic court juror: all are educated by the evidence presented and made public. It has always been difficult to understand how Arendt might have thought otherwise—perhaps she never really did.7 Assessing modern war crimes trials by what happened not at but after the Nuremberg and Tokyo trials invests them with the new international world order of values of open and fair justice. These values are to be found in the 1948 Declaration, however unenforceable and forgettable (as I have witnessed), they may 7

Of note, in the Milošević case, the judges actively requested the assistance of a historian and got several, one from the prosecution, multiple from the defence. It would be absurd to suggest they could have eliminated any analysis of history from their judgement (Milošević died first—no judgement was given); and absurd to suggest that this part of the trial record should have been treated differently from other parts by those using the trial record to understand the history of the conflict. All parts of the trial record educated the court and are available to educate all of us. And see Tromp N (2016) Prosecuting Slobodan Milošević: The Unfinished Trial (Routledge), cited by Aldo, demonstrating just how powerful trial evidence can be in setting the historical record of some events.

xiv

Foreword

initially have been. Those values, little though this may please lawyers earning lifetimes of fees for slow trials and judges doing the same and benefitting from international pensions and prestige, eventually condense to simple concepts, concerns and cries, attractive to those who waved anti-Vietnam War banners and to those who now turn to one another when they read of some mass atrocity in the world and say ‘Send him to the Hague for trial’. In all cases the cries—of anguish from victims and bereaved, of anger from those who care about their fellow men though not themselves sufferers—to those with knowledge and power might be something like: ‘For pity’s sake, tell us the truth, those of you who know it. Confess if you can. Provide the records that you hold. Do not make us suffer, or suffer more, by having to peer through the darkened glass that protects you for a time from being seen and heard. Speak now so that we may live what is left of our lives with the prospect of emerging from the shadow of grief made heavier through ignorance of what happened. And do it swiftly’8

No self-respecting academic or lawyer would speak in such silly terms. Aldo might not—but, in this book, he touches the underlying anguish and anger with the precise language of the true academic. I completed this Foreword between 11 and 12 July 2020—25 years after the start of the Srebrenica genocide for which no truly satisfactory verdicts have been returned at either the ICTY or the ICJ (for allegations of breach of the Genocide Convention by Bosnia against Serbia). When all these processes started it may be— from anecdotal material—that the bereaved (i.e. the surviving victims as opposed to those 8000 plus already murdered and for whom legal process may be little more than a mechanism of formal mourning) first thought how good it was to have top level lawyers work for them, respecting the profound sadness and distress of unseen farewell (Srebrenica executions were done after women and men had been separated). But as time passed, it could be seen that indictments did not cover as much of the history of events as they should have done and that some judgements seemed artificially narrow. And then Appeal Chambers occasionally overturned even partly ‘satisfactory’ judgements. The French judge who took ten years over the case of the man Seselj (see above) accused of hate speech, had his colleague on the bench for those ten years—Judge Lattanzi—say in a minority judgement the following, something that I have never seen or heard said in any other court: […] the majority sets aside all the rules of international humanitarian law that existed before the creation of the Tribunal and all the applicable law established since the inception of the Tribunal in order to acquit Vojislav Šešelj.

8

The cry would also plead for retribution—but Aldo’s book is not about that objective of criminal justice systems.

Foreword

xv

On reading the majority’s Judgment, I felt I was thrown back in time to a period in human history, centuries ago, when one said—and it was the Romans who used to say this to justify their bloody conquests and murders of their political opponents in civil wars: “silent enim leges inter arma” [In time of war the laws fall silent].9

Might the living Srebrenica victims—the only people who really count now— wonder at any system claiming it dispenses justice where judges hearing the same witnesses and knowing the same law could be that far apart…after ten years of trying? Might they more generally have wanted for decisions that were straightforward and quick and that reflected no political concerns—as some ICTY and ICJ judgements undoubtedly have. Might they have been enthused if it was accepted that trial records when accurate—and most at the ICTY were, only a few went off the rails—were allowed to be part of their history. And might those from the hundreds of thousands affected by the genocide of Srebrenica but who have died of natural causes in the last 25 years (so a good proportion of the total—may I guess at 33% assuming a 75-year average life span?) have cried out in anguish at the last closing of their eyes for the lack of knowledge of how their loved ones perished? But perhaps the notional cry I set out above may point to what the law should achieve by the time you read this Foreword and Aldo’s book; or, at least, to what it should seek to achieve. The argument about whether legal decisions can be used for the setting of historical narratives is part of a broader process whereby modern law is coming to be seen for what it is: as the servant of the people, not their distant master; and part of the servant’s duty is indeed to help in the writing of better history. Adisham, UK July 2020

Geoffrey Nice

Prosecutor v Vojislav Šešelj (Judgment (Partially Dissenting Opinion of Judge Lattanzi)).

9

Acknowledgements

The idea for this book originated from research on history at the International Criminal Tribunal for the former Yugoslavia that I undertook with Luigi Prosperi in 2017. I will remain grateful to Luigi for his encouragement in this regard. Luigi and I were subsequently invited by Moshe Hirsh to present on a panel at the Memory Studies Association Conference, in Copenhagen, in December 2017. I benefitted immensely from discussions at that Conference and am indebted to Moshe for that invitation. The research was eventually published as a book chapter in Carsten Stahn, Carmel Agius, Serge Brammertz, John Hocking and Colleen Rohan (eds.), Legacies of the International Criminal Tribunal for the Former Yugoslavia: A Multidisciplinary Account (Oxford University Press 2020). This book expands on some of the ideas and questions from that chapter. I was able to complete much of the writing thanks to a research sabbatical that I was awarded by my university, Anglia Ruskin University (ARU), in 2019. I will remain extremely grateful to colleagues at ARU (from the Faculty of Business and Law and beyond) for their support in this period. For part of my sabbatical, I was lucky enough to be able to visit Heidelberg, as a Visiting Scholar at the Max Planck Institute for Comparative Public Law and International Law. I am very grateful for that. Back in the UK, I benefitted immensely from lively discussions on history in international criminal courts and tribunals, and other topics, with Geoffrey Nice either at the Inner Temple or at the Royal Over-Seas League. These discussions helped me focus on the more practical aspects that international judges and prosecutors may face when seeking to produce historical narratives. Geoffrey also kindly invited me to participate in a Master Class in The Hague, organised by the Geoffrey Nice Foundation, where I was able to share my thoughts and develop my ideas with some of the organisers and other participants. In particular, I had fruitful discussions with Nena Tromp, who has contributed significantly to this area and whom I have cited extensively herein. I would also like to thank Aarif Abraham, Haval Al-Hakari, Leyla Ferman, Nick Vetch, Sajib Hosen, and Vian Dakhil, with whom I worked on separate projects as I was finalising the writing, and which influenced, in varying ways, my thinking xvii

xviii

Acknowledgements

about the subject at the time. Others I would like to thank include: Andrew Gilbert, Fiona de Londras, Karsten Xuereb, Kevin Aquilina, Leonardo Valladares Pacheco de Oliveira, Oriola Sallavaci and Rosemary Byrne. I am grateful to the editors of the International Criminal Justice Series, Gerhard Werle and Moritz Vormbaum, for accepting my contribution as part of this series, as well as Frank Bakker and Kiki van Gurp for all their help with the publication process. Finally, I wish to thank my family for their personal support and encouragement throughout the writing process.

Contents

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

1 5 15 21 25 30 31 35

2 Approaches to the History-Writing Function in International Criminal Adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Theoretical Approaches to History-Writing . . . . . . . . . . . . . 2.3 Restrictive Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 Strict Legality Approach . . . . . . . . . . . . . . . . . . . . 2.3.2 Incompatibility Theory . . . . . . . . . . . . . . . . . . . . . . 2.4 Expansive Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.1 Didactic Legality Approach . . . . . . . . . . . . . . . . . . 2.5 Moderate Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.1 Truth and Justice Approaches . . . . . . . . . . . . . . . . . 2.5.2 Right to Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

41 41 44 44 44 50 53 53 59 59 64 72

3 The Individual-Centred Lens . . . . . . . . . . . 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . 3.2 Individual-Centred Lens . . . . . . . . . . . . 3.3 Colonial Legacies as a Counternarrative . References . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

77 78 81 90 96

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 A Moderate, Responsible Approach to History-Writing . 1.2 Research Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Historical Narratives . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 Narratives Written by Judges of ICTs . . . . . . . . . . . . . 1.5 Focus on International Criminal Courts and Tribunals . 1.6 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . . . . .

. . . . .

. . . . . . . .

. . . . .

. . . . .

4 The Crime-Driven Lens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

xix

xx

Contents

4.2 Constraints Relating to Interpretation . . . . . . . . . 4.3 Constraints Relating to Scope . . . . . . . . . . . . . . 4.4 Natural Resources Crimes as a Counternarrative . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

101 107 119 125

. . . 129 . . . 129

5 The Law-Affirming Lens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 The Tropes of the Law-Affirming Lens and the Colonial Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 The Operation of the Law-Affirming Lens in the WWII Trials 5.4 Law and Oppression as a Counternarrative . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . .

. . . .

. . . .

130 133 136 141

6 The Distinctive Approaches of History and Law . . . . . . 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 The Historiographical Debates . . . . . . . . . . . . . . . . . 6.3 Non-epistemic Policy Values in Criminal Trials . . . . 6.4 Truth, Flattened . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Victory Over Truth . . . . . . . . . . . . . . . . . . . . . . . . . 6.6 Access to, and Engagement with, Evidence . . . . . . . 6.7 Closed Universes . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8 What Kinds of Narratives Do Judges of ICTs Write? References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

143 143 144 152 155 159 166 174 178 184

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

7 Aiming Towards Responsible History in International Criminal Adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 The Value of the History-Writing Function in International Criminal Adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Developing a Responsible History Framework . . . . . . . . . . . . . 7.3.1 A Recognition of the Value of the History-Writing Function in International Criminal Adjudication . . . . . . 7.3.2 A Commitment to the Virtues of Accuracy and Sincerity in the Search for Truth . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.3 A Recognition of the Constraints and Limitations of the Historical Narratives Written by Judges of ICTs . . . . . . 7.3.4 A Recognition that Judges and Lawyers Do not Necessarily Have the Last Word on History . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . 191 . . 192 . . 193 . . 205 . . 206 . . 208 . . 231 . . 235 . . 238

8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255

About the Author

Aldo Zammit Borda is the Director of the Centre for Access to Justice and Inclusion at Anglia Ruskin University in Cambridge, United Kingdom. He was previously a Research Fellow at King’s College London, working on a European Union Seventh Framework Programme-funded project entitled: Securing Europe through Counter-Terrorism: Impact, Legitimacy and Effectiveness. He has served as Legal Editor at the Commonwealth Secretariat and as First Secretary at the Ministry of Foreign Affairs of Malta, where he was national expert to the European Union Council Working Groups on Public International Law (COJUR), the sub– group on the International Criminal Court (COJUR–ICC) and External Aspects of Counter–Terrorism (COTER). He obtained his Ph.D. from Trinity College Dublin, Republic of Ireland. He also holds a Master of Economic Science in European Economic and Public Affairs from University College Dublin, and a Doctor of Laws from the University of Malta. His work has been published in the European Journal of International Law, the Human Rights Law Review, the Leiden Journal of International Law, the Journal of International Criminal Justice and the Cambridge Journal of International and Comparative Law amongst others. He has edited two volumes on Legislative Drafting (Routledge 2011) and International Humanitarian Law and the International Red Cross and Red Crescent Movement in the Commonwealth (Routledge 2010). He is also regularly invited to contribute to the media. He is an advocate of the Courts of Malta and a Solicitor in England and Wales (non-practicing). Between 2009 and 2015, he was appointed Fellow of the Honourable Society of the Middle Temple for his work in International and Commonwealth Law.

xxi

Abbreviations

DRC ECCC ECHR ECtHR FRY HV IACHR IACtHR ICC ICJ ICL ICTR ICTs ICTY LRT NATO OTP RPA RPE RPF SCSL SDC TRC UN UNSC UPDF

Democratic Republic of the Congo (formerly Zaire) Extraordinary Chambers in the Courts of Cambodia European Convention on Human Rights European Court of Human Rights Federal Republic of Yugoslavia Hrvatska Vojska—Croatian Army Inter-American Commission on Human Rights Inter-American Court of Human Rights International Criminal Court International Court of Justice International Criminal Law International Criminal Tribunal for Rwanda International Criminal Courts and Tribunals International Criminal Tribunal for the former Yugoslavia Leadership Research Team of the ICTY North Atlantic Treaty Organisation Office of the Prosecutor at the ICC, ICTR, or ICTY Rwanda Patriotic Army Rules of Procedure and Evidence (ICC, ICTR, ICTY) Rwandan Patriotic Front Special Court for Sierra Leone Supreme Defence Council of Serbia Truth and Reconciliation Commission United Nations United Nations Security Council Uganda Patriotic Defense Force

xxiii

Chapter 1

Introduction

Contents 1.1 A Moderate, Responsible Approach to History-Writing . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Research Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Historical Narratives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 Narratives Written by Judges of ICTs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5 Focus on International Criminal Courts and Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.6 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 15 21 25 30 31 35

Abstract The question of whether international criminal courts and tribunals (ICTs) ought to write historical narratives is not new. However, it has gained renewed relevance in the context of the recent turn to history in international criminal law, the growing attention to the historical legacies of the ad hoc Tribunals since their closure, and the minimal attention paid to historical context in the first judgment of the International Criminal Court. Since Hannah Arendt articulated her doctrine of strict legality, in response to the prosecutor’s expansive didactic approach in the 1961 Eichmann trial, the legal debate on the subject has been largely polarised between restrictive and expansive approaches to history-writing in mass atrocity trials. What has been noticeably missing from this debate is the middle ground. Building on the available scholarship, this book seeks to contribute to current knowledge by, firstly, building an argument for a more moderate approach to history-writing in international criminal adjudication and, secondly, articulating the elements of a “responsible history” normative framework. This chapter lays the foundations for this framework, which is then elaborated further in the next chapters. Keywords History · International Criminal Adjudication · Strict Legality · Didactic Legality · Truth and Justice · Right to Truth · Epistemic Authority At least since the trials of Nazi war criminals in Nuremberg, scholars have asked whether courts ought to write historical narratives of an armed conflict at all.1 While the question is not new, therefore, it has gained renewed relevance in the context of 1 Wilson

2011, pp. viii–ix.

© T.M.C. Asser Press and the author 2021 A. Zammit Borda, Histories Written by International Criminal Courts and Tribunals, International Criminal Justice Series 26, https://doi.org/10.1007/978-94-6265-427-3_1

1

2

1 Introduction

the recent turn to history in international criminal law (ICL),2 the growing attention to the historical legacies of the ad hoc Tribunals since their closure, and the minimal attention paid to historical context in the first judgment of the International Criminal Court (ICC).3 While historians and social scientists have long paid attention to, and been critical of, the historical narratives emerging from international criminal courts and tribunals (ICTs), the role of such narratives in the criminal law literature did not initially receive extensive attention.4 In part, this was because international law scholars tended to focus on issues of substantive or procedural law in the decisions of ICTs, with other aspects of those decisions (such as the historical dimension) being perceived as largely unproblematic.5 It is only in recent years that questions regarding the epistemic competence of ICTs have begun to attract increased attention in the ICL literature.6 This turn has been influenced by the growing impact of Memory Studies. Scholars in this field have focused on how law certifies historical knowledge, entails claims about historical truths, prescribes commemorative practices, and excludes ineligible accounts.7 With the recent closure of the ad hoc Tribunals, this increased focus on historical narratives has also been influenced by the “Legacy Turn” in ICL, and a growing emphasis on the legacies of ICTs not for their condemnation of particular individuals but, rather, for their role in creating a lasting historical account of armed conflicts.8 Attention also turned to the blind spots and omissions in the historical legacies of these Tribunals which, as Verrall has argued, may prove instructive for other institutions, such as the ICC.9 It is considered, therefore, that an in-depth examination of this subject as undertaken in this book is both important and timely. The debate over the extent to which mass atrocity trials should have a historywriting function was brought to the fore during the 1961 Eichmann trial in Israel, when Hannah Arendt famously drew attention to the question in her book: Eichmann 2 Craven

2016, p. 21; Tallgren 2014. ICC, Prosecutor v Thomas Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, 2012, ICC-01/04-01/06, paras 41–49. Just nine of the 593 pages of the Lubanga trial judgment are devoted to describing the historical background and context of the conflict in Ituri. See also Joyce 2004. 4 Tallgren argues that while other branches of law have witnessed a “historical turn”, in international criminal law, “there has been no history boom—yet we might be witnessing a beginning with this project and some recent others…”: see Tallgren 2014, p. xvi. See also Conrad 2011, p. 1042; Evans 2002, p. 326. 5 Bilsky 2004, p. 123. 6 Holtermann 2017, p. 210; Bilsky 2004, p. 43. 7 Belavusau and Gliszczy´ nska-Grabias 2017, p. 2. 8 Bouwknegt states, for instance, that as some of the first modern-day international(-ized) ad hoc tribunals and hybrid courts have fulfilled their mandates, the time has come to have a first glance at what they have actually accomplished or not, “appraise their legacy, and plunge into the vast archives they have inadvertently produced along the way”: see Bouwknegt 2018, p. 118. See also Dittrich 2013, p. 197; Teitel 2002, p. 73. 9 Verrall 2016, pp. 320–1. 3 See

1 Introduction

3

in Jerusalem: A Report on the Banality of Evil.10 Since Arendt articulated her doctrine of strict legality, in response to the prosecutor’s expansive didactic approach, the legal debate on the subject has been largely polarised between restrictive and expansive approaches to history-writing in mass atrocity trials.11 On the one hand, Arendt’s restrictive doctrine, which has been characterised as a “justice-and-nothing-else” doctrine,12 has dominated early discussions of the subject and continues to resurface repeatedly.13 This doctrine maintains that a history-writing objective only serves to detract from law’s main purpose to render justice. In addition, approaches in lawand-society research go a step further to declare that courts will inevitably fail in this task, even when they try.14 On the other hand, however, a growing number of scholars have identified the distinction between legal and extralegal objectives as unnecessary and limiting.15 Scholars in this camp have characterised strict legality as “crabbed and needlessly restrictive”,16 and have argued that mass atrocity trials should actively seek to do history and shape collective memory, in order to maximise their pedagogic impact.17 What has been noticeably missing from this debate is the middle ground. In one of the most extensive and systematic treatments of this subject entitled Writing History in International Criminal Trials, Wilson began the process of paving the way towards the middle ground by shifting the debate away from the polarised restrictive v. expansive positions, and moving towards a more nuanced understanding of the history-writing function in international criminal adjudication. He accomplished this through his empirical study involving sixty in-depth interviews with key figures at three international tribunals (the ICTY, the UN International Criminal Tribunals for Rwanda (ICTR) and the ICC).18 In this study, Wilson found that: [j]udging international crimes and writing a history of an armed conflict are both complex endeavors, and one of the central claims of this book is that their relationship to one another cannot be characterized by either harmonious accord or inherent contradiction.19

To be clear, Wilson himself does not advocate a more expansive role than presently exists for history or historians in criminal trials.20 However, nor does he expressly advocate a more restricted role. On the contrary, Wilson argues that, while the introduction of historical and social context is not invariably a “good thing” in a trial and, 10 Arendt

1992. 2016, p. 205. 12 Wilson 2011, p. 4. 13 Gaynor 2012, p. 1257. 14 Wilson 2011, p. 6. 15 Tromp 2016, p. 18. 16 Douglas 2006, p. 514. 17 Osiel 1999, p. 3. 18 Wilson 2011, p. 14. 19 Ibid., p. 13. 20 Ibid., p. 16. 11 Petrovi´ c

4

1 Introduction

in some cases, ICTs can get the history of a country badly wrong,21 he also takes issue with those who view history-writing as invariably a “bad thing”. In this respect, he concedes that: I have come to doubt the widespread view that international courts are inherently predestined to leave an impoverished historical record of mass violations of international humanitarian law.22

Wilson’s study constitutes a significant first step in reconfiguring the parameters of the scholarly debate away from the polarised restrictive v. expansive attitudes towards history-writing in international criminal trials, and lays the foundations for finding the middle ground. Other important contributions in this area include Gerry Simpson’s Law, War and Crime,23 and Lawrence Douglas’ work on “Truth and justice in atrocity trials”, wherein the author explores ways of reconciling truth and justice in mass atrocity trials. In his analysis, Douglas argues: [l]et us concede that the criminal trial is hardly the exclusive vehicle for coming to terms with the truth of atrocity. Episodes of mass atrocity may be just as satisfactorily – and perhaps even more satisfactorily – explored through the discourses of, say, history, philosophy, or literature – or through alternative forums, such as truth commissions. We can grant all this and still reject the strong claim that would find the atrocity trial as the cause and occasion of an inseparable gulf between justice and truth.24

Douglas rejects the view that there is an “inseparable gulf between justice and truth”. On the contrary, the author argues that we must reject the argument that atrocity trials invariably perform a disservice to the quest for historical truth. Indeed, in his view, the link between history and justice “is so strong in atrocity trials that it is impossible to separate the two”.25 These works tend to reaffirm the need for a more nuanced understanding of the relationship between law and history that moves beyond the restrictive views of strict legality and towards a middle ground. In the current state of the scholarship, therefore, the attempt to transcend the irreconcilable positions of the proponents of the compatibility/incompatibility of history and law is, as Vladimir Petrovi´c notes in his The Emergence of Historical Forensic Expertise: Clio Takes the Stand, slowly “picking up pace”.26 Building on this scholarship, therefore, this book seeks to contribute to current knowledge by developing a normative framework for a more moderate, responsible approach to history-writing in international criminal adjudication. It calls this framework “responsible history”. 21 Ibid.,

p. 17. p. 18. 23 Simpson 2007. 24 Douglas 2016, p. 41. Joyce argues that “[i]t is conceded that overemphasising the role of history could be dangerous and infringe upon the rights of the accused, but it is argued that underemphasizing the role of theory and history is unsatisfactory”: see Joyce 2004, p. 461. 25 Douglas 2016, p. 47. 26 Petrovi´ c 2016, p. 6. 22 Ibid.,

1.1 A Moderate, Responsible Approach to History-Writing

5

1.1 A Moderate, Responsible Approach to History-Writing The main aim of this book is to develop a normative framework for history-writing in international criminal adjudication that occupies the middle ground—a “responsible history” framework. The starting point for this discussion is that, in cases of mass atrocities, “prosecutors and judges are inevitably understood to be engaged in ‘writing history’ and influencing collective memory, whether or not they so intend”.27 As Gaynor notes: [t]he debate as to whether major international criminal trials can or should produce a historical record is, to some extent, academic. Any trial involving top military or political leaders, where the trial record incorporates thousands of documents and the testimony of hundreds of witnesses, can hardly avoid creating a historical record, regardless of the wishes of its protagonists.28

While the primary function of ICTs remains the determination of the guilt or innocence of the accused, in that process, they cannot escape invoking history to frame the complex realities of mass violence.29 Writing history is an inescapable feature of the work of ICTs given the nature of the crimes, as well as the contested and historically-significant contexts of the events they are called to assess.30 As a result, and in contrast with ordinary criminal courts, ICTs contribute to writing historical narratives as a rule rather than an exception.31 Of course, the type of historical narratives that ICTs may write in specific circumstances will depend on several factors. However, as a rule, writing historical narratives is an inalienable part of mass atrocity trials. As Schabas points out, this is borne out in the practice of ICTs: [t]he modern international criminal tribunals, for the former Yugoslavia, Rwanda, and Sierra Leone, were established to address major conflicts in different parts of the world. Each has now generated an enormous volume of case law. The tribunals have held many dozens of major trials. In most of these, there have been important debates about the historical dimensions of the situation being considered. These have gone much beyond the specifics of the charges against any particular individuals accused.32

27 Osiel

1999, p. 241. It should be noted that the focus of this book is on the writing of historical narratives by ICTs and does not assess the important, but separate, question of the reception of such narratives by external audiences. In this context, several studies have found that the lessons of these histories are often lost on the populations at which they are aimed: see Kelsall 2009, p. 8; Milanovic 2016. 28 Gaynor 2012, p. 1262. 29 Bouwknegt 2018, p. 120. 30 The term “contexts” in this book refers to understanding the larger social and institutional forces that allowed a specific abuse to take place: see Gibson 2009, p. 182. 31 Aksenova 2017, p. 54. 32 Schabas 2012, p. 158 (emphasis added). In her analysis of the historical narratives of Srebrenica written by ICTY chambers, for instance, Birkenkötter finds that these chambers provided “a detailed account of factual matters that goes beyond what would have been necessary from a legal point of view”: see Birkenkötter 2013, p. 178.

6

1 Introduction

While writing history is, therefore, an inescapable feature of the work of ICTs, there is still today significant lack of consensus over the proper place of this function.33 It should be recalled that the production of historical narratives constitutes but one aim of mass atrocity trials; an aim that has to be balanced against several other non-epistemic aims. The mandates of ICTs are multidimensional.34 The writing of historical narratives is but one of a number of competing priorities in the administration of international criminal justice and, as some would argue, a relatively incidental one.35 The primary purpose of ICTs is to bring to justice those responsible for serious violations of human rights and international humanitarian law, and to put an end to such violations. However, ICTs have also been variously tasked with preventing the recurrence of violations, securing justice and dignity for the victims, promoting national reconciliation, re-establishing the rule of law, and contributing to the restoration of peace.36 The methods and approaches that judges of ICTs use for balancing these various, often competing, priorities against each other will depend on several factors but, in part, will be influenced by the attitudes of individual judges, and other parties involved in the process, to the proper place of history-writing in international criminal adjudication. As noted, there is, at present, a marked lack of consensus amongst judges, lawyers and other practitioners over the proper place of history-writing in international criminal adjudication. The different attitudes are discussed in more detail in Chap. 2. Attitudes to the proper place of history in international criminal adjudication have varied depending on the stakeholders involved. On the one hand, victim groups, for instance, have emphasised the value of the search for truth, referring not only to the narrow legal truth of whether the accused was innocent or guilty of the crimes charged (though, naturally this is a very important aspect), but also to broader truths about the violence.37 Thus, for examples, in a study of 622 victim participants at the ICC, researchers from the UC Berkeley School of Law found that some participants particularly resented government denials of the violence and looked to the ICC to “set the record straight”. As one participant put it: [w]e are expecting the truth from the court because on the day of the killings they – I am talking about those who did it, those in power at the time – said there were no murders; they said it was untrue. We were shocked. They said the blood was faked, put on people during the filming of the events. […] It is the denial that pushes me to want the truth.38

33 According to Sander, the dissensus over the history-writing function at ICTs primarily hinges on the underlying conception of justice—adjudicative or sociopolitical—to which scholars and practitioners adhere in practice: see Sander 2018c, p. 336. The “adjudicative” perspective corresponds broadly with strict legality and the sociopolitical perspective corresponds broadly with didactic legality. 34 McMahon and Miller 2012, p. 422. 35 Combs 2010, pp. 2–10, 186–188. 36 Galbraith 2009, p. 84. 37 UC Berkeley School of Law Human Rights Center 2015, p. 68. 38 Ibid., p. 63.

1.1 A Moderate, Responsible Approach to History-Writing

7

On the other hand, however, in practice, some judges of ICTs, as well as legal officials working within ICTs, have tended to downplay the history-writing function. They have espoused some variant of strict legality, which tends to de-emphasize historywriting, considering it a distraction from law’s main purpose of rendering justice. They have adopted this approach not only because of the difficulties that may arise in managing the tensions between history-writing and other non-epistemic aims (such as due process and expeditious trials), but also on point of principle, because they do not consider that ICTs are the proper sites for history-writing. Or, as an ICTR judge succinctly put it: “We are running a trial now. We are not a truth commission. That’s the point”.39 This lack of consensus over the proper place of the history-writing function of ICTs, in turn, would influence the priority that judges, and legal practitioners, attach to this function and, consequently, the place of history-writing in the overall equation. As noted, the scholarship on this question has tended to present a binary opposition: restrictive v. expansive approaches. There is a scarcity of criminal law scholarship exploring the middle ground, that is, more moderate approaches to history-writing in international criminal adjudication. This book aims to do just that by, firstly building an argument for a more moderate approach to history-writing in international criminal adjudication and, secondly, articulating the elements of a responsible history framework. The book’s arguments for a more moderate approach to history-writing are based on three distinct, but interrelated grounds, which are expanded upon in Chap. 2:40 1. The first ground is truth and justice: in criminal trials the search for truth is a precondition of justice.41 This is because convicting the appropriate individuals of the appropriate crimes is a necessary condition for the success of mass atrocity prosecutions. However, in order to achieve this, courts must be “able to find accurate facts”.42 None of the potential purposes of the criminal trial process (retributive/restorative justice, etc.) can be reached unless the judgment has been based on a search for the truth. To reach any of its goals, the process must reflect a genuine effort to determine what “really” happened.43 In this sense, at the most basic, the criminal trial is an instrument for ascertaining truth: it is tasked with determining the truth of charges brought against the accused.44 And in “ordinary” criminal trials, the search for truth would not need to move beyond establishing 39 Eltringham 2009, p. 55. Joyce has argued that the view that ICTs are principally set up to convict,

punish and deter, while truth commissions are set up to reconcile, heal and to set the record straight “is an oversimplification and increasingly the role of truth in the former and justice in the latter models are being emphasised”: Joyce 2004, p. 462. 40 Several other reasons could be posited for truth-telling and history-writing in post-conflict situations, such as reconciliation, healing and peacebuilding: see Mendeloff 2004, p. 356; and grounding the legitimacy of courts through narration: see Birkenkötter 2013, p. 198. 41 Laudan 2006. 42 Combs 2018, p. 223. 43 Weigend 2011, p. 389. 44 Douglas 2016, p. 35.

8

1 Introduction

the truth about the specific controversy. However, in the case of mass atrocity trials, the political, cultural, and historical contexts are usually more fluid and contested. In order to establish “truth” about the alleged crimes, therefore, it becomes necessary to establish wider truths about the contested historical and political contexts.45 In international criminal adjudication, therefore, this broader search for truth is necessary for the proper dispensation of justice. 2. The second ground is the emerging concept of right to truth: although not explicitly set out in human rights documents, there is a growing recognition of a fundamental “right to truth”.46 From the perspective of this emerging right, the rendering of justice and the search for truth should be viewed as complimentary, not competing, endeavours. Criminal proceedings should play a central role in addressing the principal concern of affected citizens “to know what happened and to be confident that the best possible narrative of events is left behind”.47 As will be discussed in Chap. 2, the significance of the right to truth has been growing in international criminal adjudication, particularly at the ICC. As a result of this greater emphasis on the truth-seeking functions of criminal trials, and the increased invocation of the victims’ right to truth at this Court, it is likely that the history-writing function may continue to evolve in the work of the ICC. 3. The third ground is legal epistemology: whether judges, legal practitioners and, indeed, historians like it or not, ICTs are epistemic engines that produce historical knowledge and that enjoy “epistemic authority” in society.48 According to Stein, ICTs are not only “competent fact-finders”, they are competent fact-finders in a systemic and disinterested way. The knowledge they generate and transmit to their audience (litigants and society at large) is not perceived as being partisan, but as disinterested, impartial and authoritative. This pivotal characteristic turns courts into “epistemic authorities”.49 The argument here is simple: with such epistemic authority comes responsibility. In particular, because ICTs are bestowed with epistemic authority, they should also have a corresponding responsibility to aim towards truth and truthfulness in the historical accounts they produce. The notion of responsible history that this book develops takes seriously the concerns raised by strict legality with respect to the limitations and dangers of seeking a broader, history-writing function for international criminal trials. It also, however, takes into consideration some of the compelling insights from didactic legality regarding the comparative advantages of ICTs in accessing and evaluating factual evidence about conflicts, which may lead to the generation of important, new knowledge about such conflicts. The responsible history framework is discussed 45 Thus, for instance, it has been argued that the large quantity of victim-witness testimony heard in the courtroom fulfils an epistemic function meant to enhance the ability of judges, and society more broadly, to understand the atrocities: see Keydar 2019, p. 568. 46 Schabas 2018, p. 37. 47 Nice 2017, p. 28. 48 Stein 2008. 49 Ibid., p. 406.

1.1 A Moderate, Responsible Approach to History-Writing

9

Table 1.1 Conceptual framework for responsible history Elements of responsible history A recognition of the value of the history-writing function in international criminal adjudication

A commitment to the virtues of accuracy and sincerity in the search for truth

Truth and justice

A recognition of the constraints and limitations of the historical narratives written by judges of ICTs

Right to truth

A recognition that judges and lawyers do not necessarily have the last word on history

Legal epistemology

Grounds for responsible history

in more detail in Chap. 7. At this stage, however, a brief overview of this framework would be appropriate. Four central elements underpin the responsible history framework (see Table 1.1). 1. A recognition of the value of the history-writing function in international criminal adjudication. 2. A commitment to the virtues of accuracy and sincerity in the search for truth. 3. A recognition of the constraints and limitations of the historical narratives written by judges of ICTs. 4. A recognition that judges and lawyers do not necessarily have the last word on history. Responsible history entails, first and foremost, a recognition that, given that the writing of history is inevitable in the work of ICTs, judges (and prosecutors) should aim towards producing more responsible historical narratives for the reasons discussed above (and in Chap. 2). In particular, given that the historical knowledge they generate will have the imprint of epistemic authority, judges should aim to write responsible historical narratives of the armed conflicts before them. Secondly, a responsible history framework requires a genuine commitment to the search for truth and the production of truthful historical accounts. The nature of “truth” is itself a complex and elusive concept, especially in deeply divided societies emerging from conflicts.50 Questions about the nature of truth have occupied theologians, philosophers, and lawyers for quite some time, and agreement has yet to emerge.51 A detailed assessment of this subject would fall beyond the scope of 50 Chapman

2009, p. 96. 2011, p. 394. For instance, the South African Truth and Reconciliation Commission distinguished between four notions of truth used in its work: (a) factual (or forensic) truth; (b)

51 Weigend

10

1 Introduction

this book. It is submitted that ICTs could not and should not aspire towards writing “complete” truths of the conflicts that come before them. It is inevitable that the historical narratives they generate will be selective and incomplete. However, what responsible history requires is that, in writing historical narratives, judges (and prosecutors) should aim towards the virtues of accuracy and sincerity. They should seek, as far as possible, to write accurate and sincere versions of truth. Thus, the book draws on Bernard Williams’ theory of truth and truthfulness, which places emphasis on two basic virtues of truth: accuracy (to find truth) and sincerity (to tell truth). This has been done because these two virtues provide a straightforward and effective standard by which to assess the truthfulness of the historical narratives of ICTs. According to these two basic virtues, truth-seeking mechanisms should do the best they can to acquire true beliefs, and what they say should reveal what they truly believe.52 Amongst others, responsible history requires that judges should seek, as far as permissible, to encourage a pluralist approach to historical evidence while, however, avoiding “free proof”.53 This is in order to enable them to develop a broader understanding of the competing historical contexts and, thus, to avoid privileging their own preconceptions of the appropriate historical contexts, over those of the parties and, as applicable, participants (thereby promoting greater accuracy and sincerity). Thirdly, the historical narratives that judges of ICTs ultimately distil and produce in their judgments ought to be, to the extent possible, self-disruptive and should demonstrate an awareness of their limitations. Or, as Bouwknegt writes, since they are not trained historians, judges and prosecutors ought to be diligent, realistic and modest in what they can truly accomplish with respect to their historical narratives.54 Finally, a responsible approach to history in international criminal adjudication should reflect a recognition that judges and lawyers do not necessarily have the last word on history. Responsible history will therefore need to address the tensions between, on the one hand, the need to achieve legal finality and closure in the legal verdicts and, on the other, the open-endedness of history. This framework may also be used as a tool to evaluate and critique the historical legacies of ICTs. In this respect, the framework adds a new, “responsible history” critique to the arsenal of available scholarly critiques for evaluating the historical legacies of ICTs. Thus, for instance, as will be discussed in Chap. 7, the failure of Nuremberg to prosecute the alleged crimes of the Allies may be critiqued on grounds of responsible history, on account of deliberate attempts to deceive and present one-sided historical narratives. However, the failure of the ICTR to prosecute alleged Rwandan Patriotic Front (RPF) crimes, though it could be (and has been) critiqued on the grounds of victor’s justice, may be justifiable from a responsible history perspective. This is because, in not prosecuting RPF defendants, the ICTR prosecution did not act primarily to deceive and present one-sided accounts. personal (or narrative) truth; (c) social (or dialogue) truth; and (d) healing (or restorative) truth]: see Cherry 2009, p. 251. 52 Williams 2004, p. 8. 53 Murphy 2010, p. 539. 54 Bouwknegt 2018, p. 120.

1.1 A Moderate, Responsible Approach to History-Writing

11

Nevertheless, responsible history would have required judges and the prosecution within the ICTR to be more open and sincere in qualifying their historical accounts and communicating what they believed to be true. A responsible history approach to history-writing is, on the one hand, different from strict legality. Advocates of strict legality have expressed concern, inter alia, that a greater emphasis on the history-writing function of ICTs may be in tension with due process considerations. Indeed, this is a “recurrent motif” of war crimes proceedings.55 There is a tendency, however, for this tension to be overstated. Wilson, for instance, finds that there is no evidence to support the contention “that historical discussions undermine due process and fairness”.56 Similarly, Douglas makes the point that rules of procedure that permit the submission of a wider range of historical evidence do not necessarily upset the overall fairness of the proceedings.57 In this regard, while an ICTY defence attorney argued that the submission of a wider range of evidence may give rise to greater uncertainty, Wilson observes that even if one accepts that viewpoint, it is not immediately apparent “why this should disadvantage the defence more than the prosecution”.58 The point here, therefore, is that the admission of broader historical evidence in criminal trials per se will not breach due process rules.59 While acknowledging that such broader evidence may give rise to tensions between history-writing, due process and other priorities, each case would have to be seen and managed on its own merits. However, by explicitly acknowledging the history-writing role of ICTs, such tensions would, at least, be confronted and debated, rather “than hidden or under-examined as is the case at present”.60 Indeed, in trying to downplay the role of history-writing, restrictive approaches have tended to be “in denial” over the need for, and inevitability of, broader historical evidence in international criminal trials. The unique features of these trials, including the nature of international crimes, the distance of ICTs from the situation countries and the relative unfamiliarity of international judges with the histories and cultures of the regions in which the alleged crimes have occurred, all combine to make the particular need for historical contextualisations more pressing than, perhaps, strict legality may be ready to admit. To touch upon just one of these factors, for instance, international crimes are markedly different from conventional crimes with respect to their need for broader contextualisation: [i]nternational crime definitions contain contextual elements that refer to the historical and political context. Courts prosecuting and adjudicating international crimes will inevitably focus on more than just the specific conduct charged, as is the case with conventional crimes. International crimes are crimes of context because their definitions contain ‘elements that operate as qualifiers of gravity and restrictors of international jurisdiction to extraordinarily offensive crimes.’61 55 Simpson

1997, p. 825. 2011, p. 19. 57 Douglas 2005, p. 257. 58 Wilson 2011, pp. 64–5. 59 Fry 2014, p. 259. 60 Joyce 2004, p. 463. 61 Fry 2014, p. 260. 56 Wilson

12

1 Introduction

Where judges of ICTs will draw the line with respect to the relevance of broader historical contextualisation will depend on the circumstances of each case. However, this will also depend on the attitudes of individual judges with respect to the proper place of the history-writing function of ICTs—an issue over which, as already noted, there is a lack of consensus. The point here, however, is that international criminal proceedings may, by their very nature, require the admission of more historical contextualisation than strict legality may be ready to admit. On the other hand, a responsible approach to history-writing is also different from didactic legality. It is important to emphasize this point given that it has sometimes been assumed that scholars who support a history-writing role for criminal trials tend to incline towards didactic legality.62 As discussed in Chap. 2, an important distinction needs to be drawn between theories that support a moderate approach to history writing (such as truth and justice and right to truth), and the more expansive approach to history of didactic legality. On the one hand, the moderate approaches promote the search for truth and history-writing for the purposes of increasing knowledge and understanding of the past, in the belief that this will assist judges in rendering justice and/or will promote the right to truth for victims, their families and/or broader society. On the other hand, didactic legality does not seek, primarily, to understand the past, but to teach particular lessons or versions of it. Didactic legality frames criminal trials as tools of pedagogy, whose lessons may help shape collective memory or promote particular values in society. It is worth recalling, in this respect, that Arendt developed her restrictive theory in response, inter alia, to what she perceived were the excesses of Hausner’s didactic approach to history in the Eichmann trial.63 Hausner placed emphasis on the centrality of the didactic objectives of the trial and introduced evidence that was obviously extraneous and which the defence failed to challenge.64 Like Arendt, several scholars have thus been critical of expansive, didactic approaches to criminal justice, underscoring the risks to fairness when the parties seek to instrumentalise a criminal trial for pedagogic ends. Hausner’s approach, according to Arendt, “threatened to divert the court from understanding the nature of his [Eichmann’s] crimes”.65 It is therefore important to distinguish between moderate and expansive approaches to history-writing in principle, even though, in practice, the distinction between the two gives rise to grey areas. Proponents of didactic legality, on their part, have critiqued strict legality as a needlessly restrictive vision of the trial as legal form.66 Drawing on theories such as narrative jurisprudence, they have placed emphasis on the role of criminal trials, particularly in transitional societies, to teach history lessons and promote social solidarity. Osiel argues, for instance, that “[t]o maximize their pedagogic impact, such 62 Wilson

2011, p. 16.

63 Though, according to Arendt, this was not the only reason for insisting on a strict legality approach.

In her view, “[t]he irregularities and abnormalities of the trial in Jerusalem were so many, so varied, and of such legal complexity…”: see Arendt 1992, p. 253. 64 Simpson 1997, p. 825. 65 See Bilsky 2004, p. 127. 66 Douglas 2005, p. 2.

1.1 A Moderate, Responsible Approach to History-Writing

13

trials should be unabashedly designed as monumental spectacles”.67 This approach has been extensively criticised. Some have raised doubts over whether criminal trials could deliberately set out to shape collective memory.68 Others have raised concerns over the kind of “lessons” that criminal trials would teach. Koskenniemi notes, for instance, that the history “lessons” that Nuremberg communicated about WWII were, at best, partial. This was so largely in order to shield Allied crimes. However, it was also so, in part, because of the fact that Nuremberg took place in the immediate aftermath of the events. As a result, its interpretation was based on fragmentary evidence and influenced by interpretations by contemporaries with a concrete stake in the result.69 As Marrus observed, the didactic lessons from Nuremberg were characterised by several distortions and exaggerations of history.70 Moreover, some critical scholars detected a note of hypocrisy in the attempts of Western powers to use criminal trials to teach lessons about crimes against humanity in Nuremberg, when in previous centuries these powers were responsible for committing large-scale atrocities for which there have been few prosecutions.71 The main reason for which responsible history needs to be distinguished from didactic legality, however, is that, rather than placing emphasis on understanding past events, didactic legality places emphasis on teaching selective history lessons about the past in the light of the present.72 As will be discussed in Chap. 6, the line between history and collective memory tends to become very blurred with didactic legality. As discussed, rather than seeking to search for truth and understand the past accurately and sincerely, the primary aim of didactic legality is to communicate and teach history lessons in an effort to shape collective memory and influence community values and attitudes.73 In order to better succeed as dramaturgical events, the narratives told at trial need to be pared down, carving out important but intricate detail and nuance; an approach which does not promote accuracy and sincerity. Thus, for instance, Douglas observes that in Hausner’s narratives in Eichmann, “the gray zone was notably absent from the prosecution’s case, which presented the victims as having the innocence of children or the bravery of soldiers”.74 The simplification of the explanations could be exacerbated by the criminal trial’s adversarial setting. For instance, referring to the case of Kastner, Bilsky notes that both the prosecution and defence sought to provide black and white explanations of “cooperation versus defiance”. The author notes further that “[t]he entire intermediate range of actions between these two poles

67 Osiel

1999, p. 3. 2005, p. 724. See also Osiel 1999, p. 211. 69 Koskenniemi 2002, p. 22. 70 Marrus 1997, p. 127. 71 Vergès 2002, p. 54. 72 Teitel 2002, p. 70. See also Osiel who asserts that “[c]ollective memory…consists of the stories a society tells about momentous events in its history, the events that most profoundly affect the lives of its members and most arouse their passions for long periods”: Osiel 1999, pp. 18–9. 73 Belavusau and Gliszczy´ nska-Grabias 2017, p. 2. 74 Douglas 2005, p. 178. 68 Havel

14

1 Introduction

[…] was disregarded”.75 Moreover, didactic legality’s primary focus with “teaching” lessons could background other competing priorities of a criminal trial, such as due process considerations, because these may tend to detract from the dramaturgical effect. Wilson notes that: [c]riminal trials can seem overly complex, excessively technical, and obsessed with minor procedural details. After the first flush of press interest, trials for mass crimes soon lose their appeal and are ignored by the public, who feel alienated by the morass of courtroom rules and regulations.

In order to avoid “losing their audience”, advocates of didactic legality may call for greater latitude with respect to due process and more flexibility with the rules of procedure, in order to conduct trials as spectacles, to “enchant” and “captivate” the public imagination by evoking specific moods and sensibilities.76 These objectives diverge markedly from a responsible search for truth, as truth is not audience-relative. For instance, Williams notes that the truth of a statement has nothing to do with whether a given audience will be pleased to hear it.77 The focus on teaching lessons and shaping collective memory, particularly when set as a trial’s or prosecutor’s primary objective, may, moreover, increase the amount of elements which need to be proven, potentially having a further impact on due process.78 Koskenniemi thus argues that the focus on teaching lessons to an external audience “creates the risk of the trial turning into a propaganda show”.79 In turn, the increased concern with the didactic or “show” element of a trial may tend towards the backgrounding of due process and an increased chance of conviction for the defendant.80 Therefore, while the responsible history framework developed in this book needs to be distinguished from didactic legality, it is important that we do not throw the baby out with the bath water. Arendt herself acknowledged the important role of courts in truth seeking. In her essay on Truth and Politics, she listed judges and historians together, as impartial truthtellers and defenders of truth, which is constantly facing “the onslaught of power”.81 As Simpson notes, there is a balance to be struck between history and law, between extraneous evidence and best evidence, and between context and act.82 In rejecting, therefore, the excesses of didactic legality, one need not reject the importance of the history-writing function altogether. Rather, the approach favoured herein is to aim for a more moderate approach to history-writing. Indeed, Wilson makes the important point that there is a compelling case for rethinking the long-standing view that the pursuit of justice and the writing of history are inherently irreconcilable.83 It is hoped that this book will contribute to challenging that view. 75 Bilsky

2004, p. 24. 1999, p. 92. 77 Williams 2004, p. 116. 78 Fry 2014, p. 260. 79 Koskenniemi 2002, p. 25. 80 Peterson 2007, p. 268. 81 Arendt 2005, p. 310. 82 Simpson 2015, p. 159. 83 Wilson 2011, p. 19. 76 Osiel

1.2 Research Questions

15

1.2 Research Questions Two broad research questions are addressed herein: 1. What kinds of historical narratives do ICTs produce? What are the lenses through which judges of ICTs interpret historical events? What methods and approaches relating to law’s ways of knowing apply particularly to international criminal adjudication? What are some of the strengths, constraints and blind spots of these methods and approaches? 2. What kinds of historical narratives should ICTs produce? And, in particular, how could judges of ICTs, as well as other legal practitioners, aim towards producing more responsible representations of the past? With respect to the first research question, this book, firstly, examines some of the competing theories and attitudes on the proper place of history-writing in international criminal adjudication (Chap. 2). It then proceeds to analyse the complex and often strained relationship between judging crimes and writing historical narratives in international criminal adjudication, using two main approaches: (a) frame analysis; and (b) legal epistemology. In Chaps. 3–5, the book adopts a frame analysis approach to explore some of the cognitive frames that operate in international criminal adjudication and through which judges of ICTs tend to perceive and interpret past events. Frame analysis is based on the assumption that all perception is reference dependent.84 In other words, how we interpret information differs depending on how that information is contextualized or framed. The effect is particularly pronounced for complex and contested stimuli, as is the case in mass atrocity trials, where pieces of information are open to multiple interpretations.85 Frame analysis is grounded in the works of Erving Goffman who argued that individuals constantly strive to make sense of the world around them by employing cognitive schemata, or primary frameworks, that enable them to classify and interpret information.86 One of the key strengths of this approach is that it draws attention to the processes of selection, exclusion and emphasis in interpretations, as a communicator chooses which information to include, which to omit and which to highlight through placement, repetition or association with culturally significant symbols.87 Frame analysis has roots in sociology, psychology, linguistics and various subfields within political science. Indeed, this approach has been used in several different studies on social movements, bargaining behaviour, foreign policy decisionmaking, jury decision-making, media effects, political psychology, public opinion and voting, campaigns, and many others.88 In political science, it has been widely taken up as a key method for investigating news coverage, including coverage of war 84 Kahneman

2003, p. 459. and Iyengar 2017. 86 Goffman 1974; Manor and Crilley 2018, p. 370. 87 De Vreese et al. 2001, p. 107. 88 Druckman 2001, p. 226. 85 Scheufele

16

1 Introduction

and armed conflict.89 However, it has not often been applied to the study of international criminal adjudication.90 The value of this approach is that it lends itself to looking at international judges themselves, in this case the operation of their minds. Frame analysis can help us better understand international criminal adjudication as a cognitive practice, seeking to examine the interpretation of law from within the cognitive frames (herein referred to as “lenses”) that the judges themselves apply.91 Admittedly, as a result of its widespread usage across the various disciplines, the concept of frame analysis has evaded precise and consistent definition. Nahed has argued that, notwithstanding efforts to unify it, frame analysis remains a “fractured paradigm” to the extent that there are still no settled and standardized rules for operationalizing the method.92 And in his scoping of the literature, Druckman identified several distinct uses of the terms frame analysis and framing.93 For the purposes of this book, Robert M. Entman’s approach to frame analysis will be utilised. This is so because Entman’s definition of framing had a powerful catalytic effect on scholarship in the area and set the stage for numerous studies on framing over the course of several decades.94 Entman’s definition has, thus, been highly influential in giving rise to a rich and diverse research corpus, that has sought to define what framing is, identify how frames are constructed and investigate the influence of frames on audiences. According to Entman: Framing essentially involves selection and salience. To frame is to select some aspects of a perceived reality and make them more salient in a communicating text, in such a way as to promote a particular problem definition, causal interpretation, moral evaluation, and/or treatment recommendation for the item described.95

Entman argues that, in a communicating text, such as an official document, a news report, a scholarly work or, indeed, a judgment, frames enable individuals to select and focus on particular aspects of reality and foreground those aspects (make them more salient), while downplaying other aspects of the same reality. Moreover, frames have at least four locations in the communication process: (1) the communicator, (2) the text, (3) the receiver, and (4) the culture. Communicators make conscious or unconscious framing judgments in deciding what to say, guided by frames (often called schemata) that organize their belief systems. The text contains frames, which are manifested by the presence or absence of certain keywords, stock phrases, stereotyped images, sources of information, and sentences that provide thematically reinforcing clusters of facts or judgments. The frames that guide the receiver’s thinking and conclusion may or may not reflect the frames in the text and the framing intention of the communicator. The culture is the stock of commonly invoked frames; 89 Al

Nahed and Hammond 2018, p. 365. and Smolka 2019, p. 436. 91 Ibid., p. 432. 92 Al Nahed and Hammond 2018, p. 365. 93 Druckman 2001, p. 226. 94 Scheufele and Iyengar 2017. 95 Entman 1993, p. 52. 90 Pirker

1.2 Research Questions

17

in fact, culture might be defined as the empirically demonstrable set of common frames exhibited in the discourse and thinking of most people in a social grouping. Framing in all four locations includes similar functions: selection and highlighting, and use of the highlighted elements to construct an argument about problems and their causation, evaluation, and/or solution.96 For the purposes of this book, the focus will be on the “production” side of the narratives. The analysis will confine itself, therefore, to only analysing the narratives of the first two of the locations identified by Entman, namely: (1) the communicators (the judges) and (2) their texts (their decisions and judgments). The book will not evaluate the “consumption” side, or how these narratives are received by the different kinds of audiences.97 This is an important limitation of the book. The historical narratives produced by ICTs are only part of a much broader canvas of narratives about any given conflict produced by judges, truth commissioners, the public, the media, and opinion-makers alike. Moreover, as Adler notes, while judges of ICTs may produce historical narratives in their decisions and judgments, these are not automatically received or “consumed” by the different target groups. On the contrary, there are often several, coexisting “truths” about the conflict, based on the different perceptions of different groups, which provide “an interpretive frame that structures and sustains their version of reality and impedes transitional justice from taking root”.98 For instance, surveys of the ICTY have shown how the narratives produced by that Tribunal were received very differently by different target groups,99 and years after the physical battle in former Yugoslavia had ended, the divisiveness remained, perpetuated by “competing narratives raging in and out of the courtroom and battling about whose version of truth is right or wrong […]”.100 Thus, examining how narratives are produced and received are two important sides of the same coin. However, while acknowledging the importance of both of these sides, this book will, as explained above, only focus on the former, “production” side of the narratives. Entman argues that frames highlight some bits of information about an item that is the subject of a communication, thereby elevating them in salience. The word salience itself needs to be defined: it means making a piece of information more noticeable, meaningful, or memorable to audiences. An increase in salience enhances the probability that receivers will perceive the information, discern meaning and thus process it, and store it in memory.101 Frames select and call attention to particular aspects of the reality described, which logically means that frames simultaneously direct attention away from other aspects. Most frames are defined by what they include as well as omit, and the omissions of particular perspectives and/or explanations may be as critical as the inclusions in guiding the audience.102 96 Ibid.,

pp. 52–3. a discussion of this aspect, see Payne 2009, p. 240. 98 Adler 2018, p. 4. 99 Milanovic 2016. See also Arnould 2006, p. 146. 100 Adler 2018, p. 5. 101 Entman 1993, p. 53. 102 Ibid., p. 54. 97 For

18

1 Introduction

This book focuses on three main frames used in international criminal adjudication: (a) individual-centred, (b) crime-driven, and (c) law-affirming. A notable feature of the frame analysis approach is that it enables us to unpack and better understand the focal points of the lenses through which judges of ICTs perceive and interpret past events. This should, in turn, shed more light on the kinds of historical explanations and focal points that ICTs are likely to foreground. In many cases, the legal regimes of ICTs are quite broad, providing latitude for differing interpretations, explanations and foci. Although legal regimes would provide the starting point for understanding the focal points of interpretations, an analysis that confines itself to the black letter law alone would provide only part of the story. A frame analysis approach enables us to move beyond the black letter laws to also take account of the roles of frames in influencing judicial interpretations and explanations of past events. Moreover, this approach also allows us to explore the outer limits of such frames, and to discuss examples of counternarratives that may be pushed to the periphery (if not omitted altogether), therefore, potentially giving rise to blind spots in the historical narratives. However, the approach also suffers from a number of limitations. Firstly, as noted, the latitude arising from the legal regimes of specific ICTs may be quite broad, providing room for significant discretion and a plurality of possible interpretations. While the frame analysis approach is helpful in delineating the contours of such lenses, it is not able to account for why judges, in specific cases, may prefer particular interpretations over others (this would have to be explained by reference to other theories, such as judicial construction). Secondly, the three lenses examined by this book are not exhaustive and may overlap with others not considered in this study. Thirdly, it is significantly easier to identify the focal points of particular lenses than it is to identify potential counternarratives (of which there may be many). For this reason, the discussions in Chaps. 3–5 will mainly concentrate on examining the focal points for each lens. Each chapter will then illustrate a counternarrative which would not normally be captured by the lens in question, giving rise to potential blind spots. However, the discussion of counternarratives is merely illustrative and is far from exhaustive. It is only meant to exemplify the kinds of counternarratives that may be marginalised or omitted by the lenses used in international criminal adjudication. Examining such counternarratives is important because, as Entman has argued, frames are defined by what they omit as well as include, and examining some of the omissions may be as important as examining their inclusions for understanding the scope of the lens.103 In Chap. 6, the book uses legal epistemology to focus attention on the truthconduciveness or otherwise of the procedures of international criminal trials, in order to further assess the strengths, constraints and blind spots of the historical narratives that judges of ICTs are able to write. The strength of this approach is that it enables us to focus attention on the tools that judges have at their disposal in the search for truth. However, one important limitation of this approach is that, rather than examining individual rules of procedure and evidence of the respective 103 Ibid.

1.2 Research Questions

19

ICTs, the analysis is more high-level and makes some general observations about the frameworks and practices of ICTs in general. It is considered that such an approach is nevertheless useful in providing an outline of some of the broader methodological strengths and challenges that judges face in their search for truth. This approach also enables a comparison between legal and historiographical approaches to write history. Of course, given the plurality of historiographical approaches, such a comparison may only ever be partial and incomplete. Nevertheless, it is considered that this comparison is useful in drawing out some of the strengths and limitations of the tools available to criminal trials in writing historical narratives. In its focus on aspects of legal epistemology, this book also seeks to engage with the “epistemic critique of international criminal law”, an emerging sub-discipline in the philosophy of law at the crossroads between the law of evidence and philosophical epistemology.104 In the broad field of criminal law, legal epistemology has looked at whether legal systems of investigation that claim to be seeking the truth are actually structured in such a way as to lead to justified, true beliefs.105 While epistemological inquiries are well-established in philosophy and other disciplines, in law, one of the pioneers of legal epistemology, Larry Laudan has noted that: [l]egal epistemology, by contrast, scarcely exists as a recognized area of inquiry. Despite the nearly universal acceptance of the premise that a criminal trial is a search for the truth about a crime, considerable uncertainty and confusion reign about whether the multiple rules of proof, evidence, and legal procedure that encumber a trial enhance or thwart the discovery of the truth.106

Given that epistemology and the philosophy of law are both thriving disciplines, Sinnott-Armstrong and Schauer describe it as “unfortunate” that there has been so little interaction between the two, not least because legal procedures and evidence are “filled with puzzles, many of which resemble the philosophical puzzles that epistemologists have pondered throughout the ages”.107 Together with Laudan 2006,108 other contributions to this area include Haack 2014,109 Sarat et al. 2007,110 Weigend 2011,111 and a Special Issue of Episteme: A Journal of Individual and Social Epistemology devoted to legal epistemology.112 However, the majority of these works have focused on the US criminal justice system, which makes some of their discussions less relevant to international criminal adjudication. This is because of the unique character of international crimes and international criminal procedure, such as the

104 See

Combs 2018, p. 226; Holtermann 2017, p. 212. 2019, p. 288. 106 Laudan 2006, pp. 2–3. 107 Sinnott-Armstrong and Schauer 2008, p. 251. 108 Laudan 2006. 109 Haack 2014. 110 Sarat et al. 2007. 111 Weigend 2011. 112 Episteme 2008. 105 Fyfe

20

1 Introduction

absence of a jury system, the non-applicability of certain, jurisdiction-specific rules and precedents, and the geo-political circumstances surrounding ICTs.113 In the area of international criminal adjudications, research on legal epistemology is still emerging. Some notable works include Aguilera 2013, Combs 2018, Gaynor 2012, v. H. Holtermann 2017, and Fyfe 2019. This research has taken different forms. Some scholars, for instance, have accused international criminal judgments of exhibiting selective contextualization; other scholars have questioned the ability of international criminal law to create a historical record; and others yet have explored, more broadly and philosophically, the limits of the knowledge that we can attain about atrocities.114 One pragmatic strand of epistemic criticism has focused on the challenges associated with accessing and assessing factual evidence in mass atrocity trials, which could influence accurate fact-finding in international criminal proceedings.115 It is this pragmatic strand that is pursued in Chap. 6. By focusing on the distinctive approaches and methods of law and history in accessing and assessing factual evidence, this chapter thus seeks to shed further light on the kinds of historical truths that ICTs may produce. With respect to the second research question, the book will seek to articulate a novel, normative framework for history-writing that moves beyond strict and didactic legality. This “responsible history” framework is discussed in more detail in Chap. 7. After I completed the first draft of this study and developed the “responsible history” framework, I came across Professor Antoon De Baets’ work on responsible history. In De Baets 2008, the author develops a normative framework enabling historians to identify, prove, explain, and evaluate the many types of abuse of history and proposes a universal code of ethics as a guide for responsible historians.116 While the concept of “responsible history” in this book is different, and was developed independently, from De Baets’ concept, it is De Baets who should take credit for the term. Both De Baets’ concept of “responsible history” and the concept of “responsible history” as used in this book aim to develop a normative framework to promote a more responsible approach to history-writing. However, they target different audiences, with De Baets’ concept aimed primarily at concerned historians and the concept in this book aimed primarily at judges and prosecutors in international criminal adjudication. A striking similarity between these two concepts is that they have both drawn, to varying degrees, on Bernard Williams’ theory of truth and truthfulness to develop their normative frameworks, indicating the relevance of this theory.117 The next part defines some of the key terms and sets out some of the key limitations of this book, starting from its use of the term “narratives”. It will also seek to justify the book’s main areas of focus, namely, historical narratives written by judges of ICTs. 113 Some

of the specificities of international criminal proceedings include the geographic locations of the crimes, the size, scope, and legal characterization of the crimes and the special characteristics of the prosecuting bodies: see Combs 2018, p. 223; Holtermann 2017, p. 212 (fn 16). 114 Combs 2018, p. 226. 115 Ibid. 116 Baets 2008, p. xii. 117 Ibid., p. 2.

1.3 Historical Narratives

21

1.3 Historical Narratives Petrovi´c identifies three kinds of possible interactions between law and history. First, one can speak of History on Trial, meaning a judicial process that adjudicates matters which are traditionally of interest to historians. Second, one can speak of History of Trial, which is the historiographical analysis of judicial proceedings. Third, one can speak of History in Trial, which consists of the deployment of historiographical elements in judicial proceedings. These come in many forms and could be introduced by all the participants in a given trial—prosecutors or defendants and their attorneys, judges, eyewitnesses, and experts.118 It is with this third kind of “history in trial” that this book is concerned: its focus is on the historical narratives emerging from criminal proceedings. In this respect, a brief discussion of what is meant by “narratives” may be opportune because, although much of recent historiography has emphasized history as narratives,119 this notion continues to be regarded with suspicion by some criminal law practitioners. Although the notion of narratives has been increasingly used in the legal scholarship, there thus remains some lingering scepticism about it in the field.120 This scepticism stems, in part, from law’s positivist and realist epistemological foundations, demanding definite and verifiable evidence typically produced through scientific forensic methods.121 From this realist perspective, the notion of “factual truth” means that a true statement about the past corresponds to past reality.122 It is an idea that may be traced back to Thucydides.123 This perspective, however, is in tension with modern historiography. While judges and lawyers may assume that historical facts are objectively knowable, “out there”, so to speak, and that they will disclose themselves to anyone who seeks diligently, “a first-year graduate student in History learns the fallacy of these assumptions in the first week of the methods seminar”.124 While some of the earlier ICTY judgments made grand claims about discovering the truth as “a cornerstone of the rule of law and a fundamental step on the way to reconciliation”,125 in international criminal adjudication today, it is generally accepted that there is no such thing as the absolute Truth. Thus, for instance,

118 Petrovi´ c

2016, pp. 4–5. 2010, p. 8. 120 Posner 1988. 121 Wilson 2011, p. 16; Koskenniemi 2006, p. 20 (fn 8). 122 Baets 2008. 123 Williams 2004. 124 Wiecek 1987, pp. 236–237, 266–267. 125 ICTY, Prosecutor v. Erdemovi´ c, Sentencing Judgment, 1998, ICTY-96-22, para 21. It should be noted that later international judges made more qualified claims, noting that “the ‘truth’ can never be fully established or satisfied”: see; Prosecutor v. Momir Nikoli´c, Sentencing Judgement, 2003, IT-02-60/1-S, para 60 (footnote 107). 119 Koskenniemi

22

1 Introduction

in Staki´c, the ICTY judges made clear that “the Chamber is aware that no absolute truth exists”.126 The dominant approach of legal scholars and practitioners is rather that there may be many, more or less, objective versions of truth about the historical past.127 Teitel notes that such multiple truths are “dramatically exemplified” in times of armed conflict and transition.128 A plurality of narratives about a given armed conflict may arise both within or outside the courtroom. Within the courtroom, it is important to recognise that no court or tribunal may create “one” definitive historical account of the armed conflict. Rather, several complementary or competing accounts, grounded on evidence of varying probative force, could arise in the course of criminal proceedings, or across criminal proceedings in a given court or tribunal.129 Again, in Staki´c, the ICTY Chamber drew attention to the fact that “the possibility of divergences from, or even contradictions with, findings in other cases cannot be excluded because they are based on different evidence tendered and admitted”.130 Outside the courtroom, many differing stories may be constructed from the same set of brute facts. Criminal law will be useful for telling some of these stories. Nonlegal narratives will be necessary to capture still further aspects of any complex political experience.131 Bearing this in mind, this book uses the notion of “historical narratives”, (rather, than, for instance “historical records”) to denote the possibility of a plurality of narratives about a given armed conflict. It is not used here, however, to imply that all narratives are “equally valid” or that narratives are “never erroneous”, as the notion has been used in certain cases.132 The notion of narratives is rather used to emphasize that there may be a plurality of interpretations or constructions of truth and, with respect specifically to promoting the virtues of accuracy and sincerity, it is important to recognise and take seriously the multiple, potentially competing perspectives of the historical past held by different actors.133 This issue is discussed further in Chap. 7. There is a burgeoning literature on trials as narratives,134 focusing on the discursive and “open-endedness of argument” in ICL.135 Nevertheless, as noted above, some criminal law practitioners have continued to resist this notion and to regard it with suspicion. According to Brooks, the tendency of lawyers, particularly criminal 126 ICTY,

Prosecutor v. Milomir Staki´c, Judgment, 2003, IT-97-24-T, para 21. 2004, p. 181. 128 Teitel 2002, p. 72. 129 Stark 2002, p. 331. 130 ICTY, Prosecutor v. Milomir Staki´ c, Judgment, 2003, IT-97-24-T, para 20. 131 Osiel 1999, p. 251. 132 Sandberg and Presser 2015, p. 6; Ginzburg critiques contemporary postmodernist hyperrelativism that considers historical evidence as a wall “which by definition precludes any access to reality”: see Ginzburg 1991, p. 83. 133 For an example of a court adopting a “narrative approach”, see: SCSL, Prosecutor v. Issa Hassan Sesay, Morris Kallon, Augustine Gbao, Judgment, 2009, SCSL-04-15-T, para 481. 134 Eltringham 2009, p. 59. 135 Koskenniemi 2006, p. 562; d’Aspremont 2011a, b; Ajevski 2012; Robinson 2008; Sagan 2010; Bianchi 2018; Mégret 2002. 127 Williams

1.3 Historical Narratives

23

lawyers, to perpetually attempt to hide law’s narrative qualities is characteristic of law’s positivist basis, in order to preserve its autonomy from other disciplines and defend its seemingly exclusive reliance on abstract norms and logical reasoning.136 From this perspective, ontological debates about whether past events are understood as discovered or, on the contrary, as constructed, are significant, though not often confronted in legal scholarship.137 A minor but telling point is the tendency of international criminal judges to generally avoid using the term “narratives” in their judgments and to, instead, refer to the historical accounts they produce as “records”, reflecting a more realist perspective. Their references to historical “records” could have multiple meanings.138 In one sense, a record could refer to a “repository or archive”.139 Already in Nuremberg, as the trials were coming to an end, Telford Taylor recognised the importance of opening the Nuremberg archives to historians, stating in his final report: “[o]ne thing we can do is to make the facts available to German historians, so that future generations of Germans will be able to grasp the full and malignant import of the Third Reich”.140 The term “record” understood as a court archive is, therefore, relatively uncontroversial and, indeed, it is widely acknowledged that ICTs have built extensive historical archives, which have been invaluable for historians and other end-users.141 However, another meaning of the term “record” has stronger realist connotations, denoting an “[a]ttestation or testimony of a fact; witness, evidence, proof”.142 In

136 Brooks

2008, p. 425. asks: “Where do international tribunals stand on the debate between those who believe that history is found or discovered […] on one hand, and on those who argue instead that history is invented or imagined […]? See Tallgren 2014, p. xxiii; Simpson 2015, p. 160. 138 Gaynor 2012, p. 1260. 139 First entry for ‘record’ Oxford English Dictionary. 140 Taylor 1949, p. 102; Petrovi´ c 2016, p. 88. 141 The archives of criminal courts and tribunals represent valuable historical sources because they contain an immense, unique collection of documentary evidence, testimonies, and legal documents. It is, indeed, widely accepted that many of the path-breaking early histories of the Holocaust, most notably Raul Hilberg’s magisterial The Destruction of the European Jews, could not have been written without the astonishing documentary archive gathered at Nuremberg. More recent notable works, such as Daniel Goldhagen’s Hitler’s Willing Executioners and Christopher Browning’s Ordinary Men, likewise drew largely on depositions and other documents assembled through the labour of German prosecutors: see Douglas 2016, p. 38. Moreover, writing in relation to the ICTY archives, Tromp notes that the materials selected as evidence by the prosecution and defence incorporate documents from Yugoslav, Serbian, Kosovo, and Bosnian State archives that would have otherwise been unavailable to the public and to researchers for many decades. This is so for both finished and unfinished trials. Tromp notes that the Miloševi´c trial, although unfinished, serves as a valuable historical source for at least two reasons: “First, Miloševi´c represented himself in court, and therefore responded personally to the evidence presented, but also made personal remarks throughout the trial from the standpoint of a man attempting to defend his political and private decisions. Second, evidence that did come directly from State archives in Serbia makes the Miloševi´c trial record particularly valuable, as it includes State documents that would otherwise have remained protected for decades or even longer”: see Tromp 2016, p. 78; Schabas 2012, p. 171. 142 Second entry for ‘record’ Oxford English Dictionary. 137 Tallgren

24

1 Introduction

this sense, criminal trials have been said to produce objective records of the past.143 This seems to be the meaning in which the UN Secretary General used the term when he stated that the ICTY provided “detailed and well-substantiated records of particular incidents and events”.144 Cassese has also referred to trials establishing a “fully reliable record” of the atrocities.145 McDonald refers to “an incontrovertible record of how the communities became so divided […]”.146 And this also seems to be the meaning of the term in the report of the Kenya National Commission on Human Rights, which was transmitted to the International Criminal Court (ICC) Appeals Chamber in Prosecutor v. Francis Kirimi Muthaura et al.: [t]he [Truth, Justice and Reconciliation Commission] is expected to establish an accurate, complete and historical record of violations and abuses of human rights and economic rights inflicted on persons by the State, public institutions and holders of public office serving and retired, between 12th December 1963 and 28th February 2008.147

In this sense, the official historical “records” produced by criminal trials are understood as offering objective accounting of the past.148 The use of the notion of “record” in this sense reflects the realist approach of international criminal adjudication, a subject that is considered in greater detail in Chap. 6. For ICL practitioners, it is customary to think of the judicial process as “one aimed at establishing the ‘objective truth’ by means of legal procedures. Objective truth is generally understood as the opposite of a lie”.149 In spite of the growing influence of deformalization in other areas of international law,150 in ICL, not least because of the principle of legality, the dominant assumption has been that historical facts established by international criminal judges “merely reflect truth”.151 As noted above, this approach appeared particularly in some of the earlier ICTY judgments. The frequent references to historical “records” in the judgments of ICTs could thus be seen a reminder of law’s realist epistemology. However, law’s approach to truth and history has been consistently criticised by historians, social scientists and legal scholars. For instance, Hunt considers that it belies: a more fundamental chasm which exists between the legal and historical professions as they currently operate. Partly due to a degree of naivety but also a shade of arrogance within the legal world, there is a belief that what is recorded within the court room or inquiry hall can constitute the irrefutable history of the past.152 143 Holtermann

2017, p. 218. Secretary General, The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, UN Doc. S/2004/616, paras 38–9 (emphasis added). 145 Cassese 1998, p. 6 (emphasis added). 146 McDonald 2000, p. 8 (emphasis added). 147 ICC, Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Transmission by the Registry of the ‘Appeal against the Single Judge’s Decision on the Request by Ms. Moraa Gesicho to Appear as Amicus Curiae’, 2011, ICC-01/09-02/11, Annex 4—Kenya National Commission On Human Rights (Doc. ICC-01/09-02/11-230-Anx4) 157 (emphasis added). 148 Mendeloff 2004, p. 360. 149 Bilsky 2004, p. 243. 150 d’Aspremont 2011a, b, p. 503; Hirsch 2016. 151 Sander 2018a, p. 573. 152 Hunt 2004, p. 194. 144 UN

1.3 Historical Narratives

25

In this respect, historians and social scientists prefer, as noted above, the notion of “narratives” to emphasize the constructed nature of the histories rendered by their writers. Narratives are “constructed” in that facts are transformed into narratives by the suppression or subordination of certain of them and the highlighting of others and by placing them in a meaningful sequence that links the present to the past and future.153 It is an acknowledgement that any attempt to narrate history will always be based on assumptions about what to include/exclude and choices that are far from mechanical.154 This book will use of the notion of historical narratives to emphasize the point that the narratives produced by judges of ICTs, like those produced by other writers of history, remain re-constructions of the past, with their own, specific highlights and blind spots. However, as already noted, by accepting that there may be a plurality of narratives, this does not imply that all narratives are equally valid. On the contrary, using Williams’ theory of truth, this book will develop the argument that, for the purposes of responsible history, such narratives need to aim towards the virtues of accuracy and sincerity.155 Finally, it may be useful to touch upon the relationship between the concept of “narratives” with the concept of “frames” used in the frame analysis in Chaps. 3–5. In the social sciences, the two concepts are closely related. However, one of their main differentiating features is the temporal dimension. Whereas frames focus on the lenses used for present interpretations, narratives are broader and offer a framework for organising, sequencing and explaining events along a temporal spectrum: linking the present with the past and the future. Narratives, therefore, differ from frames as their primary characteristic lies in their sequencing of events along a temporal spectrum, which serves to attach meaning to, and explain, particular events by establishing temporal links between them.156 The next section will discuss why this study focuses on the historical narratives written by judges of ICTs, rather than other actors also involved in the production of history in international criminal adjudication.

1.4 Narratives Written by Judges of ICTs Another important limitation of this book is that it focuses primarily on the historical narratives of conflicts produced by judges of ICTs and, to a lesser degree, on the role of prosecutors. With respect to any given conflict, there will be a plurality of actors who will want to step in and play a role, to a greater or lesser extent, in writing the historical narratives and shaping the collective memory of the conflict. Rather than a singular, authoritative storyteller, there is what Keydar refers to as “a choir” 153 White

1985, p. 84. 2018a, p. 573; see also Teitel 2002, p. 73. 155 Williams 2004. 156 Manor and Crilley 2018, pp. 373–4. 154 Sander

26

1 Introduction

comprising a multitude of narrators and narratives of survival.157 This is a crowded marketplace, where ICTs have to scramble and, in some cases, compete with truth commissions, domestic courts, journalists, authors, government reports, historians and social media, to name but a few.158 In assessing such narratives, some studies have adopted a comparative approach, comparing the narratives arising from competing sources. Thus, for instance, in her work on transformative justice, Bilsky focused on the battle between the dominant narratives emerging from Israeli criminal courts and the counternarratives of Israeli poets, authors and commentators.159 Unlike Bilsky’s study, this book focuses primarily on the narratives of conflicts written by judges of ICTs. The strength of this approach is that it enables a more detailed study of the attitudes and approaches of judges in interpreting past events. However, one clear limitation is that it does not capture the complexity and plurality of historical narratives of conflicts developed outside and in parallel with the criminal process. Moreover, even leaving aside the issue of external narratives, within a given ICT, judges constitute but one, albeit important, actor amongst several actors. ICTs are complex, multi-stakeholder institutions involving various actors,160 many of whom may have a role in the historical narratives that eventually emerge from such institutions. Judges are not usually directly responsible for introducing historical evidence into the trial (with some exceptions, such as the ability of ICC judges to instruct expert witnesses propio motu).161 Frequently, historical evidence is introduced by prosecutors, defence attorneys, victim participants and witnesses, all of whom could, to varying degrees, make oral or written submissions which contribute to the ensuing historical narratives.162 Moreover, other constituencies could also influence the narratives that emerge from ICTs, including the victims’ communities, the perpetrators and their supporters at large, States,163 social critics,164 a legal community both on the ground and abroad, and a broader international community.165 Therefore, a clear limitation of this book’s focus on judges is that their role in the production of history in international criminal adjudication is just the tip of the iceberg. It is just one aspect of a long and complex process relating to the treatment of history in international criminal trials, a process that begins with the decisions 157 Keydar

2015, p. 20.

158 Phelps posits that narratives about human rights abuses may appear in multiple and diverse forms,

including testimonies, truth reports, nonfiction accounts, novels, dramas, art, even museums: see Phelps 2011, p. 170. 159 Bilsky 2004, p. vi. 160 Terris et al. 2007, p. 49. 161 Regulation 44 of the ICC, Regulations Of The Court (as amended on 14 June and 14 November 2007) 2007. 162 Not to mention additional submissions external to the trial, such as press releases, which could also be relevant to the overall historical narratives emerging from the particular court or tribunal. 163 Wilson 2011, p. 39. Indeed, caught between powerful global actors, ICTs have been described as “fragile institutions, vulnerable to both overt and subtle attempts to sway or undermine their work”: see Terris et al. 2007, p. 147. 164 Bilsky 2004, p. 8. 165 Douglas 2006, p. 520.

1.4 Narratives Written by Judges of ICTs

27

taken by the prosecutor in framing the investigations and, subsequently, the charges, calling expert witnesses to trial, etc. The manner in which the parties and other actors collect, assess and present historical information would depend on several factors. Prosecutors can often draw on the support of in-house historians and social scientists in developing their submissions. The ICTY’s prosecution, for instance, had the support of a Leadership Research Team and a Military Analyst Team, consisting mostly of non-legal experts and researchers who provided information and expertise on historical, political, and military topics for prosecution trial teams.166 Drawing on this information, prosecutors were able to narrow or broaden the scope of the trial, and therefore of the relevant historical narratives, in line with their chosen strategies and the theory of the case.167 In this respect, as discussed in Chap. 4, prosecutors may decide to bring focused, comprehensive or representative charges. This is similar also in domestic mass atrocity trials. Thus, for instance, in Eichmann, although the prosecutor could have limited the charges to a small number of counts for which there was solid proof against the accused, he instead submitted a much broader, fifteen-count indictment because he regarded the trial as an opportunity to set out the history of the whole Jewish disaster.168 Conversely, the focus of the prosecutor in some ICC cases has been on narrowing the scope of investigations, selecting a small number of incidents, and developing cases likely to draw public attention to leading figures rather than prosecuting atrocities more broadly.169 While prosecutors enjoy significant discretion in devising their prosecutorial strategies, this will also depend on a number of internal and external factors, such as access to evidence and the cooperation of States. The defence may also seek to influence and shape the historical scope and explanations adduced at trial. In Barbie, for instance, Jacques Verges famously used the defence of rupture to widen the historical frame and draw legal parallels between the crimes cited in the indictment and crimes committed during France’s decolonization operations in Algeria.170 Similarly, at the ICTY, Miloševi´c sought to frame the history of the Balkan wars in the nineties as a continuation of the Great Power policy that had over and over again torn the peninsula into pieces.171 Other actors, such as witnesses called by the parties and, in the case of the ICC, victim participants, may also contribute to the emerging narratives through either oral or written testimonies or in their submissions to the court.172 Witnesses may play a key 166 Tromp

2016, p. ix; see also Wilson 2011, pp. 80–5. et al. 2016, p. 291. 168 Douglas 2005, pp. 133–4. Admittedly, Eichmann was a domestic trial happening in very specific circumstances. Nevertheless, it serves to illustrate the point that prosecutors have the ability to narrow or broaden the scope of a trial, and therefore of the relevant historical narratives, according to their particular strategies. 169 Levi et al. 2016, p. 313. 170 Wood 1999, p. 117. 171 Koskenniemi 2002, p. 31. 172 Keydar notes that that recent years have seen a shift in the nature of evidence, with fewer documents and more eyewitness testimony presented to the courts, leading to a surge in the number of witnesses: see Keydar 2019, p. 560. 167 Levi

28

1 Introduction

role in narrating personal stories and thus introducing new historical evidence at trial. In this respect, it has been noted that international criminal trials have relied heavily on personal narration for establishing facts about the past. Since the establishment of the ad hoc tribunals in the mid-1990s and more so since the inauguration of the ICC, there have been a very large number of witnesses and victims participating in legal proceedings dealing with mass atrocity, and their stories have played a role in the emerging historical narratives.173 In addition to victim witnesses and participants, expert witnesses, including particularly expert historians, have also become a regular feature of mass atrocity trials. Rothman notes that since the 1950s, historians have been active in legal proceedings as experts and adversaries. Historians now function in a range of roles and cases, offering their expertise to prosecution and defence in civil, criminal, and administrative proceedings.174 In his book entitled The Emergence of Historical Forensic Expertise, Vladimir Petrovi´c traces the history of the emergence of historical forensic expertise in mass atrocity trials. There are various reasons for which expert historians may be called to testify at trial. For instance, they could be called to connect individuals to specific crimes that they usually did not commit themselves and for which there were few eyewitnesses willing to testify against the accused, and they may also be called to highlight the narrative coherence of a legal/historical argument in the hope that judges would grasp their meaning and implications.175 It has been noted, however, that for professional historians, testifying could be a discomforting experience, particularly as it could be difficult to see carefully researched historical material “ripped out of its context by clever lawyers”.176 A telling moment in this regard was the challenging treatment accorded to the expert testimony of Salo Wittmayer Baron in the Eichmann trial, which may be regarded as the first major test for a historical expert in a trial involving a combination of mass atrocities.177 The point here is that historical evidence in international criminal trials may arise from various actors and sources. The production of historical narratives in criminal proceedings has to be seen, therefore, as “a negotiated process” between the different actors, including the judges, parties witnesses and participants.178 In this 173 A

phenomenon Keydar refers to as the “quantitative turn”: see ibid., p. 555. 1993, p. 39. 175 Wilson 2011, p. 122. 176 Evans 2002, p. 330. 177 On the witness stand, Baron first cautiously defined his position as a historian in the courtroom and outlined his methodological framework. Baron’s testimony offered a complete contextual, historical backdrop of the European Jews, including the evolution of anti-Semitism with the particular emphasis on Germany. After that, Baron was subjected to an exhaustive cross-examination by Eichmann’s defence attorney and an uncompromising questioning by the judges. What would otherwise have been an erudite and academically impressive testimony had thus been transformed into less than useful evidence for the forensic purposes of a major criminal trial. The echoes of Baron’s controversial testimony still resonate in the legal and academic debates on the role and relevance of historical expertise in all, and particularly, international criminal trials: see Petrovi´c 2016, pp. 168, 174. See also Dojˇcinovi´c 2018, p. 1126. 178 Bilsky 2004, p. 253. 174 Rothman

1.4 Narratives Written by Judges of ICTs

29

respect, international criminal trials have been described as “narrative battlegrounds” characterised by contested understandings of history.179 Within these battlegrounds, a plurality of historical narratives will be advanced by the different actors involved. As Gewirtz observes: one side’s narrative is constantly being met by the other side’s counternarrative (or sidestepping narrative), so that “reality” is always disassembled into multiple, conflicting, and partly overlapping versions, each version presented as true, each fighting to be declared ‘what really happened’—with very high stakes riding on that ultimate declaration.180

Narrative authority is thus contested and dispersed both within and beyond the courtroom.181 In order to develop a more comprehensive picture of the treatment of history in international criminal adjudication, it would be necessary to examine these varying, competing narratives advanced by the different actors. However, this book focuses primarily on the role of judges in the process of history-writing. It is considered that this focus is justified because judges constitute the most visible symbols of international courts and tribunals,182 and the judgments and decisions they deliver represent, more than any other output, the official pronouncement of a particular court or tribunal on a particular case. It therefore matters whether, in the historical accounts ultimately constructed by the judges in their judgments, the competing narratives put forward by different actors are accepted or rejected.183 The interlocutory decisions and judgments that judges deliver are important not only for the parties involved, but also for the general public, who is concerned with the question of which version “would receive the court’s stamp of approval”.184 According to Waters: [w]hile many parts of a trial contribute to the production of narratives—such as the giving of testimony, introduction of documents, or the creation of archives—only the decisions of the court carry the imprimatur of official, consequential authority. [… It] is the role of the judge to determine that evidence’s ultimate value. It is judgment grounded in the procedural integrity of the trial and sitting at the apex of the process—that produces the dispositive, displacing authority claimed for international criminal law’s interpretations of violent conflict.185

In stating the facts of a case, the decisions and judgments of ICTs inescapably shape those facts to create an “official” account of a given conflict.186 In writing their judgments, international judges need to distil the competing narratives put forward by the different actors into a single narrative.187 In this respect, Sander observes that: 179 Sander

2018b, p. 4; this conceptualisation of trials fits the notion of trials as “lawfare”: see Voyager 2018, p. 147; Gallois and Vergès 2002, p. 37. 180 Gewirtz 1998, p. 8. See also Bringedal Houge 2018, p. 2. 181 Sander 2018b, p. 5; Waters 2010, p. 343. 182 Terris et al. 2007, p. 82. 183 Sander 2018b, p. 5. This is in spite of the fact that judges of ICTs have been “frequently criticized for leaving much of their judgment writing to their legal assistants”: see Terris et al. 2007, p. 204. 184 Bilsky 2004, p. 38. 185 Waters 2010, p. 281. 186 Gewirtz 1998, p. 10. 187 Reiter 2010, p. 58.

30

1 Introduction [i]n performing this task, judges are understood to be engaged in a process that is at once destructive and reconstructive. Having afforded the antagonists the opportunity to put forward their preferred narratives and subjected them to scrutiny at trial, judges seek on the one hand to effectively kill off and delegitimise judicially unpersuasive interpretations of the past and on the other to declare their own as authoritative.188

Placing emphasis, as this book does, on the historical narratives written by judges of ICTs is thus merely a reflection of the importance of the judges’ version of history. It is, however, not meant to downplay the significance of other narratives advanced at trial, such as those of the parties, participants or witnesses. As discussed, the narratives contained in the decisions and judgments of ICTs do not reflect the “full complexity of judicial truth” produced in trial proceedings.189 The exploration of such broader narratives, however, while important, would fall beyond the scope of the present study.

1.5 Focus on International Criminal Courts and Tribunals This book focuses primarily on the historical narratives emerging from international, rather than national, criminal courts and tribunals—though it also draws significantly on domestic mass atrocity trials such as Eichmann. It mainly focuses on the Nuremberg and Tokyo Tribunals, the ad hoc Tribunals and the ICC. It is clear that, in addition to international and hybrid courts, mass atrocities are also prosecuted in a range of different kinds of domestic courts.190 The reason for which the book, however, focuses primarily on international courts and tribunals is because such institutions are “the most forceful and direct expression of the international community’s collective will to prosecute mass atrocities”.191 Although international criminal tribunals share many attributes of their domestic counterparts, particularly when domestic criminal courts have to contend with cases of mass atrocities,192 there are some key differences which are relevant to their engagement with evidence and the production of historical narratives in an international setting. For instance, international courts have a special institutional position relative to the State, making them in some areas less dependent and in others, just as if not more dependent on the cooperation of States.193 Moreover, ICTs operate in what criminal justice scholars identify as “atypical political environments”, or highly contentious environments in which surrounding political conditions lead to a departure from routinised criminal justice.194 They are normally called on to adjudicate acts of extraordinary violence perpetrated on a large scale. 188 Sander

2018b, p. 4. 2010, p. 343. 190 Combs 2018, p. 227. 191 Rogers 2017, p. 4. 192 For a discussion of these attributes, see Wilson 2011, p. 32; Aksenova 2017, p. 49. 193 Alvarez 1999, p. 375. 194 Levi et al. 2016, p. 291. 189 Waters

1.5 Focus on International Criminal Courts and Tribunals

31

They also adjudicate crimes in times of cataclysm, in the midst of, or after, armed conflict.195 This may lead to crime bases in international criminal proceedings being exceedingly complex, necessarily relating to a large-scale war with a number of political and historical factors behind it that the parties often regard as requiring detailed exploration.196 The international crimes that ICTs adjudicate on are also quite different from the conventional crimes before ordinary criminal courts. Judge Kwon notes that the elements of the crimes and modes of responsibility are far more complex than their analogues in domestic criminal law, and require a great deal of evidence to link the accused to the crimes with which he or she is charged, especially in cases involving higher-level accused.197 The definitions of international crimes contain contextual elements that refer to the historical and political contexts, and which will require ICTs to inevitably focus on more than just the specific conduct charged, as is the case with conventional crimes.198 As such, Nice notes that ICTs are “very different in potential effect and can readily have a real effect on history”.199 While some domestic criminal trials dealing with mass atrocities have also given rise to significant historical narratives, this book will thus focus on international criminal courts and tribunals, in view of the specific characteristic of those courts and tribunals. The next part provides an overview of the chapters.

1.6 Overview The point of departure for Chap. 2 is that ICTs, in trying complex cases of mass atrocity, inevitably engage and shape historical discussions of armed conflicts. Nevertheless, despite the close interlinkage between doing justice and writing history, several scholars and legal practitioners have continued to downplay the historywriting function and, in practice, there is a view that the two are separable endeavours. As noted, since Hannah Arendt articulated her doctrine of strict legality in 1961, in response to the prosecutor’s expansive, didactic approach in the Eichmann trial, the scholarly debate on the subject has been largely polarised between restrictive and expansive approaches to the history-writing function in mass atrocity trials. At the restrictive end of the spectrum, a thick version of strict legality posits that the purpose of a trial is “justice-and-nothing-more”. A thin variant of this doctrine presents it as a call for moderation with respect to the scope of the epistemic ambitions of ICTs. At the expansive end of the spectrum, didactic legality envisages criminal trials as tools of collective pedagogy. From this perspective, a primary objective of criminal trials should be to teach wider historical lessons for a variety of reasons, including to 195 Aarnbe 196 Kwon

Langvatn and Squatrito 2017, p. 47. 2007, p. 364.

197 Ibid. 198 Fry

2014, p. 260. 2017, p. 53.

199 Nice

32

1 Introduction

establish official accounts for posterity, to facilitate public deliberations of the past, and to promote democratic transitions. What has been noticeably missing from this debate is the middle ground, namely, moderate approaches to the history-writing function which recognise the complex and intertwined relationship between judging international crimes and writing history in mass atrocity trials. This chapter focuses on two frameworks which tend to encourage a more moderate approach, namely “truth and justice” and the emerging concept of “right to truth”. From the perspective of the truth and justice approach, the search for truth is a prerequisite for justice and wider discussions of historical contexts are necessary in order for international judges to locate and understand the actions of the accused in their proper historical, cultural and social context—to seek to understand life as the participants understood it. This wider approach is necessitated by the nature of international crimes, the distance of ICTs from the situation countries and the relative unfamiliarity of international judges with the history and culture of the region in which the alleged crimes were committed. As regards the right to truth, this right relates to the human need for truth on the part of victims, their relatives and society. Although the Rome Statute of the ICC only provides a limited realisation of this right, scholars have suggested that the repeated invocation and emerging acceptance of the right to truth for victims and society at the ICC may bring about an increased acceptance of the search for truth and the history-writing function in international criminal adjudication. In order to try to shed more light on the strengths, but also the constraints and blind spots, of the historical narratives written by judges of ICTs, the next three chapters adopt a frame analysis approach to international criminal adjudication. In particular, these chapters will discuss the focal points and blind sports of three lenses, through which judges of ICTs select some aspects of the past and make them more salient in their decisions and judgments, in such a way as to, as Entman has argued, promote particular causal interpretations or moral evaluations. Chapter 3 focuses on one of the lenses through which judges and other legal practitioners interpret and understand past events, namely, the individual-centred lens. In international criminal adjudication, judges interpret and explain historical events primarily on the basis of individual agency. The individual-centred lens has the advantage of focusing on the role of particular individuals and thus facilitating the allocation of guilt on the basis of individual criminal responsibility. Thus, it has the merit of foregrounding the role of individual agency in historical explanations and, to a large degree, rejecting theories of collective guilt. It would be incomplete, however, to describe ICL’s cognitive framework as exclusively focused on individual agency. This lens also contains constructs, such as accomplice liability, vicarious responsibility, strict liability, which allow for an understanding of historical events which, at least to some degree, extend to broader, collective agency. Nevertheless, historians, social scientists and some critical legal scholars have long been sceptical of the one-dimensional, individual-centred accounts of mass atrocities produced by ICTs, preferring instead more nuanced, multi-dimensional explanations. However, although some have put forward proposals for reworking ICL’s individual-centred

1.6 Overview

33

lens, individualism has survived virtually unchanged from Nuremberg to the ICC, indicating how deeply rooted this lens is in international criminal adjudication. By focusing on the role of the individual, the individual-centred lens tends to deemphasize other potential causes and explanations of mass atrocities, explanations which could be considered counternarratives. These would include broader environmental and structural causes, collective agency and colonial legacies. Examining such counternarratives is important as it exposes the outer limits of law’s lens and the potential blind spots in the historical narratives that ICTs may produce. This chapter thus proceeds to illustrate one such counternarrative relating to colonial legacies. Another lens through which judges and other legal practitioners interpret and understand past events is the crime-driven lens, which is detailed in Chap. 4. The focus of international criminal adjudication on criminal conduct and criminal liability means that other dimensions of a conflict, which are not related to criminal liability, but which would be of unquestionable historical importance are often disregarded in the emerging trial narratives. The crime-driven lens is characterised by two important constraints, one qualitative relating to interpretation and the other quantitative relating to scope, both of which will be discussed in this chapter. Firstly, ICTs interpret historical facts using specific legal constructs which have been variously described by historians as “torturing“, “deforming“, or “distorting” history. As will be discussed, criminal law is often more creative than practitioners may like to admit and legal constructs have been adapted to novel or changing realities by means of judicial interpretation. However, it is also true that law is more formal and rigid, and less able to accommodate multi-layered explanations, than history. Secondly, with respect to a given conflict, ICTs are only able to select and focus on the criminal conduct falling within their temporal, territorial, personal and subject-matter jurisdiction. The constraints as to scope may be characterised in terms of external and internal exclusions. For various reasons discussed in this chapter, prosecutors may choose to select and emphasize specific parties and/or categories of criminal activity and de-emphasize others, with consequences for the historical narratives that emerge. These constraints may give rise to significant blind spots in the historical narratives produced by ICTs. Indeed, the focus of the crime-driven lens on ICL core crimes means that other forms of conduct in a conflict, not covered by the core crimes, is often marginalised in the trial narratives, giving rise to potential blind spots. Thus, for instance, as the roles of some of the actors taking part in the exploitation of natural resources in armed conflicts are not currently captured in the core crimes, they are not very visible in the trial narratives emerging from ICTs. Chapter 5 examines a third lens through which judges of ICTs interpret and explain historical events, namely the law-affirming lens. Through this lens, judges of ICTs perceive the operation of international law as based on, and affirming, the moral ideals of “humanity” and, in the past, “civilization”. Through this lens, however, judges also reserve for themselves the prerogative to decide which social practices count as law. As a result of the law-affirming lens, judges of ICTs are only able to offer partial explanations of past events, where law is framed as a force for good. The law-affirming lens, therefore, tends to draw attention away from the potential involvement of law, legal institutions, and legal professionals in sustaining oppressive

34

1 Introduction

regimes. The discussion in this chapter makes use of Zygmunt Bauman’s concept of the “continuity” thesis, as opposed to the “malfunction” thesis, to suggest that, through the law-affirming lens, well-meaning judges, even in liberal states, may fail to realise that law could play a role in oppressive regimes. As such, historical explanations from this lens tend to downplay or overlook the potential involvement of law in oppression. Chapter 6 focuses on aspects of legal epistemology in international criminal adjudication and the important ways in which law’s ways of knowing exert constraints and limitations on the historical narratives that criminal trials are able to produce. While the majority of research on legal epistemology focuses on the truth-conduciveness (or otherwise) of particular policies or rules of procedure and evidence, this chapter will shed light on some of the broader approaches of law’s ways of knowing in the context of history-writing in international criminal adjudication. As emerges from the discussion in this chapter, the relationship between law and history is, at best, “uneasy”. From the perspective of historiography, it may be tempting to dismiss criminal trials as not writing history at all, but serving merely as agents of collective memory or as producing esoteric kinds of “trial” truths, far removed from “ordinary” historical truths. However, as is argued in this chapter, such a view would fail to take into account the complex and entwined relationship between law and history and the fact that, in many cases, historical debates in criminal trials have provided important insights into the underlying factors of an armed conflict. Chapter 7 then proceeds to articulate the middle ground by trying to shift the debate about the proper place of the history-writing function away from the polarised restrictive v. expansive positions. It begins by discussing the value of this function from the perspective of truth and justice, as well as right to truth. From the perspective of truth and justice, broader historical evidence is necessary to understand the alleged crimes and actions of the accused in their contexts. From the perspective of right to truth, moreover, broader historical debates about the contexts in which the alleged crimes occurred promote the core interests of victims, their families and society more generally to know the truths about the armed conflict. In this respect, the historical narratives emerging from criminal trials have helped to shed light on, and make important contributions to, the historical understandings of armed conflicts. These arguments would therefore tend to support a moderate approach that places value on the history-writing function of ICTs, recognising their strengths and comparative advantages, while also acknowledging their respective constraints and limitations. The chapter then proceeds to articulate its normative framework to history-writing, which it calls “responsible history”. A “responsible” approach to the history-writing function reflects, first and foremost, a recognition of the value of this function in international criminal adjudication. As will be discussed, however, in performing this function, judges of ICTs should aim towards truthfulness and the virtues of accuracy and sincerity. They should encourage a pluralist approach to historical evidence, in order to enable them to develop a greater and more accurate understanding of the competing historical contexts. In this respect, subject to the applicable rules of procedure and evidence and the circumstances of each case, they should allow the parties and participants, as applicable, to present and

1.6 Overview

35

substantiate their competing interpretations of historical contexts as relevant to the charges. Drawing on lessons from strict legality, however, the boundary line of this approach is when historical evidence verges on the extraneous and/or impinges on fair trial rights. Moreover, the historical narratives that judges of ICTs write in their judgments should ultimately be self-disruptive and should demonstrate an awareness of their limitations and possible blind spots. Finally, a “responsible” approach to history in international criminal adjudication should reflect a recognition that, far from being the last word, parts of such historical narratives (those not directly linked to the findings of guilt or innocence of the accused) should be viewed as discursive beginnings that will continue to be reinterpreted in the future. Finally, Chap. 8 makes some concluding remarks and observations.

References Aarnbe Langvatn S, Squatrito T (2017) Conceptualising and Measuring the Legitimacy of International Criminal Tribunals. In: Hayashi N, Bailliet CM (eds) The Legitimacy of International Criminal Tribunals. Cambridge University Press, Cambridge, UK Adler N (2018) Introduction: On History, Historians, and Transitional Justice. In: Adler N (ed) Understanding the Age of Transitional Justice. Rutgers University Press, New Brunswick, NJ, US Aguilera ER (2013) Truth and Victims’ Rights: Towards a Legal Epistemology of International Criminal Justice. Mexican Law Review 6: 119–160 Ajevski M (2012) Judicial Law-making in International Criminal law—The Legitimacy Conundrum. In: Crawford J, Nouwen S (eds) Select Proceedings of the European Society of International Law. Bloomsbury Publishing Aksenova M (2017) The Role of International Criminal Tribunals in Shaping the Historical Accounts of Genocide. In: Belavusau U, Gliszczy´nska-Grabias A (eds) Law and Memory: Towards Legal Governance of History. Cambridge University Press, Cambridge, UK/New York, NY, US Al Nahed S, Hammond P (2018) Framing War and Conflict: Introduction to the Special Issue. Media, War & Conflict 11:365–368 Alvarez J (1999) Crimes of States/Crimes of Hate: Lessons from Rwanda. Yale Journal of International Law Arendt H (1992) Eichmann in Jerusalem: A Report on the Banality of Evil. Penguin Publishing Group Arendt H (2005) Truth and Politics. In: Wood D, Medina J (eds) Truth: Engagements Across Philosophical Traditions, 1st edn. Wiley-Blackwell, Malden, MA Arnould V (2006) Justice after Civil Wars: Truth Commissions’ and War Crimes Tribunals’ Contribution to Post-Conflict Reconciliation. Studia Diplomatica 59:141–158 Belavusau U, Gliszczy´nska-Grabias A (eds) (2017) Law and Memory: Towards Legal Governance of History. Cambridge University Press, Cambridge, UK/New York, NY, US Bianchi A (2018) Epistemic Communities. In: d’Aspremont J, Singh S (eds) Concepts for International Law. Edward Elgar, Cheltenham, UK Bilsky L (2004) Transformative Justice: Israeli Identity on Trial. University of Michigan Press Birkenkötter H (2013) Explaining Srebrenica: Establishing a Narrative Through Criminal Trials. Die Friedens-Warte 88:177–205 Bouwknegt TB (2018) The international criminal trial record as historical source. In: Adler N (ed) Understanding the Age of Transitional Justice. Rutgers University Press, New Brunswick, NJ, US

36

1 Introduction

Bringedal Houge A (2018) Narrative expressivism: A criminological approach to the expressive function of international criminal justice. Criminology & Criminal Justice Brooks P (2008) Narrative in and of the Law. In: Phelan J, Rabinowitz PJ (eds) A Companion To Narrative Theory. Wiley-Blackwell, Malden, MA Cassese A (1998) Reflections on International Criminal Justice. The Modern Law Review 61:1–10 Chapman AR (2009) Truth Finding in the Transitional Justice Process. In: van der Merwe H, Baxter V, Chapman AR (eds) Assessing the Impact of Transitional Justice: Challenges for Empirical Research. United States Institute of Peace Press, Washington, D.C, US Cherry J (2009) Truth and Transitional Justice in South Africa. In: van der Merwe H, Baxter V, Chapman AR (eds) Assessing the Impact of Transitional Justice: Challenges for Empirical Research. United States Institute of Peace Press, Washington, D.C, US Combs NA (2010) Fact-Finding without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions, 1st edn. Cambridge University Press, Cambridge, UK/New York, NY, US Combs NA (2018) Deconstructing the Epistemic Challenges to Mass Atrocity Prosecutions. Wash & Lee L Rev 75:223–300 Conrad F (2011) Review of Writing History in International Criminal Trials. By Richard Ashby Wilson. New York, NY, US/Cambridge University Press, Cambridge, UK. NYU J Int’l L & Pol 44:999–1046 Craven M (2016) Theorizing the Turn to History in International Law. In: Orford A, Hoffmann F, Clark M (eds) The Oxford Handbook of the Theory of International Law. OUP Oxford, Oxford, UK d’Aspremont J (2011a) The politics of deformalization in international law. Goettingen Journal of International Law 3:503–550 d’Aspremont J (2011b) Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules. Oxford University Press, Oxford, UK/New York, NY, US De Baets A (2008) Responsible History. Berghahn Books De Vreese CH, Peter J, Semetko HA (2001) Framing Politics at the Launch of the Euro: A CrossNational Comparative Study of Frames in the News. Political Communication 18:107–122 Dittrich VE (2013) Legacies of the International Criminal Court under Construction. Sicherheit und Frieden (S+F) / Security and Peace 31:197–204 Dojˇcinovi´c P (2018) Vladimir Petrovi´c, The Emergence of Historical Forensic Expertise: Clio Takes the Stand. J Int Criminal Justice 16:1124–1127 Douglas L (2005) The Memory of Judgment: Making Law and History in the Trials of the Holocaust. Yale University Press, New Haven, CT, US Douglas L (2006) The Didactic Trial: Filtering History and Memory into the Courtroom. European Review 14:513–522 Douglas L (2016) Truth and justice in atrocity trials. In: Schabas W (ed) The Cambridge Companion to International Criminal Law. Cambridge University Press, Cambridge, UK Druckman JN (2001) The Implications of Framing Effects for Citizen Competence. Political Behavior 23:225–256 Eltringham N (2009) “We are not a Truth Commission”: fragmented narratives and the historical record at the International Criminal Tribunal for Rwanda. Journal of Genocide Research 11:55–79 Entman RM (1993) Framing: Towards Clarification of a Fractured Paradigm. Journal of Communication 43:51 Episteme (2008) Special Issue on Legal Epistemology. Episteme: A Journal of Individual and Social Epistemology 5:251 Evans RJ (2002) History, Memory, and the Law: The Historian as Expert Witness. History and Theory 41:326–345 Fry E (2014) The Nature of International Crimes and Evidentiary Challenges: Preserving Quality While Managing Quantity. In: van Sliedregt E, Vasiliev S (eds) Pluralism in International Criminal Law. OUP Oxford, Oxford, UK

References

37

Fyfe SE (2019) Truth, Testimony, and Epistemic Injustice in International Criminal Law. In: Bergsmo M, Buis EJ (eds) Philosophical Foundations of International Criminal Law: Foundational Concepts. Torkel Opsahl Academic EPublisher Galbraith J (2009) The Pace of International Criminal Justice. Michigan Journal of International Law 31:79 Gallois PM, Vergès J (2002) L’apartheid judiciaire: Le Tribunal pénal international, arme de guerre. L’Age d’Homme, Lausanne, Switzerland Gaynor F (2012) Uneasy Partners—Evidence, Truth and History in International Trials. J Int Criminal Justice 10:1257–1275 Gewirtz P (1998) Narrative and Rhetoric in the Law. In: Brooks P (ed) Law’s Stories: Narrative and Rhetoric in the Law, New Ed edition. Yale University Press, New Haven, CT, US/London, UK Gibson JL (2009) Taking Stock of Truth and Reconciliation in South Africa. In: van der Merwe H, Baxter V, Chapman AR (eds) Assessing the Impact of Transitional Justice: Challenges for Empirical Research. United States Institute of Peace Press, Washington, D.C., US Ginzburg C (1991) Checking the Evidence: The Judge and the Historian. Critical Inquiry 18:79–92 Goffman E (1974) Frame Analysis: An Essay on the Organization of Experience. Harvard University Press, US Haack S (2014) Evidence Matters: Science, Proof, and Truth in The Law. Cambridge University Press, New York, NY, US Havel B (2005) In Search of a Theory of Public Memory: The State, the Individual, and Marcel Proust. 80 Indiana Law Journal 605 (2005) Hirsch M (2016) Invitation to the Sociology of International Law. Oxford University Press, Oxford, UK Hunt T (2004) Whose Truth? Objective Truth and a Challenge for History. In: Schabas W, Darcy S (eds) Truth Commissions And Courts: The Tension Between Criminal Justice and the Search for Truth. Springer Netherlands, Dordrecht, The Netherlands, pp 193–198 Joyce D (2004) The Historical Function of International Criminal Trials: Re-thinking International Criminal Law. Nordic Journal of International Law 73:461–484 Kahneman D (2003) Maps of bounded rationality: A perspective on intuitive judgment and choice. In: Frangsmyr T (ed) Les Prix Nobel: The Nobel Prizes 2002. Nobel Foundation, Oslo, Sweden, p 449 Kelsall T (2009) Culture under Cross-Examination: International Justice and the Special Court for Sierra Leone. Cambridge University Press, Cambridge, UK/New York, US Keydar R (2015) Rethinking Plurality: On Ethics and Storytelling in the Search for Justice. Dibur Literary Journal 1:19 Keydar R (2019) Mass Atrocity, Mass Testimony, and the Quantitative Turn in International Law. Law & Society Review 53:554–587 Koskenniemi M (2002) Between Impunity and Show Trials. In: Frowein JA, Wolfrum R, Philipp CE (eds) Max Planck Yearbook of United Nations. 2002. Vol. 6. Brill, Leiden, The Netherlands/Boston, MA, US, pp 1–35 Koskenniemi M (2006) From Apology to Utopia: The Structure of International Legal Argument. Cambridge University Press, New York, NY, US Koskenniemi M (2010) The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960. Cambridge University Press, Cambridge, UK Kwon O-G (2007) The Challenge of an International Criminal Trial as Seen from the Bench. J Int Criminal Justice 5:360–376 Laudan L (2006) Truth, Error, and Criminal Law: An Essay in Legal Epistemology. Cambridge University Press, Cambridge, UK Levi R, Hagan J, Dezalay S (2016) International Courts in Atypical Political Environments: The Interplay of Prosecutorial Strategy, Evidence, and Court Authority in International Criminal Law. Law and Contemporary Problems 79:26 Manor I, Crilley R (2018) Visually framing the Gaza War of 2014: The Israel Ministry of Foreign Affairs on Twitter. Media, War & Conflict 11:369–391

38

1 Introduction

Marrus M (1997) The Nuremberg War Crimes Trial of 1945–46: A Brief History with Documents, 1st ed. 1997 edition. Palgrave Macmillan, Boston, MA, US McDonald GK (2000) Crimes of Sexual Violence: The Experience of the International Criminal Tribunal. Colum J Transnat’l L 39:1 McMahon PC, Miller JL (2012) From Adjudication to Aftermath: Assessing the ICTY’s Goals beyond Prosecution. Human Rights Review 13:421–442 Mégret F (2002) The Politics of International Criminal Justice. Eur J Int Law 13:1261–1284 Mendeloff D (2004) Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm? International Studies Review 6:355–380 Milanovic M (2016) The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Postmortem. American Journal of International Law 110:233–259 Murphy P (2010) No Free Lunch, No Free Proof Symposium: The Role of Defence in International Criminal Trials. J Int’l Crim Just 8:539–574 Nice G (2017) Justice for All and How to Achieve It: Citizens, lawyers and the law in the age of human rights. Scala Arts & Heritage Publishers Ltd Osiel MJ (1999) Mass Atrocity, Collective Memory, and the Law, 1st edn. Transaction Publishers Payne LA (2009) Confessional Performances. In: van der Merwe H, Baxter V, Chapman AR (eds) Assessing the Impact of Transitional Justice: Challenges for Empirical Research. United States Institute of Peace Press, Washington, D.C., US Peterson J (2007) Unpacking Show Trials: Situating the Trial of Saddam Hussein. Harvard International Law Journal 48:257–292 Petrovi´c V (2016) The Emergence of Historical Forensic Expertise: Clio Takes the Stand. Routledge, Abingdon, UK Phelps T (2011) The Ethics of Storytelling: A Nation’s Role in Victim/Survivor Storytelling. Ethical Perspectives 18:169 Pirker B, Smolka J (2019) The Future of International Law is Cognitive—International Law, Cognitive Sociology and Cognitive Pragmatics. German Law Journal 20:430–448 Posner RA (1988) Law and Literature: A Misunderstood Relation. Harvard University Press, US Reiter EH (2010) Fact, Narrative, and the Judicial Uses of History: Delgamuukw and Beyond. Indigenous Law Journal 8:55 Robinson D (2008) The Identity Crisis of International Criminal Law Hague International Tribunals: International Criminal Tribunals. LJIL 21:925–964 Rogers D (2017) Law, Politics and the Limits of Prosecuting Mass Atrocity. Palgrave Macmillan, New York, NY, US Rothman HK (1993) Historian v. Historian: Interpreting the Past in the Courtroom. Public Historian Sagan A (2010) African Criminals/African Victims: The Institutionalised Production of Cultural Narratives in International Criminal Law. Millennium 39:3–21 Sandberg S, Presser L (2015) Introduction: What is the story? In: Presser L, Sandberg S (eds) Narrative Criminology: Understanding Stories of Crime. NYU Press, New York, NY, US Sander B (2018a) History on Trial: Historical Narrative Pluralism Within and Beyond International Criminal Courts. International & Comparative Law Quarterly 67:547–576 Sander B (2018b) The Method is the Message: Law, Narrative Authority and Historical Contestation in International Criminal Courts. Melbourne Journal of International Law 19:299 Sander B (2018c) Unveiling the Historical Function of International Criminal Courts: Between Adjudicative and Sociopolitical Justice. International Journal of Transitional Justice 12:334 Sarat A, Douglas L, Umphrey MM (eds) (2007) How Law Knows. Stanford University Press, Stanford, CA, US Schabas W (2012) Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals. Oxford University Press, Oxford, UK/New York, NY, US Schabas WA (2018) Time, Justice, and Human Rights: Statutory Limitation on the Right to Truth? In: Adler N (ed) Understanding the Age of Transitional Justice. Rutgers University Press, New Brunswick, NJ, US

References

39

Scheufele DA, Iyengar S (2017) The State of Framing Research: A Call for New Directions. In: Kenski K, Jamieson KH (eds) The Oxford Handbook of Political Communication. Oxford University Press, Oxford, UK SCSL (2009) Prosecutor v. Issa Hassan Sesay, Morris Kallon, Augustine Gbao Simpson G (1997) Didactic and Dissident Histories in War Crimes Trials. Albany Law Review 60:801 Simpson G (2007) Law, War and Crime: War Crimes Trials and the Reinvention of International Law, 1st edn. Polity Press, Cambridge, UK Simpson G (2015) Linear Law: The History of International Criminal Law. In: Schwöbel C (ed) Critical Approaches to International Criminal Law, 1st edn. Routledge, Abingdon, UK Sinnott-Armstrong W, Schauer F (2008) Introduction. Episteme 5:251–252 Stark B (2002) After/word(s): ‘Violations of Human Dignity’ and Postmodern International Law. Yale Journal of International Law 27:315 Stein A (2008) On the Epistemic Authority of Courts. Episteme 5:402–410 Tallgren I (2014) Searching for the Historical Origins of International Criminal Law. In: Bergsmo, M, Cheah WL, Yi P (eds) Historical Origins of International Criminal Law. Torkel Opsahl Academic EPublisher Taylor T (1949) Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials Under Control Council Law No. 19. Department of the Army, Washington, D.C., US Teitel RG (2002) Transitional Justice. Oxford University Press, Oxford, UK Terris D, Romano CPR, Swigart L, Sotomayor S (2007) The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases. Brandeis, Waltham, MA, US/Hanover, NH, US Tromp N (2016) Prosecuting Slobodan Miloševi´c: The Unfinished Trial. Routledge, Abingdon, UK/New York, NY, US UC Berkeley School of Law Human Rights Center (2015) The Victims’ Court? A Study of 622 Victim Participants at the International Criminal Court UN Secretary General, The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, UN Doc. S/2004/616 (2004) v H Holtermann J (2017) ‘One of the Challenges that Can Plausibly Be Raised Against Them?’ On the Role of Truth in Debates about the Legitimacy of International Criminal Tribunals. In: Hayashi N, Bailliet C (eds) The Legitimacy of International Criminal Tribunals. Cambridge University Press, Cambridge, UK Vergès J (2002) La Guerre ‘Zero Mort’: Form Moderne du Genocide. In: Gallois PM, Vergès J (eds) L’apartheid judiciaire : Le Tribunal pénal international, arme de guerre. L’Age d’Homme, Lausanne, Switzerland Verrall S (2016) The Picture of Sexual Violence in the Former Yugoslavia Conflicts as Reflected in ICTY Judgments. In: Brammertz BS, Jarvis M (eds) Prosecuting Conflict-Related Sexual Violence at the ICTY. Oxford University Press, Oxford, UK/New York, NY, US, p 299 Voyager M (2018) Mapping Russian Lawfare as a Pivotal Russian Hybrid Warfare Domain: Implications for the Region and Policy Recommendations. In: Spr¯uds A, Andž¯ans M (eds) Security of the Baltic Sea Region Revisited amid the Baltic Centenary: The R¯ıga Conference Papers 2018. Latvian Institute of International Affairs Waters TW (2010) A Kind of Judgment: Searching for Judicial Narratives after Death. Geo Wash Int’l L Rev 42:279–348 Weigend T (2011) Should We Search for the Truth, and Who Should Do It. North Carolina Journal of International Law and Commercial Regulation White H (1985) The Historical Text as Literary Artifact. In: White H (ed) Tropics of Discourse: Essays in Cultural Criticism, Reprint edition. The Johns Hopkins University Press, Baltimore, MD, US Wiecek WM (1987) Clio as Hostage: The United States Supreme Court and the Uses of History. California Western Law Review

40

1 Introduction

Williams B (2004) Truth and Truthfulness: An Essay in Genealogy. Princeton University Press, Princeton, US Wilson RA (2011) Writing History in International Criminal Trials. Cambridge University Press, Cambridge, NY, US Wood N (1999) Vectors of Memory: Legacies of Trauma in Postwar Europe, 1st edn. Berg 3PL, Oxford, UK

Chapter 2

Approaches to the History-Writing Function in International Criminal Adjudication

Contents 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Theoretical Approaches to History-Writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Restrictive Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 Strict Legality Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 Incompatibility Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Expansive Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.1 Didactic Legality Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Moderate Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.1 Truth and Justice Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.2 Right to Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

41 44 44 44 50 53 53 59 59 64 72

Abstract There is still a significant lack of consensus over the proper place of history-writing in international criminal adjudication. Lawyers and practitioners have adopted varying attitudes to history-writing, ranging from restrictive, strict legality approaches to more expansive didactic legality approaches. However, framing the field in such binary—restrictive v. expansive—terms tends to lead to a polarized debate regarding whether international tribunals should write history, a debate that is out of touch with the practice of ICTs. Given the inevitability of history in international criminal adjudication, rather than asking whether judges of ICTs should write historical narratives, a more productive question is: what kinds of historical narratives should they write? This chapter examines the theoretical arguments for strict, moderate and expansive approaches to history-writing. In so doing, it lays the foundations for addressing the question above by exploring the grounds for a more moderate approach to history-writing in international criminal adjudication. Keywords History-Writing · Criminal Trial · Strict Legality · Incompatibility · Didactic Legality · Truth and Justice · Right to Truth

2.1 Introduction This chapter will explore different theoretical approaches to the history-writing function in international criminal adjudication. Research in this area has indicated that © T.M.C. Asser Press and the author 2021 A. Zammit Borda, Histories Written by International Criminal Courts and Tribunals, International Criminal Justice Series 26, https://doi.org/10.1007/978-94-6265-427-3_2

41

42

2 Approaches to the History-Writing Function …

there is still a significant lack of consensus over the proper place of history-writing in international criminal adjudication amongst judges, prosecutors and other legal practitioners.1 In criminal proceedings, judges have adopted varying attitudes to history-writing: in some cases, they have downplayed the role of history-writing, regarding it as merely a by-product of international criminal adjudication, rather than a priority for ICTs. In these cases, in balancing the competing priorities of criminal trials, the history-writing function would not usually be accorded significant value.2 However, in other cases, they have recognised the unique role that ICTs may play in generating knowledge about armed conflicts.3 They have also acknowledged the growing importance of the right to truth and paid greater attention to the historical legacies of ICTs.4 Given this lack of consensus, the question of the proper place of history-writing function is likely to remain “a recurrent motif of war crimes proceedings”.5 Moreover, particularly at the ICC, with the increasing participation of victims and the growing emphasis on the right to truth, attitudes towards this function will continue to evolve. The point of departure for this discussion is that ICTs, deliberately or otherwise, produce historical knowledge. Peskin notes that ICTs inevitably engage and shape historical discussions of armed conflicts. Whether we like it or not, “historical discussions are here to stay at international tribunals”.6 Nevertheless, and despite the close interlinkage between doing justice and writing history at ICTs, some scholars and practitioners have tended to downplay this latter aspect of the work of ICTs. For instance, in his interviews with legal practitioners at the ICTR, Eltringham detected “a strong belief that enacting law and writing history are discrete endeavours”.7 The practitioners that Eltringham interviewed tended to frame the field within the restrictive (criminal trials) v. expansive (truth commissions) views to history-writing. This caused the author to wonder, in terms of method and practice, “can these distinctions be maintained?”8 Framing the field in such binary—restrictive v. expansive—terms tends to lead to “the polarized debate regarding whether international tribunals should tell history”,9 a debate that is sterile and out of touch with the practice of ICTs. Given the inevitability of history in international criminal adjudication, rather than asking whether judges of ICTs should write historical narratives, a more productive question is: what kinds of historical narratives should they write? 1 Eltringham

2009, p. 55. for instance, ICTY, Stanisi´c et al., Decision Pursuant to Rule 73bis (D), 2008, IT-03-69-PT, para 21. 3 ICTY, Prosecutor v. Halilovi´ c, Motion for Judicial Notice, 2005, IT-01-48-T, para 9. 4 ICTY, Prosecutor v. Karadži´ c and Mladi´c, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 1996, IT-95-5-R6, IT-95-18-R61, para 3. 5 Simpson 1997, p. 825. 6 Peskin 2013, p. 771. 7 Eltringham 2009, p. 56. 8 Ibid., p. 59. 9 Peskin 2013, p. 770. 2 See,

2.1 Introduction

43

This question is important because, in their management of trial proceedings, judges play a central role in determining how restrictive and/or expansive the approaches to historical evidence should be. They do this, for instance, through their decisions on the admissibility of historical and contextual evidence. Hirsch makes the point that judges “have discretion and may, for example, adopt either an expansive approach (elaborating on the particular historical narrative) or a restrictive approach (succinctly presenting the most essential facts needed to resolve the legal question)”.10 Of course, there are limits to their discretion. The kinds of historical narratives that judges of ICTs can write in specific cases are contingent on several factors, only some of which fall within their purview. Trial judges have limited discretion over some aspects which may, nevertheless, have a significant impact on the ensuing historical narratives, including the framing of the charges, discussed in Chap. 4. However, trial judges do have important discretion with respect to: (a) decisions on relevance and admissibility of historical evidence; (b) decisions on how to balance competing truth-seeking objectives at trial against other, non-epistemic values (discussed in Chap. 6); as well as (c) decisions on the extent to which to allow the airing of competing historical narratives at trial. As a result, judges have an important role with respect to the kinds of historical narratives that may emerge from criminal proceedings. They could use their discretion to allow, in Hirsch’s formulation, a more expansive or more restrictive approach to historical narratives. It is this question—what kinds of historical narratives should they write?—that has generated much debate and controversy in the scholarship and which remains, and is likely to remain, unresolved.11 Simpson submits that “[c]ertainly, we now know that there is a balance to be struck between history and law, between extraneous evidence and best evidence, and between context and act.”12 But how should that balance be struck? Where should the line be drawn between judging crimes and producing narratives of the past?13 As Wilson found, in his study of international tribunals, this is a dynamic and shifting line, and the relationship between law and history is “in constant motion and fluctuates widely over the life of the same Tribunal”.14 The following section will review some of the main theoretical approaches that offer insights into the value and place of the history-writing function in international criminal adjudication.

10 Hirsch

2019, p. 403. 2012, p. 1257. 12 Simpson 2015, p. 159. 13 Bilsky 2004, pp. 237–8. 14 Wilson 2011, p. 136. 11 Gaynor

44

2 Approaches to the History-Writing Function …

2.2 Theoretical Approaches to History-Writing As discussed above, conventionally, this area has been dominated by two opposing views: “one, that such trials should fulfil the legal purposes of delivering justice and meting out punishment, and another that stresses the importance of their extralegal objectives to establish truth and document history”.15 However, as will be shown, the theoretical spectrum is more nuanced than that. Given the several competing priorities of international criminal justice and the need, in each case, to balance such priorities against each other, different theoretical approaches provide varying (at times, complimentary, at other times, competing) perspectives on the proper place of history-writing in the equation. It is convenient to recall, in this context, Hirsch’s comment that approaches to history-writing may range from restrictive approaches (where judgments succinctly present the most essential facts needed to resolve the legal question), to expansive approaches (where judgments elaborate broader historical narratives).16 As will be shown, different theoretical approaches place different weight on the history-writing objective, which may be mapped along a restrictive-moderate-expansive spectrum. With respect to each approach, the analysis below will consider towards which end of the spectrum (restrictive, moderate or expansive) it tends to fall. Particularly with respect to restrictive approaches, this discussion builds on Wilson 2011.17

2.3 Restrictive Approaches 2.3.1 Strict Legality Approach The key tenet of the strict legality framework is that “[t]he central purpose of criminal prosecution remains the deterrence of, and retribution for serious wrongdoing”.18 This framework places emphasis on the court’s primary function of determining whether the alleged crimes occurred and, if so, whether the defendant can be held criminally responsible for them.19 It takes a dim view of any ulterior purposes that are not strictly legal, including the writing of historical narratives. As such, this framework falls at the restrictive end of the spectrum. This approach to historywriting is often traced back to Hannah Arendt in her Eichmann in Jerusalem: A Report on the Banality of Evil where, in an oft-quoted excerpt, Arendt held that: 15 Tromp

2016, p. 18. 2019, p. 403. 17 Wilson 2011, p. 1. 18 Osiel 1999, p. 293. 19 Wilson 2011, p. 3. Wilson refers to this theoretical framework as “liberal legalism”. The term “strict legality” is preferred here in order to clearly distinguish this approach with its opposite, “didactic legality”. 16 Hirsch

2.3 Restrictive Approaches

45

[t]he purpose of a trial is to render justice, and nothing else; even the noblest of ulterior purposes – “the making of a record of the Hitler regime which would withstand the test of history,” as Robert G. Storey, executive trial counsel at Nuremberg, formulated the supposed higher aims of the Nuremberg Trials – can only detract from the law’s main business: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment.20

On one reading, Arendt’s position could be seen as wholly resistant to historywriting. Her statement that the purpose of a trial is “to render justice, and nothing else” appears to support this view and has been characterised by Wilson as the “justiceand-nothing-more” doctrine.21 However, on another, broader reading of Arendt’s work, hers should be seen as: a call for moderation of the scope of the epistemic ambition of ICTs. Here, the point is merely that we cannot reasonably expect of ICTs that they provide a ‘historical record’ in the sense of a full, comprehensive, wall-to-wall narrative of the conflicts over which they have jurisdiction.22

A broader reading of Eichmann in Jerusalem, suggests that Arendt’s arguments in relation to the writing of history in criminal trials were more nuanced than a black and white, “justice-and-nothing-more” doctrine. She accepts the inescapability of a certain, moderate level of history-writing in order to make sense of, and explain, the actions and influences of the accused. She argues, however, that judges of criminal courts should not overreach and admit historical evidence that is extraneous to the charges. She, thus, develops a two-tiered approach to history-writing. The first tier consists in evidence (including any historical evidence) that is directly relevant to the alleged crimes of the accused: this should take centre-stage at trial. Such historical evidence may be particularly pertinent to those categories of crimes, such as genocide and persecution, that require proof of discriminatory intent. For instance, the crime of genocide requires proof of dolus specialis on the part of the accused, in that, the accused must have acted with intent to destroy, in whole or in part, a protected group, as such. Thus, particularly in the absence of a “smoking gun” showing such intent, the prosecution may have to rely on circumstantial evidence and its case may be assisted if it can connect violent methods with political and historical objectives which were held by the accused.23 In such cases, recourse to historical discussion is inevitable because it is legally relevant to elaborate the mens rea requirements. Tromp notes that charges such as genocide, which emphasise the collective nature of the crime, compel the court to situate individual acts within longterm, systematic policies.24 Similar considerations may apply to other categories of crimes, such as crimes against humanity, which need to be “widespread and systematic”, implying a close examination of both the historical and social settings 20 Arendt

1992, p. 253. 2011, p. 4. 22 v H Holtermann 2017, p. 218. 23 Wilson 2011, p. 21. 24 Tromp 2016, p. 21. 21 Wilson

46

2 Approaches to the History-Writing Function …

in which those crimes occurred.25 In an interview with Wilson, an experienced ICTY Attorney stated: [w]e have to prove a widespread and systematic attack upon a civilian population, so we have to explain the whole context of a crime, what was happening around it and how the crime was part of a plan. This cannot be avoided. As long as a crime against humanity is the crime we are prosecuting at the Tribunal, you have to know the background of the crime. That’s why history discussions occur in cases.26

With respect to the second tier, Arendt argues that historical accounts that go beyond the person of the defendant should only be included “insofar as they form the background and the conditions under which the defendant committed his acts”.27 This approach is different from saying that judges should refrain from admitting any broader historical evidence altogether. Through this second tier, Arendt seemed to accept a more moderate approach to historical evidence as, naturally, the question of whether historical accounts are seen as relevant to the background and the conditions under which the defendant committed his acts may vary. The net may be cast narrowly or more widely: it would however run foul of Arendt’s framework if it is cast so widely as to include evidence that is extraneous to the charges. In Arendt’s words: [t]he focus of every trial is upon the person of the defendant, a man of flesh and blood with an individual history, with an always unique set of qualities, peculiarities, behavior patterns, and circumstances. All the things that go beyond that, such as the history of the Jewish people in the dispersion, and of anti-Semitism, or the conduct of the German people and other peoples, or the ideologies of the time and the governmental apparatus of the Third Reich, affect the trial only insofar as they form the background and the conditions under which the defendant committed his acts. All the things that the defendant did not come into contact with, or that did not influence him, must be omitted from the proceedings of the trial […].28

Arendt advanced her restrictive approach to history-writing in reaction to the broad didactic objectives pursued by Prime Minister Ben Gurion and Prosecutor Gideon Hausner. Arendt was appalled with what she perceived as their concept of trial as “public lesson”.29 As Bilsky notes, Arendt was highly critical of Hausner’s “digressions from the narrow framework of a criminal trial – his constant attempts to ‘draw the big picture’ of the Jewish tragedy – as signs of his political agenda”.30 In order to achieve his didactic objectives, Hausner “put witness after witness on the stand who testified to things that, while gruesome and true enough, had no or only the slightest connection with the deeds of the accused”.31 Arendt thus developed her strict legality arguments, not because she necessarily saw law and history as antithetical, but as an antidote to the dangers, personified by Hausner in the Eichmann trial, that history-writing and didactic aims could eclipse the primary objectives of criminal 25 Wilson

2011, p. 21. in Ibid., p. 19. 27 Arendt 1992, p. 285. 28 Ibid. 29 Petrovi´ c 2016, p. 203. 30 Bilsky 2004, p. 94. 31 Douglas 2005, p. 110. 26 Cited

2.3 Restrictive Approaches

47

trials. The didactic approach carried the risks, moreover, of extraneous and immaterial evidence being readily admitted at trial, raising issues of due process. Having said this, however, in her later writings, Arendt appears to have abandoned “the legalistic framework into which she had tried to fit the trial”,32 and to have acknowledged the critical role of courts as truthtellers, in order to protect truth against “the onslaught of power; [where] it is always in danger of being maneuvered out of the world not only for a time but, potentially, forever.”33 As will be discussed below, some have been quite critical of Arendt’s restrictive approach and of her opposition to didactic trials. Shklar, for instance, has questioned whether it is realistically possible to separate “law” and “non-law” in criminal trials.34 Nice notes that, even assuming Arendt’s narrow view of the function of the law is right, it is not “that easy, even with the best will in the world, to confine its output or effect in the way she might have preferred.”35 Douglas has posited that: [t]o insist, however, as Arendt does, that the sole purpose of a trial is to render justice and nothing else, presents […] a crabbed and needlessly restrictive vision of the trial as legal form.36

These critiques notwithstanding, Arendt’s restrictive approach is still, formally, the dominant approach to history-writing in international criminal adjudication. It is favoured by judges and legal practitioners, who are wary of the uneasy relationship between judging crimes and writing history and the risks to due process that pursuing extra-legal objectives, such as writing history, may entail. From a strict legality perspective, undue concern with history-writing runs the risk of undermining the legitimacy of the legal system.37 Buruma argues that a trial that was too concerned with writing history ran the risk of descending into a show trial. He holds that: “[j]ust as belief belongs in church, surely history belongs in school”. Buruma warns that “when the court of law is used for history lessons, then the risk of show trials cannot be far off.”38 When the teaching of a broader historical lesson becomes a key concern of a trial, there is a greater risk that irrelevant, extraneous evidence would be admitted into the trial record, giving rise to fair trial concerns. Peterson notes that “[i]rrelevant evidence has been a concern in many show trials where the prosecution has sought to tell a larger story.”39 While the danger of extraneous and irrelevant evidence is most worrying with respect to show trials, it could also arise in otherwise legitimate criminal trials. For instance, in Eichmann, the prosecution introduced more than a hundred witnesses, most of them Holocaust survivors, whose testimony did not directly relate to proving Eichmann’s guilt.40 This was because, as discussed above, 32 Bilsky

2004, p. 114. 2005, p. 297. 34 Shklar 1986, p. 155. See also Kirchheimer 1961, pp. 47–8. 35 Nice 2017, p. 52. 36 Douglas 2005, p. 2. 37 Wilson 2011, p. 3. 38 Buruma 1995, p. 142. 39 Peterson 2007, p. 273. 40 Keydar 2019, p. 567. 33 Arendt

48

2 Approaches to the History-Writing Function …

the prosecution (and the State more generally) saw the trial as an opportunity to chronicle the Holocaust and the suffering of its remaining witnesses. In this case, the judges were reluctant to abbreviate the testimony of these survivors, and even the defence failed to object when obviously extraneous evidence was presented.41 Thus, for instance, in his extended historical testimony on European Jewry, Professor S. W. Baron did not mention the defendant’s name a single time. Reflecting on this testimony, Landsman wrote that: [t]he troublingly inflammatory nature of such testimony, which dwells not on the defendant’s deeds but on the merits of suffering of the victims and the irrevocable loss to the Jewish people, was not remarked by either defense council or the court. It was central to the Holocaust story the prosecution set out to tell and had been laid at Eichmann’s door whether it was his responsibility or not.42

In addition to fair trial considerations, another ground for taking a strict view of history-writing in international criminal proceedings is the language of the founding instruments of the ICTs. For instance, the UN Security Council Resolution 808 of 1993, which established the ICTY to prosecute those “responsible for serious violations of international humanitarian law” in the former Yugoslavia, made no mention of any history-writing objectives.43 Moreover, Resolution 827 of May 1993 specified that the ICTY was established for “the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia […]”.44 Again, no mention of history-writing was made in this resolution. Neither was there a mandate to narrate the history of an armed conflict in the resolution establishing the ICTR, nor in the Rome Statute of the ICC. Consequently, strict legalists argue that it would not be appropriate for ICTs to pursue history-writing objectives without an express mandate.45 However, even though the statutes of such ICTs do not provide for an explicit history-writing mandate, in view of their recognised roles as epistemic engines, it is certainly possible to argue that such a mandate is implicit, particularly when one refers to their provisions on truthseeking. For instance, writing in relation to the Rome Statute, v H Holtermann argues that even though the Statute does not expressly include a history-writing function, we are still dealing with institutions that: habitually instruct witnesses to ‘speak the truth, the whole truth and nothing but the truth’, that require the Prosecutor ‘to establish the truth’, and that authorise the Court ‘to request the submission of all evidence that it considers necessary for the determination of the truth’. […] At the very least, this serves to remind us that it would be flatly inconsistent for ICTs to completely denounce the ambition of uncovering the truth.46 41 Simpson

1997, p. 825; Cryer 2003, p. 419. in Petrovi´c 2016, p. 173. 43 UN Security Council Resolution 808 (1933), S/RES/808 1993. 44 UN Security Council Resolution 827 (1993), S/RES/827 1993, para 2 (emphasis added). 45 Wilson 2011, p. 16. It is also, however, possible to argue that “[t]he objectives of international criminal courts and tribunals are not well defined in their constitutive instruments”: see Aksenova 2017b, p. 52. 46 v H Holtermann 2017, p. 217. 42 Cited

2.3 Restrictive Approaches

49

The doctrine of strict legality continues to play a key role in influencing attitudes to history-writing in international criminal adjudication. Nice notes that “all judges at all these courts say that they do not write history in their judgments.”47 Similarly, Fry argues that adherents of strict legality distance themselves from the idea that the history-writing function is an explicit purpose of criminal trials, though some agree that it should be taken into consideration as a “side effect” of trials.48 In Stanisi´c et al., the ICTY Trial Chamber pushed back on the Prosecutor’s arguments that broad indictments were necessary to establish a historical record of the events in the Balkans. The judges emphasised that “the Tribunal was established to administer justice, and not to create a historical record. The Trial Chamber will therefore not consider this argument as relevant.”49 In Milutinovi´c, the ICTY Trial Chamber held that it had “one core task: to determine whether the Prosecution had proved the guilt of any of the Accused on any of the charges”. Even judges such as Cassese, who have underscored the importance of the history-writing function, nevertheless, readily admitted that: the primary task of this Trial Chamber was not to construct a historical record of modern human horrors in Bosnia-Herzegovina. The principal duty of our Trial Chamber was simply to decide whether the six defendants standing trial were guilty of partaking in this persecutory violence or whether they were instead extraneous to it and hence, not guilty.50

At the ICTR, judges similarly underscored that writing a historical account was not an intentional end of the Tribunal. For instance, one of the ICTR judges interviewed by Eltringham stated that: [w]e are not a truth commission. It’s a different kind of body to the South African Commission, Sierra Leone etc. These are there to establish an historical record, to fill in gaps. But, these Tribunals do not have that objective as a primary purpose. We allow counsel to go into the historical record, but our primary objective is to determine the guilt or innocence of the individual.51

From his interviews at the ICTR, Eltringham found that, by suggesting that historical narratives were inevitable results, but not primary purposes of the Tribunal (implying that they were a secondary consequence); and that they were “general” rather than “specific” (immediate) outcomes, judges conceded that such narratives were an unavoidable by-product, but denied their centrality to the primary task of determining individual guilt.52 Moreover, it is not just international judges, but the many staff of ICTs, including prosecution and defence lawyers, who also tended to endorse strict legality. Wilson notes that, as might be expected, many staff at ICTs adhere to some version of strict legality. Even if they qualify their views, “they generally endorse a fairly restricted crime-based evidentiary approach to determining 47 Nice

2017, p. 55. 2014, p. 260. 49 ICTY, Stanisi´ c et al., Decision Pursuant to Rule 73bis (D), 2008, IT-03-69-PT, para 21. 50 ICTY, Kupreški´ c et al., Oral Summary of Judgment, Trial transcript at T.12972, 2000, IT-95-16-T. 51 Eltringham 2009, p. 57. 52 Ibid. 48 Fry

50

2 Approaches to the History-Writing Function …

individual criminal responsibility.”53 Nevertheless, in spite of the professed adherence of judges and international practitioners to strict legality, as Nice notes, “this says nothing of the actual power of the trials to write the history, no matter what the judges [and others] may say.”54

2.3.2 Incompatibility Theory While strict legality arguments place emphasis on the proper objectives of criminal trials, arguments from incompatibility theory place emphasis on the distinctive methods and approaches of law and history, a subject which is considered in more detail in Chap. 6. The central argument here is that because of the distinctive epistemological foundations and methods of law and history, criminal trials cannot “serve the needs of history, memory and justice simultaneously”.55 In this respect, several historians have argued that, when judges come to balance the competing priorities of criminal trials, it is often history-writing that will get the short end of the stick. As a result, the histories emerging from criminal trials have often been characterised as “bad” or “distorted”.56 For instance, Wilson notes that, in some cases, ICTs have produced “mediocre historical accounts of the origins and causes of mass crimes”.57 Like strict legality, therefore, incompatibility theory advocates for a more restrictive approach to history-writing in criminal trials. Petrovi´c traces the origins of the presumption of incompatibility between law and history to the late nineteenth and early twentieth centuries. According to the author, in this period, the view that passing judgment on the past was neither possible nor desirable gained ascendency in history. As a result, “history and law ended up on a collision course characterized by deep structural misunderstanding”.58 Today, the incompatibility theory continues to draw attention to the diverging methods and approaches of law and history. For instance, Evans notes that: in criminal trials the central issue is that of guilt or innocence, concepts which are not only far from central to the historian’s enterprise but also, some would argue, entirely alien to it; for what historians are, or should be, engaged in, is explanation and interpretation, not moral judgment.59

Indeed, some historians have argued that, rather than moral judgment, history’s primary purpose should be explaining and understanding the past.60 Nora, for 53 Wilson

2011, p. 5. 2017, p. 56. 55 Wood 1999, p. 115. 56 Gevers 2015, p. 231. See also Cryer 2011, p. 10 (fn5). 57 Wilson 2011, p. 1. 58 Petrovi´ c 2016, p. 39. 59 Evans 2002, p. 330. 60 Ibid., p. 345. 54 Nice

2.3 Restrictive Approaches

51

instance, has argued that history should not concern itself with ascribing praise or blame to individuals, but rather with tracking long-term social and institutional change.61 In this respect, some historians have maintained that through law’s Manichean idiom, the historian’s voice loses nuance and subtlety, becomes somehow false.62 Thus, as Latour points out, the disciplines have differing purposes and “[i]t is now essential that science should not be asked to judge and that law should not be asked to pronounce truth.”63 One clear area of difference is how both disciplines deal with incoherence and ambiguity. Law demands definite and verifiable evidence typically produced through scientific forensic methods. History, however, is more pluralistic and interpretative in both its methods and conclusions.64 The French historian Henry Rousso has been one of the staunchest critics of historywriting in trials. He emphasized the “incommensurability between historical and legal discourses […]”.65 Rousso and other historians posed the question of whether it was even possible for historical truth to find proper expression in a courtroom, given the necessary differences between juridical discourse and historical discourse. From this perspective: the historian could not describe ‘what had happened’, but only attempt, on the basis of available traces and navigating ‘between islands of established truths in an ocean of uncertainty’, to reconstitute a plausible account of events. By contrast, justice demanded to know exactly ‘what had happened’ in order to make judgements based on the balance of evidence.66

Other scholars have pointed to law’s rules of procedure and evidence and have argued that “the procedural norms that govern a criminal trial render it a flawed tool for comprehending traumatic history”.67 Thus, for instance, Damaška lists a number of predominantly structural and procedural reasons why international criminal courts could produce poor histories, including time constraints, distinctive legal doctrine, burdens of proof and the adversarial nature of criminal trials.68 In view of the limitations of law in writing history, proponents of the incompatibility theory have argued that criminal trials should, as far as possible, stir clear of attempting to write historical narratives. In this respect, a former judge of the ICTY, Wald, has noted that “commentators, citizens, and officers of the implicated countries increasingly suggest that the adversarial trial process and the findings of judges may not produce the best approximations of history.”69 And in a similar vein, Aksenova asks: “is it reasonable to vest a single trial, albeit an international or a transitional one, with the responsibility of producing a historically accurate account 61 Nora

1989, pp. 11–12; Osiel 1999, p. 101. 2016, p. 34. 63 Latour 2009, p. 113. 64 Wilson 2011, p. 7. 65 Cited in Wood 1999, p. 124. 66 Ibid., p. 123. 67 Douglas 2005, p. 3. 68 Damaška 2007, pp. 335–8. 69 Wald 2001, pp. 116–117. 62 Douglas

52

2 Approaches to the History-Writing Function …

of mass atrocities?”70 The author argues that the challenge is that a court of law, even a well-resourced international one, is not designed to make value judgments about history, but rather to adjudicate on a narrow set of facts, using the constrained list of available tools.71 Writing in relation to the post-WWII tribunals, Shklar held that: “[h]istory had to be tortured throughout in order to reduce events to proportions similar to those of a model criminal trial within a municipal system.”72 And Bloxham famously argued that the war crimes trials: did little to clarify conceptualizations of Nazi criminality in the public sphere anywhere. Sometimes they actually muddied the waters by drawing attention away from the victims of Nazi genocide and onto much more ambiguous symbols of suffering. […] The prosecutorial investigations and judicial pronouncements on the Holocaust were indelibly marked by interpretative distortions that stemmed both from preconception and from the legal process itself, and these, it is argued, had repercussions for later historical writing.73

ˇ Similar criticisms have been levelled at more recent ICTs. For instance, Cavoški has argued that international judges do not have the capacity or competence to write history and, with reference to some ICTY judgments, for instance, they have tended to rewrite history.74 In view of the constraints and limitations of ICTs with respect to history-writing, therefore, Marrus argues that trials cannot and should not be expected to do the job of historians to write and teach history. Writing in relation to the Holocaust, he takes the view that “we [historians] should not look to trials to validate our general understanding of the Holocaust or to provide a special platform for historical interpretation.”75 At its most extreme, this view considers the interests of justice and truth as “fundamentally incompatible”.76 It is not just the limitations and peculiarities of criminal trials per se that cause proponents of incompatibility theory to feel uneasy about ICTs engaging in historywriting. It is also the fact that ICTs usually enjoy privileged positions and command widespread attention on account of their global status. As a result, there is a danger that the historical narratives they produce, even bad or distorted ones, will be treated as authoritative. For instance, Bouwknegt argues: [c]onsidering the fact that the authoritativeness of their stories are overpromised by their protagonists, overrated by their readers, and distorted by their critics, the consequences of this courtroom storytelling can be devastating, particularly when the evidence turns out to be unavailable, fluid, unconvincing, unreliable, manipulated, or pointing in a different direction. […] To treat a trial judgment […] as an objective and authoritative account of history can have a devastating social impact.77 70 Aksenova

2017a, p. 494.

71 Ibid. 72 Shklar

1986, p. 147. 2003, p. 2. 74 Cavoški ˇ 2002, p. 81. 75 Marrus 2002, p. 235. 76 Douglas 2016, p. 34. 77 Bouwknegt 2018, pp. 129–30; Drumbl 2003, p. 175. 73 Bloxham

2.3 Restrictive Approaches

53

It is sometimes assumed that what is recorded within the courtroom can constitute the irrefutable history of the past.78 Sander notes that the rhetoric that has tended to accompany the operation of ICTs has often emphasized “the importance of producing a clear and authoritative historical account”.79 In this vein, for instance, former ICTR President Judge Byron suggested that “among the most basic and most important of the Tribunal’s achievements has been the accumulation of an indisputable historical record”.80 These sentiments only serve to heighten expectations that ICTs are capable of acting as mechanisms of historical closure.81 For proponents of the incompatibility theory, this is “both intellectually circumspect and historically dangerous”.82 For these reasons, proponents of this approach have urged more cautious and restrictive approaches to history-writing in criminal trials. Finally, together with incompatibility theory, it is also possible to identify some other critiques advocating for a more restrictive approach to history in criminal trials. For instance, Wilson refers to a Dickensian “law is an ass” view, the partiality thesis, and the view that law is monumentally boring, all of which tend to encourage a restrictive approach to the history-writing function in ICTs.83

2.4 Expansive Approaches 2.4.1 Didactic Legality Approach At the other end of the spectrum, we find didactic legality, which envisages criminal trials as tools of “collective pedagogy”.84 Didactic legality encourages an expansive approach to history-writing, often spilling into memory politics, and holds that mass atrocity trials should actively seek to write history and shape collective memory.85 Osiel, for instance, argues that prosecutors and judges in mass atrocity trials “rightly aim to shape collective memory of horrible events in ways that can be both successful as public spectacle and consistent with liberal legality.”86 While this approach accepts that the central purpose of criminal prosecution remains the deterrence of, and retribution for serious wrongdoing, it challenges the view that “the sole legitimate object of a criminal trial is the administration of criminal justice”.87 Didactic legality also 78 Herencia

Carrasco 2017, p. 409. 2018a, p. 549 (emphasis added). 80 ‘Judge Denis Byron’s Address to the UN General Assembly’ ICTR Newsletter (October 2008), p. 1; Sander 2018a, p. 549. 81 Sander 2018a, p. 549. 82 Hunt 2004, p. 193. 83 Wilson 2011, p. 6. 84 Douglas 2005, p. 2. 85 Ignatieff 1996, p. 114. 86 Osiel 1999, p. 2. 87 Douglas 2005, p. 110. 79 Sander

54

2 Approaches to the History-Writing Function …

rejects the view of strict legality that the introduction of “wider purposes” will always, in effect, detract from the law’s main business.88 Douglas argues that strict legality’s rules-based vision of the law has been widely challenged in terms of both its descriptive and normative adequacy.89 From this perspective, strict legality is viewed as being out of sync with reality. For instance, legal realists have posited that rules fail meaningfully to constrain and guide judges in the actual business of deciding cases, while scholars associated with critical legal studies have argued that “the dream of an entirely formal jurisprudence is at best delusory and at worst pernicious”.90 Douglas draws on narrative jurisprudence theory to make the point that rules fail to exhaust the universe of what counts as law, and to “insist on a more capacious understanding of the legal”.91 In this respect, didactic legality places emphasis on extralegal goals of criminal trials, in particular, the goal of teaching lessons. According to Osiel, there is no reason to assume any incompatibility between this extralegal goal and the more conventional goals of criminal trials.92 Indeed, proponents of didactic legality have sought to rehabilitate the notion of “show trial”. In its “non-pejorative” sense, a show trial denotes attention to external audiences. Peterson argues that the potentially positive aspects of a show trial can come to the fore in the wake of mass atrocity “when there is a need to re-establish systems of justice and to reassess history”.93 Osiel asserts that “[l]iberal show trials are ones self-consciously designed to show the merits of liberal morality and to do so in ways consistent with its very requirements”.94 For instance, according to Douglas, the post-WWII trials were “show trials” in this sense, in that these trials were “orchestrations designed to show the world the facts of astonishing crimes and to demonstrate the power of law to reintroduce order into a space evacuated of legal and moral sense”.95 In a narrow sense, most legal practitioners would concede that criminal trials serve certain didactic ends insofar as they regard deterrence as a legitimate aim of such trials.96 As Osiel notes, given that deterrence is directed toward the future, in order for the deterrent effect to be meaningful, one aim of criminal trials is to teach lessons to audiences beyond the courtroom about what conduct is considered objectionable.97 However, didactic legality proceeds beyond this narrow sense and holds that a primary objective of criminal trials should be to teach wider lessons for a variety of interconnected reasons often associated with transitional justice, including: 88 Ibid. 89 Ibid.,

p. 112.

90 Ibid. 91 Ibid. 92 Osiel

1999, p. 305. 2007, p. 265. 94 Osiel 1999, p. 65. 95 Douglas 2005, p. 3. 96 For a critique of deterrence in international criminal law, see Sander 2019, p. 181. 97 Osiel 1999, p. 18. See also the discussion of expressive theories of punishment in Chertoff 2016, p. 1071. 93 Peterson

2.4 Expansive Approaches

55

(a) to establish a historical account for posterity (in particular, for the youth and future generations); (b) to facilitate public deliberations of the past;98 and (c) to promote democratic transitions. In this context, didactic legality supports an expansive approach to history-writing which, inter alia, encourages the introduction of extraneous evidence into trial (evidence not strictly related to the crimes or modes of liability charged), if this evidence is nevertheless conducive towards achieving the stated didactic ends.

2.4.1.1

To Establish Incredible Events

In his report on Nuremberg, Justice Jackson held that the criminal trial was necessary to “establish incredible events by credible evidence”.99 One of the main reasons for writing this history, according to Jackson, was to forestall incredulity and denialism by future generations. He stated “[u]nless we write the record of this movement with clarity and precision, we cannot blame the future if in days of peace it finds incredible the accusatory generalities uttered during the war.”100 Similarly, in Eichmann, Marrus states that “the Israeli leadership had an unabashedly didactic objective in launching proceedings against Adolf Eichmann in 1960”.101 Israel’s prime minster, Ben-Gurion, was a foremost supporter of didactic legality objectives with respect to the trial of Eichmann. He considered that that trial should serve to teach lessons to different categories of audiences, including Jews and Gentiles, to Israelis and Arabs, and to the whole world.102 He outlined these lessons, before the trial started, in a number of articles designed to explain why Israel had kidnaped the accused. For the non-Jewish world, the lesson was that “[w]e want to establish before the nations of the world how millions of people, because they happened to be Jews, and one million babies, because they happened to be Jewish babies, were murdered by the Nazis.”103 Another lesson was directed to the Jews in the Diaspora, who were to remember how Judaism: four thousand years old, with its spiritual creations and its ethical strivings, its Messianic aspirations, had always faced “a hostile world”, how the Jews had degenerated until they went to their death like sheep, and how only the establishment of a Jewish state had enabled Jews to hit back, as Israelis had done in the War of Independence, in the Suez adventure, and in the almost daily incidents on Israel’s unhappy borders.104

Yet another lesson of the Eichmann trial was reserved for the youth to “remember what happened to the Jewish people. We want them to know the most tragic facts 98 See

UN Document A/52/PV.44, p. 2, cited in Schabas 2012, p. 159. 1945, pt III (para 4). 100 Jackson 1945. 101 Marrus 2002, p. 225. 102 Arendt 1992, p. 9. 103 Cited in Ibid., pp. 9–10. 104 Cited in Ibid. 99 Jackson

56

2 Approaches to the History-Writing Function …

in our history.”105 As for Ben-Gurion, for Hausner, the prosecutor in Eichmann, it was history that “stood in the center of the trial”.106 Through the Eichmann trial, Hausner wanted to establish the big picture of the Holocaust.107 Echoing a point made by Telford Taylor with respect to the Nuremberg prosecution of Nazi physicians,108 Koskenniemi remarks that, in that trial, the didactic objectives of the trial were central and the significance of the trial extended well beyond the punishment of the accused: [w]hile the prosecution of Eichmann in Jerusalem in 1961 […] was almost universally held to be necessary, few thought that the necessity lay in the need of punishing Eichmann, the person. He was, after all, only a cog in the Nazi killing machine. Instead, the trial was held to be necessary in order to bring to publicity the full extent of the horrors of the “Nazi war against the jews” […]109

In that trial, Hausner made clear that the proof of Eichmann’s guilt and the imposition of a legal sanction, while of obvious importance, were not the exclusive objectives of the trial: [i]ndeed, if securing a conviction had been the only goal, “it was obviously enough to let the archives speak; a fraction of them would have sufficed to get Eichmann sentenced ten times over.” But commenting on his own understanding of the trial, Hausner observed, “I knew we needed more than a conviction; we needed a living record of a gigantic human and national disaster.”110

As such, Hausner considered the introduction of extraneous and additional evidence in Eichmann as necessary and justified in order to enhance the trial’s “pedagogic value”. He also considered that the trial should not simply clarify the historical record—it should shape collective memory and teach history lessons about the Holocaust for present and future generations.111

2.4.1.2

To Facilitate Public Deliberations of the Past

For Bilsky, criminal trials are “consciousness-transforming” vehicles which may be used to promote the transition to a democratic society. In her view, such a transition may be facilitated by public deliberations of the past and trials provide “a unique forum in which society as a whole can confront its moral, historical, and political dilemmas in a more concentrated and intensive way”.112 Similarly, Osiel argues that transitions to democracy need to be evaluated with greater attention to the kind of 105 Cited

in Ibid. p. 19. 107 Bilsky 2004, p. 94. 108 IMT, Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 1945, 42 vols, para 27 (opening statement in United States v. Brandt). See also Osiel 1999, p. 276. 109 Koskenniemi 2002, p. 3. 110 Douglas 2005, p. 106. 111 Ibid. 112 Bilsky 2004, p. 3. 106 Ibid.,

2.4 Expansive Approaches

57

public discussion they foster concerning the human rights abuse perpetrated by the deposed authoritarian rulers. In his view, criminal trials could play a central role in influencing such public deliberations.113 Osiel argues that, in the aftermath of mass atrocity, the didactic aims of trials and “the need for public reckoning with the question of how such horrific events could have happened is more important to democratization than the criminal law’s more traditional objectives”.114 In such cases, it is justifiable for law’s conventional concerns with deterrence and retribution to receive less emphasis. This is because: such trials, when effective as public spectacle, stimulate public discussion in ways that foster the liberal virtues of toleration, moderation, and civil respect. Criminal trials must be conducted with this pedagogical purpose in mind.115

Neither Bilsky nor Osiel consider the didactic aims of criminal trials to be necessarily incompatible with the traditional objectives of retribution and deterrence. On the contrary, Bilsky argues that: a transformative trial can remain loyal to the basic liberal value of the rule of law while seeking to perform its unique function as a legal forum in which society’s fundamental values can be examined in the light of counterstories competing for hegemony.116

In other words, “the legal and the historical do not compete with, but rather complement, each other”.117 Osiel argues that criminal trials can “contribute significantly to a certain, underappreciated kind of social solidarity, arising from reliance on procedures for ensuring that moral disagreement among antagonists remains mutually respectful, within the courtroom and beyond”.118 Historical interpretations play a central role in this process. The approach Osiel advocates envisages judges and parties at trial engaging in broad questions of historical interpretation and moral pedagogy.119 These historical interpretations and deliberations, conducted within the formality of court procedures, could contribute to social solidarity. According to Osiel: [i]n the last half century, criminal law has increasingly been used in several societies with a view to teaching a particular interpretation of the country’s history, one expected to have a salubrious impact on its solidarity. Many have thought, in particular, that the best way to prevent recurrence of genocide, and other forms of state-sponsored mass brutality, is to cultivate a shared and enduring memory of its horrors-and to employ the law self-consciously toward this end.120

113 Osiel 114 Ibid.,

1999, p. 1. p. 2.

115 Ibid. 116 Bilsky

2004, p. 8. 2016, p. 19. 118 Osiel 1999, p. 3. 119 Ibid. 120 Ibid., p. 6. 117 Tromp

58

2 Approaches to the History-Writing Function …

From this perspective, the court is seen as a privileged site for conflicting accounts of recent history and the memories of such history that citizens should preserve.121 As noted, this approach supports a broader use of historical evidence in criminal trials, in order to facilitate a society’s deliberation of historical narratives and counternarratives with a view to promoting reconciliation and solidarity.122

2.4.1.3

To Promote Democratic Transitions

Another objective of didactic legality is to promote transitions to democracy in the aftermath of armed conflict. Given that mass atrocity trials invariably follow in the wake of episodes of mass violence, Douglas argues that such trials are thus charged with “the task of actively re-imposing norms into spaces in which rule-based legality has been either radically evacuated or perverted”.123 Moreover, in addition to reimposing the rule of law, according to Teitel, such trials serve to establish the “truth regimes” of the successor governments: [i]n the criminal trial’s historical accounting, truth is produced along with justice and thus plays a role in the process of delegitimizing the predecessor regime and, relatedly, in establishing the legitimacy of the successor regime. While military or political collapse may well succeed in bringing down repressive leadership, unless the repressive regime is not only defeated but also publicly discredited, its political ideology may well endure.124

When history is marshalled in the service of political change, its aims are chiefly prospective and Teitel recognises the “inescapably politicized nature” of the act of writing history in such contexts.125 Kirchheimer observes that, at its very basic, the function of criminal trials in such contexts is to “eliminate a political foe of the regime […]”.126 What differentiates liberal trials from show trials (in the pejorative sense of the term) is that the former presuppose “an element of irreducible risk for those involved. It derives from the judge’s or jury’s freedom and their preparedness to evaluate the unfolding of both the official and the defendant’s story in the light of a conduct norm”.127 The historical narratives written in such trials are inherently political. According to Teitel, successor trials aim to shape collective memory, and through the transitional histories they write, to displace preceding accounts in order to become, in turn, the reigning accounts.128 On this point, Wilson notes that in mass atrocity trials, history may become politicized as governments pressure courts to selectively filter the past and construct a new official account that corresponds with a heroic vision of the nation. Governments, 121 Ibid.,

p. 41. a critical perspective on this, see Subotic 2009. 123 Douglas 2006, p. 514. 124 Teitel 2002, pp. 72–3. 125 Ibid., p. 117. 126 Kirchheimer 1961, p. 6. 127 Ibid., p. 339. 128 Teitel 2002, p. 117. 122 For

2.4 Expansive Approaches

59

especially those emerging from a recent civil war or authoritarian rule, have a clear interest in controlling representations of the past so as to manufacture legitimacy in the present.129 According to Wilson, [t]hey may seek to portray themselves as liberators of the nation, construct a new, shared “collective memory” (as in Israel in the 1960s), or wish to rehabilitate the reputation of state institutions and officials tarnished by their authoritarian past (as in France in the 1980s). Historical mythmaking appeals to governments because it can be used simultaneously to defuse domestic political dissent and display the regime’s human rights credentials to the international community (“look at how bad things were then and how much better they are now”).130

While the approaches to history-writing considered so far have tended to present polarised, restrictive v. expansive, positions on the subject, the spectrum is more nuanced. The next section will consider two perspectives that tend to encourage more moderate approaches to history-writing in international criminal adjudication, namely truth and justice, and the right to truth.

2.5 Moderate Approaches 2.5.1 Truth and Justice Approaches At the time of the establishment of the ad hoc Tribunals, the scholarly debate on the proper place of history-writing in international criminal justice was dominated by strict legality and the “exclusively legal functions of trials to ‘render justice.’”131 Since then, however, a growing number of stakeholders and scholars began attaching more importance to truth-telling and history-writing as important objectives of the international criminal justice project. This ongoing shift in the debate has occasionally found expression in some of the judicial pronouncements of ad hoc Tribunals, such as the holding of the ICTY Trial Chamber in Halilovic that: [i]t is one of the purposes of the International Tribunal to establish a historical record of the event [sic] in the former Yugoslavia. It is also a purpose of the International Tribunal, and a duty owed by the prosecution to the International Tribunal, to look for the “truth” of those events.132

Of course, the reference to “truth” could here be understood in both a narrow and/or a broader sense. In a narrow sense, “truth” could be seen to refer solely to the truth of the charges (whether or not the accused is innocent or guilty of the crimes charged). While, undoubtedly, this truth remains the central objective of any criminal trial, the Chamber here could also have been referring to a broader truth of the events 129 Wilson

2011, p. 34.

130 Ibid. 131 Tromp 132 ICTY,

2016, p. 18. Prosecutor v. Halilovi´c, Motion for Judicial Notice, 2005, IT-01-48-T, para 9.

60

2 Approaches to the History-Writing Function …

and context in which the charged crimes took place.133 The starting point is that, at their most basic, criminal trials are instruments for ascertaining truth. While in “ordinary” criminal trials, the search for truth would normally not need to move beyond establishing the truth about the specific controversy, in mass atrocity trials, the political, cultural, and historical contexts are usually more fluid and contested. In order to establish “truth” about the alleged crimes, therefore, it becomes necessary to establish wider truths about the contested historical and political contexts. It is in this sense, therefore, that the search for truth in mass atrocity trials involves a broader search for historical truths about the conflict. Several donor governments and UN agencies have come to regard the search for broader historical truths as a valuable objective of ICTs. This objective is increasingly coming to be perceived as a key dimension of creating accountability and as an essential component of any post-conflict reconstruction program.134 Human rights defenders are also increasingly looking to ICTs for historical accounts of the conflicts before them, in order to help lay the foundations “for nation-building and national reconciliation”.135 Indeed, in terms of the legacies of ICTs, the aim of generating historical accounts of the conflict is sometimes considered as important as securing retribution for the crimes. And victims themselves see truth-telling as a primary objective of criminal trials. One of the main findings of an extensive study of witnesses at the ICC was that witnesses felt a duty to testify because they, inter alia: wanted an opportunity to tell their story. Many had survived horrific crimes that had resulted in the deaths of others and felt it was their ‘duty’ to ensure that the killing of family members, neighbors, and colleagues was recorded and acknowledged.136

Moderate attitudes to the history-writing function of ICTs may, thus, slowly but steadily be gaining greater acceptance within the various constituencies of international criminal justice.137 Rogers notes, for instance, how the Rome Statute imposes a number of duties on the ICC to establish the truth (e.g. Article 54(1) that requires the Prosecutor to “establish the truth”, and Article 69(3) that authorises the Court “to request the submission of all evidence that it considers necessary for the determination of the truth”). These provisions represent a significant and ongoing shift from the earlier mandates of ICTs, reflecting “the significance of truth to the pursuit of international criminal justice whereas punishment and then prosecution had been the focus on the first and second generations of prosecutors, respectively”.138 In 133 v

H Holtermann 2017, p. 207.

134 For instance, a major study on post conflict re-construction by the Center for Strategic and Inter-

national Studies and the Association of the United States Army proclaimed truth-telling to be one of “four pillars” of successful peacebuilding. And in its comprehensive handbook for international donors, nongovernmental organizations, and post-conflict governments, the International Institute for Democracy and Electoral Assistance includes truth-telling as one of four necessary mechanisms for achieving reconciliation, and ultimately lasting peace, after violent conflict: see Mendeloff 2004, p. 356. See also Wilson 2011, p. viii. 135 Peskin 2013, p. 770. 136 UC Berkeley School of Law 2014, p. 5. 137 Gaynor 2012, p. 1261. 138 Rogers 2017, p. 201; Sander 2018b, p. 2.

2.5 Moderate Approaches

61

this context, Tromp notes that a growing consensus is in evidence among scholars across different fields in accepting the complementarity between legal and extralegal (such as history-writing) purposes of mass atrocities trials.139 Indeed, in response to possible critiques of strict legalists that a criminal court should focus exclusively on the guilt or innocence of the accused rather than write history, Mégret submits that there are questions about whether “it can even do one without the other and, at any rate, whether in doing the latter it is not inevitably participating in the former”.140 From this perspective, the fact that strict legality has continued to enjoy such support in international criminal adjudication has been described as “deeply anomalous”. According to Douglas, while critics of criminal trials might bemoan how imperfectly truth is served in such trials, to suggest that truth is irrelevant to the system “is nothing short of extravagant”.141 Writing in relation to domestic criminal justice systems, Laudan observes that judges and legal scholars have insisted emphatically that a fundamental value of such systems is that of finding out whether an alleged crime actually occurred and, if so, who committed it.142 In this sense, truth-seeking is a fundamental precondition for justice: [w]ithout ascertaining the facts about a crime, it is impossible to achieve justice, since a just resolution crucially depends on correctly figuring out who did what to whom. Truth, while no guarantee of justice, is an essential precondition for it.143

The search for truth, as Damaška posits, is concerned not only with “the empirical question whether something happened, but also with the reasons-seeking question of why something happened”.144 In elaborating on this point, the author notes that the distinction resembles that between fact and interpretation in historical research.145 As discussed above, while in “ordinary” criminal trials, the reference to “truth” usually has a very limited meaning (referring to the specific controversy), in mass atrocity trials, in order to be able to address the empirical question of whether the alleged crimes happened, it becomes necessary to ask the reasons-seeking question of why they happened and to establish broader truths about the contested historical and political contexts. This is necessary, ultimately, for the proper dispensation of justice in international criminal adjudication. Therefore, from the perspective of the truth and justice approach, the search for truth is a prerequisite for justice and, as Ignatieff notes, truth and justice “are indissolubly linked”.146 Moreover, in conducting their truthseeking function, criminal trials also, inevitably, produce historical interpretations and explanations—in Damaška’s terminology, they are concerned not only with 139 Tromp

2018, p. 63. 2015, p. 29. 141 Douglas 2016, p. 35. 142 Laudan 2006, p. 2. 143 Ibid. 144 Damaška 1998, pp. 299–300. 145 Ibid., p. 300 (fn 26). 146 Ignatieff 1996, p. 110. 140 Mégret

62

2 Approaches to the History-Writing Function …

whether something happened, but also with why something happened, the latter of which involves questions of historical explanation. Criminal trials have been described as “conduits of truth”147 or “epistemic engines”.148 Stein argues that adjudication is an epistemic social practice, that is: a practice of accepting and rejecting factual propositions that are tendered as “true” in courts of law. Adjudicators determine people’s rights, duties and liabilities by relying upon facts which they evaluate as likely enough to be true. Those evaluations of truth-value are not hypocritical: when factfinders say that such and such facts are “more probable than not” or “beyond a reasonable doubt” they really mean it. This pursuit of the truth is what we, as an organized society, set for adjudicators as a goal.149

In international criminal trials, the search for truth involves the search for historical truth. In this respect, Wilson observes, that the relationship between justice and history-writing is multifaceted and “cannot be characterized by either harmonious accord or inherent contradiction. […] What tends to emerge is a picture that is more complex than can be found in the discussions reviewed thus far.”150 However, rather than dismissing history-writing aims as extrinsic to international criminal adjudication, as restrictive approaches have tended to do, the truth and justice approach recognises the central nature of the history-writing function in international criminal trials. It recognises this function as a legitimate aim of ICTs. And in undertaking this function, the approaches of judges and historians may overlap. Tromp notes: [i]n a trial, as in the writing of history, the judge, like the historian, aspires to produce a coherent narrative that explains, interprets, and records historical events. Historians and legal scholars who have analysed the relationship between the legal and extralegal value of mass atrocities trials see no immediate contradiction between a trial’s legal objectives and its extralegal effects, but they do emphasise that legal judgements should never be viewed as definitive interpretations of history.151

Sander argues that history-writing is an inescapable function of ICTs because of “the close association between adjudicative justice and establishing the truth”.152 As a result of this close association, Sander argues, ICTs produce historical records concerning both the accused and the broader mass atrocity situation in which they are alleged to have participated. This is inevitable in any trial involving top military or political leaders, where the trial record incorporates thousands of documents and the testimony of hundreds of witnesses.153 For this reason, Wilson notes that in practice: [a] number of legal judgments contain extensive deliberations on the underlying causes of an armed conflict, and they exhibit a heightened concern with the intentions of perpetrators of

147 Gaynor

2012, p. 1259. H Holtermann 2017, p. 207. 149 Stein 2008, p. 404. 150 Wilson 2011, p. 13. 151 Tromp 2016, p. 20. 152 Sander 2018b, pp. 2–3. 153 Ibid., p. 2. 148 v

2.5 Moderate Approaches

63

crimes against humanity and the place of discrete acts in a systematic policy of persecution or extermination.154

These extensive deliberations of the historical contexts and underlying causes of armed conflicts are necessary in order for international judges to locate and understand the actions of the accused persons in their historical, cultural and social context. This context would enable the judge, in the words of Judge Agranat, to: put himself in the shoes of the participants themselves; evaluate the problems they faced as they might have done; take into consideration sufficiently the needs of time and place, where they lived their lives; understand life as they understood it.155

Judge Navanethem Pillay held that the need for evidence on Rwandan history and culture in relation to mass atrocity trials was inevitable because it was legally relevant.156 It was also necessary to enable judges of ICTs to, in Agranat’s words, “understand life as they [the participants] understood it”. For instance, in relation to the genocide in Rwanda, Judge Pillay observed that: [w]e judges agreed that you can’t avoid this question of history of Rwanda, otherwise it’s just one ethnic group killing another ethnic group with no reason why. History is necessary for an understanding of why the conflict occurred.157

Or, making a similar point, the Nahimana et al. Trial Chamber (over which Judge Pillay presided) held that an understanding of the historical context of the events that transpired in Rwanda in 1994 was necessary in order to “explain in large measure the otherwise almost incomprehensible level and intensity of the violence that erupted in April 1994 and continued relentlessly for several months.”158 The truths and justice approach, therefore, moves beyond strict legality and tends to encourage a more moderate approach to history, seeking to understand and explain past events. From this perspective, the need for historical context stems from the nature of international crimes, the distance of ICTs from the situation countries and the relative unfamiliarity of international judges with the history and culture of the region in which the alleged crimes were committed.159 All these factors combine to make the need for historical contextualisation more pressing in international criminal trials. Peskin argues that, given their relative autonomy from nation-states and the special nature of the crimes they adjudicate, historical discussions of armed conflicts are a necessary part of such trials.160 As a result, judgments of ICTs have generated significant historical accounts of how, 154 Wilson

2011, p. 18. in Bilsky 2004, p. 63. 156 Wilson (n 5) 20. 157 Cited in Wilson 2011, p. 72. 158 ICTR, Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Judgment, 2013, ICTR-99-52-T, para 109. 159 Koskenniemi notes that the need for historical contextualisation may not arise in domestic trials, even when the crimes were exceptionally shocking, as there would normally be ‘little doubt about how to understand the relevant acts in their historical context’: see Koskenniemi 2002, p. 12. 160 Peskin 2013, p. 771. 155 Cited

64

2 Approaches to the History-Writing Function … the communities became so divided, how neighbors raped and killed neighbors, how friends forgot their friendship, and how intermarriages meant nothing when one ethnic group was pitted against another by incessant, virulent propaganda.161

2.5.2 Right to Truth Another framework that moves beyond the restrictive approaches and places emphasis on a more moderate and nuanced conception of truth-seeking and historywriting is the emerging concept of the “right to truth” or “right to know the truth”.162 This right relates to the human need for truth on the part of victims, their relatives and society more broadly.163 In Moments of Reprieve, Levi evoked the need to tell the truth when he reflected: “[a]t Auschwitz, and on the long road returning home, I had seen and experienced things that appeared important not only for me, things that imperiously demanded to be told.”164 The need to seek and tell the truth is important not only for the psychic well-being of the survivors, but as a political necessity as well: telling the truth helps to defeat despotic regimes (such as the Nazis), who could have thought that no one would survive to tell, or if some stories were told, they would not be believed.165 De Baets notes that, in the context of mass atrocities, it is natural for people to yearn to know the elementary truth about their loved ones who were slaughtered or who disappeared in terrible circumstances.166 While the genealogy of the right to truth could be traced back to the seventeenth century, it was first tentatively formulated in the mid-1970s.167 However, it was only some decades later that the right to truth emerged in the context of transitional justice mostly as a necessity to overcome the secrecy in which authoritarian regimes carried out a wide number of atrocities during the course of dictatorship or armed conflict.168 One of the earliest works that explicitly argued for the right to truth as a legal right is Juan Méndez’s Accountability for Past Abuses (1997), frequently cited as one of the first arguments to recognize the global emergence of this right.169 161 McDonald

2000, p. 8.

162 Several studies have examined this right, for instance, Groome 2011; Naqvi 2006; Naftali 2017.

However, for an analysis of the rejection of this concept by Spanish courts, see Aragoneses 2017, p. 190; Panepinto 2017. 163 Ignatieff 1996, p. 111. Thus, truth-seeking is here understood narrowly as a human and societal need, rather than a broader concept linked to reconciliation, healing and peace-building: see Mendeloff 2004, p. 356. 164 Levi 2002, p. 9. 165 Phelps 2011, p. 175. Importantly, however, in some cases such as localized conflicts, such a desire to know the truth may not be present: see Cherry 2009, p. 250. 166 De Baets 2008, p. 2. 167 Ibid., p. 157. 168 Cuellar 2014, p. 2. 169 Méndez 1997.

2.5 Moderate Approaches

65

For over thirty years, both the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR) dedicated a large part of their jurisprudence to the recognition and development of the right to truth, particularly in response to the practice of forced disappearances.170 More recently the European Court of Human Rights (ECtHR) has taken steps towards acknowledging the right to the truth in relation to authoritarianism and conflict, as well as in other contexts where state policies limit human rights, for instance, as part of counterterror practices.171 The concept has also been recognised by other bodies, such as the Human Rights Chamber of Bosnia and Herzegovina.172 Indeed, the concept of right to truth is increasingly utilised in different settings to empower victims and societies to find out about past abuses linked to conflict or authoritarianism.173 While, naturally, being of importance to victims and their families, the right to truth is also of pivotal importance to historians because, in a certain sense, what is called the right to the truth in international law today is nothing less than “a crucial (though not the only) component of a ‘right to historical truth’ or a ‘right to history.’”174 Indeed, in the aftermath of mass atrocities, there are strong parallels between the questions that survivors and historians are impelled to ask, such as: what exactly happened to the countless victims of human rights crises? Did they disappear and/or did they die? How, why, and where? Would the perpetrators and their accomplices be punished? Robert Darnton called this the “Rankean rage”—the urge to know history “as it actually happened”.175 As such, De Baets has argued that the right to truth may be seen as a central component of history-writing, as the search for existential facts (facts about existence itself) is a first stage in the search for historical truth: these facts, if corroborated, fix the boundaries of any sound historical narrative and explanation of past human rights abuses.176 Knowing the truths about mass atrocity is important for victims because, inter alia, this may go some way towards alleviating part of the suffering and vindicating the memory or status of the direct victim of the violations.177 In this regard, Funk argues that survivors of atrocity crimes, as well as the families and loved ones of those who were injured or murdered, want to know first and foremost what happened, who committed the crimes, and why the crimes were committed. Victims seek the truth because the truth, to some extent at least, alleviates their anguish, vindicates their status, encourages individual accountability, and has the potential of removing the perpetrators and their allies from power. Establishing the truth:

170 Cuellar

2014, p. 2. 2017, p. 740. Schabas however argues that the ECtHR has manifested a reluctance to extend the right to truth too far into the past: see Schabas 2018, p. 37. 172 Groome 2011, p. 177. 173 Panepinto 2017, p. 739. 174 De Baets 2017, p. 42. 175 Darnton 1981, p. 8; cited in De Baets 2008, p. 155. 176 De Baets 2008, p. 155. 177 Bassiouni 2008, p. 690. 171 Panepinto

66

2 Approaches to the History-Writing Function … makes it more difficult for those accused to create fictionalized, self-serving accounts of what occurred. A proper understanding of the historic events, and even public outrage over the conduct that often took place in the public’s name, can replace the twin dangers of complacency and resentment towards victims.178

In international adjudication, the right to truth straddles the boundaries of human rights, ICL, and transitional justice.179 Nice holds that, after conflicts a principal concern of the affected citizen is “to know what happened and to be confident that the best possible narrative of events is left behind”.180 Similarly, Tromp notes that “[v]ictim communities regularly stress the importance of knowing why violence against them occurred; and say they want to understand details of crimes, such as where their family members were killed and buried, but also how the crimes could have happened at all”.181 In this context, truth-telling responds to the demand of justice for the victims.182 Particularly with respect to murder victims, because they can neither tell what happened to them nor witness their vindication, surviving family and friends usually try to fill those roles of storyteller and audience. Family and friends tell the victims’ stories in an effort to keep the victims visible, as if to say: “[w]e speak in place of those who cannot speak”.183 The right to truth, as a concept under human rights law, has come to encompass several interrelated principles.184 It has both a private and public dimension, recognising that “society as a whole, in addition to direct victims, has an interest in knowing about the past”.185 Both academics and practitioners contributed towards the development of this concept.186 From the academic side, reference has already been made to Méndez’s work. Moreover, at the 1988 Aspen Institute Conference on “State Crimes: Punishment or Pardon”, Alice Henkin, Director of the Justice and Society Program at Aspen, emphasized the unanimous consensus with which its participants advocated the validity of the right to truth.187 Importantly, participants at this Conference emphasized the need to move beyond the oft-invoked truth versus criminal justice debate, and the need to consider the intertwined demands of criminal justice and truth.188 From the practitioner side, in a 1997 report prepared for the UN Economic and Social Council, for instance, Louis Joinet, addressed the issue of truth by highlighting the “right to know” as one of victims’ three legal rights (the others being the rights to justice and to reparations).189 Joinet listed the “right to truth” as 178 Victims’

Rights and Advocacy at the International Criminal Court 2010, p. 127. 2004, p. 113. See also Waters 2010, p. 289. 180 Nice 2017, p. 28. 181 Tromp 2016, p. 9. See also Wood 1999, p. 132. 182 See Teitel 2002, p. 69. 183 Gewirtz 1998, p. 129. 184 Herencia Carrasco 2017, pp. 399–400. For a critique of this concept, see Naftali 2017, p. 86. 185 Panepinto 2017, p. 744; Naftali 2017, p. 76. 186 Park 2010, p. 25. 187 Ibid., pp. 25–6. 188 Arthur 2009, p. 349. 189 UN Economic and Social Council (Commission On Human Rights) 1997; Arthur 2009, p. 353. 179 Bilsky

2.5 Moderate Approaches

67

Principle 1 in the Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, where it was presented as a right of a “people” rather than of individuals: [e]very people has the inalienable right to know the truth about past events and about the circumstances and reasons which led, through the consistent pattern of gross violations of human rights, to the perpetration of aberrant crimes. Full and effective exercise of the right to the truth is essential to avoid any recurrence of such acts in the future.190

A decade later, the UN Commission on Human Rights requested independent expert Diane Orentlicher to prepare an updated version of the Principles. Orentlicher made some minor changes to the language of Joinet’s first principle: [e]very people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations.191

One important change in Orentlicher’s reformulation of the right to truth is that it removed reference to “gross violations of human rights” and replaced it with a reference to “the perpetration of heinous crimes”. This subtle change in language could be seen as indicative of the expanding application of the right to truth from the human rights to the criminal justice arena. Be that as it may, however, the legal status of this concept has remained controversial. At a regional level, as the right to truth is not enshrined in the American Convention on Human Rights, it had to be implied from the rights already included and given substantive content through the jurisprudence drafted by the IACHR and the IACtHR.192 In the case of Ernesto Rafael Castillo Páez v. the State of Peru, the IACtHR declared that although that right did not exist in the American Convention as such, it was a concept that was being developed in “doctrine and case law” at that time.193 As noted above, the concept was also referred to in the jurisprudence of the ECtHR and other judicial bodies. At the international level, while the right to truth has been included in some international conventions, such as the International Convention for the Protection of All Persons from Enforced Disappearance, adopted by the UN General Assembly in December 2006, this was confined to the (non-operative) preamble, which affirms “the right of any victim to know the truth about the circumstances of an enforced disappearance and the fate of the disappeared person”.194 In an assessment of the legal status of the right to truth conducted in 2006, Naqvi concluded that “the right to the truth stands somewhere on the threshold of a legal norm and a narrative device”,195 She noted, 190 Principle

I, UN Economic and Social Council (Commission On Human Rights) 1997, p. 16. Economic and Social Council (Commission On Human Rights) 2005; Schabas 2018, p. 39. 192 Cuellar 2014, p. 5. 193 Inter-American Court of Human Rights, Case of Castillo Páez v. Peru, 1997, para 86. 194 International Convention for the Protection of All Persons from Enforced Disappearance, G.A. Res A/RES/61/177, UN doc. A/HRC/RES/2006/1 (20 December 2006). 195 Naqvi 2006, p. 273. 191 UN

68

2 Approaches to the History-Writing Function …

nevertheless, that, “international courts have played a crucial role in bringing this concept to reality […]”.196 In revisiting Naqvi’s study on the legal status of the right to truth a decade later, Panepinto concluded that: despite the significant developments of the past decade that call for a reassessment since Naqvi’s study, the right to the truth has still not reached formal standing in PIL based on the sources set out in Art 38 of the ICJ Statute. Nevertheless, this does not detract from the substance and usefulness of the right to the truth: its repeated uses across different fora can be interpreted as performative utterances that contribute to its practical existence in international law. Regardless of its formal status under PIL, its uses indicate its growing significance regionally as well as internationally – with great domestic potential as well.197

While the right to truth may therefore not yet qualify as lex lata, it remains an important and promising concept. Back in 1997, Méndez predicted that the international legal community would increasingly recognize this right, as it was grounded in “norms of universal applicability”.198 According to Park, “[t]he multidisciplinary foundation of the right to truth does not diminish its legitimacy but rather bolsters its applicability to varied, culturally diverse post-conflict situations”.199 Some ECtHR judges have argued that “in international law there is a clear trend towards recognising a right to the truth in cases of gross human rights violations”.200 And in his 2013 annual report, the UN Special Rapporteur on the promotion of truth listed the jurisprudence of the IACtHR, ECtHR, and the work of the African Commission on Human and Peoples’ Rights among the regional sources that consolidate the right to the truth globally.201 Even though the concept of the right to truth emerged in the fields of human rights law and transitional justice, it has impacted attitudes to truth and history in ICL. Indeed, international criminal tribunals have significantly facilitated the disclosure and transmission of historical truths about past repression.202 For instance, a PreTrial Chamber of the Extraordinary Chambers in the Courts of Cambodia argued that a victim’s interest in participating in pre-trial proceedings stemmed from two core rights—the right to justice and the right to truth.203 Moreover, even though the resolutions creating the ad hoc tribunals did not, as Groome has noted, expressly contain the phrase “right to truth”, much of the work of these tribunals involved the determination of truth based on credible and reliable evidence, and they played a role, 196 Naftali

2017, p. 71. See also De Baets 2017, p. 40 et seq. 2017, p. 764. 198 Méndez 1997, p. 261. 199 Park 2010, p. 27. 200 ECtHR, Janowiec and others v Russia [GC], Joint partly dissenting opinion of Judges Ziemele, De Gaetano, Laffranque and Keller, 2013, App Nos 55508/07 and 29520/09, para 9. 201 UNHRC, Twenty-fourth session ‘Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff’ (28 August 2013) UN Doc A/HRC/24/42., para 19; Panepinto 2017, p. 762. 202 Cited in Adler 2018, p. 7. 203 ECCC, Prosecutor v. Ieng Sary (Directions on Unrepresented Civil Parties’ Rights to Address the Pre-Trial Chamber 03), Trial Judgment, 2008, ICTR-2001-64-T, para 5; Khan and Dixon 2009, p. 1142. 197 Panepinto

2.5 Moderate Approaches

69

therefore, in giving effect to the right to truth.204 In this respect, the ad hoc Tribunals have made invaluable and significant contributions to uncovering and clarifying the truths and historical contexts of the conflicts before them. They have, inter alia, recorded sworn testimony of victims, co-perpetrators, international interlocutors, and defendants. They have gathered and preserved large volumes of documentary evidence, including military records, transcripts of official meetings, and the intercepted communications of key protagonists. Furthermore, their exhumation work has helped identify and return the mortal remains of thousands of victims.205 Through the work of the ad hoc Tribunals, therefore, the concept of right to truth has continued to develop.206 At the ICC, this emerging right has continued to gain momentum. Admittedly, the Rome Statute of the ICC only expressly provides a “limited realisation” of the right to truth, restricted to the context of enforced disappearances (Article 7(1)(i)).207 Nevertheless, the ICC has given extensive attention to the rights of victims to participate and speak in its trials, “a recognition not only of the importance of victim testimony to the process of collecting evidence, but also of the courts’ responsibility to help empower and restore voice to survivors of mass violence”.208 Some have contended that the Rome Statute represents a paradigm shift in international criminal justice, from criminal trials conceived primarily as mechanisms for retribution and deterrence, to trials as also placing importance on restorative justice and the needs and experience of victims.209 This shift is also likely to have an impact on the approaches to historical narratives in the jurisprudence of the ICC. Some scholars have suggested that the emerging acceptance of the right to truth for victims and society may bring about an increased acceptance and mainstreaming of the history-writing function in international criminal adjudication.210 Through the repeated invocation of this emerging right by victims at the ICC, the concept of the right to truth will continue to evolve in this Court. Indeed, Panepinto observes that the “right to the truth is on an upward trajectory in international law […]”211 This trajectory is evident from the fact that, in various cases, references to the right to truth have begun to appear in proceedings before the ICC. For instance, in 2008, Judge Steiner, in a significant, single-judge decision of the ICC Pre-Trial Chamber in Katanga, took issue with the arguments of the Prosecution and Defence that “those granted the procedural status of victim at the pre-trial stage of the […] case should not be permitted to discuss evidence or to question a witness in relation to matters

204 Groome

2011, p. 177. pp. 187–8. 206 Naftali 2017, p. 84. 207 Panepinto 2017, p. 741. 208 Terris et al. 2007, p. 231. 209 Schiff 2008, p. 33. 210 Gaynor 2012, pp. 1261–2; Schabas 2012, p. 229; Groome 2011. 211 Panepinto 2017, p. 739. 205 Ibid.,

70

2 Approaches to the History-Writing Function …

that pertain to the guilt or innocence of the suspects because […] these matters are not directly relevant to the interests of the victims”.212 Judge Steiner submitted that “the Prosecution and Defences’ proposition is contrary to the latest empirical studies conducted amongst victims of serious violations of human rights, which show that the main reason why victims decide to resort to those judicial mechanisms which are available to them against those who victimised them is to have a declaration of the truth by the competent body.”213 She proceeded to expressly recognise the applicability of a victims’ right to truth in criminal justice: the victims’ core interest in the determination of the facts, the identification of those responsible and the declaration of their responsibility is at the root of the well-established right to the truth for the victims of serious violations of human rights.214

Judge Steiner proceeded to hold that when this right is to be satisfied through criminal proceedings, victims have a central interest in that the outcome of such proceedings: (i) bring clarity about what indeed happened; and (ii) close possible gaps between the factual findings resulting from the criminal proceedings and the actual truth.215 Judge Steiner’s decision provided the impetus for many of the subsequent submissions on the right to truth at the ICC. Drawing on Judge Steiner’s pronouncements, the legal representatives of victims in subsequent cases have increasingly tended to present (and possibly overstate) the right to truth as an established right under international law. Indeed, they have tended to reframe concepts in the Rome Statute, such as “the determination of the truth” under Article 69(3), as well as “interests of victims” in Article 53 in light of this concept. For instance, in Lubanga, the legal representatives of victims applied to the Court to examine an expert witness, Mr. Garreton, on the historical and other factors that influenced the conflict in Ituri, along with certain general issues concerning the recruitment of child soldiers.216 The Defence resisted these requests and submitted that since the matters dealt with by the expert witness were of general interest, they did not engage the personal and individual interests of any of the applicants. The Defence submitted further that the individual interests of particular victims could not be merged with the general interests of a wider community. The Chamber dismissed the Defence’s arguments, holding that it was appropriate for victims to be allowed to question the expert witness broadly, in order to enable them to locate their individual experiences in the broader historical, economic and social contexts, provided that these contexts were relevant to the charges: 212 ICC,

Prosecutor v Katanga, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, 2008, ICC-01/04-01/07, para 30. 213 Ibid., para 31. 214 Ibid., para 32. 215 Ibid., para 34. 216 ICC, Prosecutor v. Thomas Lubanga Dyilo, Transcript, 2009, ICC-01/04-01/06-T-193-ENG ET WT 17-06-2009 1/96 SZ T.

2.5 Moderate Approaches

71

15 Given these issues are to be investigated in this case, the 16 participating victims, in the judgement of the Chamber, have an undoubted 17 interest in setting their personal experiences, and the harm it is said 18 they individually experienced, in their true historical, economic, and 19 social context, which is, inter alia, the underlying circumstances in 20 which the alleged crimes of enlisting, recruiting, or using child 21 soldiers were committed. Therefore, the victims are entitled to explore 22 such aspects of these background matters as are relevant to each of them 23 provided, and to the extent, that the areas are relevant to, and are of 24 assistance in, establishing the context in which the alleged crimes have 25 been committed.217

Indeed, the Chamber proceeded to allow the victims to question the expert witness on a broad array of topics, including on “facts and events outside the time-frame of the charges”. These included: (a) the economic, ethnic, and political underpinnings of the conflict in Ituri, and its origins; (b) the economic interests of those principally involved, the role they played, and the identities of the relevant armed groups; (c) the extent to which individuals profited from the conflict and the destination of any financial or other gains, together with the exploitation of natural resources in this context; (d) the general practice of recruiting child soldiers in the DRC, including Ituri, whether it was voluntary or enforced and the living conditions in the training camps; (e) the role of foreign powers in the use of child soldiers, and the extent to which the conflict was national or international; and (f) the damage caused by the conflict (including the psychological harm inflicted on children), particularly in the Mahagi. According to the judges, such questioning could assist the Chamber in the determination of the truth. The Chamber held: 09 […] In the view of 10 the Bench, it is appropriate to explore matters of history in this way, 11 solely to assist on the issues that are to be determined in this trial 12 (i.e., the crimes charged) by placing those issues in their alleged 13 factual context. In the view of the Chamber, Mr. Garreton should be able 14 to contribute to this endeavour.218

In Muigai Kenyajta, the common legal representative of the victims argued for a more expansive construction of “the interests of the victims”, to extend well beyond the victims’ interest in receiving just reparation, within a reasonable time, for the harm they have suffered. According to the legal representative, “[i]t also encompasses their right to know the truth about the crimes in question, and to have those responsible convicted”.219 And in Ongwen, the legal representatives of victims, referring back 217 Ibid. 218 Ibid. 219 ICC,

Prosecutor v. Uhuru Muigai Kenyajta, Victims’ request for access to confidential filings and evidence, 2013, ICC-01/09-02/11, para 3.

72

2 Approaches to the History-Writing Function …

to Judge Steiner’s pronouncement in Katanga, argued that the right to truth was an established right under international law: [i]nternational law recognises that victims of gross human rights violations have a right to the truth. While it is neither intended nor possible that an individual criminal trial will comprehensively vindicate this right, participating victims do have an interest in seeing that the Court’s proceedings at a minimum ensure that there are no gaps between the Court’s factual findings and the actual truth.220

With the growing emphasis on victim and survivor-centred approaches at the ICC, as noted above, it is possible that the emerging concept of right to truth will continue to evolve and gain momentum in this Court and, in so doing, may increasingly influence the attitudes towards history-writing in international criminal adjudication.221 Indeed, in his thesis, Aguilera, goes a step further, arguing that the emerging right to truth creates an opportunity to revisit the truth-conduciveness or otherwise of the rules of procedure and evidence within ICTs.222 The author argues that this right could be seen to bring with it a corresponding general duty or obligation for the actors involved in international criminal adjudication to take the issue of truth-seeking more seriously and to ensure that the contents of the rules of ICTs are appropriately truth-conducive.223 Having set out some of the competing theoretical approaches to the history-writing function in international criminal adjudication, including some of their strengths and limitations, Chap. 7 will develop the normative argument for a more moderate approach to history-writing. However, before developing that argument, the next three chapters will focus on some of the strengths, constraints and blind spots of the historical narratives that ICTs may produce. These chapters will adopt a frame analysis approach to examine the specific frameworks (or “lenses”) through which judges of ICTs interpret historical events. This analysis is intended to shed more light on the frames of international criminal adjudication, as well as the focal points and blind spots of the histories that ICTs may write.

References Adler N (2018) Introduction: On History, Historians, and Transitional Justice. In: Adler N (ed) Understanding the Age of Transitional Justice. Rutgers University Press, New Brunswick, NJ Aguilera ER (2013) Truth and victims’ rights: Towards a legal epistemology of international criminal justice. Mexican Law Review 6:119–160 Aksenova M (2017a) Symbolism as a Constraint on International Criminal Law. Leiden Journal of International Law 30:475–499 220 ICC, Prosecutor v. Dominic Ongwen, Request for reconsideration of the “Decision on the Legal Representatives for Victims Requests to Present Evidence and Views and Concerns and related requests”, 2018, ICC-02/04–01/15, para 28. 221 Joyce 2004, p. 477. 222 Aguilera 2013, p. 119. 223 Ibid., pp. 126–7.

References

73

Aksenova M (2017b) The Role of International Criminal Tribunals in Shaping the Historical Accounts of Genocide. In: Belavusau U, Gliszczy´nska-Grabias A (eds) Law and Memory: Towards Legal Governance of History. Cambridge University Press, Cambridge, UK/New York, NY, US Aragoneses A (2017) Legal Silences and the Memory of Francoism in Spain. In: Belavusau U, Gliszczy´nska-Grabias A (eds) Law and Memory: Towards Legal Governance of History. Cambridge University Press, Cambridge, UK/New York, NY, US Arendt H (1992) Eichmann in Jerusalem: A Report on the Banality of Evil. Penguin Publishing Group Arendt H (2005) Truth and Politics. In: Wood D, Medina J (eds) Truth: Engagements Across Philosophical Traditions, 1st edn. Wiley-Blackwell, Malden, MA Arthur P (2009) How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice. Human Rights Quarterly 31:321 Bassiouni MC (2008) International Criminal Law: International Enforcement. Brill Bilsky L (2004) Transformative Justice: Israeli Identity on Trial. University of Michigan Press Bloxham D (2003) Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory, new edn. Oxford University Press, Oxford, UK Bouwknegt TB (2018) The international criminal trial record as historical source. In: Adler N (ed) Understanding the Age of Transitional Justice. Rutgers University Press, New Brunswick, NJ, US Buruma I (1995) The Wages of Guilt: Memories of War in Germany And Japan, reprint edn. Penguin, New York, NY, US ˇ Cavoški K (2002) Juger l’Histoire. In: Gallois PM, Vergès J (eds) L’apartheid judiciaire : Le Tribunal pénal international, arme de guerre. L’Age d’Homme, Lausanne, Switzerland Cherry J (2009) Truth and Transitional Justice in South Africa. In: van der Merwe H, Baxter V, Chapman AR (eds) Assessing the Impact of Transitional Justice: Challenges for Empirical Research. United States Institute of Peace Press, Washington, D.C, US Chertoff E (2016) Prosecuting Gender-Based Persecution: The Islamic State at the ICC Notes. Yale LJ Cryer R (2003) Witness Evidence before the International Criminal Tribunals. Law & Prac Int’l Cts & Tribunals 2:411 Cryer R (2011) Prosecuting International Crimes: Selectivity and the International Criminal Law Regime. Cambridge University Press, Cambridge, UK Cuellar PS (2014) The Influence of Latin American Domestic Courts in the Development of the Right to Truth. Journal for the Study of Peace and Conflict. Stevens Point Damaška M (1998) Truth in Adjudication. Hastings Law Journal Damaška M (2007) What Is the Point of International Criminal Justice? Chicago-Kent Law Review 83:329 Darnton R (1981) Poland Rewrites History. New York Review of Books De Baets A (2008) Responsible History. Berghahn Books De Baets A (2017) The United Nations Human Rights Committee’s View of the Past. In: Belavusau U, Gliszczy´nska-Grabias A (eds) Law and Memory: Towards Legal Governance of History. Cambridge University Press, Cambridge, UK/New York, NY, US Douglas L (2005) The Memory of Judgment: Making Law and History in the Trials of the Holocaust. Yale University Press, New Haven, CT, US Douglas L (2006) The Didactic Trial: Filtering History and Memory into the Courtroom. European Review 14:513–522 Douglas L (2016) Truth and justice in atrocity trials. In: Schabas W (ed) The Cambridge Companion to International Criminal Law. Cambridge University Press, Cambridge, UK Drumbl MA (2003) Atrocity, Punishment, and International Law. Cambridge University Press, Cambridge, UK/New York, NY, US Eltringham N (2009) “We are not a Truth Commission”: fragmented narratives and the historical record at the International Criminal Tribunal for Rwanda. Journal of Genocide Research 11:55–79

74

2 Approaches to the History-Writing Function …

Evans RJ (2002) History, Memory, and the Law: The Historian as Expert Witness. History and Theory 41:326–345 Fry E (2014) The Nature of International Crimes and Evidentiary Challenges: Preserving Quality While Managing Quantity. In: van Sliedregt E, Vasiliev S (eds) Pluralism in International Criminal Law. OUP Oxford, Oxford, UK Funk TM (2010) Victims’ Rights and Advocacy at the International Criminal Court. OUP US, Oxford, UK/New York, NY, US Gaynor F (2012) Uneasy Partners—Evidence, Truth and History in International Trials. J Int Criminal Justice 10:1257–1275 Gevers C (2015) International criminal law and individualism. In: Schwöbel C (ed) Critical Approaches to International Criminal Law, 1st edn. Routledge, Abingdon, UK Gewirtz P (1998) Narrative and Rhetoric in the Law. In: Brooks P (ed) Law’s Stories: Narrative and Rhetoric in the Law, new edn. Yale University Press, New Haven, CT, US/London, UK Groome D (2011) The Right to Truth in the Fight against Impunity. Berkeley Journal of International Law 29:175 Herencia Carrasco S (2017) Defense of Democracy and the Preservation of Collective Memory through Criminal Legislation: The Challenges of Reconciliation in Peru. In: Belavusau U, Gliszczy´nska-Grabias A (eds) Law and Memory: Towards Legal Governance of History. Cambridge University Press, Cambridge, UK/New York, NY, US Hirsch M (2019) The Role of International Tribunals in the Development of Historical Narratives. Journal of the History of International Law/Revue d’histoire du droit international 20:391–428 Hunt T (2004) Whose Truth? Objective Truth and a Challenge for History. In: Schabas W, Darcy S (eds) Truth Commissions And Courts: The Tension Between Criminal Justice and the Search for Truth. Springer Netherlands, Dordrecht, The Netherlands, pp 193–198 Ignatieff M (1996) Articles of Faith. Index on Censorship 25:110 Jackson RH (1945) International Conference on Military Trials : London, 1945 Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials. London, UK Joyce D (2004) The Historical Function of International Criminal Trials: Re-thinking International Criminal Law. Nordic Journal of International Law 73:461–484 Judge Denis Byron’s Address to the UN General Assembly (2008) ICTR Newsletter (October 2008) Keydar R (2019) Mass Atrocity, Mass Testimony, and the Quantitative Turn in International Law. Law & Society Review; Amherst 53:554–587 Khan KAA, Dixon R (2009) Archbold International Criminal Courts: Practice, Procedure and Evidence. Sweet and Maxwell Kirchheimer O (1961) Political Justice: The Use of Legal Procedure for Political Ends. Princeton University Press Koskenniemi M (2002) Between Impunity and Show Trials. In: Frowein JA, Wolfrum R, Philipp CE (eds) Max Planck Yearbook of United Nations. 2002. Vol. 6 Vol. 6. Brill, Leiden, The Netherlands/Boston, MA, US, pp 1–35 Latour B (2009) Scientific Objects and Legal Objectivity’. In: Pottage A, Mundy M (eds) Law, Anthropology, and the Constitution of the Social: Making Persons and Things. Cambridge University Press, Cambridge, UK/New York, NY, US Laudan L (2006) Truth, Error, and Criminal Law: An Essay in Legal Epistemology. Cambridge University Press, Cambridge, UK Levi P (2002) Moments of Reprieve, new edn. Penguin Classics, London, UK Marrus MR (2002) History and the Holocaust in the Courtroom. In: Smelser R (ed) Lessons and Legacies V | Northwestern University Press. Northwestern University Press McDonald GK (2000) Crimes of Sexual Violence: The Experience of the International Criminal Tribunal. Colum J Transnat’l L 39:1 Mégret F (2015) International criminal justice: A critical research agenda. In: Schwöbel C (ed) Critical Approaches to International Criminal Law. Routledge, Abingdon, UK

References

75

Mendeloff D (2004) Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm? International Studies Review 6:355–380 Méndez JE (1997) Accountability for Past Abuses. Human Rights Quarterly 19:255–282 Naftali P (2017) The ‘Right to Truth’ in International Law: The ‘Last Utopia’? In: Belavusau U, Gliszczy´nska-Grabias A (eds) Law and Memory: Towards Legal Governance of History. Cambridge University Press, Cambridge, UK/New York, NY, US Naqvi Y (2006) The right to the truth in international law: fact or fiction? International Review of the Red Cross 88:245–273 Nice G (2017) Justice for All and How to Achieve It: Citizens, lawyers and the law in the age of human rights. Scala Arts & Heritage Publishers Ltd Nora P (1989) Between Memory and History: Les Lieux de Mémoire. Representations Osiel MJ (1999) Mass Atrocity, Collective Memory, and the Law, 1st edn. Transaction Publishers Panepinto AM (2017) The right to the truth in international law: The significance of Strasbourg’s contributions. Legal Studies 37:739–764 Park Y (2010) Truth as Justice: Legal and Extralegal Development of the Right to Truth. Harvard International Review; Cambridge 31:24–27 Peskin V (2013) Seeing Like a Court: Documenting Histories of Armed Conflict through the Lens of Judging International Crimes. Human Rights Quarterly 35:769–778 Peterson J (2007) Unpacking Show Trials: Situating the Trial of Saddam Hussein. Harvard International Law Journal 48:257–292 Petrovi´c V (2016) The Emergence of Historical Forensic Expertise: Clio Takes the Stand. Routledge, Abingdon, UK Phelps T (2011) The Ethics of Storytelling: A Nation’s Role in Victim/Survivor Storytelling. Ethical Perspectives 18:169 Rogers D (2017) Law, Politics and the Limits of Prosecuting Mass Atrocity. Palgrave Macmillan, New York, NY, US Sander B (2018a) History on Trial: Historical Narrative Pluralism Within And Beyond International Criminal Courts. International & Comparative Law Quarterly 67:547–576 Sander B (2018b) The Method is the Message: Law, Narrative Authority and Historical Contestation in International Criminal Courts. Melbourne Journal of International Law 19:299 Sander B (2019) Justifying International Criminal Punishment: A Critical Perspective. In: Bergsmo M, Buis EJ (eds) Philosophical Foundations of International Criminal Law: Foundational Concepts. Torkel Opsahl Academic EPublisher, p 269 Schabas W (2012) Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals. Oxford University Press, Oxford, UK/New York, NY, US Schabas WA (2018) Time, Justice, and Human Rights: Statutory Limitation on the Right to Truth? In: Adler N (ed) Understanding the Age of Transitional Justice. Rutgers University Press, New Brunswick, NJ, US Schiff BN (2008) Building the International Criminal Court, 1st edn. Cambridge University Press, Cambridge, UK/New York, NY, US Shklar JN (1986) Legalism: Law, Morals, and Political Trials. Harvard University Press Simpson G (1997) Didactic and Dissident Histories in War Crimes Trials. Albany Law Review 60:801 Simpson G (2015) Linear Law: The History of International Criminal Law. In: Schwöbel C (ed) Critical Approaches to International Criminal Law, 1st edn. Routledge, Abingdon, UK Stein A (2008) On the Epistemic Authority of Courts. Episteme 5:402–410 Subotic J (2009) Hijacked Justice: Dealing with the Past in the Balkans. Cornell University Press, Ithaca, NY, US Teitel RG (2002) Transitional Justice. Oxford University Press Terris D, Romano CPR, Swigart L, Sotomayor S (2007) The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases. Brandeis, Waltham, MA, US/Hanover, NH, US

76

2 Approaches to the History-Writing Function …

Tromp N (2016) Prosecuting Slobodan Miloševi´c: The Unfinished Trial. Routledge, Abingdon, UK/New York, NY, US Tromp N (2018) In Search for Truth at Mass Atrocities Trials: Will Judges and Lawyers Have the Last Word? The Journal of Comparative Law 12:61 UC Berkeley School of Law (2014) Bearing Witness at the International Criminal Court: An Interview Survey of 109 Witnesses UN Economic and Social Council (Commission On Human Rights) (1997) The Administration Of Justice And The Human Rights Of Detainees. E/CN.4/Sub.2/1997/20 UN Economic and Social Council (Commission On Human Rights) (2005) Updated Set of principles for the protection and promotion of human rights through action to combat impunity. E/CN.4/2005/102/Add.1 UN Security Council Resolution 808 (1993), S/RES/808 (1993) UN Security Council Resolution 827 (1993), S/RES/827 (1993) UNHRC, Twenty-fourth session ‘Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff’ (28 August 2013) UN Doc A/HRC/24/42. (no date) v H Holtermann J (2017) ‘One of the Challenges that Can Plausibly Be Raised Against Them’? On the Role of Truth in Debates about the Legitimacy of International Criminal Tribunals. In: Hayashi N, Bailliet CM (eds) The Legitimacy of International Criminal Tribunals. Cambridge University Press, Cambridge UK Wald PM (2001) The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-To-Day Dilemmas of an International Court. Washington University Journal of Law & Policy 5:087–118 Waters TW (2010) A Kind of Judgment: Searching for Judicial Narratives after Death. Geo Wash Int’l L Rev 42:279–348 Wilson RA (2011) Writing History in International Criminal Trials. Cambridge University Press, Cambridge, UK/New York, NY, US Wood N (1999) Vectors of Memory: Legacies of Trauma in Postwar Europe, 1st edn. Berg 3PL, Oxford, UK

Chapter 3

The Individual-Centred Lens

Contents 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Individual-Centred Lens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Colonial Legacies as a Counternarrative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

78 81 90 96

Abstract Using a frame analysis approach, this chapter focuses on one of the lenses through which judges and other legal practitioners interpret and understand past events, namely, the individual-centred lens. In international criminal adjudication, judges interpret and explain historical events primarily on the basis of individual agency. The individual-centred lens has the advantage of focusing on the role of particular individuals and thus facilitating the allocation of guilt on the basis of individual criminal responsibility. It would be incomplete, however, to describe this framework as exclusively focused on individual agency. This lens also contains constructs that allow for an understanding of historical events which, at least to some degree, extend to broader, collective agency. Nevertheless, historians, social scientists and some critical legal scholars have long been sceptical of the one-dimensional, individual-centred accounts of mass atrocities produced by ICTs, preferring instead more nuanced, multi-dimensional explanations. By focusing on the role of the individual, the individual-centred lens tends to de-emphasize other potential causes and explanations of mass atrocities. These would include broader environmental and structural causes, collective agency and colonial legacies. Examining such counternarratives is important as it exposes the outer limits of law’s lenses and the potential blind spots in the historical narratives that ICTs may produce. This chapter thus proceeds to illustrate one such counternarrative relating to colonial legacies. Keywords History · Criminal Trials · Individual Agency · Collective Agency · Frame Analysis · Cognitive Framework · Colonial Legacies

© T.M.C. Asser Press and the author 2021 A. Zammit Borda, Histories Written by International Criminal Courts and Tribunals, International Criminal Justice Series 26, https://doi.org/10.1007/978-94-6265-427-3_3

77

78

3 The Individual-Centred Lens

3.1 Introduction The next three chapters will use frame analysis to try to better understand the kinds of historical narratives that judges of ICTs may write, including their strengths, constraints and blind spots. As discussed in Chap. 1, this method has roots in sociology, psychology, linguistics and various subfields within political science. However, it has not yet fully emerged as a methodology for examining the operation of international criminal adjudication.1 Frame analysis can help us better understand the process of adjudication as a cognitive practice, by analysing the interpretation of past events from within the frames that the judges themselves use.2 Robert M. Entman has argued that framing essentially involves selection and salience. He defined the process of framing as: to select some aspects of a perceived reality and make them more salient in a communicating text, in such a way as to promote a particular problem definition, causal interpretation, moral evaluation, and/or treatment recommendation for the item described.3

Through framing, therefore, judges (and other legal actors) make sense of complex and contested past events by selecting and highlighting some aspects, while downplaying or omitting other aspects. Through this process, they understand, interpret and explain the past.4 In the process of communication, their lenses operate so that judges choose pieces of information “from a multitude of possibilities and then base other kinds of choices on the outcome of this pre-selection, often in the form of latent common assumptions”.5 Scholars have sometimes referred to such frameworks as legal “grids”6 or “prisms”7 through which judges and other actors in the legal arena “interpret and attribute a meaning to the world that surrounds them”.8 In this book, these frameworks are referred to as “lenses”. A frame analysis approach enables us to focus attention on the lenses through which judges select and attach salience to particular aspects of reality and foreground these aspects, while downplaying or omitting other aspects of the same complex reality. The strength of this approach is that it focuses attention on the process of interpreting the past from the perspectives of the judges themselves, taking account of the focal points of their lenses. It could also enable us to delineate the contours and outer limits of such lenses and to identify what kinds of interpretations and counternarratives are likely to be pushed to the periphery. This is important because, as Entman has argued, most frames are defined by what they omit as well as include, 1 Pirker

and Smolka 2019, p. 430. p. 432. 3 Entman 1993, p. 52. 4 Douglas 2005, p. 77. 5 Pirker and Smolka 2019, pp. 435–6; Wählisch 2015. 6 Sander 2018, p. 8. 7 Bilsky 2004, p. 178. 8 Hughes 2006, p. 74. 2 Ibid.,

3.1 Introduction

79

and the omission of potential explanations or evaluations may be as critical as the inclusions in understanding the scope of the frames.9 In light of the principle of legality in international criminal adjudication, the starting point for an analysis of the way in which judges understand and interpret the past has to be the formal sources of law. It is the black letter laws that define the permissible parameters of the frames that judges may use. The point of departure for such an analysis must therefore be the underlying legal regimes of ICTs, comprising the totality of their founding instruments, applicable laws and rules, procedures and conventions. While there are considerable similarities and overlaps between the legal regimes of different ICTs, there are also notable divergences. As a result, there will also be differences in the lenses that judges from different courts and tribunals may use. Thus, for instance, as will be discussed in Chap. 4, the Charter of the International Military Tribunal (IMT) at Nuremberg required a link between crimes against humanity and crimes against the peace and/or war crimes. As a result, judges at Nuremberg could only interpret past events as “crimes against humanity” if they were linked to war crimes, etc. However, the Rome Statute of the ICC does not require such a link and judges at the ICC could characterise past events as “crimes against humanity” even if they occurred in peacetime or if they were not connected to crimes against the peace and/or war crimes. The contents of, and differences in, the legal regimes of the respective ICTs, therefore, directly impact on the cognitive frames through which judges interpret past events in their respective courts and tribunals. Therefore, the underlying legal regimes of ICTs furnish an important starting point for examining the cognitive lenses of judges. However, confining the analysis to such black letter laws, concepts and procedures would only tell part of the story. Indeed, legal realists have long argued that rules fail meaningfully to constrain judges in the actual business of deciding cases, while scholars associated with critical legal studies have noted that an entirely formal approach to adjudication is “at best delusory and at worst pernicious”.10 This is, in part, because the laws, concepts and procedures incorporated in the underlying legal regimes are often drafted in open-textured and context-independent terms. Thus, as Sander notes: when judges adjudicate individual cases, they are required to interpret legal categories with a view to applying them to the specific factual circumstances of the case at hand. In this way, the interpretative enterprise may be understood as a complex interplay between facts and law, the historical narratives constructed within international criminal courts depending on how the two are ‘fitted to each other.’11

In some respects, the legal regimes of ICTs may be quite strict, particularly in some of their definitions of crimes and modes of liability, thereby significantly limiting room for manoeuvre and interpretation. However, in other respects, they may be quite broad, providing latitude for significant discretion and a plurality of possible interpretations. In such cases, a frame analysis approach enables us to move beyond the 9 Entman

1993, p. 54. 2005, p. 112. 11 Sander 2018, pp. 10–11. 10 Douglas

80

3 The Individual-Centred Lens

black letter laws to also take account of other sociological factors which may influence judicial interpretations of past events, such as the role of culture and ideology.12 This is because, as the anthropologist Clifford Geertz has shown, interpretations within a given discipline are deeply rooted in that discipline’s underlying culture(s) and ideology(-ies). Ideology serves the purpose of rendering “otherwise incomprehensible social situations meaningful, to so construe them as to make it possible to act purposefully within them”.13 For instance, it has been argued that ICL in general, and international criminal adjudication in particular, are “inextricably bound up” in the logics of liberalism and neoliberalism.14 Several scholars have drawn attention to the parallels between the central paradigms of liberalism and the central paradigms of ICL.15 Osiel, for instance, observes that “[t]he criminal law is widely and correctly thought to embody assumptions about human nature and society that are primarily liberal.”16 As such, a fuller understanding of the lenses through which judges interpret past events would require one to move beyond the text of the black letter laws and to also take into account the subtexts, including key concepts of liberal ideology, such as individualism, civilisation and humanity, which may influence how the past is framed. Thus, even though some of the lenses covered in this book have been welltraversed in the literature, such as the individual-centred lens covered in this chapter, they are revisited here from the perspective of frame analysis. From this perspective, for instance, in seeking to understand why judges of the ICC tend to focus on individual agency instead of other possible explanations of mass violence, the text of the Rome Statute (such as Article 25 on individual criminal responsibility) would only furnish a starting point. One would also have to take into account liberalism’s understanding of the individual as the central unit of action and thereby “deserving of blame when things go terribly wrong”.17 The influence of liberal concepts on interpretation would also account for why certain explanations of mass violence that are in tension with individual agency would likely be pushed to the periphery of the lens (as counternarratives). Therefore, in seeking to gain a fuller picture of the cognitive lenses through which judges at particular courts and tribunals interpret past events, one would have to take account of both the underlying legal regimes and broader sociological, cultural and ideological factors which would influence their framing and interpretations of reality. With this in mind, over the next chapters, three cognitive lenses will be analysed. These lenses are: (a) individual-centred; (b) crime-driven; and (c) law-affirming. It should be emphasised that these three lenses are not exhaustive and may overlap with

12 For

recent contributions to this area, see Bianchi 2010; Klabbers 2006. 1964, p. 64. 14 Schwöbel 2015, p. 265. 15 Ibid., p. 264. 16 Osiel 1999, p. 9. 17 Drumbl 2005, p. 1309. 13 Geertz

3.1 Introduction

81

others not considered in this study.18 Each of these lenses has specific focal points and vanishing points. By promoting certain explanations of past events, and rejecting competing explanations, these lenses serve to frame and constrain the historical narratives that judges of ICTs are able to write. In addition to exploring the strengths and blind spots of these three lenses, the analysis will also briefly discuss a number of competing interpretations and explanations that do not “fit in” with these lenses, and which are therefore characterised as counternarratives. In this respect, it is significantly easier to identify the focal points of particular lenses than it is to identify their blind spots (which are more numerous). For this reason, the analysis will mainly concentrate on examining the focal points for each lens. Each chapter will then illustrate a counternarrative which would not normally be captured by that lens, in order to illustrate potential blind spots. However, it should be made clear that the discussion of counternarratives is merely illustrative and not exhaustive. Nor is this discussion meant to be normative, and it does not take any view as to whether or not such counternarratives should come within the purview of legal lenses: such a question would fall beyond the scope of this book.

3.2 Individual-Centred Lens Individualism is a central theme of liberalism and also of modern international criminal adjudication. It furnishes the first focal point of the lenses through which judges of ICTs interpret past events.19 The role of individualism in ICL has been approached from different perspectives.20 This section will focus on the construction of the individual as the central unit of action.21 Specifically with respect to international criminal adjudication, individualism means that courts tell a story in which individuals are portrayed as autonomous agents. From this perspective, individuals are not mere cogs in a process of social engineering. Rather, they are ends in themselves—a notion that may be traced back to Immanuel Kant.22 This was brought to the fore in the pronouncement of the Nuremberg Tribunal that: “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provision of international law be enforced.”23 18 For instance, one lens that is not considered in this book is the “propaganda” lens which, according to one commentator, has come to serve “as a black box of indeterminate causation, a container into which judges relegate all that is cultural, contextual and historically conditioning”: see Wilson 2016, p. 538. 19 Arblaster 1986. 20 Gevers 2015, p. 221. 21 Drumbl 2003, p. 5. 22 Ibid., p. 150. 23 IMT, Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 1945, 42 vols., para 223 (Vol. I). Rogers notes that the drafting of the IMT Charter was the first time a war of aggression was treated as a serious international crime perpetrated by individuals, rather than as a transgression of international law involving the state: see Rogers 2017, p. 39.

82

3 The Individual-Centred Lens

This view of individual agency was subsequently enshrined as Principle I of the Nuremberg Principles.24 It was further incorporated into the legal frameworks of the ad hoc Tribunals (e.g. Article 7 of the ICTY) and, later, the ICC (Article 25 of the Rome Statute). It has also been frequently reaffirmed by the judges of the ICTs. For instance, in Tadi´c, the Appeals Chamber held: [t]he basic assumption must be that in international law as much as in national systems, the foundation of criminal responsibility is the principle of personal culpability: nobody may be held criminally responsible for acts or transactions in which he has not personally engaged or in some other way participated (nulla poena sine culpa).25

In ICL, therefore, the individual—conceived as an autonomous moral agent— constitutes the primary unit of analysis.26 Judges at ICTs understand and interpret historical events primarily through the prism of individual agency and the historical narratives they are able to produce are written through this lens. The individualcentred lens has the advantage of focusing on the role of particular individuals and thus facilitating the allocation of guilt on the basis of individual criminal responsibility. It has the merit, therefore, of foregrounding the role of individual agency in historical explanations and, to a large degree, displacing theories of collective guilt. According to Cassese, this approach provides an appropriate (indeed, desirable) explanatory framework for atrocities and has the potential to establish a fully reliable record of the events, in that: • trials establish individual responsibility over collective assignation of guilt, i.e., they establish that not all Germans were responsible for the Holocaust, nor all Turks for the Armenian genocide, nor all Serbs, Muslims, Croats or Hutus but individual perpetrators—although, of course, there may be a great number of perpetrators; • justice dissipates the call for revenge, because when the Court metes out to the perpetrator his just deserts, then the victims’ calls for retribution are met; • by dint of dispensation of justice, victims are prepared to be reconciled with their erstwhile tormentors, because they know that the latter have now paid for their crimes; • a fully reliable record is established of atrocities so that future generations can remember and be made fully cognisant of what happened.27 In a similar vein, Werle observes that the individual-centred lens shows that international crimes are committed not by abstract entities such as states, but always require the cooperation of individuals: 24 Principles

of International Law of the Charter and Judgment of the Nuremberg Tribunal, Formulated by the International Law Commission, Second Session 1950, p. 715. 25 ICTY, Tadi´ c, Appeals Judgment, 1995, IT-94-1-A), para 186. 26 Drumbl 2005, p. 103. Even though the availability of mitigating or exculpating circumstances recognise that such individual agency may be impaired, these circumstances still operate at the individual unit of analysis. 27 Cassese 1998, p. 6.

3.2 Individual-Centred Lens

83

[t]his individualization is important for the victims and their families because they have a right to the whole truth. The individualization of the perpetrators provides an opportunity to process their personal stake in the system crimes. Finally, it is important for society, because it rejects a theory of collective guilt.28

For Ignatieff, “[t]he most important function of war crimes trials is to ‘individualise’ guilt, to relocate it from the collectivity to the individuals responsible.”29 For him, the rejection of the theory of collective guilt is important because “atrocity can only be committed by specific individuals”.30 He cites the philosopher Karl Jaspers who said of the Nuremberg trial in 1946, for us Germans this trial has the advantage that it distinguishes between the particular crimes of the leaders and that “it does not condemn the Germans collectively”.31 Historical explanations arising from the individual-centred lens, therefore, may serve “the interests of both justice and truth by establishing a bulwark against collective punishment—a particularly strong temptation in the wake of mass atrocities.”32 However, in so doing, historical explanations arising from the individual-centred lens also portray individuals as autonomous subjects, choosing to conduct themselves “in this way or that”.33 This may tend to distort or “exaggerate the roles of individuals in events of greater historical sweep and compass”.34 For instance, Brooks notes how, in Erdemovi´c, the majority characterised the story of the accused as “a narrative about choice”.35 They drew attention to Erdemovi´c’s failure as a moral agent, whose crime “was only consummated at Srebrenica, but began much earlier […in] his repeated failure to take a real stand, to insist on loyalty to any one group or idea”.36 While the primary focus of the individual-centred lens, therefore, is on individual agency, a more nuanced understanding of this lens, in the context of transitional justice, is offered by Teitel. She suggests that it mediates, to some degree, between understandings of individual and broader, collective responsibility.37 According to Teitel, whereas trials are often thought inapt for adequate historical representation because criminal justice tends to offer narrow explanations of individual agency, contemporary transitional justice:

28 Werle

2007, p. 43; cited in Baars 2015, p. 203. 1996, pp. 116–7.

29 Ignatieff 30 Ibid.

31 Ibid., However, Ignatieff proceeds to shed doubt on whether the individualization of guilt truly has the effect of rejecting collective guilt. In this respect, he cites the German novelist Martin Walser, who wrote that when a Frenchman or an American sees pictures of Auschwitz, “he doesn’t have to think: we human beings! He can think: those Germans! Can we think: those Nazis! I for one cannot…”: see ibid., p. 117. 32 Douglas 2016, pp. 44–5. 33 Osiel 1999, p. 72. 34 Douglas 2016, p. 40. 35 Brooks 2003, p. 881. 36 Ibid. 37 Teitel 2002, p. 75.

84

3 The Individual-Centred Lens mediates antinomies of the individual and the collective through constructs in the law of motive and policy. In these instances, the interaction of legal and historical constructions of responsibility supports a complex view of wrongdoing as perpetrated by individuals within a changing society.38

While the individual-centred lens is primarily focused on individual agency, it also contains constructs which allow for an understanding of historical events which, at least to some degree, extend to broader, collective agency. Van Sliedregt notes that these constructs include liability theories such as accomplice liability, vicarious responsibility, strict liability, (membership of a) criminal organisation, and the doctrine of common purpose [that] can all be regarded as concepts of individual criminal responsibility with collective traits.39 Indeed, because core international crimes are typically the product of organized group activity, individual and collective responsibilities are often intertwined and difficult to separate.40 For Clapham, collective liability theories enable ICL to widen the net of explanation and accountability, in order to cover “not only people in positions of authority but also those who simply aid and abet others”,41 In this context, the jurisprudence of the ad hoc Tribunals has invoked collective liability theories to ground convictions for atrocities in Rwanda and the former Yugoslavia.42 In Niyitegeka, for instance, the accused, who in the relevant period was Minister of Information in Rwanda, was convicted on a variety of counts, including conspiracy to commit genocide. The ICTR ruled that the existence of a conspiracy and the specific intent to commit genocide among the conspirators could be established circumstantially, and held that the “organized manner in which the attacks were carried out […] presupposes the existence of a plan.”43 Similarly, in Nahimana, the Tribunal held that an agreement to commit conspiracy to commit genocide could be inferred from circumstantial evidence. The Tribunal went on to state that such a theory of liability could extend to an informal collective: [a] coalition, even an informal coalition, can constitute such a framework so long as those acting within the coalition are aware of its existence, their participation in it, and its role in furtherance of their common purpose. […C]onspiracy to commit genocide can be comprised

38 Ibid. 39 Van

Sliedregt 2006, p. 84. See also Simpson 2015, p. 160. For instance, the theory by which the prosecution successfully argued for joinder in the Milosevic trial was that he and others were involved in a single “transaction” of alleged crimes in three conflicts and three countries spanning eight years—an overarching JCE whose members sought to create a “Greater Serbia” through the violent expulsion of non-Serbs. The prosecution therefore promised not only to demonstrate Milogevic’s guilt, but to do so in a way that showed the complicity of the senior leadership of Serbia, the Republika Srpska in Bosnia, and the Serbian Republic of the Krajina in Croatia: see Waters 2010, p. 301. 40 This may raise issue for unindicted persons: see Damaška 2012, p. 1239. 41 Clapham 2003, p. 67; Douglas 2016, p. 45. 42 See Drumbl 2005, p. 1305 (fn 32). 43 ICTR, Prosecutor v. Niyitegeka, Judgment, 2003, ICTR-96-14-T, para 428.

3.2 Individual-Centred Lens

85

of individuals acting in an institutional capacity […] independently of their personal links with each other.44

It is notable, however, that a number of ICTY judges have expressed concerns over, and pushed back on, the broader use of collective liability theories. For instance, in Brdjanin, the Tribunal rejected joint criminal enterprise in a case in which the accused was physically and structurally remote from the crimes.45 While some Chambers have invoked collective liability theories to widen the net of accountability, therefore, this has only happened to a limited extent. This underscores the limitations of the individual-centred lens in attempting to provide explanations based on broader conceptions of agency. In this sense, Drumbl notes the “schizophrenia” that emerges from, on the one hand, incorporating collective agency elements in order to secure convictions and, on the other, expressing concern that criminalization ought to be based on individual and not collective agency.46 In his view, [t]ruly recognizing the riddle of collective action requires more than just an extension of the dominant discourse of ordinary criminal law, which embraces liberalism’s understanding of the individual as the central unit of action and thereby deserving of blame when things go terribly wrong.47

Notwithstanding these limitations, commentators such as Cassese have insisted that the individual-centred lens is appropriate to offer reliable explanations of past events for the purposes of administering criminal justice. Drawing on Greek classics,48 Cassese recalled that in Aeschylus’ play Oresteia, the ascription of individual responsibility to Oreste enabled peace to be re-established. According to Cassese, the focus on the role of individuals is the most efficacious approach for ensuring justice and respect for human rights.49 However, while this view is widely held by legal practitioners, scholars in the fields of the humanities and the social sciences have long drawn attention to the complexities of criminal agency, of which individual agency is but one (important) component. In the Literature, this theme has featured in such works as the Oedipus trilogy, Hamlet, the Brothers Karamazov and Dr. Jekyll and Mr. Hyde.50 Historians, social scientists and some lawyers have long suggested that atrocity crimes might require a more complex understanding of agency.51 In his classic Obedience to Authority, Milgram found that, far from operating as autonomous moral agents in the liberal sense, in 44 ICTR, Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Judgment, 2013, ICTR-99-52-T, paras 1047–48. 45 ICTY, Prosecutor v. Radoslav Brdanin, Judgment, 2004, IT-99-36-T. See also Prosecutor v. Blaški´c, Appeals Judgment, 2004, IT-95-14-A. 46 Drumbl 2005, p. 1310. 47 Ibid., p. 1309. 48 Cassese 2011, p. 271. 49 Ibid., p. 272. 50 Sagarin and Kelly 1985, p. 12. 51 See Allott 2002, p. 37.

86

3 The Individual-Centred Lens

certain situations, individuals may experience an agentic shift through which they feel responsibility to the authority directing them but feel no responsibility for the content of their actions that the authority prescribes.52 From his own first-hand experiences of the horrors of Auschwitz, Primo Levi also noted how some people, to a greater or lesser degree, “tend to transfuse the human substance of their chief into their own mold, as occurs with pseudomorphic crystals”.53 Milgram was inspired to undertake his experiments in the aftermath of the Eichmann trial, where it was felt that the monstrous deeds carried out by Eichmann required “a brutal, twisted, and sadistic personality, evil incarnate”.54 However, Milgram found that: [a]fter witnessing hundreds of ordinary people submit to the authority in our own experiments, I must conclude that Arendt’s conception of the banality of evil comes closer to the truth than one might dare to imagine. The ordinary person who shocked the victim did so out of a sense of obligation – a conception of his duties as a subject – and not from any peculiarly aggressive tendencies.55

For Schlag, the notion that atrocities are committed by a few brutal and sadistic personalities is “a repetition of the quintessentially liberal-legalist aggrandizement of the individual subject as a self-determining agent who fashions his or her world by choosing to realize this moral vision as opposed to that one”.56 In a similar vein, Simpson argues that, by focusing attention on individual agency, the historical narratives written by criminal courts tend to favour the deliberate and premeditated over the accidental or unintended. In his view, this leads to an approach were historical narratives written by ICTs tend to be reductive and over-determined.57 In historiography, the competing frameworks for understanding the role of agency in mass atrocity were brought to the fore in the intentionalist/functionalist debates on the origins of the Holocaust as well as aspects of the Third Reich.58 Drawing on its individual-centred lens, the Nuremberg Tribunal produced a very specific historical interpretation of the Nazi plan, ascribing responsibility for the war chiefly to Hitler and the Nazi leadership. Tromp observes that historians, however, realised over time: how the evidentiary focus of proceedings in Nuremberg had unwittingly influenced their analysis in favour of what came to be known as the “intentionalist” interpretation of the period, which maintains that the Holocaust resulted from an explicit master plan created by Adolf Hitler himself and implemented from the top down. Only later was attention directed to the role of minor bureaucrats and functionaries at all levels of German society - an approach known as the “functionalist” interpretation and concerned with the complicity of ordinary Germans in the Holocaust, to such an extent in the case of some scholars that they ascribe

52 Milgram

and Zimbardo 2010, p. 147. 1995, p. 32. 54 Milgram and Zimbardo 2010, p. 7. 55 Ibid. 56 Schlag 1991, pp. 164–5. 57 Simpson 2015, pp. 164–5. 58 Maier 1998, p. 95. 53 Levi

3.2 Individual-Centred Lens

87

the adoption of the Final Solution primarily to social and political pressures from the bottom up.59

In this context, historians and some lawyers have long been sceptical of onedimensional, individual-centred accounts of mass atrocity such as the ones produced by ICTs, preferring instead more nuanced, multi-dimensional explanations. Koskenniemi, for instance, draws attention to broader environmental and structural causes which need to be incorporated in historical explanation, observing that: the meaning of historical events often exceeds the intentions or actions of particular individuals and can be grasped only by attention to structural causes, such as economic or functional necessities, or a broad institutional logic through which the actions by individuals create social effects.60

This critique has been echoed by others, who have argued that ICL’s explanatory framework “misrepresents, and possibly even sublimates, the role of structural forces such as economic reforms (and disparities), geographical factors, political instability, social marginalization and, more pertinently, colonial borders and institutions”.61 According to Malamud-Goti, pinning the blame for the derailment of a train solely on the conductor’s behaviour, regardless of the fact that we may attribute other factors to the accident, enables us to think we can control future possible mishaps unlike factors such as poor visibility or the icing on the rails being named. This, in turn, allows us “to eliminate from our mental process other “normal” elements that also may have led to the derailment - for example, the management’s decision to stick to the schedule in spite of the poor visibility and the ice.”62 This focus on individual agency, therefore, leads to a simplified understanding of causation that “trims away complexity, detail, and ambiguity”.63 Deep and critical thinking are eschewed in favour of affixing an identity on the accused.64 On their part, critics of complexity theories have often argued that such approaches tend to encourage the diffusion of responsibility, leading, ultimately, to exoneration. Writing in relation to the Papon case, Nicolas Weill, a reporter for Le Monde, criticized proponents of complexity for not recognising the exonerating implications of their stance. Weill argued that the constant appeal by certain historical experts (in 59 Tromp 2016, pp. xi–xii; As Mason notes, the intentionalist and functionalist labels refer to “ideal”

types. Not all functionalists, for instance, passed over human agency and assigned historical and moral responsibility for Nazi policies to blind forces and pressures: see Mason 2008, p. 213; Bloxham 2003, p. 12. 60 Koskenniemi 2002, pp. 13–4. 61 Gevers 2015, p. 232; Tromp 2016, p. 30. 62 Malamud-Goti 1996, pp. 24–5. 63 Hinton 2016, p. 290. 64 Payne 2018, p. 176. In this context, Nice suggests that the focus on the individual reflects “the general hypocrisy of most states that pretend that criminal wickedness is intrinsic to some citizens. Overlooking all evidence of conditioning as a major engine of crime, they then ask for confession from criminal citizens despite states themselves confessing to nothing if they can possibly avoid it”: see Nice 2017, p. 4.

88

3 The Individual-Centred Lens

particular, Rousso) to “nuances” and “subtleties” ran the risk of making Vichy historiography vulnerable to a kind political apologetics.65 However, the flipside of this argument is that the individual-centred lens also carries exonerating implications: focusing only on the leadership or a few individuals who have engaged in atrocities tends to discourage wider inquiries as to whether others are culpable or complicit.66 In the final analysis, therefore, both individual and collective agency theories may provide partial explanations.67 There have been several scholarly proposals for reworking the individual-centred lens in order to better reflect “the relationship between individual, collective, and state criminal responsibility”.68 For instance, Chouliaras has called for a two-level framework that recognises responsibility at the individual and the collective level as the “best and the simplest to capture the structure of responsibility in cases of mass atrocities”.69 These proposals seem to be consistent with Evan’s observations on the need for balance between individual agency and more complex explanations: [t]o reduce every human being to a statistic, a social type, or the mouthpiece of a collective discourse is to do violence to the complexity of human nature, social circumstance and cultural life. On the other hand, to claim that an individual such as Stalin was simply a monster and a freak does little to help us understand why he behaved the way he did, and hugely overestimates the freedom of manoeuvre that people, even dictators, have to impose their individual will on others.70

Such a layered framework could furnish a broader, multi-dimensional understanding of agency that would be more consistent with the goal of understanding the past.71 However, revisiting the individual-centred approach would involve a radical modification of one of liberalism’s central tenets, on which modern ICL and international criminal adjudication are grounded. Judges of the ad hoc Tribunals have been well aware of the tensions between individual, collective and structural understandings of agency and, in addressing these tensions, have tended to foreground individual agency. For instance, in relation to the sentencing of Krsti´c, the first person to be convicted of genocide at the ICTY, Presiding Judge Almiro Rodrigues sought to justify why, even though some of the crimes had been committed collectively, it was 65 Weill

1998; cited in Wood 1999, p. 131. 1999, p. 453. For instance, Bloxham notes that the scale of Nazi criminality “ultimately made every trial programme a selective venture”: see Bloxham 2003, p. 54. 67 Simpson 2015, p. 165. 68 Tromp 2016, p. 30. See also Tallgren 2014, p. xxii. 69 Chouliaras 2017, p. 135; see also a proposal by France, submitted to the Diplomatic Conference in Rome, to include corporate responsibility in the Rome Statute of the ICC, which was turned down by majority vote: see van der Wilt 2013, p. 46. Making a similar argument from the perspective of memory, López has argued for a fundamental reconceptualization of the law’s preference for individual memory in the context of transitional justice. She argues that the inclusion of collective memory will facilitate a better understanding of the collective harms that characterize mass atrocities: see López 2015, p. 801. 70 Evans 2001, p. 189. See also Mason 2008, p. 230. 71 Alvarez 1999, p. 454. 66 Alvarez

3.2 Individual-Centred Lens

89

nevertheless appropriate to ascribe responsibility to individuals and to reject notions of collective responsibility: I believe it is essential to make a distinction between what might be collective responsibility and individual responsibility. The Tribunal has not been established to deal with the possibility of collective responsibility. What is of interest to me in each of the trials in which I have sat in this court is to verify whether the evidence presented before it makes it possible to find an accused guilty. I seek to judge an accused. I do not judge a people. Yes, in the former Yugoslavia there were attacks against civilian populations. Yes, there were massacres and there was persecution. Yes, some of these crimes were committed by Serbian forces. However, to paraphrase a great humanist, I consider that to associate this evil with Serbian identity would be an insult to the Serbian people and would betray the concept of civil society. But it would be just as monstrous not to attach any name to this evil because that could be an offence to the Serbs.72

As emerges from the above holding, not only is the notion of collective agency vehemently rejected, the individual v. collective agency explanations are framed in binary opposition. This leaves no room for the multi-layered analysis suggested above. At the 1998 Rome Statute Conference, it was the individual-centred approach that won the day. As Schiff notes, States accepted the Nuremberg principles “that individuals are culpable for international crimes”.73 The principle of individual criminal responsibility was ultimately enshrined in Article 25 of the Rome Statute. The fact that individualism has survived virtually unchanged from Nuremberg to the ICC indicates how deeply ingrained this approach to agency is in the fabric of ICL.74 Therefore, today, judges of ICTs interpret and understand historical events concerning mass atrocities through a primarily individual-centred lens, which prioritises explanations based on individual agency. Although this lens is able to accommodate some level of broader, collective agency explanations (through constructs such as liability theories), this is only possible to a limited degree. Explanations of mass violence that clash with the individual-centred focus, such as explanations based on structural or environmental causes, will tend to be de-emphasised and pushed to the periphery or rejected altogether. The next part will examine one such counternarrative concerning colonial explanations of mass violence in post-colonial countries. It should be emphasized that the selection of this counternarrative is intended to illustrate some of the blind spots of the individual-centred lens. In this respect, other counternarratives could have been selected to make the same point. Examining such counternarratives is important as it exposes the outer limits of law’s lenses and the potential for blind spots in the historical narratives that ICTs write.

72 Rodrigues

2001. 2008, p. 248 (emphasis added). 74 Interestingly, Ginzburg argues that law’s individual-centred framework has had an impact on historiography, urging historians to focus on events “that could be easily ascribed to specific actions performed by one or more individuals”, and on the other hand, to disregard “those phenomena (like social life, mentalites, and so on) that resist an approach based on this explanatory framework”: see Ginzburg 1991, pp. 81–2. 73 Schiff

90

3 The Individual-Centred Lens

3.3 Colonial Legacies as a Counternarrative As discussed above, the individual-centred lens tends to prioritise explanations of individual agency and to push conflicting counternarratives to the periphery. As a result, judges of ICTs trying to make sense of mass atrocities through this lens would focus on the role of individuals and would tend to de-emphasize other, conflicting explanations in their judgments. Examining not just the focal points of law’s lenses but also its counternarratives is therefore important because it exposes the outer limits of the lenses and historical explanations that ICTs may produce. To illustrate this point, the counternarrative explanation of colonial legacies has been selected. This part will aim to show how, even though several scholars and expert witnesses have emphasized the role of colonial legacies as root causes of mass violence in post-colonial societies today,75 in their interpretations of mass atrocities, judges of ICTs have tended to background these explanations. As a result, they have tended to confine their discussions of colonial legacies, if at all, to a few background paragraphs in their judgments. Although the excesses of the colonial period are widely known, they have seldom been presented as acts of individuals. They are rather characterised as acts of States, such as those of the faceless “Belgian colonial authorities”.76 As a result, Gevers observes that “colonialism remains a collective sin, for which many are and nobody is responsible, for which law has offered very little expiation, and ICL nothing.”77 It is notable that expert witnesses at ICTs have time and again insisted on the impossibility of understanding modern conflicts in post-colonial countries without referring back to the colonial legacies as underlying causes.78 Nevertheless, in their judgments, international judges have tended to de-emphasize such legacies by focusing on their temporal remoteness and relegating them to a few paragraphs of contextual information.79 It has been observed that criminal law’s specific understanding of causation emphasizes proximate causes that are temporally and physically adjacent to the commission of the crime.80 Thus, in their understanding of causation, judges of ICTs have tended to focus on proximate causes; chiefly, causes triggered by individual agency. Insofar as they have also acknowledged more remote causes, these 75 See,

for instance, Freedman 2015, p. 141. Prosecutor v. Jean-Paul Akayesu, Judgment, 1998, ICTR-96-4-T, para 82. 77 Gevers 2015, p. 226. 78 See, for instance, Garretón’s statement that it was impossible to understand the current situation in the DRC without going back to history, including the abuses during the period of colonisation: see ICC, Prosecutor v. Thomas Lubanga Dyilo, Report for the International Criminal Court by Roberto Garretón, 2009, ICC-01/04-01/06-1655-Anx-tENG 20-02-2009 1/32 EO T, para 4. 79 Rogers observes that “while the doctrine of individual responsibility draws upon western liberal thought and gives focus to the quest for international criminal justice on humanity’s behalf, it falls short of reconsidering root causes of armed conflict and mass atrocity in places such as Sub-Saharan Africa. Rather, the root causes of such violence are merely gathered up as records of the past in order to help establish mitigating factors for the defendant upon conviction”: see Rogers 2017, p. 190. 80 Wilson 2018, p. 110. 76 ICTR,

3.3 Colonial Legacies as a Counternarrative

91

have usually been downplayed and considered less relevant for the purposes of understanding responsibility. This is in contrast with the social science and the humanities, which have a very different conception of cause-and-effect than criminal law. Thus, while colonial legacies may be perceived as a remote cause from the perspective of criminal law, it might be viewed as a compelling cause for historical explanation.81 For instance, Wilson notes that: [a]t the ICC, Kenyan experiences of European colonialism, however relevant to the ethnic politics of Kenya today, may occupy the second category of remote causes in international criminal courts. At the ICTR, the 1959-1962 Revolution against the Tutsi monarchy in Rwanda could arguably have been one material cause of the 1994 genocide of Tutsis, but it is too distant a historical factor to qualify as a proximate cause to which criminal responsibility could conceivably attach.82

In Akayesu, the historian and expert witness Dr. Alison Desforges observed how German and, subsequently, Belgian colonial authorities introduced permanent ethnic distinctions into Rwanda. These distinctions, which according to Desforges were born of “racial or even racist considerations”, served to divide the population into three groups which they called ethnic groups, “with the Hutu representing about 84% of the population, while the Tutsi (about 15%) and Twa (about 1%) accounted for the rest. In line with this division, it became mandatory for every Rwandan to carry an identity card mentioning his or her ethnicity.”83 Desforges testified how these ethnic distinctions were exploited by the Belgian authorities and the Catholic church to form and shift alliances with Tutsis or the Hutus according to expediency, thereby further fomenting ethnic tensions.84 There is a striking sense of continuity in Desforges’ narrative about Rwanda’s history, from the start of the colonial period in about 1897, through the political unrest that broke out in 1959, to the genocide in 1994. Desforges’ narrative was presented in a section of the Akayesu judgment entitled “Historical Context of the Events in Rwanda in 1994”. According to the judges, “in order to understand the events alleged in the Indictment, it [was] necessary to say, however briefly, something about the history of Rwanda, beginning from the precolonial period up to 1994.”85 However, no sooner had the judges set out the context than they proceeded to de-emphasize it. The rest of the judgment is characterised by an understanding of the events in Rwanda in 1994 and the role of the accused from a primarily individual-centred lens. There is little suggestion in the judgment that the colonial legacies relating to imported racist notions of ‘superior races’ played any role in the violence that ensued.86 Rather, the narrative emerging from this and other ICTR judgments is largely one of individual agency, placing responsibility for the 81 Wilson

2016, p. 538. 2011, p. 538. 83 ICTR, Prosecutor v. Jean-Paul Akayesu, Judgment, 1998, ICTR-96-4-T, paras 82–3. 84 Ibid., paras 84–90. 85 Ibid., p. 78. 86 Alvarez 1999, p. 440. 82 Wilson

92

3 The Individual-Centred Lens

1994 genocide in Rwanda squarely at the feet of a small number of contemporary perpetrators, with no further regard to the role of colonial legacies and other potential root causes. A year after the Akayesu judgment, in Kayishema et al., the ICTR judges provided further details of the discriminatory colonial policies implemented in Rwanda. Drawing on the testimony of the sociologist and expert witness Professor André Guichaoua, the judges noted that prior to colonisation, Rwandans shared a common ethnicity and any “line separating the Hutus and Tutsis was permeable as the distinction was class-based.”87 However, consistent with the Desforges’ testimony, Guichaoua explained that it was the Belgians who permanently sealed Rwandans into distinct ethnic categories. The Chamber noted that: [t]he Belgians instituted a system of national identification cards bearing the terms Hutu, Tutsi and Twa, under the category of ethnicity, which were used for administrative purposes in 1931. Although prior to the arrival of the European colonisers the Rwandans had referred to themselves as Hutus, Tutsis or Twas, it was after this point that the group identity solidified and this former sociological categorisation became a means of ethnic identification. From its inception, the identification card has been used to facilitate discrimination against one group or another in Rwanda, be it in the implementation of an ethnic based quota system in educational and employment opportunities or in implementing a policy of genocide as was done in 1994.88

While these discriminatory colonial policies were, therefore, acknowledged in the judgment, they were subsequently backgrounded. In line with its individual-centred lens, the Kayishema et al. judgment made no further mention of the legacies of colonialism and of the ethnic divisions that were enforced in that period as root causes of the 1994 genocide. Instead, the judgment explained the genocide solely in terms of individual agency, laying the blame at the feet of “those in power in 1994”, who exploited ethnic tensions in Rwanda. It was those individuals who: ignored the Arusha Accords and used the militias to carry out their genocidal plan and to incite the rest of the Hutu population into believing that all Tutsis and other persons who may not have supported the war against the RPF were in fact RPF supporters. It is against this backdrop that of thousands of people were slaughtered and mutilated in just three short months.89

In Nahimana et al., the accused “conveyed to the Chamber, in their testimony and otherwise, the importance of understanding the history of Rwanda, and more specifically the history of ethnic identity and inter-ethnic relations, in understanding the events that transpired in 1994 in Rwanda.”90 In particular, one of the accused challenged the first paragraph of the indictment that alleged that the period of ethnic 87 ICTR, Prosecutor v. Clément Kayishema and Obed Ruzindana, Judgment, 1999, ICTR-95-1, para 34. 88 Ibid., para 35. 89 Ibid., p. 54. 90 ICTR, Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Judgment, 2013, ICTR-99-52-T, para 105.

3.3 Colonial Legacies as a Counternarrative

93

clashes between the Hutu and the Tutsi had commenced in 1959. In the trial, the accused introduced into evidence numerous historical works about the history of ethnic identity and conflict in Rwanda. In their judgment, the judges recognised that the history of ethnic conflict in Rwanda had roots long preceding 1959, contrary to the statement made in the first paragraph of the indictment. They proceeded to note that: the emergence of Hutu, Tutsi, and Twa ethnic group identity over the course of Rwandan history, and the concomitant ethnic prejudice that resulted from the differential distribution of social and political privilege along ethnic lines, fostered by and during colonial rule. The history of Rwanda in the twentieth century has been shaped by a complex interplay of political power and ethnic consciousness. The Chamber observes that political forces have greatly contributed to the transformation of ethnic consciousness into ethnic hatred.91

The judges in Nahimana et al. arrived closer perhaps than any other ICTR Chamber in recognising the role of colonial legacies in partly explaining “the otherwise almost incomprehensible level and intensity of the violence that erupted in April 1994 and continued relentlessly for several months.”92 In so doing, they arrived close to the viewpoints of some observers that these atrocities “can only be understood by comprehending the underlying social and other conditions of the regions affected, including the prevalence of endemic ethnic hatred.”93 However, having arrived so close, the judges then retreated and reverted to the individual-centred lens, holding that: this history cannot be used to justify such violence. Efforts to do so contribute to the perpetuation of violence. The Chamber recalls that its fundamental purpose of holding individuals accountable for their conduct is intended to “contribute to the process of national reconciliation and to the restoration and maintenance of peace”. Justice should serve as the beginning of the end of the cycle of violence that has taken so many lives, Tutsi and Hutu, in Rwanda.94

These examples from the ICTR illustrate not only the focus of the individual-centred lens on individual agency but also how other explanations of mass atrocities, such as colonial legacies, tend to be pushed to the periphery. This discussion therefore exposes the outer limits of the lens and, with such limits, the potential blind spots of the historical narratives that judges of ICTs may write. Some have been critical of this narrow focus. As Gevers notes, the emphasis on individual agency elided the need for a frank engagement with the countless atrocities committed under colonialism and during the decolonization process, whose unresolved status continues to affect post-colonial populations today.95 However, the question of whether criminal trials would be the appropriate venue for such a “frank engagement” with colonial legacies is a question that falls beyond the scope of the current study. 91 Ibid.,

p. 108. p. 109. 93 Alvarez 1999, p. 378. 94 ICTR, Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Judgment, 2013, ICTR-99-52-T, para 109 (footnotes omitted). 95 Gevers 2015, p. 225. 92 Ibid.,

94

3 The Individual-Centred Lens

A similar approach may be discerned at the ICC. In her opening statement in Lubanga, the then deputy prosecutor, Ms Fatou Bensouda, acknowledged a connection between the violence in Ituri—the district of the Democratic Republic of the Congo (DRC) in which Lubanga was found guilty of enlisting and conscripting child soldiers—and colonial policies. She stated that “[t]he armed conflict in Ituri is connected with the 1994 genocide in Rwanda and the two Congo wars. All of them are rooted in history and colonisation.”96 Moreover, in the course of the trial, the Chamber received historical evidence from, inter alia, Dr Gérard Prunier, a historian and political science expert, and Roberto Garretón, former Rapporteur for the United Nations Commission on Human Rights. The judges allowed the expert witnesses to develop their testimonies in detail to cover the economic, ethnic, and political underpinnings of the conflict in Ituri. They did so because they recognised the relevance of the underlying context in which the alleged crimes were committed, even though this exercise pointed to “facts and events outside the time-frame of the charges”.97 As a result, the evidentiary record and trial transcripts of the Lubanga trial contain extensive treatments of the colonial legacies as root causes of the violence in the DRC. In his report, Garretón stated that it was impossible to understand the current situation in the DRC without going back to a history marked by violence, dictatorships and conflicts, which itself was a reaction to “the abuses during the period of colonisation”.98 Garretón insisted that the artificial redrawing of the country’s boundary at the Berlin Conference of 1885, which did not respect natural borders and caused a mass displacement of people which gave rise to social tensions, was “one of the major causes of the tragic events that we came to learn of later”.99 Prunier went on to observe that these ethnic tensions were fomented by the discriminatory policies of the Belgian administrators, who considered the Hema ethnic group to be “a superior race”, and, as a result, granted them various privileges over other groups, such as access to employment and education.100 These colonial policies sowed the seeds of hatred between the ethnic groups which continued to subsist until the present day.101 Indeed, on one occasion, when discussing land reforms known as the Zairianisation of land in 1973, the Defence encouraged the expert witness to “leave the Belgian State aside”, and to focus on more recent causes, such as the role of the political actors in 1973. However, Prunier retorted that “[y]ou 96 ICC,

Prosecutor v. Thomas Lubanga Dyilo, Transcript, 2009, ICC-01/04-01/06-T-107-ENG ET WT 26-01–2009, para 19[7–9]. 97 ICC, Prosecutor v. Thomas Lubanga Dyilo, Transcript, 2009, ICC-01/04-01/06-T-193-ENG ET WT 17-06-2009 1/96 SZ T, para 8[6–9]. 98 ICC, Prosecutor v. Thomas Lubanga Dyilo, Report for the International Criminal Court by Roberto Garretón, 2009, ICC-01/04-01/06-1655-Anx-tENG 20-02-2009 1/32 EO T, para 4. 99 ICC, Prosecutor v. Thomas Lubanga Dyilo, Transcript, 2009, ICC-01/04-01/06-T-193-ENG ET WT 17-06-2009 1/96 SZ T, para 18[16–18]. See also wa Mutua 1995, pp. 1113–1176; Anghie 2006, p. 746. 100 ICC, Prosecutor v. Thomas Lubanga Dyilo, Transcript, 2009, ICC-01/04-01/06-T-156-ENG CT WT (rev.dec.1974) 26-03-2009 1/98 NB T, para 36[4–6]. 101 Ibid., p. 44 [8–10].

3.3 Colonial Legacies as a Counternarrative

95

cannot talk about 1973 without talking about the Belgian state. There is a certain continuity.”102 He explained that the 1973 land reforms in Zaire happened as a reaction to the land policies imposed by the Belgian state. While the expert witnesses therefore presented a picture of continuity and emphasized the role of colonial legacies as root causes of the present-day violence in the DRC, in the final judgment, the judges of the ICC discounted that link, considering that: [t]he two expert witnesses addressed the DRC’s colonial past in considerable detail. Regardless of whether the origins of the conflict the Chamber is concerned with are to be found in that history, it is essentially too remote to be of direct relevance to the present charges. Instead, a convenient starting point is May 1997[…]103

This approach served to set the scene for subsequent judgments. For instance, in Katanga, the Trial Chamber specifically cited the approach adopted in Lubanga, and held that “the Chamber will review the main events that occurred in that area, and will start, as did Trial Chamber I in Lubanga, not with an account of the DRC’s colonial past, but with May 1997.”104 This approach is fully consistent with law’s understanding of causation and the individual-centred lens. Through this lens, the individual perpetrators, conceived as autonomous moral agents, are held responsible for violence and any broader explanations of the conflict are pushed to the periphery of that lens. This is so, even if, viewed from another angle, the social tensions and hatreds that gave rise to the violence in Ituri today could be explained, in part, as legacies of the former colonial policies. However, for the purposes of the individual-centred lens, such causes would be much too remote and indirect. This discussion has sought to illustrate how the individual-centred lens may influence the way in which judges of ICTs understand and interpret past events relating to mass violence. Rather than favouring multi-dimensional explanations of such violence, this lens prioritises explanations focused on individual agency. As has been discussed, it thus, also, tends to de-emphasize other explanations which clash with this individual-centred focus, such as the role of colonial legacies, or other socioeconomic or structural factors.105 This approach has been extensively criticised by historians, social scientists and some lawyers.106 Overall, the frame analysis approach used in this chapter has helped us focus attention on one of the lenses through which judges select and attach salience to particular aspects of reality and foreground those aspects, while downplaying or omitting other aspects of the same complex reality, giving rise to blind spots in their explanations. The next chapter will turn attention to another key lens in international criminal adjudication, namely the crime-driven lens. 102 Ibid.,

p. 32 [18–19].

103 ICC, Prosecutor v Thomas Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, 2012,

ICC-01/04-01/06, para 70. Prosecutor v. Germain Katanga, Judgment pursuant to Article 74 of the Statute, 2014, ICC-01/04-01/07, para 428. 105 Wilson 2018, p. 112. 106 van der Merwe 2009, p. 117. 104 ICC,

96

3 The Individual-Centred Lens

References Allott P (2002) The Health of Nations: Society and Law beyond the State. Cambridge University Press, Cambridge, UK Almiro Rodrigues (2001) ICTY Press Release: Radislav Krstic becomes the First Person to be Convicted of Genocide at the ICTY and is Sentenced to 46 Years Imprisonment. https://www.icty.org/en/press/radislav-krstic-becomes-first-person-be-convictedgenocide-icty-and-sentenced-46-years Alvarez J (1999) Crimes of States/Crimes of Hate: Lessons from Rwanda. Yale Journal of International Law Anghie A (2006) The Evolution of International Law: Colonial and Postcolonial Realities. Third World Quarterly 27:739–753 Arblaster A (1986) The Rise and Decline of Western Liberalism, reprint edn. Wiley-Blackwell, Oxford, UK Baars G (2015) Making ICL history on the need to move beyond pre-fab critiques of ICL. In: Schwöbel C (ed) Critical Approaches to International Criminal Law, Routledge, Abingdon Bianchi A (2010) Textual Interpretation and (International) Law Reading: The Myth of (In)Determinacy and the Genealogy of Meaning. In: Bekker PHF, Dolzer R, Waibel M (eds) Making Transnational Law Work in the Global Economy: Essays in Honour of Detlev Vagts. Cambridge University Press, Cambridge U.K.; New York, NY Bilsky L (2004) Transformative Justice: Israeli Identity on Trial. University of Michigan Press Bloxham D (2003) Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory, Oxford University Press, Oxford Brooks RE (2003) Law in the Heart of Darkness: Atrocity & Duress. Virginia Journal of International Law 43:861 Cassese A (1998) Reflections on International Criminal Justice. The Modern Law Review 61:1–10 Cassese A (2011) Reflections on International Criminal Justice. J Int Criminal Justice 9:271–275 Chouliaras A (2017) The Legitimacy and Effectiveness of International Criminal Tribunals: A Criminal Policy Perspective. In: Hayashi N, Bailliet CM (eds) The Legitimacy of International Criminal Tribunals. Cambridge University Press, Cambridge UK Clapham A (2003) Issues of complexity, complicity and complementarity: from the Nuremberg trials to the dawn of the new International Criminal Court. In: Sands P (ed) From Nuremberg to the Hague: The Future of International Criminal Justice. Cambridge University Press, Cambridge; New York Damaška M (2012) Unacknowledged Presences in International Criminal Justice. J Int Criminal Justice 10:1239–1256 Douglas L (2005) The Memory of Judgment: Making Law and History in the Trials of the Holocaust. Yale University Press, New Haven Douglas L (2016) Truth and justice in atrocity trials. In: Schabas W (ed) The Cambridge Companion to International Criminal Law. Cambridge University Press, Cambridge, United Kingdom Drumbl MA (2003) Atrocity, Punishment, and International Law. Cambridge University Press, Cambridge; New York Drumbl MA (2005) Pluralizing International Criminal Justice. Michigan Law Review 102:1295 Entman RM (1993) Framing: Towards Clarification of a Fractured Paradigm. Journal of Communication 43:51 Evans RJ (2001) In Defence of History. Granta Books, London Freedman J (2015) Gender, Violence and Politics in the Democratic Republic of Congo. Routledge, Abingdon Geertz C (1964) Ideology as a Cultural System. In: Apter DE (ed) Ideology and Discontent. Free Press Gevers C (2015) International criminal law and individualism. In: Schwöbel C (ed) Critical Approaches to International Criminal Law, Routledge, Abingdon Ginzburg C (1991) Checking the Evidence: The Judge and the Historian. Critical Inquiry 18:79–92

References

97

Hinton AL (2016) Man or Monster?: The Trial of a Khmer Rouge Torturer. Duke University Press Books, Durham Hughes G (2006) Palgrave Advances in Cold War History. Springer Ignatieff M (1996) Articles of Faith. Index on Censorship 25:110 Klabbers J (2006) The Meaning of Rules. International Relations 20:295–301 Koskenniemi M (2002) Between Impunity and Show Trials. In: Frowein JA, Wolfrum R, Philipp CE (eds) Max Planck Yearbook of United Nations. 2002. Vol. 6. Brill, Leiden; Boston Levi P (1995) The Periodic Table. Schocken Books López R (2015) The (Re)Collection of Memory after Mass Atrocity and the Dilemma for Transitional Justice. NYU J Int Law and Politics Maier CS (1998) The Unmasterable Past. Harvard University Press Malamud-Goti J (1996) Game Without End: State Terror and the Politics of Justice. University of Oklahoma Press, Norman Mason TW (2008) Intention and explanation. A current controversy about the interpretation of National Socialism. In: Mason TW, Caplan J (eds) Nazism, Fascism and Working Class. Cambridge University Press, Cambridge England; New York, NY, US Milgram S, Zimbardo P (2010) Obedience to Authority: An Experimental View. Pinter & Martin Ltd Nice G (2017) Justice for All and How to Achieve It: Citizens, lawyers and the law in the age of human rights. Scala Arts & Heritage Publishers Ltd Osiel MJ (1999) Mass Atrocity, Collective Memory, and the Law. Transaction Publishers Payne LA (2018) Overcoming Blindness in the Study of Perpetrators. Journal of Genocide Research 20:175–180 Pirker B, Smolka J (2019) The Future of International Law is Cognitive—International Law, Cognitive Sociology and Cognitive Pragmatics. German Law Journal 20:430–448 Principles of International Law of the Charter and Judgment of the Nuremberg Tribunal, Formulated by the International Law Commission, Second Session (1950) International Organization 4:714– 721 Rogers D (2017) Law, Politics and the Limits of Prosecuting Mass Atrocity. Palgrave Macmillan, New York, NY Sagarin E, Kelly RJ (1985) Responsibility and Crime in Literature. The Annals of the American Academy of Political and Social Science 477:12–24 Sander B (2018) The Method is the Message: Law, Narrative Authority and Historical Contestation in International Criminal Courts. Melbourne Journal of International Law 19:299 Schiff BN (2008) Building the International Criminal Court, 1st edn. Cambridge University Press, Cambridge, NY Schlag P (1991) The Problem of the Subject. Tex. L. Rev Schwöbel C (2015) The market and marketing culture of international criminal law. In: Schwöbel C (ed) Critical Approaches to International Criminal Law, Routledge, Abingdon Simpson G (2015) Linear Law: The History of International Criminal Law. In: Schwöbel C (ed) Critical Approaches to International Criminal Law, 1st edn. Routledge, Abingdon Tallgren I (2014) Searching for the Historical Origins of International Criminal Law. In: Bergsmo, M, Cheah WL, Yi P (eds) Historical Origins of International Criminal Law. Torkel Opsahl Academic EPublisher Teitel RG (2002) Transitional Justice. Oxford University Press Tromp N (2016) Prosecuting Slobodan Miloševi´c: The Unfinished Trial. Routledge, Abingdon van Sliedregt E (2006) Criminal Responsibility in International Law: Liability Shaped By Policy Goals and Moral Outrage. European Journal of Crime, Criminal Law and Criminal Justice 14:81– 114 van der Merwe H (2009) Delivering Justice during Transition: Research Challenges. In: van der Merwe H, Baxter V, Chapman AR (eds) Assessing the Impact of Transitional Justice: Challenges for Empirical Research. United States Institute of Peace Press, Washington, D.C

98

3 The Individual-Centred Lens

van der Wilt H (2013) Corporate Criminal Responsibility for International Crimes: Exploring the Possibilities. Chinese Journal of International Law 12:43–77 wa Mutua M (1995) Why Redraw the Map of Africa: A Moral and Legal Inquiry. Michigan Journal of International Law 16:65 Wählisch M (2015) Cognitive Frames of Interpretation in International Law. In: Bianchi A, Peat D, Windsor M (eds) Interpretation in International Law. Oxford University Press Waters TW (2010) A Kind of Judgment: Searching for Judicial Narratives after Death. Geo Wash Int’l L Rev 42:279–348 Weill N (1998) Une contribution ambiguë à l’historiographie de Vichy. Le Monde Werle G (2007) Völkerstrafrecht. Mohr Siebeck Gmbh & Co Wilson RA (2011) Writing History in International Criminal Trials. Cambridge University Press, Cambridge, UK Wilson RA (2016) Propaganda and History in International Criminal Trials. J Int’l Crim Just 14:519– 542 Wilson RA (2018) The Spark For Genocide? Propaganda and Historical Narratives at International Criminal Tribunals. In: Adler N (ed) Understanding the Age of Transitional Justice. Rutgers University Press, NJ Wood N (1999) Vectors of Memory: Legacies of Trauma in Postwar Europe, 1st edn. Berg 3PL, Oxford

Chapter 4

The Crime-Driven Lens

Contents 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Constraints Relating to Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Constraints Relating to Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Natural Resources Crimes as a Counternarrative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

100 101 107 119 125

Abstract This chapter discusses the crime-driven lens through which judges of ICTs interpret past reality. The crime-driven lens is characterised by two important constraints, one qualitative relating to interpretation and the other quantitative relating to scope. Firstly, ICTs interpret historical facts using specific legal constructs which have been variously described by historians as “torturing”, “deforming”, or “distorting” history. Criminal law is often more creative than practitioners may like to admit and legal constructs have been adapted to novel or changing realities by means of judicial interpretation. However, it is also true that law is more formal and rigid, and less able to accommodate multi-layered explanations, than history. Secondly, with respect to a given conflict, ICTs are only able to select and focus on the criminal conduct falling within their temporal, territorial, personal and subject-matter jurisdiction. The constraints as to scope may be characterised in terms of external and internal exclusions. For various reasons, prosecutors may choose to select and emphasize specific parties and/or categories of criminal activity and de-emphasize others, with consequences for the historical narratives that emerge. These constraints may give rise to significant blind spots in the historical narratives produced by ICTs. An example of such a blind spot discussed in this chapter relates to the exploitation of natural resources in armed conflict. Keywords History · Criminal Trials · Core Crimes · Judicial Interpretation · Frame Analysis · Cognitive Framework · Diamonds · Conflict Entrepreneurs

© T.M.C. Asser Press and the author 2021 A. Zammit Borda, Histories Written by International Criminal Courts and Tribunals, International Criminal Justice Series 26, https://doi.org/10.1007/978-94-6265-427-3_4

99

100

4 The Crime-Driven Lens

4.1 Introduction In addition to the individual-centred lens, judges at ICTs also use a “crime-driven” lens to approach and interpret past events.1 ICL is a body of international rules designed both to proscribe certain categories of conduct (such as war crimes, crimes against humanity and genocide) and to make those persons who engage in such conduct criminally liable.2 ICL’s narrow focus on criminal conduct and criminal liability, therefore, significantly constrains the questions that judges of ICTs are able to ask and tends to limit broader inquires. This narrow, specific focus on criminal conduct and liability is here characterised as “crime-driven”. From the perspective of the crime-driven lens, other dimensions of a conflict, which are not related to criminal liability, but which would be of unquestionable historical importance—such as legitimate combat not involving crimes, peace negotiations, and efforts to ensure humanitarian relief—are often irrelevant to both the prosecution and the defence.3 As a result, these dimensions of a conflict may never so much as get mentioned in trial narratives because they are essentially irrelevant for the purposes of determining criminal liability.4 In this respect, Marrus notes that the limitations on the kinds of questions that legal officials ask “have little directly to do with historical representation”.5 This is an area where Geertz’s dictum, “[w]hatever it is the law is after, it’s not the whole story”,6 rings true.7 The crime-driven lens is characterised by two important constraints, one qualitative relating to interpretation and the other quantitative relating to scope. In this context, Hirsch observes that international tribunals produce very distinct kinds of historical narratives, which have to be interpreted and selected by those courts and tribunals.8 Firstly, ICTs interpret historical events from a specific legal prism, which may be quite different from interpretations of the same events in history or other disciplines. Secondly, with respect to a given conflict, ICTs are only able to select and focus on the criminal conduct falling within their temporal, territorial, personal and subject-matter jurisdiction. Such frameworks may appear arbitrary from the perspective of historical representation. This chapter will explore these two key constraints of the crime-driven lens. As will be discussed these constraints may give rise to significant blind spots in the historical narratives that ICTs are able to write. The chapter will then proceed to consider an example of a counternarrative that is likely to be pushed to the periphery of this lens, relating to the conduct of conflict 1 An

earlier version of this chapter was published in the Journal of International Criminal Justice vol. 18 (2020). 2 Cassese 2013, p. 3; Cryer et al. 2007, p. 18. 3 Gaynor 2012, p. 1264. 4 Schabas 2012, p. 160. 5 Marrus 2002, p. 232. 6 Geertz 1983, p. 173. 7 It is not suggested here that trials should concern themselves with such wider dimensions of a conflict. This chapter will limit itself to evaluating features of law’s crime-driven lens. 8 Hirsch 2016, p. 53.

4.1 Introduction

101

entrepreneurs and the exploitation of natural resources in armed conflict. In this respect, other counternarratives could equally have been selected to make the same point. The discussion of this counternarrative is therefore intended merely to draw attention to the kinds of (historically significant) subject-matters that are likely to be relegated to the periphery of, or omitted altogether from, the crime-driven lens and the historical narratives written by ICTs.

4.2 Constraints Relating to Interpretation Law generally, and criminal law in particular, contains a number of distinct legal constructs, some of which diverge markedly from the ‘ordinary’ understandings of similar terms, and which compel judges to view past events from specific prisms. Moreover, at trial, judges are called on to interpret these constructs, and their judicial interpretations may further influence how historical evidence is approached in the case at hand and, therefore, how past events are ultimately represented in their narratives. Wilson observes that “[l]aw’s unique conventions, special categories, and exceptional rules impel courts to perceive historical events through a counterintuitive prism, which leads to all manner of unintended consequences and absurd outcomes.”9 And Damaška notes that whereas other intellectual pursuits thrive on plural, often ambiguous meanings, law usually insists on a single, fixed (and potentially artificial) perspective.10 Law is not unusual in this regard, as other disciplines and epistemic communities have their own peculiar focuses, conventions and concepts. However, what is different about law is that it is intended for wider consumption far beyond the legal community, where such legal concepts, assessed against non-legal standards, may come across as absurd. As will be discussed in this section, legal constructs often promote distinctlylegal interpretations (or, in some cases, distortions) of past events either because of the specific framing of particular concepts on the statute books (which may differ markedly from the ‘ordinary’ meanings of such concepts), or because of the specific judicial interpretations. The crime-driven lens is useful in that it draws attention to this issue and its implications for the ensuing historical narratives that ICTs write. For instance, a number of the legal concepts and modes of criminal liability contained in the Charter of the International Military Tribunal (IMT) at Nuremberg have come under considerable scrutiny. This is particularly so with respect to the concept of “conspiracy”, which Bloxham refers to as the “tyranny of a construct”,11 as well as the then innovative concept of “crimes against humanity”, which was developed, inter alia, following pressure to expand the definition of existing legal concepts in the light of revelations about the systematic massacres in eastern Europe.12 Article 9 Wilson

2011, p. 8. 1998, p. 293. 11 Bloxham 2003, p. 69. See also Simpson 2015, p. 168. 12 Bloxham 2003, p. 18. 10 Damaška

102

4 The Crime-Driven Lens

6(c) of the IMT Charter provided that crimes against humanity, which included murder, extermination, and enslavement, were crimes coming within the jurisdiction of the Tribunal so long as they were committed “in execution of or in connection with any crime within the jurisdiction of the Tribunal”.13 This technical language essentially meant that crimes against humanity were not autonomous and could only fall within the jurisdiction of the court if committed in connection with crimes against the peace and/or war crimes. The drafters of the Charter may have decided to link war crimes with crimes against humanity to counterweigh the controversial status of crimes against humanity as an innovative international crime at the time14 and/or to shield Allied actions.15 However, the requirement for this linkage had the perverse effect of compelling the prosecution and the judges to focus on crimes committed after 1939 and, consequently, of cutting short their assessment of the vast crimes occurring before the war began, such as the extermination of German nationals in German concentration camps before 1939.16 On this point, the Nuremberg Tribunal famously concluded that pre-war atrocities did not fall within its jurisdictional competence: [t]he policy of persecution, repression and murder of civilians in Germany before the war of 1939 […] was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt. To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were Crimes Against Humanity within the meaning of the Charter.17

Douglas argues that by holding that only those crimes against humanity committed in connection with criminal war of aggression or war crimes were justiciable, the Tribunal radically restricted the reach of 6(c). Suddenly atrocities committed by the Nazi government against its own civilians—precisely those offenses targeted by the Charter’s seemingly ambitious notion of crimes against humanity—could be brought into the IMT’s jurisdiction only if they had been committed in connection with the war effort (and therefore did not cover previous atrocities).18 From the perspective of historical representation, therefore, the link requirement of the Charter, as interpreted and applied by the Nuremberg judges, gave rise to significant blind spots in the historical narratives emerging from that Tribunal. 13 Charter

of the International Military Tribunal. and Lattanzi 2017, p. 550. 15 Rogers 2017, p. 39. For a similar example related to the East Timor Special Panels see: Katzenstein 2003, p. 274. 16 Fuchs and Lattanzi 2017, p. 550. 17 IMT, Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 1945, 42 vols, para 22:498. 18 Douglas 2005, pp. 48–9; Bloxham 2003, p. 62. Admittedly, Article 6(c) of the Charter does contain references to atrocities committed before the war and the link could potentially have been interpreted differently and more liberally: see Fuchs and Lattanzi 2017, p. 550. 14 Fuchs

4.2 Constraints Relating to Interpretation

103

Importantly, the restrictive interpretation of the link requirement favoured by the Nuremberg judges was only one of a number of possible interpretations supported by the language of Article 6 of the Charter. It was not the only possible interpretation. Indeed, Article 6(c) of the Charter expressly covered crimes against humanity committed “before or during the war”. However, the judges at Nuremberg chose to de-emphasize this element and to place greater emphasis on the link requirement, hence adopting a more restrictive interpretation of crimes against humanity. This approach resulted in a narrower application of crimes against humanity which, as noted above, omitted acts that occurred before 1939.19 While there may be various explanations for why the judges selected a more restrictive interpretation of the link requirement, the point here is that their judicial interpretation of this requirement had direct consequences on the kinds of historical narratives that Nuremberg produced. This indicates that, while legal constructs contained in the frameworks of particular ICTs do exert limitations on the possible interpretations of historical facts, such constructs per se remain adaptable and potentially open to competing interpretations. Different judicial interpretations of legal constructs will therefore impact on the scope of the historical narratives that ICTs will write. While the crime-driven lens is useful in focusing attention on this issue, it is not able to explain why judges, in particular cases, may prefer particular interpretations. Such preferences would have to be explained by reference to other theories (such as theories of judicial decision-making). While some legal constructs resemble more closely the ‘ordinary’ or scientific understandings of a particular concept, others diverge significantly from those understandings. The reasons for such divergences may vary: in the case of constructs developed in the international arena, for instance, these may have been subjected to several rounds of negotiations and political compromises, resulting in distinctlylegal constructs. It is usually those constructs that diverge most significantly from the ordinary or scientific understandings of a concept that have most potential to distort historical interpretations. Social scientists have described these as having the effect of “torturing”,20 “deforming”,21 or “distorting”22 history. This was the case with respect to the limiting language around crimes against humanity in the IMT Charter and, as will be discussed below, the distinctive definition of the crime of genocide. The definition of the crime of genocide, as enshrined in Article 2 of the Genocide Convention of 1948, departs significantly from ‘genocide’ as it exists in the public imagination.23 Milanovi´c observes that “there is a marked difference between the ordinary, lay meaning of the word ‘genocide’, or even the concept of genocide in

19 See

Fuchs and Lattanzi 2017, p. 550. 2005, p. 76. 21 Simpson 2015, p. 168. 22 Wilson 2011, p. 9. 23 United Nations Human Rights Council and Independent International Commission of Inquiry on the Syrian Arab Republic 2016, para 13. 20 Douglas

104

4 The Crime-Driven Lens

anthropology or other social sciences, and the legal concept of genocide”.24 One major area of divergence relates to the omission of political and other groups from the list of protected groups in the crime of genocide.25 By excluding political and other groups, the definition, which was the result of several political compromises,26 could give rise to the situation whereby, for instance, the killing of 8372 men and boys in Srebrenica may be legally categorised as (ethnic) genocide,27 while the massacre of over a million in Cambodia may not, because such massacres concerned social, economic or political groups not covered by the definition.28 This in turn could give rise to blind spots in the narratives written by ICTs, in that, mass atrocities potentially involving millions of people may legally not be considered genocide at all (though they would amount to other international crimes). These limitations of the legal construct of genocide have led some social scientists to discard it altogether and to ask: “to what extent is it legitimate to adopt an international legal norm resulting from a political compromise between states as a basis for historical, sociological or anthropological inquiry?”29 It is important to emphasize, at this stage, that legal constructs, even if seemingly artificial to ‘outsiders,’ perform an important function in the process of legal adjudication. Schauer argues that such constructs have to be seen in the context of law as a rule-based and an exclusionary system.30 Law itself, more than morality, or history, or even everyday common-sense reasoning, is an exclusionary system. By treating certain legal constructs as authoritative (and thus obligatory) even when, to an external audience, they may seem to generate suboptimal outcomes, the legal system does its work by taking off the table factors and reasons that an ideal and unconstrained decision-maker would treat as relevant. Thus, a central feature of law is its rule-based commitment to instructing its decision-makers that not everything they believe material to making “the best all-things-considered decision is something they can take into consideration when making a legal decision”.31 And it is this rules-based commitment that, in part, enables the narratives of ICTs to be regarded as authoritative. Moreover, Damaška argues that the narrow framing of legal constructs has the advantage of focusing inquiries “on narrow aspects of reality in regard to which the potential for controversy is greatly reduced”.32

24 Milanovi´ c

2006, p. 556. 1997, p. 2259; Ratner et al. 2001, p. 44. 26 See Schabas 2000a, p. 51. 27 ICTY, Prosecutor v. Radislav Krsti´ c, Judgment, 2001, IT-98-33-T, para 594. 28 Schabas 2000b, p. 292. Determining the precise number killed is difficult for Cambodia: see Rummel 1998, Chap. 4. 29 Sémelin 2014, p. 321. This has however given rise to a plethora of definitions of genocide in the social sciences: see Ibid. 30 Schauer 2008, p. 300. 31 Ibid., p. 301. 32 Damaška 1998, p. 293. 25 Schaack

4.2 Constraints Relating to Interpretation

105

Legal constructs, therefore, have an important role to play in a rule-based and exclusionary system such as law, and their use is valuable in constraining decisionmakers and safeguarding the legitimacy of the adjudicative process. However, given that judges (and other legal practitioners) are obliged to interpret historical facts through such constructs and, in particular, to make determinations as to what historical evidence is relevant or not, such constructs have the potential to have a distortive effect on the interpretation of past events, particularly when they diverge significantly from the ‘ordinary’ or scientific understandings of a term. While the discussion so far has tended to highlight the rigidities of law’s constructs, it is important to note that law is also able to innovate and/or to develop legal categories to reflect novel or changing realities which, in turn, could help with bridging blind spots in its narratives. After all, the concepts of crimes against humanity and genocide were innovations adopted in response to the atrocities of WWII. Bilsky argues that ICL has been able to develop innovative legal categories to accommodate novel situations: thus, for example, the trials had to develop innovative interpretations of new legal concepts such as ‘collaboration,’ ‘crimes against humanity,’ ‘universal jurisdiction,’ ‘manifestly illegal order,’ and so on.33 And ICL continues to evolve and to develop new legal constructs, such as in the areas of sexual and reproductive violence. Indeed, as Jarvis and Nabti observe, when the ICTY prosecution began to focus more on conflict-related sexual violence crimes, there was very little concerning sexual violence in ICL.34 Early cases establishing today’s well-worn precedents— such as recognition of sexual violence as torture and enslavement—initially required a leap of faith by the prosecution.35 Today, however, constructs concerning such violence have become firmly embedded in modern ICL. At trial, judges could further seek to recalibrate the scope of such legal constructs, by broadening or narrowing them through judicial interpretation, which in turn would have implications for the historical narratives and their blind spots. Judges of ICTs have shown a willingness, in certain cases, to use interpretive methodologies to adapt particular legal concepts to the novel situations before them.36 Indeed, Shklar argues that law is more creative than its practitioners like to admit.37 A case in point is the ICTR’s application of the definition of genocide to the situation in Rwanda. In Akayesu, the Trial Chamber was faced with the predicament of applying the legal concept of genocide and, in particular its protected groups definition, to the Tutsis, who did not exist as a separate ethnic group, as all Rwandans spoke the same language and shared the same cultural and religious traditions.38 The Chamber framed its predicament as follows: the Chamber considered whether the groups protected by the Genocide Convention, echoed in Article 2 of the Statute, should be limited to only the four groups expressly mentioned 33 Bilsky

2004, p. 12. and Nabti 2016, p. 73. 35 Jarvis 2016, p. 9. 36 Sander 2018, p. 4. 37 Shklar 1986, pp. 151–70. See also Vernon 2002, p. 232. 38 Wilson 2011, p. 175. 34 Jarvis

106

4 The Crime-Driven Lens

and whether they should not also include any group which is stable and permanent like the said four groups. In other words, the question that arises is whether it would be impossible to punish the physical destruction of a group as such under the Genocide Convention, if the said group, although stable and membership is by birth, does not meet the definition of any one of the four groups expressly protected by the Genocide Convention.39

Had the judges of the ICTR Trial Chamber adopted a strict legal interpretation, they would have had to answer the question in the affirmative—it was not possible to punish the physical destruction of a group if that group did not meet the definition of protected groups under the definition of genocide. Had they stopped there, they would therefore have had to conclude that genocide had not occurred in Rwanda, giving rise to significant lacunae in the Tribunal’s historical narratives on the Rwandan violence. However, they kept alive the idea that the Tutsi were a protected group by taking an innovative turn, arguing that: although the Tutsi did not qualify straightforwardly as an ethnic or racial group under the terms of the Genocide Convention, permanent membership in the group was conferred both by the Rwandan state (in the form of ID cards and birth certificates) and Rwandan society (through conventions of patrilineal descent).40

This broader interpretation of the legal grid concerning genocide, which Alvarez describes as “postmodern”,41 went on to influence other legal assessments of mass violence. It could be argued that, by interpreting this legal construct broadly to find that Tutsis constituted a protected group, the judges in Akayesu exerted a ‘corrective’ interpretation on the legal construct, bringing it more in line with the ‘ordinary’ understanding of genocide as it exists in the public imagination.42 This broad interpretation, in turn, had significant implications for determinations of relevance or irrelevance of historical evidence admitted at trial and, ultimately, for the historical narratives on genocide that ensued from the ICTR. Scholars have illustrated how, in other cases, international judges have shown willingness to broaden the scope of legal constructs, through the process of legal interpretation, to address the novel situations before them.43 In this context, the crime-driven lens has the merit of drawing attention to the implications of such differing interpretations for the ensuing historical narratives. As stated, however, this framework is unable to account for the differences in interpretations and approaches that different benches and/or individual judges may decide to adopt. Finally, it would be important not to overstate the flexibility of law’s crime-driven lens both in terms of its ability to develop new legal constructs and in terms of its ability to accommodate competing interpretations. In the context of ICL, fair trial principles such as those of legality and nullum crimen sine lege bring significant 39 ICTR,

The Prosecutor v. Jean-Paul Akayesu, Judgment, 1998, ICTR-96-4-T, para 516. 2011, p. 176. 41 Alvarez 1999, p. 421. 42 Of course, whether or not particular interpretations are viewed as exerting a ‘distortive’ or ‘corrective’ effect on historical facts will partly depend on one’s standpoint. For a critique of the broad interpretation in Akayesu, see: Schabas 2005, p. 878. 43 Sander 2018, p. 4. 40 Wilson

4.2 Constraints Relating to Interpretation

107

constraints on how far such innovations or adaptations may go. There is a point where the formal categories of the law may not be able to stretch sufficiently to accommodate the chaotic realities of armed conflict. At that juncture, the formality of the law could have a significantly distorting effect on the historical narratives written by judges.44 Or, as one commentator put it, “[i]ncriminations designed to cope with conventional acts of criminality are stretched to their breaking point when applied to crimes of atrocity”.45 For instance, in the 1963 trial of the Auschwitz guards in Frankfurt, because the gravest offense for which the defendants could be tried was murder as defined under domestic criminal law, the prosecution often had to “torture history” to show that the behaviour of the defendants, who were involved in the administration and operation of the Auschwitz concentration camp, satisfied the elements of murder under such domestic law.46

4.3 Constraints Relating to Scope In addition to the constraints on interpretation, the crime-driven lens is also further constrained in its scope, potentially giving rise to blind spots in the historical narratives that ICTs may write. As noted above, within a given armed conflict, trials are only able to select and focus on the criminal acts that took place within the ICTs’ temporal, territorial, personal and subject-matter jurisdiction. And even within those specific jurisdictional limits, courts usually only ever concern themselves with a small subset of the criminal activity falling within their jurisdiction depending, inter alia, on the charges selected by the prosecutor and presented in the indictments.47 The constraints as to scope may be characterised in terms of external exclusions, referring to “the idea that only certain conflicts will be subjected to international criminal law” and internal exclusions, referring to the selectivity involved with respect to “who within those conflicts is the subject of prosecution”.48 With respect to internal exclusions, within any given conflict, a large category of people may have reason to consider themselves victims, individually or as part of a group. However, as Kendall and Nouwen observe, the legal process narrows the category of legally “recognized” victims, giving rise to a “pyramid of victimhood”.49 The first substantial narrowing occurs because not all causes of victimhood are recognized as international crimes, and/or crimes within the jurisdiction of the ICTs. Further narrowing of the pyramid

44 Bilsky

2004, p. 71. 2016, p. 39. 46 Douglas 2005, p. 189. 47 Gaynor 2012, p. 1266. 48 Nielsen 2008, pp. 91–5. 49 Kendall and Nouwen 2014, p. 241. 45 Douglas

108

4 The Crime-Driven Lens

of legally “relevant” victims occurs as a result of the prosecution’s selection of situations in which it opens investigations and in the way the charges are framed.50 For various reasons, the prosecution might choose to select and emphasize a specific category of criminal activity and de-emphasize other conduct, with consequences for the ensuing historical narratives.51 The merit of the crime-driven lens is to draw attention to the implications of such possible exclusions for the historical narratives written by ICTs. This framework, however, is not able to explain the reasons behind the prosecution’s selectivity and exclusions. Resource constraints and selectivity are part of the daily reality of ICTs and, even though these limitations could give rise to “a retributive shortfall”,52 the fact is that ICTs were never meant, nor have the capacity, to prosecute large numbers of perpetrators.53 Investigators and prosecutors working on conflict-related atrocities are generally confronted with an overwhelming volume of criminality to address, combined with considerable resource constraints and the ever-intensifying need to reduce the size and length of investigations and prosecutions.54 As a result, Jarvis notes that “tough choices constantly have to be made about where priorities should lie and prosecutorial discretion takes on unique dimensions”.55 An element of chance may also come into play with respect to whether or not aspects of the criminal activity would be uncovered in time to be included in the charges. For instance, in relation to Nuremberg, Bloxham notes that “[t]he hand of fortune was clearly at work in deciding that the records of the German Foreign Office would be found in Marburg Castle, or that the correspondence of Alfred Rosenberg would be discovered behind a false wall, in time for their incorporation in the IMT trial”.56 These constraints mean, therefore, that ICTs may only ever get to focus on a limited subset of crimes that occur in situations of mass atrocity, and this, in turn, may give rise to significant blind spots in the historical narratives they write.

50 Kendall and Nouwen note that “[r]ecognition by law determines which voices are heard in the courtroom and which are not”: Ibid., p. 242. 51 Gaynor 2012, p. 1265. 52 Drumbl 2003, p. 153. 53 In spite of these limitations, writing in relation to the ICTY, Milanovi´ c considers that the tribunal still made a positive net contribution, even if an imperfect one, as it was “exceptionally unlikely that any of the high-ranking political and military leaders that have been tried by the ICTY would ever have been (successfully) prosecuted before domestic courts”: see Milanovic 2016, p. 233. Moreover, some have argued that by putting even a few prominent individuals on trial, “courts may do for society at large what psychoanalysis does for individuals”: Osiel 1999, p. 173. In this respect, Douglas points out that the individuals selected for prosecution, even if only a few, should not be regarded as “scapegoats”: see Douglas 2005, p. 518. 54 To undertake such investigations, for instance, the Office of the Prosecution at the ICTY had a Leadership Research Team and a Military Analyst Team, consisting mostly of non-legal experts and researchers who provided information and expertise on historical, political, and military topics for prosecution trial teams, that were made up mostly of police investigators and lawyers: see Tromp 2016, p. ix. 55 Jarvis and Vigneswaran 2016, p. 33. 56 Bloxham 2003, p. 58.

4.3 Constraints Relating to Scope

109

The stark truth is, unfortunately, that many victims may never have their day in court or indeed be ever accounted for in the history books. Writing in relation to the African continent, Kapuscinski poignantly observes that “[m]any wars in Africa are waged without witnesses, secretively, in unreachable places, in silence, without the world’s knowledge, or even the slightest attention”.57 In his expert testimony in Lubanga, Garretón, further noted that “[w]hat is so painful in Africa is the magnitude of the figures involved. So many people died. There are no names, no identification of the victims, and yet the figures are always debatable.”58 Comparable observations may be made about victims of conflicts, particularly those of “new wars”,59 in other parts of the world.60 These sobering views should serve to contain any vaunted ambitions about the scope of historical narratives of armed conflicts that ICTs, or indeed other writers of history, may be able to offer.61 The conduct that is charged before ICTs will require the introduction of a “point of view” with respect to locating the beginning and end of the relevant historical contexts. There are no consensual criteria for locating the beginning and end of such historical contexts. In historiography, as Shklar notes, there is no general rule which can determine “the cut-off point for the historian’s search for causes […]”.62 Indeed, historians readily concede that these temporal resting points “do not flow from the events but are in fact strategic ruptures chosen for specific purposes”.63 The choice of such ruptures—where to begin the narrative and where to end it—is of immense strategic importance as it could determine who will play the villain, who the victim.64 While in law, the bounds of temporal jurisdiction define the span 57 Kapuscinski

2002, p. 172. Prosecutor v. Thomas Lubanga Dyilo, Transcript, 2009, ICC-01/04-01/06-T-193-ENG ET WT 17-06-2009 1/96 SZ T, para 27 [11–14]. 59 Freedman 2015, p. 39. 60 For instance, in its investigation of the long-running conflict between the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE), the UN Panel of Experts on Accountability in Sri Lanka found credible allegations, which if proven, indicate that “a wide range of serious violations of international humanitarian law and international human rights law was committed both by the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity. […] Specifically, the Panel found credible allegations associated with the final stages of the war. Between September 2008 and 19 May 2009, the Sri Lanka Army advanced its military campaign into the Vanni using large-scale and widespread shelling, causing large numbers of civilian deaths”: see Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka 2011, p ii; Reynolds and Xavier 2016, p. 960. 61 Finkelstein notes that there are significant disparities in the scholarly literature relating to different atrocities. Thus, for instance, while the number of scholarly studies devoted to the Holocaust is conservatively estimated at over 10,000, studies relating to the Congo are significantly fewer: see Finkelstein 2015, p. 143. 62 Shklar 1986, p. 197. 63 Cmiel 1990, p. 172. 64 Osiel argues that the victims and villains in the narrative told by the International Military Tribunal for the Far East would have appeared different had the story ended somewhat later than the prosecution preferred, “not with Allied victory at Okinawa, but with the nuclear destruction of Hiroshima and Nagasaki, at a time when all but the final details of Japanese surrender had been resolved”: see Osiel 1999, p. 133. 58 ICC,

110

4 The Crime-Driven Lens

of time over which a given court or tribunal has jurisdiction, competing views on the objectives of criminal trials may induce varying starting and ending points with respect to the historical contexts and evidence deemed relevant. Shklar argues that those who wish to emphasize rehabilitation will wish to go far back into the root causes of conflict. Conversely, those who are interested: in simply ridding society of dangerous deviants as quickly and efficiently as possible will be apt to stop very early. For them the “but for”, sine qua non test will be all that needs to be proved. Those lawyers whose eyes are fixed on deterrence and on maintaining the principle of legality in criminal cases will want, in addition, proof of mens rea, amplified by a variety of conditional considerations which ensure that the agent causing the prohibited result did so in a truly voluntary, direct, and premeditated way. In all these cases the purpose of causal inquiry, the fixing of responsibility, and subsequent punishment will determine the scope and remoteness of the causes considered.65

There is no consensus, therefore, amongst lawyers about the proximity or remoteness of the causes (and relevant historical contexts) that they must examine in order to address criminal responsibility. When in early 2006, Geoffrey Nice consulted his prosecution team on the prosecution’s closing arguments in the Miloševi´c trial, he recommended beginning with the Field of Blackbirds in Kosovo in 1389 and tracing the connections through the following six hundred years until the crimes of Slobodan Miloševi´c. Wilson notes that some applauded this approach, while others were uncomfortable with the strategy.66 While in some cases, judges of ICTs have been willing to hear historical evidence dating from far outside the indictment period, for background and historical context,67 when handling vast quantities of evidence in other cases, they have declined to admit such evidence, citing its marginal relevance to the crimes charged.68 In addition to locating the beginning and end of the relevant historical contexts, prosecutorial discretion will further limit the scope of the crime-driven lens through the way the charges are framed.69 The primary objective of prosecutors is not to write history, even though they might well have a strong belief in the historical importance of their case.70 The primary objective of the prosecutor is “to select the charges, incidents and modes of liability which most accurately reflect the facts arising from the material collected, and to select from that material only those items which will most concisely and compellingly prove those facts”.71 Indeed, prosecutors who try to use the indictment as a tool for history-writing may encounter active resistance from the bench. In some cases, international judges have invited prosecutors to reduce 65 Shklar

1986, p. 197. in Wilson, see Wilson 2011, p. 108. See also Hunt 2004, p. 195. 67 Cryer 2011, p. 210. 68 Gaynor 2012, p. 1266. 69 Schabas 2008; Gaynor 2012, p. 1264. 70 For instance, Jarvis observes that, in developing legal approaches to prosecute sexual crimes, the ICTY prosecution “clearly understood the historical importance of [its] mandate to prosecute sexual violence crimes”: see Jarvis 2016, p. 9. 71 Gaynor 2012, p. 1271. 66 Cited

4.3 Constraints Relating to Scope

111

the number of counts charged in the indictment and have actively dissuaded them from seeking to perform history-writing functions. In Stanisi´c et al., for instance, the ICTY pre-trial judge requested that the content of indictment be limited in order to shorten the length of proceedings: a final argument, the Prosecution submits that reducing the scope of the Indictment would risk the creation of an inaccurate historical record. It argues that “[t]he loss of the Slobodan Milosevic Judgement left an inevitable void in terms of the historical record of the scope of the atrocities committed by Milosevic and his co-perpetrators” and that “the Tribunal is now faced with the opportunity […] to create a permanent historical record of these atrocities and to bring justice to the victims of these heinous crimes”. In this regard, it also submits that a further reduction of the Indictment “would result in a historically and factually inaccurate record, and a loss of possibly the last opportunity the Tribunal has to achieve one of its core goals[…] - to bring effective redress to the victims of international humanitarian law violations”. However, the Tribunal was established to administer justice, and not to create a historical record. The Trial Chamber will therefore not consider this argument as relevant for a decision to be taken pursuant to Rule 73 bis(D).72

The assertion by the judge that the Tribunal was established to administer justice, and not to create a historical record, reflects the fact that there appears to be no consensus regarding “the precise extent either of the ‘truth’ or of the ‘historical record’ that international trials are expected to produce”.73 While in Stanisi´c et al., the pre-trial judge de-emphasized the history-writing function of the ICTY, in other cases, such as Sikirica et al., the judges of the ICTY Tribunal affirmed that the truth-finding function was one of the “fundamental objectives of the International Tribunal”.74 This lack of consensus on the proper place of history-writing in international criminal adjudication is shared by prosecutors and other legal practitioners. Eltringham notes that “[l]egal practitioners […] are exercised by the question of whether their endeavour should seek to intentionally create an ‘historical record.’”75 In a series of interviews with prosecution counsel that the author conducted at the ICTR, he found that prosecutors acknowledged the divergence of views on this matter: (i) As regards history, even at the level of the OTP [Office of the Prosecutor] there are different views. Some people believe that prosecution is intended to create an historical record. Others say that the prosecution should only be concerned with the particular case at hand, with the 72 ICTY, Stanisi´ c et al., Decision Pursuant to Rule 73bis (D), 2008, IT-03-69-PT, para 21 (emphasis

added). See also Milutinovic, where the Trial Chamber focused on identifying and eliminating “those crime sites or incidents that are clearly different from the fundamental nature or theme of the case” ( Prosecutor v. Milan Milutinovi´c, et al., Decision on application of Rule 73 bis, 2006, IT-05-87-T, para 10;) and Seselj, where the Trial Chamber focused on identifying the crime sites or incidents that are “reasonably representative of the crimes charged” (Prosecutor v. Vojislav Šešelj, Decision on the application of Rule 73 bis, 2006, IT-03-67-PT, para 12). 73 Gaynor 2012, p. 1257. 74 ICTY, Prosecutor v. Dusko Sikirica, Damir Dosen, Dragan Kolundzija, Sentencing Judgment, 2001, IT-95-8-S, para 149. 75 Eltringham 2009, p. 55. The divergent views seem to reflect the broader tension in the relationship between the administration of justice and writing history, which Wilson held “ cannot be characterized by either harmonious accord or inherent contradiction”: see Wilson 2011, p. 13.

112

4 The Crime-Driven Lens

guilt of that particular person. For me, I’m concerned with proving the case, not establishing history. (ii) There’s a divergence among prosecutors. Some want an “historical record”. I believe it’s a court, this was my view when I arrived and I’m still in that camp. But I recognise that part of the legacy is to have some account, but it’s more of an incidental result than the primary purpose. The other camp get off track of trying someone, to prove something, and the trial mushrooms rather than focusing on the guilt or innocence of the accused.76

The above reflects both the fact that there is no consensus over the proper place of history-writing in international criminal adjudication and the reality that, at best, the truth-seeking function is but one of a number of competing priorities within the prosecutorial strategy. As noted, investigators and prosecutors constantly have to make tough choices about what crimes to prioritize and in what way.77 Where the history-writing priority ranks in this equation would depend, inter alia, on the specific prosecutorial strategy. In this regard, it is possible to discern three, overlapping approaches to the framing of indictments, which may have consequences for the ensuing historical narratives: (a) focused charges; (b) comprehensive charges; and (c) representative charges. At one end of the spectrum, the prosecutor may seek to bring narrow, “focused” charges, as was the case in Lubanga, where the indictment focused on the enlistment, conscription and use of child soldiers, but omitted other categories of criminal conduct, such as sexual offenses.78 While this approach has the merit of promoting expeditious trials (though this may not always be the case),79 by excluding significant categories of conduct, it may come in for significant criticism. For instance, human rights groups extensively criticized the ICC prosecution in Lubanga for failing to accurately characterise the scope of the conflict by not including sexual violence charges in the indictment, despite allegations that girls had been kidnapped into Lubanga’s militia and were often raped and/or kept as sex slaves.80 From the perspective of history-writing, focused charges risk giving rise to significant blind spots with respect to the true scope and extent of criminal conduct. Interestingly, the ICTY prosecution was initially going to go down the path of focused charges with respect to the genocide in Srebrenica in July 1995. In this context, Jarvis notes that: [i]nitially, faced with the twin realities of overwhelming crimes and limited resources, the OTP proposed to prosecute the Srebrenica killings to the exclusion of the crimes committed against the women, children and elderly who were expelled.81

However, that proposal was ultimately reversed and charges for both exterminations of the military-aged Bosnian Muslim men and deportations of the women, 76 Eltringham

2009, p. 58. Rogers 2017, p. 62. 78 ASIL Insights 2010. 79 Judge Kwon notes that even cases involving accused charged with relatively few crimes committed in a relatively confined geographical area may result in lengthy trials: see Kwon 2007, p. 362. See also Whiting 2009, p. 358. 80 SáCouto and Cleary 2009, p. 4. 81 Jarvis 2016, pp. 14–5. 77 See

4.3 Constraints Relating to Scope

113

children and elderly people were brought.82 Prosecuting only the killings/ exterminations would have meant not just failing to accurately address the crimes directed at the women, children and elderly persons, but it would have also obscured the broader reality of the genocide in Srebrenica. This in turn would have given rise to significant blind spots in the Tribunal’s narratives about the genocide. Despite the inherent risks of a focused approach to charging, some judges have favoured this, as it promotes more expeditious trials. For instance, Judge Kwon argued that: the most effective measure for tackling the problem of lengthy trials would be to limit the number of charges in the indictment themselves. With a more focused indictment, the production and analysis of crime-base and linkage evidence would be a much speedier process than it currently is in the majority of the cases at the Tribunal.83

This argument, while prioritising the value of expeditious trials, tends to overlook the implications for history-writing.84 Indeed, Judge Kwon was critical of the reasons for which the ICTY prosecutor and her staff appeared to be unwilling, in some instances, to voluntarily reduce the number of charges in their indictments at the ICTY. He noted, inter alia, that: the Prosecutor and many human-rights groups seem to believe that it is one of the Tribunal’s main duties to […] compile a complete historical record of the war and determine the truth of what actually happened, both of which would ostensibly require trial to proceed on charges that are as comprehensive as possible.85

Judge Kwon was not persuaded by that view. From his perspective, rather, “the paramount role of the judges of the Tribunal is to adjudicate, in as fair and expeditious a manner as possible, the guilt or innocence of the accused before them”.86 This position calls back the tension that exists between the competing priorities that ICTs seek to address. In this case, Judge Kwon sought to resolve that tension by emphasizing the aim of expeditious trials over the aim of broader truth-seeking. While his reasons for doing so may be understandable, particularly in light of pressures from the completion strategy, this approach does come at a cost with respect to the ensuing historical narratives as it is more likely to give rise to blind spots. At the other end of the spectrum, the prosecutor may seek to bring “comprehensive” charges, as was the case in Miloševi´c, which included 66 counts in the indictments, allegedly committed in Croatia, Bosnia and Herzegovina, and Kosovo, over a period of nine years.87 This approach, particularly when it involves high-level 82 ICTY,

Prosecutor v. Radislav Krsti´c, Judgment, 2001, IT-98-33-T, para 1. 2007, pp. 372–3. 84 This is in line with the argument that ICL discourse is dominated by efficiency concerns: see Keydar 2019, p. 561. But others have argued that expediency in mass atrocity prosecutions is not always possible, or even desirable: see Whiting 2009, p. 328. 85 Kwon 2007, p. 373. 86 Ibid., p. 374. 87 Tromp 2016, p. 11. See also ICTY, Milutinovi´ cet al., Judgment, 2009, IT-05-87-T, para 45; and the ICTR prosecutor’s failed attempt to present a comprehensive indictment against 29 individuals on the basis of new evidence that had arisen concerning the crime of conspiracy to commit genocide: see ICTR, Prosecutor v. Bagosora and 28 Others, Dismissal of Indictment, 1998, ICTR-98-37-I. 83 Kwon

114

4 The Crime-Driven Lens

accused, may include many different forms of responsibility with larger and more sprawling crime bases. This approach would, at first glance, appear attractive from the perspective of history-writing, as it aspires towards a broader, inclusive account of the criminal conduct. However, it tends to increase the length and complexity of trials as the parties seek to introduce large quantities of evidence and counter-evidence to challenge the competing historical claims.88 As Surroi notes, for instance, “for Miloševi´c, what was happening was not a trial; it was a panel on history […], in which his role would be defined as the guardian of the Serbian historic truth.”89 It is submitted that, given the formal and rule-bound nature of criminal trials, together with their various competing priorities,90 criminal trials may be not be best placed to attempt such comprehensive accounts of conflicts.91 Indeed, Cryer notes that “[c]are must be taken that creating an accurate record of particular offences does not spill over into an attempt to write the whole history of a conflict.”92 Or, as Wilson puts it, “[t]he writing of a far-reaching history is more adequately achieved elsewhere, and chiefly by historians, social scientists, and others who may, of course, draw on the extensive information and documentation revealed in international trials.”93 In some cases, prosecutors concerned with the history-writing function of ICTs have tried to strike a compromise by charging “representative” crimes.94 Indeed, such an approach is envisaged by the legal frameworks of some ICTs. As will be discussed, however, it is not without its challenges. For instance, Rule 73 bis(D) of the ICTY Rules of Procedure and Evidence provides: [a]fter having heard the Prosecutor, the Trial Chamber, in the interest of a fair and expeditious trial, may invite the Prosecutor to reduce the number of counts charged in the indictment and may fix a number of crime sites or incidents comprised in one or more of the charges in respect of which evidence may be presented by the Prosecutor which, having regard to all the relevant circumstances, including the crimes charged in the indictment, their classification and nature, the places where they are alleged to have been committed, their scale and the victims of the crimes, are reasonably representative of the crimes charged.95

In Milutinovi´c, for instance, the Trial Chamber invoked this rule to promote a more streamlined indictment, by identifying and eliminating “those crime sites or incidents that are clearly different from the fundamental nature or theme of the

88 Kwon

2007. 2014, pp. 225–6. 90 In this context, Damaška recalls that while truth-conducive values constitute important objectives of criminal trials, they quite obviously “cannot be an overriding consideration in legal proceedings: it is generally recognized that several social needs and values exercise a constraining effect on attempts to achieve fact-finding precision”: see Damaška 1998, p. 301. 91 Kwon 2007, p. 373. 92 Cryer 2003, p. 418. 93 Wilson 2011, p. 17. 94 This is not unique to criminal prosecutions and truth commissions have also focused on representative crimes as “window cases”: see Chapman 2009, p. 99. 95 Rule 73 bis(D) of the ICTY Rules of Procedure (emphasis added). 89 Surroi

4.3 Constraints Relating to Scope

115

case”.96 The Chamber recommended a removal of three sites, holding that that “the case the Prosecution seeks to establish [….] will be adequately presented even if evidence in relation to [the three removed] sites is not led, and that focusing the trial on the remaining charges will improve the expeditiousness of the proceedings while ensuring that they remain fair.”97 Similarly, in Seselj, the Trial Chamber used this rule to remove five counts and several crime sites from the indictment, finding that the remaining crime sites or incidents were “reasonably representative of the crimes charged.”98 In a similar vein, in the 2009–2012 Prosecutorial Strategy of the Office of the Prosecutor of the ICC, it was held that: [w]hile the Office’s mandate does not include production of comprehensive historical records for a given conflict, incidents are selected to provide a sample that is reflective of the gravest incidents and the main types of victimization.99

Representative charges are intended to bridge the gap between more focused and more comprehensive charges and, from the perspective of truth-seeking, would appear appealing, in light of the various constraints on ICTs. On the one hand, representative charges aim to include crime sites and incidents that may be considered representative of a broader genus of crimes, while keeping the number of charges within manageable limits, and thus avoiding some of the pitfalls of both focused and comprehensive charging. On the other hand, however, the faith in “representative” crimes, and the consequent reductions in the crime sites or incidents in the indictments, may give rise to an important philosophical question about representation: that is, whether any crimes can be considered sufficiently “representative” of the broader atrocities that occur in armed conflict. Bloxham addresses this question in relation to the Nuremberg Tribunal and the Holocaust. He notes that, even at Nuremberg, Justice Jackson and others wanted to avoid focusing on “individual barbarities and perversions which may have occurred independently of any central plan”.100 Rather, the trial staff requested of the governments of nine United Nations countries that they furnish “three examples of war crimes or violations of international law to be used in the prosecution of the leading Nazis”.101 However, in practice, it was impossible to say what was or was not “typical”, or even if “types” as such did exist within groupings of diverse Nazi institutions and practices such as the camp system. As a result of this approach to charging representative crimes, the names of two camps—Belzec and Sobibor—were entirely absent from the judgement. These camps, together with Treblinka, had particular significance when considering the historical representation of the Holocaust as a 96 ICTY, Prosecutor v. Milan Milutinovi´ c, et al., Decision on application of Rule 73 bis, 2006, IT-05-87-T, para 10. 97 Ibid., para 12. 98 ICTY, Prosecutor v. Vojislav Šešelj, Decision on the application of Rule 73 bis, 2006, IT-03-67-PT, para 14. 99 ICC, The Office of The Prosecutor, ‘Prosecutorial Strategy: 2009-2012’ (1 February 2010), para 20. 100 Bloxham 2003, p. 62. 101 Ibid.

116

4 The Crime-Driven Lens

whole. They were an integral part of what came to be known as Aktion Reinhard, a larger scheme of murdering and expropriating the Jews.102 Bloxham argues that the absence of these camps from the post-war trials, which was in part a function of the faith in “representative” examples, had far-reaching implications for popular appreciation of the Jewish fate, as well as the historical narratives that emerged from Nuremberg. The approach of charging representative crimes, therefore, also carries some risks for creating blind spots in the narratives of ICTs. It raises the questions of which crimes may be construed as “representative” and who decides and how? In practice, the selection of representative crimes, as seen in Nuremberg, may further limit the scope of events about which ICTs write historical narratives. The crime-driven lens is helpful in drawing attention to the implications of these approaches to charging for the historical narratives of ICTs. The decision of whether to bring “focused”, “comprehensive” or “representative” charges will however be contingent on several additional factors, only some of which may be related to considerations of history-writing. In the first instance, the decision will be directly related to the availability of evidence. However, here again, the issue of availability of evidence may itself, in turn, be influenced by the attitudes of the investigators and prosecutors to the proper place of history-writing. Some ex-ICC investigators have suggested, for instance, that not enough analysis and resources had been invested ahead of investigative missions to uncover and bring to light a more accurate account of human rights abuses in such countries as Uganda, the Democratic Republic of Congo and Sudan. As a result, the most appropriate and representative charges may not always have been brought against suspected perpetrators of atrocities.103 Another critical consideration for the prosecutor when selecting and framing the charges will be the very high probative threshold of “beyond reasonable doubt”. A trial chamber will only convict if it “is satisfied of the criminal responsibility of the accused beyond reasonable doubt, on the basis of the entirety of the evidence admitted”.104 This standard is significantly higher than the broader “frame of probabilities” usually used by historians.105 Indeed, Evans notes that “historians may find it difficult to argue that their conclusions put any matter with which they deal ‘beyond reasonable doubt,’ as is required in the criminal law before a conviction can be reached.”106 The criminal law standard, of course, has the advantage of establishing “a historical record at the highest legal standard of certainty”.107 Indeed, often criminal trials lead to the accrual of a great deal of evidence in order to prove “the obvious”. This process aims at greater accuracy of the historical narratives, as each allegation against the accused would need to be established, including that the crime actually occurred and that accused was criminally responsible for it.108 102 Ibid.,

p. 109.

103 Glassborow. 104 Gaynor

2012, p. 1272. 2011, p. 6. 106 Evans 2002, p. 330. 107 Teitel 2002, p. 73. 108 Tromp 2016, p. 22. 105 Wilson

4.3 Constraints Relating to Scope

117

However, this entails also considerable potential risks for the ensuing historical narrative in the case of acquittals on account of the high standard not having been met. This is due to the error distribution doctrine that underlies criminal procedure and stacks the results in such a way as “to ensure that such errors as do occur will be predominantly false acquittals rather than false convictions”.109 In some cases, the high evidentiary standard may lead to acquittals on some counts. For instance, in Gotovina et al., the Trial Chamber stated that some of the evidence it received suggested that there was a high probability that crimes (such as looting and destruction of property) were committed by members of the Hrvatska Vojska— Croatian Army. Nevertheless, the Chamber went on to hold: considering the correct standard to be applied in making findings and with a view to its task of determining whether the accused are guilty of crimes alleged in the Indictment, the Trial Chamber in some instances was unable to establish beyond a reasonable doubt, on the basis of the evidence before it, the identity or affiliation of the perpetrators of certain incidents.110

In other cases, the high evidentiary standard gave rise to full acquittals. For instance, in September 2011, an ICTY Trial Chamber convicted the Chief of the General Staff of the Yugoslav Army, Momˇcilo Periši´c, to 27 years of imprisonment for aiding and abetting crimes in Sarajevo and Srebrenica committed by Bosnian Serbs, and on the basis of superior responsibility for crimes in Croatia committed by Croatian Serbs.111 However, on appeal, Periši´c was acquitted of all of these charges, by a majority of the ICTY Appeals Chamber, who found that both the aiding and abetting charges, and the superior responsibility charges had not been proven beyond reasonable doubt.112 This acquittal was described by one observer as “unfortunate” in view of its impact on “the solidification of official narratives of the warring parties in the former Yugoslavia”.113 In particular, the acquittal was presented by the Serbian government “as some kind of general exoneration of Serbia as a state for its involvement in mass atrocities in Bosnia and Croatia”.114 It may be argued that a conscientious historian, analysing the same evidence with a different standard of proof, might well have reached different conclusions with respect to Periši´c’s responsibility in this matter.115 Criminal law espouses the maxim, which may be traced back to Roman law, that “it is better for a guilty person to go unpunished than for an innocent one to be

109 Laudan

2006, p. 29.

110 ICTY, Prosecutor v. Ante Gotovina, Ivan Cermak, ˇ Mladen Markaˇc, Judgment, 2011, IT-06-90-T,

para 62 (emphasis added). 111 ICTY, Prosecutor v. Momˇ cilo Periši´c, Judgment, 2011, IT-04-81-T, para 1840. 112 ICTY, Prosecutor v. Momˇ cilo Periši´c, Appeals Judgment, 2013, IT-04-81-A, para 122. 113 Milanovic 2013. 114 Ibid.; this is not unusual: political leaders frequently portray “an acquittal as an absolute vindication of their story undermining the ability for society to coalesce around a unified historical narrative”: see Ukabiala 2013, p. 59. 115 Gaynor 2012, p. 1272.

118

4 The Crime-Driven Lens

condemned”.116 Drawing on his experience in the US District Court for the Southern District of New York, Judge Frankel observes “[w]hile we undoubtedly convict some innocent people, a truth horrifying to confront, we also acquit a far larger number who are guilty, a fact we bear with much more equanimity.”117 Although Lord Bonomy reminds that a court judgment of acquittal in a criminal case does not mean that an accused is ‘innocent’”,118 the truth is that an acquittal of a potentially guilty individual for want of evidence may have far-reaching implications for the ensuing historical narratives of the conflict. Osiel notes that: [w]hen political leaders are acquitted in a criminal proceeding, they choose (unsurprisingly) to interpret this legal result as a complete vindication of their story. Their claims to this effect, in tum, are widely disseminated throughout society by the mass media.119

A judgment of acquittal by a given court or tribunal may be perceived (erroneously) as a declaration of innocence.120 As stated, this may have significant implications for the legal and historical narratives that ensue.121 In view of this, when faced with evidence which may not meet the required threshold, a prosecutor may prefer not to charge particular conduct in the first place.122 After all, in convicting a killer, the law does not need to prove that he committed a thousand murders if it can prove he committed a hundred. As Evans notes, however, this approach may “fail to satisfy the wider remit of history”.123 It serves to restrict the scope of criminal conduct and events charged in the indictment and, consequently, to further limit the scope of the historical narratives that ICTs may produce. There are several other factors that exert constraints on the formulation of the indictment and, as a result, the scope of the crime-driven lens in international criminal trials.124 In the final analysis, in the context of adversarial proceedings, the ultimate 116 Williams

1955, p. 130. For variations of this maxim, see Laudan 2006, p. 63. And for a critical perspective of this approach, see 2008, p. 282. 117 Frankel 1975, p. 1037. 118 Cited in Tromp 2018, p. 73. 119 Osiel 1999, p. 105. 120 This perception of innocence may be particularly painful for victims, who may experience re-traumatisation and secondary victimisation: see Alcorn 2014, p. 2037. 121 Tromp 2016, p. 10. Indeed, Damaška controversially argues that, in order to avoid such misperceptions, a third type of verdict may be appropriate: “[w]hile convictions are expected to accurately determine the factual predicates of criminal liability, acquittals are not meant to do the same for the factual predicates of innocence. If we wanted to increase the truth-value of acquittals, we would have to adopt a third type of verdict—a type capable of expressing a range of belief-states between the conviction that the accused is guilty and the finding that he is innocent. Acquittals could then be reserved for cases in which factfinders are convinced of the accused’s innocence”: Damaška 1998, p. 305. 122 Alvarez 1999, p. 429. 123 Evans 2002, p. 330. 124 These include both internal and external factors. With respect to internal factors, for instance, one mechanism which has been extensively scrutinized is the plea bargaining procedure which, while saving precious resources, may produce a very partial historical narrative: see Schabas 2012, p. 164; Gaynor 2012, p. 1268. With respect to external constraints, several scholars have written

4.3 Constraints Relating to Scope

119

goal of trial lawyers is to win the case at hand and not necessarily to produce accurate and sincere historical narratives.125 As such, lawyers will generally tend to prefer versions of history that support that outcome, even if they may contain significant historical shortcomings. That ultimate goal will inform every aspect of the prosecutorial process, including the formulation of the indictment and the charges brought. In his assessment of that process, Wilson notes that “what we see are legally motivated strategies from both prosecution and defense that distort the record […]”126 or, at least, that may degrade the quality of historical narratives. The fact is that, even for prosecutors who are firmly committed to the history-writing role of ICTs, this commitment will always have to be subservient to the demands of that ultimate goal. The crime-driven lens is therefore characterised by constraints that are both qualitative, in terms of legal constructs that are distinctly-legal (and their judicial interpretation at trial), and quantitative, in terms of the jurisdictional scope of ICTs. As noted, these constraints serve to shape the kind of historical narratives that ICTs may write. As a result, other dimensions of a conflict, which would be historically significant, may be pushed to the background of the crime-driven lens and/or treated as counternarratives, giving rise to blind spots in the histories that ICTs write. One example of such a counternarrative relates to the conduct of conflict entrepreneurs in armed conflict, a subject that is considered next.

4.4 Natural Resources Crimes as a Counternarrative The discussion of conflict entrepreneurs in this part is only meant to illustrate the kinds of counternarratives that are de-emphasised or marginalised by the crimedriven lens. It is thus meant to draw attention to the outer limits of law’s lenses and the potential for blind spots in the historical narratives that ICTs write. To be clear, this discussion is not meant to suggest that such counternarratives should be brought within the remits of law’s crime-driven lens: that question would fall beyond the scope of this book. The focal point of the crime-driven lens is criminal conduct under one or more of the core crimes.127 This means that other forms of conduct in a conflict—not amounting to the core crimes—are often backgrounded in the trial narratives. While about the political constraints which are exerted in subtle and not-so-subtle ways on prosecutors when formulating indictments: see Rogers 2017, pp. 142, 145; Cryer 2011, p. 220. 125 The theme of accurate and sincere history-writing, in the context of the concept of responsible history, is developed further in Aldo Zammit Borda, History-Writing, Legal Epistemology and the Narratives of International Criminal Courts and Tribunals (Springer/TMC Asser, forthcoming). 126 Wilson 2011, p. 168. 127 Cf. genocide, crimes against humanity and war crimes: see Alvarez 1999, pp. 365–6. In the Rome Statute framework, core crimes also include the crime of aggression: see Barriga and Grover 2011, p. 517; Kreß and von Holtzendorff 2010, p. 1179. To these core crimes, other categories of conduct are occasionally postulated as international crimes, such as piracy, slavery, torture, terrorism, drug trafficking and others: see Cryer et al. 2007, p. 5; Bushnell 2009, p. 58.

120

4 The Crime-Driven Lens

conduct leading to the perpetration of the core crimes in times of armed conflict is particularly reprehensible, the crime-driven lens tends to downplay other forms of conduct which, while potentially serious, do not fulfil the elements of the core crimes. By backgrounding such forms of conduct, the trial narratives, in turn, tend to de-emphasize their significance and gravity.128 In this context, Krever notes that while acts of individuals that amount to one or more core crimes are criminalized and censured, other forms “of social violence—economic exploitation, say—are not conceived of as crime at all”.129 This is particularly relevant to the conduct of conflict entrepreneurs and the trade in illicit diamonds and the exploitation of natural resources in armed conflict—forms of conduct that, though serious and widespread in certain armed conflicts, rarely feature prominently in the trial narratives. In this respect, it is notable that, in a World Bank study on the relationship between natural resources and violent conflict, Bannon and Collier point out that the expected duration of conflicts today is more than double that of conflicts that started prior to 1980. While there may be various factors for this protraction of conflicts: one possible explanation is that it is now easier to sustain a conflict than it used to be. Even without support from a superpower or from a neighboring government, it is possible to find alternative sources of revenue with which to equip and sustain rebel movements.130

As is well known, one of the foremost sources of revenue for rebel groups in armed conflicts in some countries has been the large-scale misappropriation of natural resources such as diamonds. In December 1998, the nongovernmental organization, Global Witness, released a detailed report that established a link between illicitly mined and sold diamonds from the UNITA rebels in Angola directly to a large international corporation that specialises in diamonds, headquartered in the United Kingdom.131 By inference, Global Witness explained that many deaths and serious injuries that occurred in that country, as in other diamond-producing countries, resulted from the willingness of the international diamond industry to pay the rebels, through several proxies and intermediaries, for their ill-gotten goods.132 Since then, numerous reports and studies have shown that control of diamond production was a root cause of conflicts in places such as Sierra Leone.133 Discussing the link between the illicit trade in diamonds and the protraction of war, as well as the ensuing misery, Saunders states that: [o]bservers note that in several African nations insurgent groups use diamonds to fund civil wars. The revenue that insurgents obtain from smuggling diamonds across borders allows them to buy more arms and to continue fighting. The fighting in these nations has led to extensive human rights abuses by these insurgent groups. The insurgents would not have the

128 Nielsen

2008, pp. 104–5. 2015, p. 129. See also Reynolds and Xavier 2016, pp. 980–1. 130 Bannon and Collier 2003, p. 7. 131 Global Witness 2000. 132 Campbell 2012. 133 See references in: Saunders 2000, p. 1404. 129 Krever

4.4 Natural Resources Crimes as a Counternarrative

121

money to buy arms and commit human rights abuses without the willingness of diamond buyers to trade with them.134

The question of the illicit trade in diamonds to fund the rebels’ war efforts came up time and again at the Special Court for Sierra Leone (SCSL).135 The Court documented in gruesome detail many of the atrocities committed to civilians in the diamond mines. Some rebel groups “forced civilians to mine diamonds for them and killed those who refused”.136 Others used armed fighters to guard civilians and “flogged or killed civilians for disobeying orders. The mistreatment of civilians ranged from transporting them in physical restraints such as ropes or chains to providing them with little or no food and forcing them to work naked. Diamonds were confiscated by the rebels and civilians were not compensated.”137 Some of the main perpetrators of these criminal acts, where they amounted to core crimes, have been prosecuted before the SCSL.138 In so doing, the judges of the SCSL have been able to record and produce important historical narratives of those forms of conduct. In particular, the Taylor judgment provides intricate details of the trade in blood diamonds between individuals in Sierra Leone, Liberia and other third countries. The SCSL prosecutor alleged that the then president of Liberia, Charles Taylor, ordered the Revolutionary United Front (RUF) rebels to capture Sierra Leone’s diamondiferous areas and thereafter provided the RUF, through various intermediaries, with arms and ammunition in exchange for diamonds.139 Indeed, the Armed Forces Revolutionary Council (AFRC)/ RUF rebels depended overwhelmingly on Taylor’s direct provision of arms and ammunition to repel the ECOMOG advancement and/or to contain the situation.140 In a section of the judgment entitled “Diamonds”, the SCSL Trial Chamber found that there was a continuous supply by the AFRC/RUF of diamonds mined from areas in Sierra Leone to the accused, often in exchange for arms and ammunition.141 Additionally, the Trial Chamber found: [t]he RUF also traded diamonds with entities and individuals other than the Accused or his government. However, testimonial evidence of specific involvement of the Accused in the trade of diamonds supported the findings of a United Nations report of a panel of experts that diamond smuggling from Sierra Leone to Liberia was “the bulk of the RUF trade in diamonds” and while difficult to quantify was nevertheless the “primary source of income to the RUF”.142

134 Ibid.,

pp. 1404–6. Charles Ghankay Taylor, Judgment, 2012, SCSL-03-01-T, para 1459; Ross 2003, p. 32. 136 SCSL, Prosecutor v. Moinina Fofana and Allieu Kondewa, Judgement, 2007, SCSL-04-14-T, para 375. 137 SCSL, Prosecutor v. Issa Hassan Sesay, Morris Kallon, Augustine Gbao, Judgment, 2009, SCSL04-15-T, para 1328. 138 Jalloh 2010. 139 SCSL, Charles Ghankay Taylor, Judgment, 2012, SCSL-03-01-T, para 33. 140 Ibid., para 50. 141 Ibid., p. 6143. 142 Ibid., p. 6146. 135 SCSL,

122

4 The Crime-Driven Lens

The SCSL found moreover that, as the conflict in Sierra Leone progressed, Taylor was able to continue exporting and trading his blood diamonds, noting that the export of diamonds “from Liberia was far greater than Liberian diamond production, attributing the difference to diamonds from Sierra Leone smuggled through Liberia”.143 While the trial narratives emerging from the SCSL document in detail the role of key perpetrators, such as Taylor and the rebel leaders, in relation to the commission of core ICL crimes in the conflict in Sierra Leone, they contain significant blind spots with respect to the role of other actors in the illicit trade in diamonds and the exploitation of natural resources. These actors include the smugglers as well as the corporate actors who funded and facilitated the conflict by trading in illicit diamonds directly or indirectly from insurgent groups.144 For instance, the SCSL prosecutor in Taylor alleged that Charles Taylor financially supported an RUF external delegation to travel to Belgium and France, countries “that also provided support for Taylor”.145 Although the Trial Chamber found that this allegation had not been not proven, the prosecution’s suggestion that “these travels gave the external delegates the opportunity to advance diamond sales in Europe and to arrange arms shipments on behalf of Taylor and the RUF,” may appear plausible.146 At the political level, a number of measures were taken to curtail this illicit trade, including the imposition of sanctions on imports of rough diamonds from Sierra Leone,147 as well as the setting up of the Kimberley Process in 2003, which established a certification system. However, because of the weak controls in surrounding transit countries and the complex organizational structure of modern-day diamond smuggling, which were detailed in a Security Council report relating to Angola,148 these measures had limited impact and have been described as “inadequate in both scope and substance”.149 The result is that many actors involved in the illicit trade in diamonds or exploitation of natural resources have largely escaped censure.150 In his book Blood Diamonds: Tracing the Deadly Path of the World’s Most Precious Stones, Campbell interviewed some of the individual involved in this trade. In an interview with an alleged diamond smuggler, the smuggler asserts: “I’ve been doing this in Sierra Leone since 1995, […i]t’s not hard. In fact, it’s almost impossible to get caught.”151 Referring to this smuggler, Campbell remarks: “[i]f he has any moral qualms about buying diamonds from people who are going to use the money for weapons to kill innocent civilians and kidnap children into their ranks, he doesn’t show it.”152 143 Ibid.,

p. 6149. 2000. 145 SCSL, Charles Ghankay Taylor, Judgment, 2012, SCSL-03-01-T, para 3924. 146 Ibid. 147 UN Security Council Resolution 1306 (2000) 2000. 148 UN Security Council 2000, pp. 150–206. 149 Ezekiel 2007, p. 226. See also Campbell 2012. 150 Ezekiel 2007, p. 235. 151 Campbell 2012. 152 Ibid. 144 Crossette

4.4 Natural Resources Crimes as a Counternarrative

123

As certain forms of conduct connected to the illicit trade in diamonds and/or exploitation of natural resources in armed conflict may not amount to the core crimes of ICL, this conduct tends to get pushed to the periphery of the historical narratives written by judges of ICTs. As such, on account of the limits of their jurisdiction, ICTs tend to de-emphasize the role of third-party actors who finance, profit from and sustain the broader operation of misappropriating natural resources in armed conflict. This is so, even though such conduct could serve to protract the violence. Nevertheless, such third-party actors are largely written out of the historical narrative that ICTs produce. Admittedly, such actors could potentially be brought within the scope of the crimedriven lens through criminal liability theories, such as complicity in war crimes and crimes against humanity. However, because of the multiple intermediaries and complexities in the operation chain, prosecutors would have a hard time proving the necessary connections.153 Alternatively, it has been argued that the conduct of thirdparty actors involved in natural resources crimes could be captured within existing core crimes, such as destruction and appropriation of property, and pillaging. This avenue appears to be more promising. However, framing the conduct of such actors within existing core crimes, such as “pillaging”, may require some distortion and may not capture all the different forms of conduct involved in the illicit trade in diamonds and the exploitation of natural resources in armed conflict.154 In light of the focal points of the crime-driven lens on core crimes, the actions of conflict entrepreneurs will continue, at best, to receive marginal attention in the historical narratives of ICTs.155 In the same way as the individual-centred lens tends to sidestep broader, structural causes of violence, so to, the crime-driven lens tends to focus on indigenous causes and the conduct of the direct parties to the conflict.156 As a result, the activities of conflict entrepreneurs engaging in economic ruthlessness— those who stand to gain economically, socially, and politically from the prolongation of violent conflict—are often only marginally recorded in the histories produced by international criminal justice.157 This discussion is particularly pertinent to the situation in the Democratic Republic of the Congo (DRC), currently before the ICC. In June 2000, the UN Security Council established a “Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of Congo”. The Panel delivered six reports and interim updates to the UN Security Council from 2001 to 2003 documenting the role various rebel groups, proxy groups, armies, and governments of surrounding countries and their officers and officials play in the exploitation of DRC natural resources.158

153 Saunders

2000, p. 1474. 2007, p. 239. 155 Stark 2002, p. 327. 156 Simpson 2015, p. 171. 157 Drumbl 2005, p. 1318. 158 UN Security Council 2001. 154 Ezekiel

124

4 The Crime-Driven Lens

These reports document a series of atrocities that were committed “both in aid of and financed by the profits from illegal appropriation of natural resources in the Ituri forest and elsewhere in eastern DRC”.159 In Ituri and elsewhere in northeastern DRC, elite networks associated with the Uganda Patriotic Defense Force (UPDF) and its generals and the Rwanda Patriotic Army (RPA) have played major roles in DRC resource misappropriation. Each group has allegedly operated within an area of influence inside DRC controlled by its military and allied informal forces. Investment, transport, and logistical services were provided by international natural resource businesses, which are also recipients of the illicit production. Local ethnic militias, numerous rebel groups, and village self-defence forces were part of a shifting, rapidly realigning group of armed forces that sometimes were supported by and sometimes opposed the foreign armies and the DRC’s armed forces.160 What emerges clearly and consistently from these reports is that natural resource exploitation has potentially both motivated continuing conflict throughout eastern and northeastern DRC, including Ituri, and has served as the funding source for arms and other military necessities. The sale of illicitly extracted resources was the critical funding source for the activities of armed groups in these areas.161 As noted, certain aspects of the conduct of conflict entrepreneurs could amount to existing core crimes and therefore could be brought within the jurisdiction of the ICC. Such conduct thus could, to a limited extent, fall within the scope of the crimedriven lens. In spite of the centrality of natural resources crimes in the DRC conflict, however, the first trial of the ICC, Lubanga,162 sidestepped this question, focusing instead on the issue of enlistment and conscription of child soldiers. The second ICC judgment concerning the situation in the DRC, Katanga,163 contained broader charges, including the destruction of property and pillaging. However, the final judgment contained no references to misappropriation and exploitation of natural resources. It is therefore not clear to what extent the illicit trade in diamonds and the broader exploitation of natural resources in armed conflict will feature in the historical narratives written by the judges of the ICC. Ezekiel expressed scepticism on this count. In his view, the contrast between the charges brought in the DRC cases so far and the extensive information on economic exploitation developed by the United Nations Security Council’s Panel over several years, suggests that international business executives “may escape the prosecutor’s grasp”.164 Having discussed the focal points of the crime-driven lens, as well as some of its constraints, the next chapter will explore a third lens through which judges of ICTs interpret past events, namely the law-affirming lens. 159 Ezekiel

2007, p. 227. p. 229. 161 UN Security Council 2001, paras 43–47. 162 ICC, Prosecutor v Thomas Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, 2012, ICC-01/04-01/06. 163 ICC, Prosecutor v. Germain Katanga, Judgment pursuant to Article 74 of the Statute, 2014, ICC-01/04-01/07. 164 Ezekiel 2007, p. 240. 160 Ibid.,

References

125

References Alcorn T (2014) Responding to sexual violence in armed conflict. The Lancet 383:2034–2037 Alvarez J (1999) Crimes of States/Crimes of Hate: Lessons from Rwanda. Yale Journal of International Law ASIL Insights, (2010) The ICC Appeals Chamber Judgment on the Legal Characterization of the Facts in Prosecutor v. Lubanga. Vol. 14 Bannon I, Collier P (2003) Natural Resources and Conflict: What We Can Do. In: Bannon I, Collier P (eds) Natural Resources and Violent Conflict: Options and Actions. World Bank Publications, Washington DC Barriga S, Grover L (2011) A Historic Breakthrough on the Crime of Aggression. American Journal of International Law 105:517–533 Bilsky L (2004) Transformative Justice: Israeli Identity on Trial. University of Michigan Press Bloxham D (2003) Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory. Oxford University Press, Oxford Bushnell D (2009) Re-Thinking International Criminal Law: Re-Connecting Theory with Practice in the Search for Justice and Peace. Australian Year Book of International Law Campbell G (2012) Blood Diamonds: Tracing the Deadly Path of the World’s Most Precious Stones. Basic Books Cassese A (2013) Cassese’s International Criminal Law. Oxford University Press Chapman AR (2009) Truth Finding in the Transitional Justice Process. In: van der Merwe H, Baxter V, Chapman AR (eds) Assessing the Impact of Transitional Justice: Challenges for Empirical Research. United States Institute of Peace Press, Washington DC Cmiel K (1990) After Objectivity: What Comes Next in History?” American Literary History 2:170 Crossette B (2000) Sierra Leone Rebel Leader Reportedly Smuggled Gems. The New York Times Cryer R (2003) Witness Evidence before the International Criminal Tribunals. Law & Prac Int’l Cts & Tribunals 2:411 Cryer R (2011) Prosecuting International Crimes: Selectivity and the International Criminal Law Regime. Cambridge University Press, Cambridge Cryer R, Friman H, Robinson D, Wilmshurst E (2007) An Introduction to International Criminal Law and Procedure. Cambridge University Press Damaška M (1998) Truth in Adjudication. Hastings Law Journal Douglas L (2005) The Memory of Judgment: Making Law and History in the Trials of the Holocaust. Yale University Press, New Haven Douglas L (2016) Truth and justice in atrocity trials. In: Schabas W (ed) The Cambridge Companion to International Criminal Law. Cambridge University Press, Cambridge, United Kingdom Drumbl MA (2003) Atrocity, Punishment, and International Law. Cambridge University Press, Cambridge; New York Drumbl MA (2005) Pluralizing International Criminal Justice. Michigan Law Review 102:1295 Eltringham N (2009) “We are not a Truth Commission”: fragmented narratives and the historical record at the International Criminal Tribunal for Rwanda. Journal of Genocide Research 11:55–79 Evans RJ (2002) History, Memory, and the Law: The Historian as Expert Witness. History and Theory 41:326–345 Ezekiel A (2007) The Application of International Criminal Law to Resource Exploitation: Ituri, Democratic Republic of the Congo. Nat Resources J 47:225–246 Finkelstein NG (2015) Holocaust Industry, reprint edn. Verso Frankel ME (1975) The Search for Truth: An Umpireal View. University of Pennsylvania Law Review 123:1031 Freedman J (2015) Gender, Violence and Politics in the Democratic Republic of Congo. Routledge, Farnham, Surrey, England; Burlington, VT Fuchs J, Lattanzi F (2017) International Military Tribunals. In: Lachenmann F, Wolfrum R (eds) The Law of Armed Conflict and the Use of Force: The Max Planck Encyclopedia of Public International Law. Oxford University Press

126

4 The Crime-Driven Lens

Gaynor F (2012) Uneasy Partners—Evidence, Truth and History in International Trials. J Int Criminal Justice 10:1257–1275 Geertz C (1983) Fact and Law in Comparative Perspective. In: Geertz C (ed) Local Knowledge: Further Essays in Interpretive Anthropology. Basic Books, New York, NY Global Witness (2000) Conflict Diamonds: Possibilities for the Identification, Certification and Control of Diamonds Hirsch M (2016) Invitation to the Sociology of International Law. Oxford University Press, Oxford, United Kingdom Hunt T (2004) Whose Truth? Objective Truth and a Challenge for History. In: Schabas W, Darcy S (eds) Truth Commissions And Courts: The Tension Between Criminal Justice and the Search for Truth. Springer Netherlands, Dordrecht, pp 193–198 Jalloh CC (2010) Special Court for Sierra Leone: Achieving Justice. Mich J Int’l L 32:395–460 Jarvis M (2016) Overview: The Challenge of Accountability for Conflict-related Sexual Violence Crimes. In: Brammertz S, Jarvis M (eds) Prosecuting Conflict-Related Sexual Violence. Oxford University Press, Oxford Jarvis M, Nabti N (2016) Policies and Institutional Strategies for Successful Sexual Violence Prosecutions. In: Brammertz S, Jarvis M (eds) Prosecuting Conflict-Related Sexual Violence. Oxford University Press, Oxford Jarvis M, Vigneswaran K (2016) Challenges to Successful Outcomes in Sexual Violence Cases. In: Brammertz S, Jarvis M (eds) Prosecuting Conflict-Related Sexual Violence. Oxford University Press, Oxford Kapuscinski R (2002) The Shadow of the Sun: My African Life, Penguin, London Katzenstein S (2003) Hybrid Tribunals: Searching for Justice in East Timor. Harv Hum Rts J 16:245 Kendall S, Nouwen S (2014) Representational Practices at the International Criminal Court: The Gap Between Juridified and Abstract Victimhood. Law and Contemporary Problems 76:235–262 Keydar R (2019) Mass Atrocity, Mass Testimony, and the Quantitative Turn in International Law. Law & Society Review; Amherst 53:554–587 Kreß C, von Holtzendorff L (2010) The Kampala Compromise on the Crime of Aggression. J Int Criminal Justice 8:1179–1217 Krever T (2015) Unveiling (and veiling) politics in international criminal trials. In: Schwöbel C (ed) Critical Approaches to International Criminal Law, 1st edn. Routledge, Abingdon Kwon O-G (2007) The Challenge of an International Criminal Trial as Seen from the Bench. J Int Criminal Justice 5:360–376 Laudan L (2006) Truth, Error, and Criminal Law: An Essay in Legal Epistemology. Cambridge University Press Marrus MR (2002) History and the Holocaust in the Courtroom. In: Smelser R (ed) Lessons and Legacies V. Northwestern University Press Milanovi´c M (2006) State Responsibility for Genocide. European Journal of International Law 17:553–604 Milanovic M (2013) The Limits of Aiding and Abetting Liability: The ICTY Appeals Chamber Acquits Momcilo Perisic Milanovic M (2016) The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Postmortem. American Journal of International Law 110:233–259 Nielsen C (2008) From Nuremberg to The Hague: The Civilizing Mission of International Criminal Law. Auckland University Law Review 14:81 Osiel MJ (1999) Mass Atrocity, Collective Memory, and the Law, 1st edn. Transaction Publishers Ratner SR, Ratner SR, Abrams JS (2001) Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy. Oxford University Press Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka (2011) Reynolds J, Xavier S (2016) ‘The Dark Corners of the World’ TWAIL and International Criminal Justice. J Int Criminal Justice 14:959–983 Rogers D (2017) Law, Politics and the Limits of Prosecuting Mass Atrocity. Palgrave Macmillan, New York, NY

References

127

Ross M (2003) The Natural Resource Curse: How Wealth Can Make You Poor. In: Bannon I, Collier P (eds) Natural Resources and Violent Conflict: Options and Actions. World Bank Publications, Washington DC Rummel RJ (1998) Statistics of Democide: Genocide and Mass Murder Since 1900. LIT Verlag, Münster SáCouto S, Cleary K (2009) Importance of Effective Investigation of Sexual Violence and GenderBased Crimes at the International Criminal Court. American University Journal of Gender, Social Policy & the Law Sander B (2018) The Method is the Message: Law, Narrative Authority and Historical Contestation in International Criminal Courts. Melbourne Journal of International Law 19:299 Saunders L (2000) Rich and Rare are the Gems They War: Holding De Beers Accountable for Trading Conflict Diamonds. Fordham International Law Journal 24:1402 Schaack BV (1997) The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot. The Yale Law Journal 106:35 Schabas WA (2000a) Genocide in International Law: The Crimes of Crimes. Cambridge University Press, Cambridge UK Schabas WA (2000b) Problems of International Codification—Were the Atrocities in Cambodia and Kosovo Genocide Symposium: Universal Jurisdiction: Myths, Realities, and Prospects: Panel Two: Problems of International Codification. New Eng L Rev 35:287–302 Schabas WA (2005) Darfur and the ‘Odious Scourge’: The Commission of Inquiry’s Findings on Genocide. Leiden Journal of International Law 18:871–885 Schabas WA (2008) Prosecutorial Discretion v. Judicial Activism at the International Criminal Court. J Int Criminal Justice 6:731–761 Schabas W (2012) Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals. Oxford University Press, Oxford Schauer F (2008) In Defense of Rule-Based Evidence Law–and Epistemology Tool. Episteme 5:295–305 Sémelin J (2014) Purify and Destroy: The Political Uses of Massacre and Genocide. C Hurst & Co Publishers Ltd Shklar JN (1986) Legalism: Law, Morals, and Political Trials. Harvard University Press Simpson G (2015) Linear Law: The History of International Criminal Law. In: Schwöbel C (ed) Critical Approaches to International Criminal Law, 1st edn. Routledge, Abingdon Stark B (2002) After/word(s): ‘Violations of Human Dignity’ and Postmodern International Law. Yale Journal of International Law 27:315 Surroi V (2014) Conversations with Miloševi´c—Two Meetings, Bloody Hands. In: Waters T (ed) The Milosevic Trial: An Autopsy. Oxford University Press, Oxford Teitel RG (2002) Transitional Justice. Oxford University Press Tromp N (2016) Prosecuting Slobodan Miloševi´c: The Unfinished Trial. Routledge, Milton Park, Abingdon, Oxon; New York, NY Tromp N (2018) In Search for Truth at Mass Atrocities Trials: Will Judges and Lawyers Have the Last Word? The Journal of Comparative Law 12:61 Ukabiala N (2013) A Representative and Iterative Approach to Prosecutions in a Transitional Context. Eyes on the ICC 10:47 United Nations Human Rights Council, Independent International Commission of Inquiry on the Syrian Arab Republic (2016) “They came to destroy”: ISIS Crimes Against the Yazidis. A/HRC/32/CRP.2 Vernon R (2002) What is Crime against Humanity? Journal of Political Philosophy 10:231–249 Whiting A (2009) In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered. Harv Int’l LJ 50:323–364 Williams G (1955) The Proof of Guilt: A Study of the English Criminal Trial. Stevens & Sons Limited Wilson RA (2011) Writing History in International Criminal Trials. Cambridge University Press, Cambridge

Chapter 5

The Law-Affirming Lens

Contents 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 The Tropes of the Law-Affirming Lens and the Colonial Period . . . . . . . . . . . . . . . . . . . . 5.3 The Operation of the Law-Affirming Lens in the WWII Trials . . . . . . . . . . . . . . . . . . . . . 5.4 Law and Oppression as a Counternarrative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

129 130 133 136 141

Abstract This chapter examines a third lens through which judges of ICTs interpret and explain past events, namely the law-affirming lens. Through this lens, judges of ICTs perceive the operation of international law in a positive light, as based on, and affirming, the moral ideals of “humanity” (as, in the past, it affirmed “civilization”). Through this lens, however, judges also reserve for themselves the prerogative to decide which social practices count as law. As a result of the law-affirming lens, judges of ICTs are only able to offer partial explanations of past events, where law is framed as a force for good. The law-affirming lens, therefore, tends to draw attention away from the potential involvement of law, legal institutions, and legal professionals in sustaining oppressive regimes. The discussion in this chapter then makes use of Zygmunt Bauman’s concept of the “continuity” thesis as an example of a counternarrative. Keywords History · Criminal Trials · Humanity · Civilization · Colonialism · Malfunction · Continuity · Frame Analysis · Cognitive Framework

5.1 Introduction In a tradition dating back to antiquity, and subsequently articulated in Vattell’s classic treatise on the law of nations, States are framed as fiduciaries for their people and, collectively, for humanity at large.1 From this perspective, international organisations, such as ICTs, act as indirect fiduciaries, independently and impartially applying laws that promote the values of humanity and anti-tyranny. By framing law as an agent of humanity and anti-tyranny, judges of ICTs are able to legitimately perform many 1 Criddle

and Fox-Decent 2016, p. 1; Rogers 2017, p. 99.

© T.M.C. Asser Press and the author 2021 A. Zammit Borda, Histories Written by International Criminal Courts and Tribunals, International Criminal Justice Series 26, https://doi.org/10.1007/978-94-6265-427-3_5

129

130

5 The Law-Affirming Lens

of their fiduciary functions, including imposing punishments, as in the final analysis, these are intended to protect from mass violence and oppression and thus, benefit humanity.2 Within this liberal trope, the domain of law as an agent of humanity is contrasted with the domain of lawlessness, where law’s alterity—violence, barbarity and oppression—reigns.3 This framing of the law as a bastion of humanity, based on the binary outlook of lawful/civilized v. lawless/barbarian, constitutes the third cognitive lens through which judges of ICTs interpret and perceive past events: the “law-affirming” lens. Importantly, one of the key features of this lens is that the beholders reserve for themselves the right to decide what counts as “law” (i.e. which social practices should be regarded as proper law). Some of the features of this lens are thus relics from the colonial period, when colonial powers reserved for themselves the right to decide which non-Western social practices counted as law.4 An important characteristic of this lens is its binary outlook—lawful v. lawless, civilized v. barbarian/oppressive. As such, the lens is not able to easily accommodate counternarratives that tend to challenge this stark opposition, as will be discussed below. By not being able to accommodate more nuanced perspectives, the law-affirming lens has the potential to give rise to blind spots in the historical narratives that judges of ICTs may write.

5.2 The Tropes of the Law-Affirming Lens and the Colonial Period Some of the key features of the law-affirming lens could be said to be legacies in one form or another, from the colonial period. There is a significant body of critical scholarship that has explored in detail the relationship between the colonial period and the development of modern international law,5 and an extensive discussion of that subject would fall beyond the scope of this chapter. The following overview is only intended to outline some of the key tropes (e.g. lawful/civilized v. lawless/barbarian) that emerged in that period and that continue to have an influence on the application of international law today. The emphasis will be on how these tropes may continue to influence the explanations of the law-affirming lens. As is well known, the concept of “civilization” was central to the project of European colonial expansion, even though this concept was ill-defined and based on vague, Euro-centric ideas. Writing in relation to the founding members of the Institut de droit international, for instance, Koskenniemi notes that:

2 See

Sander 2019, p. 192; Duff 2010, p. 589. In the context of Human Rights law, see McCrudden 2008. 3 Drumbl 2003, p. 173. 4 Koskenniemi 2010, p. 4. 5 See, for instance, work by Antony Anghie, David Bederman, Nathaniel Berman, David Kennedy, Karen Knop, and Marti Koskenniemi.

5.2 The Tropes of the Law-Affirming Lens and the Colonial Period

131

[t]hat ‘civilization’ was not defined beyond impressionistic characterizations was an important aspect of its value. It was not part of some rigid classification but a shorthand for the qualities that international lawyers valued in their own societies […].6

As scholars such as Anghie have shown, the constructive ambivalence of the concept of civilization proved useful in framing international law as a universal normative framework based on Western standards and, therefore, only applicable to Western (“civilized”) States. As a result of this framing, the failure of non-Western (“uncivilized”) States to adhere to these standards denoted a lack of civilisation that justified intervention and conquest.7 For instance, in one of the earliest international law texts on colonialization, On the Indians Lately Discovered, Francisco de Vitoria addressed the complex legal problems that arose from Spanish claims to sovereignty over the Americas.8 Vitoria argued that although the aborigines were not wholly unintelligent, yet they were a little short of that condition, and so were unfit to found or administer a lawful State up to the standard required by human and civil claims. Anghie observes how the partial recognition of humanity of the aborigines had perverse consequences: because it serves in effect to bind them to a natural law which, despite its claims to universality, appears derived from an idealised European view of the world, based on a European identity. Consequently, it is almost inevitable that the Indians, by their very existence and their own unique identity and cultural practices, violate this law, which appears to deal equally with both the Spanish and the Indians, but which produces very different effects because of the asymmetries between the Spanish and the Indians.

With Western standards of civilization being considered “superior” and, thus, universal, and with the consequent and inevitable transgression of these standards by non-Western States on account of their different cultural practices, international law was deployed to legitimise conquest “as legal, and decreed that lands inhabited by people regarded as inferior and backward were terra nullius”.9 Importantly, Vitoria reserved for himself and his contemporaries the prerogative of deciding whether the aborigines had attained a sufficient standard of law and civilization. In addition, the partial recognition of the “humanity” of the aborigines had the perverse effect of granting native chiefs partial legal status under international law to the limited extent of allowing them to enter “into treaties which gave [colonizing] powers sovereignty over non-European territories and peoples”.10 Notions of civilization were subsequently deployed by the forefathers of modern international law in the late nineteenth century. In the manifesto that headed the first issue of the Revue de droit international et de législation comparée (the first 6 Koskenniemi

2010, p. 103.

7 By “dynamic of difference” Anghie means that “international law posits a gap, a difference between

European and non-European cultures and peoples, the former being characterised, broadly, as civilised and the latter as uncivilised (and all this implies in terms of the related qualities of each of these labels)”: see Anghie 2006, pp. 741–2. 8 Anghie 1998. 9 Anghie 2006, p. 745. 10 Ibid.

132

5 The Law-Affirming Lens

international law journal published at the end of 1868), Gustave Rolin-Jaequemyns argued that the fundamental source of the law of nations had to be grounded, not on the acts of State, which may be just or unjust, right or wrong, but on “the civilized conscience of peoples”.11 But who was to divine the civilized conscience of peoples? In addressing this question, Koskenniemi notes how: Rolin’s imagination amalgamated the two great nineteenth-century ideas, science and conscience. The man of legal science became the representative – the organ – of humanity’s conscience. Public opinion crystallized in a legal scholarship that proceeded by way of introspection.12

From this perspective, the notion of “civilized conscience of peoples”—that is, European peoples—was considered, therefore, a primary source of international law. Francis Lieber held “[t]he society of states, having European civilization, or the international society, is the most comprehensive form of society among men […]. The consent of the international society to the rules prevailing in it is the consent of the men who are the ultimate members of that society.”13 While such views did betray a level of arrogance and misplaced ambition,14 the international lawyers of the time generally considered themselves to be acting benevolently—for the good of humanity. Koskenniemi notes that even as international lawyers generally had no doubt about the superiority of European civilization over ‘Orientals’, they did stress that the civilizing mission needed to be carried out “in an orderly fashion, by providing good examples, and not through an unregulated scramble.”15 Nevertheless, the dominant view was that, because of the particular grounding of international law in European civilization, this law could not be automatically applied outside that realm. Once again, the international lawyers reserved for themselves the right to assess and decide whether other, non-European peoples had attained the necessary level of law and civilization. In some cases, this assessment was made on the basis of sheer prejudice—if “barbarian” societies were uncivilized, this meant they indulged in vice, lacked restraint and moderation, that they were “fanatical”, untrustworthy, and uneducated. In other cases, more formal criteria were invoked, such as the absence of government.16 If occasionally some areas of the law had 11 Cited

in Koskenniemi 2010, p. 16.

12 Ibid. 13 Ibid.,

p. 49. p. 176. 15 Ibid., p. 71. The author notes further: “The evolutionary framework suggested that non-European communities were not only different but inferior in the sense of being more primitive. None of the lawyers, however, developed a detailed theory about that difference or how the evolutionary process would work in the future. Most were content with generalizations such as Lorimer’s threefold classification (civilized/barbarian/savage) and simply assumed European modernity as the natural end-point of development everywhere”: see Ibid., p. 75. It should be noted that there were also some critical voices in this period, such as that of Charles Salomon, who viewed “colonization as violent and unjust for the natives”. See Ibid., p. 106. 16 Koskenniemi 2010, p. 76. These assessments are not completely dissimilar from modern assessments of domestic lawyers with respect to whether international law is truly law: see Campbell 1988. 14 Ibid.,

5.2 The Tropes of the Law-Affirming Lens and the Colonial Period

133

been applied to States such as Turkey or the great Asiatic empires, this had taken place only on an “exceptional and limited fashion” and for a particular purpose. As Koskenniemi states, the full application of international law was impossible in the absence of a community of historical tradition and mutual understanding that even in Europe had required thousands of years to develop.17 The dynamic of difference arose once again, and the standard opposition of “civilization” to “barbarism” was invoked by these lawyers to justify colonization. Koskenniemi notes that while it was recognised that advancing civilization could lead to the oppression and impoverishment of indigenous populations to the point of extinction, this was a fact that was accepted by imperial powers as “an inevitable consequence of modernity”.18 From the above brief overview, it is possible to discern that some of the key features of the law-affirming lens were in existence already in the colonial period. This is the case with respect to the tendency of international lawyers to reserve for themselves the right to decide what social practices count as law. It is also the case with respect to the binary tropes of civilization v. barbarity, and the tendency of lawyers to frame situations of atrocity and oppression as areas of lawlessness; areas where law, properly understood, had lost its grip. The next part will consider how the application of the law-affirming lens in the Altstoetter case gave rise to historical explanations of the events of WWII that closely followed this trope.

5.3 The Operation of the Law-Affirming Lens in the WWII Trials In the aftermath of World War II, the binary outlook of lawful/civilized v. lawless/barbarian was again used to frame the atrocities of the Nazi regime. This framing at Nuremberg is significant. As will be discussed, even though Germany was a civilized nation, rather than explaining those atrocities as crimes of civilization in which law, together with other aspects of modern bureaucracy, could have been implicit in the oppression, the binary lens of “civilization” versus “barbarism” was preferred. Through the application of this lens, the Nazi regime was perceived as a lawless regime, occupying a space that had previously been occupied by the “savages” in the colonial period.19 In Justice Jackson’s opening statement at Nuremberg, he characterised his role as the defender of civilization using the rule of law against such savages. In Jackson’s account, civilization was presented as the principal victim and ultimate conqueror of Nazi pathology:

17 Koskenniemi

2010, p. 74. p. 98. 19 Douglas 2006, p. 514. 18 Ibid.,

134

5 The Law-Affirming Lens

[t]he wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.20

Subsequently, outlining the chronology of Nazi outrages, Jackson asserted, “[t]hese are things which have turned the stomach of the world and set every civilized hand against Nazi Germany.”21 Douglas notes that if the legal basis of crimes against humanity had to be located in the practices of civilized nations, then it should come as no surprise that Nazi crime was comprehended and represented in terms of the trope of “primitive barbarity”.22 Shortly after Nuremberg, in Altstoetter, the accused appearing before the judges of the US military tribunal were legal and judicial officials from Nazi Germany.23 Franz Schlegelberger, who had been acting Minister of Justice in 1941 and 1942, was the most prominent defendant. Other defendants included Curt Rothenberger and Herbert Klemm, who had occupied the office of State Secretary for Justice. Nine of the initial 16 accused had held positions in the Reich Ministry of Justice; the other seven had served either as prosecutors or as judges at one of the irregular Nazi courts, the regional “Special Courts” and the central “People’s Court”. In this trial, Wilke points out that the language of civilization was used to establish individual criminal responsibility for atrocities committed by agents of a State that was once civilized, but had lapsed into barbarism.24 According to Wilke, [t]he use of this conceptual vocabulary allowed the Altstoetter Court to create an evaluative narrative that attributed Nazi atrocities to the realm of lawlessness and left law intact as medium of judgment and companion of civilization. The Altstoetter Court did not allow the Nazi atrocities to blur the line between barbarism and civilization. Instead, the Court placed Germany within the community of civilized nations and Nazi practices in the realm of barbaric lawlessness, subject to judgment guided by the moral standards of civilization.25

Some of the key features of the law-affirming lens are exemplified by the Altstoetter judgment. The judges of the US military tribunal: (a) reiterated their faith in the rule of international law as a bastion of civilisation; and (b) reserved for themselves the prerogative to decide what counts as law. Or, as Wilke notes: “[w]hat was identified as law […] depended on the willingness of Western observers to recognize law in the social practices of other cultures.”26 In Altstoetter, the tribunal developed an explanation of Nazi crimes that connected the Nazi legal system and the defendants (judicial officials) to Nazi atrocities but denied that the law used in state repression had the quality of “proper” law. Instead, the prosecutor argued that 20 IMT,

Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 1945, 42 vols, para volume 2 [99]. 21 Ibid., p vol 2 [130]. 22 Douglas 2005, p. 89. See also Rogers 2017, p. 92. 23 US Military Tribunal, US. v. Altstoetter et al. (Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10), The Justice Case, 1951. 24 Wilke 2009, p. 199. 25 Ibid. 26 Ibid., p. 187.

5.3 The Operation of the Law-Affirming Lens in the WWII Trials

135

the legal system under Nazi rule appeared as a “farce”, with the judges as impostors who were not entitled to wear their robes: [t]he defendants and their colleagues distorted, perverted, and finally accomplished the complete overthrow of justice and law in Germany. They made the system of courts an integral part of dictatorship. They established and operated special tribunals obedient only to the political dictates of the Hitler regime. They abolished all semblance of judicial independence. They brow-beat, bullied, and denied fundamental rights to those who came before the courts. The “trials” they conducted became horrible farces, with vestigial remnants of legal procedure which only served to mock the hapless victims.27

The Altstoetter tribunal, therefore, provided an explanation of the operation of law and politics in Nazi Germany as subversions of the forms of law and statehood that characterize civilized nations. The prosecution argued that, in order for the Nazi dictatorship to thrive, law in Nazi Germany had to be subdued and abolished: “[t]he ideology of the Third Reich was totally incompatible with the spirit of the law. It could not live under law, and the law could not live under it.”28 This framing of the failure of the law in Nazi Germany is in line with what Bauman refers to as the “malfunction” thesis, namely “modernity incapable of suppressing the essentially alien factors of irrationality, civilizing pressures failing to subdue emotional and violent drives, socialization going awry and hence unable to produce the needed volume of moral motivations.”29 This thesis may be contrasted with Bauman’s “continuity” thesis, discussed as a counternarrative below. By interpreting Nazi atrocities as results of inexplicable failures of law and civilization rather than as products of a Western system of law and governance, the judges maintained the hierarchy between Western law and different forms of its “savage alterity”.30 The application of the law-affirming lens in Altstoetter, therefore, not only re-affirmed faith in the rule of law but also re-affirmed law’s heroic qualities as the protector of civilization. From this perspective, barbarism could not have been produced or aided by anything worth calling law.31 However, because of its faith in law, the law-affirming lens tends to discourage deeper analysis into the limitations and challenges of some of its key features. The explanations offered by the judges in Altstoetter promoted the “self-exaltation” of law as a bulwark against barbarity, but the judges did not seek a deeper and more nuanced understanding of how law operated in Nazi Germany; nor did they engage with the troubling questions of the potential involvement of law, legal institutions, and legal professionals in oppressive regimes.32 Rather, viewed from the perspective of the law-affirming lens, such questions were either pushed to the periphery or rejected altogether. This would, in turn, suggest significant blind spots in the explanatory powers of this lens. 27 US Military Tribunal, US. v. Altstoetter et al. (Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10), The Justice Case, 1951, para 31 (prosecution, opening statement). 28 Ibid., p. 41 (prosecution, opening statement). 29 Bauman 2013, p. 5. 30 Wilke 2009, p. 200. 31 Douglas 1998, p. 46. 32 Wilke 2009, p. 200.

136

5 The Law-Affirming Lens

The next section will consider a possible counternarrative to the law-affirming lens, namely Bauman’s continuity thesis. As with the discussions of the previous counternarratives in Chaps. 3 and 4, the discussion here is merely intended to draw attention to the outer-limits of law’s lenses and, therefore, the potential blind spots that may arise in the narratives written by ICTs.

5.4 Law and Oppression as a Counternarrative Given the limited scope of this discussion, namely to illustrate the outer-limits of the law-affirming lens, an engagement with the important literature on the relationship between law and oppression falls beyond the scope of the current chapter.33 Rather, the following analysis will focus on Bauman’s continuity thesis, as an example of a counternarrative that would likely clash with the explanatory framework of the law-affirming lens. As discussed above, in the post-WWII trials, law in Nazi Germany was framed in terms of a breakdown of the legal order and a return to “primitive barbarity”. In order to restore the rule of law, the crimes committed by the Nazis had to be redressed through a law of nations grounded in standards of civilization.34 A number of scholars have significantly challenged this view.35 Arendt saw the age of European empires, with its emphasis on race, violence, and bureaucracy as “a preparatory stage for coming catastrophes” of mid-twentieth-century genocide in Europe.36 To her, civilization was merely a conventional set of morals and manners that could, under the appropriate circumstances, be put at the service of genocidal projects.37 According to Bauman, the framing of Nazi atrocities as a lapse of civilization is in line with the “malfunction” thesis, whereby Nazi atrocities and, most notably, the Holocaust, were interpreted as “an interruption in the normal flow of history, a cancerous growth on the body of civilized society, a momentary madness among sanity.”38 The view that the perpetrators of the Holocaust represent a malfunction of civilization offers not only the moral comfort of self-exculpation, but also provides the comforting assurance that “[i]t all happened ‘out there’ - in another time, another country. The more ‘they’ are to blame, the more the rest of ‘us’ are safe, and the less we have to do to defend this safety.”39 This sense of exculpation is evident in the remark of the German novelist Martin Walser who wrote that when a Frenchman

33 For instance, the Hart – Fuller debate on positivism and natural law. For a more recent consideration of this debate, see Cane 2010. 34 Douglas 2005, p. 89. See also Rogers 2017, p. 92. 35 See, for instance, Horkheimer and Adorno 2007; Rose 2014. 36 Arendt 1951, p. 123. 37 Arendt 2003, p. 44. 38 Bauman 2013, p. viii. 39 Ibid., p. xii.

5.4 Law and Oppression as a Counternarrative

137

or an American sees pictures of Auschwitz, “he doesn’t have to think: we human beings! He can think: those Germans!”40 Bauman challenges the view of modern civilization, and its constituent elements including the rule of law, as predominately a moral force, that is, as “a system of institutions that cooperate and complement each other in the imposition of normative order and the rule of law, which in turn safeguard conditions of social peace and individual security poorly defended in pre-civilized settings”—precisely the image of civilization presented at Nuremberg.41 Conversely, Bauman espouses the view conveyed in Rubenstein and Roth’s telling epigraph that “[c]ivilization now includes death camps and Muselmänner among its material and spiritual products”.42 Bauman argues that the Holocaust was executed in modem rational society, at the high stage of our civilization and at the peak of human cultural achievement, and for this reason it is a problem of civilization. The truth is, according to Bauman, that every “ingredient” of the Holocaust—all those many things that rendered it possible (including science and technology, bureaucracy, rational division of labour and law)—was normal “in the sense of being fully in keeping with everything we know about our civilization, its guiding spirit, its priorities, its immanent vision of the world – and of the proper ways to pursue human happiness together with a perfect society.”43 According to Bauman’s “continuity” thesis, while modern civilization was not the Holocaust’s sufficient condition; it was its necessary condition. Without it, the Holocaust would have been unthinkable. In this respect, Bauman argues that the Holocaust could merely have uncovered another face of the same modern society whose other, more familiar, face we so admire. Hoelzel makes a similar point when he noted that “[u]nalloyed good does not exist; good links inseparably with evil. To strive for a particular good or virtue, then, means to strive inevitably for its obverse evil side […]. Every exercise of good and noble may actually produce, paradoxically, evil results.”44 For Bauman, these two faces are perfectly comfortably attached to the same body. What we perhaps fear most is “that each of the two faces can no more exist without the other than can the two sides of a coin.”45 In this context, Bauman observes, [w]e need to take stock of the evidence that the civilizing process is, among other things, a process of divesting the use and deployment of violence from moral calculus, and of emancipating the desiderata of rationality from interference of ethical norms or moral inhibitions. As the promotion of rationality to the exclusion of alternative criteria of action, and in particular the tendency to subordinate the use of violence to rational calculus, has been 40 Cited

in Ignatieff 1996, p. 117. 2005, pp. 87–8. 42 Bauman 2013, p. 1. See also Douglas 2005, p. 87. This critique links to postmodernist history, which “has rejected the faith in reason and progress which was so central to modernist historiography, and much of its attention has been directed towards the irrational in history, the extraordinary, the transgressive and the magical”: see Evans 2001, p. 244. 43 Bauman 2013, p. 8. 44 Hoelzel, 1988, p. 81. See also Bilsky 2001, p. 142. 45 Bauman 2013, p. 7. 41 Douglas

138

5 The Law-Affirming Lens

long ago acknowledged as a constitutive feature of modern civilization – the Holocauststyle phenomena must be recognized as legitimate outcomes of civilizing tendency, and its constant potential.46

In the post-WWII tribunals, however, it was the “malfunction” narrative, rather than the “continuity” framing, that was adopted. Specifically, with respect to the role of law and judicial officers in Nazi Germany, in Altstoetter, the prosecution denied that the law used in state repression had the quality of proper law. Instead, as noted above, the Nazi regime had been delivered to the realm of lawlessness and the Nazi legal system was characterised as a “farce”, with the judges as impostors who were not entitled to wear their robes. The prosecution argued, amongst others, that the Nazi Germany “abolished all semblance of judicial independence”, and “[t]he ideology of the Third Reich was totally incompatible with the spirit of the law. It could not live under law, and the law could not live under it.”47 Moreover, the prosecution held that the defendants: […] leaders of the German judicial system, consciously and deliberately suppressed the law, engaged in an unholy masquerade of brutish tyranny disguised as justice, and converted the German judicial system to an engine of despotism, conquest, pillage, and slaughter.48

As was seen, therefore, the Nazi regime was framed as having abolished law and transformed the regime into a system of lawless violence. This framing, of course, has to be understood in its legal and political context, not least the need for the Allied Powers to establish the legitimacy of their proceedings against the German leaders and officials during the Nazi time.49 However, in practice, the reality of the state of the law in Nazi Germany was probably more complex than the picture arising from the post-WWII trials: [t]he Nazi leaders did not abolish law or the legal institutions of the predecessor Weimar Republic. To paraphrase Ronald Dworkin, lawyers inside and outside of Germany had no difficulty in identifying collectively the institutions and practices that counted as legal practices in Germany in 1933-1945. To a large extent, the Nazis ruled by measures ‘structured by legality’ and operated through the legal order and the courts.50

From the perspective of the judiciary in Nazi Germany, law was not reduced to mere ideology or the mechanical application of utilitarian argument. On the contrary, German judges continued to apply many of the legal arguments and judicial methods as one would expect to see in a functioning judicial system.51 Several theories have been put forward about the nature of the legal system of the Nazi regime,52 which 46 Ibid.,

p. 28.

47 US Military Tribunal, US. v. Altstoetter

et al. (Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10), The Justice Case, 1951, para 31, 41 (prosecution, opening statement). 48 Ibid., p. 31 (prosecution, opening statement). 49 Wilke 2009, p. 181. 50 Graver 2014, p. 20 (emphasis added). 51 Ibid., p. 26. 52 Refer to Rundle 2009, p. 76.

5.4 Law and Oppression as a Counternarrative

139

tend to indicate that the reality was probably more complex than the mere realm of “lawlessness”. For instance, Fraenkel, who was a practicing attorney in Berlin from 1933 to 1938, developed the theory of a “dual state” where the traditional legal institutions wrestled for power with the “prerogative” National Socialist party. According to this theory, the Nazi state could be characterised as a “dual state”, where the “normative” and “prerogative” states existed as competitive parts of the German Reich.53 By the “normative” state, Fraenkel meant the operation of law in the “normal” way, through statutes, decisions of the courts, and activities of the administrative agencies, while by the “prerogative” state, he meant the exercise of arbitrary power that could override any legal guarantees.54 The dual state in this sense therefore entailed the co-existence of a double jurisdiction in Nazi Germany. In this respect, while the “prerogative” state (and the arbitrary powers that it entailed) could be perceived as a breakdown in the rule of law and a descent to lawlessness, the “normative” state corresponded more closely with an ordinary understanding of the operation of law. It may be argued, therefore, that at least insofar as the “normative” state was concerned, the operation of law and judicial administration in Nazi Germany appear to accord with Bauman’s continuity thesis. The development from the Weimar Republic into the Nazi regime did not involve any stark breaks in the development of law or legal institutions in Germany. It was rather a transition and, as noted, to the extent of the “normative” state, the Nazis operated through the legal order and the courts. Nevertheless, from the perspective of the law-affirming lens, based as it is on a binary, law v. lawless framing, such nuanced explanations are not easy and, indeed, historical explanations emerging from post-WWII trials did not generally distinguish between the “normative” and “prerogative” states in Nazi Germany. The limits of the explanatory powers of the law-affirming lens are, therefore, most evident in situations where officials, including legal officials become complicit in upholding repressive measures.55 While the law-affirming lens would likely frame legal officials, including judges, upholding such measures as “impostors”, Bauman’s continuity thesis tells us that such officials need not be (and indeed very rarely are) “impostors”.56 In times of emergency, the limits of law and the acceptance of repressive measures may occur not only in oppressive regimes but also in liberal states.57 The courts of liberal democracies also have a record of such acceptance, such as the acceptance of the unfettered discretion of the Home Secretary to detain persons without trial by the UK’s House of Lords in 1941.58 Such cases show that 53 Fraenkel

and Meierhenrich 2018, p. 46. p. xxiii. 55 Graver 2014, p. 1. Kirchheimer refers to an incident in the Altstoetter trial where the presiding judge of a German special court had sentenced to death a Polish farm labourer on racial grounds. He notes that “[t]he basic fact that the way he handled his job violated the minimum standards of decency and equality before the law to which all human beings are entitled did not occur to the judge. Should he therefore escape punishment?”: see Kirchheimer 1961, p. 329. 56 Shklar 1986, p. 209. 57 Ramraj 2012. 58 See UK House of Lords, Liversidge v. Anderson and Morrison, 1941, 3 All E.R. 338 (H.L.). 54 Ibid.,

140

5 The Law-Affirming Lens

when judges share the views of the government that drastic measures are required to combat dangers to society, individual freedoms and rights risk being placed in a subordinate position.59 Kirchheimer observes that courts and juries generally tend to follow the line of the government as the presumed expert in times of emergency and that they often even outbid the government as a custodian of state protection.60 Linder has argued that, even in liberal justice systems, overidentification with popular causes of the day and immersion in professional legal culture has blinded many officials to the human consequences of their decisions: [b]ureaucratic thinking has enabled people who should know better to conclude that they are mere functionaries who, if they did not do what they did, would watch as others carried out the same injustices. Arendt concluded, from the Eichmann trial, that ‘remoteness from reality and thoughtlessness can wreak more havoc than all the evil instincts taken together.’ So, also, we might conclude today.61

By framing the law and politics in Nazi Germany as subversions of the forms of law and statehood that characterize civilized nations, as “malfunctions” of civilization, the post-WWII tribunals offered specific explanations of the role of legal officials in Nazi Germany. In accordance with the law-affirming lens, these explanations tended to emphasize the virtuous qualities of law as the antithesis of barbarism.62 However, as has been discussed, this lens has the potential to give rise to significant blind spots, particularly as it is less able to grasp, in Foucault’s words, that “laws deceive”63 and that, particularly in modern bureaucratic states, law “is capable of being combined with the politics of repression”.64 Against this backdrop, a counternarrative that challenges the faith in the rule of law, and depicts it as a possible agent of repression is bound to be pushed to the periphery of the law-affirming lens. In conclusion, it should be noted that the three lenses discussed in Chaps. 3 to 5 are not exhaustive and there may be other cognitive frames through which judges of ICTs interpret past events. Moreover, as with filters of a camera, in practice, judges usually apply multiple and overlapping lenses at once. Moreover, in addition to these framings, the historical narratives that judges of ICTs are able to write are further influenced by the distinctive approaches and methodologies of law and history, a subject that is considered in the next chapter.

59 Kirchheimer

1961, p. 322; Curran 1998, p. 1. 1961, p. 197. 61 Linder 1993, p. 1113. 62 Wilke 2009, pp. 196–7. 63 Foucault 1997, p. 72. 64 Shklar 1986, p. 209. 60 Kirchheimer

References

141

References Anghie A (1998) On the Indians Lately Discovered and Sixteenth-Century International Law. Proceedings of the ASIL Annual Meeting 92:374–375 Anghie A (2006) The Evolution of International Law: Colonial and Postcolonial Realities. Third World Quarterly 27:739–753 Arendt H (1951) The Origins of Totalitarianism. Harcourt Brace & Co. Arendt H (2003) Personal Responsibility under Dictatorship. In: Kohn J (ed) Responsibility and judgment. Schocken Books, New York Bauman Z (2013) Modernity and the Holocaust. John Wiley & Sons Bilsky L (2001) Judging Evil in the Trial of Kastner Forum: Judging Evil, New Departures in Israeli Legal History, Part Two. Law & Hist Rev 19:117 Campbell A (1988) International Law and Primitive Law. Oxf J Leg Stud 8:169–196 Cane P (2010) The Hart-Fuller Debate in the Twenty-first Century. Hart Criddle EJ, Fox-Decent E (2016) Fiduciaries of Humanity: How International Law Constitutes Authority. Oxford University Press Curran VG (1998) The Legalization of Racism in a Constitutional State: Democracy’s Suicide in Vichy France. Hastings Law Journal 50:1 Douglas L (1998) The Shrunken Head of Buchenwald: Icons of Atrocity at Nuremberg. Representations Douglas L (2005) The Memory of Judgment: Making Law and History in the Trials of the Holocaust. Yale University Press, New Haven Douglas L (2006) The Didactic Trial: Filtering History and Memory into the Courtroom. European Review 14:513–522 Drumbl MA (2003) Atrocity, Punishment, and International Law. Cambridge University Press, Cambridge Duff A (2010) Authority and Responsibility in International Criminal Law. In: Besson S, Tasioulas J (eds) The Philosophy of International Law, 1st edn. Oxford University Press, Oxford Evans RJ (2001) In Defence of History, Granta Books, London Foucault M (1997) Society Must be Defended: Lectures at the College De France, 1975-76 (Paperback) - Common. Penguin Books Ltd Fraenkel E, Meierhenrich J (2018) The Dual State: A Contribution to the Theory of Dictatorship. Oxford University Press Graver HP (2014) Judges Against Justice: On Judges When the Rule of Law is Under Attack. Springer Hoelzel A (1988) The Paradoxical Quest: A Study of Faustian Vicissitudes. Peter Lang Ltd Horkheimer M, Adorno TW (2007) Dialectic of Enlightenment, 1st edn. Noerr GS (ed) Stanford University Press, Stanford Ignatieff M (1996) Articles of Faith. Index on Censorship 25:110 Kirchheimer O (1961) Political Justice: The Use of Legal Procedure for Political Ends. Princeton University Press Koskenniemi M (2010) The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960. Cambridge University Press, Cambridge Linder D (1993) Journeying through the Valley of Evil. North Carolina Law Review 71:1111 McCrudden C (2008) Human Dignity and Judicial Interpretation of Human Rights. Eur J Int Law 19:655–724 Ramraj VV (ed) (2012) Emergencies and the Limits of Legality, 1st edn. Cambridge University Press, Cambridge Rogers D (2017) Law, Politics and the Limits of Prosecuting Mass Atrocity. Palgrave Macmillan, New York, NY Rose G (2014) The Melancholy Science: An Introduction to The Thought of Theodor W. Adorno. Verso, Brooklyn, NY

142

5 The Law-Affirming Lens

Rundle K (2009) The impossibility of an exterminatory legality: law and the Holocaust. University of Toronto Law Journal 59:65 Sander B (2019) Justifying International Criminal Punishment: A Critical Perspective. In: Bergsmo M, Buis EJ (eds) Philosophical Foundations of International Criminal Law: Foundational Concepts. Torkel Opsahl Academic EPublisher Shklar JN (1986) Legalism: Law, Morals, and Political Trials. Harvard University Press Wilke C (2009) Reconsecrating the Temple of Justice: Invocations of Civilization and Humanity in the Nuremberg Justice Case. Can JL & Soc 24:181–202

Chapter 6

The Distinctive Approaches of History and Law

Contents 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 The Historiographical Debates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Non-epistemic Policy Values in Criminal Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 Truth, Flattened . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Victory Over Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6 Access to, and Engagement with, Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7 Closed Universes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8 What Kinds of Narratives Do Judges of ICTs Write? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

143 144 152 155 159 166 174 178 184

Abstract This chapter focuses on aspects of legal epistemology in international criminal adjudication and the important ways in which law’s ways of knowing exert constraints and limitations on the historical narratives that criminal trials are able to produce. As emerges from the discussion in this chapter, the relationship between law and history is, at best, “uneasy”. From the perspective of historiography, it may be tempting to dismiss criminal trials as not writing history at all, but serving merely as agents of collective memory or as producing esoteric kinds of “trial” truths, far removed from “ordinary” historical truths. However, as is argued in this chapter, such a view would fail to take into account the complex and entwined relationship between law and history and the fact that, in many cases, historical debates in criminal trials have promoted understanding of, and provided important insights into, the underlying factors of an armed conflict. Keywords Law · History · Criminal Trials · Legal Epistemology · Truth · Rules of Procedure and Evidence · Collective Memory

6.1 Introduction This chapter outlines some of the strengths and constraints arising from the distinctive epistemologies and methods of history and law, which influence the kinds of historical narratives that judges of ICTs may write. It will assess some of the tools and conventions available to international judges in their search for truth. The point of departure for this discussion is that “[l]egal ways of knowing at international © T.M.C. Asser Press and the author 2021 A. Zammit Borda, Histories Written by International Criminal Courts and Tribunals, International Criminal Justice Series 26, https://doi.org/10.1007/978-94-6265-427-3_6

143

144

6 The Distinctive Approaches of History and Law

tribunals are at times utterly distinctive” from those of social science or history.1 Shapiro notes that “inside the courtroom, law’s ways of knowing seem strange, out of touch, disconnected from the usual ways in which people acquire information or make decisions.”2 And Sarat et al. point out that law knows in multivariate ways, “some strange, others familiar, some highly ritualized and formal, others informal and grounded in social practice.”3 The distinctive ways in which law and legal actors approach truth and knowledge entail both areas of strengths and limitations for the historical narratives that criminal trials are able to produce. Indeed, after examining some of the distinctive methodologies and approaches of international criminal adjudication, this chapter argues that, while it may be tempting to dismiss ICTs as not writing history at all, or at best, at producing some kind of esoteric “trial” truths far removed from “ordinary” historical truths, such a narrow conception of law’s epistemic output would hinder a more nuanced understanding of how judges (and other legal actors) contribute to finding truths and writings histories about conflicts, and the various points of intersection between “ordinary” truths and “trial” truths. As Wilson underscores: [i]nternational trials are not driven by two disconnected logics, one inside and the other outside the law, that clash with each other. Overstressing the divergence between legal and historical ways of knowing can forestall a more complete awareness of how they are effectively combined in some international criminal trials.4

A convenient starting point for this discussion is considering aspects of the Historikerstreit, which took place in the mid-to-late 1980s.

6.2 The Historiographical Debates This section will sketch out some of the issues and controversies emerging from the Historikerstreit, in order to contextualise the subsequent discussion of legal approaches.5 It has been noted that, while questions of historical truth and method

1 Wilson

2011, p. 216. 2007, p. 2. 3 Sarat et al. 2007, p. 19. 4 Wilson 2011, p. 218. See also Douglas 2016, p. 46. One recent example of overstressing the divergences between law and history is the following claim made in relation to the ICC Gbagbo trial: “[t]he Gbagbo trial demonstrates that history is used in case theories and abused as rhetorical window-dressing for both legal and extralegal purposes. In writing judgments based solely on evidence elicited during the trial, judges are straitjacketed into applying a legalistic style of storytelling to a legal form of agency history. […] But unlike historians who have a professional duty to address the past with rigorous, academic, and dispassionate caution, prosecutors cherry-pick, infer, and frame – or arguably even mutilate – the historical narrative in such a way that best fits the charges and tells a coherent story”: see Bouwknegt 2018, pp. 129, 135. 5 Tallgren 2014, p. xiii. 2 Shapiro

6.2 The Historiographical Debates

145

often play a secondary role in the teaching of law, they are central to the professional training of history students.6 Given the centrality of these questions to history, therefore, it is perhaps not surprising that, as McCullagh notes, historians argue among themselves “about their descriptions, interpretations, and explanations of the past”.7 For the purposes of this brief outline, the focus will be on theories in history centring around the possibility of arriving at some kind of objective truth about the past. Insights into this epistemological problem have changed over time and none of the theories has ever gained universal acceptance.8 While an in-depth discussion of these theories would, therefore, require a separate book, the main thrust of the discussion that follows will be on the epistemological crisis engendered by radical postmodernism and the doubts it cast on the possibility of attaining historical truth.9 The Historikerstreit was a debate about the singularity of the Holocaust and the impact of remembrance of Germany’s Nazi past on national identity in the Federal Republic of Germany at the time. This debate brought to the fore the controversy about the political uses of history and the relationship between historical consciousness and identity.10 Although the debate concerned broad questions of historical interpretation and the uniqueness or otherwise of the Holocaust, one aspect of this debate, which is of particular importance to the present discussion, was the controversy over the possibility of objective truth in history.11 In the Historikerstreit, the questions of whether some kind of truth about the past was possible and whether there were principles defining the permissible bounds of re-interpretation were brought to the fore in connection with the atrocities of the Holocaust: [w]ere there no principles to guide historical truth, even of a history whose truth seemed so self-evident? Were there to be no limits to the parameters of historical interpretation, relativization, revisionism, and ultimately, “denial?” If not in the case of genocide, then when? Even for arch relativists, Auschwitz posed the limiting case. Despite the apparent inevitability of change in historical interpretation after time, the question posed is whether there were any limits on the sort of narrative that could be told.12

This debate caused a re-evaluation of old epistemological problems and how historians approached the acquisition of knowledge about the past.13 According to Evans, its significance extended well beyond the domain of history: the problems of how historians approach the acquisition of knowledge about the past, and whether they can ever wholly succeed in this enterprise, symbolizes the much bigger problem 6 De

Baets 2008, p. 173. 2004, pp. 18–9. 8 De Baets 2008, p. 12. 9 Stuart-Fox 2007, p. 44. 1. See also Pernecky 2016, p. 184. 10 Nolan 1988, p. 53. 11 See Wood 1999, p. 46; Teitel 2002, p. 103. Though, of course, discussions on the nature of historical truth may be traced much further back: see Williams 2004, p. 106. 12 Teitel 2002, p. 104. See also Wood, who outlines Habermas’s contribution to this debate: see Wood 1999, p. 47. 13 Wood 1999, p. 6. 7 Mccullagh

146

6 The Distinctive Approaches of History and Law

of how far society can ever attain the kind of objective certainty about the great issues of our time that can serve as a reliable basis for taking vital decisions for our future in the twenty-first century.14

Following the rise of postmodernist thought in the late nineteenth century, which “caused a massive shake-up in the subject of History”,15 it became possible to roughly identify two, broad schools of thought on the question of how far we can ever attain objective certainty about the past. On the one hand, a small number of radical postmodernist scholars have, to varying degrees, claimed that there may be no objectivity in history, nor is it possible to distinguish between true and untrue interpretations (or lies) about past events.16 Derrida famously argued that there is no “transcendental signified” which determines meaning in itself, leading him to articulate his well-known dictum that there is nothing outside the text.17 Jenkins furnishes a more recent re-working of this argument: [o]bviously anything to be made meaningful and productive for us – to have the aura of reality and thus value conferred on it – has to be brought within our varying (and thus “historically relative”) productivist economies/logics, economies which, to be communicable, are necessarily coded, necessarily “signed”. Consequently, to live knowingly in a culture just is to have residence within discursive practices; to be “literally” fabricated and performatively constituted and reconstituted within imaginaries which then produce what passes for “reality” […].18

From the perspective of radical postmodernism, reality is inextricably linked to historically-relative discursive practices and there is no such thing as an externalized, material reality about individuals and society. While this view has been very influential in various disciplines, and has made inroads in legal submissions (as will be discussed below), it remains a minority view. On the other hand, most conventional historians would hold that it is possible to aim at truth and accuracy in history, though this is qualified in several ways. Towards one end of the spectrum, in The Practice of History, Elton mounted a trenchant defence of the belief that history “is a search for the objective truth about the past”.19 Evans notes, however, that few historians would now defend such a strong concept of historical objectivity.20 Zagorin articulated a weaker, more nuanced version of this view: [a]lmost all scientists are inclined to believe that the way things are in nature is independent of mind and language; and while they doubtless consider it pretentious to say they are searching for Truth, they do think that scientific research and theories, if successful, enable 14 Evans

2001, p. 9. 2013, pp. 3–4. 16 See, for instance, idealistic approaches to historical knowledge, such as Ankersmit’s narrative idealism: Ankersmit 1983. See also White’s linguistic idealism: White 1990. 17 See Jenkins 2013, p. 114. See also Jameson 1991, p. 77; Naqvi 2006, p. 250. 18 Jenkins 2000, p. 184. 19 Cited in Evans 2001, p. 2. See also Elton 1991. 20 Evans 2001, p. 3. 15 Brown

6.2 The Historiographical Debates

147

them to learn how nature works. Most historians similarly take it for granted that the past is independent of their thinking about it and that they are studying, analyzing, relating, and explaining actions, events, thoughts, structures, and processes that were part of the actual past human beings lived.21

Similarly, Bédarida argues that historians must seek to be as objective as possible, even knowing that such objectivity is never truly attainable.22 Their assertions should “aim at” truth.23 This approach has to be preferred to that of “being led astray in the meanderings of post-modernist deconstructions”.24 He states that instead of minimising truthfulness, a historian must “proclaim [it] very clearly to be his lodestar. It is a star that is distant, transient, occasionally veiled by clouds, but without it, what could the notion of responsibility be based on?”25 From this perspective, Williams argues that a concern with truthfulness, and its basic virtues of accuracy and sincerity, should inform every aspect of the historian’s work.26 For instance, with respect to using evidence, Evans acknowledges that the language of historical documents is never transparent, and historians have long been aware that “they cannot simply gaze though it to the historical reality behind. Historians know, historians have always known, that we can only see the past ‘through a glass, darkly’.”27 However, this is not to say that researchers can impose on such documents any meaning they choose: [a]s historians, we clearly cannot recover a single, unalterably ‘true’ meaning of a dispatch simply by reading it; on the other hand, we cannot impose any meaning we wish to on such a text either. We are limited by the words it contains, words which are not, contrary to what postmodernists suggest, capable of an infinity of meaning. And the limits which the language of the text imposes on the possibilities of interpretation are set to a large extent by the original author.28

Zagorin argues that many historians and philosophers would probably consider truth to mean correspondence with the facts, and would regard true knowledge as the principal goal of any inquiry.29 From this perspective, the notion of factual truth means that a true statement about the past corresponded to past reality. In its most primitive form, this old realist theory was known as the correspondence theory.30 Several theorists have sought to clarify how such true knowledge may be arrived at through historical inquiry.31 For the purposes of this outline, it is sufficient to 21 Zagorin

2000, p. 209. 1994, p. 5. 23 Williams 2004, p. 46. 24 Bédarida 1994, p. 5. 25 François 1994, pp. 5–6. 26 Williams 2004, p. 11. 27 Evans 2001, p. 104. 28 Ibid., p. 106. 29 Zagorin 2000, p. 207. 30 De Baets 2008, p. 42. 31 See Lorenz 1994, p. 351. See also Williams 2004, p. 14; Dynel 2018, p. 4. 22 Bédarida

148

6 The Distinctive Approaches of History and Law

note that, while few would today defend a hard-line concept of historical objectivity, many historians would accept the possibility of arriving at some kind of objective truth by, for instance, respecting the basic virtues of accuracy and sincerity.32 They would also accept, to varying degrees, the possibility of distinguishing between truth and lies,33 and would regard one of the roles of responsible historians as seeking to narrow the range of “permissible lies” in history.34 Evans, for instance, argues that: [t]hrough the sources we use, and the methods with which we handle them, we can, if we are very careful and thorough, approach a reconstruction of past reality that may be partial and provisional, and certainly will not be objective, but is nevertheless true.35

This emphasis on the possibility of arriving at some kind of truth that excludes certain types of interpretations should not, however, be confused with the naive nineteenthcentury positivist conception that historians could write a definitive scientific historical account once they had at their disposal undisputed historical facts that did not need interpretation. Nor does it deny the importance of discussions about historical opinions and about sweeping explanations and representations of history. On the contrary, De Baets argues that it allows “for broad interpretations within the margins imposed by the available information, or within what Reinhart Koselleck called the ‘veto of the sources.’”36 This approach to truth will ring familiar to criminal lawyers. Writing in relation to evidence at trial, for instance, Burns argues that, even though such evidence may have two (or more) faces, it is not infinitely plastic: [i]t is true, as trial lawyers say, each bit of evidence “has two faces” – can be interpreted in different ways. (Does the fact that the defendant had four beers before the shooting mean that she didn’t have the dexterity to fire the fatal shot or that she had the lowered inhibitions to do the deed? Does the very high level of certainty the witness shows about his identification of the defendant mean that his testimony is accurate or was the result of prejudice or other motives?) But evidence is not infinitely plastic. To borrow from Henry James, the evidence will be a kind of indeterminate pudding, but a “lumpy” pudding.37

This approach contrasts with the view of radical postmodernism with respect to the possibility of aiming at objective truth.38 From this perspective, causal analysis is replaced by discourse. The belief that individuals and society might play a causal role in historical outcomes gives way to the belief that politics is discourse and symbol and can hardly be explained by any reference outside itself. It is hard to see how such a radical viewpoint could be reconciled with law’s realist ontology.39 32 Williams

2004, p. 11. 2001, p. 66. 34 Ignatieff 1996, p. 113. 35 Evans 2001, p. 249. 36 De Baets 2008, p. 156. 37 Burns 2007, pp. 142–3. 38 Though this approach, and the diminishing role of, trust in, and respect for facts, data, and analysis, seems to be gaining increasing acceptance in broader political contexts: see Kavanagh and Rich 2018, p. 1. 39 Evans 2001, p. 3. 33 Evans

6.2 The Historiographical Debates

149

This is particularly so with respect to the mass atrocities that come before ICTs. If one were to espouse radical postmodernism in criminal law, one would have to take the view that the law should not seek “to banish all ambiguity, even regarding the wrongfulness of genocidal conduct or the culpability of its perpetrators”.40 Clearly, such a viewpoint would run counter to the liberal values of international criminal adjudication. With reference to, for instance, the notorious crimes of the Nazis, Evans makes the point that: “Auschwitz was not a discourse. It trivialises mass murder to see it as a text. The gas chambers were not a piece of rhetoric.”41 While, therefore, the perspectives of radical postmodernism contrast sharply with law’s realist approach, this perspective has made some inroads into legal thinking. Indeed, the unsettling force of postmodernist scepticism has made some legal scholars reconsider whether the aspiration to objective truth was a realistic goal of factual inquiries and adjudication.42 Moreover, defence attorneys were quick to recognise the potential of postmodernist arguments for attacking historical evidence in court. For instance, in relation to the trial of Ernst Zundel at the Ontario Court of Appeal, an exchange between the renown historian Christopher Browning and the defence counsel (Christie) is worth reproducing in some detail. When Browning insisted on defending the distinction between facts, interpretations of great certitude, and opinions, Christie turned to E. H. Carr’s What is History? once a widely-read introduction to historiography: Christie: […] Let me read on a wee bit. “When you read a work of history always listen out for the buzzing. If you can detect none, […] either you are tone deaf or your historian is a dull dog”; right? Browning: That’s what it reads. Christie: “The facts are really not at all like fish on the fishmonger’s slab.” Correct? Browning: That’s what it reads. Christie: “They are like fish swimming about in a vast and sometimes inaccessible ocean and what the historian captures will depend partly on chance, but mainly on what part of the ocean he chooses to fish in and what tackle he chooses to use. […] By and large, the historian will get the kind of facts he wants.” Is that correct? […] Browning: That has been read correctly.43

Following on from this exchange, and drawing extensively on radical postmodern perspectives, Christie proceeded to claim that testimony as to the facticity of the Holocaust by expert witnesses had to be treated as “hearsay evidence”. Moreover, accounts by eyewitnesses were of dubious validity and were in any case unverifiable. In consequence, Christie implied that “all history was opinion and susceptible to radically different interpretations”.44 Douglas notes that “[a]s a result of Christie’s 40 Osiel

1999, p. 52. 2001, p. 124. 42 Damaška 1998, p. 289. 43 Cited in Douglas 2005, p. 252. 44 Cited in Marrus 2002p. 230. 41 Evans

150

6 The Distinctive Approaches of History and Law

defense of skepticism, the jury was thrust in a peculiar position.”45 Indeed, in his instructions to the jury, the Judge stated that the distinction between facts and opinions as it applied to Zundel’s pamphlet on the Holocaust was itself a question of fact for the jury to decide.”46 Subsequently, when the matter came before the Supreme Court of Canada, the Court again expressed some level of postmodern scepticism about the possibility of arriving at objective truth. The Court held that: [t]he question of falsity of a statement is often a matter of debate, particularly where historical facts are at issue. (Historians have written extensively on the difficulty of ascertaining what actually occurred in the past, given the difficulty of verification and the selective and sometimes revisionist versions different witnesses and historians may accord to the same events[…)].47

Thus, it is possible to see how postmodern perspectives have made inroads both in the legal scholarship and in the courtroom. Legal submissions inspired by postmodernist thinking have also cropped up in some international criminal trials to construct alternative explanations of the past. This was so, particularly, when national histories were complex and hotly debated, as was the case in the former Yugoslavia. Wilson notes that “[v]irtually any argument can be made from the convoluted history of twentieth-century Yugoslavia, including many that refute the more deterministic version of nationalism advanced by the prosecution.”48 For instance, Miloševi´c, who was described by a veteran observer of the ICTY as “the perfect postmodern politician”, adopted a stance whereby “truth holds no value for him. Indeed, he does not believe there is such a thing. All is manipulation.”49 From this perspective, Ramet argues that “[t]he point is not whether or not there is anything to Miloševi´c’s account. The point, rather, is that he is offering an alternative history which, he may hope, at least some Serbs may embrace as their own.”50 Notwithstanding the influence of radical postmodernism on legal thinking, however, the dominant approach to truth in international criminal adjudication has remained realist. Wilson has noted that law’s epistemology is “positivist and realist, demanding definite and verifiable evidence typically produced through scientific forensic methods.”51 And Damaška notes that “[o]ne of the working assumptions of the practice of adjudication is that truth is in principle discoverable, and that accuracy in fact-finding constitutes a precondition for a just decision.”52 In the context of international criminal adjudication, therefore, the dominant approach is realist, though the strength with which this claim is made varies. In 45 Douglas

2005, p. 253. See also Havel 2005, p. 684. 2005, p. 253. 47 Supreme Court of Canada, R. v. Zundel, 1992. 48 Wilson 2011, p. 111. 49 Ramet 2004, p. 117. 50 Ibid., p. 118. Similarly, Koskenniemi notes that “[i]n the course of the trial Miloševi´ c has conducted his defence less in order to save himself than in order to get his version of truth across to the public in Serbia, as well as to ‘history’ by and large”: see Koskenniemi 2002, pp. 18–9. 51 Wilson 2011, p. 7. 52 Damaška 1998, p. 289. 46 Douglas

6.2 The Historiographical Debates

151

the early years of the ICTY, some Trial Chambers made grand claims about discovering truth as “a cornerstone of the rule of law and a fundamental step on the way to reconciliation.”53 In the ICTY’s 1998 Annual Report, Judge Cassese referred to the importance of criminal proceedings to establish “as judicial fact the full details of the madness that transpired in the former Yugoslavia.”54 Later Chambers, however, adopted more qualified positions, taking the view that “the ‘truth’ can never be fully established or satisfied.”55 Indeed, some judges have embraced more pluralist accounts of truth. In Milutinovi´c, the judges held that, while their historical findings may help provide a fuller understanding of events in Kosovo, the judgment was “simply one element in an array of material from which historians will derive a complete historical account.”56 And Judge Patricia Wald referred to degrees of truth and “approximations of history”.57 Several observers have moreover drawn attention to differences between “historical” and “trial” (or “legal”) truths.58 The purpose and the result of a criminal trial is not to determine historical truth, one commentator has noted, but rather trial truth.59 With this in mind, the next section will consider some of the distinctive methodologies and approaches of international criminal adjudication that makes it possible to distinguish between historical truths and trial truths.60 The starting point for this discussion is that, “[a]s criminal lawyers have always known, legal and historical truth are far from identical”.61 Indeed, the trial inquiry follows its own rules distinct from other types of investigations.62 Although within the legal community, the methodologies and approaches used within trials are considered to provide suitable frameworks for interpreting and making sense of the past, they may be perceived as distortions by historians. However, this argument may also apply the other way around and, as Osiel points out, what may be perceived as “real” or a “distortion” may in part depend on the eye of the beholder:

53 ICTY,

Prosecutor v. Erdemovi´c, Sentencing Judgment, 1998, ICTY-96-22, para 21. 1998, para 296. 55 ICTY, Prosecutor v. Momir Nikoli´ c, Sentencing Judgement, 2003, IT-02-60/1-S, para 60 (fn 107) referring to ICTY, Blagojevi´c et al., Guidelines on the Standards Governing the Admission of Evidence, 23 April 2003, ICTY-02-60. 56 ICTY, Prosecutor v. Milan Milutinovi´ c, et al., Decision on application of Rule 73 bis, 2006, IT-05-87-T, para 4. 57 Wald 2001, pp. 116–7. 58 Bob de Graaf, ‘The Difference between Legal Proof and Historical Evidence. The Trial of Slobodan Miloševi´c and the Case of Srebrenica’ [2006] 14 European Review 499, 505. See also Sofia Stolk, ‘The Record on Which History Will Judge Us Tomorrow’: Auto-History in the Opening Statements of International Criminal Trials’ [2015] 28 Leiden Journal of International Law 993, 995. 59 Gaynor 2012, p. 1260. 60 Tromp 2018, p. 62. The author goes on to ask: ‘what is the relationship between legal and historical truth’? See ibid., 63. 61 Koskenniemi 2002, p. 11. 62 Aksenova 2017a, p. 494. 54 ICTY

152

6 The Distinctive Approaches of History and Law

[w]hat will be viewed as a distortion from the perspective of either profession may be entirely legitimate in light of the distinct purposes of the other. Inevitably, the law will often treat past events in ways that will constitute distortion from the standpoint of historiography. But if courts distort history, so too historians can distort the law – often in ways that make lawyers howl or cringe.63

In addition to legal procedures that aim, to varying degrees, at truth-seeking, criminal justice systems also comprise a more miscellaneous grab bag “of concerns that do not explicitly address trial error but focus instead on other issues important to the criminal justice system”.64 Laudan refers to these concerns, which include questions about the efficient use of resources, the protection of the rights of those accused of a crime, and various other social goods, as “non-epistemic policy values”.65 Although these concerns are not grounded in the truth-seeking project, their implementation may frequently intertwine, and possibly conflict, with the search for truth.

6.3 Non-epistemic Policy Values in Criminal Trials In his analysis of legal epistemology in criminal justice, Laudan explores the question of whether the procedures and rules that govern a trial “are genuinely truthconducive”.66 He finds that, while some rules and procedures are, indeed, truthconducive, the law contains a large number of “truth-thwarting rules or procedures”,67 which are not genuinely truth-conducive. In his analysis, he suggests some alternative processes that are more conducive to finding out the truth about a crime and argues that “[i]f epistemic values were the only ones in play, the choice would be a foregone conclusion.”68 However, in a criminal trial, epistemic values are not the only ones in play. Other non-epistemic policy values—from those focusing on the rights of the accused to questions of public image and efficiency—also play an important role in criminal justice. This means that difficult choices must be made in trials about how to balance off these competing values. Therefore, according to Laudan, criminal trials include both rules and procedures that are genuinely truth-conducive, as well as rules and procedures that are potentially truth-thwarting. Moreover, the search for truth in criminal trials is further constrained by the presence of other non-epistemic policy values which, while important to the criminal justice system, as noted above, are not part of the truth-seeking project and, indeed, frequently conflict with the search for truth.69 In this respect, in Nikoli´c, the 63 Osiel

1999, pp. 83–4. 2006, p. 2.

64 Laudan 65 Ibid. 66 Ibid. 67 Ibid.,

p. 213.

68 Ibid. 69 Ibid.,

p. 2.

6.3 Non-epistemic Policy Values in Criminal Trials

153

ICTY Trial Chamber provided an extensive list of some of the competing policy values that ICTs are called to address: 59. The Tribunal was to achieve justice through criminal proceedings. The purpose of such proceedings was multi-fold: the primary objective was to convict – and punish – those individually responsible for their crimes. The suffering and loss of the victims of such crimes would thereby be internationally recognised and acknowledged. Furthermore, through criminal proceedings, the Security Council intended to send the message to all persons that any violations of international humanitarian law – and particularly the practice of “ethnic cleansing” – would not be tolerated and must stop. It was further hoped that by highlighting breaches of obligations under international humanitarian law, and in particular the Geneva Conventions, that the parties to the conflict would recommit themselves to observing and adhering to those obligations, thereby preventing the commission of further crimes. Finally, it was hoped that this commitment to end impunity in the former Yugoslavia would promote respect for the rule of law globally. 60. The Tribunal was further to contribute to the restoration and maintenance of peace through criminal proceedings. The immediate consequence of such proceedings was the removal of those persons most responsible for the commission of crimes in the course of – and even in furtherance of – the armed conflict. Additionally, by holding individuals responsible for the crimes committed, it was hoped that a particular ethnic or religious group (or even political organisation) would not be held responsible for such crimes by members of other ethnic or religious groups, and that the guilt of the few would not be shifted to the innocent. Finally, through public proceedings, the truth about the possible commission of war crimes, crimes against humanity and genocide was to be determined, thereby establishing an accurate, accessible historical record. The Security Council hoped such a historical record would prevent a cycle of revenge killings and future acts of aggression.70

The list of values that ICTs are expected to address therefore is extensive and the search for truth constitutes but one such priority amongst many. McDermott highlights the tension between all the boxes that international criminal judges seek to tick: they want, inter alia, to do justice for the victims, and to do so in an expeditious manner, whilst ensuring the safety of the witnesses and respect for the interests of the international community in the outcomes of their trials.71 In view of the nonepistemic policy values of criminal trials, as discussed in Chap. 2, scholars from incompatibility theory have argued that ICTs should steer clear from attempting to write historical narratives, as such values have a thwarting influence on their search for truth. In an extensive critique of legal histories written in the courtroom, the French historian Henry Rousso argued that judging and moralising about past events did not mix well with historical truth telling. Rousso stated that historians should not “judge” or “prosecute” the past, but instead try to make sense of it: “[b]e it as judge, prosecutor or advocate, historians are no longer in their proper element once they don courtroom robes.”72 The question of whether history should be solely understood or, in addition, also judged is centuries-old. At least since the days of Kant, there has been a debate of whether historians should limit themselves to understanding history or whether, in 70 ICTY,

Prosecutor v. Momir Nikoli´c, Sentencing Judgement, 2003, IT-02-60/1-S, para 59–60. 2016, p. 126. 72 Cited in Evans 2002b, p. 335. 71 McDermott

154

6 The Distinctive Approaches of History and Law

addition, they should enunciate a moral judgment about it.73 In his critique, Rousso espoused an ideal of history that was purely scientific and non-judgmental and, in this sense, echoed Marc Bloch’s warning against passing historical judgments: [t]here are two ways of being impartial: that of the scholar and that of the judge. They have a common root in their honest submission to the truth. […] However, there comes a moment when their paths divide. When the scholar has observed and explained, his task is finished. It yet remains for the judge to pass sentence.74

However, other historians have seriously questioned whether it is possible for history-writing to avoid value judgments.75 White, for instance, asks “[h]as any historical narrative ever been written that was not informed not only by moral awareness but specifically by the moral authority of the narrator? […] Could we ever narrativize without moralizing?”76 Evans argues that, no doubt, Rousso’s own writing on Vichy is far from value-neutral either in inspiration or in effect. Rather than advancing a view of history that pretends to be value-free, Evans puts forward the view of the historian as a “self-critical” and “self-aware” individual, and who is willing to draw conclusions framed by the sources, “irrespective of the political and legal consequences that might ensue.”77 From this perspective, Osiel argues that there are similarities between judges and historians. In his view, neither historians nor judges approach the past disinterestedly. While both bring contemporary concerns to bear upon their investigations, neither considers it defensible “to ignore evidence disconfirming the story one initially wished to tell.”78 The view of historians, as responsible and “self-critical” individuals, who are ready to consider disconfirming evidence, delineated by Evans, may equally apply to judges. Both seek to draw conclusions framed by the sources and evidence before them. In this respect, Turkovic notes that “traditionally the relationship between law and history has been very close – judges as well as historians attempt to establish the truth about past events with the help of evidence.”79 This would seem to confirm the view that in many ways, the disciplines of law and history have a natural affinity. This relationship is nonetheless a tense one. Lawyers and historians are in many respects odd bedfellows.80 They are, in Gaynor’s expression, “uneasy partners”.81 On the one hand, while the ultimate objective of a criminal trial is to pass judgment on the guilt or innocence of the accused, it may also generate significant knowledge about the broader historical contexts of conflicts. On the other hand, as discussed above, the search for truth in criminal 73 De

Baets 2008, p. 90. 1953, pp. 138–40. 75 Evans 2002b, pp. 343–4. 76 White 1980, pp. 24, 27. 77 Evans 2002b, p. 344 (emphasis added). 78 Osiel 1999, pp. 139–40. 79 Turkovic 2004, p. 42. Cited in Petrovi´ c 2016, p. 6. 80 Petrovi´ c 2016, p. 4. 81 Gaynor 2012. 74 Bloch

6.3 Non-epistemic Policy Values in Criminal Trials

155

trials is rendered more difficult because of: (a) the existence of procedures that are not efficiently truth-conducive; and (b) the existence of other non-epistemic policy values that frequently conflict with the search for truth. One aspect of criminal trials that has been extensively critiqued by historians, for instance, is the tendency of such trials to lead to flatter, univocal explanations. As Osiel comments, even in hard cases, where any interpretation of past events would be controversial, lawyers argue (and judges often defend their conclusions) as if only one version of events were ultimately possible at the end of the day, a subject which is considered next.82

6.4 Truth, Flattened While in the course of criminal proceedings, several competing accounts of past events may be presented, in order to be able to pass judgment, judges must, within certain degrees, embrace one account “to the exclusion of all others, whereas historians often accept aspects of competing accounts”.83 Osiel notes that by its nature, law “can only tell one true story about who is right in a given dispute, can lend its authority to only one of the competing narratives about what happened and about what, legally speaking, it ‘meant.’”84 Because it demands resolution and coherence, law is limited in its ability to explore the ambiguities and grey zones of human action.85 According to Bilsky, the main strength and weakness of criminal trials is their ability to transform “a multilayered political debate into a binary conflict”.86 It is a strength inasmuch as such an account has the potential to resolve the dispute at hand. It is a weakness inasmuch as it is often reductive, tending to promote black and white explanations. It should be recalled at this stage, however, that historical research is also, to a greater or lesser extent, reductive. Senn has argued that a critical approach to history is characterised by the awareness that all sources allow us to reconstruct just a small fraction of the complexity of a past reality. He observes that: [t]he necessary simplifications and points of view inherent in any particular analysis always leave room for more than one defensible interpretation compatible with the sources, and insofar they do not contradict each other but rather illuminate different aspects and possibilities of past realities.87

While, therefore, any account of the past will, to varying degrees, tend to be reductive, history is undoubtedly more pluralistic, open, and interpretative in both its methods and conclusions than law. Wilson notes that “[h]istorians live more comfortably with 82 Osiel

1999, p. 247. 2005, p. 913. 84 Osiel 1999, p. 247. 85 Bilsky 2001, p. 144. 86 Bilsky 2004, p. 4. 87 Senn 2012, pp. 116–7. 83 Wilson

156

6 The Distinctive Approaches of History and Law

difference of opinion, and they often recognize that their evidence and conclusions are not always falsifiable or verifiable.”88 Because of its distinctive rules and conventions and, in particular, its insistence on narrative coherence, law often “ends up reducing complex histories to a defective legal template for social reality […].”89 Having said that, however, it is important to emphasize that certain rules and procedures in law could promote some level of narrative pluralism and multivocality both with respect to offering multi-layered explanations and accommodating competing narratives. Writing in relation to the libel trial of Kastner before Israeli courts, for instance, Bilsky argues that the explanatory frameworks adopted by judges to make sense of the events before them may play a significant role in determining the level of plurality and complexity that the ensuing narratives may accommodate. In the Kastner trial, Bilsky argues that while the judge of the district court, Judge Halevi, adopted a framework based on “contract law” to explain Kastner’s actions, resulting in an impoverished and transactional understanding of Kastner’s actions, the appeals judge, Agranat, adopted an “administrative law” framework, which was better able to accommodate greater complexity: Justice Agranat’s opinion, long and methodical, reversed almost all of Halevi’s legal findings. It revealed that the law as such does not necessitate a black-and-white understanding of Evil and that it offers subtler tools than the ones used by Halevi to understand Kastner’s decision to cooperate with the Nazis.90

Sander has argued that the historical narratives written by ICTs are often “less final and uniform than is generally assumed.”91 Most obviously, the narratives rendered within trial judgments may be subject to alteration on appeal. Additionally, judgments may not be unanimous, dissenting opinions of individual judges constituting a further potential source of narrative pluralism. In his analysis, Sander examines how the historical narratives constructed within international criminal trials may be revisited and contested both when external courts examine the same mass atrocities (inter-court narrative pluralism), and when narratives constructed within a given court are revisited in later cases adjudicated by the same court (intra-court narrative pluralism).92 Indeed, in some of the judgments of ICTs, attempts at promoting greater narrative pluralism were made. For instance, the Staki´c Trial Chamber stated that, due to the “obvious fact” that it was only able to consider part of the story, it was aware of “the possibility of divergences from, or even contradictions with, findings in other cases”, based on different evidence tendered and admitted.93 The Milutinovic et al. Trial Chamber, moreover, pointed out how the judgment is simply “one element in an 88 Wilson

2005, p. 913. p. 914. 90 Bilsky 2001, p. 150. 91 Sander 2018, p. 551. 92 Ibid. 93 ICTY, Prosecutor v. Milomir Staki´ c, Judgment, 2003, IT-97-24-T, para 20. 89 Ibid.,

6.4 Truth, Flattened

157

array of material from which historians will derive a complete historical account.”94 In some cases, judges purposively include references in their judgments to direct their audiences to broader historical material.95 Eltringham notes that: [t]he judgement is not presented in splendid isolation, its formation hidden. Rather consumers are invited to engage with that material as they wish, free from the constraints placed on judges. The judgement is indeed monophonic, but the historical record is contrapuntal. Under such circumstances, many of the critiques of law’s finality as being inimical to history become irrelevant.96

Through these techniques, therefore, ICTs are able to accommodate some level of multivocality and to present, to some extent, competing narratives. However, the parties know that ultimately the judges will need to decide and adopt one particular historical account in the judgment, and they also know that judges will tend to prefer coherent, rather than conflicting, accounts. For this reason, the parties’ attorneys will tend to present reductive, overarching stories that align individual facts and amalgamate them into a coherent whole to fit with their respective theory of the case.97 Given that judges largely rely on the evidence submitted by the parties to develop their understanding of the case, this makes it more difficult for them to gain more complex understandings of the underlying realities, given that they would have been presented with reductive truths to begin with. Many historians have been critical of this approach, noting that judicial proceedings tend to impose a coherence on fragmentary testimony, attributing a degree of intentionality and group organization in search for cohesive narrative and explanation, which differs from history-writing.98 Coherence is an important concept in both historiography and law. However, in historiography, it has been seen to pose several challenges.99 Historians have observed that history reveals “on its every page the importance of contingencies – accidents, coincidences or other unforeseeable developments”.100 As a result, historians have tended to make a point of conveying the provisional and uncertain nature of interpretation, and have lived more comfortably with difference of opinion, “chance, accident and indeterminacy”, as well as ambiguity.101 This approach has enabled historians to develop more complex, if less conclusive, multivocal explanations. They are less concerned “with establishing causality and apportioning responsibility, and when they do perceive a link between events, their assertions often acknowledge a greater level of uncertainty”.102 94 ICTY, Prosecutor v. Milan Milutinovi´ c, et al., Decision on application of Rule 73 bis, 2006, IT-05-87-T, para 4. 95 Eltringham 2009, p. 73. 96 Ibid. 97 Wilson 2011, p. 82. See also Snedaker 1987, p. 40; Bilsky 2004, p. 14. 98 Graaff 2006, p. 507. 99 Pollmann 2000, pp. 167–9. See also Amaya 2008, p. 307. 100 Osiel 1999, p. 98. 101 Evans 2001, pp. 109, 129. 102 Wilson 2011, p. 217.

158

6 The Distinctive Approaches of History and Law

Of course, the levels of uncertainty and ambiguity that historiography is able to accommodate would sit uneasily in legal judgments.103 Far from embracing indeterminacy, criminal lawyers tend to “search for cohesive narrative and explanation”,104 and strive to write unambiguous historical explanations which seek “to avoid as far as possible, contradictory interpretations”.105 This is, in part, necessitated by the high, “beyond reasonable doubt” threshold of criminal trials. Lawyers searching for truth require certainty and the best, most convincing evidence underscored by appropriate justification or legal authority. Historians, on the other hand, “embrace a different kind of truth – a historical ‘truth’ that accepts uncertainty and appreciates the contingency of legal authority and the sometimes-shaky foundations of the law (which lawyers rarely admit)”.106 Lawyers and judges are, therefore, more likely than historians to pare down the context so as to simplify the matter and isolate the events and acts charged.107 Although this may be necessary to arrive at a conclusive determination, Wilson argues that legal decontextualization comes at a high price for historical understanding.108 Moreover, where there is conceptual or factual uncertainty on a matter, and there is not an imperative to resolve the matter so as to try the crimes, then judges would often prefer to sidestep it. In the words of one expert witness interviewed by Wilson: [j]udges go to great pains to avoid ambiguity. They throw up their hands and say, ‘We don’t want to address those questions. Let’s not figure out why Bosnian Muslims sought national minority status in the 1960s and not before.’109

Thus, while the historical explanations created by ICTs may embrace some level of narrative plurality, the overarching objective of determining the guilt or innocence of the accused, the need to adopt, in the written judgment, a coherent account of criminal liability to the exclusion of others, and the disinclination of law to accommodate provisional or indeterminate explanations, all tend to promote flattened narratives, ending up with histories that may come across as over-determined.110

103 Weill

1998; cited in Wood 1999, p. 131. See also Evans 2001, p. 234. 1999, p. 99. 105 Kirchheimer 1961, p. 260. 106 Musson and Stebbings 2012, p. 4. 107 Writing in relation to sexual violence crimes, Baig et al. discuss three key ways that prosecutors use to contextualise the charges: (1) prosecutors can use contextualization at a general level to show the required nexus to an armed conflict to charge a war crime, or show that a crime formed part of a widespread or systematic attack directed against a civilian population to charge a crime against humanity; (2) at a more specific level, prosecutors can contextualize crimes to accurately describe sexual violence against a particular victim, as in cases charging torture or enslavement; and (3) contextualization can also be used to show connections between crimes committed against individuals and others within their communities, such as when prosecuting sexual violence as part of a persecution or genocide campaign: see Baig et al. 2016, p. 175. 108 Wilson 2011, p. 217. 109 Ibid., p. 146. 110 Simpson 2015, p. 165. 104 Osiel

6.5 Victory Over Truth

159

6.5 Victory Over Truth The question of which type of legal system, adversarial or inquisitorial, tends to be more truth-conducive, as well as inquiries into the role of specific rules of procedure in relation to the search for truth, have been the subject of detailed analysis in domestic, comparative and international law.111 In the context of international criminal justice, different ICTs have adopted procedural components from both adversarial and inquisitorial traditions, giving rise to sui generis or mixed systems.112 Although, initially, the ad hoc Tribunals predominantly incorporated adversarial elements, over time, several rule changes were effected which increased the number of inquisitorial elements in those Tribunals.113 For instance, as judges of the ICTY became increasingly aware of the challenges caused by lengthy trial proceedings, in December 2000, they removed the rule favouring live testimony in order to make way for two rules that allowed the admission of written statements prepared for purposes of legal proceedings in lieu of oral testimony (if certain conditions were met).114 Many of the rule changes that sought to incorporate inquisitorial elements were, in fact, motivated by a concern for expeditious trials. Lord Bonomy, a former judge of the ICTY, noted that: [a]s experience of the workings of the various tribunals increased, the advantages to be gained by introducing more of the practices followed in civil law jurisdictions were appreciated. The general admissibility of hearsay evidence and the widespread use of written statements in lieu of oral evidence are good examples of practices from civil law systems by which the procedures of international tribunals were enhanced. Unfortunately, the potential for expediting proceedings presented by some of the changes has not been realised. On two occasions I chaired a Committee for Speeding up Trials at the ICTY, which on each occasion produced a number of recommendations, but these were no more than tinkering at the margins.115

The rules of procedure embodied by the ICC have built on the experience of the ad hoc Tribunals and internationalized tribunals.116 According to Ambos, the rules of procedure of the ICC represent a merging of civil and common law elements in one international procedure and it is no longer important whether “a rule is either ‘adversarial’ or ‘inquisitorial’ but whether it assists the Tribunals in accomplishing their tasks […]”.117 Schabas notes that the Rome Statute of the ICC provides for an adversarial approach, but one in which the judges have dramatic powers to intervene and control the procedure.118 Writing in relation, for instance, to the increased use of court-appointed experts at the ICC, Wilson states: 111 For

an overview, see Damaska 1973; Fyfe 2019a, p. 290; Waters 2010, p. 288; Weigend 2011, p. 294. 112 Boas et al. 2011, p. 462. 113 Tromp 2016, p. 8. 114 Rules 89(F) and 92bis of the ICTY Rules of Evidence and Procedure. See Kwon 2007, p. 365. 115 Bonomy 2018, p. 17. 116 Röben 2003, p. 514. 117 Ambos 2003, p. 1. 118 Schabas 2017, p. 234.

160

6 The Distinctive Approaches of History and Law

I am persuaded that the ICC, with its more civil law and managerial system, has created a positive institutional setting for hearing historical and expert-witness evidence in the courtroom and that it represents a model for the future […]. If the parties can all reach agreement on the terms of their participation, court-appointed experts are preferable because the expert’s first loyalty is to the court rather than to the legal or ideological cause of one of the parties. By calling more court-appointed experts who have been jointly instructed, there might be fewer partisan historical accounts and hostile cross-examination of experts.

One of the most significant strengths of ICTs in their evaluation of evidence is their adversarial setting, which enables these institutions to verify authenticity and test evidence rigorously.119 The rigid chain of custody in criminal trials, which records the sequence of custody, control, transfer, analysis, and disposition of physical or electronic evidence, is in many cases, more rigorous than the mechanisms used by other writers of history, thereby reducing the risks of untraceability or abuse.120 With respect to the testing of evidence, moreover, some scholars consider criminal trials as one of the few places in which opposing historical arguments actually interact and are tested rigorously, and in which “a new generation seeking to make sense of the past might turn for information that has been tested in the courtroom”.121 Through the adversarial system, ICTs provide the space for contested narratives to be presented, defended and cross-examined.122 Having said this, however, one needs to draw a distinction between “ordinary” criminal trials and criminal trials involving atrocity crimes. In an “ordinary” criminal trial, the two disputing parties can bring their case before a third-party umpire (the judge), whose position as an “outsider” to the dispute can guarantee the court’s impartiality and endow its ruling with legitimacy. However, unlike “ordinary” trials, the cases which come before ICTs are usually ones of “radical difference”, where each side calls for the recognition of a different historical context according to which the court should adjudicate the case.123 In such cases the triad structure of a trial collapses into a binary structure of two opposite sides facing each other in a power struggle without (at least from the perspective of one of the parties) an accepted overriding law that can function as arbiter. In cases of radical difference, there is no third party because the court itself is deemed by one of the parties to be its adversary and the legitimacy of the court itself is called into question.124 In such cases, at least from the perspective of one of the parties, the “epistemic authority” 119 At

least with respect to matters directly relevant to a given case. A less rigorous standard may be accorded to evidence relating to unindicted or deceased third parties: see Prosperi and Zammit Borda 2020, p. 174. 120 De Baets 2008, p. 29. For a contrary view, see Murphy who has argued that the evidence admission practices at the ICTY could, at times, be characterized by an “everything goes bias”: see Murphy 2010, p. 539; Aguilera 2013, p. 129. 121 Wilson 2011, p. 169. 122 Nice 2017, p. 27. 123 Bilsky 2004, p. 242. Steinitz notes that “[t]ransitional trials are, after all, trials about societies’ foundational violence, their bloody beginning, their founding or re-founding”: see Steinitz 2005, p 108. 124 Tromp 2016, p. 242.

6.5 Victory Over Truth

161

of the court is reduced because, from the perspective of that party, it loses one of its necessary conditions, its disinterestedness in the reasons that justify the factual findings.125 Nevertheless, even in cases of radical difference, the adversarial system, at a minimum, compels historical narratives to be aired openly and to be challenged robustly, thus bringing to light their strengths and limitations on the basis of the available evidence. Whereas a historian writing an account of a war may make a point, add a few supplementary footnotes, and then move on, ICTs return again and again to scrutinize a major speech, military order, or a key programmatic statement. The rigorous scrutiny and cross-examination of the evidence can contribute to creating a firm baseline of understanding of past events.126 Adversarial trials may feature “quite intense exchanges between counsel for the defence and the prosecution, with aggressive cross-examination of witnesses by both sides”.127 Some have argued that this may foment needless bitterness and antagonism128 and, as such, the legal standoff that such trials encourage may not be suitable for the examination of complex historical questions.129 Indeed, the prospect of cross-examination may induce some potential witnesses to stay away from criminal trials. For instance, even though there have been significant advances in ensuring the safety and protective measures for victims of sexual offences,130 victims of rape and other serious sexual crimes may be reluctant to testify in an international court.131 Moreover, expert witnesses, such as historians and social scientists, particularly those enjoying high status in their own fields, may also wish to avoid being called to testify. Evans observes that a hostile cross-examination may be a very discomforting experience for historians who are accustomed to qualifying their statements in various ways to indicate the varying degrees of certainty or conjecture with which they are made; yet the law demands clear-cut, definite, and unambiguous statements of a kind with which historians often feel uncomfortable. For the historian, it can be disconcerting to see carefully researched historical material ripped out of its context by clever lawyers and used as a bludgeon to beat the other side.132

As a result, Wilson notes that, if invited to provide testimony, some scholars may consider that the reputational risk that could result from cross-examination is one not worth taking. In spite of these limitations, however, some have noted that the 125 Stein

2008, p. 404. See also Ginet 1975, chap III. 2011, p. 220. 127 Schabas 2017, p. 234. 128 Osiel 1999, p. 42. Moreover, a vigorous cross-examination may lead even the most reliable witness to a state of confusion: see Koskenniemi 2002, p. 33. 129 Wood 1999, p. 124. 130 See generally Stover 2011. 131 Schabas 2012, p. 158. Jarvis and Vigneswaran refer to the issues of secondary victimization and the trauma of witnesses having to recount “their story multiple times and compounding any associated witness fatigue” as other reasons for which witnesses may be reluctant to provide testimony: see Jarvis and Vigneswaran 2016, p. 44. 132 Evans 2002b, p. 330. 126 Wilson

162

6 The Distinctive Approaches of History and Law

adversarial clash of the courtroom arena, together with the vaunted location of ICTs beyond domestic politics, could render the pursuit of justice and the search for truth complementary.133 Laudan notes that one of the functions for which the adversarial system is best suited is to give each side “a shot at undermining or otherwise calling into question the case presented by the other”.134 In the context of a civil case, Richard Rampton, who led the defence against David Irving, has suggested there is little difference between the approach of the civil lawyer and the historian. Both are searching for truth. However, the virtue of the court is that it speeds the process up, “exposes mavericks and puts to the test opposing arguments”.135 Osiel suggests, moreover, that the adversarial system may promote understanding of competing narratives, as the defendants are forced to justify themselves in response to prosecutorial accusations: [a]t the very least, through adversarial exchanges, when constrained by civility rules, we achieve a sense of lived experience that is mutual. With better luck, we gain some appreciation of how someone could, sincerely and in good faith, come to think so differently from us about something so fundamental to us both.136

Moreover, from the perspective of pluralism, the adversarial system has the merit of encouraging different actors to present and defend competing narratives and counternarratives of the past, on the basis of the available evidence. Simpson argues that this enables ICTs to give rise to complex, plural historical legacies, noting that: […] in a way, of course, international tribunals, if one takes into account the defence arguments, do produce plural histories. […T]o read the transcripts of the Miloševi´c trial, and in particular Miloševi´c’s defence submissions, is to get some sense of how a certain sort of extreme Serbian nationalism became so compelling to a large number of Serbs. This unauthorized or dissident history represents, also, the unauthorized legacy of the Tribunal.137

In this respect, Marrus points out that the adversarial approach is very different from the manner in which conventional historical research is undertaken because of the plurality of narratives that are presented at trial. This has the potential to produce rich, multivocal accounts. He states that: [p]erhaps the most obvious difference between what goes on at a trial and what conventionally occurs in historical expositions is that the account of the past which emerges in the former is the result of a contest between the prosecution and defense rather than the development of a narrative or the accumulation of evidence and argument that point in one direction. From the start, there is not one account of events, but two or more, depending of course, on how many persons are on trial […].138

In this sense, while as noted above, judges must ultimately adopt one, “authorised” and coherent account of the facts in their written judgment, if one looks at the 133 Peskin

2013, p. 778. 2006, p. 24. 135 Hunt 2004, p. 198. 136 Osiel 1999, pp. 42, 44–5. 137 Simpson 2015, p. 169. See also McAuliffe 2012, p. 364. 138 Marrus 2002, p. 229. 134 Laudan

6.5 Victory Over Truth

163

whole casefile, a plurality of narratives and explanations will emerge. And as Marrus notes, those who hope for a coherent account, told in “a clear voice, may well be disappointed”.139 Indeed, in the course of proceedings, Gewirtz argues that “reality” is constantly being disassembled and fragmented: one side’s narrative is constantly being met by the other side’s counternarrative (or sidestepping narrative), so that “reality” is always disassembled into multiple, conflicting, and partly overlapping versions, each version presented as true, each fighting to be declared “what really happened” – with very high stakes riding on that ultimate declaration. It is the fragmentation and contending multiplicities of narrative, regulated by special rules of narrative form and shaping, that mark the central distinctiveness of narratives at trial […].140

Bilsky sees this as a particular strength of criminal trials. She notes that in this way members of a minority group (such as criminal defendants or victims who are brought to testify) can advance “a ‘counterstory’ that can compete with the more dominant understanding of the basic values of society and otherwise is rarely heard”.141 The trial sometimes becomes the only public stage on which a political minority can express its criticism of the authorities (if only in a curbed way).142 Having said that, however, it would be misleading to suggest that all parties have an equal opportunity to present their narratives and/or that all narratives have an equal opportunity of being heard. One of the most common refrains in criminal justice is that there “is an ‘inequality of arms’ between the defense and the prosecution”.143 This inequality, to varying degrees, may include insufficient evidentiary rights, such as a denial of right to obtain exculpatory evidence.144 With reference to the Eichmann trial, for instance, Bilsky notes that “although the defendant enjoyed due process, the condition of plurality was frustrated by opening the trial to the testimonies of about a hundred Holocaust survivors while effectively blocking the defendant’s ability to bring witnesses on his behalf.”145 Moreover, Heinze points to another, more systemic reason as to why not all narratives receive equal attention. In his view: [e]xponents of a mainstream opinion enter the conversation with attitudes already strongly weighted in their favour; with, so to speak, countless hours ‘awarded’ to their opinion even before this particular event begins. No discussion about something as value-laden as a controversial historical event can start with a clean slate.146

As such, mainstream narratives have a head start over other counternarratives. In settings such as these, being on one side and not the other means that one is in a better position to speak the truth.147 Nevertheless, and in spite of these important 139 Ibid. 140 Gewirtz 141 Bilsky

1998, p. 8. 2004, p. 3.

142 Ibid. 143 Wilson

2011, p. 142. 2007, p. 272. 145 Bilsky 2004, p. 13. 146 Heinze 2017, p. 423. 147 Foucault 1975, p. 53. 144 Peterson

164

6 The Distinctive Approaches of History and Law

limitations, liberal criminal trials have been hailed as enabling a plurality of narratives and serving as one of the few places in which competing narratives may be presented and rigorously scrutinised. This process of examination and cross-examination of evidence, however, also entails the “irreducible risk” that subversive or revisionist narratives may be presented and, potentially, could prevail. Kirchheimer holds that the risk of subjecting history to the scrutiny of criminal legal procedure is a double wager.148 Not only might a defendant prevail, but even if a trial ends in conviction it may fail in its didactic aim.149 Koskenniemi characterised the paradox as: [t]his is the paradox: to convey an unambiguous historical ‘truth’ to its audience, the trial will have to silence the accused. But in such case, it ends up as a show trial. In order for the trial to be legitimate, the accused must be entitled to speak. But in that case, he will be able to challenge the version of truth represented by the prosecutor and relativise the guilt that is thrust upon him by the powers on whose strength the Tribunal stands. His will be the truth of the revolution and he himself a martyr for the revolutionary cause.150

As a result, some scholars and practitioners have been all too wary of the “irreducible risk” involved in liberal criminal trials and its possible implications for history-writing. Douglas has critiqued the framing of the adversarial system as a possible model for truth-seeking and historical inquiry. In his view, this is “fundamentally problematic” because, inter alia, of the opportunities it affords for denial, revisionism and defiling the memory of victims.151 He argues that by casting the trial as a truth-seeking device, Holocaust negationists are able to air their theories using the rhetorical conventions of judicial proceedings.152 In this way, the author states: [i]n light of the structural similarities between the discourses of deniers and of legal advocates, negationists will strategically formulate their claims to explore and exploit the grey zone of any judicial notice. And insofar as deniers often seem more interested in forcing a legal confrontation than in prevailing in court, one should be all the more wary of using the criminal law as a response to their odious, but not unresourceful, arguments.153

A broader critique of the adversarial system as a model for truth-seeking—one held by scholars and practitioners who see the adversarial system as promoting little more than an strategic contest—relates to its being more concerned with “victory rather than truth”.154 Indeed, its procedural rules can arguably serve to limit the ability to seek truth.155 This critique frames the adversarial model as a contest over the verdict.156 Writing in relation to US criminal courts, for instance, Justice 148 Kirchheimer

1961, p. 339. 2016, p. 20. 150 Koskenniemi 2002, p. 35. 151 Douglas 2005, p. 241. 152 Ibid., p. 235. 153 Ibid., pp. 255–6. See also Evans 2001, p. 239. 154 Haack 2014, p. xvii. 155 Fyfe 2019b, p. 291. The converse argument put forward by Goldman, however, has been that the legal system will produce the most truth and justice if individual lawyers advocate vigorously for their clients and do not seek to produce truth or justice: Goldman 1999, p. 295. 156 Waters 2010, p. 288. 149 Tromp

6.5 Victory Over Truth

165

Frankel states that “our adversary system rates truth too low among the values that institutions of justice are meant to serve.”157 In considering the truthfulness of the narratives emerging from trials, some have contended that these merely constitute a statement about the evidence presented at trial, rather than a statement about what really happened (or did not happen).158 Frankel notes that many of the rules and devices of the adversarial system are not geared for, and, indeed, are often aptly suited to thwart, the development of the truth.159 He challenges the view that, in the adversarial system, judges and lawyers “complement” each other, and enhance the possibility of hammering out the truth, through their respective roles as impartial/partisan, passive/active and reflective/imaginative.160 Rather, referring to the shop talk in judges’ lunchrooms, which “includes tales, often told with pleasure, of wily advocates who bested the facts and prevailed”,161 Frankel considers that the view that the adversarial system is well-suited for searching truth as a self-deception: [w]e proclaim to each other and to the world that the clash of adversaries is a powerful means for hammering out the truth. Sometimes, less guardedly, we say it is “best calculated to getting out all the facts…” That the adversary technique is useful within limits none will doubt. That it is “best” we should all doubt if we were able to be objective about the question. 162

At the international level, not every party in criminal proceedings is individually obliged to actively take part in the search for truth. Weigend argues that one can postulate that legal officials (judges and prosecutors) have an obligation to further, within the confines of their respective procedural roles, the determination of “true” facts, but the same obligation cannot be imposed on the defendant and his lawyer.163 However, prosecutors often also get drawn into the contest over truth. Wilson found that both defence and prosecution advocates engaged in legally motivated strategies “that distort the record and that result […] in polarized historical narratives that do not meet up.”164 And Bouwknegt argues that “prosecutors cherry-pick, infer, and frame – or arguably even mutilate – the historical narrative in such a way that best fits the charges and tells a coherent story.”165 In his interviews with advocates at the ICTR, Eltringham found that they were generally supportive of the Tribunal’s 157 Frankel

1975, p. 1032. 2019b, p. 294. 159 Frankel 1975, p. 1036. 160 Ibid., p. 1035. 161 Ibid., p. 1034. 162 Ibid., p. 1036. This scepticism about law’s ability to aim for truth is reflected in popular culture. For instance, in the 1998 film “A Civil Action”, directed by Steven Zaillian, reacting to the suggestion of the plaintiff’s lawyer that the jury will eventually “see the truth”, one of the lawyers for the defendants retorts: “[t]he truth? I thought we were talking about a court of law. Come on, you’ve been around long enough to know that a courtroom isn’t a place to look for the truth”. 163 Weigend 2011, p. 393. 164 Wilson 2011, p. 168. 165 Bouwknegt 2018, p. 129. 158 Fyfe

166

6 The Distinctive Approaches of History and Law

searching for truth and producing historical accounts of the conflict, but only insofar as such accounts were not advantageous to an opponent: […] we have a defence counsel who, in court, publicly declares he is preserving an “historical record,” but privately acknowledges that this is not his intention, and a prosecution counsel who welcomes the creation of a historical record, but chastises “interested parties” who would exploit this principle […].166

Moreover, it is not just the lawyers who are drawn into, and become implicated in, this contest, but also expert witnesses and fact witnesses more generally. As regards expert historians, one ICTY defence attorney noted that “[t]estimony by ‘historians’ in many, if not all, of these trials, has been used itself to manipulate and mold the view of which ethnic group is bad, according to which ethnic group has been the victim.”167 According to Hunt, “[d]espite their best efforts to rigorous, objective impartiality, every historian brings their own inimitable agenda to a case. Each side can choose their own historian.”168 And as regards victim witnesses, their testimony and personal truths are either presented or not for strategic purposes by lawyers “to achieve political goals.”169 This has led one prosecution respondent interviewed by Wilson to claim that under the adversarial system, “trial lawyers prefer a version of history that supports their case (they are not looking for objective (?) truth) […]. There is a tendency to produce ‘cooked history.’”170 As a result of the tactical use of truth in adversarial systems, Nice reaches the sobering view that: it can happen that judges compile judgments based on two opposing narratives – prosecution and defence – neither of which might be an accurate, or even a truthful, interpretation of facts and events. Yet the judges may have little choice but to make their final determination based on the persuasiveness of the evidence and legal arguments of one side and produce a judgment that will not tell the whole truth or the truth at all.171

6.6 Access to, and Engagement with, Evidence There is significant convergence in the way judges and conventional historians engage with sources and evidence, even though, as Ginzburg notes, words such as “proof”, which are central to the judicial model, have acquired in the social sciences “an unfashionable ring, evoking positivist implications”.172 Indeed, lawyers and historians share some notable similarities with respect to their approaches to evidence: 166 Eltringham

2009, p. 58. 2011, p. 168. 168 Hunt 2004, p. 197. 169 Bilsky 2004, p. 250. 170 Wilson 2011, p. 168. 171 Sir Geoffrey Nice, Master Class on Law, History, Politics and Society in the Context of Mass Atrocities, held in Dubrovnik, 10 July 2016, cited in Tromp 2018, p. 65. 172 Ginzburg 1991, pp. 79, 83. See also Allen 2008, p. 322. 167 Wilson

6.6 Access to, and Engagement with, Evidence

167

[b]oth explore the details of the particular while keeping an eye on the general implications of the case in question. Both weigh evidence and finely grade its value. Both carefully weigh their sources, distinguish between primary and secondary documents, and often grant greater weight to the former. Both use eyewitness testimony and search for corroborating documentary evidence. Ideally, both show sensitivity to the context of individual actions and the individual’s immediate social environment and historical context. Finally, both rely on overarching narratives to organize individual facts, visual images, and other forms of evidence into a coherent whole.173

On account of their status in the international system, as well as their resources,174 ICTs often have a comparative advantage when it comes to accessing and forensically examining evidence and primary sources over historians and other writers of history.175 This could in turn make the narratives that judges write more accurate and extensive, thus promoting greater understanding of the conflict. This is because such narratives would be based on information which would not otherwise have been easily accessible, and which may have never come to light or never have come to light so soon were it not for the criminal trial.176 For instance, ICTs have played a central role in locating and identifying mass graves and have undertaken large exhumation projects to recover and forensically examine mortal remains.177 They have also been pivotal in obtaining extensive documentary archives from governments that could otherwise have remained inaccessible.178 Moreover, at trial, parties and participants submit various expert reports that, when viewed together, constitute a valuable compendium on the origins and causes of mass conflicts.179 The historical importance of such evidence is apparent from cases such as Eichmann, which detailed the horror of the mass deportations and killings of Europe’s Jews primarily on the basis of trial transcripts, and exhibits admitted in evidence during the trial.180 And the Miloševi´c trial gave rise to “hundreds of thousands of 173 Wilson

2011, pp. 7–8. These similarities in engagement with sources, however, do not extend to radical historians, who rather approach evidence “as a wall, which by definition precludes any access to reality”: see Ginzburg 1991, p. 83. 174 Terris et al. observe that criminal court judges have perhaps the most assistance among the international courts they considered: “[t]hese institutions are well staffed by legal assistants, often young lawyers who see working with an international court as a rewarding professional interlude”: see Terris et al. 2007, p. 56. 175 Even though, as Combs notes, the access to such evidence may depend on the location of the crimes and, in particular, on the development level of a crime’s location: see Combs 2018, p. 232; Birkenkötter 2013, p. 195. 176 Nice 2017, p. 27. 177 Groome 2011, pp. 188, 191. 178 Wilson 2011, p. 18. 179 Ibid. See also Combs 2010, p. 21. 180 Gaynor 2012, p. 1258; Kirchheimer notes that “in wading through the evidence on mass annihilation and mass enslavement, those fact situations which we have since come to describe as genocide have established signs, imprecise as they might be, that the most atrocious offenses against the human condition lie beyond the pale of what may be considered contingent and fortuitous political action, judgment on which may change from regime to regime”: see Kirchheimer 1961, p. 341. While compelling victim-witnesses to testify could be beneficial for the historical record, this could also cause them secondary victimisation: see Moffett 2014, p. 79.

168

6 The Distinctive Approaches of History and Law

pages” of research, which had the makings of history.181 Indeed, even in an unfinished trial such as Miloševi´c, the trial proceedings could generate an extensive archive of testimonies, expert reports, transcripts, and other documentary evidence, which would otherwise have been difficult, if not impossible, to access.182 One thus comes to recognize, as did Karl Jaspers writing to Hannah Arendt, that hearing witnesses and collecting documents on such a scale and with such thoroughness, as happened in the Eichmann trial, “would not be possible for any researcher”.183 In spite of their ability to access broader evidentiary sources, however, ICTs also face significant constraints with respect to access to evidence. Though, admittedly, these constraints are not unique to ICTs alone, but would probably hinder the efforts of any writers of history seeking to engage with similar sources. Writing in relation to the Miloševi´c trial, Tromp, who served as a member of the Leadership Research Team at the ICTY and was the principal researcher in the team prosecuting Slobodan Miloševi´c, catalogues systematic obstruction in obtaining critical evidence, particularly from the official archives of the Federal Republic of Yugoslavia (FRY) and Serbia.184 Others States and international organisations have also refused to furnish critical evidence to the ICTY or have sought to suppress evidence in various ways.185 From this, Tromp concludes that the inability of ICTs to access critical information that a State or international organisation may consider sensitive has to be seen as part of the reality of the workings of ICTs, and this limitation has to be borne in mind when considering the historical narratives they may produce. Because of the systematic obstruction and lack of access to significant categories of evidence, it is likely that the historical narratives written by judges of the ICTs will contain lacunae with respect to key, politically-sensitive areas and, in critical respects, such narratives may be deemed partial and selective: [a] problem for users of the Miloševi´c trial record is that states and international organisations simply cannot be relied on to tell international courts the whole truth or not to corrupt international courts’ processes by forcing them to indict or not to indict someone, by keeping evidence from the courts or by forcing evidence onto the courts. States in particular are likely – bound perhaps – to do these things in their own interests and there is not a lot of point in being upset about it. That is what states do and always have done. What is important for academic, journalistic, and other users of an international court’s record is to be able to rely on its integrity despite the vulnerabilities of such courts to this form of corruption.186

181 Tromp

2016, p. x; An expert witness interviewed by Wilson considered that ‘The process of international criminal justice at the ICTY, and the testimony and evidence that it has produced has added significantly to the available historical evidence concerning events in the former Yugoslavia during the final decades of the twentieth century’: see Wilson 2011, p. 169. 182 Tromp 2016, p. xi. 183 Arendt and Jaspers 1992, p. 411. See also Eltringham 2009, p. 73. Adler notes that “tribunals excel at facilitating access to testimonies that might otherwise have been inaccessible. This alone makes the record they create an indispensable source […]”: see Adler 2018, p. 5. 184 Tromp 2016, p. 23. 185 Vergès 2002, p. 25. See also Wilson 2011, p. 41. 186 Tromp 2016, pp. 273–4.

6.6 Access to, and Engagement with, Evidence

169

In some cases, as Kersten argues, “cooperating with unsavory belligerents may just be the only ‘pragmatic’ approach if agencies and institutions are going to get evidence”.187 However, as “giants without arms and legs”, ICTs remain very much dependent on the cooperation of States and international organisations for the production of such evidence.188 Writing in relation to the ICTY, Nice asks: [h]ow could it ever have been realistic to expect a court system stuck in a remote northern European country, with no police force and limited powers of securing documents from states that had been at war, to rely on the good will of these states to help to prove cases against their own nationals? Especially unrealistic if, as for ICTY cases, delaying tactics allowed postponement of provision of documents for up to five years, during which time other documents could be created and originals destroyed.189

From the perspective of truth-seeking, therefore, these constraints give rise to significant limitations because, inevitably given vested interests and realpolitik, not all relevant States, international organisations and other agencies engage in the legal process with a genuine desire for truthfulness: [t]here are examples, at national and international courts dealing with mass atrocities, of outside interventions by States aiming to suppress evidence, to undermine truth, and to create a counter-narrative for various reasons. States might act other than in the genuine pursuit of justice, even when they are compelled to cooperate with international criminal tribunals and courts to open State archives, to make documentary evidence available at trials, and to facilitate access to witnesses by the threat of United Nations or European Union sanctions. If so, and in order to avoid being sanctioned, the States might engage in a subtle play of appearing to cooperate, while in reality trying – sometimes with marked success – to keep damaging evidence from a court and from the public. There can be no doubt that the cooperation of States when it comes to the production of evidence is of paramount importance for the success and integrity of mass atrocities trials.190

Writing specifically with respect to the ICTY experience, Tromp notes that ICTY prosecutors did not have full or easy access to documentary material from the archives of former leader Miloševi´c’s country. Documents from the official archives of the FRY and Serbia, considered more important from a forensic point of view than open source materials, were difficult and sometimes impossible to obtain.191 Nice suggests, moreover, that States sought to manipulate evidence “to affect not just criminal trials but the history of the conflicts”.192 Indeed, atrocity trials may become sites of “ontological security-seeking struggles”, as different States would supress or grant access to key categories of evidence in accordance with the stories they wish to tell or for other strategic reasons.193 In this respect, Tromp states that Serbia’s cooperation strategy in relation to the ICTY focused on keeping as much evidence 187 Kersten

2014. 1998, p. 13. 189 Nice 2017, p. 56. 190 Tromp 2018, p. 74. 191 Ibid., p. 75. 192 Nice 2017, p. 59. 193 Malksoo 2017, pp. 92–3. 188 Cassese

170

6 The Distinctive Approaches of History and Law

as possible in the Miloševi´c trial from public exposure if it was judged that it could be of use to Bosnia and Herzegovina in a separate dispute that was being pursued at the ICJ.194 Moreover, it is not just the suppression of evidence which poses a danger to the accuracy of the emerging narratives. Another danger arises from the pervasive risk of perjury and fabricated/manipulated evidence. According to Murphy, in any trial for crimes arising from armed conflict, this danger is inevitable, and at the same time potentially fatal to the integrity of a trial.195 According to Nice and Tromp, both of whom have had direct working experience at the ICTY, the systematic suppression and manipulation of evidence by States and international organisations is a reality which needs to be taken into account when considering the historical narratives created by ICTs. The lack of access to significant evidence will give rise to important blind spots in the emerging narratives which would generally tend to selectively understate or downplay the role of particular players/events in a conflict. This fact indicates that the structural and geopolitical environment in which ICTs operate is also a very important factor in considering the kinds of historical narratives that they may write. This is because these structural and geopolitical factors will, in practice, significantly constrain the scope of the truth inquiries that ICTs will be able to pursue.196 Douglas posits that we can generally agree that “the historical and political realities in which courts operate serve to shape, and arguably to misshape, history and memory in the courtroom”.197 There is a rich and abundant literature on the role of the “political” in criminal trials.198 While some legal practitioners cling fiercely to the ideal of the apolitical judge who operates in a safe space beyond the reach of the political,199 Terris et al. argue that it is better for international judges to be aware, involved and strategic about the political engagement of their courts, rather than to pretend that those political implications do not exist: [t]he best protection of judicial independence and the rule of law is transparency – an open recognition of politics and forthright discussions of the strategies that judges use to preserve the law and minimize interference […]. Judicial independence may be the cornerstone of justice, but every international court is highly dependent in one critical respect: the money and resources it takes for it to function. International courts are complicated, expensive endevors, and they depend for their budgets on the annual largesse and the goodwill of governments and intergovernmental organizations […]. Money issues are most salient in the criminal courts, by far the most expensive enterprises in the international justice system.200

194 Tromp

2018, p. 75. 2010, p. 542. 196 Levi et al. 2016, p. 290. 197 Douglas 2006, p. 516. 198 See generally the discussion and references in Tromp 2016, p. 16; Bilsky 2004, p. 2; Shklar 1986, p. 111; Peterson 2007, p. 268. 199 Terris et al. 2007, pp. 149–50. 200 Ibid., p. 150, 160. 195 Murphy

6.6 Access to, and Engagement with, Evidence

171

Wilson outlines numerous ways in which States may influence and even distort the work of ICTs. At one level, States may seek to influence such work through their powerful allies on the UN Security Council and the willingness of this organ to insist that recalcitrant States cooperate with investigations.201 At another level, States can and do obstruct the work of ICTs on practically a daily basis in visible202 and less visible ways.203 Indeed, Whiting, who worked at both the ICTY and the ICC, notes that, at the ICC each investigation is largely shaped by the constraints and opportunities peculiar to the situation at hand.204 Although ICTs enjoy an operational autonomy that allows them greater latitude to undertake probing historical investigations of past crimes than, for instance, domestic courts, political considerations influence various aspects of their work, from the initiation of investigations, the development of prosecutorial strategy,205 through to the completion strategy.206 In addition to such external constraints on the truth-seeking function of ICTs, the internal rules of procedure and evidence of any given court or tribunal also shapes their ability to search for truth. It is here that the approaches of law and history tend to diverge in significant ways. As Evans notes, legal rules of evidence are often very different from their historical equivalents.207 The rules on the admissibility of evidence in the courtroom “goes to the heart of a legal system’s understandings of probative value and fact, the building blocks of knowledge about an armed conflict”.208 From the perspective of truth-seeking, therefore, the manner in which the specific rules of evidence in a given court or tribunal operate and influence the search for truth, and how they are, in turn, influenced by other non-epistemic policy values, such as fair trial considerations and expeditiousness, is of significance. As noted, in his analysis of the US criminal justice system, Laudan undertook a systematic analysis of different rules of procedure and evidence, to identify those that were truth-conducive or truth-thwarting. He concluded that, although it is often harder than it might seem to figure out whether a given evidential practice or procedure is truth-promoting or truth-thwarting, the US criminal justice system was not a system

201 Wilson 2011, pp. 36, 39. In this respect, Derrida notes the impotence of international organisations

such as the United Nations vis-à-vis powerful states: see Derrida 2004, p. 114. 202 For instance, States may simply deny entry visas to members of the prosecution team, preventing

them from visiting their jurisdictions for the purpose of an investigation. In April 2019, the US denied a visa to the ICC Prosecutor who, at the time, was undertaking a preliminary examination on Afghanistan: see France-Presse 2019. 203 Wilson 2011, p. 40. 204 Whiting 2013, p. 163. 205 Levi et al. 2016, pp. 294–5. 206 Wilson 2011, p. 60. 207 Evans 2002b, p. 330. Though elsewhere, writing in relation to his experience as an expert witness in a civil trial, the author wrote “the rules of evidence in court were not so very different from the rules of evidence observed by historians”: see a, p. 198. 208 Wilson 2011, p. 49.

172

6 The Distinctive Approaches of History and Law

that “anyone concerned principally with finding the truth would have deliberately designed”.209 Admittedly, Laudan’s findings are not directly applicable to international criminal procedure, given that the latter is appreciably more lenient with respect to the admission of various types of evidence (including historical expert testimony and hearsay evidence).210 Indeed, the approach to evidence at ICTs has been described as: flexible, liberal and unhindered by technical rules found in national and particularly common law systems. Professional judges try both fact and law and there is no need to protect jurors from lay prejudice.211

Khan and Dixon submit that more flexible rules of evidence are needed at ICTs to control the presentation and admission of evidence in cases involving “complex factual scenarios, with potentially hundreds of witnesses and thousands of exhibits”.212 The jurisprudence of the ad hoc Tribunals has time and again emphasized the need for such flexibility. For instance, in Blaški´c, the ICTY judges held that, “barring exceptions, all relevant evidence is admissible, including hearsay evidence”.213 Similarly, in Blagojevi´c and Joki´c, the ICTY Trial Chamber noted that “[r]ule 89(C) of the Rules provides that the Trial Chamber ‘may admit any relevant evidence which it deems to have probative value.’”214 In Musema, the ICTR Trial Chamber ruled that hearsay evidence may be admissible even when it is not corroborated by direct evidence.215 Cryer et al. observe that, also at the ICC, the rules allow for a flexible approach to evidence, given that the complex factual situations, large amount of evidence, and difficulties in obtaining it, are all reasons for allowing such flexibility.216 These differences in the rules of evidence between domestic and international criminal courts may, therefore, mean that, in some respects, the rules of ICTs are potentially more truth-conducive on account of their greater flexibility. For instance, Douglas argues that by relaxing bars against hearsay and rules controlling relevance, the rules of evidence of ICTs seek to strengthen “the law’s truth-seeking powers without sacrificing principles of due process”.217 Nevertheless, the rules of evidence at ICTs serve to constrain the admission of several kinds of sources that historians regularly rely on. Marrus observes: [w]riters of history have long understood that in a liberal system of justice, courts are forbidden to hear evidence that is commonly used by historians, that indeed is vital in shaping 209 Laudan

2006, p. 4.

210 ICTY, Prosecutor v. Vidoje Blagojevi´ c and Dragan Joki´c, Judgment, 2005, IT-02-60-T, para 21. 211 Cryer

et al. 2007, p. 383. and Dixon 2009, p. 680 (9–1). 213 ICTY, Prosecutor v. Blaški´ c, Decision on the Standing Objection of the Defense to the Admission of Hearsay with No Inquiry as to Its Reliability, 1998, IT-95–14-T, para 10–12. 214 ICTY, Prosecutor v. Vidoje Blagojevi´ c and Dragan Joki´c, Judgment, 2005, IT-02-60-T, para 20. 215 ICTR, Prosecutor v. Alfred Musema, Judgment and Sentence, 2000, ICTR-96-13-A, para 43. 216 Cryer et al. 2007, p. 383. 217 Douglas 2016, p. 42. 212 Khan

6.6 Access to, and Engagement with, Evidence

173

historical opinion on issues great and small. Hearsay, third-party accounts, inconsistent fragmentary testimony, reports about the general atmosphere, the deeds of others or the tone set by leaders – these and other strands of evidence are woven into historical accounts to help “explain” how terrible events happen. But lawyers protest regularly against the inclusion of such evidence in trials, and judges, following the rules of evidence in particular systems, regularly accept their arguments.218

Moreover, there may be additional constraints on the evidence that ICTs are able to admit in criminal proceedings, resulting not so much from the rules of evidence themselves than from the need to balance truth-seeking against other non-epistemic policy values. In some cases, the sheer quantity of factual and historical evidence available will mean that judges handling vast quantities of evidence will often decline to admit certain categories of such evidence, for reasons of expeditious trials (particularly in light of completion strategies).219 As discussed in Chap. 7, devices such as adjudicated facts may also be used for the sake of promoting expeditious trials.220 Through these devices, judges accept, without formal proof, the truth of particular assertions.221 Moreover, judges may decide not to admit evidence if its probative value is substantially outweighed by the need to ensure a fair trial. In addition, ICTs may also decline to admit in evidence historically-significant material on grounds that historians would surely dismiss as technical, for example: that it was not tendered during the prosecution case and was ‘not sufficiently probative’ to warrant admission during the defence case; that it should have been shown to a witness who might have been in a position to comment on it during the prosecution case; that it was not disclosed on time to the opposing party; that it has not been tendered through a witness who can speak to its authenticity; that it is the record of a person who was not advised of his rights as a suspect before questioning; or for more mundane reasons, such as a failure to specify which pages of a long document are sought for admission, or a failure to upload the document into the court’s electronic system.222

There are various other rules and policies that tend to limit or exclude potentially significant evidence from the trial, thus, impacting on the historical narratives that ICTs may produce.223 One such policy in this regard is the plea agreement procedure, whereby the prosecution and defence agree to the removal of certain counts from an indictment, and to recommend a certain sentencing range, in exchange for a plea of guilty.224 Such agreements have the potential to promote expeditiousness but also to distort the historical narratives.225 For instance, in Plavši´c, though the accused was 218 Marrus

2002, p. 231. 2012, p. 1266. See also Wilson 2011, p. 60. 220 Wilson 2011, p. 30. For a discussion of such presumptions from the perspective of legal epistemology, see Petroski 2008, p. 388. 221 Teitel 2002, p. 106. For a critique of the use of adjudicated facts, see Cavoški ˇ 2002, p. 77. 222 Gaynor 2012, p. 1270. 223 See Ibid., p. 1263; Wilson 2011, Chap. 3. 224 Gaynor 2012, p. 1268. 225 Drumbl 2003, p. 179. 219 Gaynor

174

6 The Distinctive Approaches of History and Law

originally charged with the crime of genocide, following a plea bargain, the genocide charges were dropped and the accused admitted, and was sentenced for, persecution.226 Thus, her involvement in any acts of genocide (the original charge), remains unknown.227 The “factual basis” which accompanies a plea agreement, signed by the accused, often provides “a compelling and detailed description of the logistical preparations preceding the crime in question, which is evidence that neither the prosecutor nor the historian might be able to obtain otherwise”.228 However, the evidentiary record resulting from a guilty plea is much shorter than that resulting from a full trial and Scharf has argued that, from the perspective of accused persons, such an agreement is not seen as an act of truth-telling but as a self-interested compromise in return for judicial benefits.229 The truth claims such plea agreements contain would, therefore, have to be seen in this light. As an example, Jarvis and Vigneswaran have pointed out that such plea agreements are a potential pressure point for sexual violence charges because crimes viewed as more serious or easier to prove may be prioritized to the detriment of crimes considered less serious or too difficult or resource intensive to prosecute. The accused may also have a particular incentive to avoid crimes which label them in a particular way, such as sexually deviant, giving rise to additional pressure to drop sexual violence charges.230 Thus, there is a risk that charges of, for instance, sexual violence would be “bargained away” in plea agreements, which of course would impact the emerging narratives and would give rise to significant blind spots.231

6.7 Closed Universes Another key tension between law and history is that, while law seeks closure and certainty, history’s impulse is to produce contestability, “a cycle of perpetual challenge (whether by simple accretion, by correction, or by reinterpretation) to received accounts of past events”.232 Or, as Douglas puts it: “[t]he truths of history are tentative, available for complex amplification, retraction, and correction. The law, by contrast, frames its conclusions in the form of a verdict backed up by the coercive apparatus of the State.”233

226 ICTY,

Prosecutor v. Plavši´c, Sentencing Judgment, 2003, IT-00-39 & 40/1-S. 2006, p. 271. 228 Gaynor 2012, p. 1269. 229 Scharf 2004, p. 1080. 230 Jarvis and Vigneswaran 2016, pp. 62–3. 231 Ibid., p. 68. 232 Havel 2005, p. 675. 233 Douglas 2016, p. 41. 227 Naqvi

6.7 Closed Universes

175

Osiel locates history’s impulse towards perpetual challenge in Western liberal perspectives and the willingness continuously to attack and revise intellectual foundations, to question even those commitments seemingly “constitutive” of collective identities. According to the author: [t]he capacity for critical self-scrutiny of the most thorough sort, to admit that “we were wrong”, then, is not altogether foreign to us. In fact, it is clearly a source of pride and self-confidence in those invoking this cultural capacity to distinguish the West from the rest.234

From this perspective, the approach of contemporary historical theorizing, which presumes the inevitability of change in historical interpretations contrasts sharply with aims of criminal trials. Legal judgments necessarily aspire to a degree of finality that historians’ interpretations do not.235 A number of legal doctrines are designed to prevent courts from re-evaluating, again and again, particular facts and the issues they raise and to promote legal certainty. These include res judicata, stare decisis, double jeopardy, statutes of limitations, and restrictive standards of appellate review. According to Osiel: [f]or most legal disputes, society’s interests in finality are weighty. It is true, of course, that legal disputes continue over the scope and contemporary relevance of a particular precedent, for instance. The opinion’s meaning thus often comes to be revised by later litigation. But stare decisis (the duty to follow precedent), as actually employed, tends to provide about as much stability as anyone would want or expect in a modem industrial democracy.236

The principle of legal certainty constitutes one of the fundamental elements of the rule of law which requires, inter alia, that where a court has finally determined an issue, “its ruling should not be called into question”.237 This is so even in cases where historically significant evidence may subsequently come to light, if it does not significantly impact the legal determination. For instance, in the area of human rights law, the hold of legal certainty was evident in Ireland’s bid to review a 1978 decision of the European Court of Human Rights (ECtHR). In 2018, Ireland submitted a request to the ECtHR to review the Ireland v. The United Kingdom judgment, in light of new historical evidence which emerged as a result of documents released into the public archives by the United Kingdom between 2003 and 2008.238 In the 1978 judgment, the ECtHR had found that the interrogation techniques of the UK government on fourteen individuals amounted to inhuman and degrading treatment in breach of Article 3 of the European Convention on Human Rights (ECHR), but had not risen to the level of torture.239 In considering the applicable standard for re-evaluating its previous judgment, the ECtHR held: 234 Osiel

1999, p. 177. 2002, p. 104. 236 Osiel 1999, p. 216. 237 ECtHR, Ireland v. The United Kingdom, Judgment (Revision), 2018, Application no. 5310/71, para 122. 238 Iulia Padeanu 2018. 239 European Court of Human Rights, Ireland v. The United Kingdom, Judgment, 1978, Application no. 5310/71. 235 Teitel

176

6 The Distinctive Approaches of History and Law

[s]ubjecting requests for revision to strict scrutiny, the Court will only proceed to the revision of a judgment where it can be demonstrated that a particular statement or conclusion was the result of a factual error. In such a situation, the interest in correcting an evidently wrong or erroneous finding exceptionally outweighs the interest in legal certainty underlying the finality of the judgment. In contrast, where doubts remain as to whether or not a new fact actually did have a decisive influence on the original judgment, legal certainty must prevail and the final judgment must stand.240

The ECtHR ultimately dismissed Ireland’s request for review because, inter alia, it could not be said that the new evidence which Ireland put forward “might have had a decisive influence on the Court’s finding in the original judgment”.241 Thus, the 1978 judgments characterising the interrogation techniques of the UK government as inhuman and degrading treatment, but not amounting to torture, still stands. Arguably, in light of the newly-released documents, historians analysing the same evidence, and not constrained by the dictates of legal certainty, would have reached a different conclusion. Indeed, there is no expectation of fixity in the realm of historical understanding. According to Marrus: […] while the judgments of courts are fixed and cannot be revised except upon appeal, historiography moves, and most historians expect it to move. Invariably, our sense of historical events changes with the passage of time. New evidence, a broadening of context, a new generation of questions and questioners have their effect.242

Thus, whereas legal judgment aims at finality, history can be more fluid. Later developments alter the concerns that future generations will bring to bear in reexamining the events in question.243 Osiel argues that, if historical writing does not aspire to finality, this is not because it lacks the law’s authoritative imprimatur. It simply faces powerful obstacles, ones that the law confronts as well. Judges analysing events in the immediate aftermath of a conflict must content themselves with uncovering the basic facts and offering them a quick gloss. Historians seek, in contrast, to fit such facts into a larger interpretive framework, encompassing preceding and subsequent events. Later events inevitably alter the meaning of prior ones, disclosing certain features of the historical landscape as far more significant than they appeared to participants at the time, others far less.244 In this respect, it would be unrealistic (and unfair) to expect judges to produce final and authoritative accounts of such conflicts, something that neither the most thoughtful journalism nor the best historical scholarship can be expected to accomplish.245

240 ECtHR,

Ireland v. The United Kingdom, Judgment (Revision), 2018, Application no. 5310/71, para 122. 241 Ibid., p. 137. 242 Marrus 2002, p. 235. 243 Osiel 1999, pp. 217–8. 244 Ibid., p. 220. 245 Ibid., p. 218.

6.7 Closed Universes

177

The principle of legal certainty protects the non-epistemic policy values of finality, stability and certainty, and also safeguards against revisionism, all of which are important societal values.246 However, as seen from the Ireland v. The United Kingdom case, from the perspective of truth-seeking, it significantly raises the bar with respect to revisiting legal judgments in light of new historical evidence.247 This gives rise to a key tension between, on the one hand, the interests of law to establish certainty and foreclose the continual re-assessment of legal determinations and, on the other hand, the interests of history to promote the constant reconsideration and reassessment of the past.248 At this stage, it is important to emphasize, however, that while, undoubtedly, the historical narratives established in legal judgments are more fixed than historical interpretations of the same events, we should not overstate the matter. Sander argues that, actually, the historical narratives of ICTs may be re-evaluated, and narrative pluralism promoted in more ways than one, and focusing only on the appellate procedure would furnish an incomplete picture. He notes, for instance, that the understanding of the Rwandan genocide at the ICTR has evolved over time, as a result of discrepancies concerning the evidence that was put before different ICTR Trial Chambers and the scrutiny to which it was subjected in different cases.249 Thus, in addition to formal revision techniques such as the appeals procedure, narrative pluralism may arise within ICTs both across different courts and within the same court, through subsequent interpretations.250 Similarly, Douglas suggests that “legal understandings can be revised through a process of juridical restagings, in which a latter-day trial (for example the Barbie proceeding) revisits and revises the issues considered in its precursor (Nuremberg).”251 The author makes the point that: [a]s this prosecutorial programme unfolds – as prosecutors, judges, and other legal actors master the learning curve of complex crimes – atrocity trials typically come to frame a richer, more nuanced treatment of the larger historical complex. By placing the destruction of European Jewry at the legal fore of the proceedings, the Eichmann trial revised and refi ned the history of Nazi extermination presented in incomplete fashion at Nuremberg. In the case of French atrocity trials, the very definition of crimes against humanity – and the role that the Vichy state played in these crimes – became increasingly refined from the Barbie trial to the Touvier trial to the Papon trial.252

This is an important point that suggests that one should not overstate the fixity of historical narratives in legal judgments. Indeed, if one were to cast the net more

246 See

Evans 2002a, pp. 118–9; Evans 2001, p. 238. an example of historical errors that persisted in later trials and judgments of the ICTY, see Wilson 2011, p. 75. 248 Schabas 2012, p. 172. This question is discussed further, in the context of responsible history, in Chap. 7. 249 Sander 2018, p. 555. 250 Ibid., p. 547. 251 Douglas 2005, p. 4. 252 Douglas 2016, pp. 46–7. 247 For

178

6 The Distinctive Approaches of History and Law

broadly, beyond courts and tribunals, it is possible to see that the historical interpretations of legal judgments have been contested and “restaged” by other transitional justice mechanisms. In Sierra Leone, for instance, an internationalised criminal tribunal (the Special Court for Sierra Leone) and an internationally-supported truth commission (the Truth and Reconciliation Commission (Sierra Leone)) operated in parallel.253 Schabas observes that the two institutions did not come to a common understanding of the history of the conflict in Sierra Leone: [t]he Court has tended to emphasize external causes for the conflict, such as political manipulation by foreign political leaders and the international diamond trade, while the Commission’s conclusions focused on internal factors, such as governance for several decades by a corrupt oligarchy. It is not apparent that the different perspectives of the Truth and Reconciliation Commission and the Special Court can be explained by differences in their mandates or their structures. Rather, this is probably attributable to the assessments of the individuals who were involved.254

Thus, the Truth and Reconciliation Commission challenged the historical narratives of the Special Court and vice versa. From this perspective, the fixity of ICTs’ historical narratives may be seen as more fluid and open to challenge than they could, at first glance, appear to be. Indeed, Bilsky argues that the finality of a court’s judgment is often seen as the main obstacle to an ongoing debate about history. However, in her analysis, she finds that trials are “not closed universes”, and that court judgments, though determining the results of specific cases, were not the final word on the historical truth.255 This is particularly so in cases where new historical evidence may emerge after the trial. For instance, Tromp notes with respect to the conflict in the former Yugoslavia that the majority of the records of Serbia’s Supreme Defence Council (SDC), one of the highest State bodies in charge of commanding the armed forces, for the year 1995 (the year that the Srebrenica genocide took place), have never been handed over and are still missing from the narratives of that conflict. The author asserts that: [o]nce they appear by chance or by deliberate search in the future, historians might have the last word in reconstructing of sequence of the events and decisions that had led to genocide. This is where historians may take the lead and continue filling the gaps and answering the open questions about the individual responsibility of the Serb politicians and military, as well as of Serbia as the State, for the crimes of genocide that occurred in Bosnia and Herzegovina from 1992 to 1995.256

6.8 What Kinds of Narratives Do Judges of ICTs Write? In light of the distinctive epistemologies and methods of law, as discussed in Chap. 2, some scholars have argued that the pursuits of law and history are incompatible and 253 Schabas

2012, p. 169.

254 Ibid. 255 Bilsky 256 Tromp

2004, p. 256. 2018, p. 75.

6.8 What Kinds of Narratives Do Judges of ICTs Write?

179

ICTs are not appropriate sites for writing historical narratives. According to this view, ICTs merely serve as agents of collective memory or, at best, as writers of esoteric kinds of “trial” truths, far removed from “ordinary” historical truths. Thus, for instance, Mirrow concluded that “forensic truth is not the same as truth sought by academic historians. […T]here is an inherent incompatibility between the forensic goal of the best possible result given the time limits of a judicial proceedings and the ‘true’ result sought by the historian regardless of the time constraints.”257 Other historians, such as Rousso, have gone further, arguing that rather than producing historical truths, criminal trials serve primarily, if not exclusively, as agents of collective memory.258 There are several definitions of “collective memory” in the literature.259 Speaking broadly, this concept denotes the ways in which the past is reconstructed with a view to the present.260 For instance, Teitel observes that collective memory is a process of “reconstructing the representation of the past in the light of the present”.261 This process of reconstruction often involves political undertones, relating to the political means by which events “are classified, commemorated, or discarded to influence community values and attitudes”.262 It is undeniable that history and collective memory are closely linked. Their relationship has been variously described as “complementary”,263 “interdependent”,264 “entangled”,265 “vexed”,266 “theoretical[ly] challeng[ing]”,267 and even “suspicious”.268 In the context of criminal justice scholarship, history and collective memory are often referred to collectively. For instance, in her study of the Miloševi´c trial, Tromp asks, “what sort of contribution to the historical narrative and collective memory can one expect from judgments[?…].”269 Drumbl posits that “[p]rosecution and punishment in response to extraordinary crimes can […] serve a broader didactic purpose that meets the interests of history and memory.”270 And, Osiel notes that “prosecutors and judges are inevitably understood to be engaged in “writing history”

257 Mirrow

2001, p. 243. in Evans 2002b, p. 333. 259 Wood 1999, p. 1. See also Kansteiner 2002, p. 179; López 2015, p. 806. 260 Confino 1997, p. 1386. 261 Teitel 2002, p. 70. See also Osiel who asserts that “[c]ollective memory…consists of the stories a society tells about momentous events in its history, the events that most profoundly affect the lives of its members and most arouse their passions for long periods”: Osiel 1999, pp. 18–9. 262 Belavusau and Gliszczy´ nska-Grabias 2017, p. 2. 263 Hasian and Frank 1999, p. 97. 264 Maier 1993, p. 143. 265 Sturken 1997, p. 3. 266 Wood 1999, p. 115. 267 Kansteiner 2002, p. 184. 268 Nora 1989, p. 9. 269 Tromp 2018, p. 62 (emphasis added). 270 Drumbl 2003, p. 175 (emphasis added). 258 Cited

180

6 The Distinctive Approaches of History and Law

and influencing collective memory, whether or not they so intend.”271 At the very least, this would suggest that the two are very closely interlinked in the work of ICTs. However, even though history and collective memory are linked, Maier emphasizes that they are not identical.272 Gereboff puts forward three propositions that may serve to distinguish historical research from collective memory: 1. Collective memory relates a meta-narrative that depicts a sequence of events with a clear pattern, generally one of repetition or progression. The narrative discloses the meaning of the emplotted events. These events self-evidently appear to be the only significant occurrences from the past. Criteria for their selection, or comments disclosing that selections have been made, are not included in such accounts. By contrast, critical historical research does not posit that the totality of events neatly fit together to yield a singular story. For historians, occurrences are not inevitable, nor do they reveal one, or necessarily, even any lesson. Historians must explain their selection of certain events and factors as significant. Appeals to theoretical models often reveal the reasons for these choices. 2. Collective memory defines and justifies the community of memory that reports it. Historians fundamentally address other professional historians, and are in search of historical knowledge. Accordingly, historians do not begin their investigations with a vested interest in any particular finding. They are not concerned with the implications that their conclusions may have for the identities of the peoples they are discussing. 3. Collective memory is created, recreated and transmitted through a large complex of interlocking societal institutions that function organically. Most often these narratives about the past are “declared” in various ritual settings in which there is little analysis of whatever evidence may be cited in support of the recollections. On the other hand, the conclusions of historians emerge from the careful dissection of data, an approach that does not presuppose the veracity of any type of information. Historical results, therefore, are generally tentative and incomplete; often a matter of probabilities rather than complete certainty.273 These propositions offer a convenient starting point to assess the narratives produced by ICTs, to consider whether, as Rousso has contended, ICTs are solely concerned with shaping collective memory, rather than writing history. What becomes immediately clear is that the narratives written by ICTs do not fit neatly in any one category. The approaches of ICTs would thus appear to include elements of both writing history and shaping collective memory. For instance, with respect to the first proposition (selection of events), as discussed in Chap. 4, the selection of cases and events to be prosecuted would follow particular models (such as the prosecutorial strategy), but would also likely be influenced by external pressures and considerations. The process of selection would also be characterised by internal and

271 Osiel

1999, p. 241 (emphasis added). 1993, p. 143. 273 Gereboff 1997, pp. 44–5. 272 Maier

6.8 What Kinds of Narratives Do Judges of ICTs Write?

181

external exclusions, some of which may appear arbitrary.274 In some cases, such as Eichmann, the prosecutorial strategy was decidedly verging towards shaping collective memory, in order to draw the big picture of the Jewish tragedy.275 In other cases, however, the events selected by the prosecution appear to have been less “emplotted”, with the prosecutor aiming towards “representative” charges. Moreover, even in cases where the prosecutor and/or defence may seek to push a didactic agenda, it is the role of international judges to manage the trial proceedings and defend legal form, thus maintaining, as Douglas notes, a delicate equilibrium.276 With respect to the second proposition (generation of historical knowledge), while as noted, in the adversarial setting of a criminal trial, the parties have a clear vested interest in the case and would be more concerned with victory rather than truth, the trial process itself promotes the rigorous testing of competing evidence, thus giving rise to important insights and historical knowledge about conflicts. In this sense, the role of international judges could be said to resemble that of historians, insofar as judges seek to understand the charged conduct in its broader historical context on the basis of evidence. According to Habermas, even though in the courtroom, parties are not necessarily committed to the cooperative search for truth, and they can pursue their interest in a favourable outcome through “the clever strategy of advancing arguments likely to win consensus”,277 their respective submissions contribute to the judges’ search for an impartial judgment. In his view: each participant in a trial, whatever her motives, contributes to a discourse that from the judge’s perspective facilitates the search for an impartial judgment. This latter perspective alone, however, is constitutive for grounding the decision.278

Wilson observes that the rigorous scrutiny and cross-examination of historical evidence in criminal trials can contribute to creating a firm baseline of understanding of past events.279 However, unlike historians, judges will eventually need to adjudicate on the guilt or innocence of the accused and, in so doing, will need to embrace one account to the exclusion of others. Moreover, any historical knowledge generated by ICTs will be filtered through the cognitive lenses of the courts and tribunals, discussed in Chaps. 3 to 5. It will also be influenced by the constraints and limitations of the specific rules of procedure and evidence of a given court or tribunal. Finally, as noted, any truth-seeking aims will have to be balanced off against the other, non-epistemic policy values of criminal trials. And with respect to the third proposition (engagement with evidence), Wilson points out that judges and historians share some notable similarities with respect to their engagement with evidence, in that, inter alia, both weigh evidence and finely grade its value, and both carefully weigh their sources, distinguish between primary 274 Nielsen

2008, pp. 91–5. 2004, p. 94. 276 Douglas 2005, p. 178. 277 Habermas 1997, p. 231. 278 Ibid. 279 Wilson 2011, p. 220. 275 Bilsky

182

6 The Distinctive Approaches of History and Law

and secondary documents, and often grant greater weight to the former.280 In contrast, Maier notes that the retriever of collective memory does not have the same responsibility to establish causal sequencing: “[t]riumphs, traumas, national catastrophes make their presence felt precisely by their represence or representation. Memories are to be retrieved and relived, not explained.” While judges and historians share some important similarities with respect to their evaluation of the underlying evidence, they differ however in their ability to embrace tentative and incomplete outcomes. As noted above, while historiography is able to accommodate uncertainty and ambiguity, criminal lawyers tend to search for cohesive narratives and explanations, and strive to write unambiguous historical explanations which seek to avoid as far as possible, contradictory perspectives. This brief and impressionistic comparison would seem to suggest that one should not seek to compartmentalise ICTs as either “writers of history” or “agents of collective memory”. The narratives emerging from criminal trials would often straddle both history and collective memory. At the very least, however, the above analysis would seem to suggest that it would be misleading to characterise ICTs as amounting solely to agents of collective memory. The question is more complex than that, and such a narrow approach would fail to take account of the fact that historical debates in criminal trials have generated important knowledge and understanding of an armed conflicts.281 What this suggests is that, firstly, as some scholars have noted, the relationship between truth, history and collective memory in criminal trials is an “uneasy” one.282 Secondly, however judges of ICTs do produce historical interpretations and explanations, while criminal trials may in parallel also contribute, directly or indirectly, to influencing the collective memory of a conflict. As Wilson notes, in practice, the ICC, ICTR, and ICTY have generated important historical knowledge about conflicts, and this “mitigates an overwhelmingly negative assessment of the relationship between law and history”.283 As discussed in this chapter, the robust scrutiny of evidence within the adversarial system, combined with other features of criminal trials, such as the high probative threshold, may contribute to the production of significant historical understandings of past events. In this respect, the historical narratives written by judges of ICTs may reasonably be characterised as “trial” truths, on account of their distinctive features. Indeed, the distinction between “historical” truths and “trial” truths was drawn by Bert Röling already in the context of the Tokyo Tribunal.284 However, it would be misleading to suggest that “trial” truths are some kind of esoteric, sui generis truths, far removed from historical truths. Or—to put it another way—some kind of “hermetically sealed” version of truth.285 Rather, as v H Holtermann argues, they are linked to and a 280 Ibid.,

pp. 7–8. 2012, p. 1. 282 Gaynor 2012. 283 Wilson 2011, p. 219. 284 Cassese and Roling 1994, p. 50; Cryer 2003, p. 418. 285 Bouwknegt 2018, p 136. 281 Waters

6.8 What Kinds of Narratives Do Judges of ICTs Write?

183

conception of “our ordinary concept of truth”.286 While, therefore, the peculiarities and limitations of the historical narratives produced in criminal proceedings should be acknowledged,287 it would be misleading to overstate the distinctiveness of “trial” truths from “ordinary” historical truths. The two are closely intertwined. As Braman and Kahan have pointed out: “law knows in the same way that ordinary democratic citizens know.” For legal officials and citizens, cultural and societal values provide a framework within which facts are apprehended.288 The truths that judges of ICTs produce, rather than being distinctive and esoteric, are merely versions of the ordinary understanding of truth within the societies in which they are embedded. Shapiro holds that: [c]ourts are sites of knowledge-making, where a variety of participants engage in creating or determining the truth of something by a set of site-specific rules. Such knowledge-making, however, is conditioned, though not entirely determined, by the general views of what passes for knowledge in the society in which the legal proceedings are embedded. For the participants in legal proceedings come from and return to the general intellectual conventions of their societies. Not even ideally are they supposed to inhabit a litigational knowledge-making realm absolutely isolated from other realms.289

While the methods of criminal trials may, in some respects, seem strange and disconnected from the methods of history, overemphasizing the distinctiveness of “trial” truths would tell only half the story. As Sarat et al. note, law knows in many ways, “some strange, others familiar, some highly ritualized and formal, others informal and grounded in social practice”.290 There are various points of intersection between “ordinary” historical truths and “trial” truths that have also to be taken into account. Although discussions on law and history often tend to consider that both areas cultivate their own brand of truth—“trial” truths v. “historical” truths—Wijfells observes that “the destinies of historical research and legal proceedings are not to such extent foreign to each other. […] On the contrary, a great many human activities show that the two can meet, or at least come close to each other in a variety of circumstances.”291 As such, as v H Holtermann argues, the view that “trial” truths are somehow different from “ordinary” historical truths is misleading. The two formulations of truth are, on the contrary, closely interconnected.292 Considering the relationship between these two kinds of truth, Gow and Zveržhanovski have argued that they are neither necessarily competitive nor complementary: and the test of their validity may differ. But the raw material they use may be identical and the outcome of each may be parallel and consistent. And the two varieties of truth may reinforce

286 v

H Holtermann 2017, pp. 223, 225. 2017b, p. 68. 288 Sarat et al. 2007, p. 14. 289 Shapiro 2007, p. 28. 290 Sarat et al. 2007, p. 19. 291 Wijffels 2001, pp. 13–5. 292 Hayashi et al. 2017, p. 9. 287 Aksenova

184

6 The Distinctive Approaches of History and Law

one another in the quest to restore peace and security, to establish justice and to compile a broadly accepted account of contentious, awful events.293

Having thus discussed some of the strengths and constraints of ICTs in writing historical narratives of armed conflicts, the next chapter will articulate the elements of a framework for writing responsible history in international criminal adjudication.

References Adler N (2018) Introduction: On History, Historians, and Transitional Justice. In: Adler N (ed) Understanding the Age of Transitional Justice. Rutgers University Press, New Brunswick, New Jersey Aguilera ER (2013) Truth and victims’ rights: Towards a legal epistemology of international criminal justice. Mexican Law Review 6:119–160 Aksenova M (2017a) Symbolism as a Constraint on International Criminal Law. Leiden Journal of International Law 30:475–499 Aksenova M (2017b) The Role of International Criminal Tribunals in Shaping the Historical Accounts of Genocide. In: Belavusau U, Gliszczy´nska-Grabias A (eds) Law and Memory: Towards Legal Governance of History. Cambridge University Press, Cambridge Allen RJ (2008) Explanationism All the Way Down. Episteme 5:320–328 Amaya A (2008) Justification, Coherence, and Epistemic Responsibility in Legal Fact-Finding. Episteme 5:306–319 Ambos K (2003) International criminal procedure: ‘adversarial’, ‘inquisitorial’ or mixed? International Criminal Law Review 3:1 Ankersmit F (1983) Narrative Logic: A Semantic Analysis of the Historian’s Language. Springer, The Hague/Boston, Hingham, MA Arendt H, Jaspers K (1992) Hannah Arendt and Karl Jaspers: Correspondence: 1926–1969. Kohler L, Saner H (eds) Harcourt Brace International, New York Baig L, Jarvis M, Martin Salgado E, Pinzauti G (2016) Contextualizing Sexual Violence: Selection of Crimes. In: Brammertz S, Jarvis M (eds) Prosecuting Conflict-Related Sexual Violence. Oxford University Press, Oxford Bédarida F (1994) The Social responsibility of the historian. Berghahn Books, Oxford Belavusau U, Gliszczy´nska-Grabias A (eds) (2017) Law and Memory: Towards Legal Governance of History. Cambridge University Press, Cambridge Bilsky L (2001) Judging Evil in the Trial of Kastner Forum: Judging Evil, New Departures in Israeli Legal History, Part Two. Law & Hist Rev 19:117 Bilsky L (2004) Transformative Justice: Israeli Identity on Trial. University of Michigan Press Birkenkötter H (2013) Explaining Srebrenica: Establishing a Narrative Through Criminal Trials. Die Friedens-Warte 88:177–205 Bloch M (1953) The Historian’s Craft. Alfred A. Knopf, NY Boas G, Bischoff JL, Reid NL, III BDT (2011) International Criminal Law Practitioner Library: International Criminal Procedure. Cambridge University Press Bonomy I (2018) Judicial Accountability in the 21st Century. Commonwealth Judicial Journal Bouwknegt TB (2018) The international criminal trial record as historical source. In: Adler N (ed) Understanding the Age of Transitional Justice. Rutgers University Press NY Brown CG (2013) Postmodernism for Historians. Routledge Burns RP (2007) How Law Knows in the American Trial Court. In: Sarat A, Douglas L, Umphrey MM (eds) How Law Knows. Stanford University Press, Stanford, Calif 293 Gow

and Zveržhanovski 2004, p. 897.

References

185

Cassese A (1998) On Current Trends Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law. European Journal of International Law 9:1 Cassese A, Roling BVA (1994) Tokyo Trial and Beyond: Reflections of a Peacemonger, new edited edn. Polity, Cambridge, UK ˇ Cavoški K (2002) Juger l’Histoire. In: Gallois PM, Vergès J (eds) L’apartheid judiciaire : Le Tribunal pénal international, arme de guerre. L’Age d’Homme, Lausanne Combs NA (2010) Fact-Finding without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions, 1st edn. Cambridge University Press, Cambridge Combs NA (2018) Deconstructing the Epistemic Challenges to Mass Atrocity Prosecutions. Wash & Lee L Rev 75:223–300 Confino A (1997) Collective Memory and Cultural History: Problems of Method. Am Hist Rev 102:1386–1403 Cryer R (2003) Witness Evidence before the International Criminal Tribunals. Law & Prac Int’l Cts & Tribunals 2:411 Cryer R, Friman H, Robinson D, Wilmshurst E (2007) An Introduction to International Criminal Law and Procedure. Cambridge University Press Damaska M (1973) Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study. University of Pennsylvania Law Review 121:506 Damaška M (1998) Truth in Adjudication. Hastings Law Journal De Baets A (2008) Responsible History. Berghahn Books Derrida J (2004) Autoimmunity: Real and Symbolic Suicides, A Dialogue with Jacques Derrida. In: Borradori G (ed) Philosophy in a Time of Terror: Dialogues With Jurgen Habermas And Jacques Derrida, new edited edn. University of Chicago Press, Chicago Douglas L (2005) The Memory of Judgment: Making Law and History in the Trials of the Holocaust. Yale University Press, New Haven Douglas L (2006) The Didactic Trial: Filtering History and Memory into the Courtroom. European Review 14:513–522 Douglas L (2016) Truth and justice in atrocity trials. In: Schabas W (ed) The Cambridge Companion to International Criminal Law. Cambridge University Press, Cambridge Drumbl MA (2003) Atrocity, Punishment, and International Law. Cambridge University Press, Cambridge Dynel M (2018) Irony, Deception and Humour: Seeking the Truth about Overt and Covert Untruthfulness. Walter de Gruyter GmbH & Co KG Elton GR (1991) The Practice of History, 2nd edn. Wiley-Blackwell, Oxford Eltringham N (2009) “We are not a Truth Commission”: fragmented narratives and the historical record at the International Criminal Tribunal for Rwanda. Journal of Genocide Research 11:55–79 European Court of Human Rights (1978) Ireland v. The United Kingdom Evans RJ (2001) In Defence of History. Granta Books, London Evans RJ (2002a) Telling Lies About Hitler: The Holocaust, History and the David Irving Trial. Verso Books, London Evans RJ (2002b) History, Memory, and the Law: The Historian as Expert Witness. History and Theory 41:326–345 Foucault M (1975) Society Must be Defended: Lectures at the College De France. Common. Penguin Books Ltd François B (1994) Historical Practice and Responsibility. In: François B (ed) The Social Responsibility of the Historian. Berghahn Books Frankel ME (1975) The Search for Truth: An Umpireal View. University of Pennsylvania Law Review 123:1031 Fyfe SE (2019) Truth, Testimony, and Epistemic Injustice in International Criminal Law. In: Bergsmo M, Buis EJ (eds) Philosophical Foundations of International Criminal Law: Foundational Concepts. Torkel Opsahl Academic EPublisher Gaynor F (2012) Uneasy Partners — Evidence, Truth and History in International Trials. J Int Criminal Justice 10:1257–1275

186

6 The Distinctive Approaches of History and Law

Gereboff J (1997) Can the Teaching of Jewish History be Anything but the Teaching of Myth? In: Breslauer SD (ed) The Seductiveness of Jewish Myth: Challenge or Response? SUNY Press Gewirtz P (1998) Narrative and Rhetoric in the Law. In: Brooks P (ed) Law’s Stories: Narrative and Rhetoric in the Law. Yale University Press, New Haven Ginet C (1975) Knowledge, Perception and Memory. Springer Ginzburg C (1991) Checking the Evidence: The Judge and the Historian. Critical Inquiry 18:79–92 Goldman AI (1999) Knowledge in a Social World. Oxford University Press, Oxford Gow J, Zveržhanovski I (2004) The Miloševi´c Trial: Purpose and Performance. Nationalities Papers 32:897–919 Graaff BD (2006) The Difference between Legal Proof and Historical Evidence. The Trial of Slobodan Milosevic and the Case of Srebrenica. European Review 14:499–512 Groome D (2011) The Right to Truth in the Fight against Impunity. Berkeley Journal of International Law 29:175 Haack S (2014) Evidence Matters: Science, Proof, And Truth In The Law. Cambridge University Press, New York, NY Habermas J (1997) Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Polity Press, Cambridge Hasian M Jr, Frank RE (1999) Rhetoric, history, and collective memory: Decoding the Goldhagen debates. Western Journal of Communication 63:95–114 Havel B (2005) In Search of a Theory of Public Memory: The State, the Individual, and Marcel Proust. 80 Indiana Law Journal 605 (2005) Hayashi N et al. (2017) Introduction. In: Hayashi N, Bailliet CM (eds) The Legitimacy of International Criminal Tribunals. Cambridge University Press, Cambridge Heinze E (2017) Epilogue: Beyond ‘Memory Laws’: Towards a General Theory of Law and Historical Discourse. In: Belavusau U, Gliszczy´nska-Grabias A (eds) Law and Memory: Towards Legal Governance of History. Cambridge University Press, Cambridge Hunt T (2004) Whose Truth? Objective Truth and a Challenge for History. In: Schabas W, Darcy S (eds) Truth Commissions And Courts: The Tension Between Criminal Justice and the Search for Truth. Springer Netherlands, Dordrecht, pp 193–198 Ignatieff M (1996) Articles of Faith. Index on Censorship 25:110 Jameson F (1991) Postmodernism, Or, The Cultural Logic of Late Capitalism. Duke University Press Jarvis M, Vigneswaran K (2016) Challenges to Successful Outcomes in Sexual Violence Cases. In: Brammertz S, Jarvis M (eds) Prosecuting Conflict-Related Sexual Violence. Oxford University Press, Oxford Jenkins K (2000) A Postmodern Reply to Perez Zagorin. History and Theory 39:181–200 Jenkins K (2013) At the Limits of History: Essays on Theory and Practice. Routledge Kansteiner W (2002) Finding Meaning in Memory: A Methodological Critique of Collective Memory Studies. History and Theory 41:179–197 Kavanagh J, Rich MD (2018) Truth Decay - An Initial Exploration of the Diminishing Role of Facts and Analysis in American Public Life. RAND Corporation Kersten M (2014) What counts as evidence of Syria’s war crimes? The Washington Post Khan KAA, Dixon R (2009) Archbold International Criminal Courts: Practice, Procedure and Evidence. Sweet and Maxwell Kirchheimer O (1961) Political Justice: The Use of Legal Procedure for Political Ends. Princeton University Press Koskenniemi M (2002) Between Impunity and Show Trials. In: Frowein JA, Wolfrum R, Philipp CE (eds) Max Planck Yearbook of United Nations. 2002. Vol. 6 Vol. 6. Brill, Leiden; Boston, pp 1–35 Kwon O-G (2007) The Challenge of an International Criminal Trial as Seen from the Bench. J Int Criminal Justice 5:360–376 Laudan L (2006) Truth, Error, and Criminal Law: An Essay in Legal Epistemology. Cambridge University Press

References

187

Levi R, Hagan J, Dezalay S (2016) International Courts in Atypical Political Environments: The Interplay of Prosecutorial Strategy, Evidence, and Court Authority in International Criminal Law. Law And Contemporary Problems 79:26 López R (2015) The (Re) Collection of Memory after Mass Atrocity and the Dilemma for Transitional Justice. NYU Journal of International Law and Politics Lorenz C (1994) Historical Knowledge and Historical Reality. A Plea for Internal Realism. History and Theory 33:297 Maier CS (1993) A Surfeit of Memory? Reflections on History, Melancholy and Denial. History and Memory 5:136–152 Malksoo M (2017) Kononov v. Latvia as an Ontological Security Struggle over Remembering the Second World War. In: Belavusau U, Gliszczy´nska-Grabias A (eds) Law and Memory: Towards Legal Governance of History. Cambridge University Press, Cambridge, UK/New York, NY, US Marrus MR (2002) History and the Holocaust in the Courtroom. In: Smelser R (ed) Lessons and Legacies V| Northwestern University Press. Northwestern University Press McAuliffe P (2012) The Ambiguities of Transitional Narrative in the Porcupine by Julian Barnes. Law & Literature 24:349–379 Mccullagh CB (2004) What Do Historians Argue About? History and Theory 43:18–38 McDermott Y (2016) Fairness in International Criminal Trials. Oxford University Press, Oxford Mirrow MC (2001) Kennewick Man, Identity and the Failure of Forensic History. In: Wijffels A (ed) History in court: historical expertise and methods in a forensic context. Ius deco Moffett L (2014) Justice for Victims before the International Criminal Court. Routledge Murphy P (2010) No Free Lunch, No Free Proof Symposium: The Role of Defence in International Criminal Trials. J Int’l Crim Just 8:539–574 Musson A, Stebbings C (2012) Introduction. In: Musson A, Stebbings C (eds) Making Legal History: Approaches and Methodologies. Cambridge University Press, Cambridge Naqvi Y (2006) The right to the truth in international law: fact or fiction? International Review of the Red Cross 88:245–273 Nice G (2017) Justice For All and How to Achieve It: Citizens, lawyers and the law in the age of human rights. Scala Arts & Heritage Publishers Ltd Nielsen C (2008) From Nuremberg to The Hague: The Civilizing Mission of International Criminal Law. Auckland University Law Review 14:81 Nolan M (1988) The Historikerstreit and Social History. New German Critique Nora P (1989) Between Memory and History: Les Lieux de Mémoire. Representations Osiel MJ (1999) Mass Atrocity, Collective Memory, and the Law, 1st edn. Transaction Publishers Pernecky T (2016) Epistemology and Metaphysics for Qualitative Research. Sage Publications Ltd Peskin V (2013) Seeing Like a Court: Documenting Histories of Armed Conflict through the Lens of Judging International Crimes. Human Rights Quarterly 35:769–778 Peterson J (2007) Unpacking Show Trials: Situating the Trial of Saddam Hussein. Harvard International Law Journal 48:257–292 Petroski K (2008) The Public Face of Presumptions. Episteme 5:388–401 Petrovi´c V (2016) The Emergence of Historical Forensic Expertise: Clio Takes the Stand. Routledge Pollmann T (2000) Coherence and Ambiguity in History. History and Theory 39:167–180 Prosperi L, Zammit Borda A (2020) A Partial View of History: ICTY Judgments as “Judicial Truths”. In: Stahn C, Agius C, Brammertz S, Hocking J, Rohan C (eds) Legacies of the International Criminal Tribunal for the Former Yugoslavia: A Multidisciplinary Account. Oxford University Press Ramet SP (2004) Martyr in His Own Mind: The Trial and Tribulations of Slobodan Miloševi´c. Totalitarian Movements and Political Religions Röben V (2003) The Procedure of the ICC: Status and Function of the Prosecutor. In: von Bogdandy A, Wolfrum R (eds) Max Planck Yearbook of United Nations Law Sander B (2018) History On Trial: Historical Narrative Pluralism Within And Beyond International Criminal Courts. International & Comparative Law Quarterly 67:547–576

188

6 The Distinctive Approaches of History and Law

Sarat A, Douglas L, Umphrey MM, Clarke C (2007) Complexity, Contingency, and Change in Law’s Knowledge Practices: An Introduction. In: Sarat A, Douglas L, Umphrey MM (eds) How Law Knows. Stanford University Press, Stanford Schabas W (2012) Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals. Oxford University Press, Oxford Schabas WA (2017) An Introduction to the International Criminal Court. Cambridge University Press Scharf MP (2004) Trading Justice for Efficiency - Plea-Bargaining and International Tribunals. J Int Criminal Justice 2:1070–1081 Senn M (2012) The methodological debates in German-speaking Europe (1960–1990). In: Musson A, Stebbings C (eds) Making Legal History: Approaches and Methodologies. Cambridge University Press, Cambridge Shapiro BJ (2007) ‘Fact’ and the Proof of Fact in Anglo-American Law (c. 1500–1850). In: Sarat A, Douglas L, Umphrey MM (eds) How Law Knows. Stanford University Press, Stanford, Calif Shklar JN (1986) Legalism: Law, Morals, and Political Trials. Harvard University Press Simpson G (2015) Linear Law: The History of International Criminal Law. In: Schwöbel C (ed) Critical Approaches to International Criminal Law, 1st edn. Routledge, Abingdon Snedaker K (1987) Storytelling in Opening Statements: Framing the Argumentation of the Trial. American Journal of Trial Advocacy 10:15–46 Stein A (2008) On the Epistemic Authority of Courts. Episteme 5:402–410 Steinitz M (2005) ‘The Miloševi´c Trial — Live!’ An Iconical Analysis of International Law’s Claim of Legitimate Authority. J Int Criminal Justice 3:103–123 Stover E (2011) The Witnesses: War Crimes and the Promise of Justice in The Hague. University of Pennsylvania Press Stuart-Fox M (2007) Two views of the history of historiography and the nature of history. History Australia Sturken M (1997) Tangled Memories: The Vietnam War, the AIDS Epidemic, and the Politics of Remembering. University of California Press, Berkeley Tallgren I (2014) Searching for the Historical Origins of International Criminal Law. In: Bergsmo, M, Cheah WL, Yi P (eds) Historical Origins of International Criminal Law. Torkel Opsahl Academic EPublisher Teitel RG (2002) Transitional Justice. Oxford University Press Terris D, Romano CPR, Swigart L, Sotomayor S (2007) The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases. Brandeis, Waltham, Mass/Hanover, NH Tromp N (2016) Prosecuting Slobodan Miloševi´c: The Unfinished Trial. Routledge, Milton Park, Abingdon Tromp N (2018) In Search for Truth at Mass Atrocities Trials: Will Judges and Lawyers Have the Last Word? The Journal of Comparative Law 12:61 Turkovic K (2004) Historians in Search for Truth about Conflicts in the Territory of Former Yugoslavia as Expert Witnesses in front of the ICTY. Casopis za suvremenu povijest v H Holtermann J (2017) ‘One of the Challenges that Can Plausibly Be Raised Against Them’? On the Role of Truth in Debates about the Legitimacy of International Criminal Tribunals. In: Hayashi N, Bailliet CM (eds) The Legitimacy of International Criminal Tribunals. Cambridge University Press, Cambridge Vergès J (2002) Un Tribunal Illégal. In: Gallois PM, Vergès J (eds) L’apartheid judiciaire : Le Tribunal pénal international, arme de guerre. L’Age d’Homme, Lausanne Wald PM (2001) The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-To-Day Dilemmas of an International Court. Washington University Journal of Law & Policy 5:087–118 Waters TW (2010) A Kind of Judgment: Searching for Judicial Narratives after Death. Geo Wash Int’l L Rev 42:279–348 Waters TW (2012) Writing History in International Criminal Trials by Richard Ashby Wilson. PoLAR: Political and Legal Anthropology Review 35:347–350

References

189

Weigend T (2011) Should We Search for the Truth, and Who Should Do It. North Carolina Journal Of International Law And Commercial Regulation White H (1980) The Value of Narrativity in the Representation of Reality. Critical Inquiry 7:5–27 White H (1990) The Content of the Form: Narrative Discourse and Historical Representation. Johns Hopkins University Press, Baltimore Whiting A (2013) Dynamic Investigative Practice at the International Criminal Court. Law and Contemporary Problems 76:163–189 Wijffels A (2001) History in Court. In: Wijffels A (ed) History in Court: Historical Expertise and Methods in a Forensic Context. Ius deco Williams B (2004) Truth and Truthfulness: An Essay in Genealogy. Princeton University Press, Princeton Wilson RA (2005) Judging History: The Historical Record of the International Criminal Tribunal for the Former Yugoslavia. Human Rights Quarterly 27:908–942 Wilson RA (2011) Writing History in International Criminal Trials. Cambridge University Press, Cambridge Wood N (1999) Vectors of Memory: Legacies of Trauma in Postwar Europe, 1st edn. Berg 3PL, Oxford Zagorin P (2000) Rejoinder to a Postmodernist. History and Theory 39:201–209

Chapter 7

Aiming Towards Responsible History in International Criminal Adjudication

Contents 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 The Value of the History-Writing Function in International Criminal Adjudication . . . . . 7.3 Developing a Responsible History Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.1 A Recognition of the Value of the History-Writing Function in International Criminal Adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.2 A Commitment to the Virtues of Accuracy and Sincerity in the Search for Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.3 A Recognition of the Constraints and Limitations of the Historical Narratives Written by Judges of ICTs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.4 A Recognition that Judges and Lawyers Do not Necessarily Have the Last Word on History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

192 193 205 206 208 231 235 238

Abstract This chapter develops a normative framework for history-writing in international criminal adjudication called “responsible history”. It argues that a responsible approach to history-writing in atrocity trials involves four elements: (1) A recognition of the value of history-writing in such trials, on the basis of arguments from truth and justice, right to truth and legal epistemology. (2) Drawing on the work of Bernard Williams, responsible history also involves a commitment towards truthfulness and the virtues of accuracy and sincerity. This includes, inter alia, that judges of ICTs should adopt a pluralist approach to historical evidence to enable them to develop a more accurate understanding of the competing historical contexts. Bearing in mind the lessons from strict legality, however, the boundary line of this approach is when historical evidence verges on the extraneous (3) The historical narratives that judges of ICTs write in their judgments should be self-disruptive and should demonstrate an awareness of their limitations and possible blind spots. And, finally, (4) a “responsible” approach to history in international criminal adjudication should reflect a recognition that, far from being the last word, parts of such historical narratives should be viewed as discursive beginnings that will continue to be reinterpreted in the future. Keywords Responsible History · International Criminal Adjudication · Truth and Justice · Right to Truth · Legal Epistemology · Accuracy · Sincerity

© T.M.C. Asser Press and the author 2021 A. Zammit Borda, Histories Written by International Criminal Courts and Tribunals, International Criminal Justice Series 26, https://doi.org/10.1007/978-94-6265-427-3_7

191

192

7 Aiming Towards Responsible History in International …

7.1 Introduction In the previous chapters, we used frame analysis to examine some of the lenses— individual-centred, crime-driven and law-affirming—through which judges at ICTs perceive and interpret past events. We also considered the epistemologies and methods of criminal law and criminal trials to assess their particular strengths and limitations in the search for truth. Taken as a whole, these cognitive frames, conventions and methods tend to give rise to highly distinctive historical narratives—narratives that have been described as “trial” truths. Some of the trial truths produced by ICTs have been fiercely criticised by historians and social scientists, who consider them as distorting “historical” truth. However, as discussed in Chap. 6, it would be misleading to simply discount such trial truths altogether. Focusing only on the distinctiveness of trial truths would, as previously noted, tell only part of the story. There are various points of intersection between “ordinary”, historical truths and trial truths. The two formulations of truth are, thus, closely interconnected.1 As noted in Chap. 2, it is not just historians who have been critical of the historywriting function of ICTs. Various scholars and practitioners in the strict legality and incompatibility camps have also argued that criminal trials should, as far as possible, stir clear from writing history—that this should not be a direct objective of international criminal adjudication. Such a function would only serve as a “distraction” from the main purpose of criminal trials, that is, to render justice. Indeed, not only would history-writing serve as a distraction, from this perspective, the historical narratives written by ICTs would tend to be of inferior quality, having the effect of torturing or deforming conventional history. However, this view, which tends to emphasize the limitations of the histories written by ICTs, tends to overlook their strengths and the invaluable contributions that the historical narratives emerging from such courts and tribunals have made, in a number of cases, to our understanding of armed conflicts. After all, even Bloxham, who has been critical of the post-WWII trial narratives, recognised that those trials were the greatest, most enduring attempts “to investigate Nazism and its effects in something approaching a detached way”.2 And Wilson observes that while, indeed, in some cases, trials got history wrong, in others they contributed significantly to historical understanding. It is in this sense that he cautioned against adopting too restrictive a view of the history-writing function of ICTs, favouring instead a more moderate, nuanced approach: [j]udging international crimes and writing a history of an armed conflict are both complex endeavors, and […] their relationship to one another cannot be characterized by either harmonious accord or inherent contradiction.3

1 Hayashi

et al. 2017, p. 9. 2003, p. 223. 3 Wilson 2011, p. 13. 2 Bloxham

7.1 Introduction

193

Gaynor makes a similar point, characterising criminal law and history as “uneasy partners”.4 The previous chapters have attempted to delineate some of the features of that tense relationship. What should hopefully emerge clearly from that discussion is that the relationship between judging international crimes and writing historical narratives in international criminal adjudication cannot be characterised in categorical, “black and white” terms. While, as has been discussed in the previous chapters, there are several constraints on the history-writing function of ICTs, there are also areas where ICTs have a comparative advantage in seeking explanations for certain aspects of mass violence. In discussing the value of the history-writing function in international criminal adjudication, therefore, the next section will assess some of those areas of strength. It will proceed to articulate a normative framework for history-writing in international criminal adjudication called “responsible history”, which draws extensively on Bernard Williams’ work on truthfulness and the two virtues of truth: accuracy (to find truth) and sincerity (to tell it).

7.2 The Value of the History-Writing Function in International Criminal Adjudication At the outset, it is necessary to address the controversial question of the proper place of the history-writing function in international criminal adjudication. As discussed in Chap. 2, there are significantly diverging perspectives on this question. These may be classified according to whether they encourage more restrictive, moderate or expansive approaches to history-writing. However, the scholarly debate has been largely polarised between restrictive and expansive approaches to the history-writing function. On the one hand, strict legality suggests that history-writing should not be accorded significant value in criminal trials, given that, as Arendt famously wrote, the purpose of a trial is “to render justice, and nothing else”.5 Arendt agreed with the judges in Eichmann that all attempts to widen the range of the trial had to be resisted, because the court could not “allow itself to be enticed into provinces which are outside its sphere. […T]he judicial process has ways of its own, which are laid down by law, and which do not change, whatever the subject of the trial may be.”6 The court, moreover, could not overstep these limits without ending “in complete failure.”7 On the other hand, however, proponents of didactic legality have argued that, not only should the history-writing function constitute a primary objective of mass atrocity 4 Gaynor 5 Arendt 6 Ibid. 7 Ibid.

2012, p. 1257. 1992, p. 253.

194

7 Aiming Towards Responsible History in International …

trials, such trials should be unabashedly designed as monumental spectacles, in order to maximise their pedagogic impact.8 A point that this book has repeatedly made is that the middle ground has been conspicuously missing from this debate. As noted in Chap. 1, a small number of scholars have now begun defining that middle ground.9 This chapter will progress work in that direction by developing the concept of “responsible history”, which seeks to offer a more nuanced understanding of the history-writing function.10 The arguments for moving towards a more moderate and nuanced approach to historywriting in international criminal adjudication is based on three interrelated grounds: (1) truth and justice; (2) right to truth; and (3) legal epistemology. While in previous chapters we focused on some of the constraints and limitations that ICTs face in writing history, this part will begin by highlighting some of the significant strengths and comparative advantages that ICTs enjoy in this department. ICTs are epistemic engines, that is, institutions that systematically produce historical knowledge or find truths about the crimes charged and the broader contexts of the conflict.11 The international crimes over which they have jurisdiction, as Fry notes, incorporate contextual elements in their definitions that refer to the historical and political contexts (such as elements that operate as qualifiers of gravity).12 In such cases, courts prosecuting and adjudicating international crimes will inevitably focus on more than just the specific conduct charged. Such contextualisation and historical discussions are particularly pertinent to those categories of crimes, such as genocide and persecution, that require proof of discriminatory intent. Particularly in the absence of specific evidence showing such intent, the prosecution case may be assisted if they can connect violent methods with political and historical objectives that were held by the accused.13 In such cases, recourse to historical discussion may be inevitable because it is legally relevant to elaborate the mens rea requirements. However, in addition to establishing mens rea, Tromp argues that discussions of historical context are necessary to allow judges to comprehend the political dynamics that led to the occurrence of mass atrocities.14 She illustrates these points by reference to the Miloševi´c trial:

8 Osiel

1999, p. 3. for instance, Joyce has argued that there is need to begin a process of looking at the relationship of international criminal trials and history, “by looking at the tensions and connections this creates, and by charting the shift away from traditional due process at all costs approaches in domestic criminal law, towards a more victim-sensitive and narrative-based system of justice”: see Joyce 2004, p. 462. 10 Ibid., p. 465. 11 v H Holtermann 2017, p. 207. 12 Fry 2014, p. 260. 13 Wilson 2011, p. 21. In the context of domestic courts, Haack has examined the epistemic question of the effect of the combination of such evidence and “whether and if so, when and why, a congeries of diverse pieces of evidence can warrant a conclusion better than any of its elements alone”: see Haack 2008, p. 253. 14 Tromp 2016, p. 21. See also Cryer 2003, p. 418. 9 Thus,

7.2 The Value of the History-Writing Function …

195

[f]irst, historical context is necessary in establishing and proving the guilty mind—mens rea in legal terminology—of an accused person and of fellow high-level officials involved in developing and executing a political plan that eventually led to the commission of crimes. Since a criminal plan often derives from ideological concepts conceived in the past, a proper understanding of such an ideology is best achieved, or perhaps can only be achieved, when placed in a broader historical framework. Second, historical context is necessary because it allows judges to comprehend the political dynamics that led to the occurrence of mass atrocities. In the Miloševi´c case, a knowledge of historical political events was required if the judges were to grasp how political elites in Yugoslavia had articulated Serbian state ideology and when Miloševi´c had embraced it as a platform for political and military action.15

In view of the nature of the international crimes, as well as the particular features of ICTs (discussed further below), therefore, engagement with historical evidence is an inevitable part of international criminal proceedings. As a result, ICTs have generated significant historical knowledge about conflicts, from the very specific to the more general. As Schabas argues, in many of their judgments, there have been important debates about the historical dimensions of the situation being considered, which have gone much beyond “the specifics of the charges against any particular individuals accused”.16 While these historical narratives have been of variable quality, in several cases, ICTs have produced important historical accounts of the armed conflicts.17 For instance, in Krsti´c, the ICTY Trial Chamber chose an avenue of detailed description of events because in the end, “no words of comment can lay bare the saga of Srebrenica more graphically than a plain narrative of the events themselves”.18 In her commentary on this case, Birkenkötter notes that the Krsti´c Trial Chamber provided a narrative of the events in Srebrenica that went “far beyond what is indicted in terms and depth”.19 Indeed, an ICTY expert witness observed (with respect to the conflict in the Balkans) that ICTs have produced histories that are not only credible and readable, “but indispensable to understanding the origins and course of the 1990s conflicts in the former Yugoslavia”.20 Several other scholars have emphasized the point that the historical narratives emanating from ICTs help to enhance understanding of the crimes and broader context of a conflict. V H Holtermann posits that the output of ICTs constitutes: a substantial body of factual knowledge that seems indisputably valuable in and of itself, i.e. regardless even of its significance as a means for achieving just international criminal convictions. The facts unearthed by tribunals are obviously of value to victims and relatives who have a strong interest simply in knowing as much as possible about the circumstances surrounding their suffering. These facts are valuable also to post-conflict societies as such […]. Finally, the factual truths produced by ICTs have value well beyond that which they have for the societies immediately involved in conflict. In so far as the occurrence of mass

15 Tromp

2016, p. 21. 2012, p. 158 (emphasis added). 17 Wilson 2011, p. 18. 18 ICTY, Prosecutor v. Radislav Krsti´ c, Judgment, 2001, IT-98-33-T, para 2. 19 Birkenkötter 2013, pp. 183–4. 20 Donia R cited in Wilson 2011, p. 69. 16 Schabas

196

7 Aiming Towards Responsible History in International …

atrocities forces all of us to face questions about the human capacity for evil, they are arguably of value to humankind as such.21

Such discussions of historical information promote greater understanding of the contexts of the crimes charged. From the perspective of the truth and justice approach, therefore, the broader discussions of historical context may assist with the search for truth about the alleged crimes, which is a precondition for justice. This is because none of the potential purposes of the criminal trial process can be reached unless the judgment has been based on a search for truth. To reach any of its goals, the process must reflect a genuine effort to determine what “really” happened.22 Indeed, it is notable that one of the key critiques that Arendt levelled at the judges in Eichmann is that they had failed to understand what “really” happened.23 In her view, the judges misconstrued Eichmann’s actions, as the actions of a “perverted sadist” or an “abnormal monster”. Rather, his actions should better have been understood and explained as actions of thoughtlessness, the actions of someone “who never realized what he was doing”.24 It was in this context that she elaborated her famous concept of the “banality of evil” as an explanatory framework: [e]vil comes from a failure to think. It defies thought for as soon as thought tries to engage itself with evil and examine the premises and principles from which it originates, it is frustrated because it finds nothing there. That is the banality of evil.25

Judge Agranat argued that judges should seek to understand the alleged actions of the accused in their context. In order to do this, the judge should “put himself in the shoes of the participants themselves; evaluate the problems they faced as they might have done; take into consideration sufficiently the needs of time and place, where they lived their lives; understand life as they understood it.”26 Or, as Atticus Finch puts it in To Kill a Mockingbird, “[y]ou never really understand a person until you consider things from his point of view. […] Until you climb inside of his skin and walk around in it.”27 In order for judges to be able to put themselves in the shoes of the ones they are judging, however, they need to understand the often competing, historical, social and political contexts and, thus, adopt a pluralist approach to historical evidence (hereunder referred to as a “pluralist approach”). This is an approach also used by historians. Evans notes, for instance, that historical explanation commonly proceeds by relating an event or a process or a structure to a broader historical context.28 The need to be aware of potentially competing historical contexts becomes even more significant in times of upheaval and armed conflict, when contexts are fluid and contested. Koskenniemi argues that, in peacetime, the relationship between context 21 v

H Holtermann 2017, p. 208. 2011, p. 389. 23 Arendt 1992, p. 276. 24 Ibid., p. 287. 25 Elon 2006, p. 97. 26 Cited in Bilsky 2004, p. 63. 27 Mills 2011, p. 29. 28 Evans 2001, p. 158. 22 Weigend

7.2 The Value of the History-Writing Function …

197

and event is relatively uncontroversial. Even in the case of an exceptionally shocking crime, such as serial killing, there is normally little doubt about how to understand the relevant acts in their historical context. The only problem is “did the accused do it?” No further question about how to understand what he did, how to place his behaviour in relation to the overall behaviour of those around him, emerges. However, in periods of transition, the debate about context and past normality takes on a contested, political aspect.29 Mass atrocity prosecutions, by definition, involve large-scale criminality; that is, they could involve hundreds or thousands of similar crimes. These atrocities often “occur within certain contexts and display certain features, and it is these contexts and features that create many fact-finding challenges”.30 Understanding such atrocities in their proper contexts is, therefore, more difficult than seeking to understand discrete, isolated crimes. For the truth and justice approach, therefore, a pluralist approach to historical evidence is necessary to understand the alleged crimes and actions of the accused in their proper contexts which, in turn, would assist with judging those actions. While this insight is relevant for criminal adjudication generally, it applies in particular to international criminal adjudication, where judges must understand facts and events that took place in foreign countries and in potentially unfamiliar social and legal settings. In such cases, the way people think about human rights, human agency and appropriate social conduct “often differs radically from the way international lawyers think about these things”.31 Thus, in the words of Judge Agranat, to understand life as the accused persons understood it, and thus promote more accuracy, relevant historical discussions should be allowed if they promote greater understanding of the charged crimes and/or actions of the accused. For instance, speaking with respect to the Media case, Judge Pillay explained why evidence on Rwandan history and culture in the trial was so important:32 [w]e were trying words, and it was more important to understand how people made sense of those words, so we required a cultural understanding of political speeches. We equated hate speech with a violent instrument. We had to look at the context to make sense of the impact of their words and not only culture, but history and tradition.33

In addition to arguments from truth and justice, another rationale for moving towards a more moderate approach to history-writing in international criminal adjudication may be located in the emerging right to truth. From this perspective, relevant discussions of the historical contexts in which the alleged crimes occurred are important as they promote the core interests of victims, their families and society more generally to know the broader truths about the armed conflict. This emerging 29 Koskenniemi

2002a, pp. 11–2. 2018, pp. 244–5. 31 Kelsall 2009, p. 2. Kelsall goes on to argue that, in the case of the Special Court for Sierra Leone, Western legal precepts and procedures were unsuited to judging adequately the Sierra Leonean cultural context: see Ibid., p. 256. 32 ICTR, Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Judgment, 2013, ICTR-99-52-T. 33 Cited in Wilson 2011, p. 20 (emphasis added). 30 Combs

198

7 Aiming Towards Responsible History in International …

right should be seen in the context of the growing significance of victim- and survivor-centred approaches to criminal justice, which emphasize the importance of supporting victims’ interests and developing more accurate and comprehensive understandings of the harms they suffered.34 It is perhaps not surprising, therefore, that the right to truth is gaining increasing momentum in international criminal adjudication, particularly at the ICC.35 As Judge Steiner held in her ICC pre-trial decision in Katanga, victims have a central interest that the outcomes of criminal proceedings: (i) bring clarity about what indeed happened; and (ii) close possible gaps between the factual findings resulting from the criminal proceedings and the actual truth.36 In seeking to close the possible gaps between the factual findings resulting from the criminal proceedings and the actual truth, ICTs enjoy considerable strengths and comparative advantages in promoting the right to truth for victims and society. For instance, as discussed in Chap. 6, ICTs are frequently able to access a wide range of evidentiary materials and, through their adversarial procedures, are able to scrutinize each item of evidence, often in more detail than historians or other writers of history. In this respect, ICTs produce historical accounts at the highest legal standard of certainty. Cassese captures this when he states that: [t]he proceedings of an international criminal tribunal build an impartial and objective record of events. This record differs fundamentally from that established by a fact-finding commission […], in that it has passed the rigorous test of judicial scrutiny, that is, the application of a tribunal’s strict rules of admissibility of evidence. In this regard, investigations conducted with a view to prosecution before an international criminal tribunal are much more farreaching and thorough than those undertaken by a fact-finding commission. Thus, the record of an international tribunal is also of crucial value as a historical account of events.37

Furthermore, it is not just their ability to access evidence or make use of adversarial procedures that serve to enhance the value of the historical narratives written by ICTs. As Waters argues, anyone can review evidence for varying purposes, including historians, politicians, journalists; it is not the facts produced at trial, but the legal imprimatur that sets apart the historical narratives produced by ICTs.38 Wilson observes that “[i]nternational criminal trials are now prime venues at which a postconflict version of history is investigated, discussed, argued over, and eventually stamped with the imprimatur of a legal judgment.”39 In view of their standing in the international legal system, ICTs have been said to produce “privileged narratives” of the past.40 While different ICTs face varying challenges with respect to their legitimacy,41 34 Jarvis

2016, p. 2. 2018, p. 8. 36 ICC, Prosecutor v Katanga, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, 2008, ICC-01/04-01/07, para 34. 37 Cassese 2011, pp. 9–10. Laudan argues, however, that the flip side of the taxing “beyond reasonable doubt” standard is that it enjoins courts to acquit the defendant even if they think he is probably guilty, since only a firm, settled belief in that guilt justifies a conviction: see Laudan 2006, p. 30. 38 Waters 2010, p. 346. 39 Wilson 2011, p. viii. 40 Water 2017, p. 228; Marrus 2002, p. 228. 41 Aarnbe Langvatn and Squatrito 2017, p. 42. 35 Adler

7.2 The Value of the History-Writing Function …

199

they are generally perceived as privileged actors, whose judgments are stamped not only with legal authority, but also with epistemic authority.42 Stein argues that, in order to have epistemic authority, an institution must not merely be competent as a fact-finder, it ought to be a competent fact-finder in a systemic and disinterested way.43 In view of the standing and authority that ICTs enjoy, their narratives are endowed with expressive weight, that is, they have wider opportunities to be heard and discussed, and to reach broader audiences.44 As a result, a third rationale for moving towards a more moderate, nuanced approach to history-writing in international adjudication may be located in legal epistemology. Because ICTs inevitably generate historical knowledge about armed conflicts, and because that knowledge is stamped with epistemic authority, with such authority comes responsibility—ICTs should seek to generate historical knowledge responsibly. Of course, it may be argued that the goal of searching for truth and writing history should be left to other mechanisms, such as truth commissions or fact-finding commissions.45 From this perspective, it has often been suggested that ICTs are not properly “in the truth-finding business”.46 Indeed, in an ICTR case where judges declined to admit certain historical evidence, they argued that: “[w]e are not a truth commission”.47 Truth Commissions are generally considered to be better suited for exploring the complex causes of conflicts, and investigating and assessing, over time intervals, what took place and why.48 However, even while acknowledging this fact, this does not detract from the role that ICTs could play in searching for truth and writing historical narratives of conflicts. Indeed, ICTs have several distinctive features and comparative advantages over other transitional justice mechanisms in this area. For instance, Cassese holds that the historical narratives produced by criminal courts differ “fundamentally” from those established by fact-finding commissions, because courts subject evidence to judicially scrutiny and cross-examination, and apply “strict rules of admissibility of evidence”. In this regard, Cassese notes that “investigations conducted with a view to prosecution before an international criminal tribunal are much more far-reaching and thorough than those undertaken by a fact-finding commission”.49 These observations would also apply to truth commissions. For instance, the South African Truth and Reconciliation Commission (TRC) has been criticised for not including a rigorous process of testing the evidence and,

42 Stein

2008, p. 402. p. 404. 44 Aksenova 2017, p. 49. 45 Wilson 2011, p. ix. 46 v H Holtermann 2017, p. 210. 47 Eltringham 2009, pp. 55–6. 48 Chapman 2009, p. 93; Arnould 2006, p. 142. 49 Cassese 2011, pp. 9–10. Laudan argues, however, that the flip side of the taxing “beyond reasonable doubt” standard is that it enjoins courts to acquit the defendant even if they think he is probably guilty, since only a firm, settled belief in that guilt justifies a conviction: see Laudan 2006, p. 30. 43 Ibid.,

200

7 Aiming Towards Responsible History in International …

according to Cherry, the level of corroboration it used was “too low”.50 As a result, some have argued that TRCs may be more likely to yield historically inaccurate results because of their lax rules of evidence and testimony is provided without cross-examination.51 For these reasons, the emerging concept of right to truth tends to prioritise criminal trials over “non-judicial inquiries in case of potential conflict between TRCs and prosecutions”.52 Moreover, truth commissions may be less effective than criminal courts in incentivising victims or their families to come forward and provide testimony.53 While it is true that, not being courts of law, truth commissions are freed from the task of determining individual guilt or innocence and therefore can conduct more contextual and open-ended inquiries, it has been noted that, in a number of cases, “they have offered little improvement on standard criminal trials”.54 The point here is that different transitional justice mechanisms have their respective strengths and limitations and should be regarded as complementary, rather than competing (or even mutually exclusive) with respect to the history-writing function.55 Or, as Cherry has put it, each of these mechanisms can enable us to find or know only part of the truth, and only imperfectly. However, this does not diminish the importance of the search for truth by different means—both for the victims/survivors and their families and for broader society.56 As already noted, the historical narratives emerging from a number of international criminal trials have helped to shed light on, and make important contributions to, the historical understandings of the armed conflicts in the region, with a particular focus on criminal behaviour, as well as the means and methods of warfare. ICTs have produced accounts of “how the communities became so divided, how neighbors raped and killed neighbors, how friends forgot their friendship, and how intermarriages meant nothing when one ethnic group was pitted against another by incessant, virulent propaganda”.57 These narratives are not only important in themselves, but also serve to lay the groundwork for future historical analysis that will eventually lead to a fuller understanding of the conflicts. In this respect, an expert witness at the ICTY notes: [t]he process of international criminal justice at the ICTY, and the testimony and evidence that it has produced has added significantly to the available historical evidence concerning 50 Cherry

2009, p. 256; Arnould 2006, p. 143. 2004, p. 374; Chapman 2009, p. 97. 52 Naftali 2017, p. 252. 53 Wood 1999, p. 200. 54 For instance, some testimonies given at truth commissions were not immune to being shaped by the statement-takers and givers, who influenced and even tainted the “truths” they produced before the commission: see Adler 2018, p. 7; Wilson 2011, pp. 10–11. 55 Schabas 2012, p. 169. Claims about complementarity between different transitional justice mechanisms should not, however, be idealized. Arnould points out that, while the case of East Timor provides a promising example of co-existence between criminal prosecutions and a truth commission/reintegration process, there was considerable friction between the criminal prosecutions and truth commission in Sierra Leone: see Arnould 2006, pp. 156–7. 56 Cherry 2009, p. 263. 57 McDonald 2000, p 8. 51 Mendeloff

7.2 The Value of the History-Writing Function …

201

events in the former Yugoslavia during the final decades of the twentieth century. The use made of this body of evidence by future historians may eventually lead to a fuller understanding of the critical questions about these events than one could reasonably expect from the expert presentations prepared within the context (and limitations) of specific cases before the court.58

By way of example, the historical narratives emerging from ICTs have shed light on, inter alia, cynical attempts to set up political structures aimed at avoiding imputation of conduct of organized armed groups to a particular state,59 the use of child soldiers in armed conflict,60 the concealment of militants as members of humanitarian organisations,61 the role of the media in genocide,62 and the use of human shields,63 to name but a few. They have also served to enhance understanding of, and draw attention to, particular categories of criminal conduct in armed conflict, including sexual violence against women. For instance, it is only recently that detailed historical narratives of sexual violence in armed conflict have begun to emerge from international criminal trials.64 These include the landmark Akayesu judgment, which provided a detailed description of how rape and sexual violence were used in Rwanda, in the context of the crime of genocide.65 In assessing the events of 1994, the ICTR judges heard the testimony of a large number of witnesses and experts and, on the basis of the evidence presented at that trial, produced an account of rape and other types of sexual violence used systematically in pursuance of a genocidal plan.66 It is submitted that the historical insights emerging from these cases have enhanced our understanding of this phenomenon in a way that, perhaps, historical research would not have been able to (because of issues of access to sources, etc.). The jurisprudence of the ad hoc Tribunals thus played a central role in shaping the historical narratives of genocide in the late twentieth century.67 In the case resulting in the first conviction for genocide at the ICTY, Krsti´c, the Trial Chamber drew on extensive evidence to outline what happened in and around Srebrenica during the fateful days in July 1995. In a section of the Judgment entitled “The Take-Over of Srebrenica and its Aftermath”, the Chamber began the narrative from the breakup of the former Yugoslavia in 1991–2. It then discussed, inter alia, the conflict in Srebrenica in 1992–3, its designation as a “Safe Area” by the UN Security Council in April 1993, the deterioration of the situation in Srebrenica in early 1995, the Bosnian 58 Expert

witness at the ICTY interviewed by Wilson: see Wilson 2011, p. 169. Prosecutor v. Dusko Tadi´c a/k/a ‘Dule’, Decision on the defence motion for interlocutory appeal on jurisdiction, 1995, IT-94-1-T, para 596. 60 SCSL, Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Judgment, 2007, SCSL-04-16-T, para 1244. 61 ICTY, Prosecutor v. Enver Hadžihasanovi´ c Amir Kubura, Judgment, 2006, IT-01-47-T, para 412. 62 ICTR, Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Judgment, 2013, ICTR-99-52-T, para 482. 63 ICTY, Prosecutor v. Tihomir Blaški´ c, Judgment, 2000, IT-95-14-T, para 693. 64 McDonald 2000, p. 9. 65 ICTR, Prosecutor v. Jean-Paul Akayesu, Judgment, 1998, ICTR-96-4-T. 66 Ibid., p. 421 et seq. 67 Aksenova 2017, p. 49. 59 ICTY,

202

7 Aiming Towards Responsible History in International …

Serbs plan to attack the Srebrenica “Safe Area” in the spring of 1995, the take-over of Srebrenica on 6–11 July 1995, the treatment of the Bosnian Muslim civilians of Srebrenica, and the impact of the crimes on the Bosnian Muslim community of Srebrenica.68 This section of the judgment provides a narrative detailing the historical background and context to the events in and around Srebrenica, which goes some way towards uncovering significant knowledge about the run up to the genocide. At the same time, however, the judges expressly acknowledged the limits of their narratives: [t]he Trial Chamber leaves it to historians and social psychologist to plumb the depths of this episode of the Balkan conflict and to probe for deep-seated causes. The task at hand is a more modest one: to find, from the evidence presented during the trial, what happened during that period of about nine days and, ultimately, whether the defendant in this case, General Krsti´c was criminally responsible, under the tenets of international law, for his participation in them.69

These examples merely serve to illustrate some of the many ways in which the historical narratives emerging from ICTs have assisted in enhancing understanding of armed conflicts. Another way of looking at the value of the historical narratives written by ICTs is to consider the counterfactual—conflicts for which there are no trial narratives. One clear example of this is the case of Armenia, a case which to this day continues to be hotly disputed. Early on in the First World War, the Allies proclaimed that the leaders of Ottoman Turkey should be prosecuted for the outrages to the Armenians of 1915.70 Subsequently, in 1920, the Treaty of Sèvres was signed, Article 230 of which required the Ottoman Empire to hand over to the Allies all those suspected of massacres during the war, to recognize the right of a competent tribunal to try the accused and to hand over all documents and information necessary to prove the incriminating acts to ensure the prosecutions of the accused.71 However, because of a series of political and legal complexities which ensued, these prosecutions never materialised. Indeed, although in 1919, the British took Said Halim Pasha and other senior ministers into their own custody and transferred them to Malta with the intention of prosecuting them, a number of factors contributed to the collapse of those trials, including internal dissentions among the Allies and the difficulty of obtaining evidence from a hostile government in Turkey for events committed five years previously.72 Hence the prosecutions never materialised and, in November 1921, Said Halim and the others were returned to Turkey. 68 ICTY,

Prosecutor v. Radislav Krsti´c, Judgment, 2001, IT-98-33-T, para 6. para 2. 70 Laughland 2008, p. 52; the alleged offences included: (1) Failure to comply with the terms of the armistice; (2) Impeding the execution of the terms of the armistice; (3) Insolence towards British officers; (4) Ill-treatment of allied prisoners-of-war; (5) Outrages to Armenians and other minorities; (6) Participation in looting and other crimes against property; and (7) Breaches of the laws and customs of war: see Bonello 2008, p. 184. 71 Bonello 2008, p. 186. 72 Laughland 2008, p. 53; Bonello notes, in this regard, “For reasons never explained, the British authorities do not seem to have ever considered using in Malta any of the—mostly documentary— evidence on Armenian atrocities of which Turkish prisoners had been accused and convicted by 69 Ibid.,

7.2 The Value of the History-Writing Function …

203

As a result, the question of whether the atrocities committed against the Armenians constituted the crime of genocide remains “one of the longest-standing controversies in today’s European politics and in international law”.73 While it is not possible to know with certainty what difference the “Malta Trials” may have made, it is possible to speculate that, had such criminal prosecutions been conducted effectively, the evidence and findings that would have emerged from such trials would have enhanced historical understanding of the atrocities committed and put them on the public record. This would, in turn, have narrowed the range of permissible lies in circulation.74 It could potentially have helped avoid a situation where the continued disagreement on facts and causes has tended to “marginalize victim groups, intensify rivalry, and facilitate the recycling of old repressions into new ones”.75 Reflecting on the aborted “Malta Trials”, Bonello considers that: [h]ad the preparatory enquiries and fact-findings run their course seriously and convincingly at the hands of neutral investigators, those tribunals would have helped to answer the endlessly haunting question whether massacres or genocide actually occurred, as the Armenians claim, or did not, as the Turks, equally indignantly assert. Without the Malta process running full term, the acrimonious debate goes on, with very meagre prospect of resolution, so entrenched are both sides in asserting and denying. The fact itself that the Malta trials aborted is seen as an argument in favour of the assertionists by Armenians and for the negationists by Turks.76

Yet another reason for moving towards a more moderate approach to historywriting in international criminal adjudication is that, in the context of any armed conflict, there is usually no shortage of potential actors vying to advance their particular versions of history. If we were to adopt the views of strict legality, therefore, and if ICTs were to hold back from performing a history-writing function, other, potentially less reliable, players would more than likely step into that void. Or, as Mayer has put it, “[i]f good judges and historians shun these tasks, they will be taken on by prejudiced or triumphalist ones.”77 Therefore, arguments from strict legality that urge judges of ICTs to focus on justice-and-nothing-else may be doing a disservice to posterity, as they leave the window open for individuals and societies “to indulge their fantasies of denial.”78 Such a restrictive approach would be detrimental not only for the victims and societies involved, but also for the legacies of the respective ICTs. Legacy has nowadays become a buzzword in international criminal justice scholarship. The modern view is that ICTs should leave a lasting impact beyond prosecuting a select number of individuals.79 As Dittrich has argued, the notion of “legacies” may have a plurality Turkish military courts shortly after the armistice—substantial and disturbing documents”: see Bonello 2008, p. 190. 73 Bonello 2008, p. 180. 74 Ignatieff 1996, p. 113. 75 Adler 2018, p. 3. 76 Bonello 2008, p. 193. 77 Cited in Petrovi´ c 2016, p. 298. 78 Ignatieff 1996, p. 118. 79 Dittrich 2013, p. 197.

204

7 Aiming Towards Responsible History in International …

of meanings and could be seen to include not only legal legacies but also historical legacies of the ICTs.80 After all, ICTs are only ever able to prosecute a handful of perpetrators and an important aspect of their legacies will lie in the historical narratives of the conflicts they leave behind.81 Already in Nuremberg, Telford Taylor observed: [t]he mere punishment of the defendants, or even of thousands of others equally guilty, can never redress the terrible injuries which the Nazis visited on these unfortunate peoples. For them it is far more important that these incredible events be established by clear and public proof, so that no one can ever doubt that they were fact and not fable; and that this Court […] as the voice of humanity, stamp these acts, and the ideas which engendered them, as barbarous and criminal.82

Writing with respect to the historical legacies of the ICTY, for instance, Milanovi´c states that establishing the facts regarding the crimes committed during the breakup of the former Yugoslavia is, together with its punitive function, the one aspect of the ICTY’s legacy that “is potentially the most meaningful for ordinary people living in the former Yugoslavia, and the one where the consequences of the ICTY’s work may be felt the longest”.83 Similarly, the ICTR has been mindful of its legacy through such projects as the “The Genocide Story Project”, which aims to provide an account of genocide in Rwanda as told by the ICTR’s judgments.84 Even judges of the ICC, though this is a permanent court, need to be mindful of the historical legacies of this Court. This is because, while the ICC itself may be a permanent body, there are elements that are finite or transient; for instance, judgements are delivered, cases completed and situations closed.85 Thus, a concern about legacies is another reason for placing value on the history-writing function of ICTs. The above arguments and rationales would therefore tend to support a moderate approach to the history-writing function in international criminal adjudication, one that recognises the strengths and comparative advantages of ICTs in performing this function, while also acknowledging their respective constraints and limitations. In this respect, the next section will develop the elements of a more moderate, normative framework called “responsible history”.

80 Ibid.,

p. 198. 2002b, p. 331; Aksenova 2017, p. 56. 82 IMT, Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 1945, 42 vols, para 27 (opening statement in United States v. Brandt). See also Osiel 1999, p. 276. 83 Milanovic 2016, p. 234. 84 v H Holtermann 2017, pp. 206–7. 85 Dittrich 2013, p. 201; the author argues that “for the ICC such discourse has been absent, arguably regarded as blue-skies thinking by many who question why and how a permanent institution might consider closure and legacy. The term legacy has been seemingly eschewed inside and outside the Court. Here it is argued that the term deserves to be explicitly introduced as a concept the ICC is grappling with.”: see ibid. 81 Evans

7.3 Developing a Responsible History Framework

205

7.3 Developing a Responsible History Framework A “responsible” approach to the history-writing function of ICTs reflects, first and foremost, a recognition that such courts and tribunals are epistemic engines, which inevitably generate historical knowledge about the conflicts before them. From the perspectives of truth and justice, and the emerging right to truth, moreover, the production of such knowledge is considered an important objective of criminal trials. Secondly, a responsible history framework requires a commitment to the virtues of accuracy and sincerity. ICTs could not, and should not, aspire towards writing complete narratives of the conflict. It is inevitable that the historical narratives they generate will be selective and incomplete. However, what responsible history requires is that, in writing historical narratives, judges (and prosecutors) should aim towards the virtues of accuracy and sincerity. They should seek, as far as possible, to write accurate and sincere versions of truth, and adopt strategies that promote those values.86 Thirdly, the historical narratives that judges of ICTs ultimately distil and produce in their judgments ought to be, to the extent possible in the circumstances of each case, self-disruptive and should demonstrate an awareness of their constraints and limitations. Finally, a responsible approach to history in international criminal adjudication should reflect a recognition that, while the court judgment has to bring finality with respect to the legal findings, broader discussions of history should not be seen as the last word on the subject, but rather should be recognised as discursive beginnings that will continue to be reinterpreted in the future. A responsible history framework, therefore, diverges from strict legality, which tends to characterise history-writing as an “ulterior” objective that detracts from the trial’s main purpose of rendering justice. The responsible history framework also diverges from didactic legality, which tends to emphasize the educational and dramatic aspects of criminal trials. As such, the responsible history framework seeks to steer a middle course between these two ends of the spectrum. Four central elements underpin this normative framework: 1. A recognition of the value of the history-writing function in international criminal adjudication. 2. A commitment to the virtues of accuracy and sincerity in the search for truth. 3. A recognition of the constraints and limitations of the historical narratives written by judges of ICTs. 4. A recognition that judges and lawyers do not necessarily have the last word on history.

86 The

rationale for encouraging a pluralist approach to historical evidence to promote greater accuracy and sincerity in the search for truth is different from the rationale of didactic legality that broader deliberations of conflicting accounts of recent history in criminal trials could facilitate reconciliation and solidarity: see Osiel 1999, p. 41.

206

7 Aiming Towards Responsible History in International …

7.3.1 A Recognition of the Value of the History-Writing Function in International Criminal Adjudication A responsible history framework entails, first and foremost, a recognition that discussions of historical contexts in international criminal proceedings are important in order to: (a) promote greater understanding of the crimes charged and (b) promote the broader right to truth for victims and society to know what happened. The value of such discussions has already been set out in detail above (and in Chap. 2) and this section will not rehearse those arguments. Rather, this section will seek to demonstrate that a recognition of the value of the history-writing function is a necessary starting point (or condition) for responsible history. With respect to the value of historical context in promoting understanding of the crimes charged, as discussed in Chap. 2, the search for truth in criminal trials is concerned, as Damaška notes, not only with the empirical question whether something happened, but also with the reasons-seeking question of why something happened.87 In the course of a criminal trial, knowledge is produced about not only whether or not the crimes charged happened and whether or not the accused is responsible, but also about the broader contexts of such crimes and responsibility (why they happened). As noted, this is particularly so in mass atrocity trials. While in domestic criminal trials, the reference to “truth” usually has a very limited meaning, referring only to establishing the truth about the specific controversy, in mass atrocity trials, the political, cultural, and historical contexts are usually more fluid and contested. In order to establish “truth” about the alleged crimes, therefore, it becomes necessary to establish wider truths about the contested historical and political contexts.88 On this count, Douglas posits: the atrocity trial invariably raises fraught questions of historical truth, as crimes of atrocity necessarily deal with large communities and actions perpetrated over broad swaths of space and time. In cases applying international incriminations such as crimes against humanity and genocide, this is true by definition: what constitutes a systematic attack on a civilian population or what constitutes an attempt to destroy members of a group qua group are legal questions that can only be answered by a thorough consideration of the historical record.89

Such questions came to the fore, for instance, in February 2013, in the ICC PreTrial Chamber proceedings against the former president of Côte d’Ivoire, Laurent Gbagbo. In this confirmation hearing, contestations over historical contexts relating to understanding the four charges of crimes against humanity against him soon took centre stage. With respect to what occurred in the five months after Côte d’Ivoire’s hotly contested elections in November 2010, which left an estimated three thousand civilians dead, the historical narratives of the prosecution and the defence “were diametrically competing”.90 For instance, in Gbagbo’s opinion, the prosecution had 87 Damaška

1998, pp. 299–300. 2002a, pp. 11–2. 89 Douglas 2016, p. 37. 90 Bouwknegt 2018, p. 119. 88 Koskenniemi

7.3 Developing a Responsible History Framework

207

distorted the facts and “constructed a mere caricature of the history of Côte d’Ivoire, which made it impossible for them to fully grasp the issues at stake or to understand the reality of the crisis in this country.”91 This case merely illustrates the kinds of fluid and contested historical and political contexts of the crimes coming before ICTs. In such circumstances, allowing discussion of those competing historical contexts becomes necessary for judges to gain a broader understanding of different frames and explanations for the actions of the accused persons. Otherwise, as Judge Pillay put it in relation to the Rwandan genocide, “it’s just one ethnic group killing another ethnic group with no reason why.”92 History is necessary for an understanding of why the conflict occurred. The discussions of historical contexts enable the judges to put themselves in the shoes of the participants themselves and, as Judge Agranat stated, understand life as they understood it, which, in turn, places them in a better position to judge those actions.93 With respect to the value of history in promoting the right to truth for victims and society, as noted in Chap. 2, several international judges, the UN Special Rapporteur on the promotion of truth, and scholars have argued that there is a clear trend towards recognising this right in cases of gross human rights violations.94 With respect to mass atrocities, Marrus emphasizes the point that the greater the wrong, the greater society’s concern “that representations of the past in trials be not only accurate but also complete.”95 In this way, criminal proceedings could play a central role in addressing the principal concern of affected victims, their families and society in general to know what happened and to be confident that “the best possible narrative of events is left behind”.96 A first necessary condition of responsible history, therefore, is that judges (and prosecutors) of ICTs recognise the value of the history-writing function in mass atrocity trials. It is important that they move beyond an overly restrictive approach, as articulated, for instance, by the former president of the ICTR, that “the purpose of a criminal trial is to establish individual guilt, not to establish the historical truth about the conflicts.”97 Rather than adopting an a priori restrictive approach to historywriting, a responsible history framework recognises that history-writing is an important objective of international criminal trials. Indeed, as Wald has noted, there can be little question that the exquisitely detailed accounts of wartime atrocities, elicited in month- and year-long trials at ICTs, have contributed mightily to the process of writing the histories of armed conflicts.98

91 ICC, Prosecutor v. Laurent Gbagbo, Confirmation of Charges Hearing Transcript, 2013, ICC02/11-01/11-T-21-ENG, para 44–5. 92 Cited in Wilson 2011, p. 72. 93 Cited in Bilsky 2004, p. 63. 94 See Naqvi 2006; Panepinto 2017. 95 Marrus 2002, p. 229. 96 Nice 2017, p. 28. 97 Cited in Sander 2018c, p. 338. 98 Wald 2008, p. 911.

208

7 Aiming Towards Responsible History in International …

Therefore, while recognising that law and history are not always in “harmonious accord”, and acknowledging the various constraints, limitations and blind spots of the narratives written by ICTs, a responsible history framework also recognises that neither are they always in “inherent contradiction”.99 Or, in other words, a responsible history framework calls for a more moderate, nuanced assessment of the relationship between judging international crimes and writing history.

7.3.2 A Commitment to the Virtues of Accuracy and Sincerity in the Search for Truth Having recognised the value of historical discussions in international criminal trials, therefore, the second element of this framework concerns a commitment to search for truth “responsibly”. The focus here will be on the role of judges in this search, together with the role of prosecutors who, as officers of the court, are also entrusted with the search for truth.100 The underlying, and hopefully uncontroversial, assumption of this discussion is that it is possible to aim at some level of objective truth.101 For instance, Damaška observes that one of the working assumptions of the practice of adjudication is that “truth is in principle discoverable”.102 From that assumption, the next part will discuss how judges of ICTs could aim at writing “truthful”, responsible accounts of the past, drawing on Bernard Williams’ concept of truth and truthfulness, which is considered to be particularly suited to the context of criminal adjudication because of Williams’ focus on the role of truth in contemporary society and governance institutions.103 Williams’ begins his discussion of truth by situating it as one of the key challenges of modern society. In particular, there is a tension between, on the one hand, something bordering on an obsession with truth, an enthusiasm for transparency, and on the other hand, a denial of truth, particularly in the context of a post-truth society, where individuals are increasingly losing faith in the accuracy and transparency of information that institutions provide.104 According to Williams, these two opposing forces—the devotion to truthfulness and the suspicion directed at the idea of truth— are connected to one other. The desire for truthfulness drives a process of criticism which weakens the assurance that there is any secure or unqualifiedly stateable truth. As a result of this process, historical accounts which have been offered as telling the truth about the past, whether produced by historians, ICTs or other writers of history,

99 Wilson

2011, p. 13.

100 See, for instance, Article 54 of the Rome Statute of the ICC (“Duties and powers of the Prosecutor

with respect to investigations”). 2011, p. 7. 102 Damaška 1998, p. 289. 103 Williams 2004. 104 Cooper 2003, p. 411; see in the context of American society, Kavanagh and Rich 2018, pp. 50–1. 101 Wilson

7.3 Developing a Responsible History Framework

209

may turn out to be biased, ideological, or self-serving.105 Williams characterises this tension as one between truth and truthfulness. His book is an exploration of what these concepts mean in contemporary society, with particular reference to institutions involved in governance. Williams defends the commitment to truthfulness as an intellectual objective and a cultural value, important not only for individuals, but also for institutions. According to his theory, a commitment to truthfulness entails a respect for the two basic virtues of truth, namely: (a) accuracy and (b) sincerity. In brief, “accuracy” aims at finding out the truth and “sincerity” at telling it. The virtue of accuracy is manifested in objectivity, honesty and industry with which actors try to establish what is true or false. The virtue of sincerity, in their efforts to communicate what they believe to be true and, more generally, to be trustworthy speakers who do not mislead.106 In this context, Williams observes that asserting what one believes is not generally sufficient for sincerity, if what is asserted is selective and intended to mislead.107 According to Williams, a respect for accuracy and sincerity entails that: “you do the best you can to acquire true beliefs, and what you say reveals what you believe”.108 Even though Williams’ framework relates to the search for truth by governance institutions generally, and not specifically by criminal courts, his approach to truth could be fruitfully applied to the context of criminal courts because, inter alia, of the centrality of the search for truth in criminal justice. This aim has been repeatedly reaffirmed by judges, practitioners and scholars in the area.109 Williams’ framework thus enables us to re-assess the truthfulness of the historical narratives produced by ICTs from the perspective of accuracy and sincerity. It offers us a new and promising perspective from which to consider old concerns which have been levelled at such narratives: for instance, that while they may be accurate in terms of their findings, they may also be highly selective in their retellings of the past. The next part will thus use Williams’ framework to examine some of the histories written by ICTs.

7.3.2.1

The Virtue of Accuracy

Williams argues that an individual “A” who is conscientiously acting in circumstances of trust to inform other people about a belief will take trouble to make sure, to a reasonable degree, that the belief she passes on is true.110 The idea therefore is that “A” will make an appropriate “investigative investment” in order to ascertain the accuracy of her belief. Here, there is a close linkage between the virtues of accuracy and sincerity. Williams notes that when a speaker makes an assertion, she conveys 105 Williams

2004, p. 1. 2003, pp. 411–2. 107 Ibid., p. 412. 108 Williams 2004, p. 8. 109 Laudan 2006. 110 Williams 2004, p. 55. 106 Cooper

210

7 Aiming Towards Responsible History in International …

information to a hearer who is going to rely on it, in circumstances of trust, and someone who is conscientiously acting in circumstances of trust will not only say what she believes, but will take trouble to do the best she can to ascertain that what she believes is true.111 Elaborating on this point, Williams posits that: if others are to rely on what you tell them, you need, as well as not misleading them about what you believe, to take the trouble to make sure that your belief is true. This may affect the investigative investment you think appropriate. To the degree that you owe them the truth […] to that degree you owe them an appropriate effort to get hold of the truth.112

The investigative investment that Williams refers to implies care and reliability in discovering and coming to hold a belief. It also entails the notion of effective investigation, and this itself implies that there is “a genuine property which some methods of inquiry have and some others lack, the property of leading to true belief: we may say, summarily, that some methods of inquiry are truth-acquiring”.113 As discussed in Chap. 6, not all methods of inquiry are appropriately truth-conducive. The appropriateness of the investigative investment will depend on the particular circumstances of each case. For instance, within the field of adjudication, different approaches will be appropriate for different branches of law: the investigative investment would need to be greater in the field of criminal adjudication than it would need to be in other fields (such as administrative and civil adjudication), given that, in the area of criminal law, the value of accuracy ranks particularly “high on the totem pole”.114 The virtue of accuracy is highly valued in international criminal adjudication, even though, as Combs has pointed out, there are a number of “pervasive and invidious obstacles” which may negatively impact on accurate fact-finding.115 In particular, the rules of procedure and evidence tend to place importance on the investigative investment required for an accurate search for truth. For instance, Article 54(1)(a) of the Rome Statute of the ICC provides that the prosecutor shall: [i]n order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally;116

Sub-paragraph (b) goes on to state that the prosecutor should take appropriate measures to ensure that any such investigation is “effective”. Moreover, it has been noted that, at trial, the adversarial system compels competing versions of truth to be aired openly and be challenged robustly, thus highlighting their respective strengths and limitations. Particularly in relation to the admission and assessment of evidence and witness testimony, judges of ICTs have demonstrated a heightened concern with 111 Ibid. 112 Ibid.,

p. 105. p. 89. 114 Damaška 1998, pp. 290, 305. 115 Combs 2018, p. 226. 116 Article 54(1)(a) of the Rome Statute of the ICC. 113 Ibid.,

7.3 Developing a Responsible History Framework

211

ensuring accuracy and have interpreted procedural rules flexibly, with this concern in mind. In Gali´c, for instance, the Appeal Chamber cited the importance of accuracy in judgments as a reason for allowing evidence that existed at the time of the trial to be nevertheless admitted for the first time on appeal.117 And in Kupreški´c et al., the ICTY Appeal Chamber emphasised the need to rigorously investigate any imprecision or inaccuracy in witness testimony, to ensure that the most accurate accounts from such testimony are produced. 118 This commitment to accuracy is shared also by prosecutors, who have often emphasized this commitment in their investigations.119 While therefore judges of ICTs have generally demonstrated a heightened concern for truth and accuracy in criminal proceedings, the search for truth in criminal trials, as discussed in Chap. 1, may often come in tension with other priorities, such as due process and expeditiousness. The way these tensions are resolved may impact significantly on the shape of the investigative investment. In addressing these tensions, sometimes, there is no (or little) room for judicial discretion. Thus, where evidence would have been obtained by torture (and, therefore, contrary to fundamental due process rules), the tension has to be resolved in favour of due process and judges would have to refuse to admit such evidence.120 In other cases, however, there is more latitude for judicial discretion, such as in cases where judges may have to balance between allowing broader evidence of historical contexts or curtailing such evidence to promote expeditious trials. And, as has been seen in Chap. 4, some judges have tended to favour the latter approach.121 In areas where judicial discretion exists with respect to the balancing of the different, competing priorities of criminal trial, the argument from responsible history is that, to paraphrase Williams, as actors that operate in circumstances of trust to inform other people about their beliefs, judges of ICTs should “take trouble to make sure, to a reasonable degree, that the beliefs they pass on are true”. They should do all that is reasonably possible, within the circumstances of each case, to ensure their investigative investment leads them to accurate beliefs. For instance, the investigative investment may be shaped by varying case management strategies.122 In some cases, judges primarily concerned with expeditious trials may seek to cut short the discussion of competing historical evidence, which may impact on their accurate understanding of the alleged crimes in their broader historical contexts.123 Rather, responsible history would favour management strategies that allow for what Bilsky refers to as “reflective judgment”. According to the author, 117 ICTY, Prosecutor v. Stanislav Gali´ c, Decision On The First And Third Rule 115 Defence Motions

To Present Additional Evidence Before The Appeals Chamber, 2005, IT-98-29-A, para 15 (emphasis added). 118 ICTY, Prosecutor v. Zoran Kupreški´ c, Mirjan Kupreški´c, Vlatko Kupreški´c, Drago Josipovi´c and Vladimir Šantic, Appeal Judgment, 2001, IT-95-16-A, para 38. 119 Baig et al. 2016, p. 216. 120 Laudan 2006, p. 223. 121 Kwon 2007, p. 373. 122 Langer 2005; Byrne 2009. 123 Consider, for instance, the approach of the judges of the Iraqi High Tribunal: see Drumbl 2003, p. 178.

212

7 Aiming Towards Responsible History in International …

“[t]he judging subject engages in such an exercise through communication with others and by relying on his or her faculty of imagination to conceive how the world would have looked from another’s person’s position.”124 Bilsky notes: [r]eflective judgment does not mean seeking complete identification with the other, since that would merely be to trade one’s subjective viewpoint (and prejudices) for another’s. Rather, it requires rising above one’s private inclinations and interests and learning to entertain a plurality of perspectives simultaneously: “the more people’s standpoints I have in my mind […] the more valid my final conclusion.”125

In order to be able to consider such a plurality of perspectives, reflective judgment thus requires the adoption of a pluralist approach to the admission and management of historical evidence at trial. This, in turn, would promote greater accuracy in the judges’ understanding of the contexts of the crimes.126 This is because, slightly tweaking Bilsky’s statement, the more people’s standpoints I have in my mind, the more accurate is my understanding of the competing perspectives and the more accurate my final conclusion. This is particularly important in mass atrocity trials, given the often fluid and contested nature of historical contexts of armed conflicts. As was discussed in Chap. 6, these contested contexts do not start on an equal footing. Rather, exponents of a mainstream opinions enter the conversation with attitudes already strongly weighted in their favour.127 Thus, in order to try to promote a more accurate understanding of the contexts in which the charged crimes have occurred, subject to the applicable rules of procedure and evidence, as well as the circumstances of each case, parties and, as applicable, participants should be allowed to challenge prevailing historical contexts and present their competing interpretations, explanations and evidence of these contexts. In relation to the ICTY, Koskenniemi submits that “[i]f individual criminality always presumes some context, and it is the context which is at dispute, then it is necessary for an accused […] to attack the context that his adversaries offer to him.”128 And of course, it is not sufficient to only let the defendant speak, the judges need to “take what he says seriously”,129 that is, where appropriate, accept the strengths and/or limitations of his explanations. This approach, thus, necessarily entails an “irreducible risk” that subversive or revisionist narratives may be presented at trial and, potentially, could prevail.130 But this is an inherent risk of liberal, criminal trials.

124 Bilsky

2004, pp. 136–7. p. 138. 126 See, for instance, Hammond 2018, p. 435. 127 Heinze 2017, p. 423. 128 Koskenniemi 2002a, pp. 16–7. 129 Ibid., p. 18. 130 Kirchheimer 1961, p. 339. 125 Ibid.,

7.3 Developing a Responsible History Framework

213

It is important to recall that the rules on the admission and presentation of evidence in international criminal adjudication are more flexible than their domestic counterparts.131 In applying such rules, a pluralist approach to historical evidence requires that competing interpretations are allowed to be aired openly at trial.132 However, drawing on lessons from strict legality, the boundary line is when such historical interpretations and evidence verge on the extraneous and/or seriously impinge on due process rights.133 A pluralist approach to the admission of historical evidence should, therefore, be distinguished from “free proof”, that is, an unrestricted approach to evidence that indiscriminately admits any material claimed by the parties to be “evidence”, regardless of its provenance or apparent reliability.134 Admittedly, the line between relevant and extraneous evidence is highly-contextual and may not always be easy to draw in practice. It will have to be decided on a case by case basis.135 Nevertheless, as Cryer notes, it is important to ensure that historical evidence remains relevant to the charges because: [a] defendant is on trial for specific offences and is entitled to a trial for those offences alone. A Trial Chamber should not permit the admission of evidence that is not relevant to the determination of specific charges. To stray from the principle of relevance risks prejudice to the defendant, and may give rise to claims that the defendant is being tried as a symbol of a group, rather than an individual.136

The main reason for encouraging such a pluralist approach to the admission of historical evidence is to promote greater accuracy in the search for truth. By having the opportunity to consider the competing interpretations and understandings of the historical contexts, judges would be better able to undertake reflective judgment, thereby promoting greater accuracy in the ensuing findings. Or, to paraphrase the view of the former President of the ICTR, Judge Erik Møse, it is the responsibility of the judge to listen to the competing narratives of the parties, together with the written evidence and the testimonies of the witnesses. Each presents “his or her version of the truth. Our task is to get as close to it as possible.”137 Admittedly, such a pluralist 131 Khan

and Dixon 2009, p. 680 (9–1). For a discussion of the procedural rules on the admission and presentation of evidence at the various ICTs, see Ibid., p. 697 (9–41). According to Joyce, “[t]he flexibility approach to evidence emerging in international criminal procedure and the admission of hearsay evidence is illustrative of the unique position of these crimes and the need for a broader, more historically sensitive approach”: Joyce 2004, p. 478. 132 In relation to domestic courts, a number of legal epistemologists have studies how judges should assess the admissibility and reliability of, in particular, forensic evidence. See, for instance, Mnookin 2008; Sinnott-Armstrong et al. 2008. 133 As noted in Chap. 1, the admission of broader historical evidence in criminal trials per se will not breach due process rules. Admittedly, such evidence may give rise to tensions and may involve dangers for the rights of the accused. However, each case would have to be seen on its own merits. Moreover, the acknowledgement of the history-writing function “also points to a more substantive interpretation of such rights, and an acceptance of a significant role for victims in international criminal law”: Joyce 2004, p. 484. 134 Murphy 2010, p.. 539. 135 Cryer 2003, p. 418. 136 Ibid., pp. 418–9. 137 Cited in Bouwknegt 2018, p. 131.

214

7 Aiming Towards Responsible History in International …

approach may serve to prolong criminal trials, as the parties do battle over historical contexts. This is therefore a view that is not well-favoured by those who prioritise faster trials.138 This is particularly so given the lack of consensual criteria with respect to where to locate the beginning and end of such contexts, as discussed in Chap. 4 and below (with respect to the timeframe of the Rwandan conflict). Lawyers, therefore would need to cut out a small segment or segments from a broad spectrum of possible contexts, and “this is where their own preconceptions and intentions are crucial.”139 Though this approach may, therefore, be in tension with expeditious trials, it enables judges of ICTs to aim towards greater accuracy by evaluating the varying, competing perspectives and deciding on the most appropriate ways of framing the contexts of the charged crimes in their judgments.140 Thus, rather than privileging and/or relying on the judges’ own preconceptions of what historical contexts are “appropriate”, a pluralist approach promotes a genuine effort to understand the competing political and historical contexts from the perspectives of the parties and, as applicable, participants. This is important because in trials concerning large political upheaval, this is “precisely what is disputed in the individual actions that are the object of the trial.”141 If, conversely, judges of ICTs readily accept particular versions of historical contexts, there is a risk that they will impose their own preconceived understanding of the context of the alleged crimes.142 According to Koskenniemi, such a preconceived position was evident in Nuremberg, where the judges uncritically accepted the Allied position “that the war had been launched as Axis aggression and that every atrocity came about as a consequence of it.”143 Rather than recognise the difference, where everything was at stake, and allow the parties to present their narratives and counternarratives, the Nuremberg judges accepted the truth of the Allied view from the beginning and, from there, could characterise German atrocities against the Allies as criminal, but disregard Allied missions against Germany.144 138 Murphy

2010, p. 539. 2001, p. 158. 140 Though judges should remain aware of, and manage, the risk that “broadening the scope of the narrative can prejudice the defendant’s case, associating his or her actions with widespread patterns of behavior over which the defendant may have had no control”: see Peterson 2007, p. 267. 141 Koskenniemi 2002a, pp. 16–7 (emphasis added). Consider, for instance, the contested nature of the historical context around the downing of President Habyarimana’s plane and the lead up to the genocide in Rwanda in 1994: see Wilson 2011, p. 28. 142 Koskenniemi 2002a, pp. 16–7 (emphasis added). Consider, for instance, the contested nature of the historical context around the downing of President Habyarimana’s plane and the lead up to the genocide in Rwanda in 1994: see Wilson 2011, p. 28. 143 Koskenniemi 2002a, pp. 16–7. 144 Ibid.. The argument here is not one of moral equivalence. But by adopting a more pluralist approach to evidence, where everything was at stake, the judges at Nuremberg would have enabled a more accurate and nuanced account of criminal responsibility to emerge. Laughland observes that: “Herman Goering, Nuremberg’s star defendant and (among other things) the head of the Luftwaffe, was not indicted for the terror bombing of British cities (the famous Blitz) because the British did not want their own bomb attacks on German cities to be adduced in a tu quoque defence. The whole of Germany lay in rubble by the time the Nuremberg trails had started, and hundreds of thousands 139 Evans

7.3 Developing a Responsible History Framework

215

While the one-sided approach in Nuremberg was enshrined, by the victorious Allies, in the 1945 Charter establishing the Tribunal, the judges and prosecutors played along in perpetuating it. In particular, as discussed in the next section, a strongly, anti-pluralist approach to evidence was adopted during the trial proceedings, where the defendants were disallowed from challenging the historical contexts or the causes of the conflict. From this, it could be argued that the judges’ understanding of the appropriate contexts of the charges was impaired. Of course, any court or tribunal that exerts jurisdiction over situations of armed conflict is going to be viewed, by one or more of the parties, as potentially onesided. As Kirchheimer has argued, this is unavoidable because, in all political trials conducted by the judges of the successor regime, the judges are in a certain sense the victor’s judges: [w]hether their jurisdictions have been newly formed, or whether they have been confirmed, with whatever modifications, by the victors, they will be working on the basis and within the framework of the legal organization created by the political system of the victor.145

A more pluralistic approach to the admission of historical evidence may not, in itself, eliminate such perceptions of partiality. However, it helps to demonstrate that, at least, judges are making an effort to hear both sides and to ensure that their beliefs are as accurate as possible. Such a pluralist approach to historical evidence acquires greater significance when one takes into account postmodernist teachings regarding truth and power. In this respect, Foucault famously held that truth functions as a weapon, where “being on one side and not the other means that you are in a better position to speak the truth.”146 And, in a similar vein, Derrida argued that those in a position of power are better able to impose and legitimate their preferred interpretations and perspectives: [t]he dominant power is the one that manages to impose and, thus, to legitimate, indeed to legalize (for it is always a question of law) on a national or world stage, the terminology and thus the interpretation that best suits it in a given situation.147

While judges of ICTs with an eye to expeditious trials may be disinclined to allow extensive discussions of competing historical contexts, such an approach tends to privilege the dominant, mainstream interpretations and may, therefore, raise issues with respect to the accuracy of the contexts or interpretations that judges have adopted. Heinze notes in this regard that: [e]xponents of a mainstream opinion enter the conversation with attitudes already strongly weighted in their favour; with, so to speak, countless hours ‘awarded’ to their opinion even before this particular event begins. No discussion about something as value-laden as a controversial historical event can start with a clean slate.148 of civilians had perished in the firestorms with which Allied bombers deliberately destroyed her cities: the Germans’ air raids on Britain ‘paled by comparison’, according to Prosecutor Telford Taylor”: see Laughland 2008, p. 117. 145 Kirchheimer 1961, p. 332. 146 Foucault 1976, p. 53. 147 Derrida 2004, p. 105. 148 Heinze 2017, p. 423.

216

7 Aiming Towards Responsible History in International …

Admittedly, a pluralist approach would tend towards lengthier trials, which may not go down well with certain external constituencies of ICTs, such as States, funders and, possibly, even victims’ groups. Indeed, States and other political actors may have their own reasons for preferring narrower, more expeditious investigations. One way in which ICTs have attempted to strike a balance between these competing values has been through the “adjudicated facts” procedure, which is a creation of international criminal law.149 The rationale behind the “adjudicated facts” procedure is to address the challenge of: the repetition of the same crime-base evidence from trial to trial. As the factual bases for many cases at the Tribunal overlap, the same witness may be brought to The Hague on multiple occasions to give essentially the same evidence. An example of this is a witness-survivor of the events at Srebrenica in July 1995, who recently testified in […] Popovi´c and others. He has testified regarding these same events three times previously: in Krsti´c, in Blagojevi´c and Joki´c and in Miloševi´c.150

By taking notice of an adjudicated fact, a Chamber establishes a well-founded presumption of the accuracy of this fact, which therefore does not have to be proven again at trial.151 For instance, rule 94(B) of the rules of ICTY rules of procedure and evidence allows a Trial Chamber to take judicial notice of facts adjudicated in a previous case of the Tribunal.152 In the case of the ICTR, for instance, that the crime of genocide was committed was such an adjudicated fact, as it was considered notorious and “not subject to reasonable dispute”.153 The purpose behind the adjudicated facts procedure is to reduce the need for repetitive testimony and exhibits in successive cases. Because so many of the cases at the Tribunal deal with the same events, a great deal of identical or nearly identical evidence is produced in case after case, consuming considerable time and resources.154 The procedure of adjudicated facts has been described as an eminently rational policy “of following ‘the path of least resistance’ to an acceptable conclusion”.155 ˇ Cavoški notes that there is nothing strange, in a well-ordered judicial system, for a court to rely on facts adjudicated by a valid judgment of a court or tribunal without further re-examination, in order to promote expedition.156 However, it could give rise to multiple tensions.157 From a responsible history perspective, it could, in some cases, encourage the uncritical acceptance of certain (contentious) historical facts as 149 Kwon

2007, p. 369. Taking judicial notice of adjudicated facts is quite different from taking judicial notice of facts of common knowledge: see Ibid. 150 Kwon 2007, p. 363. 151 ICTR, Théoneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze, and Anatole Nsengiyumva, v. Prosecutor, Decision On Anatole Nsengiytjmva’s Motion For Judicial Notice, 2010, ICTR-98-41-A, para 7. 152 The ICTR rules contain a similar provision. 153 ICTR, Prosecutor v. André Rwamakuba, Judgment, 2006, ICTR-98-44C-T, para 210. 154 Kwon 2007, p. 369. 155 Rescher 2006, p. 47. 156 Cavoški ˇ 2002, p. 78. 157 Kwon 2007, p 371. See also Aguilera 2013, p. 135.

7.3 Developing a Responsible History Framework

217

adjudicated and, therefore, presumed accurate.158 This poses a risk particularly in cases where the prosecution seeks notice of a large number of such facts. In such cases, this procedure may have implications for the accuracy of the historical record.159 For ˇ instance, Cavoški has argued that a number of the 271 historical facts of which the ICTY Tribunal took judicial notice in the Gali´c case160 involved contentious assumptions that were disputed among historians.161 This procedure may, thus, in appropriate circumstances, offer a compromise between allowing historical evidence while promoting expeditious trials. However, judges would need to ensure that they did not accept as adjudicated facts those that were still the subject of reasonable dispute among historians.162 At trial, it is not only judges, but also prosecutors who play a primary role in the search for truth. The tensions involved in balancing the epistemic search for accuracy against other non-epistemic priorities, such as strategic priorities and expedition, came to the fore in the Miloševi´c trial. In that trial, the lawyers, investigators, and analysts from the Prosecution teams were divided on the issue of whether to charge the accused with the crime of genocide. Those who opposed this charge suggested that it would strategically be far easier to prove the mental element for crimes against humanity than the specific intent element required for genocide.163 However, the then prosecutor, Nice, argued that crimes against humanity would not accurately reflect the alleged crimes, and a truthful and accurate account of events was owed to the victims, even if this would take a longer time: [i]dentifying who bears criminal responsibility for Srebrenica has taken a very long time, partly because it has been necessary - in trial after trial - to explore the intent of individuals and of the state of Serbia and to unravel exactly this kind of difficulty. This would not have happened to the same extent had it only been possible to charge events as crimes against humanity or war crimes. The time taken to explore genocide at many trials may not have served the victims well, but if the victim and the bystander are entitled - as I believe they are - to say or have said on their behalf ‘this was a genocide’ then such a consequence will follow and may have to be accepted.164

Of course, following the untimely death of Slobodan Miloševi´c, his trial remained unfinished, and both professionals and the public wondered “how the scale of the indictments and the extent of the charges had impacted the speed and management of the trial.”165 In this respect, Wilson notes that observers condemned the prosecutor’s excessive concern with history and the judges’ failure to curtail Miloševi´c’s forays into distant history.166 158 Koskenniemi

2002a, pp. 33–4. 2007, p. 371. 160 Case No. IT-98-29-PT. 161 Cavoški ˇ 2002, p. 77. 162 Koskenniemi 2002a, pp. 32–33. 163 Tromp 2016, p. 11. 164 Nice 2017, p. 191. 165 Tromp 2016, p. 12. 166 Wilson 2011, p. 1. 159 Kwon

218

7 Aiming Towards Responsible History in International …

Various reasons have been put forward to account for the delays in the Miloševi´c trial and, as Murphy has posited, it would be “naive to try to pin the whole blame for the Miloševi´c debacle on any one factor.”167 The magnitude of the charges and need for extensive historical contextualisation undoubtedly played a role in the complexities of this case. However, the manner in which the trial was managed and, in particular, the manner in which the accused was allowed to represent himself and conduct his defence, together with his recurring health problems, also contributed.168 Tromp notes that “[s]elf-representation by Miloševi´c slowed the pace of the case in part because of the time he spent questioning witnesses, often addressing issues that had no probative relevance […]. But his health was also regularly on the agenda of the court.”169 Therefore, it was not any one factor alone that caused the delays in this case. Thus, in summary, responsible history requires that judges, and prosecutors, place a high store on accuracy, particularly when balancing this priority against other competing priorities. As has been discussed, responsible history favours a pluralist approach to the admission of relevant, competing historical evidence. Such an approach promotes greater truthfulness in the historical accounts produced by ICTs, especially when the commitment to accuracy is accompanied by a commitment to sincerity, a subject which will be considered next.

7.3.2.2

The Virtue of Sincerity

For Williams, the virtue of sincerity, at its most basic level, is simply one of openness, a lack of “inhibition”. Insincerity, on the other hand, requires speakers to adjust the content of what they say.170 Of course, this does not mean that all adjustment or reflective thought about what speakers should say is insincerity. Williams acknowledges that there are other demands on what speakers say and they may have reasons “not for concealing the truth but for expressing it very carefully”.171 At its broadest, therefore, the virtue of sincerity means an effort on the part of speakers to communicate what they believe to be true and, more generally, to be trustworthy speakers who do not mislead.172 In this context, as noted above, Williams contends that asserting what one believes is not generally sufficient for sincerity, if such assertions are intended to deliberately mislead. On this point, Cooper offers an example of insincere communication:

167 Murphy 168 Tromp

2010, p. 542; see, for instance, Waters 2014; Tromp 2016. 2016, p. 13.

169 Ibid. 170 Williams

2004, p. 75. pp. 75–6. 172 Cooper 2003, pp. 411–2. 171 Ibid.,

7.3 Developing a Responsible History Framework

219

[w]hen it is I who opened your mail, my telling you ‘Someone has been opening your mail’ will be true, but highly misleading. The Sincere speaker avoids conveying certain ‘implicatures’ as much as he eschews the statement of falsehoods.173

Therefore, sincerity, in addition to requiring speakers to communicate what they believe to be true also requires them not to set out to deliberately mislead. Williams argues that the virtue of sincerity is closely connected to the notions of openness,174 integrity and authenticity.175 It is also closely connected to the notion of trust.176 Trust is a very important value in international criminal justice, which is closely linked to the legitimacy of ICTs. While levels of trust in ICTs could depend on several factors,177 if ICTs are not broadly trusted by their audiences, this could impact on their legitimacy which, in turn, would have implications for their ability to perform their functions effectively. As an example, v H Holtermann notes that one important feature of ICTs is that we respect the outcome of the trial process as final. Otherwise ICTs would not be able to perform their functions effectively. But we entrust a court and/or tribunal with this responsibility only because: we generally trust its judgments; we presuppose the general veracity of the evidentiary procedures through which these judgments are produced. This is a precondition of its autonomy, and its existence as such is revealed in the way we respond, and expect the system to respond, when the precondition is too blatantly violated - i.e. when the outcome is found to be too much at odds with our ordinary concept of truth.178

One way in which ICTs could breach their audiences’ trust is when they set out to be insincere to their audiences—when they deliberately present partial and onesided accounts aimed at misleading their audiences. While it is acknowledged that the narratives of ICTs are always going to be selective,179 the argument here is that, one way in which ICTs could aim towards more sincerity is by employing some public and defensible methods or criteria for selecting and/or rejecting potentially relevant subject-matters. The purpose of such criteria is to reduce the margin of arbitrariness and partiality in the selection of subject-matters. In any situation concerning mass atrocities, selectivity is inevitable. Williams notes that, in any narrative, there is a question of what is left out, above all what is left out and can be claimed to be relevant.180 Reasonable historians may disagree over what they regard as relevant and significant. Williams recognises that: 173 Ibid.,

p. 412. 2004, p. 52. 175 Ibid., p 121; in this context, he notes that the opposite of authenticity, hypocrisy “is an offence in public or interpersonal relations, a violation of sincerity […]”: see ibid., p. 184. 176 Williams 2004, p. 61. 177 For instance, Milanovi´ c argues that, with respect to survey results on the ICTY, there is a strong relationship between the respondents’ ethnicity, their perception of the ICTY’s bias against members of their own group, and their (lack of) trust in the ICTY and in its findings: see Milanovic 2016, p. 253. 178 v H Holtermann 2017, pp. 223–4. 179 Simpson 1997, p. 810; Burgis-Kasthala 2015, p. 258. 180 Williams 2004, p. 171. 174 Williams

220

7 Aiming Towards Responsible History in International …

[a] given fact is considered by some historians relevant and important to their whole view of a topic or period. Others think differently. Some of the latter may mention it and say something to put it in what they take to be its place, but some may not mention it at all.181

It is therefore not the selectivity and/or omissions of facts in the narratives per se that would make them insincere. It is rather the criteria for selecting and/or omitting relevant facts that could give rise to insincerity, particularly when such criteria were deliberately used to mislead. An account of the past that aims towards truth should be based on methods for selecting and/or rejecting subject matters that follow some public and defensible criteria. Judges and prosecutors should, like historians, be able to explain and defend their selection of certain events and factors as significant, by appealing to theoretical models or rationales for their choices.182 The question of what criteria could be considered “defensible” is of course context-dependent. However, it would be difficult to argue that criteria aimed at, for instance, shielding one’s own crimes, or overlooking disconfirming evidence, could be considered defensible in either law or history.183 Above all, sincerity requires that any selections/omissions in the narratives are not arbitrary, deceptive or abusive.184 Williams acknowledges that the duties towards sincerity are different for private individuals and organs of governance (including courts and tribunals). He notes, for instance, that governments are charged with the security of their citizens, “a responsibility that cannot be discharged without force and secrecy”.185 However, he discusses various reasons for which even organs of governance should aim towards sincerity and truthfulness. These arguments are particularly pertinent for criminal courts, where the search for truth is a central goal. One argument is simply that, all things being equal, sincerity is a good thing which should be pursued. A more elaborate argument, however, is the anti-tyranny argument: precisely because of their peculiar powers and opportunities, governments are disposed to commit illegitimate actions which they will wish to conceal, as they also want to conceal incompetent actions. It is in citizens’ interests that these be checked. They cannot be checked without true information.186

This therefore essentially refers to the liberal argument that truthfulness “is valuable against tyranny” and that sincerity enables citizens to hold their governments to account.187 Williams argues that, while in some cases the demand for sincerity and truthfulness can occasionally run into conflict with other liberal values, this demand can be an instrument of liberalism, “by serving as the sharp end of a critique of injustice”.188 By being sincere towards their citizens, and not misleading them, organs of 181 Ibid.,

p. 176. 1997, pp. 44–5. 183 Osiel 1999, pp. 139–40. 184 De Baets 2008, p. 30. 185 Williams 2004, p. 207. 186 Ibid. 187 Ibid., p. 208. 188 Ibid., p. 209. 182 Gereboff

7.3 Developing a Responsible History Framework

221

governance enable citizens to hold them to account and to call out injustice. This, in turn, strengthens the trust in and legitimacy of such organs. Where judges or other stakeholders involved in international criminal justice seek to deliberately mislead their audiences, they would be disempowering their audiences and eroding trust not only in relation to their particular court or tribunal, but in relation to the system of criminal justice more broadly. The use of institutions, such as courts, to mislead audiences is most prevalent under oppressive regimes. De Baets however notes that its persistent traces are also present in many democracies.189 An insincere approach to truth and history seeks to evade accountability and to undermine the trust placed by society in courts and tribunals. This is because, as Williams argues: I [referring to an insincere communicator] lead the hearer to rely on what I say, when she has good reason to do so, and in abusing this I abuse the relationship which is based on it. Even if it is for good reasons of concern for her, I do not give her a chance, in this particular respect, to form her own reactions to the facts (as I suppose them to be), something that I would give her if I spoke sincerely, but give her instead a picture of the world which is a product of my will. Replacing the world in its impact on her by my will, I put her, to that extent, in my power and so take away or limit her freedom.190

Many scholars have drawn attention to instances of insincerity that have tainted the international criminal justice project. For instance, Reynolds and Xavier note that international criminal justice has been “predictably uneven. There is a drive to prosecute some of those responsible for some atrocities, but certainly no practical push towards geopolitical egalitarianism in who or what is prosecuted.”191 Or to put it more starkly, as Kelsall suggests, “we are unlikely in the near future to witness international prosecutions in developed Western nations: international trials will focus mainly on countries that are part of the ‘Third World’.”192 In many cases, international criminal justice has either remained silent or looked the other way with respect to many conflicts where mass atrocities have been committed, with the effect in some cases, that “atrocities that weren’t prosecuted didn’t happen.”193 In Chap. 4, we distinguished between external exclusions (the idea that only certain conflicts will be subjected to international criminal law), and internal exclusions (the selectivity involved with respect to who within those conflicts is the subject of prosecution.).194 The focus of this section will be on insincerity arising from 189 De

Baets 2008, p. 9. 2004, pp. 82–3. 191 Reynolds and Xavier 2016, p. 963. In this context, the authors note that “[t]his has been fuelled by unmistakeable selectivity and geographic bias, whereby the investigation and prosecution of Africans is resoundingly more palatable and expedient for Western powers than that of British, Canadian or Israeli officials”: see Ibid.. See also Simpson 1997, p. 810. 192 Kelsall 2009, p. 2. 193 Gevers 2015, p. 233. See also Simpson 1997, p 833. Simpson submits that “[i]n one sense, academics, for all their good intentions, have participated in this legitimation process by loyally proposing war crimes trials in cases where obvious enemies are the intended defendants, but remaining silent where the crimes (no less abhorrent in content) are committed by ideological friends”: see Ibid., p. 832. See also Nice 2017, p. 29. 194 Nielsen 2008, pp. 91–5. 190 Williams

222

7 Aiming Towards Responsible History in International …

internal exclusions in the narratives of ICTs. It will assess some of the narratives arising from past ICTs to consider whether, on the one hand, such selectivity could be justified according to some public and defensible criteria for selecting and/or rejecting potentially relevant subject-matters. Or whether, on the other hand, such ICTs had deliberately set out to mislead their audiences. Selections on inclusions/exclusions from prosecution may occur at different levels. For instance, they may occur at the structural/institutional level, where critical decisions about the scope and jurisdiction of ICTs are negotiated by State representatives and enshrined in the founding statutes. And they may also occur at the prosecutorial level, where the prosecutors decide where to initiate investigations and which charges to pursue. Each of these levels may be subjected to the critique of selectivity.195 In the literature, many of these critiques have been based on arguments from philosophy/ethics (“the standards we apply to others we must also apply to ourselves”),196 realpolitik (victor’s justice)197 and/or legitimacy. For example, Cryer has argued that “[w]hen a law, general on its face, is in practice enforced only against a group or groups, the effect is the same as if it were targeted at those groups by its terms.”198 To this arsenal of critiques, this section will also develop a novel one, based on the critique of inaccuracy and/or insincerity. To what extent have ICTs (at the structural, investigative and trial stage) sought to present accurate and sincere narratives? To what extent were their selection and/or rejection of potentially relevant subject-matters based on public and defensible criteria? To what extent did such ICTs set out to deliberately mislead their audiences? The responsible history critique being proposed here thus involves the question of whether ICTs have made a genuine attempt at aiming towards accurate and sincere accounts of the past.199 In this respect, while in some cases the responsible history critique tends to concur and align with other critiques (eg. victor’s justice), in other cases, it could take a different view. This will be discussed below in relation to the historical narratives emerging from Nuremberg, the ICTY and the ICTR.

7.3.2.3

Structural/Institutional Stage

It has been noted that, when the Allied States decided to establish the Nuremberg Tribunal, there was never any real intention to subject their actions to scrutiny within that Tribunal. Article 1 of the London Charter, which established the Nuremberg Tribunal, provided that it was being established to try and punish the major war

195 Elberling

2008, pp. 530–1; Cryer 2011, p. 206. 2003, p. 605. 197 Mégret 2015, p. 32. 198 Cryer 2011, p. 195; Kiyani 2017, p. 114. 199 Elster 2011, p. 121. 196 Chomsky

7.3 Developing a Responsible History Framework

223

criminals of the European Axis.200 Several provisions of the Charter were specifically framed to shield the Allied powers. Thus, for instance, as discussed in Chap. 4, the prosecution of crimes against humanity was linked to crimes against the peace because: [b]y predicating the prosecution of mass atrocities on crimes against peace, members of the Grand Coalition found a way to insulate themselves from the types of charges used to prosecute their vanquished foes and to shield the atrocities they may have committed during the Second World War from the glare of international criminal justice.201

The Allied drafters of the London Charter included several other safeguards in the Charter aimed at shielding Allied actions. Marrus observes that the drafters feared that, in the course of the trial, the accused would bring up embarrassing issues that might divert attention to Allied actions: matters such as the Soviet attack on Poland in 1939, the Anglo-American aerial bombardment of German cities, or antiSemitism in Allied countries.202 Therefore, to forestall such issues being raised, the Allied negotiators included, under Article 18(b) of the London Charter, a provision that the Tribunal should “take strict measures to prevent any action which will cause unreasonable delay, and rule out irrelevant issues and statements of any kind whatsoever.”203 Marrus notes that, acting on this provision and with some exceptions,204 the judges at Nuremberg rigorously blocked tu quoque arguments and similar submissions they considered “irrelevant”.205 The Nuremberg Charter was therefore framed in such a way as to shield Allied actions. There was a strong sense that, given the circumstances of the war, their actions were beyond reproach and/or the concern of criminal law. Indeed, the prevailing attitudes at the time were reminiscent of the reassurances Don Quixote gave Sancho with respect to the threat of prosecution: “Peace,” said Don Quixote; “where hast thou ever seen or heard that a knight-errant has been arraigned before a court of justice, however many homicides he may have committed?”206

Unsurprisingly, therefore, the Nuremberg framework has been subject to several critiques, particularly that it represented victor’s justice. As Cryer notes, the fact that the law was not applied to both sides in the Second World War “has led many to consider the legacy of the Nuremberg IMT as flawed, and its legitimacy tarnished”.207 200 London

Charter, Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, No. 251 1945, sec 1 (emphasis added). 201 Rogers 2017, p. 39. 202 Marrus 2002, pp. 233–4. See also Drumbl 2005, p. 1299. 203 London Charter, Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, No. 251 1945, sec 18. 204 Such as in relation to the charge of unrestricted submarine warfare against Admirals Dönitz and Raeder: see Yee 2004, p 104. 205 Though, for a more nuanced view on this, see Ibid., p. 103. 206 de Cervantes 2017, p. 66. 207 Cryer 2011, p. 206.

224

7 Aiming Towards Responsible History in International …

Moreover, the historical narratives emerging from Nuremberg have also been extensively critiqued for presenting partial accounts,208 and misrepresenting significant events in the war, such as the Holocaust.209 In addition to these critiques, the historical legacies of Nuremberg may also be further critiqued, from a responsible history perspective, because of their lack of sincerity.210 The London Charter was framed in such a way as to shield Allied crimes and focus attention on the crimes of the Axis powers. From the perspective of responsible history, this raises obvious issues of sincerity: rather than aiming at truthfulness and offering a sincere account of the conflict, the Nuremberg framework, already at a structural level, aimed to deliberately mislead its audience and to paint a partisan picture.211 While this approach could make sense from the perspective of didactic legality (to teach selective lessons),212 from the perspective of responsible history, by offering a partisan and misleading account of the conflict, the approach adopted in the London Charter goes against the virtue of sincerity.213 Unlike Nuremberg, the legal frameworks of the next generation of ICTs, those of the ad hoc Tribunals, did not contain limitations on their jurisdiction ratione personae that singled out particular parties to the conflict. For instance, the founding instrument of the ICTY provided that the Tribunal shall be established for the purpose of prosecuting persons responsible for serious violations of international humanitarian law “committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council.”214 On its part, the founding instrument of the ICTR restricted the geographic and temporal jurisdiction of the Tribunal to crimes “committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994”.215 Noting the temporal restrictions of the ICTR’s jurisdiction to violations occurring in 1994, Cryer observes: 208 Marrus

2002, pp. 233–4. for instance, Bloxham 2003. 210 Cryer recognises this critique when he notes that “[t]he question of selectivity in enforcement raises broader issues […] of representational justice (providing an even-handed historical narrative of the conflict)”: see Cryer 2011, p. 211. 211 Williams 2004, pp. 82–3. Nice suggests that it is understandable, however appalling, that major powers may well suppress information that could tell more truth about violations “because that information would reveal more about the major powers’ complicity in those crimes”: see Nice 2017, p. 4. 212 Shklar argues that the Nuremberg trials served liberal ends and promoted legalistic values in such a way as to contribute to constitutional politics and to a decent legal system: see Shklar 1986, p. 145. 213 Osiel notes that “[t]he interested public has often found historians accounts more persuasive than those of the courts, particularly the Tokyo and Nuremberg courts. This is primarily because historians are seen to be more concerned with ‘balance’ in proportioning blame among all parties, including the courtroom accusers”: see Osiel 1999, p. 121. 214 UN Security Council Resolution 827 (1993), S/RES/827 1993, sec 2. 215 UN Security Council Resolution 955 (1994), S/RES/955 (1994), sec 1. 209 See,

7.3 Developing a Responsible History Framework

225

Rwanda was uncomfortable with allowing the jurisdiction to continue throughout 1994, after the RPF took control of Rwanda in July 1994. This was probably not unrelated to the allegations that the RPF engaged in revenge killings in Rwanda and […] refugee camps in the Eastern Democratic Republic of Congo. The fact that the jurisdiction of the ICTR is limited to Rwanda (and crimes by Rwandans in the locality) and to 1994 must be seen as rather arbitrary, given that allegations relating to crimes in the area continued into 1995 and beyond.216

Deciding on the appropriate temporal jurisdiction of the ICTR was, from the start, a contentious matter. At the time of the Tribunal’s establishment, the Rwandan government argued that its temporal jurisdiction should begin much earlier and cover the period from 1 October 1990 (the start of the conflict from the perspective of the Rwandan government) until 17 July 1994 (the date when the Rwandan Patriotic Front (RPF) took control).217 At the close of voting on the UN Security Council resolution establishing the ICTR, the Rwandan representative to the United Nations explained that the genocide the world witnessed “in April 1994 was the result of a long period of planning during which pilot projects for extermination were successfully tested.”218 Other delegates, such as the French delegate, Mr. Mérimée, argued that the temporal jurisdiction of the ICTR should extend beyond 17 July 1994 because this would make it possible: to take into account possible acts of planning and preparation of genocide which took place beginning on 6 April this year. It also makes it possible for the Tribunal to hear cases involving serious infractions which continued to be committed after July 1994 on the territory of Rwanda and on the territory of neighbouring States - first and foremost in the refugee camps.219

These competing timeframes for the ICTR’s temporal jurisdiction reflect the point that there are no consensual criteria in law (or history) for locating the beginning and end of the historical frames of conflicts.220 Given that any jurisdictional limitation is thus going to be subjective, the key consideration, from the perspective of responsible history, is whether such selectivity may be justified according to some defensible criteria. In the case of the ICTR, it is submitted that it may, because the time period that was selected, while being “an artificial and politically convenient timeframe”,221 covered not only the actions of the Hutu génocidaires, but also other allegedly serious violations occurring after 17 July 1994, when the RPF took control. As such, the timeframe selected did not seek to mislead by shielding one or more parties to the conflict from prosecution. Of course, as will be discussed below, the prosecutor’s failure to subsequently prosecute members of the RPF for alleged crimes committed 216 Cryer

2011, p. 210. of the meeting of the Security Council of the United Nations at its 3453rd meeting of 8 November 1994 on the establishment of the International Criminal Tribunal for Rwanda (ICTR), S/PV.3453, p. 14. 218 Ibid. 219 Ibid., p. 3. 220 Shklar 1986, p. 197. See also Arnould 2006, p. 145. 221 Rogers 2017, p. 115. 217 Minutes

226

7 Aiming Towards Responsible History in International …

within the temporal jurisdiction of the Tribunal had significant implications for the ensuing historical narratives of the ICTR.

7.3.2.4

Prosecutorial Stage

Another stage at which decisions about internal exclusions may occur is at the prosecutorial level. Within the ambit of ICTs, prosecutors enjoy wide discretion over whether or not, and who, to prosecute.222 In this respect, it bears noting that prosecutors working on conflict-related atrocities are generally confronted with an overwhelming volume of criminality to address, combined with considerable resource constraints and the ever-intensifying need to reduce the size and length of investigations and prosecutions. As a result, Jarvis and Vigneswaran point out that tough choices constantly have to be made “about where priorities should lie and prosecutorial discretion takes on unique dimensions”.223 As discussed in Chap. 4, in framing their indictments, prosecutors normally take into account a variety of factors,224 and they are under “no obligation to charge different defendants consistently with respect to the same factual incidents in different cases”.225 Moreover, while indictments must normally be reviewed by a trial chamber, there is no direct mechanism for reviewing a decision not to indict.226 Therefore, judges of ICTs have limited say over whether or not prosecutions with respect to particular parties or categories of crimes are brought before their courts and tribunals. As noted above, in Nuremberg and Tokyo, the Tribunals’ jurisdiction extended only to the Axis powers (and was selective in relation to them, too).227 Because there was never any intention to prosecute Allied powers, Nice observes that some serious crimes allegedly committed by the Allies have remained backgrounded in the emerging narratives: there is a considerable amount of evidence - nearly all untested by any court - of war crimes committed by all Allied forces: rapes, executions, torture, starvation. There was no tribunal set up to investigate such crimes and, although there were a few courts martial for regular crimes, evidence of possible offences was generally swept under the nearest convenient carpet.228 222 See,

for instance, Symposium on Prosecutorial Discretion before National Courts and International Tribunals 2005. 223 Jarvis and Vigneswaran 2016, p. 33. 224 See Rogers 2017. See also Cryer 2011, p. 220; Sander 2018a, p. 560. 225 Sander 2018a, p 559. 226 Waldorf 2011, p. 1258. Writing in relation to the ICTR, the author notes that “[t]he only avenue to challenge this is indirectly through a defense of selective prosecution. Several ICTR defendants have tried this, arguing that the prosecutor has only prosecuted one side of the Rwandan conflict and that virtually all the defendants are Hutu. This argument, which smacks of a tu quoque defense, has been uniformly rejected”: see Ibid., pp. 1258–9. 227 Cryer 2011, p. 206. 228 Nice 2017, p. 15. With respect to aerial bombings by the Allies, see Evans 2002a, pp. 158 and 191.

7.3 Developing a Responsible History Framework

227

It has often been noted that the prosecutors in Tokyo, for instance, completely overlooked, inter alia, the use of atomic weapons in Hiroshima and Nagasaki by the US forces in August 1945, a fact that provoked the ire of Judge Pal in his dissenting opinion.229 Moreover, the indictments at Tokyo had some conspicuous exclusions, most notably the Emperor Hirohito who was not prosecuted for largely political reasons.230 On account of these internal exclusions, several scholars have questioned the degree of justice and legitimacy at both Nuremberg and Tokyo. Rogers holds that: the prosecutorial effort sought to shield the war conduct of the Grand Coalition - including the fire bombings of German and Japanese cities as well as the use of atomic bombs to obliterate the Japanese cities of Hiroshima and Nagasaki - from the glare of international criminal justice.231

Cryer argues that, because of this, the legacies of both Tribunals have been tarnished.232 In addition to these well-known critiques, it is also possible to add the responsible history critique. The decision to pursue such partial prosecutions could not be justified on defensible criteria but was rather intended to shield Allied actions. From the perspective of responsible history, therefore, it was insincere. Indeed, commenting on the “Tokyo-version of history”, as it came to be derisively known, Osiel states that the historical narratives written at Tokyo would be rejected not merely as morally and legally suspect, but also as poor historiography.233 The situation with the ICTY and ICTR is more nuanced. For instance, the historical narratives emerging from the ICTY have been criticised for not including NATO activities in the former Yugoslavia even though the NATO bombing of Yugoslavia in the spring of 1999 caused around 500 civilian casualties.234 And the historical narratives emerging from the ICTR have been criticised for not including alleged crimes committed by the Rwandan Patriotic Front (RPF) even though the RPF was estimated to have killed at least 25,000–30,000 Hutu civilians.235 From the perspective of responsible history, it would appear that, in both cases, the prosecutors made genuine efforts to search for truth accurately and sincerely and, more generally, to be trustworthy speakers. Indeed, from a sincerity perspective, it is noteworthy that, unlike their counterparts in Nuremberg and Tokyo, the prosecutors of the ad hoc

229 Cryer

2011, p. 207. Rogers argues that “[a]s the London Charter was proofread in English, French, Russian and German, and then checked for accuracy of translation, the Enola Gay dropped an atomic bomb on the Japanese city of Hiroshima, a few days before Nagasaki was also obliterated by another US atomic bomb. The timeliness of this wanton destruction of a city […] raises important questions over the use of the London Charter as a jurisdictional shield for the coalition’s own war crimes”: see Rogers 2017, p. 39. 230 Cryer 2011, pp. 207–8. See also Osiel 1999, p. 186. 231 Rogers 2017, p. 69. 232 Cryer 2011, pp. 206 and 209. 233 Osiel 1999, p. 139. 234 Koskenniemi 2002b, p. 161. 235 Waldorf 2011, p. 1222.

228

7 Aiming Towards Responsible History in International …

Tribunals made genuine attempts to investigate the alleged violations and their eventual decisions not to prosecute these alleged crimes could arguably be justified on public and defensible criteria. In July 2000, the ICTY prosecutor, Carla del Ponte, made public her decision not to initiate a full investigation into NATO’s conduct of the conflict on the basis of the recommendations of an internal report.236 This report provided, inter alia, a general assessment of NATO’s bombing campaign as well as details of specific incidents. Relying heavily on public documents published by NATO and NATO countries, the report recommended that: [o]n the basis of the information reviewed, however, the committee is of the opinion that neither an in-depth investigation related to the bombing campaign as a whole nor investigations related to specific incidents are justified. In all cases, either the law is not sufficiently clear or investigations are unlikely to result in the acquisition of sufficient evidence to substantiate charges against high level accused or against lower accused for particularly heinous offences.237

What this report indicates, therefore, is that the ICTY prosecutor made some effort to catalogue and investigate the NATO bombings in the former Yugoslavia. However, following her evaluation of the reported incidents, the state of the law, as well as (crucially) the prospect of acquiring sufficient evidence, she decided not to initiate a full investigation. Del Ponte later explained that she did not indict NATO command because she understood the practical difficulties of investigating a military alliance that supported the ICTY. NATO’s cooperation would cease and “this would impact on other current investigations”.238 The majority of legal commentators were critical of the report’s recommendations and del Ponte’s decision not to investigate NATO bombings,239 though some were more supportive.240 Cryer, for instance, states that “there are some considerable flaws in the report, sufficient to query whether it ought to have served as the basis of the Prosecutor’s decision.”241 Although it is possible to critique the ICTY prosecutor’s decision not to proceed with a full investigation of NATO bombings on grounds of law, legitimacy and justice,242 from the perspective of responsible history, it is arguable that the prosecutor’s decision not to prosecute NATO actions was not aimed to mislead. Rather, this decision not to prosecute could be justified on public and defensible criteria, reflected in the reasoning and recommendations of the internal report. Unlike her 236 ‘Final

Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia’, 8 June 2000, (2000) 38 ILM 1257. 237 Ibid., para 90. 238 Rogers 2017, pp. 145–6. 239 Bothe 2001; Benvenuti 2001. 240 For supportive perspectives, see Alexander 2015, p. 134; Fenrick 2001. 241 Cryer 2011, p. 216. 242 Koskenniemi 2002b. At one end of the spectrum, this could give rise to critiques of victor’s justice. Gallois offers this critique when he suggests that “[o]ne of the aims of this so-called international tribunal [ICTY] is to pass judgment on the crimes attributed to the Serbs in order to mask the violations of the law and the crimes of NATO”: see Gallois 2002, p. 16.

7.3 Developing a Responsible History Framework

229

counterparts in Nuremberg and Tokyo, the prosecutor did not attempt to sweep evidence of possible NATO violations under the carpet. On the contrary, the fact that the report itself was released is a useful measure of transparency and sincerity by the prosecutor.243 She did not deliberately set out to mislead her audiences by ignoring the potential criminal liability of NATO in the bombings. It is important that the internal report on NATO bombings, commissioned by the ICTY prosecutor, provides a catalogue of incidents which may contribute to the totality of the historical narratives about the conflict that have emerged from the ICTY. While, as mentioned, her decision not to proceed with a full investigation may be criticised on legal and other grounds, from the perspective of responsible history, therefore, the prosecutor appears to have been acting sincerely in seeking to provide an accurate and sincere version of truth. In this case, the prosecutor’s decision not to pursue an investigation into NATO’s actions was partly motivated by a legal assessment that the law was not sufficiently clear and partly by a practical assessment that any investigation was unlikely to result in the acquisition of sufficient evidence. Indeed, as the prosecutor later admitted, had she persisted with such an investigation, there was a real risk that NATO’s cooperation would cease and this would impact on other investigations. Insofar as the prosecutor’s decision not to investigate NATO’s actions was motivated by legal reasons, it is possible to argue that these are public and defensible criteria (even if there is room for reasonable people to disagree over them). However, insofar as the prosecutor’s decision was motivated by the threat of non-cooperation by NATO, this would not amount to a defensible criterion in the search for truth. In this respect, she could have more openly recognised that such pressure was likely to impact on the accuracy and sincerity of the trial narratives emerging from the Tribunal. In such circumstances, at the very least, the prosecutor could have made a stronger effort to communicate what she believed to be true.244 In particular, she could have more clearly acknowledged: (1) that the decision not to prosecute NATO actions was, in part, occasioned by the difficulties the Tribunal would doubtlessly have encountered had NATO States withdrawn financing and co-operation.245 After all, as the prosecutor herself acknowledged, had the investigation into NATO been pursued, NATO’s cooperation with the ICTY would probably have ceased and this would have impacted on other investigations.246 This risk was indirectly acknowledged in the report itself;247

243 Cryer

2011, pp. 215–6. 2003, pp. 411–2. 245 Cryer 2011, p. 219. Mégret remarks in this context that ICTs “have a very strong record of not biting the hand that feeds them”: see Mégret 2015, p. 34. 246 Rogers 2017, pp. 145–6. 247 ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia’, 8 June 2000, (2000) 38 ILM 1257., para 90. 244 Cooper

230

7 Aiming Towards Responsible History in International …

(2) that the prosecutor’s decision not to undertake a full investigation into the NATO actions due, in part, to difficulties in the acquisition of sufficient evidence did not amount to, and should not be construed as, an exoneration of such actions; and (3) the lack of a full investigation into the NATO actions was a factor that had to be taken into account when considering the totality of the historical narratives of the conflict emerging from the ICTY. By doing this, it is submitted, the ICTY prosecutor would have shown that, in relation to the search for truth, she was aiming to be a trustworthy speaker (in accordance with Williams’ understanding of this phrase). With respect to the ICTR’s failure to prosecute alleged RPF crimes, in April 2000, del Ponte publicly criticized Rwanda for lack of cooperation and promised to hand down RPF indictments by the end of the year.248 The prospect of indicting RPF members led to a stand-off between the ICTR prosecutor and the Rwandan government, with the latter seeking to hamper the operations of the Tribunal by, for instance, imposing burdensome travel restrictions that prevented prosecution witnesses from going to Arusha to testify. As a result of this standoff, by the time her term as chief prosecutor of both the ICTR and the ICTY came up for renewal in September 2003, Rwanda had orchestrated enough international antipathy toward del Ponte to have her removed as ICTR prosecutor (although she stayed on at the ICTY).249 When Gambian Judge Hassan Bubacar Jallow took over as prosecutor in 2003, he knew Rwanda had successfully halted the special investigations of RPF crimes and had successfully lobbied for his predecessor’s ouster.250 As such, while his office had investigated a notorious incident relating to the massacre of several members of the clergy allegedly committed by members of RPF (the Clergy case), he agreed to let Rwanda conduct its own domestic trial of the case further to the ICTRRwanda agreement.251 As a result, the ICTR did not indict a single RPF soldier for alleged crimes committed against Hutus, even though these crimes fell within its jurisdiction. The failure of the ICTR to prosecute RPF members has been criticised on the grounds of legitimacy and victor’s justice.252 Waldorf, for instance, holds that the justice dispensed in Arusha was victor’s justice: [b]y failing to prosecute any RPF crimes, the ICTR has rendered “victor’s justice” in the sense that it has only prosecuted the losing side of Rwanda’s civil war. To put it more starkly, it has only tried Hutu defendants (with the exception of one European).253

248 Waldorf

2011, p. 1221. 2011, p. 44. 250 Waldorf 2011, p. 1237. 251 Ibid., p. 1222. Waldorf notes that: “[t]he trial opened with guilty pleas from two low-ranking soldiers and ended with the acquittals of their commanding officers. The prosecutor expressed satisfaction with the trial and closed his own investigation”: see Ibid., pp. 1222–3. 252 Wilson 2011, p. 45; Hazan 2006, p. 30. 253 Waldorf 2011, p. 1272. 249 Wilson

7.3 Developing a Responsible History Framework

231

From the perspective of legitimacy, the argument is not that the ICTR should have sought parity. This is not an argument for “moral equivalence” or “equivalence of guilt”.254 Rather, Waldorf argues for some indicator of impartiality: if the ICTR had prosecuted just one RPF soldier (even a low-ranking one), then it could be criticized for unfairness, but not for victor’s justice.255 From the perspective of responsible history, however, it is arguable that the ICTR prosecutors did not act insincerely in their attempts to uncover truths about the Rwandan conflict. Neither del Ponte nor Jallow appear to have tried to shield particular sides to the conflict. Indeed, del Ponte failed to get re-elected as ICTR Prosecutor, in part, because of her resolve to try to bring indictments against the RPF. And Jallow’s decision not to prosecute the Clergy case was based on the defensible rationale of “complementarity”, reflected in the ICTR-Rwanda agreement. It is also clear that in seeking to investigate and prosecute other RPF incidents, the ICTR prosecutor met with intense political resistance from Rwanda. What the ICTR, and in particular the Office of the Prosecution, could perhaps had done better was to demonstrate more openness and sincerity on this count. Waldorf suggests that, at that stage, the prosecutor should have publicly flagged the issue of political pressure from Rwanda and declared: that without Security Council pressure to force Rwandan cooperation, the Tribunal would produce victor’s justice. That would have placed the onus back where it really belonged on the international community that had created the Tribunal’s mandate in the first place.256

At the very least, from the perspective of responsible history, the ICTR prosecutor should have more openly communicated what he believed to be true. That the absence of RPF-related cases at the ICTR was, in part, because of the complementarity regime envisaged by the ICTR-Rwanda agreement. And that this fact had to be taken into account when considering the totality of the historical legacies of the ICTR.257

7.3.3 A Recognition of the Constraints and Limitations of the Historical Narratives Written by Judges of ICTs So far, we have argued that a responsible history framework entails a recognition of the value of the history-writing function in international criminal adjudication and a commitment to the virtues of accuracy and sincerity. This section will argue that a third element of a responsible history framework is an awareness of the constraints and limitations of the kinds of narratives that judges of ICTs may write.

254 Tromp

2016, p. 9; Nice 2017, p. 57. 2011, p. 1274. 256 Ibid., p. 1277. 257 Cooper 2003, pp. 411–2. 255 Waldorf

232

7 Aiming Towards Responsible History in International …

Whilst recognising that ICTs inevitably generate historical knowledge, judges should explicitly recognise the limits and constraints of their historical narratives.258 At the very least, this should serve to manage unrealistic expectations.259 As Bouwknegt pointedly notes, since they are not trained historians, judges and prosecutors ought “to be diligent, realistic and modest in what they can truly accomplish”.260 These limitations include the specific legal lenses through which judges of ICTs receive and interpret past events, together with law’s distinctive epistemology and methods. For instance, Tromp notes that ICTs are: limited by technical rules that require a balance to be made according to formulaic tests of proof, rules of a court and decisions of judges that all channel decision-making into narrower tracks of reasoning for determining one single and most important question - is the Defendant guilty or not.261

While these rules contain a number of processes that may be truth-conducive, others are truth-thwarting. Moreover, we have seen in Chap. 6 how the search for truth has to continually be balanced against several other non-epistemic values in criminal trials. Law and history are uneasy partners, as different processes either complement or thwart the search for truth. For instance, the adversarial approach has the merit of encouraging different actors to present and defend plural and competing narratives and counter-narratives of the past, thereby promoting greater understanding of competing perspectives. However, the adversarial approach may also lead to little more than a strategic contest, concerned with victory rather than truth, wherein the parties deliberately flatten their narratives to cohere with their theories of the case. Similarly, with respect to accessing evidence, while ICTs often have greater access to historical evidence and primary sources than historians or other writers of history, they also face significant constraints with respect to access to, and reliability of, evidence. As giants without arms and legs, ICTs remain very much reliant on States and international organisations for the production of evidence.262 The judgements and decisions of ICTs have also been criticised for producing “flattened” historical accounts. For instance, in order to be able to pass judgment, international judges ultimately must embrace one entire account to the exclusion of others, whereas historians often accept aspects of competing accounts. While the need to embrace one account of criminal responsibility undoubtedly limits the perspectives that legal judgments may present, judges of ICTs have adopted differing approaches with respect to presenting competing historical contexts. In Tadic, for instance, the ICTY Tribunal sought to resolve any conflicting narratives regarding the historical and geographic background of the conflict by adopting appropriately

258 Joyce 259 See,

2004, pp. 462–3. for instance, ICTY, Prosecutor v. Erdemovi´c, Sentencing Judgment, 1998, ICTY-96-22,

para 21. 260 Bouwknegt 2018, p. 120. 261 Tromp 2016, p. x. 262 Antonio Cassese 1998, p. 13.

7.3 Developing a Responsible History Framework

233

neutral language.263 In some cases, judges generally relied on the prosecution’s the trial judges versions of Balkans history,264 while in others, such as Brdanin, sought to amalgamate, as far as possible, the historical evidence of both prosecution and defence experts.265 Therefore, the historical narratives contained in the judgments of ICTs may be less “flat” than is sometimes suggested. Nevertheless, as compared to historical writings, judgments of ICTs are constrained in the level of narrative pluralism and multivocality that they are able to accommodate. Finally, in sharp contrast with historical theorizing, which presumes the inevitability of change in interpretation, particularly over time, legal judgments aspire to a degree of finality that academic research does not. As discussed below, a number of legal doctrines are designed to prevent particular facts and legal issues from being re-opened and/or re-evaluated. It is important, however, not to overstate the fixity of such narratives, in that, judges of ICTs may express their historical interpretations more tentatively, with greater awareness of their potentially changeability. Moreover, the understandings of particular events may evolve over time as a result of discrepancies concerning the evidence that is put before different Chambers.266 As such, Bilsky notes that trials are not closed universes, and the judgment of the court, though determining the results of the specific case, do not become “the final word on the historical truth.”267 Admittedly, courts are not structured in a manner “that encourages acknowledging the limitations of their representations of the past”.268 In spite of this, there has been a gradual shift towards a greater recognition of such limitations. Some judges of ICTs, for instance, have made it a point to recognise the partial and incomplete, and by implication, changeable nature of their historical explanations. For this shift to continue gaining momentum, however, it would necessitate greater awareness of such limitations. In Milutinovi´c, for instance, the ICTY Trial Chamber emphasised that its historical interpretations should not be read in isolation, but as one element of an array of historical material: the narrative of this Judgment includes information which may help provide a fuller understanding of events in 1998 and 1999 in Kosovo. This judgment is, however, simply one element in an array of material from which historians will derive a complete historical account.269

In Bagosora et al., the judges of the ICTR Trial Chamber demonstrated particular sensitivity to the potentially changeable nature of their historical interpretations. In this case, the ICTR prosecutor alleged that four military leaders had begun preparing to commit genocide from late 1990, and this crystallized into a conspiracy to commit 263 ICTY, Prosecutor v. Dusko Tadi´ c a/k/a ‘Dule’, Decision on the defence motion for interlocutory appeal on jurisdiction, 1995, IT-94-1-T, para 54. 264 Wilson 2011, p. 120. 265 See ICTY, Prosecutor v. Radoslav Brdanin, Judgment, 2004, IT-99-36-T, para 53. 266 Sander 2018a, p. 555. 267 Bilsky 2004, p. 256. 268 Douglas 2016, pp. 45–6. 269 ICTY, Milutinovi´ cet al., Judgment, 2009, IT-05-87-T, para 4.

234

7 Aiming Towards Responsible History in International …

genocide several months or possibly even a year prior to the commencement of the genocide in Rwanda in April 1994. In its judgments, however, the Trial Chamber found that, since the evidence suggested more than one reasonable inference, the prosecution had failed to prove beyond reasonable doubt that the four accused had conspired to commit genocide prior to its commencement on 7 April 1994.270 Nevertheless, the judges acknowledged that, from the evidence, it could not be excluded that: there were in fact plans prior to 6 April to commit genocide in Rwanda. As the Prosecution argues, there are certain indications in the evidence of a prior plan or conspiracy to perpetrate a genocide as well as other politically motivated killings in Rwanda, which could have been triggered upon the resumption of hostilities between the government and the RPF or following some other significant event.271

According to Sander, this aspect of the case is significant not only for its legal findings, but also for the Trial Chamber’s attempt to limit the historical finality and significance of its findings: [t]he Chamber emphasized that the question under examination was not the broader issue of ‘whether there was a plan or conspiracy to commit genocide in Rwanda’, but rather a more limited inquiry into whether the Prosecution had proven beyond reasonable doubt that the four accused had conspired amongst themselves or with others to commit genocide before it unfolded on 7 April 1994. Moreover, the Chamber explained how its task had been restricted by ‘exacting standards of proof and procedure, the specific evidence on the record before it and its primary focus on the actions of the four accused in this trial’. As such, although ‘a firm foundation’ for the crime of conspiracy to commit genocide could not be constructed from the ‘fractured bricks’ of evidence that had been put before the tribunal in this case, it remained conceivable that ‘newly discovered information, subsequent trials or history’ might demonstrate a conspiracy involving the accused to commit genocide, and it was also possible that ‘some [other] military or civilian authorities did intend these preparations as part of a plan to commit genocide’.272

In this case, therefore, the judges demonstrated an awareness of the potential limits, and lack of fixity, of their historical interpretations. Their recognition in the judgment that, inter alia, they could not exclude that there were plans to commit genocide in Rwanda prior to 6 April and that “[o]ther or newly discovered information, subsequent trials or history may demonstrate a conspiracy involving the Accused prior to 6 April to commit genocide,”273 reflects their awareness of the limitations of their historical interpretations and their express attempt to qualify their historical findings to the particular circumstances of this case. This reflects a responsible, moderate approach to history-writing and a Chamber that is both more aware of its constraints and “less confident in its ability to know the causes and 270 ICTR,

Prosecutor v. Théoneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze, and Anatole Nsengiyumva, Judgement and Sentence, 2008, ICTR-98-41-T, para 2113. 271 Ibid., para 2107. 272 Sander 2018a, p. 557. 273 ICTR, Prosecutor v. Théoneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze, and Anatole Nsengiyumva, Judgement and Sentence, 2008, ICTR-98-41-T, para 2112. Though, admittedly, such provisos will not be sufficient to address the concerns of all critics: see Bouwknegt 2018, p. 130.

7.3 Developing a Responsible History Framework

235

contexts of the 1994 genocide”.274 This approach seems also to accord with what Osiel refers to as “self-disruptive” narratives. When judges of ICTs are engaged in writing the historical narratives of mass atrocities, their narratives—like those of the best contemporary historians—ought to be self-disruptive: periodically reminding readers that the persuasive coherence they seamlessly present is an illusion, secured only by compliance with disciplinary conventions that must themselves be made transparent and subject to critical scrutiny.275

Such a responsible approach to writing historical narratives, which demonstrates awareness of the constraints and limitations of the narratives produced by ICTs, is particularly important in light of the expressive weight that narratives written by ICTs enjoy.276 Given that it is sometimes assumed that what is recorded within the courtroom can constitute the irrefutable history of the past,277 the need for such narratives to be self-disruptive, and for judges to carefully and expressly delineate the constraints and limitations of their narratives, is therefore important in order to prevent them from being perceived as the last word on the subject.

7.3.4 A Recognition that Judges and Lawyers Do not Necessarily Have the Last Word on History The fourth element of a responsible history framework is the recognition that judges and lawyers do not necessarily have the last word on history.278 On the contrary, as the judges in Milutinovi´c above noted, their historical interpretations constitute simply one element in an array of material from which historians and other historywriters will derive a more complete historical account. The development of such a “more complete” account would require “many years of interpretation, synthesis, and debate by professional historians”.279 Thus, as Sander has posited: rather than aspiring for international criminal courts to deliver improbable moments of historical closure, it is suggested that the entire international criminal process from its inception to the storage of records in the court archives should be viewed in more modest terms as a discursive beginning for the examination of particular episodes of mass violence.280

In history, nuance, new insight and revision are the rule. As Bouwknegt notes, the discovery of new facts, debates about them, and reinterpretations of them continually 274 Buss

2014, p. 24.

275 Osiel 1999, p. 242. This links into broader calls for self-reflection on the part of judges about their

role within the institutions they serve and how they can best perform their work while recognizing the skills, challenges, and points of view of those on the other side of the bench: see Terris et al. 2007, p. 89. 276 Aksenova 2017, p. 49. 277 Herencia Carrasco 2017, p. 409. 278 Tromp 2016, p. 275. 279 Mendeloff 2004, p. 374. 280 Sander 2018a, p. 575.

236

7 Aiming Towards Responsible History in International …

shift understanding of historical events. However, in law, a number of legal doctrines are designed to prevent courts from re-evaluating, again and again, particular facts and the issues they raise and to promote legal certainty. These include res judicata, stare decisis, double jeopardy, statutes of limitations, and restrictive standards of appellate review. In addition to ensuring certainty, these legal doctrines are also intended to guard against revisionism. There has thus been increasing recognition of the tensions between the need for enabling reinterpretation and ensuring legal certainty.281 Schabas makes this point when he notes that: [i]t is important to foreclose the questioning of established historical facts when this pursues sinister agendas. At the same time, neither trials nor truth commissions should be allowed to stifle a constant reconsideration and reassessment of the past, something that is the essential contribution of professional historians.282

Essentially, the fourth element of responsible history requires a greater awareness of these tensions and an awareness that, with respect to particular parts of the historical narratives emerging from criminal proceedings, judges and lawyers do not necessarily have the last word on history. This aspect of responsible history therefore entails a recognition that criminal trials do not or, at least, not entirely, provide the definitive word on the past.283 Rather, this element requires us to draw the following distinction: while some parts of the historical facts emerging from criminal trials should be considered as final and established beyond reasonable doubt, other parts of the historical record should be regarded as discursive beginnings. Or, as Joyce has argued, they are “discursive beginning[s] and not an end to the history emerging.”284 This of course begs the question of which parts of the historical narratives produced by ICTs should be regarded as discursive beginnings? In this respect, Arendt’s two-tiered approach to historical evidence, discussed in Chap. 2, is useful. The first tier consists in historical evidence that is directly relevant to the alleged acts of the accused. The second tier is historical evidence that goes beyond the person of the accused and relates to the background and the conditions under which the accused committed his acts. With respect to the first tier, it is necessary to foreclose the questioning and reinterpretation of historical facts that form the underlying basis of charges that have been established before a competent court and/or tribunal beyond reasonable doubt. With respect to the second tier, however, evidence relating to broader historical contexts should remain open to re-interpretation and development both (internally) by subsequent trials and (externally) by historians, truth commissions and other actors. Here, “contexts” refer to understanding the larger social and institutional forces that allowed a specific abuse to take place.285 They would include, for instance, historical evidence concerning the causes and build-up to a conflict and other historical evidence that goes beyond the person and/or conduct of the accused. 281 Bouwknegt

2018, p. 136. 2012, p. 172. 283 Mendeloff 2004, p. 360. 284 Joyce 2004, p. 465. 285 Gibson 2009, p. 182. 282 Schabas

7.3 Developing a Responsible History Framework

237

The need to leave open the door for the re-interpretation of broader historical contexts arises not only because of the inherent limitations of the historical narratives produced by criminal trials, but also because of the inevitability of change due to new interpretations and/or new evidence. This approach may not find favour by those who prioritise the finality and closure of legal judgments. Nevertheless, as Sander argues, rather than expecting judgments to provide unrealistic moments of narrative closure, a more fruitful perspective would be to view discussions of broader historical contexts as discursive beginnings for victims, local communities and future generations to engage with and debate the past beyond the courtroom.286 This would be more in line with the process of historical explanation, where “accounts of the past continually evolve in response to the needs of the present, in dialogue with others and with our own imagination”.287 This approach may also have a salutary effect on legitimacy, particularly for those who wish to contest the court or tribunal’s historical explanations.288 There are at least three grounds for arguing that broader historical contexts (the second tier evidence) should remain open to re-interpretation, based on (a) historiography, (b) procedural law and (c) freedom of expression. As discussed above, historiography presumes the inevitability of changes in interpretation and entails a cycle of perpetual challenge (whether by simple accretion, by correction, or by reinterpretation) to received accounts of past events.289 From this perspective, therefore, it is important to recognise that the broader historical narratives written by judges of ICTs, as any other historical writings, should remain open to modification and re-interpretations over time. From a procedural law perspective, the scope for reinterpretation of historical facts directly linked to acts in relation to which the accused has been convicted/acquitted should be foreclosed once the case becomes res judicata. However, with respect to broader historical contexts and events (such as the causes for and build-up to a conflict), the scope for discussion and reinterpretation should remain open. And from a freedom of expression perspective, this approach is a recognition that, on the one hand, one set of societal values (those of legal certainty) apply to the operative legal findings of a judgment, and demand that legal disputes receive finality and are not re-opened without justification. On the other hand, however, a different set of societal values (those of freedom of opinion and expression, including the freedom of academic opinion) apply to the broader historical contexts developed by ICTs, as they apply to other historical writings. These entail the right to express opinions about, and re-interpretations of, history. This, of course, links to wider discussions of the relationship between the legal governance of history and memory, and free speech.290 286 Sander

2018b, p. 36. 2002, p. 15. 288 In research on how judges present arguments in written opinions at the US Supreme Court, it was found that furnishing a monolith of unequivocal (and overstated) reasons does not have persuasive power. In contrast, there is some evidence to indicate that opinions that acknowledge the complexity and indeterminacy of the decision do have a salutary effect on legitimacy for those who disagree with the outcome of the decision: see Scurich 2018, p. 205. 289 Havel 2005, p. 675. 290 See, for instance, Belavusau and Gliszczy´ nska-Grabias 2017. 287 Jackson

238

7 Aiming Towards Responsible History in International …

The above argument in favour of recognising the open-endedness of the broader historical narratives (the second tier evidence) produced by ICTs may appear counterintuitive, at first glance, with respect to the objective of fighting revisionism, which is an important objective of international criminal justice. However, it has been shown that a concern with revisionism should not hold judges of ICTs back from recognising the inevitability of changing interpretations because, in practice, they have little control over this phenomenon. It has been cogently shown that deniers of crimes are likely to be able to find in the massive trial archives, extensive court judgments and other historical material: enough factual details or commentary or even a paragraph from a judgment taken out of context material on which to construct, advance or support an apologetic historical narrative, regardless of the verdict.291

Rather than aspiring to write “future-proof” historical narratives, therefore, an aspiration that is simply unattainable, the most that judges of ICTs, and indeed responsible historians, may aspire to, is to lay bare the evidence in an accurate and sincere manner and to purify the argument, in order to narrow the range of permissible interpretations.292 Or, as Ignatieff put it, to reduce the number of lies that can “be circulated unchallenged in public discourse”.293 When writing broader historical backgrounds about mass violence, their contributions should not be seen as an end-point of “history-telling”, but a first tentative, though essential, opportunity for societies to acknowledge the past through a continuous public debate—at schools, in the press, in politics and just between people.294

References Aarnbe Langvatn S, Squatrito T (2017) Conceptualising and Measuring the Legitimacy of International Criminal Tribunals. In: Hayashi N, Bailliet CM (eds) The Legitimacy of International Criminal Tribunals. Cambridge University Press, Cambridge Adler N (2018) Introduction: On History, Historians, and Transitional Justice. In: Adler N (ed) Understanding the Age of Transitional Justice. Rutgers University Press, New Brunswick Aguilera ER (2013) Truth and victims’ rights: Towards a legal epistemology of international criminal justice. Mexican Law Review 6:119–160 Aksenova M (2017) The Role of International Criminal Tribunals in Shaping the Historical Accounts of Genocide. In: Belavusau U, Gliszczy´nska-Grabias A (eds) Law and Memory: Towards Legal Governance of History. Cambridge University Press, Cambridge Alexander A (2015) A Short History of International Humanitarian Law. Eur J Int Law 26:109–138 Arendt H (1992) Eichmann in Jerusalem: A Report on the Banality of Evil. Penguin Publishing Group 291 Tromp

2018, p. 68.

292 After all, as Mendeloff posits, it is certainly open to question how effective formal truth-seeking

mechanisms such as trials can be in precluding the emergence of chauvinist mythmaking in the long term: see Mendeloff 2004, p. 356. See also Morden 2017, p. 374. 293 Ignatieff 1996, p. 113. 294 Arnould 2006, p. 147.

References

239

Arnould V (2006) Justice after Civil Wars: Truth Commissions’ and War Crimes Tribunals’ Contribution to Post-Conflict Reconciliation. Studia Diplomatica 59:141–158 Baig L, Jarvis M, Martin Salgado E, Pinzauti G (2016) Contextualizing Sexual Violence: Selection of Crimes. In: Brammertz S, Jarvis M (eds) Prosecuting Conflict-Related Sexual Violence. Oxford University Press, Oxford Belavusau U, Gliszczy´nska-Grabias A (eds) (2017) Law and Memory: Towards Legal Governance of History. Cambridge University Press, Cambridge Benvenuti P (2001) The ICTY Prosecutor and the Review of the NATO Bombing Campaign against the Federal Republic of Yugoslavia. European Journal of International Law 12:503–530 Bilsky L (2004) Transformative Justice: Israeli Identity on Trial. University of Michigan Press Birkenkötter H (2013) Explaining Srebrenica: Establishing a Narrative Through Criminal Trials. Die Friedens-Warte 88:177–205 Bloxham D (2003) Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory. Oxford University Press, Oxford Bonello G (2008) Histories of Malta - Confessions and Transgressions, Vol.9. Fondazzjoni Patrimonju Malti Bothe M (2001) The Protection of the Civilian Population and NATO Bombing on Yugoslavia: Comments on a Report to the Prosecutor of the ICTY. Eur J Int Law 12:531–536 Bouwknegt TB (2018) The international criminal trial record as historical source. In: Adler N (ed) Understanding the Age of Transitional Justice. Rutgers University Press, New Brunswick Burgis-Kasthala M (2015) An arresting event assassination within the purview of international criminal law. In: Schwöbel C (ed) Critical Approaches to International Criminal Law. Routledge, Abingdon Buss D (2014) Expert Witnesses and International War Crimes Trial: Making Sense of LargeScale Violence in Rwanda. In: Zarkov D, Glasius M (eds) Narratives of Justice In and Out of the Courtroom: Former Yugoslavia and Beyond Springer Series in Transitional Justice. Springer International Publishing Byrne R (2009) The New Public International Lawyer and the Hidden Art of International Criminal Trial Practice. Conn J Int’l L 25:243–304 Cassese A (1998) On Current Trends Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law. European Journal of International Law 9:1 Cassese A (2011) Reflections on International Criminal Justice. J Int Criminal Justice 9:271–275 ˇ Cavoški K (2002) Juger l’Histoire. In: Gallois PM, Vergès J (eds) L’apartheid judiciaire : Le Tribunal pénal international, arme de guerre. L’Age d’Homme, Lausanne Chapman AR (2009) Truth Finding in the Transitional Justice Process. In: van der Merwe H, Baxter V, Chapman AR (eds) Assessing the Impact of Transitional Justice: Challenges for Empirical Research. United States Institute of Peace Press, Washington DC Cherry J (2009) Truth and Transitional Justice in South Africa. In: van der Merwe H, Baxter V, Chapman AR (eds) Assessing the Impact of Transitional Justice: Challenges for Empirical Research. United States Institute of Peace Press, Washington DC Chomsky N (2003) Commentary: moral truisms, empirical evidence, and foreign policy. Review of International Studies 29:605–620 Combs NA (2018) Deconstructing the Epistemic Challenges to Mass Atrocity Prosecutions. Wash & Lee L Rev 75:223–300 Cooper DE (2003) Truth and Truthfulness: An Essay in Genealogy, By Bernard Williams. Philosophy 78:411–414 Cryer R (2011) Prosecuting International Crimes: Selectivity and the International Criminal Law Regime. Cambridge University Press, Cambridge Cryer R (2003) Witness Evidence before the International Criminal Tribunals. Law & Prac Int’l Cts & Tribunals 2:411 Damaška M (1998) Truth in Adjudication. Hastings Law Journal De Baets A (2008) Responsible History. Berghahn Books de Cervantes M (2017) Don Quixote. Palmyra Classics

240

7 Aiming Towards Responsible History in International …

Derrida J (2004) Autoimmunity: Real and Symbolic Suicides, A Dialogue with Jacques Derrida. In: Borradori G (ed) Philosophy in a Time of Terror: Dialogues With Jurgen Habermas And Jacques Derrida. University of Chicago Press, Chicago Dittrich VE (2013) Legacies of the International Criminal Court under Construction. Sicherheit und Frieden (S+F)/Security and Peace 31:197–204 Douglas L (2016) Truth and justice in atrocity trials. In: Schabas W (ed) The Cambridge Companion to International Criminal Law. Cambridge University Press, Cambridge Drumbl MA (2003) Atrocity, Punishment, and International Law. Cambridge University Press, Cambridge Drumbl MA (2005) Pluralizing International Criminal Justice. Michigan Law Review 102:1295 Elberling B (2008) The Next Step in History-Writing through Criminal Law: Exactly How TailorMade Is the Special Tribunal for Lebanon? Cambridge Core. Leiden Journal of International Law 21:529–538 Elon A (2006) The Excommunication of Hannah Arendt. World Policy Journal 23:93–102 Elster J (2011) Closing the Books: Transitional Justice in Historical Perspective, First Edition. Cambridge University Press, Cambridge Eltringham N (2009) “We are not a Truth Commission”: fragmented narratives and the historical record at the International Criminal Tribunal for Rwanda. Journal of Genocide Research 11:55–79 Evans RJ (2002a) Telling Lies About Hitler: The Holocaust, History and the David Irving Trial. Verso Books, London Evans RJ (2002b) History, Memory, and the Law: The Historian as Expert Witness. History and Theory 41:326–345 Evans RJ (2001) In Defence of History. Granta Books, London Fenrick WJ (2001) Targeting and Proportionality during the NATO Bombing Campaign against Yugoslavia. European Journal of International Law 12:489–502 Foucault M (1976) Society Must be Defended: Lectures at the College De France. Penguin Books Ltd Fry E (2014) The Nature of International Crimes and Evidentiary Challenges: Preserving Quality While Managing Quantity. In: van Sliedregt E, Vasiliev S (eds) Pluralism in International Criminal Law. OUP Oxford Gallois PM (2002) Un Tribunal Arme De Guerre. In: Gallois PM, Vergès J (eds) L’apartheid judiciaire : Le Tribunal pénal international, arme de guerre. L’Age d’Homme, Lausanne Gaynor F (2012) Uneasy Partners — Evidence, Truth and History in International Trials. J Int Criminal Justice 10:1257–1275 Gereboff J (1997) Can the Teaching of Jewish History be Anything but the Teaching of Myth? In: Breslauer SD (ed) The Seductiveness of Jewish Myth: Challenge or Response? SUNY Press Gevers C (2015) International criminal law and individualism. In: Schwöbel C (ed) Critical Approaches to International Criminal Law, 1st edn. Routledge, Abingdon Gibson JL (2009) Taking Stock of Truth and Reconciliation in South Africa. In: van der Merwe H, Baxter V, Chapman AR (eds) Assessing the Impact of Transitional Justice: Challenges for Empirical Research. United States Institute of Peace Press, Washington DC Haack S (2008) Warrant, Causation, and the Atomism of Evidence Law. Episteme 5:253–266 Hammond P (2018) When frames collide: ‘Ethnic war’ and ‘genocide’. Media, War & Conflict 11:434–445 Havel B (2005) In Search of a Theory of Public Memory: The State, the Individual, and Marcel Proust. 80 Indiana Law Journal 605 (2005) Hayashi N et al. (2017) Introduction. In: Hayashi N, Bailliet CM (eds) The Legitimacy of International Criminal Tribunals. Cambridge University Press, Cambridge Hazan P (2006) Measuring the impact of punishment and forgiveness: a framework for evaluating transitional justice. International review of the Red Cross 88:19–47 Heinze E (2017) Epilogue: Beyond ‘Memory Laws’: Towards a General Theory of Law and Historical Discourse. In: Belavusau U, Gliszczy´nska-Grabias A (eds) Law and Memory: Towards Legal Governance of History. Cambridge University Press, Cambridge

References

241

Herencia Carrasco S (2017) Defense of Democracy and the Preservation of Collective Memory through Criminal Legislation: The Challenges of Reconciliation in Peru. In: Belavusau U, Gliszczy´nska-Grabias A (eds) Law and Memory: Towards Legal Governance of History. Cambridge University Press, Cambridge Ignatieff M (1996) Articles of Faith. Index on Censorship 25:110 Jackson M (2002) The Politics of Storytelling: Violence, Transgression and Intersubjectivity. Museum Tusculanum Press, Copenhagen Jarvis M (2016) Overview: The Challenge of Accountability for Conflict-related Sexual Violence Crimes. In: Brammertz S, Jarvis M (eds) Prosecuting Conflict-Related Sexual Violence. Oxford University Press, Oxford Jarvis M, Vigneswaran K (2016) Challenges to Successful Outcomes in Sexual Violence Cases. In: Brammertz S, Jarvis M (eds) Prosecuting Conflict-Related Sexual Violence. Oxford University Press, Oxford Joyce D (2004) The Historical Function of International Criminal Trials: Re-thinking International Criminal Law. Nordic Journal of International Law 73:461–484 Kavanagh J, Rich MD (2018) Truth Decay - An Initial Exploration of the Diminishing Role of Facts and Analysis in American Public Life. RAND Corporation Kelsall T (2009) Culture under Cross-Examination: International Justice and the Special Court for Sierra Leone. Cambridge University Press, Cambridge Khan KAA, Dixon R (2009) Archbold International Criminal Courts: Practice, Procedure and Evidence. Sweet and Maxwell Kirchheimer O (1961) Political Justice: The Use of Legal Procedure for Political Ends. Princeton University Press Kiyani A (2017) Legitimacy, Legality, and the Possibility of a Pluralist International Criminal Law. In: Hayashi N, Bailliet CM (eds) The Legitimacy of International Criminal Tribunals. Cambridge University Press, Cambridge Koskenniemi M (2002a) Between Impunity and Show Trials. In: Frowein JA, Wolfrum R, Philipp CE (eds) Max Planck Yearbook of United Nations. 2002. Vol. 6 Vol. 6. Brill, Leiden Koskenniemi M (2002b) ‘The Lady Doth Protest Too Much’-Kosovo, and the Turn to Ethics in International Law. The Modern Law Review 65:159–175 Kwon O-G (2007) The Challenge of an International Criminal Trial as Seen from the Bench. J Int Criminal Justice 5:360–376 Langer M (2005) The Rise of Managerial Judging in International Criminal Law. The American Journal of Comparative Law 53:835–909 Laudan L (2006) Truth, Error, and Criminal Law: An Essay in Legal Epistemology. Cambridge University Press Laughland J (2008) A History of Political Trials: From Charles I to Saddam Hussein. Peter Lang Ltd London Charter, Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, No. 251 (1945) Marrus MR (2002) History and the Holocaust in the Courtroom. In: Smelser R (ed) Lessons and Legacies V| Northwestern University Press. Northwestern University Press McDonald GK (2000) Crimes of Sexual Violence: The Experience of the International Criminal Tribunal. Colum J Transnat’l L 39:1 Mégret F (2015) International criminal justice: A critical research agenda. In: Schwöbel C (ed) Critical Approaches to International Criminal Law. Routledge, Abingdon Mendeloff D (2004) Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm? International Studies Review 6:355–380 Milanovic M (2016) The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Postmortem. American Journal of International Law 110:233–259 Mills C (2011) Harper Lee’s To Kill a Mockingbird. Insight Publications Mnookin JL (2008) Of Black Boxes, Instruments, and Experts: Testing the Validity of Forensic Science. Episteme 5:343–358

242

7 Aiming Towards Responsible History in International …

Morden M (2017) Historical Revisionism and the Settler State: The Canadian Experience. In: Belavusau U, Gliszczy´nska-Grabias A (eds) Law and Memory: Towards Legal Governance of History. Cambridge University Press, Cambridge Murphy P (2010) No Free Lunch, No Free Proof Symposium: The Role of Defence in International Criminal Trials. J Int’l Crim Just 8:539–574 Naftali P (2017) The ‘Right to Truth’ in International Law: The ‘Last Utopia’? In: Belavusau U, Gliszczy´nska-Grabias A (eds) Law and Memory: Towards Legal Governance of History. Cambridge University Press, Cambridge Naqvi Y (2006) The right to the truth in international law: fact or fiction? International Review of the Red Cross 88:245–273 Nice G (2017) Justice For All and How to Achieve It: Citizens, lawyers and the law in the age of human rights. Scala Arts & Heritage Publishers Ltd Nielsen C (2008) From Nuremberg to The Hague: The Civilizing Mission of International Criminal Law. Auckland University Law Review 14:81 Osiel MJ (1999) Mass Atrocity, Collective Memory, and the Law, 1st edn. Transaction Publishers Panepinto AM (2017) The right to the truth in international law: The significance of Strasbourg’s contributions. Legal Studies 37:739–764 Peterson J (2007) Unpacking Show Trials: Situating the Trial of Saddam Hussein. Harvard International Law Journal 48:257–292 Petrovi´c V (2016) The Emergence of Historical Forensic Expertise: Clio Takes the Stand. Routledge Rescher N (2006) Presumption and the Practices of Tentative Cognition. Cambridge University Press Reynolds J, Xavier S (2016) ‘The Dark Corners of the World’ TWAIL and International Criminal Justice. J Int Criminal Justice 14:959–983 Rogers D (2017) Law, Politics and the Limits of Prosecuting Mass Atrocity. Palgrave Macmillan, New York Sander B (2018a) History On Trial: Historical Narrative Pluralism Within And Beyond International Criminal Courts. International & Comparative Law Quarterly 67:547–576 Sander B (2018b) The Method is the Message: Law, Narrative Authority and Historical Contestation in International Criminal Courts. Melbourne Journal of International Law 19:299 Sander B (2018c) Unveiling the Historical Function of International Criminal Courts: Between Adjudicative and Sociopolitical Justice. International Journal of Transitional Justice 12:334 Schabas W (2012) Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals. Oxford University Press, Oxford Scurich N (2018) Styles of Argumentation in Judicial Opinions (Legitimating Judicial Decisions). Annu Rev Law Soc Sci 14:205–218 Shklar JN (1986) Legalism: Law, Morals, and Political Trials. Harvard University Press Simpson G (1997) Didactic and Dissident Histories in War Crimes Trials. Albany Law Review 60:801 Sinnott-Armstrong W, Roskies A, Brown T, Murphy E (2008) Brain Images as Legal Evidence. Episteme 5:359–373 Stein A (2008) On the Epistemic Authority of Courts. Episteme 5:402–410 Symposium on Prosecutorial Discretion before National Courts and International Tribunals (2005) Journal of International Criminal Justice 3:124 Terris D, Romano CPR, Swigart L, Sotomayor S (2007) The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases. Brandeis, Waltham Tromp N (2016) Prosecuting Slobodan Miloševi´c: The Unfinished Trial. Routledge, Milton Park, Abingdon, Oxon Tromp N (2018) In Search for Truth at Mass Atrocities Trials: Will Judges and Lawyers Have the Last Word? The Journal of Comparative Law 12:61 v H Holtermann J (2017) ‘One of the Challenges that Can Plausibly Be Raised Against Them’? On the Role of Truth in Debates about the Legitimacy of International Criminal Tribunals. In:

References

243

Hayashi N, Bailliet CM (eds) The Legitimacy of International Criminal Tribunals. Cambridge University Press, Cambridge Wald PM (2008) War Tales and War Trials. Michigan Law Review 106:901 Waldorf L (2011) ‘A Mere Pretense of Justice’: Complementarity, Sham Trials, and Victor’s Justice at the Rwanda Tribunal. Fordham International Law Journal 33:59 Water TW (2017) Hidden Legitimacy: Crafting Judicial Narratives in the Shadow of Secrecy at a War Crimes Tribunal – A Speculation. In: Hayashi N, Bailliet CM (eds) The Legitimacy of International Criminal Tribunals. Cambridge University Press, Cambridge Waters T (ed) (2014) The Milosevic Trial: An Autopsy. Oxford University Press, Oxford Waters TW (2010) A Kind of Judgment: Searching for Judicial Narratives after Death. Geo Wash Int’l L Rev 42:279–348 Weigend T (2011) Should We Search for the Truth, and Who Should Do It. North Carolina Journal Of International Law And Commercial Regulation Williams B (2004) Truth and Truthfulness: An Essay in Genealogy. Princeton University Press, Princeton, US Wilson RA (2011) Writing History in International Criminal Trials. Cambridge University Press, Cambridge Wood N (1999) Vectors of Memory: Legacies of Trauma in Postwar Europe, 1st edn. Berg 3PL, Oxford Yee S (2004) The Tu Quoque Argument as a Defense to International Crimes, Prosecution or Punishment. Chinese J Int’l L 3:87

Chapter 8

Conclusion

Contents References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

Abstract The question over the proper place of history-writing in international criminal adjudication continues to be a source of controversy today. While the dominant approach has remained that of strict legality, there are several other approaches that favour a more moderate place for history-writing. These include truth and justice, right to truth and legal epistemology. Whether judges and lawyers like it or not, ICTs are epistemic engines: they are institutions that systematically and inevitably produce historical knowledge and have epistemic authority. One of the arguments of this book has been that with such authority comes responsibility: in particular, the responsibility of judges and prosecutors to aim towards truthfulness. While, therefore, it is necessary to challenge the restrictive approach to history-writing, the book has argued that it is also necessary to challenge the more expansive approach of didactic legality. This is because didactic legality is not necessarily interested in promoting truthfulness but, rather, to teach specific lessons about the past. This book has made the argument for a responsible history framework, based on the following elements: (1) a recognition of the value of the history-writing function in international criminal adjudication; (2) a commitment to the virtues of accuracy and sincerity in the search for truth; (3) a recognition of the constraints and limitations of the historical narratives written by judges of ICTs; and (4) a recognition that judges and lawyers do not necessarily have the last word on history. Keywords Responsible History · International Criminal Adjudication · Strict Legality · Didactic Legality · Truth and Justice · Right to Truth · Epistemic Authority By way of offering some concluding remarks, we have seen how the question over the proper approach to history-writing in international criminal adjudication continues to cause controversy today. On the one hand, the dominant approach in criminal law has remained that of strict legality which, in its thick variant, has been described as the “justice-and-nothing-else” approach. Proponents of this view have tended to claim that a concern with history-writing could only detract from the administration © T.M.C. Asser Press and the author 2021 A. Zammit Borda, Histories Written by International Criminal Courts and Tribunals, International Criminal Justice Series 26, https://doi.org/10.1007/978-94-6265-427-3_8

245

246

8 Conclusion

of justice. They have therefore sought to de-emphasize the history-writing role of ICTs. That view has been challenged in this book from at least two angles. It was argued, firstly, that you cannot have justice without understanding and, for understanding to occur in the specific contexts of ICTs, historical explanation is necessary (a rationale referred to as “truth and justice”). There were several features which set international criminal trials apart from “ordinary” criminal trials. ICTs deal with events occurring in times of upheaval and armed conflict, when contexts may be fluid and contested. This is different from ordinary trials dealing with events occurring in peacetime, where the relationship between context and event is relatively uncontroversial. In periods of transition and upheaval, the debate about historical context and past normality takes on a contested, political aspect for the different parties to the conflict. In addition, judges considering such conflicts need to understand facts and events that took place in foreign countries and that occurred in unfamiliar social and legal cultures. There is the need, therefore, to recognise the particular importance of historical contextualisation in international criminal adjudication, in order to develop a deeper understanding of the charges. By downplaying the need for historical contextualisation, and by emphasizing other non-epistemic values of criminal trials (such as expeditiousness), judges could, in effect, be prioritising their own preconceptions of the appropriate historical contexts over the competing perspectives of the parties to the conflict. One of the arguments of this book has been that this approach does not promote responsible history as it may not promote an accurate and sincere search for truth. As has been discussed, responsible history, rather, inclines towards a strategy that allows for a pluralist approach to relevant historical evidence at trial (while avoiding, as discussed below, “free proof”). A second argument for challenging the strict legality approach is that, whether judges and lawyers like it or not, ICTs are epistemic engines: they are institutions that systematically and inevitably produce knowledge or find truths about the conflicts that come before them. Indeed, with the epistemic authority that ICTs enjoy, they also have a responsibility: in particular, the responsibility of judges and prosecutors to aim towards truthfulness in the historical accounts they generate. This is a key element of the responsible history framework. In the final analysis, therefore, it is necessary to challenge the view of strict legality that judges should stir away from writing history. Whether or not judges acknowledge the history-writing function of ICTs, this will remain an inevitable feature of such courts and tribunals. Inevitably, the history-writing role will come in tension with other important objectives of criminal trials. However, by explicitly recognising this function, judges and prosecutors will bring these tensions out in the open, and confront and debate them, rather than leave them hidden or under-examined.1 While, therefore, it is necessary to challenge the restrictive approach to historywriting adopted by strict legality, the book has argued that it is also necessary to challenge the more expansive approach adopted by didactic legality. This is because, inter alia, rather than seeking to search for truth and “understand” the past accurately 1 Joyce

2004, p. 463.

8 Conclusion

247

and sincerely, the primary aim of didactic legality is to communicate and teach history lessons in an effort to shape collective memory. From this perspective, in order to better succeed as dramaturgical events, the narratives told at trial need to be pared down and the rules of procedure and evidence need to be relaxed. This approach, therefore, is not necessarily interested in promoting an accurate and sincere search for truth but, rather, to teach specific lessons about the past. In the previous chapters, this book has sought to articulate the middle ground between strict legality and didactic legality. It set out to address the following two research questions, namely: 1. What kinds of historical narratives do ICTs produce? What are the lenses through which judges of ICTs interpret historical events? What methods and approaches relating to law’s ways of knowing apply particularly to international criminal adjudication? What are some of the strengths, constraints and blind spots of these methods and approaches? 2. What kinds of historical narratives should ICTs produce? And, in particular, how could judges of ICTs, as well as other legal practitioners, aim towards producing more responsible representations of the past? With respect to the first research question—namely, what kinds of historical narratives do ICTs produce?—by analysing the complex and often strained relationship between international criminal adjudication, the search for truth and the writing of historical narratives, this study has sought to shed more light on the strengths, constraints and blind spots of the historical narratives that judges, and prosecutors, of ICTs may write. It has done this using two approaches: frame analysis and legal epistemology. As discussed in Chap. 1, the frame analysis approach has not yet fully emerged as a methodology for examining the operation of international criminal adjudication. The analysis in this book focused on three key lenses: the individual-centred, crime-driven and law-affirming lens. Frame analysis enabled us to shed more light on international criminal adjudication as a cognitive practice, seeking to examine the interpretation and framing of past events from within the lenses that the judges themselves applied. It focused attention on the process of interpreting the past, taking account of the focal points of their lenses. It also enabled us to delineate the contours and outer limits of such lenses and to identify which kinds of interpretations and explanations are likely to be pushed to the periphery (the counternarratives). As discussed, these processes all had implications for the historical narratives that judges of ICTs were likely to write. However, one of the important limitations of this approach is that it was not able to explain why judges, in specific cases, would tend to adopt broader or narrower framings or lenses. After examining the focal points for each lens, each chapter also proceeded to illustrate a potential counternarrative explanation which would normally be downplayed or marginalised by the lens in question, giving rise to potential blind spots. The discussion of counternarratives was far from exhaustive. It was only meant to illustrate some of the counternarrative explanations that would be de-emphasised by

248

8 Conclusion

the lenses used in international criminal adjudication. Examining such counternarratives is important as it exposes the outer limits of law’s lenses and the potential for blind spots in the historical narratives emerging from ICTs. In this respect, several scholars have critiqued the individual-centred focus of legal explanations. In re-visiting this lens, the study found that it has the advantage of foregrounding the role and actions of particular individuals. It also found that a more nuanced understanding of this lens needs to take into account certain legal constructs, such as accomplice liability, vicarious responsibility, and strict liability, which allow for an understanding that, at least to a limited degree, may accommodate broader, collective explanations. Nevertheless, the historical explanations produced by judges of ICTs tend to generally be one-dimensional, focusing on individual agency in mass atrocities. That the individual-centred lens has survived virtually unchanged from Nuremberg to the ICC indicates how deeply rooted this lens is in international criminal adjudication. Another lens through which judges and other legal practitioners interpret and understand past events is the crime-driven lens. The focus of international criminal adjudication on criminal conduct and criminal liability means that other dimensions of a conflict, which are not related to criminal liability, but which may be of unquestionable historical importance are disregarded in the trial narratives that emerge from ICTs. The crime-driven lens is characterised by two important constraints relating to interpretation and scope. While historians have critiqued trial narratives for “torturing”, “deforming”, or “distorting” history by interpreting historical events through formal and rigid legal constructs, this study has argued that law is often more creative than practitioners and historians may like to admit. Indeed, such legal constructs have been adapted to novel or changing realities by means of judicial creativity. In the final analysis, however, law is indeed more formal and rigid than history, and, as was the case with the individual-centred lens above, less able to accommodate broader or multi-layered explanations. A third lens through which judges of ICTs interpret historical facts is the lawaffirming lens. Through this lens, judges of ICTs cast the operation of law in a largely positive light. However, through this lens, judges (and prosecutors) reserved for themselves the prerogative of deciding which social practices may be characterised as “law”. As such, historical explanations from this lens tend to downplay the potential involvement of law, legal institutions, and legal professionals in the context of oppressive policies. The lenses presented here are not exhaustive and there may be others that influence and constrain the way in which judges of ICTs approach and interpret past events. Moreover, as with filters in photography, in practice, judges of ICTs usually use multiple and overlapping filters at once. In addition to these lenses, the book has used legal epistemology to assess the truth-conduciveness or otherwise of particular practices and procedures of international criminal trials, in order to further assess their strengths, constraints and blind spots. As discussed, in their search for truth, criminal adjudication and conventional historiography share some important similarities, such as the realist view that some level of truth is in principle discoverable. However, unlike historiography, criminal trials also need to balance several competing non-epistemic

8 Conclusion

249

policy values which may give rise to tensions between the admission of evidence, the search for truth, and the creation of historical narratives. Trial narratives have frequently been criticised for being reductive, given that law needs ultimately to lend its authority to only one of the competing accounts about what happened. However, while undoubtedly history is better able to embrace complex and multivocal accounts, mass atrocity trials have been able to accommodate some level of intra-court and inter-court narrative pluralism in their judgments. This happens, for instance, when later judgments revisit and reinterpret historical narratives included in previous judgments. Through these mechanisms, ICTs have been able to attain some level of multivocality and to present, to some extent, competing narratives. By virtue of the adversarial system, moreover, criminal trials constitute one of the few places in which opposing historical arguments actually interact and are tested rigorously. In addition, ICTs often have greater access to historical evidence and primary sources than other writers of history. However, as giants without arms and legs, they have also faced significant constraints, as States and international organisations have oftentimes refused to furnish critical evidence or have sought to suppress or manipulate such evidence in various ways. Finally, while, undoubtedly, the historical narratives established in legal judgments are more fixed and resistant to change than historical interpretations of the same events, it is important not overstate the case. The historical narratives of ICTs could be re-evaluated, and narrative pluralism promoted, in more ways than one, both within the same court and across courts. The relationship between law and history is therefore “uneasy”. From the perspective of historiography, it may be tempting to dismiss criminal trials as not writing history at all, but serving merely as agents of collective memory or, at best, as producing esoteric kinds of “trial” truths, far removed from “ordinary” historical truths. While, as Bert Röling had argued, criminal trials are only ever able to produce “trial” truths, rather than historical truths,2 such trial truth should not be considered far removed from “ordinary” historical truth. Drawing sharp distinctions between “trial” truths and ordinary “historical” truths would fail to take into account the complex and entwined relationship between law and history, and the fact that, in many cases, criminal trials have generated important historical knowledge. Indeed, Douglas reflects that, if anything, mass atrocity trials would appear to draw “the interests of justice and truth all the more powerfully in concord”.3 With respect to the second research question—namely, what kinds of historical narratives should ICTs produce?—on the one hand, some judges of ICTs, as well as legal officials working within ICTs, have tended to adopt a restrictive approach and to de-emphasize the value of the history-writing function. On the other hand, however, some scholars and stakeholders, including victims’ groups, have tended to favour more expansive approaches and have emphasised the value of the search for truth, referring not only to the narrow legal truth of whether the accused was innocent or guilty of the crimes charged (though, naturally this is a very important 2 Cassese 3 Douglas

and Roling 1994, p. 50; Cryer 2003, p. 418. 2016, p. 37.

250

8 Conclusion

aspect), but also to broader truths about the conflict.4 The polarised restrictive v. expansive attitudes towards the history-writing function of ICTs have so far (and with some notable exceptions) prevented a more nuanced appreciation of the value of history-writing from developing in the scholarship. This book has argued for the need for a more nuanced understanding of the complex relationship between judging international crimes and writing history in international criminal adjudication. The argument for a more moderate approach to the history-writing function in international criminal adjudication is based on three distinct, but interrelated grounds: 1. The first ground is truth and justice: as has been argued above, the search for truth is a precondition of justice. It is necessary in order to understand the crimes charged. As discussed, in mass atrocity trials, the political, cultural, and historical contexts are usually fluid and contested. In order to establish “truth” about the alleged crimes, therefore, it becomes necessary to establish wider truths about the contested historical and political contexts. As such, discussions of broader historical contexts at ICTs are necessary as they promote greater understanding of the crimes charged. 2. The second ground is right to truth: from the perspectives of the victims and society, the rendering of justice and the search for truth should be viewed as complimentary, not competing, endeavours. Criminal proceedings should play a central role in addressing the principal concern of affected citizens to know what happened and to be confident that the best possible narrative of events is left behind.5 3. The third ground is legal epistemology: as has also been argued above, whether judges, legal practitioners and, indeed, historians like it or not, ICTs are epistemic engines that produce historical knowledge and that enjoy “epistemic authority” in society.6 With such epistemic authority, however, comes responsibility and, in particular, the responsibility of judges and prosecutors to aim towards truthfulness in their historical accounts. Having thus argued for a more moderate approach to history-writing in international criminal adjudication, occupying the space between strict legality and didactic legality, this book proceeded to articulate a responsible history framework, based on the following elements: 1. A recognition of the value of the history-writing function in international criminal adjudication. 2. A commitment to the virtues of accuracy and sincerity in the search for truth. 3. A recognition of the constraints and limitations of the historical narratives written by judges of ICTs. 4. A recognition that judges and lawyers do not necessarily have the last word on history. 4 See

UC Berkeley School of Law Human Rights Center 2015, p. 68; Cryer 2003, p. 419. 2017, p. 28. 6 Stein 2008. 5 Nice

8 Conclusion

251

Table 8.1 Conceptual framework for responsible history Elements of responsible history 1. A recognition of the value of the history-writing function in international criminal adjudication

2. A commitment to the virtues of accuracy and sincerity in the search for truth

3. A recognition of 4. A recognition that the constraints and judges and lawyers limitations of the do not necessarily historical have the last word narratives written on history by judges of ICTs “Accuracy” aims at While it is necessary finding out the truth Legal judgments to foreclose the Discussions of and “sincerity” at should reflect an reinterpretation of first historical contexts in telling it. The former awareness of the tier historical evidence international criminal requires an strengths, constraints (evidence that is proceedings are investigative and limitations of the directly relevant to the important in order to: investment undertaken historical narratives alleged crimes of the (a) promote greater with care and that judges of ICTs accused), second tier understanding of the reliability in may write evidence (evidence crimes charged and (b) discovering and that relates to promote the broader coming to hold a historical right to truth for belief. The latter backgrounds) has to victims and society to requires an effort on remain open to know what happened the part of speakers to re-evaluation communicate what they believe to be true and, more generally, to be trustworthy speakers who do not mislead ▲ Truth and justice

Right to truth

Legal epistemology

▲

▲

▲

Grounds for responsible history

A “responsible” approach to history-writing, therefore, takes seriously the epistemic responsibility of ICTs in generating historical knowledge.7 In this respect, and in fulfilling this responsibility, judges of ICTs should aim towards the truthfulness of their historical narratives. For the purposes of developing this responsible history framework, Bernard Williams’ theory of truth and truthfulness was adopted (see Table 8.1). The emphasis of responsible history is on the virtues of accuracy and sincerity: judges and prosecutors of ICTs should do the best they can to acquire true beliefs, and what they say should reveal what they truly believe. It is clear that ICTs could not and should not aspire towards writing “complete” narratives of the conflicts that come before them. It is inevitable that the historical narratives they generate will be selective and incomplete. However, what responsible history requires is that, in 7 Amaya

2008, p. 311.

252

8 Conclusion

writing historical narratives, court officials (judges, prosecutors) should aim towards writing accurate and sincere versions of truth. For instance, judges should seek to manage cases in ways that would enable them to develop pluralist, more accurate understandings of the contexts of the charges. However, this approach should be distinguished from “free proof”, that is, an unrestricted approach to evidence that indiscriminately admits any material claimed by the parties to be “evidence”.8 Given the often fluid and contested nature of historical contexts of armed conflicts, parties and, as applicable, participants should be allowed to challenge prevailing historical contexts and present their competing interpretations, explanations and evidences of such contexts. Moreover, it has also been argued that, in order to promote greater sincerity in their search for truth, prosecutorial decisions relating to, for instance, selection of the charges should be based on some set of public and defensible criteria. In addition to offering an approach for writing responsible history, the framework developed in this book may also be used to analyse and critique the historical legacies of ICTs. Drawing on the virtues of accuracy and sincerity, this framework may be used to assess whether the historical legacies of ICTs have aimed towards truthfulness. This critique involves the question of whether the prosecutors and/or judges of ICTs made sincere attempts at aiming towards truthfulness in their narratives by offering even-handed accounts. Or, on the other hand, whether they attempted to conceal salient aspects of the conflict, offering instead one-sided accounts.9 Thus, for instance, both the ICTY’s failure to prosecute NATO actions and the ICTR’s failure to prosecute members of the RPF have been critiqued on legitimacy and victor’s justice grounds. However, as argued in Chap. 7, from a responsible history outlook, given the seemingly sincere efforts that the prosecutors of both Tribunals made to investigate and prosecute those incidents, the eventual failure of these Tribunals to prosecute the incidents could not be critiqued on the grounds of sincerity. At both the ICTY and the ICTR, the prosecutors were not deliberately trying to mislead their audiences and/or trying to shield one of the sides to the conflict. Rather, insofar as their decisions not to investigate the particular incidents (NATO and RPF actions) were based on external pressures, they were merely responding to the stark reality of such external pressure. However, what they could have done better, from a responsible history perspective, is to expressly recognise and acknowledge the impact of such non-prosecutions on the accuracy and sincerity of the trial narratives emerging from their Tribunals. They should have thus acknowledged more openly the specific circumstances/pressures pertaining to the non-prosecution of particular parties, and that those circumstances should be taken into account when considering the absence of such parties from the historical narratives the Tribunals produced. This would have reflected a more sincere effort on the part of speakers to communicate what they believed to be true and, more generally, to be trustworthy speakers. These considerations are particularly pertinent for the ongoing work of the ICC. For instance, on 5 March 2020, the ICC Appeals Chamber unanimously decided 8 Murphy 9 Elster

2010, p. 539. 2011, p. 121.

8 Conclusion

253

to authorise the Office of the Prosecutor to commence an investigation into alleged crimes committed on the territory of Afghanistan since 1 May 2003, as well as other alleged crimes that had a nexus to the armed conflict in Afghanistan but committed on the territory of other State Parties in the period since 1 July 2002.10 In her request for authorisation, the Prosecutor had initially referred to the possible involvement of a number of sides: (i) the Taliban and affiliated groups for crimes against humanity and war crimes; (ii) the Afghan National Security Forces for war crimes; and (iii) the armed forces of the United States of America (the “US”) and its Central Intelligence Agency (the “CIA”) for war crimes.11 In a statement following this authorisation, the ICC Prosecutor, Fatou Bensouda, held that her Office would proceed to conduct a diligent and thorough investigation into the situation in Afghanistan. She further held that: “[t]he investigation will be independent, impartial and objective. This is what the Office is legally mandated to do, and it is what we are committed to doing.”12 Shortly after this statement, however, it was reported that the US President—noting that the Prosecutor’s request included reference to US forces and the CIA—proceeded to order the imposition of economic and travel sanctions against any ICC officials involved in an investigation into whether US forces committed war crimes in Afghanistan.13 The sanctions that could be imposed under this order could include freezing the US assets of those who help the ICC investigate or prosecute American citizens without US consent, as well as barring them and their families from visiting the US.14 The actions of the US administration, in this regard, were clearly aimed at disrupting effective investigations into the activities and potential involvement of US forces in international crimes. Given the reliance of ICTs on the cooperation of States for effective investigations and evidence, as discussed in Chap. 6, the actions of the US will very likely curtail effective investigations into the activities of, at least, one of the sides. This, in turn, could give rise to significant blind spots in the historical narratives emerging from the ICC about this conflict. There is, unfortunately, little the ICC Prosecutor could do about this. With a view to responsible history, however, what the ICC Prosecutor could do is more openly qualify the historical narratives emerging from the ICC. In particular, she should acknowledge more openly the specific circumstances/pressures pertaining to the non-prosecution of particular sides, and that those circumstances should be taken into account when considering the absence of such parties from the investigations and historical narratives emerging from that Court. In view of the value of the history-writing function in international criminal adjudication, this book has made the case for moving beyond the polarised restrictive v. 10 Statement of ICC Prosecutor, Fatou Bensouda, following the Appeals Chamber’s decision authorising an investigation into the Situation in Afghanistan 2020. 11 ICC, Situation In The Islamic Republic Of Afghanistan, Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan, 2020, ICC-02/17 OA4, para 4. 12 Statement of ICC Prosecutor, Fatou Bensouda, following the Appeals Chamber’s decision authorising an investigation into the Situation in Afghanistan 2020. 13 Holland et al. 2020. 14 Ibid.

254

8 Conclusion

expansive debate. It has sought to articulate a more moderate, responsible approach that may serve both as a framework for history-writing and a critique of the historical legacies of ICTs. The need for a responsible approach to history-writing has gained renewed significance in view of the increased emphasis on victim- and survivorcentred approaches to criminal justice, together with the growing participation of victims at the ICC and the increased invocation of the victims’ right to truth at that Court. This coincides with the “growing movement within human rights law to affirm a right to truth and to insist upon the importance of historical memory”.15 As a result of this growing movement, therefore, it is likely that attitudes towards the proper place of history-writing in international criminal adjudication will continue to develop.

References Amaya A (2008) Justification, Coherence, and Epistemic Responsibility in Legal Fact-Finding. Episteme 5:306–319 Cassese A, Roling BVA (1994) Tokyo Trial and Beyond: Reflections of a Peacemonger, new edn. Polity, Cambridge Cryer R (2003) Witness Evidence before the International Criminal Tribunals. Law & Prac Int’l Cts & Tribunals 2:411 Douglas L (2016) Truth and justice in atrocity trials. In: Schabas W (ed) The Cambridge Companion to International Criminal Law. Cambridge University Press, Cambridge Elster J (2011) Closing the Books: Transitional Justice in Historical Perspective, 1st edn. Cambridge University Press, Cambridge Holland S, Humeyra P, Mohammed A (2020) Trump authorizes sanctions over ICC Afghanistan war crimes case. Reuters Joyce D (2004) The Historical Function of International Criminal Trials: Re-thinking International Criminal Law. Nordic Journal of International Law 73:461–484 Murphy P (2010) No Free Lunch, No Free Proof Symposium: The Role of Defence in International Criminal Trials. J Int’l Crim Just 8:539–574 Nice G (2017) Justice For All and How to Achieve It: Citizens, lawyers and the law in the age of human rights. Scala Arts & Heritage Publishers Ltd Schabas WA (2018) Time, Justice, and Human Rights: Statutory Limitation on the Right to Truth? In: Adler N (ed) Understanding the Age of Transitional Justice. Rutgers University Press, New Brunswick Stein A (2008) On the Epistemic Authority of Courts. Episteme 5:402–410 UC Berkeley School of Law Human Rights Center (2015) The Victims’ Court? A Study of 622 Victim Participants at the International Criminal Court

15 Schabas

2018, p. 51.

Index

A Accuracy, 9, 10, 13, 22, 25, 34, 116, 146– 148, 150, 170, 191, 193, 197, 205, 208–213, 215–218, 227, 229, 231, 245, 250–252 Acquittal, 117, 118 Ad hoc Tribunals, 1, 2, 30, 59, 69, 82, 84, 88, 159, 172, 201, 224, 228 Adjudicated facts, 173, 216 Adversarial, 13, 51, 118, 159–162, 164–166, 181, 182, 198, 210, 232, 249 Adversarial proceedings, 118 Agranat, 63, 156, 196, 197, 207 Alison Desforges, 91 Anti-tyranny, 129, 220 Antoon De Baets, 20 Arbitrariness, 219 Arendt, 1–3, 12, 14, 31, 44–47, 55, 63, 86, 136, 140, 168, 193, 196 Armenian atrocities, 202

B Bernard Williams, 10, 20, 191, 193, 208, 251

C Cambodia, 68, 104 Cognitive, 15, 16, 32, 78–80, 130, 140, 181, 192, 247 Coherence, 28, 155–157, 235 Collective agency, 32, 33, 77, 84, 85, 88, 89 Collective memory, 3, 5, 12–14, 25, 34, 53, 56, 58, 59, 88, 143, 179, 180, 182, 247, 249 Colonial, 33, 77, 87, 89–95, 130, 133 Comparative advantage, 167

Competing priorities, 6, 14, 42, 44, 50, 112–114, 211 Congo, 94, 109, 116, 123, 225 Contextualisation, 11, 12, 63, 218, 246 Counterfactual, 202 Counternarrative, 18, 29, 33, 77, 81, 89, 90, 100, 119, 135, 136, 140, 163, 247 Crime-driven, 18, 33, 80, 95, 99–101, 103, 106, 107, 110, 116, 118, 119, 123, 124, 192, 247, 248 Crime of genocide, 45, 103, 174, 201, 203, 217

D Defence, 11–13, 23, 26–28, 48, 49, 100, 124, 146, 149, 150, 161, 162, 165, 166, 173, 181, 201, 206, 214, 218, 233 Defensible criteria, 219, 220, 222, 225, 227– 229, 252 Deforming, 33, 99, 103, 192, 248 Didactic, 3, 6, 8, 12–14, 20, 31, 41, 44, 46, 47, 53–58, 164, 179, 181, 193, 205, 224, 245–247, 250 Distorting, 33, 99, 103, 107, 192, 248 Douglas, 3, 4, 7, 11–13, 23, 26, 27, 46, 47, 51–54, 56, 58, 61, 78, 79, 83, 84, 102, 103, 107, 108, 133–137, 144, 149, 150, 164, 170, 172, 174, 177, 181, 206, 233, 249

E ECtHR, 65, 67, 68, 175, 176 Eichmann, 1, 2, 12, 13, 27, 28, 30, 31, 44–48, 55, 56, 86, 163, 167, 177, 181, 193, 196

© T.M.C. Asser Press and the author 2021 A. Zammit Borda, Histories Written by International Criminal Courts and Tribunals, International Criminal Justice Series 26, https://doi.org/10.1007/978-94-6265-427-3

255

256 Epistemic, 2, 6–9, 19, 20, 31, 43, 45, 48, 62, 101, 144, 152, 153, 155, 160, 171, 173, 177, 181, 194, 199, 205, 232, 245, 246, 248, 250, 251 Epistemic authority, 8, 9, 160, 199, 245, 246, 250 Ethnic distinctions, 91 Evans, 2, 28, 50, 88, 116, 118, 137, 145– 149, 153, 154, 157, 158, 161, 164, 171, 177, 179, 196, 204, 214, 226 Exclusions, 33, 99, 107, 181, 221, 222, 226, 227 Expert, 26–28, 67, 70, 71, 90–92, 94, 95, 109, 140, 149, 158, 160, 161, 166– 168, 171, 172, 195, 200, 201 Extralegal, 3, 44, 54, 61, 62, 144

F Fact-finding commission, 198, 199 Fairness, 11, 12 Fatou Bensouda, 94, 253 Focal points, 18, 32, 72, 78, 81, 90, 123, 124, 247 Former Yugoslavia, 5, 17, 48, 59, 84, 89, 117, 150, 151, 153, 168, 178, 195, 201, 204, 224, 227, 228 Frame analysis, 15, 16, 18, 25, 32, 72, 77–80, 95, 192, 247 Free speech, 237

G Geoffrey Nice, 110, 166

H Historical records, 22, 62, 115 Historikerstreit, 144, 145 Historiography, 21, 34, 86, 88, 89, 109, 137, 143, 149, 152, 157, 158, 176, 182, 227, 237, 248, 249 Holocaust, 23, 47, 48, 52, 56, 82, 86, 109, 115, 136–138, 145, 149, 163, 164, 224 Human rights, 6, 8, 24, 26, 57, 59, 65–68, 70, 72, 85, 109, 112, 116, 120, 175, 197, 207, 254 Hutus, 82, 91, 92, 230

I ICTY, 3, 5, 11, 17, 21–24, 27, 42, 46, 48, 49, 51, 52, 59, 82, 85, 88, 104, 105,

Index 108, 110–115, 117, 150, 151, 153, 156, 157, 159, 160, 166, 168–172, 174, 177, 182, 195, 200–202, 204, 211, 212, 216, 217, 219, 222, 224, 227–230, 232, 233, 252 Incompatibility, 4, 50–54, 153, 179, 192 Individual agency, 32, 77, 80, 82, 84–93, 95, 248 Individual-centred, 18, 32, 33, 77, 80, 82–93, 95, 100, 123, 192, 247, 248 Inter-American Commission on Human Rights (IACHR), 65, 67 Inter-American Court of Human Rights (IACtHR), 65, 67, 68 International crimes, 3, 11, 19, 31, 32, 63, 82, 84, 89, 104, 107, 119, 192–195, 208, 250, 253 International Criminal Court (ICC), 2, 3, 6, 8, 24, 26, 27, 30, 32, 33, 42, 48, 60, 69–72, 79, 80, 82, 88–91, 94, 95, 109, 112, 115, 116, 123, 124, 144, 159, 160, 171, 172, 182, 198, 204, 206–208, 210, 248, 252–254 International Criminal Tribunals for Rwanda (ICTR), 3, 7, 10, 42, 48, 49, 53, 63, 68, 84, 85, 90–93, 105, 106, 111, 113, 165, 172, 177, 182, 197, 199, 201, 204, 207, 213, 216, 222, 224–227, 230, 231, 233, 234, 252 Irreducible risk, 58, 164, 212

J Justice-and-nothing-more, 31, 45

K Koskenniemi, 13, 14, 21, 22, 27, 56, 63, 87, 130–133, 150, 151, 161, 164, 196, 197, 206, 212, 214, 217, 227, 228

L Larry Laudan, 19 Last word on history, 9, 10, 205, 235, 236, 245, 250 Laudan, 7, 19, 61, 117, 118, 152, 162, 171, 172, 198, 199, 209, 211 Law-affirming, 18, 33, 80, 124, 129, 130, 133–136, 139, 140, 192, 247, 248 Legacies, 1, 2, 10, 33, 42, 60, 77, 90–95, 130, 203, 204, 224, 227, 231, 252, 254

Index Legal epistemology, 8, 15, 18–20, 34, 143, 152, 173, 191, 194, 199, 247, 248, 250 Liberia, 121, 122 Link requirement, 102, 103

M Malta, 202, 203 Middle ground, 1, 3–5, 7, 32, 34, 194, 247 Miloševi´c, 23, 27, 110, 113, 150, 151, 162, 167–169, 179, 194, 195, 216–218

N Narrative plurality, 158 NATO, 227–230, 252 Natural resources, 33, 71, 99, 101, 120, 122–124 Normative framework, 1, 4, 5, 20, 34, 131, 191, 193, 204, 205 Nuremberg, 1, 10, 13, 23, 30, 33, 45, 55, 56, 79, 81–83, 86, 89, 101–103, 108, 115, 133–135, 137, 138, 177, 204, 214, 215, 222–224, 226, 227, 229, 248

O Osiel, 3, 5, 12–14, 22, 44, 51, 53, 54, 56, 57, 80, 83, 108, 109, 118, 149, 151, 152, 154, 155, 157, 158, 161, 162, 175, 176, 179, 180, 194, 204, 205, 220, 224, 227, 235

P Pluralist approach, 10, 34, 191, 205, 212– 216, 218, 246 Positivist, 21, 23, 148, 150, 166 Postmodernism, 145, 146, 148–150 Postmodernist, 22, 137, 146, 149, 150, 215 Primo Levi, 86 Procedural law, 2, 237 Proper place, 6, 7, 12, 15, 34, 41, 42, 44, 59, 111, 112, 116, 193, 254 Proper place of history-writing, 6, 15, 41, 42, 44, 59, 111, 112, 116, 254 Prosecutors, 27

R Realist, 21, 23, 24, 147–150, 248 Reductive, 86, 155, 157, 249

257 Relationship between justice and historywriting, 62 Representative, 27, 71, 111, 112, 114–116, 132, 181, 225 Responsible historical narratives, 9 Responsible history, 1, 4, 5, 7–11, 13, 14, 20, 25, 34, 119, 177, 184, 191, 193, 194, 204–208, 211, 216, 218, 222, 224, 225, 227–229, 231, 235, 236, 245, 246, 250–253 Restrictive v. expansive, 3, 4, 7, 34, 41, 42, 59, 250, 254 Revisionist, 150, 164, 212 Right to truth, 8, 12, 32, 34, 42, 59, 64–70, 72, 191, 194, 197, 198, 200, 205–207, 250, 254 Robert M. Entman, 16, 78 Rome Statute, 32, 48, 60, 69, 70, 79, 80, 82, 88, 89, 119, 159, 208, 210 Root causes, 90, 92, 94, 95, 110 Rousso, 51, 88, 153, 154, 179, 180 Rwanda, 3, 5, 63, 84, 91–94, 105, 106, 124, 201, 204, 214, 224, 225, 230, 231, 234 S Selectivity, 107, 108, 220–222, 224, 225 Show trial, 47, 54, 164 Sierra Leone, 5, 49, 120–122, 178, 197, 200 Sincerity, 9, 10, 13, 22, 25, 34, 147, 148, 191, 193, 205, 209, 218–220, 224, 227, 229, 231, 245, 250–252 Srebrenica, 5, 83, 104, 112, 113, 117, 151, 178, 195, 201, 216, 217 Strict legality, 1, 3, 4, 6–8, 11, 12, 31, 35, 41, 44, 46, 47, 49, 50, 54, 59, 61, 63, 191–193, 203, 205, 213, 245–247, 250 T Temporal jurisdiction, 109, 224, 225 Theoretical approaches, 43, 72 Tokyo, 30, 182, 224, 226, 227, 229 Torturing, 33, 99, 103, 192, 248 Tromp, 3, 23, 27, 44, 45, 57, 59, 61, 62, 66, 86–88, 108, 113, 116, 118, 151, 159, 160, 164, 166, 168–170, 178, 179, 194, 195, 217, 218, 231, 232, 235, 238 Truth and justice, 4, 7, 12, 32, 34, 59, 61, 62, 164, 191, 194, 196, 197, 205, 246, 250

258 Truth Commissions, 199 Tutsis, 91, 92, 105, 106

V Value of the history-writing function, 9, 193, 205–207, 231, 245, 249, 250, 253 Victim witnesses and participants, 28 Victory rather than truth, 164, 181, 232

W Williams, 10, 14, 21, 22, 25, 118, 145, 147, 148, 208–211, 218–221, 224, 230

Index Wilson, 1, 3, 4, 11, 12, 14, 21, 26–28, 30, 43–51, 53, 58–60, 62, 63, 81, 90, 91, 95, 101, 103, 105, 106, 110, 111, 114, 116, 119, 144, 150, 155–161, 163, 165–168, 171, 173, 177, 181, 182, 192, 194, 195, 197–201, 207, 208, 214, 217, 230, 233 Writing history, 5, 6, 31, 32, 34, 42, 47, 51, 58, 111, 143, 144, 179, 180, 192, 194, 199, 208, 246, 249, 250

Z Zygmunt Bauman, 34, 129