Histories Written by International Criminal Courts and Tribunals

Developing a Responsible History Framework

Author: Dr. Aldo Zammit Borda

Publisher: T.M.C. Asser Press

Book Series : International Criminal Justice Series

Part of: Springer Professional "Business + Economics & Engineering + Technology" , Springer Professional "Business + Economics"

Table of Contents

About this book

This book argues for a more moderate approach to history-writing in international criminal adjudication by articulating the elements of a “responsible history” normative framework. The question of whether international criminal courts and tribunals (ICTs) ought to write historical narratives 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 and the minimal attention paid to historical context in the first judgment of the International Criminal Court.

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. Therefore, while writing history is an inescapable feature of ICTs, there is still today a significant lack of consensus over the proper place of this function. Since Hannah Arendt articulated her doctrine of strict legality, in response to the prosecutor’s expansive didactic approach in Eichmann, 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. The contribution this book seeks to make is precisely to articulate a framework that occupies that ground. The book asks: what are the lenses through which judges of ICTs interpret historical events, what kind of histories do ICTs write? and what kinds of histories should ICTs produce? Its arguments for a more moderate approach to history-writing are based on three distinct, but interrelated grounds: (1) Truth and Justice; (2) Right to Truth; and (3) Legal Epistemology.

Different target audiences may benefit from this book. Court officials and legal practitioners may find the normative framework developed herein useful in addressing the tensions between the competing objectives of ICTs and, in particular, in assessing the value of the history-writing function. Lawyers, historians and other academics may also find the analysis of the strengths, constraints and blind spots of the historical narratives written by ICTs interesting. This issue is particularly timely in view of current debates on the legacies of ICTs.

Aldo Zammit Borda is Director of the Centre for Access to Justice and Inclusion at Anglia Ruskin University, Cambridge, UK.

Frontmatter

Chapter 1. Introduction

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.

Aldo Zammit Borda

Chapter 2. Approaches to the History-Writing Function in International Criminal Adjudication

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.

Aldo Zammit Borda

Chapter 3. The Individual-Centred Lens

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.

Aldo Zammit Borda

Chapter 4. The Crime-Driven Lens

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.

Aldo Zammit Borda

Chapter 5. The Law-Affirming Lens

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.

Aldo Zammit Borda

Chapter 6. The Distinctive Approaches of History and Law

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.

Aldo Zammit Borda

Chapter 7. Aiming Towards Responsible History in International Criminal Adjudication

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.

Aldo Zammit Borda

Chapter 8. Conclusion

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.

Aldo Zammit Borda

Backmatter

Title: Histories Written by International Criminal Courts and Tribunals
Author: Dr. Aldo Zammit Borda
Publisher: T.M.C. Asser Press
Electronic ISBN: 978-94-6265-427-3
Print ISBN: 978-94-6265-426-6
DOI: https://doi.org/10.1007/978-94-6265-427-3