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ISSN 1746-1863
Journal of Philosophy
of
International Law
Volume 6 Issue 2 2015
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JOURNAL OF THE PHILOSOPHY OF INTERNATIONAL LAW
(2015) Volume 6, Issue 2
Journal of Philosophy
Of
International Law
Volume 6 Issue 2 2015
ISSN 1746-1863
Honorary and Founding Editor-in-Chief:
Professor Anthony Carty (University of Aberdeen, UK)
Editor-in-Chief:
Dr Jackson Maogoto (University of Manchester-UK)
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• Dr Andrew Coleman (Monash University-Australia)
• Professor Donald Feaver (RMIT University-Australia)
• Dr Jadranka Petrovic (Monash University-Australia)
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• Mr Solon Solomon (Former Member of the Knesset [Israeli Parliament] Legal Department in
charge of international and constitutional issues)
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JOURNAL OF THE PHILOSOPHY OF INTERNATIONAL LAW
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Advisory Board:
• Professor Roland Adjovi, Arcadia University (Tanzania)
• Professor Sam Blay, University of Technology Sydney (Australia)
• Professor Hilary Charlesworth, Australian National University (Australia)
• Professor Richard Cullen, University of Hong Kong (Hong Kong SAR)
• Mr Donald Ferencz, Director-Planethood Foundation and Convenor-Global Institute for the
Prevention of Aggression/ (USA/UK)
• Professor Steven Freeland, School of Law, University of Western Sydney (Australia)
• Professor Duncan French, Lincoln University (UK)
• Dr Yenkong Hodu, Senior Lecturer, School of Law, University of Manchester (UK)
• Professor (Emeritus) Frits Kalshoven, Professor Emeritus of Public International Law and the
International Humanitarian Law of Armed Conflict (The Netherlands)
• Professor Rick Krever, Monash University (Australia)
• Professor Julian Ku, Hofstra University (USA)
• Professor Timothy McCormack, University of Melbourne (Australia)
• Dr Roger O’Keefe, University of Cambridge (UK)
• Professor Thomas Schultz, Swiss National Science Foundation Fellow, Switzerland; Adjunct
Professor of International Law, University of Arizona (USA)
• Professor Gerry Simpson, University of Melbourne (Australia)
• Professor David Sloss, Santa Clara University (USA)
• Professor Ruti Teitel, New York University (USA)
• Professor Guglielmo Verdirame, King’s College London (UK)
• Professor Yan Xu, The Chinese University of Hong Kong (Hong Kong SAR)
• Professor Nienke Grossman, Professor of Law at the University of Baltimore Law School
(USA)
• Professor Martin Flaherty, School of Law, Fordham University (USA)
The aims of the JPIL are to promote:
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JOURNAL OF THE PHILOSOPHY OF INTERNATIONAL LAW
(2015) Volume 6, Issue 2
Table of Contents
Jackson Nyamuya Maogoto, From the Editorial Desk
Articles
Tiphaine Dickson, ‘THE WORLD’S COURT OF JUSTICE’:A HISTORIOGRAPHY OF WAR CRIMES
PROSECUTIONS 1
Jackson Nyamuya Maogoto, HAZARDS OF RHETORIC IN WAR—BLOUSES AND INSIGNIA: PRIVILEGES
AND NON-PRIVILEGES OF ‘ENEMY’ POPULATIONS? POLICIES OF IRRESPONSIBILITY 28
Jackson Nyamuya Maogoto, STATAL DISCIPLINE AND INDISCIPLINE: SOVEREIGNTY AS FEALTY OF
THE INDEPENDENT STATE TO INTERNATIONAL HUMANITARIAN NORMATIVITY 35
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‘THE WORLD’S COURT OF JUSTICE’:A HISTORIOGRAPHY OF WAR
CRIMES PROSECUTIONS
Tiphaine Dickson*
Abstract
The International Criminal Tribunal for the former Yugoslavia, and the
International Criminal Tribunal for Rwanda, established by the Security Council
of the United Nations in 1993 and 1994, respectively, faced the already daunting
task of carrying out complex criminal prosecutions, with little jurisprudential
guidance, in often extremely unfavorable conditions. Despite the innumerable
practical, legal, financial and political challenges these institutions faced, they
chose to take on an additional and unnecessary responsibility for which they
were woefully ill-equipped: writing history. This article explores the
incompatibility between the craft of history and institutions of international
criminal law, and argues that court written history degrades both. Moreover,
contrary to the tribunals’ claims that their writing history in the context of the
criminal prosecution of individuals serves to combat denial; they contribute to
precisely such historical distortions, in particular in the context of World War II
atrocities.
‘Presque toute l’histoire n’estdoncqu’une longue suite
d’atrocitésinutiles’[Voltaire, Essai sur l’histoire générale, 1756]1
‘The History of the world is the world’s court of justice.’ [Karl Löwith, Meaning
in History, 1949]2
‘History is a pack of tricks we play on the dead.’[Voltaire]
3
INTRODUCTION
To say that the influence of history on war crimes trials and international
criminal law is significant would be an understatement. The discipline of history
participates in the establishment of a narrative that international courts (and their
political proponents) consider as being true; this truth in turn becomes, in the
highly charged context of, for example, a genocide trial, the historical account that
must be proven as a matter of law. The idea of (writing) history becomes one of the
objectives of the court, and some judges, not content to note the historical nature of
* LLB (University of Quebec at Montréal); PhD Candidate in Public Affairs and Policy (Mark O.
Hatfield School of Government at Portland State University). The author is an instructor in the
Political Science Division of Portland State University. She previously served as lead trial counsel in
one of the first cases before the International Criminal Tribunal for Rwanda.
1Voltaire, Essai sur l’histoire générale et sur l’esprit et les moeurs des nations, (Cramer, 1757), 24.
2Cited in Carlo Ginzburg, ‘Checking the Evidence: The Judge and the Historian,’ in James Chandler,
Arnold I. Davidson, and Harry Harootian (eds), Questions of Evidence: Proof Practice and
Persuation Across the Disciplines (University of Chicago Press, 1994), 291.
3Cited in Judith Shklar, ‘Learning Without Knowing,’ in Stanley Hoffmann (ed) Political Thought
and Political Thinkers (University of Chicago Press, 1998), 117.
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their functions adopt, in addition, the mantle of historians.4 But contrary to those
they emulate, they seek an account not subject to appeal. Historical events and
historic legal precedents from the mid-twentieth century lend solemnity and
purpose by analogy. After all, the judges who preceded them at Nuremberg, at least
in France, have their words enshrined in legislation that prohibits contesting
(‘contester’) the existence of crimes against humanity as defined by the Nuremberg
Charter committed by organizations deemed criminal or by individuals found
guilty by French or international tribunals.5 Members of the French Commission
on Constitutional Law, the commission being a legislative committee, have argued
that this provision of criminal law can be extended to questioning (or ‘contesting’)
the existence of crimes against humanity as held by judges of the ad hoc
International Criminal Tribunal for the Former Yugoslavia and the International
Criminal Tribunal for Rwanda.6 It should not come as a surprise that a number of
reputable historians7 have publicly objected to this law, and asked for its repeal,
among them the tireless opponent of Holocaust denial and son of two parents
killed in Auschwitz, Pierre Vidal-Naquet. ‘History is not a legal object,’ Vidal-
Naquetet al wrote in an op-ed published in Libération. ‘In a free state, it is not the
province of Parliament or the courts to define historical truth. State policy, even
when animated with the best intentions, is not the policy of history.’8
Law and history have long been interrelated. Historians have employed law’s
artifacts—judgments, transcripts, letters exchanged in the margins of trials,
And so a historian protests the enactment of a criminal law that protects the
history written by judges in international criminal cases—at times with the help of
expert historians—from the scrutiny of historians. This essay examines how we got
there.
LAW IN HISTORY
9
4The International Criminal Tribunal for the Former Yugoslavia’swebsite, in its‘About Us’ section,
makesthis plain: ‘The Tribunal has contributed to an indisputable historical record, combating
denial and helping communities come to terms with their recent history.’
<
accounts of trials—to tell stories about politics, society, institutions, and
philosophy. From the numerous conflicting accounts of the trial of Socrates to
www.icty.org/sections/AbouttheICTY> (accessed 7 April 2015>.
5 loi no 90-615 du 13 juillet 1990 tendant à réprimer tout acteraciste, antisémiteouxénophobe
6Assemblée Nationale, No. 3074, ‘Rapport fait au nom de la Commission des loisconstitutionnelles,
de la législation et de l'administration générale de la république sur la proposition de loi (n° 3030)
de m. Didier Migaud et plusieurs de sescollègues, complétant la Loi n° 2001-70 du29 janvier 2001
relative à la reconnaissance du génocidearméniende 1915,Par M. Christophe Masse,Député,’ May
15th, 2006, 15.
7See René Rémond, ‘L’histoire et la loi’ (2006) 6 Études 763.
8 Author’s translation. ‘L’histoire n’est pas un objet juridique. DansunÉtatlibre, iln’appartientni au
Parlementni à l’autoritéjudiciaire de définir la véritéhistorique. La politique de l’État, mêmeanimée
des meilleures intentions, n’est pas la politique de l’histoire.’ Pierre Vidal-Naquetet al ‘Liberté pour
l’histoire’ (Libération 13 December 2005) <http://www.liberation.fr/societe/2005/12/13/liberte-
pour-l-histoire_541669> (accessed 26 October 2015).
9Michael Grossberg, ‘How to Tell Law Stories’ (1998) 23(2) Law and Social Inquiry 459.
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historical scholarship on the witchcraft trials of the Inquisition, law’s manifestation
through sources offers useful evidence for the work of the historian. Legal
proceedings leave precious archival records for historians to mine.10 But this
observation is trivial if the purpose for which historians employ archival evidence
generated by law is ignored. The Annales School11—named after the 1929 French
journal, Annalesd’histoireéconomiqueetsociale—introduced a new approach to
social history, borrowing from Durkheim’s contribution to the sociological theory
of collective unconscious, as well as from the structuralist theories developed in
anthropology.12It is with these methods and approaches that historians of this
school studied social units such as women, the poor, marginal elements of society
as well as the ideas creating the boundaries and values of these elements in their
historical context.13
Inquisition records provided evidentiary foundation for the exploration of
themes well beyond the narrow scope of the trials themselves; Emmanuel Le Roy
Ladurie reconstituted the complex social relations of a 14th century French town on
the basis of Jacques Fournier’s Inquisition records of the investigation of 94 people
accused of heresy in Montaillou, setting the records against the broader economic,
social and political context of the time.
14 Carlo Ginzburg’sThe Cheese and the
Worms,15as well as The Night Battles, examine society, beliefs, and cosmology by
exploring the gaps created by misunderstandings and distortions contained in
Italian Inquisition records.16 This work disproved the pessimism of many
historians regarding the possibility of reconstructing the lives of average
individuals, and even more so, the underprivileged of the distant past, as evidence
did not exist in a sufficient amount to document their daily habits and social
relations.17 The law proved critical in permitting this approach to emerge, as
Ginzburg puts it, since ‘the richest (not to say the only available) evidence for these
entries has been provided, either directly or indirectly, by court records from
distance places and times: fourteenth- or sixteenth-century France, seventeenth-
century Italy or China.’18
10 Martha Howell and Walter Prevenier, From Reliable Sources: an Introduction to Historical
Methods, (Cornell University Press, 2001) 34.
11 ibid 110; Ginzburg (n 2) 293.
12 Collective consciousness is theorized by Durkheim as a shared set of beliefs and understanding of
social norms among given social groups. These group beliefs can usefully be studied over time by
historians. Structuralist anthropology provided a theory that could delve into the way human society
assigned identities, functions, and roles. Notions such as gender, space, time, life and death are
elements of social structure, both founding it as well as being produced by it. Howell and Prevenier
(n 10) 110-111.
13 ibid.
14 ibid 111.
15 Carlo Ginzburg, The Cheese and the Worms: The Cosmos of a Sixteenth-Century Miller (Johns
Hopkins University Press 1992).
16 Arnold I. Davidson, ‘Ginzburg and the Renewal of Historiography’ in Chandler Davidson and
Harootian (n 2) 320.
17 Ginzburg (n 2) 300.
18 ibid and cf Ginzburg, ‘The Inquisitor as Anthropologist,’ in Clues, Myths and the Historical
Method (John Hopkins University Press 1989) 158-159.
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But more crucially than the issue of availability, as important as it isthe fact
is that history and law share some core methodological affinities. History,
originally conceived as a practice on the intersection of medicine and rhetoric,19
reflects not only tools of legal reasoning and argument, but also the evaluation and
careful weighing of evidence20. History is, however, the self-conscious
reconstitution of that evidence into a coherent, honest, yet nonetheless subjective
narrative.21 Peter Brooks writes, regarding histories of law, that: ‘How stories are
told, listened to, received, interpreted—how they are made operative, enacted—
these are issues by no means marginal to the law nor exclusive to theory; rather
they are part of law’s daily living reality.’22 What this means with respect to history
is that good history is a story well told, conveying an illusion of reality23 but it is
not—and surely cannot be tolerated as—a merely fictional exercise. Evidence
matters. But what can be reconstructed is a story—scrupulously respecting the
integrity and authenticity of evidence—that borrows from the literary genre,
allowing the historian to consider matters that had been considered irrelevant
(such as peasants and ‘witches’) or for which the evidence was scarce.24
Thus law and history overlap, but they are not interchangeable. Earlier
historiography emphasized persuasion, at the expense of the production of
evidence, the latter being reserved to antiquarians.
25 In the eighteenth century, the
practice of the historian considering evidence and ‘testimony’ emerged; and so, too,
did the practice of the historian assuming the role of a judge.26 Ginzburg shows
how profoundly the influence of the judicial temper and function affected
historiography at this time: first, Hegel’s grand pronouncements, in his philosophy
of history, of the ‘Weltgericht,’‘verdict of the world’—which also means ‘Last
Judgment,‘— against which Nietzsche railed furiously in his Uses and Abuses of
History27—then Lord Acton’s characterization of history as a legitimate tribunal
dispensing universal truth.28 But this approach oriented historiography to the
examination of great events, leaving aside the type of social relations later captured
by the Annales School—paradoxically, perhaps, thanks to the assistance of sources
generated by the legal process. It is thus that social historians chose to understand
rather than to judge.29
The judicial process and the law, writes Ginzburg, travel along the same road
in the initial stages of their respective purposes, both, in particular, paying careful
19 Ginzburg (n 2) 290-291.
20Ibid 290.
21Howell and Prevenier (n 10) 20.
22Peter Brooks, ‘The Law as Narrative and Rhetoric,’ in Peter Brooks and Paul Gewirtz (eds) Law
Stories, Narrative and Rhetoric in the Law (Yale University Press, 1996).
23Carlo Ginzburg, The Judge and the Historian: Marginal Notes on a Late-Twentieth-Century
Miscarriage of Justice (Verso, 2002) 12.
24Ginzburg (n 2) 297.
25 Ginzburg (n 23) 12-13.
26 Ibid.
27Shklar (n 3) 115.
28 Ginzburg (n 2) 292.
29 ibid 293.
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attention to facts and evidence; but they must necessarily diverge at one point.
Both justice and history suffer from conflation of purposes, and indeed, in
Ginzburg’s apt formulation, ‘whoever attempts to reduce the historian to a judge
simplifies and impoverishes historiographical consciousness; but whoever attempts
to reduce the judge to historian irredeemably pollutes the exercise of justice.30
‘The remote past,’ wrote Judith Shklar, regarding the charge of waging
aggressive war in Nuremberg, ‘cannot be legally tried, and the remote future cannot
be controlled.’
‘
HISTORY IN LAW
31 In Legalism,Shklar sharply distinguished the legal and historical
approaches to events on the basis of different methodological commitments to
causality.32 Where historians and jurists could agree, she argued, was on simple
matters of causality such as John Wilkes Booth being the cause of Abraham
Lincoln’s death. But historians, though their discipline provides them with
professionally understood and accepted cut-off points in time, nonetheless explore
vast swaths of social and economic interrelations over time and space. This, she
argues, makes history uniquely ill-suited to examining charges, brought in the
judicial sphere, such as that of waging aggressive war, since the prosecution of such
an offence (and inevitably its defense) would introduce a discussion of the causes of
the war. This exploration can be taken up by the historian, but it embraces far more
than what a trial requires and indeed allows.33
In the heady post-cold war yearsShklar’s work—Legalism and ‘The
Liberalism of Fear’, an essay—were in fact posthumously employed to variously
promote the idea that war crimes trials had always been established by liberal
democracies,
Much of the contemporary
scholarship on the role of history in the legal process, however, has not been as
skeptical as Shklar’s.
34 or to restore, urgently, faith in liberalism—paradoxically lost after it
had ostensibly triumphed against the ideas of Marx—by highlighting terror and
fear abroad, thus creating vocations of heroism for American rebels without a
cause.35 Standard accounts now repeat that the nineteen-nineties were years where
atrocities were unleashed while the West stood by36
30 Ginzburg (n 23) 118.
31 Judith Shklar, Legalism (Harvard University Press, 1964)171.
32Causality, here, refers to the historian’sinterest in change, and the examination of phenomena,
events, or antecedentsthatmay have played a role in the change. Complexevents have
complexantecedents ; thisrequireshistorians to takeaccount of thatcomplexitywhenexploring a
causal explantation. Howell and Prevenier (n 10) 128.
33Shklar (n 31) 195-197.
34See Gary J. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton
University Press 2000) 20.
35Corey Robin, Fear: The History of a Political Idea (OUP 2004) 145-147.
36Samantha Power, A Problem From Hell: America and the Age of Genocide (Perrenial 2003).
; in this narrative, those who
did act (usually with the pen, or more frequently the laptop of the foreign
correspondent) were fighting the tide of stubborn inaction. The claim seems
curious, as not one, but two, ad hoc international criminal tribunals were
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established by the Security Council of the United Nations before the end of 1994.37
This is worthy of mention as the creation of these bodies is a legitimate object of
study for history; but the type of history that has been produced to account for it,
bears striking resemblance to the biographies of great men—one can think here of
Samantha Power’s lionization of Raphaël Lemkin and William Proxmire38—or to
the early historiography advocating Christianity.39 The contemporary cause is the
fight against atrocities and its urgent and graphic nature justify the adoption of a
historiographical genre better suited to advocacy than to understanding.40
It may be that the role of history in war crimes prosecutions is situated
somewhere between judging and understanding. Richard Wilson undertakes the
rebuttal of a trio of objections against the use of history in war crimes prosecutions:
that it is harmful to due process, that it is inconsistent with the legal approach, and
that it generates ‘boring’ history.
41
The Tribunal has established beyond a reasonable doubt crucial facts related
to crimes committed in the former Yugoslavia. In doing so, the Tribunal’s judges
have carefully reviewed testimonies of eyewitnesses, survivors and perpetrators,
forensic data and often previously unseen documentary and video evidence. The
Tribunal’s judgements have contributed to creating a historical record, combatting
denial and preventing attempts at revisionism and provided the basis for future
transitional justice initiatives in the region. As the work of the ICTY progresses,
important elements of a historical record of the conflicts in the former Yugoslavia
in the 1990s have emerged. The ICTY has established crucial facts about crimes,
once subject to dispute, beyond a reasonable doubt.
Wilson begins from the questionable premise
that the ‘standard’ view is that history ought not play a role in the law governing
atrocities, which can hardly be said to reflect the conventional scholarly, social, or
even institutional wisdom on this point. Starting with the public position of the
International Criminal Tribunal for the Former Yugoslavia, as set out by their
outreach program (a responsibility of the Registrar, one of the three organs of the
Tribunal), a radical embrace of history, as well as of a sense of historical mission
and accomplishment is immediately apparent:
42
The pronouncement, by a Security Council body tasked to hold trials against
individuals, that certain historical matters are now no longer subject to dispute is
perplexing. Wilson, however, expresses the view that international tribunals, and in
particular the ICTY, have overcome the main obstacles posed by previous courts, by
virtue of their international nature. Part of the problem is that Wilson considers
only objections to French proceedings against Paul Touvier, and Hannah Arendt’s
critique of the Eichmann trial; but obviously international courts are not a single
37Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808
(1993), UN Doc S/25704, 3 May 1993; SC Res. 955, 8 November, 1994.
38Samantha Power, A Problem from Hell: America and the Age of Genocide.
39Howell and Prevenier (n 10) 5.
40 Ibid 6.
41Richard Wilson, ‘Judging History: The Historical Record of the International Criminal Tribunal
for the Former Yugoslavia,’ (2005) 27(3) Human Rights Quarterly 908, 908.
42<www.icty.org/sid/324#establishing> (accessed 13 April 2015).
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nation-state exploiting a criminal trial for the purposes of restoring moral
credibility as in the case of France or building a national identity as in the case of
Israel43. It thus says very little to point to international courts as not tributary of
the idiosyncratic goals of particular states if that is to mean that such international
status can guarantee fair trial and due process rights, or indeed that history has not
been abused or potentially distorted. It hardly makes a difference from the due
process standpoint that the Security Council is employing an international tribunal
to write history instead of a nation state: the problems inherent in court-written
history remain just the same.‘A trial at the ICTY’ writes Patricia Wald, former judge
at the ICTY and quoted by Wilson, ‘is usually more akin to documenting an episode
or even an era of national or ethnic conflict rather than proving a single discrete
incident.’44
In the end, Wilson does not meaningfully address the due process objections
that emerge when war crimes prosecutions employ courts to write history; instead,
he devotes considerable space to praise the quality of the history written by the
ICTY, noting that the court’s first judgment, in the case of Prosecutor v. Tadic,
Is Wald not describing a practice beyond that of the prosecution of
individuals, more akin to Shklar’s concerns regarding the historians’ broader views
of causality, and can it be blithely assumed that this will have no impact on the due
process rights of an individual charged with specific criminal offenses?
45
restates the history of Yugoslavia (and its constituent parts, before the creation of
the Socialist Federal Republic of Yugoslavia) from the fourth century to the armed
conflicts justifying the establishment of the tribunal in 1993, as it was presented by
the Prosecution’s expert, military historian James Gow.46 Wilson then summarizes
the sixty-nine pages that the Tadic judgment devotes to history even before
addressing the indictment, and approvingly cites another prosecution expert
witness, historian Robert Donia, who in his own published account of his role as a
prosecution expert in another case,47
43Wilson refers to twowell-known objections to court-writtenhistory : the first is Hannah
Arendt’sassessmentthat the Eichmann trial had been instrumentalised by the theIsraeligovernment
to write a broad, sweepinghistory of antisemitisminstead of concentrating on the criminalmatter at
hand and guaranteeingdueprocess for the accused. Hannah Arendt, Eichmann in Jerusalem: A
Report on the Banality of Evil (Viking Press 1964) 253. TzvetanTodorov, in turn, deplored that the
French trials of Paul Touvier and Klaus Barbie engaged in forays into World War II history and
questions of French national identity, rather than applying the law in an equitable way. See
TzvetanTodorov ‘The Touvier Affair’ in Memory, the Holocaust and French Justice: the Bousquet
and Touvier Affairs Richard Joseph Golsan (ed) (University Press of New England 1996) 120.
44Patricia M. Wald, ‘To Establish Incredible Events by Credible Evidence: The Use of Affidavit
Testimony in Yugoslav War Crimes Tribunal Proceedings’ (2001) 42 Harvard International Law
Journal 535, 536–37 (2001), cited in Wilson (n 41) 923.
45Prosecutor v. Tadic; (Case No. IT-94-1-T), Judgment of Trial Chamber, 7 May 1997
46Wilson (n 41) 927: ‘The history up to World War I is taken entirely from Gow’s testimony and
significant elements of subsequent history as well, including the role of President Tito in
suppressing nationalist tensions, the significance of the 1974 Yugoslav Constitution, and finally the
organization and ethnic composition of the Yugoslav People’s Army in the 1980s and early 1990s’,
citing the Tadic Judgment at ¶¶ 56–79, 108–14.
wrote that ‘[t]hese chambers have produced
47Robert Donia, ‘Encountering the Past: History at the Yugoslav War Crimes Tribunal’ (2004) 11(2-
3) The Journal of International Institute<http://quod.lib.umich.edu/j/jii/4750978.0011.201/--
encountering-the-past-history-at-the-yugoslav-war-crimes?rgn=main;view=fulltext>
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histories that are not only credible and readable, but indispensable to understand
the origins and course of the 1990s conflicts in the former Yugoslavia.’
The Tribunal judges, though writing a history spanning centuries on the
basis of a single testimony (with the exception of a relatively narrow point about
worker self-management offered by anthropologist Robert Hayden, called by the
defense), describe as Serb propaganda the fact that periodicals from Belgrade
‘featured stories on the remote history of Serbs intended to inspire nationalistic
feelings.’48 The ‘remote history’ in question refers to the Second World War. That
period, as the Tribunal mentions elsewhere in the decision, with the type of
understatement that led to the British libel trial in Irving v. Penguin Books49, was a
‘tragic time, marked by harsh repression, great hardship and the brutal treatment
of minorities. It was a time of prolonged armed conflict, in part the product of civil
war, in part a struggle against foreign invasion and subsequent occupation.’50 One
hoping to read even a superficial account of the fascist political structure of NDH
Croatia, or the widespread atrocities committed by the Ustasa—those committed
against the Jews comprehensively detailed in Volume II of Raul
Hilberg’sTheDestruction of the European Jews51—will be disappointed. Instead,
the ‘credible history’ presented by the ICTY judges states that ‘Three distinct
Yugoslav forces each fought one another: the Ustasa forces of the strongly
nationalist Croatian State, supported by the Axis powers, the Chetniks, who were
Serb nationalist and monarchist forces, and the Partisans, a largely communist and
Serb group.’52
Let us attempt to break down that sentence. First, the ICTY’s history
qualifies the Ustasa as ‘forces of the strongly nationalist Croatian state,’ and while
this is true in the same way it is true that Nazis were forces of the strongly
nationalist German state, the claim is significant for what it fails to state. In
Hilberg’s words, ‘the underlying philosophy of the [Croatian] state was Fascist-
Catholic.’
53 The United States Holocaust Memorial Museum is somewhat less
reserved than Hilberg in its characterization of the Ustase as ‘fanatically
nationalist, fascist, separatist, and terrorist.’54 The ‘tragic time, marked by harsh
repression, great hardship and the brutal treatment of minorities,’ (as the ICTY
describes it) is less euphemistically described by Hilberg’s account of half the
Jewish population of Croatia’s internment in one or the other of NDH Croatia’s 7
labor or 2 extermination camps.55
48Prosecutor v. Tadic (n 45) ¶ 91.
49Irving v. Penguin Books Ltd., No. 1996-I-1113, 2000 WL 362478, ¶ 1.3 (Q.B. Apr. 11), appeal
denied (18 December 2000)
50Prosecutor v. Tadic (n 45) ¶ 61.
51Raul Hilberg, The Destruction of The European Jews (3rd ed. vol. II Yale UP 2003) 756-765.
52 Prosecutor v. Tadic (n 45) ¶ 61.
53 Raul Hilberg, The Destruction of the European Jews, vol. 2, 756.
Of the two extermination camps, Jasenovac is
the most well-known, and it is primarily there that Jews (along with Serbs, who
composed the majority of the victims, as well as Roma and political opponents)
54United States Holocaust Museum, ‘Encyclopedia of the Holocaust, Jasenovac’
<www.ushmm.org/wlc/en/article.php?ModuleId=10005449>.
55Hilberg (n 51) 759-760.
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died of typhus, torture, drowning, knifings, and blows to the head with hammers.56
Walter Laqueur and Judith TydorBaumeldescribe Ustasa killings as ‘madness’,57 a
sentiment echoed by General Edmund Glaise von Horstenau, the Wehrmacht’s
Plenipotentiary General in NDH, one of the many Italian and German officials who
complained about ‘the lawless and chaotic’ methods of the Ustase.58
The Tadic judgment mentions Jasenovac—memorialized by the USHMM—
only three times, and only twice in the portion of the judgment devoted to history.
First, it emerges in the context of Serb propaganda, and ‘stirring up Serb
nationalistic feelings.’ The ICTY judges write: ‘Among much other suffering, many
Serbs, including the accused’s mother, had been forcibly deported by the Ustasa to
a concentration camp at Jasenovac where many died and all were ill-treated.’
59 The
second mention of Jasenovac occurs in a paragraph directly addressing a
‘campaign of propaganda’ orchestrated by the Serbs, and it is referred to in a quote,
attributed only to ‘Serb-dominated media,’60
The historiography of Yugoslavia continues to be contentious, and nothing
arguably illustrates this better than Josip Glaurdic’s scathing review
as a ‘symbol.’ The final mention of
Jasenovac in the ‘reliable’ history written by the ICTY concerns the accused.
‘During the Second World War,’ wrote the judges, ‘his mother had been confined to
the Jasenovac prison camp which was operated by Croats.’The Tadic judgment
nearly instructs the reader in greater detail about the Hapsburg occupation than it
does about the death camp at Jasenovac. In fact, it is not possible to know what it
was, other than a place of ill treatment—a prison or concentration camp—where
many died. And thus, judicial history determines what counts as history, but also
what history is entitled to leave out of its account.
61 of the
recently published result of Charles Ingrao’s‘Scholar’s Initiative,’ an eight-year
project involving three hundred scholars from thirty-one countries to attempt to
resolve the most enduring controversies in the historical scholarship on
Yugoslavia.62
56 Ibid 760.
57Walter Laqueur and Judith TydorBaumel, The Holocaust Encyclopedia (Yale University Press
2001) 709.
58 Richard Breitman, US Intelligence and the Nazis (CUP 2005) 204.
59Tadic (n 45) ¶83.
60 Ibid ¶88.
61Josip Glaurdic, ‘Review Essay: Confronting the Yugoslav Controversies: A Scholar's Initiative’
(2010) 24 East European Politics and Societies 294.
62Charles Ingrao and Thomas A. Emmert (eds) Confronting the Yugoslav Controversies: A
Scholars’ Initiative (Purdue University Press 2012).
Glaurdic is unsparing in his criticisms of the volume, and some
objections certainly seem legitimate, in particular the instances of plagiarism, if
confirmed. However, the importance of Ingrao’s initiative in the context of the
historiography of war crimes tribunals, and Glaurdic’s exasperation over inaccurate
points of varying importance, is that attempts to write the one last definitive
history of anything—let alone of recent and highly-charged conflictual events—is as
incautious as it is unsuccessful. Richard Evans details a remarkably long list of
complaints made in the press after the Irving trial at which he appeared as an
expert on behalf of Deborah Lipstadt and Penguin Books, many expressing concern
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with a judicially enforced single narrative about the Holocaust which would result
in an atrophy of important questions about the events.63 Evans takes pains to
distinguish these objections—that he would agree with had the trial actually been
about imposing a single version of history—with what the Irving trial did address,
that is, the standards of historical scholarship.The standards, for Evans, are what
distinguish ideologically-driven twisting of sources (and omissions) from legitimate
debate about the Holocaust.64
In the Irving trial, a libel suit was initiated by David Irving in Great Britain,
where libel law places the burden of proof on the defendant. The issuein question
was whether Deborah Lipstadt was entitled to characterize Irving as a Holocaust
denier. Irving’s position was that he was a serious scholar and historian and thus,
that his reputation had been harmed by Lipstadt, and her publisher, Penguin
Books. The defense proceeded to inundate Judge Charles Gray’s court with
expertise detailing the ways in which, over the course of his career, Irving had
oriented his work towards a denial of the Holocaust, and had not treated his
sources and evidence in an objective, fair, or scholarly manner. To arrive at a
verdict, Judge Gray formulated the standard of the ‘conscientious historian.’
65 The
misrepresentations and distortions of historical evidence, found in nineteen
separate instances of Irving’s work were found to have fallen short of that standard,
according to Judge Gray’s 350-page judgment.66
Other difficulties are related to the historian’s role in war crimes
prosecutions, in particular when historians are personally invested in the events
about which they later testify as experts. The case of the International Criminal
Tribunal for Rwanda’s first judgment, in Prosecutor v. Akayesu, is instructive in
this respect. Historian Alison Des Forges testified as an expert, both on the history
of Rwanda—which Trial Chamber I saw fit to recite at length, from pre-colonial
times to 1994
One is entitled to wonder whether the ICTY’s historical treatment of the
former Yugoslavia would meet the standard of the ‘conscientious historian.’ What
is certain is that the kind of history that it did generate is incomplete, and would
cause some perplexity from the vantage point of scholarship undertaken on the
Holocaust, in particular its treatment of NDH Croatia and the atrocities committed
during the Nazi satellite’s existence. Thus, its own claims to having established a
historical record, ‘beyond reasonable doubt’ to silence deniers is of historical and
legal concern. In fact, silencing deniers, when seen as a judicial function,
apparently involves silencing episodes of history—in the case the Holocaust—which
paradoxically serves as the very model of denial (a moral and in some cases
criminal offense) the ICTY has appropriated.
67
63Richard Evans, Lying About Hitler (Basic Books 2002) 251-259.
64 Ibid 256-266.
65Evans (n 63) 227.
66Irving v. Penguin Books Ltd. (n 49).
67Prosecutor v. Akayesu, Judgment, ICTR 96-4-T, ¶ 78.
—as well as to interpret broader events, well beyond the scope of
Akayesu’s indictment, as constituting preparation and execution of genocide. These
views had been endorsed by the Human Rights Watch and FIDH sponsored
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‘International Commission of Inquiry’ (ICI), in a 1993 report Des Forges co-
authored.
Des Forges was the only historian cited by the ICTR in its thirty-three
paragraph history of Rwanda, as well as its eighteen paragraph finding that
genocide had occurred as a historical fact in Rwanda in 1994,. Des Forges’
testimony provided the court with its basis for findings on issues as diverse as
political and territorial organization, Rwandan law, the military, weapons
shipments, the economy, religion, as well as a unique—and arguably influential—
manner of disqualifying the previous government’s claims of attacks or infiltration
by the other party signatory to the Arusha Peace Accords of 1993, the Rwandan
Patriotic Front, who had invaded Rwanda from Uganda in 1990.68 The Rwandan
President’s entourage, the Trial Chamber noted,on the basis of Des Forges’ sole
historical testimony, had disseminated propaganda and fabrication, characterized,
according to the judgment, ‘as ‘mirror politics’, whereby a person accuses others of
what he or she does or wants to do.’69
Des Forges’ involvement in the International Commission of Inquiry led to
her testimony in other trials regarding Rwandans suspected of involvement in the
1994 events, but the reception she received in some domestic courts was not as
uncritical as it appears to have been before the ICTR. The Canadian Federal Court
of Appeals, for instance, was sharp in its assessment of her credibility as well as her
objectivity as a historian. Testifying against Leon Mugesera, facing immigration
charges in Canada, Des Forges (much as she did before the ICTR in Arusha)
defended the report of the ICI, as well as her activism. The Canadian court
highlighted the following statement. She admitted, at the end of the cross-
examination: ‘If you wish to argue that we chose our evidence to support our
conclusions, you are entirely correct. We chose our evidence to support our
conclusions. There were many facts concerning the historical period which did not
appear to us relevant. We did not include them. We chose our evidence after we
had weighed all of the facts and reached our conclusions. We made an orderly
presentation as you do as a lawyer to support your contention’ (a.b. vol. 10, p. 3075
– emphasis added by the Federal Court of Appeals).
This constitutes a powerful explanatory
claim; one that in the ICTR’s first ever judgment certainly set a tone and even
suggested how evidence should be weighed and credibility assessed. It is so
powerful a disqualifying device that its uncritical inclusion in a court-written
history poses a double problem of evidence: that is, the nature of the evidence that
supports the claim, and the fact that the device may later be used to assess the
credibility of claims regarding historical events.
70
The prosecutorial flavor of her expert testimony—which went unnoticed in
68Barrie Collins, Rwanda 1994: The Myth of the Akazu Genocide and Its Consequences (Palgrave
Macmillan, 2014) 56.
69Akayesu (n 67) ¶ 99.
70Mugesera v. Canada (Minister of Citizenship and Immigration), [2004] 1 F.C.R. 3, 232 D.L.R.
(4th) 75, 309 N.R. 14, 31 Imm. L.R. (3d) 159, par 99. Reversed by the Canadian Supreme Court:
Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40.
Des Forges’ testimony was not considered by the Supreme Court.
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the context of a UN trial, where in fact she was afforded tremendous deference and
her testimony great weight—was remarked upon in Canada in an unambiguously
critical manner:
Even making the debatable assumption that a member of a commission of inquiry, who is
actually its co-chairperson and co-author of the report, can be described as an objective
witness concerning the conclusions of that report, Ms. Des Forges testified much more as
an activist than as a historian. Her attitude throughout her testimony disclosed a clear bias
against Mr. Mugesera and an implacable determination to defend the conclusions arrived
at by the ICI and to have Mr. Mugesera’s head.71
The difference in treatment of Des Forges as a witness by the UN and
Canadian bodies emphasizes the striking difference in the acceptable scope of a
historian’s testimony in domestic as opposed to war crimes courts. This
phenomenon was even remarked upon by Robert Donia, who testified for the
Prosecution in the Blaskic case in The Hague, as‘more an extended lecture on
regional history than court testimony as it might take place in an American court,
where a judge would neither need nor welcome such an extensive background
portrayal’.
72. AleksandarJokic has referred to this moral and judicial differential as
‘the normative divide,’ a concept that captures the fact that acts that would be
blameworthy in Western democracies or Western courts, appear acceptable if
performed abroad, in relation to an ostensible challenge against, or even a
narrative about genocide.73 Beyond the moral question, however, lies the historical
one, and it is intertwined with the notion of justice. As Judith Shklar has argued
about the legalist disposition of lawyers and legal theorists—that is, that they insist
rather dogmatically on a separation between politics and law, when in fact the
notion that they can be so neatly distinguished is a conservative self-delusion74
But while it is obviously misguided to insist that history and law never do
and never ought to intersect, it is also arguably even more dangerous to suggest
that judges can capably do the work of historians and that historians can safely
perform the functions of the judge. Again, Carlo Ginzburg’s point appears apposite
here: ‘if one attempts to reduce the historian to a judge, one simplifies and
impoverishes historiographical knowledge; but if one attempts to reduce the judge
to historian, one contaminates—and irreparably so—the administration of
justice.’
—so,
too, we are challenged to look at the connection between history and the law.
75Shklar’s view that legalism is an ideology oughtnot to stand for the
proposition that either history or law are well served by their respective
instrumentalisation. A court writing history—a single, definitive history, the denial
of which is in some instances subject to criminal sanction—is also performing an
ideological role.76
71 Ibid par. 102.
72Cited in Wilson (n 41) 928.
73AleksandarJokic, ‘Genocidalism’ (2004) 8(3) The Journal of Ethics, 8 (3) 251, 293.
74Shklar (n 31)1-11.
75 Ginzburg (n 2) 118.
76EmanuelaFronza, ‘The Punishment of Negationism: The Difficult Dialogue between Law and
Memory’ (2006) 30 Vermont Law Review 609, 621-622.
While TzvetanTodorov formulates the classic legalist objection to
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the trial of Klaus Barbie., writing that ‘what is especially worth criticizing . . . is not
that they wrote bad history, it’s that they wrote history at all, instead of being
content to apply the law equitably and universally,’77
EmanuelaFronza’s critique of the criminalization of negationism emphasizes
the ideological nature of the judicial protection of a single version of history.
Rational and democratic systems of government treat people like citizens, but when
they criminalize who people are or what they want, they treat them as
enemies.
the problem is compounded
when, even assuming that judges are qualified to reconstruct events for anything
wider in scope than what is required for the ends of a discrete criminal prosecution,
according to its rules of evidence and procedure, they determine a preferred
historical interpretation of that reconstitution.
78Fronza isolates the historiographical problem of the court-sanctioned
version of history: ‘The tribunal will inevitably find itself, in this case, sanctioning
one interpretation as official and discrediting the idea that more than one historical
school exists. Yet, in truth, a multitude of historical schools exists.79
For example, David Chuter argues, following the analogy of the
intentionalist-functionalist debate in Holocaust scholarship,
‘
Criminal law seeks a single, definitive reconstruction of an event, but only as
a means to determine whether the state has established the culpability of an
individual according to rules of evidence and a standard and burden of proof. The
historical approach selected by a tribunal will necessarily be subordinated to the
needs of the judicial function.
80 that it would have
been impossible, had Hitler been tried, to settle on one approach to the detriment
of another, as most proponents of a historical school will generally concede that
there are valid objections to it.81 It may be, however, that in some cases a side in a
historical debate is chosen. This will occur when or if one approach presents
greater consistency with judicial, usually prosecutorial, objectives. Thus, in the case
of Nuremberg, neither historiographical approach lent itself well to a smooth
prosecution. It is noteworthy that then, functionalism had barely emerged, as
Hilberg’sDestruction of the European Jews was yet unpublished. 82For the
Nuremberg court,conspiracy, as participation in a common plan to commit crimes
against the peace, was the legal device most suitable to apply.83
International war crimes tribunals may have difficulty performing their
judicial function, moreover, when the historical nature inherent to these
prosecutions imposes, if not a dominant interpretation, then at least a sense of a
Other historical
approaches may tend to hew more closely with the judicial objectives of
contemporary tribunals, however.
77Todorov (n 43) 114-116 cited in Wilson (n 41) 912.
78Fronza (n 76) 622.
79 Ibid 621.
80See, too, Raul Hilberg, The Politics of Memory: The Journey of a Holocaust Historian (Ivan R.
Dee 1996).
81David Chuter, War Crimes: Confronting Atrocity in the Modern World (Lynne Reiner, 2003) 152.
82Hilberg (n 80) 66.
83Chuter (n 81) 152.
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widely accepted version of history.84
This creates an irresistible temptation—however well intentioned—to
prejudge issues, one that traps both the innocent and the guilty.
David Paccioco argues that the events creating
international tribunals impose an interpretation of history on judges that is
practically irresistible, and which creates expectations from judges that they will
find in the record what they think that they already know.
85 There is little
allowance made for the idea that the received history can be wrong, and thus that
innocents can be convicted as a result, and while judges decide on evidence, their
assessment of it will inevitably be based on their pre-existing beliefs about the
events86 that led to the creation of the ‘law-like political institutions’87 in which
they are called to judge. Paccioco points out that part of the reason for history’s
influence on these proceedings lies in the very creation of international criminal
courts,88 namely in the attempt to promote reconciliation, in addition to their
prosecutorial and punitive functions. In turn, this preoccupation is transformed
into a ‘search for historical truth’89 which justifies recourse to what Almiro
Rodrigues and Cécile Tournaye call a ‘free system of evidence,’ one that admits
hearsay, and indeed, whatever type of evidence judges consider relevant and which
has probative value.90
Rodrigues and Tournaye consider that these rules of evidence were deemed
necessary in anticipation of the difficulties that the ICTY would encounter in
gathering evidence in the service of historical truth.
91
Reconciliation is seen by proponents of the historical school of international
law as establishing a ‘memory’ that would, as Paccioco writes, ‘shame offending
parties into distancing themselves from their past.’
Thus, from its inception, the
contemporary UN war crimes tribunal, as a judicial body, both invests itself in the
search for historical truth, and—perhaps surprisingly from the vantage point of
historians—loosens the rules of evidence to do so.
92
In creating the Yugoslavia tribunal statute, the U.N. Security Council set three
objectives: first, to educate the Serbian people, who were long misled by Milosevic’s
Participants in the
establishment of the United Nations ad hoc courts have explicitly acknowledged
this intent. For instance, Michael Scharf, writing an op-ed in the summer of 2004
arguing against Slobodan Milosevic’s continued self-representation, stated that the
ICTY had been established with three objectives:
84David Paciocco, ‘Defending Rwandans Before the ICTR: A Venture Full of Pitfalls and Lessons for
International Criminal Law’ in Hélène Dumont and Anne-Marie Boisvert (eds), La voievers la
Courpénaleinternationale: tous les cheminsmênent à Rome (Thémis 2004).
85 Ibid 100-101.
86 Ibid 101.
87Shklar (n 31) 156.
88Paccioco (n 84) 102.
89Almiro Rodriguez and Cécile Tournaye, ‘Hearsay Evidence’ in May, Tolbert, Hocking, Roberts, Jia,
Mundis, and Oosthizen (eds), Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk
McDonald (Kluwer, 2001), 296.
90 Ibid.
91 Ibid.
92 Ibid.
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propaganda, about the acts of aggression, war crimes and crimes against humanity
committed by his regime; second, to facilitate national reconciliation by pinning
prime responsibility on Milosevic and other top leaders and disclosing the ways in
which the Milosevic regime had induced ordinary Serbs to commit atrocities; and
third, to promote political catharsis while enabling Serbia’s newly elected leaders to
distance themselves from the repressive policies of the past. May’s decision to allow
Milosevic to represent himself has seriously undercut these aims.93
The media played an essential role in establishing a dominant narrative—
described by Diana Johnstone as a ‘collective fiction’
These clearly appear to be political objectives, and while Shklar would be
skeptical of the idea that the judicial function can ever be really separated from
politics, it is one thing to admit the influence of politics on law or even to
acknowledge its logical necessity, but quite another to establish a body with
objectives that appear antithetical to the judicial function. Of concern is the effect
that the political nature of this establishment can have on the kind of history it
writes, as well as on the history that will be written by others about the events to
which these tribunals devote their work.
THE POLITICAL QUALITY OF HISTORY IN INTERNATIONAL WAR
CRIMES TRIALS
94 with respect to Yugoslavia:
it was, according to the standard narrative, a ‘prison of peoples’ in which the Serbs
oppressed all other ethnic groups95. When the oppressed of Yugoslavia attempted
to liberate themselves from the brutal dictatorship of Slobodan Milosevic, he—and
the Serbs (a thoroughly evil group of people)—embarked upon a policy of ethnic
cleansing, about which the international community did nothing. Milosevic and the
Serbs had a policy of systematic rape, concentration camps, and committed
genocide in the locality of Srebrenica. US bombing forced Milosevic to participate
in peace talks in Dayton, and to make up for the international community’s
inaction in the face of Nazi-like horror, the UN Security Council established a body
just like Nuremberg.96
Diana Johnstone argues that almost every material particular supporting
this narrative is inaccurate; but that once the equation had been drawn between the
Nazi Holocaust and the Yugoslav wars, created by ‘reporters under pressure to
meet deadlines, editors further simplifying the story for readers assumed to be both
ignorant and impatient, paid propagandists and public relations officers.’
97
93Michael Scharf, ‘’Making a Spectacle of Himself: Milosevic Wants a Stage, Not the Right to Provide
His Own Defense’’ Washington Post (Washington, 29 August 2004) B2.
94Diana Johnstone, Fools’ Crusade: Yugoslavia, NATO, and Western Delusions (Monthly Review
Press 2002) 4.
95Ibid.
96 Ibid 5.
97Ibid 4.
The
political changes that invested a post-cold war single superpower with the ability to
declare itself the judge of the moral and legal questions it had itself framed proved
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irresistible. A virtually unimpeachable truth had been established by repeating a
narrative that relied on the Holocaust often enough. The power of the historical
analogy triggered action; in the interests of justice, something had to be done.
The effects of the media’s contribution to the establishment of the ICTY
through its reliance on Holocaust imagery cannot be understated. The most
influential scholars, authors, and pundits do not even attempt to conceal it.
Samantha Power’s influential A Problem from Hell: America in an Age of
Genocide makes it unambiguous:
We will never know whether a different war in a different place at a different time would
have eventually triggered a different process. But one factor behind the creation of the UN
war crimes tribunal for the former Yugoslavia was the coincidence of imagery between the
Bosnian war and the Holocaust.98
International Justice: From Nuremberg to Yugoslavia to Liberia, the United States
has seen that the end of impunity and the promotion of justice are not just moral
imperatives; they are stabilizing forces in international affairs. The United States is
thus working to strengthen national justice systems and is maintaining our support
for ad hoc international tribunals and hybrid courts. Those who intentionally target
innocent civilians must be held accountable, and we will continue to support
institutions and prosecutions that advance this important interest. Although the
United States is not at present a party to the Rome Statute of the International
Criminal Court (ICC), and will always protect U.S. personnel, we are engaging with
State Parties to the Rome Statute on issues of concern and are supporting the ICC’s
prosecution of those cases that advance U.S. interests and values, consistent with
the requirements of U.S. law.
The strategy yielded dividends that are still apparent today as even the Obama
administration’s 2010 National Security Strategy demonstrates the strategic value
of US-dominated ad hoc courts, and US involvement—where it can control
processes in its interest—in the proceedings of the International Criminal Court.
99
Thus, what preceded the establishment of these contemporary bodies was
the power of history. Today, still, international justice, framed as national security,
relies on the Nuremberg precedent, arguably less in its legal form than in its
cultural and historical embodiment. It does not follow, however, that the
institutions created in the nineteen-nineties write the history of the events they
adjudge in the way historians, over the past decades, have refined their
98Power (n 38) 483. See, too, Ivan Simonovic, ‘The Role Of The ICTY In The Development of
International Criminal Adjudication’ (1999) 23(2) Fordham International Law Journal 440, 442:
‘It was the pressure of world public opinion, viewers of the media with global coverage bringing the
reality of the horror to millions of homes that were the catalyst for a response from the international
community. Given its earlier intervention in Iraq, the U.S. Administration was not eager to get
directly involved, and Europe preferred recourse to multilateralism as well. The fact that the end of
the Cold War had brought a period of better understanding between the permanent members of the
Security Council enabled the United Nations to become actively involved.’ Christopher Rudolph
‘Constructing an Atrocities Regime: The Politics of War Crimes Tribunals’ (2001)
55(3)International Organization is much in the same vein.
99National Security Strategy, President of the United States of America, May 27th, 2010.
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understanding of the workings of Nazi Germany and of the Holocaust. Yet that is
perhaps precisely the history we imagine when we think of Nuremberg.To conflate
the careful scholarship of Raul Hilberg and Christopher Browning, for instance,
with the approach of those who established the narratives of this immediate history
is to mistake the approach and training of the historians, on the one hand, with the
unique constraints and objectives of journalism. ‘It is not a criticism of the
media,’ David Chuter writes‘to say that its priorities are different from that of
courts and investigators,’100 and how much more so do they differ from those of
historians. The work of historians can pose a problem in its use in courts—
amounting to what Chuter characterizes as a ‘category error.’This means that little
if any of the scholarly production in history seeks to establish an individual’s guilt
for an offense beyond a reasonable doubt based on judicial standards.101
Journalists have been more prompt to assert guilt—and with greater
confidence and speed—than have historians in articles, and on some occasions,
books. Many journalists have been called upon to testify before the contemporary
war crimes tribunals.
Journalism exacerbates the misfit considerably given the time and commercial
constraints of the trade.
102 Yet demands of space and time inherent in the practice of
journalism lead to preferring extravagant claims over more tentative ones, higher
estimates of casualties over lower ones.103
Raul Hilberg’s careful assessment of Jews killed in the Holocaust is inferior
to the standard six million—and, as Chuter puts it, ‘because of the limitations that
the media work under, shorthand comparisons are often used to convey what busy
and often inexpert journalists want their busy and poorly informed audiences to
understand.’
104Chuter cites Pulitzer award-winning journalist Roy Gutman105 as an
example of amplification of claims: he had written, in 1992, that every woman aged
fifteen to twenty-five had been raped in Bosnia-Herzegovina.106
Less commonly known is the little remarked upon fact that Roy Gutman was
the source for the ICTY Prosecutor’s indictment of a certain ‘Gruban’ for a series of
rapes.
107 The indictment was subsequently withdrawn, as Gutman’s source—a
fellow Yugoslav journalist—had, in response to Gutman’s queries about whether his
colleague could identify the ‘biggest rapist’ in the region, named Gruban, a fictional
character created by a local novelist.108
100Chuter (n 81) 153.
101 Ibid.
102 Ibid.
103 Ibid.
104 Ibid.
105See Roy Gutman, Witness to Genocide (Macmillan, 1993)
106Chuter (n 81) 153.
107Jokic (n 73) 291.
108 Ibid.
This incident—the actual indictment of a
fictional character before a war crimes tribunal established by the United Nations
on the basis of a journalist’s communication of evidently unreliable hearsay
evidence—tends to demonstrate a clear difference in the manner in which
journalists and historians treat the concept of a source. As for the judicial
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component of this embarrassing imbroglio, while it is difficult, perhaps impossible,
to measure, it is worth inquiring into the potential influence of the journalistic
approach—the rush to judgment on such a tenuousbasis—on the carelessness with
which this indictment was proffered by the Prosecutor then confirmed by United
Nations judges. Journalists played a tremendous role in stoking outrage for reasons
detailed above—lack of time to investigate claims, as well as a preference for more
colorful narratives—and as a result, they resorted instead to very powerful
discursive historical shorthand. ‘Moral certainty’, however, as Carlo Ginzburg put
it, ‘does not have value of proof.’109 Yet, references to the Holocaust were consistent
in the reporting on the Yugoslav wars,110
A legalistic mind might find the narrative quality of some historical works on
the events that courts are called to adjudicate objectionable—the emotional, and
perhaps melodramatic quality of what fills in the gaps where footnotes are absent,
can make criminal lawyers uncomfortable. This phenomenon could be called
‘narrativism,’ and would be defined as a misuse of the narrative device in absence
of evidence—and in particular in the presence of contrary evidence—to create an
emotional response in the reader. Two examples from Samantha Power’s
influential America in an Age of Genocide may illustrate the problem. Power
begins her book, which not the work of a historian, though its largely positive
reception and Pulitzer Prize (for General Non-Fiction) make that irrelevant—with
the following paragraph:‘On March 14, 1921, on a damp day in the Charlottenburg
district of Berlin, a twenty-four-year-old Armenian crept up behind a man in a
heavy gray overcoat swinging his cane. The Armenian, SoghomonTehlirian, placed
a revolver at the back of the man’s head and pulled the trigger, shouting, ‘This is to
avenge the death of my family!’ The burly target crumpled. If you had heard the
shot and spotted the rage distorting the face of the young offender you might have
suspected that you were witnessing a murder to avenge a very different kind of
crime. But back then you would not have known to crime the crime in question
‘genocide.’ The word did not yet exist.’
and more than serving merely as
shorthand, these references created—then reinforced—the kind of climate of
preconceived belief among judges that Paccioco rightly critiques.
111
The legalist reader is perhaps the kind of reader that Carlo Ginzburg might
have had in mind when he described as ‘naïve’ the kind of person that would search
in vain for a footnote to support a clearly conjectural claim.
112 Is there not
conjecture in the very familiar wording observed above, ‘if you had heard the shot,’
and does this formulation not eerily resemble Eileen Power’s description of the life
of Bodo in Medieval People? Ginzburg points out the implausibility of Bodo—who
was from Île-de-France—singing an Anglo-Saxon incantation.113
109Davidson (n 16) 306.
110Chuter (n81) 154.
111 Power (n 38) 1.
112Ginzburg (n 23) 115.
113 Ibid114.
The problem
resides, here, in the filling of gaps in evidence with implausible or questionable
conjecture. But in Samantha Power’s retelling of Tehlirian’s murder of Pasha, the
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reader is not invited to understand the young Armenian’s statement as conjecture;
alternatively, if it is conjecture, it is not only implausible, but contrary to existing
evidence regarding the event, in particular transcripts of Tehlirian’s trial for
murder114
In another instance, Power quotes an account from a story published in the
Washington post on July 15th, 1995, which possesses a quality that can be described
as ‘the anecdote that nobody could have possibly witnessed,’ and which again,
perhaps, weaves conjecture with evidence: a young woman, a refugee from
Srebrenica, hangs herself, but before that moment, she sobs alone. It is perhaps
naïve to wonder how one goes about establishing that she was sobbing if she was
alone. It is, one can suppose, an assumption that one sobs before suicide. The
young woman died with no shoes on. Sometime Thursday night she climbed a high
tree near the muddy ditch where she had camped for 36 hours. Knotting a shabby
floral shawl together with her belt, she secured it to a branch, ran her head of black
hair through the makeshift noose and jumped… She had no relatives with her and
sobbed by herself until the moment she scaled the tree.
—in which the accused himself, as well as a witness state that nothing was
said before the assassination of Pasha. That ‘this is to avenge the death of my
family’—now reproduced in other pop-historical accounts, footnoting Power—was
the broad interpretation one could reasonably hold of Tehlirian’s defense, as well as
the outcome of his trial (an acquittal by reason of insanity, as a result of trauma
caused by witnessing the slaughter of his family) certainly seems sound, it is
another thing altogether to gratuitously place that quote—as if it had been spoken,
when evidence tends to show that it was not—at the very beginning of Power’s
book.
115
Power employs the quote from John Pomfret’s emotional front page July
15th, 1995, Washington Post article, about the young woman’s suicide, to set up a
scene at a Clinton cabinet meeting, in which Vice-President Gore, she writes, had
referred to the photograph accompanying Pomfret’s article:Gore told the Clinton
cabinet that in the photo that accompanied Pomfret’s story, the woman looked
around the same age as his daughter. ‘My twenty-one-year-old daughter asked
about that picture,’ Gore said. ‘What am I supposed to tell her? Why is this
happening and we’re not doing anything?’ […] ‘My daughter is surprised that the
world is allowing this to happen,’ Gore said, pausing for effect. ‘I am too.’ Clinton
said the United States would take action and agreed, in Gore’s words,that
‘acquiescence is not an option.’
116
The sobbing conjecture could appear puzzling enough to prompt the skeptic
to verify Pomfret’s article to examine his evidence: had somebody witnessed the
woman sobbing alone? A Lexis-Nexis search of the Washington Post’s front page
on July 15th, 1995, reveals not only Pomfret’s story, but another, by Samantha
Power, ‘special to the Washington Post’ (from Sarajevo), with additional reporting
by John Pomfret (in Tuzla). There was no sourcing, in the Pomfret piece, to
indicate how he knew the woman had sobbed by herself. The prose seems
114Available at <http://armenianhouse.org/wegner/docs-en/talaat-1.html>.
115Ellipsis in Power (n 38) 413.
116 Ibid.
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uncharacteristically literary, and the article, according to Lexis-Nexis, is
accompanied by a Reuters photo of Muslim women crying. What to make of
Power’s account of Gore’s reaction to the photo of a young woman hanging from a
tree, a photo that according to her, ‘accompanied’Pomfret’s article?
A microfilm search of the front page of the July 15th, 1995 issue of the
Washington Post reveals that John’s Pomfret’s article appears in a box, beneath the
fold, on the right hand side, without illustration. It is continued, on page A-17, and
is accompanied by a Reuters photo of Muslim women and children crying. Above
the fold that day, under the headline ‘Residents Sizzle’, the Washington Post
published a photo of a young woman pouring water down her neck. No photo of a
hanged young woman ran alongside John Pomfret’s article, as stated by Power, nor
was it run on the following days.
Power’s account of the cabinet meeting footnotes Bob Woodward’s The
Choice, at pages 162-163. Woodward writes, regarding Vice-President Gore:
He noted that the front page of the Washington Post over the weekend had
described a young woman, just one of the 10,000 refugees from Srebrenica, who
had committed suicide by tying a floral shawl and her belt together to hang herself
from a tree. A picture of the woman had run all over the world. Gore said she
seemed to be the age of his own daughter. ‘My twenty-one-year-old asked about the
picture.’117
The photograph was described in a Guardian piece by Lorna Martin, published
April 17th, 2005, titled ‘Truth Behind the Picture That Shocked the World’. The
photograph of FeridaOsmanovic was published on front pages across the world
soon after the fall of Srebrenica on 11 July, 1995. It prompted a series of questions
in the US Senate by those concerned about Bosnia’s war. What was her name,
where was she from, what humiliations and depravations did she suffer, had she
been raped, did she witness loved ones being killed? At a meeting with President
Bill Clinton, Vice President Al Gore referred to a front-page story in that day’s
Washington Post. ‘My 21-year-old daughter asked about this picture,’ he told the
President, showing him the newspaper. ‘What am I supposed to tell her? Why is
this happening and we’re not doing anything? My daughter is surprised the world
is allowing this to happen. I am too.’’
Power’s claim that this photo appeared accompanying John Pomfret’s July
15th, 1995 article is inaccurate. The Washington Post does not support it, and
neither does Woodward—who, carefully (for obvious reasons) references only the
Washington Post’s description of the suicide, claiming rather that the picture had
‘run all over the world,’ and that Gore’s daughter, perhaps an avid reader of foreign
newspapers, had asked about the picture. Does it matter? It matters in that this
account—like many others in Power’s book—is offered to illustrate a significant
moment, an epiphany, in this case, a shift in U.S. foreign policy effected by Gore’s
response to a photo that was published in the Washington Post, one that prompted
his daughter to ask questions that were intolerable.
118
117 Bob Woodward, The Choice (Simon and Shuster 1996).
118Available at <www.guardian.co.uk/world/2005/apr/17/warcrimes.lornamartin>.
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Here, too, the point is that this is a significant photograph, described by
Martin, ten years after its publication ‘on front pages across the world’, as having
prompted questions in the Senate. Martin writes that Vice President Gore showed
President Clinton ‘that day’s Washington Post’, stating that his 21 year-old
daughter asked him about the picture, in precisely the same terms as those crafted
by Power. Here, journalism reproduces the errors of a former journalist’s account
of a conversation it is far from clear ever occurred, about a photograph that did not
run in the Washington Post. The account appears in Gore’s Senate webpage, the
myth now apparently carved into stone.119Also strange is Power’s contention that
Clinton cabinet meeting occurred on July 15th, 1995, when page 161 of Woodward’s
book (the following two pages arefootnoted in support of her account) places that
meeting on Monday, July 17th, 1995.120
Power’s anecdote is one where a poignant photo of a hanged woman
accompanies a front-page article in the Washington Post, and the Vice President
brings it to the cabinet’s attention, the very same day. Does the account lose
narrative force if described in a manner consistent with the evidence? The accurate
account is that Gore would have referred to a Washington Post article, ‘published
over the weekend’ (it was Saturday, July 15th) that described a hanging, a photo of
which was apparently published elsewhere.
121
The difficulty is compounded when a journalist crafts a work imbued with
scholarly pretense. Power’s erroneous claims, in keeping with the trappings of
scholarly methodology, are supported by footnotes, and yet it is those very
footnotes that show them to be inaccurate. It is thus not an invitation to conjecture,
to be weighed, then accepted or rejected: Power’s assertions are offered as facts,
supported by footnotes. Power correctly added the reference to Pomfret’s piecein
That photograph both reminded him
of his daughter, and caused his daughter to ask him why ‘the world’ was doing
nothing, a question he adopted as his own. The message in each account is the
same: this photo changed foreign policy as a result of Gore’s emotional response. In
Power’s account, however, the photo was published in the Washington Post, and
Gore responded to it immediately. Both the press (specifically the Washington
Post, to which Power herself contributed an article that day), and Gore appear
more decisive in Power’s inaccurate account. The conclusion seems to be that the
media—and in particular, images, have the power to affect politicians and cause
them to act despite their hesitations. The obvious problem is of course—and this
example shows it well—journalists do not always treat evidence with care.
119‘Internationally, Gore was quicker than Clinton to advocate the use of military force in world
trouble spots. While the president pondered what to do about the worsening crisis in Bosnia, the
vice president pointed to a front page picture in the Washington Post of a twenty-one-year-old
refugee who had hanged herself in despair. ‘My twenty-one-year-old daughter asked about that
picture,’ said Gore. ‘What am I supposed to tell her? Why is this happening and we're not doing
anything?’ United States Senate, Albert A. Gore, Jr., 45th Vice President (1993-2001)
<www.senate.gov/artandhistory/history/common/generic/VP_Albert_Gore.htm>.
120Woodward (n 117) 161.
121 The author while unable to locate any major French or English language publication that
published the photo notes that there is a contemporaneous account stating that ‘some newspapers’
did run it. James Fenton, ‘Comment’ The Independent (London, 17 July 1995) 15.
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Woodward’s account, and footnoted it accurately. No person having done that
could honestly claim that the photograph of a woman hanging accompanied that
article, and arguably less someone having herself published an article in the same
paper that same day. Power misstates the date of the cabinet meeting, yet it
stretches credulity that she would miss Woodward’s reference to the date at which
the meeting occurred. That date appears one page before the pages she footnotes.
How does the writing process unfold? One thing is certain; it is not a scholarly
process, much less a historical one. It can rather be imagined as a series of
anecdotes, all emotional and powerful, fraught with victims and heroes, brought
together to send a powerful message.
Narrative license, even on insignificant matters, supports a strange subtext:
to Power, accuracy does not matter; the story does, as does the appearance of
careful research and accurate reference to evidence. Yet a genre tackling genocide,
and the history of its understanding by the United States, as well as the history of
the establishment of legal bodies, about which Power also states that they would
not have been created without the coincidence of imagery with the Holocaust,
requires meticulous attention to evidence. A wealth of footnotes and a gargantuan
bibliography do not make up for errors of fact, nor does a better story, or a noble
cause. In fact, the enterprise becomes suspect as the reader is left baffled and
wondering for what purpose an easily uncovered myth is planted in this narrative;
one which would have served the thrust of her work just as well had she reported
the facts—about reporting, ironically—with accuracy.
HISTORY IN INTERNATIONAL RELATIONS AND ACADEMIC
INTERNATIONAL CRIMINAL LAW
I have attempted thus far to explore the relationship between law and
history, as well as the effect of journalism on a certain idea of history. The sub-
discipline of international relations,which can study international criminal law
from the perspective of political science or the philosophy of international law, also
employs history as evidence, data, as well as to provide examples to illustrate social
scientific theoretical propositions. Academic international criminal law, too,
employs history in a manner of interest to this essay: to account for, or more
particularly to advocate for change in the substantive law. Such is the case of
academic international criminal law’s development of an unusual concept: the
‘Grotian Moment.’
Paul Schroeder has addressed the issue of the relation between history and
international relations scholarship with great care, seeking first to address
commonly held misconceptions regarding the differences between the two fields.122
122Paul W. Schroeder, ‘History and International Relations Theory: Not Use or Abuse, but Fit or
Misfit’ 22(1) (1997) International Security 64, 65.
First, the notion that history addresses only the particular in great detail, while
international relations theory addresses patterns and law-like generalizations;
second, and related, is the idea that the difference between the two disciplines is
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that international relations is nomothetic while history is idiographic, a merely
descriptive pursuit, which thirdly, seeks understanding in the sense of Verstehen—
intuitive identification.123 Schroeder argues that while there is some plausibility to
each of these claims, they can nonetheless serve to distort history to the point of
caricature, thus granting license to political scientists (or scholars from other
disciplines) to misuse and abuse elements of historical work to pursue what is
mistakenly considered to be a strictly social scientific endeavor, that is explanation
and prediction.124 This misconception holds that history is a merely descriptive
undertaking, and while it is true that narration (and description) play a crucial role
in the historical approach, this view fails to grasp that historical works, as
Schroeder writes, ‘are clearly nomothetic in the sense that they develop hypotheses,
assign particular causes for events and developments, and establish general
patterns.’125
History seeks to account for social change, and its methodology, perhaps
‘distressingly vague’ by social scientific standards,
126 consists in identifying under-
explored or incorrectly interpreted phenomena, and marshalling all available
evidence, arriving at a synoptic judgment, that is ‘a broad interpretation of a
development based on examining it from different angles to determine how it came
to be, what it means, and what understanding of it best integrates the available
evidence.’127 Misuse of history—in addition to the most obvious abuses resulting
from incorrect factual claims, usually resulting from the reliance on other works in
international relations—occurs primarily when historical findings are taken out of
context and used as data without an adequate understanding of the key differences
between history and political science: history seeks to account for change, it is
concerned with acts of purposive human agency, not mere behavior, and historians
form judgments about the causes, meaning and significance of social change.128
The use of historical materials to classify states according to their
democratic or autocratic nature—known in international relations as the
democratic peace theory, the proposition that democracies do not go to war against
each other—provides an illustration of a misfit between history and the social
sciences.
129 Indeed, from the perspective of historians, the cases used as data to test
the theory have been removed from all contexts130
The concept of what is to be discovered and explained (not change over
historic time, but supposedly law like, structural correlations between fixed stylized
; they lose the complexity and
richness of explanation, the continued refinement, debates and questions that
continue to interest the discipline of history; historical events, thus employed, are
effectively de-historicised. As Schroeder writes:
123 Ibid.
124 Ibid.
125 Ibid 66.
126 Ibid 68.
127 Ibid.
128 Ibid 71.
129Edward Ingram, ‘The Wonderland of the Political Scientist’ 22(1) (1997) International Security
53, 56.
130 Ibid.
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phenomena); of the subject matter (not human conduct, acts of purposive agency,
but behavior, phenomena to be stripped of their human, purposive element
precisely in order to be manipulable and calculable for scientific purposes); and of
the desired explanatory outcome (designed precisely to exclude synoptic judgment
and to consist of proofs, preferably statistical-mathematical, of such correlations)—
all these are so remote from and alien to what historical scholarship is about and
always will be, that between it and this kind of endeavor no genuine conversation,
much less fit and collaboration, is possible.131
Edward Ingram draws a similar conclusion, adding that historians, when
examining the world of the political scientist, are bewildered by its curious position
on time, space, and causation, like Alice in Wonderland.
132
In the genre outlined above, the concept of the ‘Grotian moment,’ first
developed by Richard Falk, but most recently expounded by Michael Scharf, is
instructive. The Grotian moment refers to Hugo Grotius, widely considered the
father of international law. Michael Scharf employs the expression as he marshals
elements of history to assert a paradigmatic shift in law as a result of a dramatic
historical event.
Both Ingram and
Schroeder argue in favor of something akin to a non-aggression pact between the
two disciplines, but it could be argued that historians may have a responsibility
greater than that of merely averting their gaze from political science’s different
perception of the phenomena they study. There are instances in international
relations scholarship as well as the related scholarship in academic international
criminal law where the use of historical materials goes beyond mere
oversimplification or instrumentalisation: it is employed to argue that international
law has changed—without legislative intervention and in a virtually instantaneous
manner—resulting in real consequences for real people.
133 In an article advocating that a controversial mode of criminal
participation, joint criminal enterprise—or JCE, also known by some critics as ‘just
convict everyone’134—which in one of its incarnations allows individuals to be held
individually criminally responsible for crimes perpetrated by others that were
outside of thescope of the original agreement, provided they were the foreseeable
consequence of activitiesthat were originally agreed upon or contemplated. Hence,
the purpose of JCE is to facilitate convictions, as it significantly reduces the
prosecutorial burden of proof, and permits the conviction of the morally—and
objectively—innocent.135 I have argued elsewhere136
131Schroeder (n 122) 73.
132Ingram (n 129) 63.
133Michael Scharf, ‘Seizing the ‘Grotian Moment’: Accelerated Formation of Customary
International Law in Times of Fundamental Change’ 43 (2010) Cornell International Law Journal
439, 439.
134Shane Darcy, ‘Imputed Criminal Liability and the Goals of Criminal Justice’ 20 (2007)Leiden
Journal of International Law 377, 386; M. E. Badar, ‘‘Just Convict Everyone!’ – Joint Perpetration:
FromTadic to Stakic and Back Again’ 6 (2006)International Criminal Law Review293, 302; Mark
Drumbl, Atrocity, Punishment, and International Law, (CUP 2007) 39.
135See Hector Olasolo, ‘Joint Criminal Enterprise and its Extended Form’ 20 (2009) Criminal Law
Forum 263, 284.
that JCE is both a very recent
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and unique legal concept. JCE is only deployed in cases where there is, in fact, no
evidence—or insufficient evidence, from the standpoint of the criminal burden of
proof—of genocidal intent. In other words, its purpose can be said to be to convict
the innocent.JCE is recent, as the ICTY’s Statute does not—and did not at the
institution’s creation—include this ‘prosecutorial tool’ as a mode of participation in
a criminal offence137
The argument is troubling along legal and historical lines: the legal
controversy has, in the case of Cambodia, been resolved by the Appeals Chamber,
which has recently ruled that the most controversial form of JCE
; indeed, Article 7 of the Statute sets out traditional modes of
participation, which require evidence of both a criminal act, either as a direct act,
or as an alternate, traditionally known modes of participation, such as aiding and
abetting, or a common agreement, plan or design) as well as criminal intent.
Scharf’s position, in contrast, is that JCE forms part of customary
international law since the Nuremberg trials, and an impressive array of arguments
are offered in support of this argument. However, precedents (such as the
Eichmann trial) or the debatable inclusion of all Nuremberg principles into
international criminal law do not appear to suffice; Scharf wants to make a
different argument, and employ his concept of a Grotian moment to strengthen his
legal case. This is done by arguing that the particular atrocities committed by the
Nazi regime—described in a single paragraph that omits Germany’s invasion of the
Soviet Union, surely not a detail of history, and which footnotes two pages from a
previous book written by Scharf himself as sole historical support—having led to
the establishment of the Nuremberg tribunal, constituted a paradigmatic shift in
law. Thus, (and this is Scharf’s specific goal) JCE should apply to the defendants
before the Cambodia tribunal, and constitutes evidence that this mode of
participation was included in international criminal law in the nineteen-seventies
when the Khmer Rouge regime was in power.
138—and thereby
serving a stunning rebuke to the ICTY Appeals Chamber decision in Tadic139
136Tiphaine Dickson and AleksandarJokic, ‘See No Evil, Hear No Evil, Speak No Evil: The Unsightly
Milosevic Case’ 19(4) (2006) International Journal for the Semiotics of Law 19, (4) 355, 356.
137JCE wasintroduced in the case of Prosecutor v. Brdjanin, Decision on InterlocatoryAppeal,
AppealsChamber, IT-99-36-A, 19 March 2004, at paras 5-10.
—was
not included in international criminal law in the years 1975 to 1979. In fact, the
Extraordinary Chambers in the Court of Cambodia, a hybrid international
court,have rejected as unsound the arguments Scharf presents in his article. Errors
and unsuccessful legal arguments are the stuff of everyday practice and
scholarship, but what is unusual in Scharf’s approach is the blend of (poor) history
138Public Decision on the Appeals Against the Co-Investigative Judges Order on Joint Criminal
Enterprise (JCE), D97/15/9, 20 May 2010, Extraordinary Chambers in the Court of Cambodia.
Kevin Jon Heller is unambiguous in his praise for this decision, claiming that the Tadic appeals
decision of the ICTY created JCE III ‘literally out of thin air’
<http://opiniojuris.org/2010/05/23/the-eccc-issues-a-landmark-decision-on-jce-iii/>.
139A decision which also incredibly includes an egregious error, that is a quote from Nuremberg
prosecutor Telford Taylor’s argument, presented by the ICTY Appeals Chamber as part of the
Einsatzgruppen judgment. This is the ICTY’s final court of appeal, and Tadic was the ICTY’s first
judgment.
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and legal argument to create claims that would facilitate the conviction of the
innocent. Misuse of history in legal scholarship ought to baffle the historian as
much and arguably more than Ingram’s Alice in Wonderland feeling when
confronted with international relations theory, as work such as that written by
Scharf is normative in nature, and in this particular instance militates for the
conviction of the innocent based on some sort of historical—as opposed to a legal—
idea of sudden paradigmatic shifts in international law, minus states ratifying
treaties, or their opinio juris. A historian might wonder, as Ingram does about the
democratic peace theory, why only the case of Nuremberg? Why no international
courts during the cold war? Can the sudden change solely be explained by atrocities
that re-emerged only in the nineteen-nineties? If Nuremberg, for the sake of
argument, modified customary international law in a ‘Grotian moment,’ why is
aggression—described by the Nuremberg’s Trial of the Major War Criminals as ‘the
supreme international crime’—not presently an actual crime? Historians of legal
bodies can also question Scharf’s assertions that only the United States wished to
try—rather than to execute—the Nazi leadership, whether Nuremberg was an
international body rather than the exercise of jurisdiction by the Allies following
German terms of surrender, whether conspiracy charges were an exclusively
American idea, and whether following Nuremberg, international law could charge
and prosecute individuals.
CONCLUSION
In criminal law, what goes beyond the legal and factual findings required to
find whether an individual is guilty or not guilty of an offence, before a court of law,
is obiter dictum140. Similarly, international court practice disallows a
determination in favor of parties that go beyond the issues of a case; this rule is
known as non ultrapetita.141
Historians, political scientists, and legal scholars all have a stake in the
manner in which they examine the development of international criminal law:
historians ought be wary of the history written by courts, and understand, along
History written by international court thus falls
somewhere between obiter dicta and ultra petita, but this history is less the
responsibility of the judges as it is attributable to the nature of these bodies,
described by Judith Shklar as ‘law-like political institutions.’Since these courts are
the product of international politics,they can fall inside international scholars’
examination scope. What should be borne in mind is that international war crimes
courts exist at the intersection of politics, law, and history; they are not impervious
to the influence of the media. This has an effect on both the history these courts can
be expected to write and the fairness of the process.
140Black’s Law Dictionary (8th edition, West Group 2004) 1102.
141‘It is the duty of the Court not only to reply to the questions as stated in the final submissions of
the parties, but also to abstain from deciding points not included in those submissions’ (Asylum,
Judgment, I.C.J. Reports 1950, p. 402), reiterated by the International Court of Justice in Arrest
Warrant of 11 April 2000(Democratic Republic of the Congo v. Belgium), Judgment of 14 February
2002, par. 43.
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with legal scholars, that the process cannot be divorced from the political aspects of
these bodies. Political scientists or philosophers, in turn, should not shy from the
study of international criminal law as a political question and the establishment of
war crimes tribunals as a result of power and of interests; indeed, they are well
suited to address the limitations of international law, but they may have to
approach the issues reflexively,142
Miscarriages of justice can occur internationally, and are more likely to do so
in the misguided search for historical truth. In The Judge and the Historian, Carlo
Ginzburg writes that: ‘in comparison with the errors of historians, however, the
errors of judges have more immediate and more serious consequences. They can
lead to the conviction of innocent people.’
rather than attempt empirical theory building
and the generation of correlations focusing solely on behavior and ignoring
purposive agency. The manner in which historians arrive at synoptic judgments
about events, and the care with which evidence is treated should serve as a model
for international relations scholarship.
Finally, in examining international criminal courts, international relations
scholarship, and conceptually minded thinkers like philosophers, ought to pay
attention to the quality of the history generated by these institutions and take great
care to verify those narratives with the more careful and deliberate work of
historians. International relations and international legal scholars and those who
have an interest in evaluating argumentation, however well-intentioned they may
be in hoping that a Grotian moment has emerged and that new, unwritten norms
now govern individuals, would be well-advised to approach their hopes with
caution: so-called Grotian moments today seem to operate to the detriment of
individuals charged with grave crimes, and some innocent people may well pay the
ultimate price of an unjust conviction.
143
142This has been proposed by Ido Oren, who adopts a Weberian, reflexive, and critical approach to
political science in Our Enemies and US: America’s Rivalries and the Making of Political Science
(Cornell University Press, 2003) 183.
143Ginzburg (n 2) 119.
And now, at least in France, where
Inquisitor Jacques Fournier once tried people for their beliefs, it is a crime to
contest the obiter dicta of ‘law-like political bodies,’ a matter that ought to—and
is—of great concern to historians. It should also be ofconcern to international legal
theory and practice.
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- [Show abstract] [Hide abstract] ABSTRACT: Scholars and legal officials have argued that courts should not attempt to write definitive historical accounts of mass human rights violations. Even if a court seeks to reconstruct a comprehensive history of a conflict, law and history use such different modes of thinking and inquiry that legal accounts are likely to be partial, deeply flawed, or just plain boring. These criticisms have appeared prominently in discussions of Holocaust trials in the domestic courts of Israel and France. Yet the Tadić and Krstić judgments written by the International Criminal Tribunal for the Former Yugoslavia (ICTY) are characterized by detailed contextualization of criminal acts and extensive historical interpretation. This Article asserts that the Tribunal's historical record represents a departure from previous courtroom accounts of mass atrocities for two reasons. First, because it is an international tribunal it has been less influenced by distorted narratives on national identity. Second, the ICTY has applied legal categories such as genocide which emphasize the collective nature of crimes against humanity, and this compels the court to situate individual acts within long-term, systematic policies.
- [Show abstract] [Hide abstract] ABSTRACT: Growing out of the author's experience as Special Assistant to the International Prosecutor of the Cambodia Genocide Tribunal in 2008, this article examines the concept of "Grotian moment," a term the author uses to denote a paradigm-shifting development in which new rules and doctrines of customary international law emerge with unusual rapidity and acceptance. The article makes the case that the paradigm-shifting nature of the Nuremberg precedent, and the universal and unqualified endorsement of the Nuremberg Principles by the U.N. General Assembly in 1946, resulted in accelerated formation of customary international law, including the mode of international criminal responsibility now known as Joint Criminal Enterprise (JCE) liability. As such, the Cambodian Genocide Tribunal may properly apply JCE to crimes that occurred in 1975-1979, twenty years before the modern international tribunals recognized JCE as customary international law. The article uses this example to demonstrate the value of the "Grotian Moment" concept to explain an acceleration of the customary law-formation process and the heightened significance of certain General Assembly resolutions during times of fundamental change.
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