This book argues for a more moderate approach to history-writing in
international criminal adjudication by articulating the elements of a
"responsible history" normative framework. The question of whether
international criminal courts and tribunals (ICTs) ought to write
historical narratives has gained renewed relevance in the context of the
recent turn to history in international criminal law, the growing
attention to the historical legacies of the ad hoc Tribunals and the
minimal attention paid to historical context in the first judgment of
the International Criminal Court.
The starting point for this discussion is that, in cases of mass
atrocities, prosecutors and judges are inevitably understood to be
engaged in writing history and influencing collective memory, whether or
not they so intend. Therefore, while writing history is an inescapable
feature of ICTs, there is still today a significant lack of consensus
over the proper place of this function. Since Hannah Arendt articulated
her doctrine of strict legality, in response to the prosecutor's
expansive didactic approach in Eichmann, the legal debate on the
subject has been largely polarised between restrictive and expansive
approaches to history-writing in mass atrocity trials. What has been
noticeably missing from this debate is the middle ground. The
contribution this book seeks to make is precisely to articulate a
framework that occupies that ground. The book asks: what are the lenses
through which judges of ICTs interpret historical events, what kind of
histories do ICTs write? and what kinds of histories should ICTs
produce? Its arguments for a more moderate approach to history-writing
are based on three distinct, but interrelated grounds: (1) Truth and
Justice; (2) Right to Truth; and (3) Legal Epistemology.
Different target audiences may benefit from this book. Court officials
and legal practitioners may find the normative framework developed
herein useful in addressing the tensions between the competing
objectives of ICTs and, in particular, in assessing the value of the
history-writing function. Lawyers, historians and other academics may
also find the analysis of the strengths, constraints and blind spots of
the historical narratives written by ICTs interesting. This issue is
particularly timely in view of current debates on the legacies of
ICTs.
Aldo Zammit Borda is Director of the Centre for Access to Justice
and Inclusion at Anglia Ruskin University, Cambridge, UK.
