Histories Written by International Criminal Courts and Tribunals - Developing a Responsible History Framework
Series: International Criminal Justice Series

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.

Specific to this book

• Will help readers better understand the key tensions and controversies relating to the proper place of history-writing in international criminal adjudication
• The responsible history normative framework developed by this book will progress the current debate beyond the polarized restrictive v. expansive approaches to history-writing in international criminal adjudication
• By analyzing the strengths, constraints and blind spots of the historical narratives written by ICTs, this book will shed more light on legal epistemology in international criminal adjudication.

With a foreword by Sir Geoffrey Nice QC

Excerpts from several recent book reviews:

Zammit Borda’s book makes an important and timely contribution to the debate concerning the history-writing function of the ICTs. The author makes compelling arguments for moving beyond the strict legality-didactic legality dichotomy and for promoting the intersections between the concepts of ‘trial truth’ and ‘historical truth’. In so doing, he adds valuable knowledge to the existing literature on this topic—including his own—, and provides us with a new ‘normative framework for responsible history’ which is likely to be further scrutinised by scholars and practitioners. For these very same reasons, both practitioners and academics will benefit from this book.
- Luigi Prosperi, UpRights, The Hague, The Netherlands

For the full review, published in the International Criminal Law Review, Volume 21, No. 6, see: https://doi.org/10.1163/15718123-21060001

Zammit Borda builds on previous research, using his excellent knowledge of international criminal law, to develop an understanding of the complex relationship between international criminal justice and history-writing. He is commendably clear in his objectives and his methodology. […] This thought-provoking book should be read by academics and practitioners alike: it constitutes a very important input to a field of research that has not seen enough contributions.
- Jonas Nilsson, International lawyer; former Senior Legal Officer ICTY, The Hague, The Netherlands; ECCC, Phnom Penh, Cambodia

For the full review, published in the Journal of International Criminal Justice 00 (2021), 1–4, see: https://doi.org/10.1093/jicj/mqab074

In my view, therefore, when international criminal courts write history, as to some degree they must, they will occasionally and inevitably err; but when they do, they should err in favour of strict legality. In the effort to avoid both extremes, however, the framework suggested by Dr Zammit Borda appeals.

Stripped to its essence, this framework involves recognising the value of history writing in such cases; committing to both accuracy and sincerity in the search for truth; recognising the limitations inherent in history written by judges in such cases; and accepting that judges and lawyers do not necessarily have the last word on history.
- Hamar Foster QC, Professor Emeritus at the Faculty of Law, University of Victoria, Victoria BC, Canada

The full review is published in the Journal of the Commonwealth Magistrates’ and Judges’ Association (CMJA) Vol 25 No 4 Dec 2021. For more information on the publication and how to access it, see https://www.cmja.org/publications/

Histories Written by International Criminal Courts and Tribunals will appeal to a wide and diverse audience of practitioners and academics. Judges and practitioners working at ICTs may derive value from the normative framework articulated when examining historical facts and ultimately crafting judgments. Academics in both law and history will benefit from a greater understanding of how to recognise and account for the so-called ‘blind spots’ present in the historical narratives produced by ICTs.
- Adaena Sinclair-Blakemore, Emraan Azad and Ahmed Farooq, University of Cambridge, UK

For the full review, published in the Cambridge International Law Journal, Vol. 10, No. 2 (pp. 300–305), see: http://cilj.co.uk/journal-archive/

This is Volume 26 in the International Criminal Justice Series