Judging History: The Uses of Historical and Background Contextual Evidence at the International Criminal Tribunal for the Former Yugoslavia

Investigators: Professor Richard A. Wilson and Professor Andrew R. Corin

Summary

The purpose of this research project is to examine the ICTY’s approach to historical and other background contextual information with the goal of determining whether that approach might be distinctive.  This study will furnish a careful understanding of how the prosecution and defense construct versions of the past, and what consequences their competing historical narratives have for the outcome of a trial; how experts (e.g., historians, social scientists) have contributed to trials, and what influence they have had on the outcome.

 

Call for Participants in Online Survey

We are currently seeking participants for an anonymous online survey about the use of historical evidence at the International Criminal Tribunal for the Former Yugoslavia (ICTY).  If you are a former employee of the Tribunal, member of a defense team, external consultant of the ICTY, or external expert witness who has participated in cases heard before the ICTY, you may participate.  All survey responses are in complete confidence and at no time does the survey ask for any information about yourself that can identify you. All research records are treated as strictly confidential, as are all communications between participants, prospective participants, and the research team. The survey takes about 15-20 minutes.  If you'd like to participate, then please contact either Dr. Richard Wilson richard.wilson@uconn.edu or Dr. Andrew Corin arcrmc@att.net

Letter from Richard Goldstone, First Chief Prosecutor of the ICTY and Michael Karnavas, President of the Association of Defense Counsel at the ICTY:

We encourage you to take part in the online survey being conducted by Dr. Richard Wilson and Dr. Andrew Corin on the use of historical and other contextual evidence at the International Criminal Tribunal for the former Yugoslavia. As the Tribunal nears the end of its work, it is vitally important that a thorough examination be carried out of its contributions not merely to international criminal law, but also to our historical understanding of the conflict in the former Yugoslavia. We feel that this survey addresses important and legitimate questions, and will lead to valuable insights into the place of history and social science in international criminal trials.

 

Rationale and Discussion

Judging History: The Uses of Historical Evidence at the International Criminal Tribunal for the Former Yugoslavia

International criminal trials represent one of the most significant developments in international accountability and rule of law in recent history.  One key component of accountability involves establishing an accurate historical record of events leading to crimes against humanity.   This research project examines the methods used by the International Criminal Tribunal for the Former Yugoslavia (ICTY) to furnish an understanding of the historical and social context in which crimes occurred.  

While historical memories have played a prominent role in ethno-nationalist conflicts in the Balkans, many scholars doubt the ability of legal institutions to forge comprehensive historical accounts that could preclude future misuse (Langer 1995).  The dominant view, labeled “liberal legalism” by Gary Bass (2000:7-8), holds that the main function of courts is to administer justice, understood as determining the guilt or innocence of an individual.

Liberal legalism has been challenged by commentators who have urged courts to go beyond simply determining individual criminal responsibility (See Douglas 2001, Osiel 1997). Courts can be centrally engaged in the writing of a new version of history that identifies the conditions that gave rise to the conflict in the first place, contextualizes the actions of individual perpetrators and facilitates democratic nation-building.  Moreover, historical reflection in the courtroom is inevitable because the parties arrange facts sequentially in order to construct plausible narratives, and in so doing assert a causal relationship between acts, facts and events. 

Our review of the judgments of the International Criminal Tribunals for the Former Yugoslavia indicates that the ICTY has produced detailed and comprehensive historical accounts (Wilson 2005, 2007).   While we recognize that courts might still produce sketchy or inadequate accounts of an armed conflict, the question is not whether courts produce, or should produce, historical narratives—they inevitably do—but to what extent, and using which methods, rules of evidence, guiding investigatory principles and assumptions.

This study is based on empirical study of the procedures, methods and research practices of the ICTY and will provide a careful understanding of how the prosecution and defense construct versions of the past, and what consequences their competing historical narratives have for the outcome of the trial.  We are interested in studying what prosecuting attorneys, investigators, judges and legal officers actually do with historical evidence during a trial. 

This project concentrates on cases that involve collective crimes such as genocide and persecution, in order to fathom how they document the political, social and economic conditions giving rise to conflict.  More specifically, we are interested in how the ICTY’s accounts address factors such as economic collapse or a nationalist media that are more pervasive than the immediate actions of a single individual. Questions guiding our investigation include: What criteria are used by researchers, judges and prosecutors to decide which historical events are most relevant, and whether two historical events have a causal or deterministic relationship (e.g., Tito’s death and the rise of nationalism in Yugoslavia)? What weight is given to expert historical testimony during the trial? Does the specific charge (e.g., persecution, torture, genocide) affect the degree of contextual evidence introduced by the prosecution or defense?  Does the Tribunal’s definitions of certain historical and societal concepts (e.g., religious or national minority groups) shape how they comprehend the motives for mass crimes? 

The online survey associated with this project is designed to address the questions raised above.  As they near the end of their mandate, many institutions undertake ‘exit interviews’ of their staff so as to preserve the institutional knowledge that has been developed.  Concepts of best practice, along with extensive practical experience, have emerged at the ICTY in respect, inter alia, to the use of historical and related contextual evidence.  This survey represents one aspect of a broader program to document and preserve this aspect of the ICTY’s institutional knowledge while memories of the participants remain fresh, and so many of its staff members move on to other activities that the relevant institutional knowledge is dissipated. 

One goal of this project is thus to document this experience and make it available to future institutional and individual practitioners, as well as to scholars and the concerned public.  The ICTY has no formal or official role in conducting this survey, and to our knowledge has no plans to conduct this kind of institutional research.  For this reason we are soliciting the participation of former ICTY staff members, members of defense teams, as well as external consultants and expert witnesses, in the hope that they can pass on their knowledge and insights while their recollections are still relatively fresh.

            This is a scholarly research project.  The researchers have no pre-existing agenda to laud or criticize the ICTY or other international courts and tribunals.  The researchers will avoid any action that might jeopardize the proper functioning and impartiality of the ICTY.  Under no circumstances will they reveal confidential United Nations Information or confidential information of any participant.  The survey is anonymous and confidential. 

In conclusion, this research project will provide thorough documentation and analysis of the use of historical and background contextual evidence of the International Criminal Tribunal for the Former Yugoslavia, leading to comparative insights into how the Tribunal has created explanations of armed conflict.   It will evaluate trials and judgments, focusing upon the kinds of histories they produce, and in particular how they deal with the macro-historical context of abuses, including cultural conditions and structural factors.  It seeks a new understanding of the relationship between writing history and delivering legal judgment, based upon the actual operations of an international tribunal presently prosecuting war crimes, genocide and crimes against humanity.  As the ICTY nears the end of its ‘completion strategy’, it is a decisive moment for taking stock of its contribution to an historical understanding of mass atrocities.

Further Reading

Corin, Andrew, Citizens vs. Nations as a Source of Political Legitimacy: Studying the Causes of Conflict in the Former Yugoslavia -

download pdf

Wilson, Richard A. 2005. ‘Judging History: the Historical Record of the International Criminal Tribunal for the Former Yugoslavia.’ Human Rights Quarterly.  August. Vol. 27, No. 3, pp. 908-942.
________________2007. ‘Humanity’s Histories: Evaluating the Historical Accounts of International Tribunals and Truth Commissions.’ Politix: Revue des Sciences Sociales du Politique. Vol. 20, No. 80, pp. 31-59.

 

Biographies

 

RICHARD A. WILSON

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Richard Wilson


Richard Wilson is Gladstein Distinguished Chair of Human Rights, Professor of Anthropology and Director of the Human Rights Institute at the University of Connecticut.  He obtained his BSc. and PhD from the London School of Economics and Political Science, and previously taught at the University of Essex and the University of Sussex, UK. He has held visiting Professorships at the University of Oslo, the New School for Social Research and the University of the Witwatersrand, South Africa.  His research and writing has focused upon human rights, truth commissions and post-conflict justice and the anthropology of law.  He is the author or editor of  eight books, including Human Rights, Culture and Context (1997), The Politics of Truth and Reconciliation in South Africa (2001), Human Rights and the ‘War on Terror’ (2005) and Humanitarianism and Suffering: the mobilization of empathy (2008, Cambridge University Press). Presently he is writing a book on the use of historical evidence and expert witness testimony at three international criminal tribunals (ICTY, ICTR, ICC). Richard A. Wilson serves as chair of the Connecticut State Advisory Committee for the US Commission on Civil Rights and as a member of the Committee for Human Rights of the American Anthropological Association. 

 

 

ANDREW R. CORIN

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Andrew Corin is Associate Professor in the School of European and Latin American Studies at the United States Defense Language Institute, where he specializes in Serbian/Croatian and Russian.  Professor Corin was trained in Slavic linguistics and cultural history, with areas of specialization including the structure and history of the South Slavic languages and Russian, comparative Slavic linguistics, early Slavic textual study, and intensive foreign language teaching methodology.  Within the scope of his research activities, Professor Corin has published and lectured in both Serbia and Croatia.  He holds a bachelor’s degree from the Faculty of Philology of the University of Belgrade, and M.A. and Ph.D. degrees from the Department of Slavic Languages and Literatures at the University of California, Los Angeles, where he later served as an Adjunct Associate Professor.  From 1999 through 2007, he served as a Research Officer with the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY).  Among his duties as an ICTY Research Officer, he devoted considerable effort to the analysis of expert submissions by prosecution and defense teams, and to the articulation of guidelines relevant to expertise.  He authored multiple expert submissions, and testified in the case of Milomir Stakić.  While at the ICTY, he lectured both internally and externally on the role of background expertise in core international cases.  In 2007, Dr. Corin was a Public Policy Scholar at the Woodrow Wilson International Center for Scholars.  In January 2008 he left the ICTY to accept his current position at the Defense Language Institute.  Professor Corin currently has no affiliation with the ICTY, and his research is devoted to a non-partisan elucidation of the role of expertise in the functioning of international tribunals, and in the outcome of their investigations and trials.