Judging History: The Historical Record of the International Criminal Tribunal for the Former Yugoslavia

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.