Seeing Like a Court: Documenting Histories of Armed Conflict through the Lens of Judging International Crimes

Assessing how well international criminal tribunals document history has gained renewed scrutiny in light of two recent landmark Appeals Chamber decisions at the Yugoslavia and Rwanda tribunals. The November 2012 acquittal of Ante Gotovina and Mladen Markác for war crimes and crimes against humanity during the 1995 Croatian military operation that retook the Krajina region from Serb forces may prove to be the most contentious appellate decision handed down by the tribunal. This is underscored by the extraordinarily strong dissenting opinions from the appellate bench, one of which criticized an aspect of the majority's reasoning as "grotesque" and the judgment itself as contradicting "any sense of justice."

The appellate decision effectively rewrites the history of this crucial part of the war by overturning the Trial Chamber's decision that found the two former generals, along with then Croatian President Franjo Tuđman, were involved in a joint criminal enterprise to expel ethnic Serbs from Croatia. The Croatian attack, which led to the exodus of some 150,000 to 200,000 Serbs, has long been viewed in Croatia as the culmination of a just war of liberation, but criticized internationally as ethnic cleansing. This 2012 appellate decision, along with Appeals Chamber acquittals of the Kosovo Liberation Army leader Ramush Haradinaj and Bosnian Muslim Naser Oríc, challenges the prosecution's overall narrative which recognizes that serious violations of international humanitarian law were committed by all sides in the Yugoslav wars of succession. But from the tribunal's recent Appeals Chamber's decisions emerge a one-sided narrative that effectively exonerates the culpability of key high-level non-Serb suspects.

The Rwanda tribunal's December 2011 Appeals Chamber and the December 2008 Trial Chamber decisions in the case of Théoneste Bagosora have also upended the dominant narrative of the Rwandan genocide as a carefully planned conspiracy directed from the top of the interim government that took power in early April 1994. The Trial Chamber's 2008 decision convicted Bagosora for genocide, but found he played no direct role in conspiring to organize it. The Appeals Chamber further diminished the culpability of Bagosora, the tribunal's prime genocide suspect, and reduced his sentence from life to thirty-five years. Genocide certainly occurred in Rwanda in 1994, but as Thierry Cruvellier wrote in the International Justice Tribune, with this appellate decision "[it seems] almost impossible to understand what's the narrative of the genocide that has come out of the most important trials at the ICTR."¹

By overturning key aspects of the dominant narratives of the Croatian and Rwandan conflicts, the Appeals Chamber decisions may well strengthen the arguments against international tribunals moving into the hazardous realm of documenting the histories of armed conflicts. Richard Wilson begins his groundbreaking book, Writing History in International Criminal Trials, by explaining the foundation of the scholarly consensus behind these arguments. Ever since Hannah Arendt's piercing criticism of the Eichmann trial's obsession with linking the Holocaust to the long history of anti-Semitism, many observers have been wary of seeing courtroom trials diverge from their legal mission of determining individual criminal responsibility. This skepticism, as Wilson explains, is informed by two distinct perspectives. The liberal legalism camp, of which Arendt belonged, argues that criminal trials should have the singular mandate of determining a defendant's guilt or innocence. Arendt was not only concerned that the prosecution's strategy in the Eichmann trial produced "bad history and cheap rhetoric,"² but that it undermined the defendant's due process rights. Recent law-and-society scholarship cites different reasons for why courts that venture into history writing will inevitably produce impoverished accounts of past conflicts. Some in this camp argue that courts can only deliver partial truths because of their selective and limited focus. According to Wilson, others emphasize that "[l]aw's unique conventions, special categories, and exceptional rules impel courts to perceive historical events through a...