Surveying History at the International Criminal Tribunal for the Former Yugoslavia
The Journal of Eurasian Law. 4(1): 1-39.
42 Pages Posted: 13 May 2011 Last revised: 9 Mar 2020
Date Written: May 10, 2011
In the law and society literature, it is widely accepted that national criminal trials often fail to produce an adequate account of the historical context in which mass crimes occur. This article evaluates whether this view is applicable to trials at the International Criminal Tribunal for the former Yugoslavia. Drawing on the responses provided by a survey of former prosecutor and defense team members and expert witnesses, empirical evidence is presented with respect to the motivations for including historical evidence in cases and an overall assessment of the historical discussions at the ICTY. Survey results demonstrate agreement among respondents that international criminal trials tend to include more historical evidence than domestic trials, on the grounds that the crimes are more widespread and systematic and involve a collective dimension that requires broader historical analysis. A majority of respondents thought prosecutors use historical evidence to develop their theory of the case and, in genocide trials, such evidence can be relevant to the mental state of the accused. Prosecution and defense respondents profoundly disagreed on whether the ICTY has produced an accurate and comprehensive account of the armed conflicts of the 1990s in the former Yugoslavia. Prosecution respondents generally held that the ICTY’s historical discussions provided valuable insights into the conflict and enhanced the legitimacy of the Tribunal. Defense respondents were more critical of their own expert witnesses, perceived the ICTY judges as unreceptive to defense experts and maintained that the Tribunal’s legitimacy had been undermined by historical discussions. Our correlation analyses identified a divergence between those with two years or less involvement with the tribunal and those with more than 2 years involvement, suggesting that Tribunal tends to "socialize" participants into a shared view of historical evidence. We conclude with a discussion of the potential implications of the survey for creating a shared historical account and promoting reconciliation in the region.
Keywords: International Criminal Tribunal for the Former Yugoslavia, historical evidence, expert witnesses
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