The Role of International Tribunals in the Development of Historical Narratives
Journal of History of International Law, Forthcoming
Hebrew University of Jerusalem International Law Forum Working Series 03-18
33 Pages Posted: 2 Mar 2018 Last revised: 27 Mar 2018
Date Written: February 21, 2018
Collective memories are significant for both individuals and societies, as they play an important role in the construction of collective identities. This article focuses on the role of non-criminal international tribunals in the development of collective memories, asking whether it is desirable for such international tribunals to be involved in the construction of historical narratives. International tribunals have not adopted a consistent approach concerning the presentation of the case’s historical background in their judgments. The question of whether it is desirable for non-criminal tribunals to assume an active role in this sphere is analysed using three major sociological perspectives: the structural-functional approach, the symbolic-interactionist perspective, and the social conflict approach.
The conclusions of this article emphasize that international adjudicators are embedded in socio-historical environments and are influenced by historical narratives prevailing their respective groups (regardless of whether they present an historical narrative or not). International tribunals interact with additional agents of memory (e.g., governmental bodies and the mass media); and though they are more constrained than other agents of memory (e.g., regarding evidentiary rules), they do hold some significant advantages in this sphere. Each agent of memory possesses some advantages and limits and they often cross-fertilize each other. Where reasonable available evidence permits, international tribunals (and particularly regional ones) may legitimately play a role in the construction of historical narratives. The participation of international tribunals in this sphere is particularly vital where national judicial or semi-judicial bodies deliberately conceal a significant historical event generating extensive harm to a disadvantaged group. In such cases, it is desirable that international tribunals undertake an inclusive approach and make reasonable efforts to take into account historical findings produced by other agents of memory (such as historians and experts), while acknowledging the possible bias of each actor. Informed by the symbolic-interactionist approach, we are of the view that judicial-historical narratives are important not only for the social integration of a particular group; but mainly as a meaningful remedy for individuals and smaller communities whose rights have been violated. In light of the valuable socio-cultural qualities of local institutions in this sphere, it is generally legitimate for regional tribunals (rather than global ones) to take an active part in the development of regional historical heritage; particularly where such judicial-historical pronouncements are significant for small communities or individuals who suffered a violation of their legal rights. The benefits of constructing collective memories in a bottom-up process indicate that where national tribunals (or local quasi-judicial bodies) function effectively and reliably, international tribunals should generally refrain from interfering with the development of local historical narratives. Where international tribunals encounter considerable asymmetric settings, it is desirable to apply adequate rules of evidence to mitigate the parties' unbalanced capacities in proving historical events.
Keywords: international tribunals, historical narratives, social theory, international law, collective memory, sociology
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