Approaches to the History-Writing Function in International Criminal Adjudication

Abstract

There is still a significant lack of consensus over the proper place of history-writing in international criminal adjudication. Lawyers and practitioners have adopted varying attitudes to history-writing, ranging from restrictive, strict legality approaches to more expansive didactic legality approaches. However, framing the field in such binary—restrictive v. expansive—terms tends to lead to a polarized debate regarding whether international tribunals should write history, a debate that is out of touch with the practice of ICTs. Given the inevitability of history in international criminal adjudication, rather than asking whether judges of ICTs should write historical narratives, a more productive question is: what kinds of historical narratives should they write? This chapter examines the theoretical arguments for strict, moderate and expansive approaches to history-writing. In so doing, it lays the foundations for addressing the question above by exploring the grounds for a more moderate approach to history-writing in international criminal adjudication.