Uneasy Partners -- Evidence, Truth and History in International Trials

Abstract

This article examines the tension between the admission of evidence, the quest for the truth, and the creation of a historical record in international criminal courts. There appears to be no consensus regarding the precise extent either of the ‘truth’ or of the ‘historical record’ that international trials are expected to produce. Yet such trials, in particular major leadership trials, nevertheless have huge potential to help victims and others in the affected region to know the facts of massive crimes, and to contribute to mankind’s collective memory of mass atrocity. Unlike most domestic courts, international criminal courts bear a special responsibility to ensure that their contribution to the collective memory is objective, clear and accessible. Both historians and lawyers can assist. Historians should clarify their understanding of the legal concepts which restrict the scope of material collected and admitted in evidence by international courts, and the application of the ‘beyond reasonable doubt’ test. Some of these concepts, which aim to ensure the fairness of the trial but impede the creation of a full and accurate historical record, are examined in brief. Judges and lawyers, for their part, should ensure that legal documents explaining historically significant events, in particular trial judgments, are accessible to the lay reader.