History in international criminal trials: The 'crime-driven lens' and its blind spots

Abstract

While the question of whether international criminal courts and tribunals (ICTs) ought to write historical narratives of armed conflicts is an old one, it has gained renewed relevance in the context of the recent turn to history in international criminal law and the minimal attention paid to historical context in the first judgment of the International Criminal Court. The 'proper' place of history-writing in international criminal adjudication remains controversial, and even though some judges have preferred to de-emphasize it, the fact remains that ICTs are epistemic engines, systematically and inevitably producing knowledge about the conflicts that come before them. This article develops a framework for analysing the historical knowledge generated by ICTs, namely, the 'crime-driven lens'. It argues that this lens is characterized by two important constraints, one qualitative, relating to interpretation and the other quantitative, relating to scope, both of which may give rise to blind spots. In the final analysis, while the important contributions of ICTs to deepening understanding of the histories of armed conflicts should not be underestimated, the constraints of the 'crime-driven lens' and its blind spots have to be taken into account when assessing their historical legacies.