“A person must have the power and from time to time use it to break a past and to dissolve it, in order to be able to live. He manages to do this by dragging the past before the court of justice, investigating it meticulously, and finally condemning it.”

Friedrich Nietzsche, On the Use and Abuse of History for Life (1873).

Nietzsche’s vision materialized itself in the course of the twentieth century in the ways its author would probably find far too literal. At least since the Nuremberg Tribunal, dubbed “the greatest historical classroom ever,” substantial elements of the past have been “dragged before the court of justice,” and the courtrooms are being growingly perceived as the places to righten the wrongs of the past by addressing historical injustices. The relationship between law and history was conceptualized anew in the emerging literature on transitional justice along the lines of dealing with the bad past via juridical means of influencing the collective memory. However, even decisive supporters of such undertakings like Mark Osiel note its precariousness: “The relation between criminal judgment and historical interpretation is problematic in myriad ways.”^[1] This article assesses some of such tensions that transpired during the activity of the International Criminal Tribunal for the former Yugoslavia (ICTY). It scrutinizes in particular the appearances of professional historians who testified as expert witnesses in the ICTY, therefore tipping the sensitive balance in an entangled relationship of history and law, and adding new elements to the old controversy.

HISTORIANS IN COURT: THE RECURRENT CONTROVERSY

Etymologically, the complex interdependence between history and law as modes of human experience, and historical and legal inquiry as institutionalized social practices, can be traced back to their emergence in Antiquity, as the meaning of the Ancient Greek word …stwr (historian) denoted in different contexts “the one who knows, the expert or the judge.”^[2] This relationship grew much less obvious after the thorough professionalization of both practices in the course of the second half of the nineteenth century. The barriers of institutional webs and constitutive rules of those two types of inquiries into the past led to a recognizable division without much interaction outside of the subfield of legal history. However, events of the twentieth century brought the activities of history writing and justice rendering back together, frequently on a collision course characterized by deep structural misunderstanding. In a strange battle for primacy historians started commenting on legal affairs, which have in turn spread to the fields traditionally explored by history.^[3] This confusing connection is reflected in frequent comparisons between historian and detective, investigator or judge, and is revealing itself in a number of telling utterances, such as “historical trial,” “verdict of history” or “history on trial.”
One of the ways to overcome this cleavage is a stricter division of labor that has led to the historians’ appearance in courtroom in a defined capacity of expert witnesses. Unlike an eyewitness, an expert is called upon on the basis of his professional knowledge about the issues of contention. He offers an opinion based on his knowledge or experience in order to help the fact-finders. This practice, which had its beginnings in the area of medicine, has spread with the emergence of well-defined sciences and with the refining of various forensic methods developed by criminology.^[4] Optimism about the contribution of science to legal proceedings was countered by the fear that the growing reliance on experts might harm the cause of justice. In an ever-expanding domain of expert witnessing, which is routinely marketed in the United States and Great Britain, the recognition of forensic validity has become an issue of prestige for each discipline. Concomitantly, it also became a reason to suspect the bodies of scholarship whose products appeared forensically useless. The introduction of each new expert area led to controversies, particularly in adversarial legal cultures; and it became an unsuspecting playground for methodological inquiry within the sciences going through such transformation. This trend has caused difficulties in positioning the branches of human knowledge whose epistemological insecurities are innate – the humanities, and especially history.^[5] Simultaneously, the number of cases in which historians played a visible expert role has increased – including subject matters as diverse as the property claims of Native Americans, issues of racial discrimination of Afro-Americans, and equal job opportunity cases – while at the same time generating sharp criticism.
If in the United States historians’ expert testimonies tackled issues crucial for social consensus, the scene elsewhere has been even more troubled. In 1961 Professor Salo Baron, one of the founders of Jewish studies in the United States, testified in the Eichmann trial about the European interwar Jewry and the causes and scope of the Nazi annihilation project.^[6] His critic was no other than Hannah Arendt, otherwise Baron’s long-lasting friend. She criticized the trial as a travesty of justice in the service of Israel’s state-building efforts: “For it was history that… stood in the center of the trial… it was bad history and cheap rhetoric.” Four years later, a similar reaction came from Ernst Forsthoff, a legal scholar, in reference to the use made by the German prosecution of written historians’ reports in the Auschwitz trial in Frankfurt. He labeled those contributions, written by researchers from the Institute for Contemporary History in Munich, as a harmful example of “forensic historicism.”^[7] Those two types of criticism, coming from very different disciplinary positions and political stands, unmistakably signaled the controversial character of the practice. The controversy reappeared with even greater vehemence in the context of the revival of memory on the Second World War in the eighties and nineties. Related legal actions (the Barbie, Touvier and Papon case in France; the Zundel trial in Canada; and the Irving-Lipstadt trial in United Kingdom) brought a number of historians to the witness box. The scholarly dialogue on the appropriateness of their role remained polarized between the adversaries and supporters of the practice.^[8] Hence the practice is largely debated as a zero-sum game: historians are either perceived to be appropriate expert witnesses, or not. In such contexts, every attempt of “dragging the past before the court of justice” is bound to provoke a debate.
Such dismissiveness defies the variety of historians’ courtroom appearances which calls for some differentiations. The only proposition in this direction so far has been put forward by Richard Evans who questioned the applicability of a general criticism to the trial he himself was involved in as an expert witness: “Does it apply to other cases in other jurisdictions?” he asked, and he concluded that the trial he participated in “was not a criminal, but a civil action, in which the outcome rested not on proof of guilt, but – as in history – on the establishment of a case on the balance of probabilities.”^[9]
The case Evans was referring to was indeed substantially different, giving way to this and many other differentiations which might further the discussion. Considering that the role of expert witness differs significantly in common law and continental law jurisdictions, and further varies in adversarial and inquisitorial legal systems, it would be advisable to analyze the impact of the legal context on the status of expert testimony of the historian.^[10] Apart from the legal setting, the form and the content of the historian’s contribution is also an element of difference. Is the historian submitting a written report or an oral contribution? What does he testify about? Is he providing the court with fact-finding or context-providing services? Such considerations would shift the debate from a question of whether historians can testify in the court to the more case-sensitive analysis of the circumstances under which they do testify and the outcome they produce, prior to deciding on the scholarly appropriateness and legal relevance of historical expert testimony. As a contribution to such approach, this article assesses the role of historians as expert witnesses in the International Criminal Tribunal for the former Yugoslavia.

ICTY: INTO THE DANGER ZONE

The International Criminal Tribunal for the former Yugoslavia was formed in 1993 in order to prosecute the serious breaches of international humanitarian law that transpired in the region of the former Yugoslavia starting from 1991.^[11] By July 2007 more than 160 persons had been indicted, leading to 51 sentences and many more ongoing proceedings. The evidence exhibited in the course of the Tribunal’s activity have provided indispensable insights into the darkest side of the war in the former Yugoslavia. Expert witnesses played a visible role in this undertaking: out of 3360 witnesses who took the stand at the ICTY by spring 2006, 226 belong to the category of experts. Many of them, including the first witness at the first trial, Professor James Gow in Prosecutor vs. Duško Tadić, were historians or have testified on historical subjects. Historians have delivered many oral testimonies and submitted a number of expert reports, adding greatly to one of the five proclaimed core achievements of the Tribunal: “As the work of the ICTY progresses, important elements of a historical record of the conflicts in the former Yugoslavia in the 1990’s have emerged. Facts once subject to dispute have been established beyond a reasonable doubt by Judgments…. The determination beyond reasonable doubt of certain facts is crucial in combating denial and preventing attempts at revisionism.”^[12]
This optimism is challenged, however, as far as the contribution of expert historians is concerned. Already in Prosecutor vs. Tadić, Professor Gow’s testimony was contested by the expertise delivered for the defense by anthropologist and legal scholar Professor Robert Hayden. Such antagonistic couplets became a trend in the following trials. “Whenever the prosecution has called a historian as an expert witness, the defense has responded in kind,” one of the expert witnesses concluded.^[13] This development has given rise to the public debate over the meaning of this practice, as the courtroom became a battlefield of competing interpretations of the past. The practice is expectedly championed by historians who testified at the tribunal, particularly those called upon by the prosecution. Less enthusiastic are the expert witnesses of the defense.^[14] Meanwhile, war crimes deniers in Serbia and Croatia exploit the courtroom appearance of historians to sustain the claim that the Tribunal is judging the past by putting entire nations on trial, and interpret it as “the pretension of that Court: not just to judge men, but also to judge history.”^[15] Moreover, human rights promoters are divided on the issue as well. Some of them are worried that such practice sinks the proceedings into history, hence blurring the appalling nature of committed crimes.^[16] Yet others find this broader approach indispensable in the wider agenda of facing the past.
The pervasive uneasiness about the role of history and historians in the proceedings is enhanced by a double misunderstanding. On the one hand, historical expert witnessing in the ICTY is treated as an unprecedented event that amounts to legal peculiarity. On the other hand, there is a lack of sensitivity for the true exceptionalities of the ICTY proceedings – hence the surprise over the antagonistic character of the expert reports. By contextualizing the phenomenon back into the wider debate, it is sensible to locate the specificities of the historical expert witnessing at ICTY that do deserve special attention. A number of such points have to be taken into account in order to understand the proliferation of historical expert testimonies and their antagonistic character.
Some of the specificities derive straight from the ICTY’s legal framework. As its full name reveals, the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 is an international judicial body temporally, spatially and substantively limited in its jurisdiction. This international court tries individuals for breaches of international law that were committed in a very specific historical context. Dealing solely with mass crimes committed in the course of the collapse of the former Yugoslavia, the internationally composed panels, with judges from different locations worldwide, needed to be provided with a broader context in which crimes took place. That meant that the experts from the field of “softer” sciences, such as history, would be given prominence. The usual measures of precaution surrounding the expert evidence were largely brushed aside. The judges did not need to perform their traditional gatekeeping duty (preventing the possibly misleading effect of expert testimonies on the jurors), as the ICTY has only bench trials with no jury. The possible misleading effect on the judges themselves was ignored, as the advantage was given to amassing as much evidence as possible. Namely, as an international tribunal, the ICTY could not rely on investigating mechanisms equivalent to the ones at the disposal of the state. In such circumstances, “to adopt strict rules on admissibility of evidence in these circumstances would complicate the task of the Tribunal tremendously when its lack of coercive powers already makes gathering of evidence very difficult.”^[17] Much of the “standard” evidence was compensated for precisely by expert reports and testimonies.
The other relevant feature of ICTY’s legal framework is its mixed legal regime, which combines elements of both common and continental law. For the same reason of overcoming the scarcity of evidence, the rules of procedure lean more towards adversarial then inquisitorial practice, at least as far as the law of evidence, including the issue of expert witnessing, is concerned. Rules of procedure and evidence of the ICTY also influenced the antagonistic character of the testimonies, although they only briefly mention the experts.^[18] It seems that experts can be summoned by the parties, as well as by the judges themselves. However, in the practice that prevailed so far, only parties provided expert reports and witnesses, which corresponds to the adversarial approach, and was set as a substitute for fact-finding difficulties. For historical expert reports (as well as any other such report), the procedure is the following: the party calls upon an expert who then submits the report to the Trial chamber and discloses it to the other side as well. The other party then has the opportunity to challenge the report on the basis of its content or the credibility of its author. The panel, consisting of three judges, decides on the admissibility of the report. In case the report is deemed admissible, and the other party still questions it, the expert is summoned to the courtroom where he testifies about the content of the report and is cross-examined by the opposing party. This was usually the case in the ICTY practice, and took place almost without exception when historical expert testimonies were at stake. The Parties quite regularly challenged each other’s experts and their reports, wrapping their cases into alternative, competing and even mutually exclusive historical interpretations. Therefore, from the very beginning, the ICTY found itself confronted by antagonistic interpretations of the past of the former Yugoslavia.

ANTAGONISTIC COUPLETS AND THE ISSUE OF JURISDICTION

The interplay of the competing historical narratives in the ICTY was probably unavoidable, partly due to the structural setting, and partly because of the sensitivity and complexity of the legal subject, some of which simply went beyond the competencies of the panels of judges. Such was the case with the very first trial, Prosecutor vs. Duško Tadić. The trial commenced in 1995, and was of great importance. Although the accused was a low-ranking member of the Bosnian Serb armed forces, his case was used to determine a number of matters connected to the Tribunal’s jurisdiction and applicable law.^[19] As the ICTY has jurisdiction over breaches of the laws and customs of war, breaches of Geneva Convention, and crimes against humanity, it was necessary to determine if the accused, Duško Tadić, committed crimes that fell into those categories. Therefore, the assessment of the wider context in which the Yugoslav conflict was taking place was needed in order to determine if Tadić’s victims were protected persons under international humanitarian law. For the violations of the laws and customs of war, it was necessary to prove that the crimes occurred in an armed conflict. For the breaches of Geneva Convention, it was necessary to prove that this armed conflict was international. For crimes against humanity it was necessary to prove that the crimes Tadić committed were conducted within the context of a systematic policy of persecution. “This kind of factual assertion is not the standard fare of criminal trials as we know them and would typically be documented by historians and military analysts, rather than by criminal lawyers,” noted Louise Arbour, former Chief Prosecutor of the ICTY.^[20]
And this is exactly what happened. Both prosecution and defense opened their cases by putting social scientists on the stand as expert witnesses. Their goal was to argue for a specific view of the nature of the conflict, and the level of involvement of Serbia in different regions and different phases of the war in Bosnia. Both experts, Dr. James Gow of the Department of War Studies of Kings College (the prosecution’s witness), and Dr. Robert M. Hayden from the University of Pittsburgh (the defense’s witness), approached the problem from a historical perspective. The exposй of the prosecution’s expert was set to prove the international character of the conflict, i.e., the involvement of Serbian armed forces in the war in Bosnia at the time of the Tadić’s crimes. For the prosecution’s expert, Bosnian Serb forces were merely the agents of the rump Yugoslavia (Serbia and Montenegro). Gow based his testimony on the analysis of military operations in Bosnia in 1992, and its connections between the troops of Bosnian Serbs with plans and instigations from Belgrade, which gave the conflict an international outlook. The defense’s expert witness held the view that the conflict in Bosnia was predominantly an internal one, arguing that the lines of division from the rubble of Yugoslavia went along ethnic lines rather than along the lines of the borders of constitutive republics.^[21] He was asserting that it was the Bosnian Serbs, organized through the Army of Republika Srpska, who were the side in the conflict.
Although the facts of the case were situated in 1992 in the region of Western Bosnia, it seemed that the historical overview of the collapse of Yugoslavia was necessary in order to put the events at stake into perspective. However, the experts provided the court with two rather exclusive interpretations of the collapse of Yugoslavia. While Gow emphasized the blow delivered to the federation by the policies of Serbia in the late eighties and early nineties, Hayden insisted on the decisive role of the policy of Slovenia and Croatia in 1990. He stated that the war in Bosnia was caused by the break up of Yugoslavia along the lines of ethnic constitutionalism, which inevitably led to the break up of Bosnia along the same lines, and therefore emphasized internal aspects. These lines of argumentation were in need of further excursus into the deeper constitutional history of socialist Yugoslavia; and to little surprise, both testimonies were rooted in an analysis of the 1974 Yugoslav constitution, and its deficiencies and ultimate disfunctionality. Much of their complicated assertions were based on linguistic interpretations of this long, complicated document.^[22] Occasionally, the reports as well as the testimonies revisited even earlier periods of the history of Yugoslavia and the Balkans.
It seems that the panel of judges did not actually benefit particularly from the historical excursus. Testimonies given by experts were admitted, and some of their findings entered the judgement: “Expert witnesses called both by the prosecution and by the defense testified in regard to the historical and geographic background and such evidence was seldom in conflict; in those rare cases where there has been some conflict the Trial Chamber has sought to resolve it by adopting appropriately neutral language. It is exclusively upon the evidence presented before this Trial Chamber that this background relies, and no reference has been made to other sources or to material not led in evidence.”^[23] Consequently, a considerable part of the judgement (20 out of around 300 pages) contained an overview of Bosnian history from the Middle Ages until the dissolution of Yugoslavia, including passages such as the following, adopted from the Gow’s report: “for more than 400 years Bosnia and Herzegovina was part of the Ottoman Empire. Its western and northern borders formed the boundary with the Austro-Hungarian Empire or its predecessors; a military frontier along that boundary was established as early as the sixteenth century to protect the Hapsburg lands from the Ottoman Turks.”^[24] The relevance of such findings for the case at stake could hardly be justified.
The troubles the judges had in making sense of the arguments provided by the experts were also obvious in the bumpy road towards the final judgment of Duško Tadić. The Trial Chamber (the panel of judges in the first instance) acquitted Tadić of the charges based on breaching the Geneva convention. They asserted that, although the conflict itself had an international aspect, the time, place and context of Tadić criminal actions does not suggest that he and the armed forces he belonged to were acting as agents of the government of Serbia and Montenegro. This decision of the Trial chamber from 1997 was reverted two years later by the Appeal Chamber, and he was found guilty on those counts as well.^[25] The judgment did not influence his sentence (he was sentenced to 20 years imprisonment by both Trial and the Appeal Chamber), but it has decisively changed the view of the Tribunal on the character of the war in Bosnia and entire former Yugoslavia.
If the adversarial system, in which the expert plays the role of an advocate of the party rather than adviser to the court, did not provide much assistance to the two chambers, it definitely made a significant impact beyond the ICTY. Defined roles of expert witnesses were both echoing and furthering the polarization among scholars researching the field. The courtroom became a podium for scholarly debate, much of which was continued afterwards in scholarly journals.^[26] It might seem that no intrinsic problem was involved, since both sides had been heard, enabling the court to make sense out of their interpretations. However, the impression spread that besides punishing individual perpetrators, the ICTY strove for a settlement of historical facts, and this assumption was confronted by local reactions in the form of expert reports.

NATIONALIZING THE ANTAGONISTIC COUPLETS: INTERNATIONAL VS. NATIONAL

The initial antagonistic cleavage was furthered in the cases that came afterward, and led to even more irreconcilable interplay between international and national historical narratives. As the first international tribunal since the Nuremberg, the ICTY has gradually assumed a number of important roles. As listed by the Tribunal itself, among its core achievements one can find it “spearheading the shift from impunity to accountability, establishing the facts, bringing justice to thousands of victims and giving them a voice, the accomplishments in international law and strengthening the rule of law.”^[27] Some of those accomplishments were immediately connected to the cases at stake, while others were a matter of upholding the universal legal standards as embodied in international law. It was particularly the mission of the Office of the Prosecutor to charge the individuals in the name of the “mankind.”
However, the sense of a “higher purpose” also became apparent in the strategies of defendants. In a number of cases, the accused persons were not defending themselves solely in their individual capacity. Many of them were defending the policies of their states, or at least attempting to avoid responsibility by legitimizing those policies. Concomitantly, respective states often offered indirect support to the defendants. Therefore, although the court was primarily concerned about the conduct of the accused in the course of war, the issue of context, or how the war came into existence, kept returning as the important issue of contention. History proved to be a fruitful playground for such an exercise. This implied the exchange of mutually incompatible historical interpretations submitted by experts originating from different academic traditions.^[28] The prosecutors found their experts in Western academia among specialists of Yugoslavia or the Balkans, while the defense opted for scholars from the region.
The antagonistic pattern set by the Hayden-Gow encounter therefore continued, further aggravated by additional polarization along the lines of universalism and particularism. This trend grew even more obvious as the pace of the investigations led up the chain of command, indicting wartime commanders and politicians. The indictments were more ambitious, making more of the concepts of command responsibility and joint criminal venture, resulting in more complex cases that were in need of contextualization in a larger frame. For instance, a number of cases that investigated crimes which occurred in the course of the Croatian armed involvement in Bosnia and Hercegovina (Prosecutor vs. Tihomir Blaškić, Prosecutor vs. Naletilić and Martinović, Prosecutor vs. Dario Kordić and Mario Čerkez) triggered a series of expert testimonies delivered by sociologists and historians (Robert Donia, professor of Balkan history at University of Michigan; and John Allcock, professor of sociology at the University of Bradford for the prosecution; professor of sociology at Texas A&M University Stjepan Meštrovi; Academician Dušan Bilandžić, professor at University of Zagreb; and Mladen Ančić, history professor form University of Zagreb for the defense).^[29] The content of those testimonies shifted significantly from the events in the 1990’s to the greater history of Bosnia and Herzegovina.
This tendency culminated in the case against Slobodan Milošević, the first head of state to stand trial before an international court for the crimes that transpired during his reign. His trial would be a particular object of scrutiny, as according to Sabrina Ramet, the trial “serves to write (or rewrite) the history of the War of Yugoslav Succession (1991-1995) and the War for Kosovo (1998-99).… It is also a drama, over which Milošević and prosecutors… are competing for the right to compose the script.”^[30] The prosecution’s opening statement made firm distinctions between the tasks of lawyers and historians, but also emphasized the importance of the historical context:

“This trial… will not be making findings as to history. Matters of history always leave scope for argument, for doubt between historians. But history, even distant history sometimes available to this Court through the witnesses, will have a relevance from time to time in showing what the accused thought, what those identified in indictments as his co-perpetrators thought, what his compliant supporters thought, and what was available in history to fire up the emotions, particularly nationalist emotions, however little this particular accused might personally and genuinely have held those nationalist views.”^[31]

Milošević seized the opportunity given to him by the prior practice of the ICTY, and was set to base as much of his defense as possible on historical arguments. “There are true historical facts that speak of all of this, and it is nonsensical to accuse the wrong side…. Scholars will be coming here, academicians, if they dare come,” he claimed.^[32] Along those lines, he proposed an impressive list of experts, historians and others. Some of these witnesses submitted reports that were deemed inadmissible, the others were admitted.^[33] Eventually, historical testimonies were delivered for the prosecution by Audrey Budding from the Harvard Academy for International and Area Studies, and Robert Donia, professor of history at the University of Michigan. For the defense, the testimonies were delivered by Čedomir Popov, a retired professor from the University of Novi Sad, and Slavenko Terzić, director of the Historical Institute of the Serbian Academy of Arts and Sciences.^[34]
From the point of view of the collision between international and national historical interpretations, the contributions of Audrey Budding and Čedomir Popov are absolutely paradigmatic and worthy of detailed elaboration. Budding defended her dissertation entitled “Serb Intellectuals and the National Question” in 1998. She was invited by the Office of the Prosecutor to write an expert report, entitled “Serbian Nationalism in the Twentieth Century: Historical Background and Context.” After some hesitance, she was put on the stand: “The prosecution initially called on Budding to be an expert witness in the hope that she would provide the historical context and help the trial chamber understand the circumstances in which Milosevic initiated his deadly reign over Yugoslavia. It subsequently tried to strike Budding from the list of appearances because it is working under severe time constraints and has had to limit the number of witnesses it would like to question. The trial chamber, however, apparently wanted more historical context and specifically asked the prosecution to question Budding,” observed Emir Suljagić.^[35]
Her testimony came under pressure in the course of the cross-examination performed by Milošević. Namely, both the bulk of Budding’s testimony and her report were concerned in particular with the second half of the twentieth century, and especially with the 1980’s. However, since in her report she gave an overview of Serbian intellectual history of nineteenth century, it provided the defense with a possibility to pose questions about that period. This was an occasion of very strange exchanges in which Milosevic relied substantially for some of the reoccurring debates about the applicability of the scholarly research in the courtroom36:

“MILOSEVIC: This report that you produced here was prepared by you as commissioned by the side opposite. Is that true? And I suppose that your doctoral thesis was the result of your free and independent scholarly choice; correct?
BUDDING: Yes.
MILOSEVIC: Just one general question that I will come back to in the course of my cross-examination. Are you aware of the differences between your report, the one you prepared for these purposes here and your doctoral thesis, although both deal with the identical topic, the Serb national question?
BUDDING: Certainly in many ways they deal with the same subject matter, and as I state in the report, parts of – substantial parts of the report are adapted from my dissertation. Although they obviously serve different purposes, I, to the best of my ability in both of them follow the same standards of scholarly objectivity.
MILOSEVIC: All right. But I hope we can agree that the purpose of developing a scholarly paper cannot jeopardize the standards of scientific objectivity and change the opinion of the same author, depending on the purpose?
BUDDING: I cannot... enter into a theoretical discussion of that point, but I can state that in the preparation of my report, which I viewed as a piece of scholarly work, that I did my very best to present matters objectively and on the basis of available evidence.
MILOSEVIC: Yes, but if we stencil one situation from one century onto another century, do you as a historian believe that this amounts to one of the gravest methodological mistakes in – for an historian?
JUDGE MAY: What do you mean?
MILOSEVIC: Well, precisely what I said, Mr. May.
JUDGE MAY: No, it’s not clear. I don’t follow. What do you mean?
MILOSEVIC: The copying of a historical situation from the end of the twentieth century onto the first half of the nineteenth century, does it amount to the phenomenon of copying, a stencilling of a situation? So I’m asking Ms. Budding is it considered to be one of the gravest methodological mistakes in the science of history?
JUDGE MAY: It seems to be absolute nonsense what you’re saying. Would you give us – and explain what you mean by concrete terms. What are you saying that this historian has done which you describe as a grave methodological mistake? What is the mistake, so that we can follow it?”

The other exchanges were based on the questioning of different methodological approaches in historiography and their courtroom applicability, to the dismay of judges:

“MILOSEVIC: Well, I said that the mistake consists in projecting a historical situation from the –
JUDGE MAY: Stop there. Which historical situation are you talking about?
MILOSEVIC: I said as an example, Mr. May, that the historian blames Serbian nationalists for using Garasanin’s Nacertanije, as she writes in her report, from the Second World War, claiming Muslims, Montenegrins as Serbs or blaming Vuk Karadzic for counting as Serbs everyone who uses the Stokavian dialect. That is a projection of a historical situation onto another period which amounts to the gravest methodological mistake in the science of history. If you don’t understand this, I have to move on to my next question.
JUDGE MAY: No, because it’s rubbish. I don’t know what you’re talking about. If you don’t make the question clear, the witness can’t possibly answer it. I mean, are you saying that – is this the point: That historians or people at this period are using Vuk Karadzic, for instance, as an example of Serbian nationalism? Are you saying it has no relevance now? What are you saying?
MILOSEVIC: I want to say that the projection of one historical situation from the end of one century to the first half of another century is a methodological mistake in the science of history, and I’m asking an historian about it, she who knows –
JUDGE MAY: Let’s try and make sense of this, Dr. Budding. Can you use, I suppose a simpler way of putting it is, can you use a situation that occurred, say, in the nineteenth century when dealing with a situation, say, at the end of the twentieth century? Is it possible to draw parallels between the two, and is it an error if you do?
BUDDING: I think that in certain instances it can be valid to draw parallels between different historical eras. I think that such parallels should always be made very specifically, but I don’t understand what use Mr. Milosevic believes I am making of the Nacertanije in my report.”^[36]

The core of the testimony of Milošević’s expert witness, Popov, was also dedicated to the refutation of Budding’s report. His testimony shows the endless resources which the historical method of contextualization might offer for the purposes of defense. Popov disqualified Budding in very harsh words, calling her report pseudoscientific. He questioned her methods on the basis of lack of archival research:

“I have a complete opposing view to Ms. Budding, because I consider that the events that started in 1962 and 1963 and culminated in 1966 were the beginnings of the disintegration of the Yugoslav state. And I’m very sorry that Ms. Budding, who had previously written a very good doctoral thesis, sees a process of a state’s disintegration which led to the disbanding of the state, and that she says this – she calls this a process of democratization…. As I was saying, this impression that Ms. Budding has gained is not based on archival research, and I conducted research in the archives and reconstructed in detail when, in what way, and with what political goals in mind the process of decentralization began or, rather, the destruction of the Yugoslav state, and ultimately this is what was borne out by the 1990s. The start of the country’s decentralization began in 1966.”^[37]

Popov further questioned Budding’s theoretical approach, discarding it as presentism and opposing it to his own views embedded in historicism:

“I don’t know whether Ms. Budding is a member of the academy, perhaps she is, but her writings are a confusion, in fact, because she is mixing up certain medieval criteria and historical criteria from the 19th century and 21st century criteria. And it is a basic rule, or one of the basic rules of historical methodology as formulated by Dukaj [sic, probably Dilthey], the philosopher of history, whereby every historical appearance must be looked at from the context of its own times and not from our times, because we make different judgements based on our times when we know some of the consequences of those phenomena, but they must be explained on the basis of the contemporary times. So the historian must try to relive those times, and I feel that that is lacking with Ms. Budding, and I think that that is the basic shortcoming of her work submitted to this Tribunal, because she makes a judgement of Garasanin’s Nacertanije or design or plan, or Sardusin’s [phoen] writings form the aspects of the 20th century and the process of globalization, which is an ongoing one at present.”^[38]

The clash between Budding’s and Popov’s interpretation of Serbia’s nineteenth and twentieth century history was probably the courtroom’s historical witnessing at its worst. As an exchange of interpretations on subjects far-removed from the case between the protagonists (who are simply not functioning in the same epistemological regime), it indicates some of the cleavages in the key concepts which are, mutatis mutandis, likely to appear in the narratives produced by experts called upon by the prosecution and defense:
The table is approximated, as even within a single legal framework provided by the ICTY, it is difficult to draw generalized conclusions about the nature and meaning of all the historical testimonies; but it proves more applicable the further the content of the testimonies becomes from the subject matter of the trials. It also points to the crucial problem with historical testimonies. In the absence of even the smallest elementary philosophical common ground, an exchange of historical testimonies amounts to the clash of international and national interpretations of the past. This clash further resonates greatly with one of the core sources of uneasiness on the human rights agenda – the cleavage between universalism and particularism.^[39] Although in the courtroom this rupture is resolved in favor of standards provided by international criminal law, it still remains questionable whether such resolution has a lasting impact in the region of the former Yugoslavia or not.

TOWARDS THE INTERIORIZATION OF THE TRIBUNAL’S ACTIVITY

In the light of the described tension inherent to historical expert witnessing, it is worth asking if its proliferation contributed to the overall goals of the ICTY. The contribution of the ICTY in composing historical narratives was assessed positively by Richard Wilson, who argued that the international perspective taken by the court has helped overcome the parochial character of the imperative of consolidating the national narratives so frequently pursued by national judiciaries.^[40] Equally enthusiastic was Robert Donia: “The Tribunal is gradually fulfilling one of its major tasks in providing to mankind an empirically verifiable account of what transpired amidst the horrors of war in the former Yugoslavia.”^[41] His statement precisely tackles the crux of the matter. The record created by the ICTY is supposed to provide an account to mankind. To invert Hegel’s famous understanding of Weltgeschichte als Weltgericht, this time the world’s court is acting as world’s history.
There are, however, other histories. It is rather uncertain to what extent the historical account provided inscribes its universal message back onto the region of the former Yugoslavia. Iavor Rangelov concluded that “politics and public debate in Serbia are torn between two competing conceptions of ‘dealing with the past’: international criminal law with its liberal insistence on individual criminal responsibility, and local nationalism defined in terms of group ethnicity and collective victimization.”^[42] This cleavage, described by Mark Osiel as the conflict between Vernacular Memory and the Official Story, became even stronger considering that the proponents of a vernacular version of history still rely on powerful vehicles for promoting it, including state controlled media. Subsequently, they can still count on the fact that their version will resonate significantly with their audience, as it will better reflect local stereotypes and remnants of wartime propaganda. The trials are a first rate media event, and there is reason to believe that the historians’ testimonies attract a lot of attention. The viewers are naturally inclined to agree with whichever participant in the proceedings that is telling “their story”; this is particularly unhelpful with a view to the interiorization of the achievements of the Tribunal, and it boosts the denial of mass crimes.
Naturally, the Tribunal is neither devised nor expected to counter those pressures: “It might be sufficient to say that even the most perfectly designed tribunal would be unable to change the popular understanding of recent history. The main actors in this process must come from inside,” notes Eric Gordy.^[43] Still, in the light of the issue of interiorization of Tribunal’s activity, it is appropriate to ask if historians are useful carriers of that purpose. The practice of putting historians on stand is considered quite controversial in far more stable legal environments. Measures of limitation and precaution against the abuse of expert testimony are a matter of common procedure in national legal systems, and usually keep historians out of the courtroom, although the worldwide shift towards legal reading of the past has induced broader usage of historians as expert witnesses. However, the international character of the Tribunal adds a novel controversy to all of the already mentioned problems with historical testimonies. Adversarialism combined with flexibility in admission of evidences proved to be a perilous path. This lenience was justified with the absence of a jury. However, if there is no jury in the ICTY, there is certainly an audience – and a very interested one – both on the global and local level. Disagreements between historians are enlarging the gap between sides, particularly as they frequently revolve around subjects that are extremely difficult to settle on a factual level. In the absence of an authoritative global community of historians, many of whom are still largely aggregated and operating within the framework of national historiographies, the multitude of interpretations is likely to persist. The clashes of frequently irreconcilable visions of the past displayed by the experts therefore pose a challenge that will most probably persist in the activity of the International Criminal Court as well, demonstrating that it is easier to establish an international court than to write a world history.