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Historians As Expert Witnesses in the Age Of HISTORIANS AS EXPERT WITNESSES IN THE AGE OF EXTREMES Vladimir Petrović A DISSERTATION in History Presented to the Faculties of the Central European University in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy Budapest, 2009 Supervisor of the Dissertation Ph.D. Director CEU eTD Collection _________________________ ________________________ Copyright notice Copyright in the text of this dissertation rests with the Author. Copies by any process, either in full or in part, may be made only in accordance with the instructions given by the Author and lodged in the Central European Library. Details may be obtained from the librarian. This page must form a part of any such copies made. Further copies made in accordance with such instructions may not be made without the written permission of the Author. I hereby declare that this dissertation contains no materials accepted for any other degrees in any other institutions and no materials previously written and/or published by another person unless otherwise noted. CEU eTD Collection Abstract The thesis Historians as Expert Witnesses in the Age of Extremes aims to contribute to the understanding of the role of historical expertise in diverse legal contexts of the 20th century. The thesis argues that current discussions on the topic are both burdened by a holistic approach and confined in particularized national and topical frames. Hence they barely grasp effectively the variety of manifestations of historians’ courtroom performance, its connection towards the role of the experts in other branches of scholarship and the specific aspects of (in)compatibilities generated by the tangled relation between history and law. In order to contribute to the refocusing of the debate, on the basis of representative clusters of cases, the thesis aspires to reconfigure the field by replacing current perceptions of the practice with nuanced differentiations between the diversity of historical expertise during the course of the age of extremes. To that end, it searches for epistemological and genealogical preconditions of historians’ appearance in the courtroom and scrutinizes the institutionalization of the practice in different jurisdictions in the postwar period. Dominant paradigms of institutionalized historical expert witnessing are examined, as well as problematizatons surrounding their amalgamation. The complexities of contemporary historical expertise are further explored through examples which evade the debated paradigms by transgressing the boundaries of particular legal systems and pose the questions of universal relevance both to lawyers and CEU eTD Collection historians in the process of the internationalization of historical expert witnessing. iii Table of Contents Introduction……………………………………………………………….1 The Topic and the Debate Interpretative Framework and Literature Research Design and Sources Chapter One Preconditions……………………………………………...…………………..39 1.1 The Path toward Forensic Historiography………………………………………….39 1.1.1 Transformations of Expert Evidence: Who Guards the Guardians? 1.1.2 Varieties of Contemporary Expert Witnessing 1.1.3 Historians in Court: From Dreyfus to Friedjung 1.1.4 Theorizing Incompatibility of History and Law 1.2 The Great Shift: The Concept of Universal Human Rights…………………….…..74 1.2.1 Dragging the Past before the Court of Justice 1.2.2 Legal Reckoning with the Second World War 1.2.3 History on Trial: Nuremberg 1.2.4 The Impact of Nuremberg on the Relation between History and Law Chapter Two Institutionalizations……………………………………………………...…..109 2.1 Inquisitorial Paradigm: Historical Expert Witnessing in the Shadow of Nazism....109 2.1.1 Historiography after Nuremberg 2.1.2 The Eichmann Case 2.1.3 The Frankfurt Auschwitz Trial 2.1.4 Historical Expert Witnessing from Authentication to Contextualization and Beyond 2.2 Adversarial Paradigm: Historical Expert Witnessing in the Shadow of Racism….142 CEU eTD Collection 2.2.1 Racism in the USA as Legal and Historical Problem 2.2.2 Solving “an American Dilemma”: Social Scientists in Brown v. Board of Education 2.2.3 Historians and the Analysis of Original Intent 2.2.4 Historical Expert Witnessing from the Antechamber to the Legal Arena and Beyond iv Chapter Three Problematizations…………………………..………………….………..176 3.1 Historical Expert Witnessing in Antidiscrimination Cases in the USA……….….176 3.1.1 Voting Rights Cases 3.1.2 Indigenous People’s Land Claims 3.1.3 From Race to Gender: Sears v. EEOC and Beyond 3.1.4 Debating the Purpose of Historical Expert Witnessing in the USA 3.2 Historical Expert Witnessing in Settling Europe’s Bad Past………………….…..211 3.2.1 Legal Dealing with the Past in postwar France 3.2.2 Historical Expertise in France 3.2.3 Legal Dealing with the Past in postwar Yugoslavia 3.2.4 Historical Expertise in the former Yugoslavia Chapter Four Internationalizations………………………………………………….....246 4.1 Historical Expert Witnessing in Legal Limits of Past Interpretations…….………..246 4.1.1 Historical Revisionism between Nonconformism and Denial 4.1.2 The Long Arm of the State(s): Defining Revisionism Legally 4.1.3 Historians as Accusers, Accused and Experts in Defamation Cases 4.1.4 The Court Speaks: Over the Edge of the Academic Discourse 4.2 Historical Expert Witnessing in the Global Rendering of Justice……………….....279 4.2.1 Writing Global History and Rendering Global Justice in the Age of Extremes 4.2.2 Locating the International Criminal Tribunal for the Former Yugoslavia 4.2.3 Historical Expert Witnessing in Antagonistic Couples 4.2.4 Local Interiorization of Global Legal Activity Conclusion………………………………………………………………………..……315 Sources………………………………………………………………………....………330 Literature………………………………………………………………………....…….351 CEU eTD Collection v Introduction Could historians perform the role of expert witnesses in legal proceedings? And should they? The issue is passionately discussed both within legal and historical scholarship. From the very beginnings, courtroom appearances by historians were triggering heated, albeit disconnected debates. Quick and decisive responses, affirmative as well as dismissive, were offered and elaborated with unusually dramatic wording, revealing the stakes and the level of urgency. Surprisingly enough, otherwise bitterly opposed protagonists mostly agree in treating the practice as a zero-sum issue: historians are usually either perceived as useful expert witnesses, or not. The persistence of such a counter-intuitive digital divide calls for scrutiny, as it defies the varieties of historians’ courtroom performance over the century. The practice of historical expert witnessing needs to be treated neither as synthetic reunion, nor an irreparable clash, but as a sensitive junction of disciplines. As the question of whether historians can testify has already been answered by the judges, and the question of whether they should remains for individual practitioners to decide, this thesis aims to create the conditions necessary for grasping the range of historians’ contributions to the rendering of justice. In doing so, it follows less belligerent, but no less interesting lines of questioning (such as since when which historians testify, what they say, under what conditions and with what result), in an CEU eTD Collection overall effort to refocus the debate from the twofold confinement of the parochial and holistic approaches towards a more nuanced understanding of the phenomenon of a “forensic historian” and his shifting role in the 20th century. 1 The Topic and the Debate “The first, but perhaps least appreciated fact about historians as expert witnesses is how often they assume the role. Although colleagues and even litigators presume that historians rarely enter the courtroom, in fact it has been a common occurrence for some fifty years” observes David J.Rothman, himself a historian of medicine and an expert witness in a number of trials.1 Yet each and every manifestation of historical expert witnessing is still bound to provoke an outrage, either within the community of historians, or among the jurists, or both. Despite a respectable number of precedents, the practice never fully achieved legitimization. The more sensitive the topic, the more controversial was the debate, as noted by Erich Haberer: “Particularly controversial, and often poorly understood, is the role of historians in the trials of National Socialist perpetrators of genocide.”2 The issue was consequently critically addressed both from the camp of historians and legal scholars. As early as 1964, the practice was furiously written off by German legal scholar Ernst Forsthoff, who treated the advent of historical experts in the courtroom as a harmful example of “forensischen Historismus.”3 On the other side of the Atlantic, similar voices could be heard, their dramatic thrust expressed well in the title of Reuel Schiller’s recent article The Strawhorsemen of the Apocalypse: Relativism and the Historian as Expert Witness. CEU eTD Collection 1 David J.Rothman, “Serving Clio and the Client: The Historian as Expert Witness”, Bulletin of the History of Medicine 77 (2003): 25. 2 Erich Haberer, “History and Justice: Paradigms of the prosecution of Nazi crimes”, Holocaust and Genocide Studies 19 (2005): 487-8. 3 Ernst Forsthoff, "Der Zeithistoriker als gerichtlicher Sachverständiger", Neue Juristische Wochenschrift 13 (1965): 574–75. 2 Nonetheless, in the last century, historians participated in a number of prominent legal ventures tackled by this dissertation (the Dreyfus affair, Kreigsschuldfrage, Brown vs. Board
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