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______Supervisor of the Dissertation Presented to the Faculties of the Central European University inPartialFulfillment of the HISTORIANS AS EXPERT WITNESSES WITNESSES EXPERT AS HISTORIANS RequirementsDoctor for of the Degree Philos IN AGE THE EXTREMESOF

Budapest, 2009 A DISSERTATION A DISSERTATION Vladimir Petrović

History in

______DirectorPh.D. ophy

CEU eTD Collection another unlessotherwise person noted. and nomaterials previouslywritte degrees institutions any in other for dissertation contains I nomaterialsanythat this other accepted Author. hereby declare wri the without made maybe not instructions accordance such with copies copiesm Further made. any formsuch of a part librarian. must page This Library. themayfromthe Centralbe Author the andEuropeanobtained Details lodged in either or full in in part, may be made only accordance in the with instructions given by dissertation rests ofthe with Author. this byCopyright Copies the in text any process, Copyright notice

n and/or published by by published n and/or tten ofpermission the ade in in ade CEU eTD Collection relation between history and lawrelation between history tangled by the generated (in)compatibilities of aspects specific the and scholarship of cour histori of role of the understanding contribute the to of basis the of the 20 historians in theof in processhistorians the internationalization particular legal systems and of boundaries the evade bytransgressing the debated paradigms whichthroughexamples amalgamation witnessi expert jurisdictions in thethe institutionalization courtroom and scrutinizes for searches replacing frames burdened approacha holistic and by diversity of historical expertiseduring of the age extremes. the course of troom performance, its connection performance,troom its . H The thesis Historians as ExpertWitnesses thesis The the in Age of Extremes

th ence ence current perception current

re on the topic are both topic are both onthe current discussions that argues thesis The century. epistemological and genealogical preconditions genealogical and epistemological . The complexities of complexities . The presentative clusters of cases, of clusters presentative

they they ng are examined, as well as problematizatons as well as examined, are ng the postwar of period. institutionalizeddigms Dominantpara barely

grasp effectively the v the effectively grasp pose theof questions universal lawyersto relevance and both s

s nuancedwith differentiation of the practice the debate, the the to refocusing of Incontribute orderto . further explored explored further are expertise historical contemporary branches towards the role of thein experts other branches national and topical particularizedandin confined topical national A bstract

the thesis aspires to reconfi to aspires thesis the

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Institutionalizations Chapter Preconditions……………………………………………...…………………..39 Chapter One Introduction

Content of Table Historical2.2 AdversarialExpe Paradigm: Inquisitorial2.1 HistoricalWitnessing.109 Expert ... Paradigm: the in Shadow of The1.2 The Concept Great Shift: of Uni 1.1 The toward Path

Two

2.2.3 Historians and the Analysis of Original Intent 2.2.2 Solving America “an the USA2.2.1 Racism as the Legal in and Historical Problem 2.1.1 after Nuremberg Research Design and Sources Interpretative Framework andLiterature The andTopic the Debate 2.1.2 1.2.4 ImpactThe of Nuremberg onthe Relation between History Law and 1.2.3 History onTrial: Nuremberg 1.2.2 Legal Reckoning Second with the World War J of Court Past the before the 1.2.1 Dragging 1.1.1 2.2.4 Historical Expert Witnessing from Antechamber the theto Legal Arena and Beyond 2.1.4 Historical Expert Witnessing from Authentication to Contextualization 2.1.3 FrankfurtThe Auschwitz Trial 1.1.3 Historians in Court: From Friedjung Dreyfus to 1.1.2 1.1.4 ………………… The EichmannThe C Transfo Varieties of Contemporary Expert Witnessing Theorizing Incompatibility History of Law and

……………………………………………………...…..109 rmations of Expert Evidence of rmations Forensic Historiography s

ase …………………………………………….1

n Dilemma”: Social Scientists in Brown v.

versal Human Rights

rt Witnessing Racism….142 the in Shadow of

………………………………………….39 :

Who GuardsWho the Guardians? ustice

…………………….…..74

Board of Board Education

and Beyondand iv

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3.1 Historical Expert Witnessing inAntidiscrimination Cases Problematizations Three Chapter Literature Sources Conclusion 4.2 Historical Expert Witnessing in 4.1 Historical Expert Internationalizations…………………… Chapter Four 3.2 HistoricalWitnessing Expert Settling in Europe’sBad Past………………….…..211

4.2.1 Writing Global History 4.1.1 Nonconformism between De and 3.2.4 Historical Expertise in the former Yugoslavia 3.2.3 Legal Dealing with the Past in postwar Yugoslavia 3.2.2 H 3.2.1 Legal Dealing with the Past in postwar 3.1.4 Debating Purpose the Historicalof Expert 3.1.3 From Race Gender:to Sears v. EEOC andBeyond 3.1.2 Indigenous LandClaims People’s 3.1.1 4.1.3 Historians as Accusers, Accused and Experts in Defamation Cases 4.1.2 4.2.4 Local Interiorization of Global Legal Activity 4.2.3 Historical Expert Witnessing inAntagonistic Co 4.2.2 Locating International the Criminal Tribunal for the Former Yugoslavia 4.1.4 ………………………………………………………………………....………330 ………………………………………………………………………....…….351 ………………………………………………………………………..……315 The LongThe Arm ofthe State(s): Defining Revisionism Legally Voting Rights Cases The CourtThe Speaks: Over Edge the of the Academic Discourse

istorical Expertise in France WitnessingLegalLimits in Past of …………………………..………………

and Rendering and Global Justice the Glo

bal Justice Rendering of

………………… Witnessing USA in the

Interpretation uples

in the in USA……….….176

in the Age ofExtremes nial ……………….....279

………….....246 s…….………..246 ….………..176

v

CEU eTD Collection opposed protagonists mostly agree treating opposed in mostly protagonists revealing the stakeslevel and of urgency. Surprisinglyenough, bitterly otherwise wording, dramatic unusually with elaborated and offered were dismissive, as well as affirmative responses, decisive and triggering disconnectedick heated,albeit Qu debates. were appearances byhistorians veryscholarship. courtroom beginnings, the From and historical legal within both passionately they? is discussed should The issue “forensic shiftinghis role and the in 20 historian” approaches ofholistic a of nuanced a the understanding phenomenon towards more confinement theoverall the debatefrom par the refocus efforttwofold of to an result), and in what with conditions what theysay, under testify,what historians belligerent, noless but interesting of lines questioning (such as since when which In the to rendering fol range it doing contributions of justice. of so, historians’ the grasping for necessary conditions the tocreate aims thesis this decide, to practitioners answered can historians already of Asjunction the disciplines. of question testifyhas whether been sensitive as a clash, anbut reunion, irreparable nor as treatedneeds neither synthetic be to witnessing expert historical of practice The century. the over courtroom performance counter a such persistence of The not. or witnesses, expert useful as perceived areeither usually - Could historians perform the role of the role perform historians Could intuitive digitaldivide calls for scrutiny, as itdefies varieties the of historians’

byand the of question the whether judges, they for remains individual should Introduction

expert witnesses in legal proceedings? And proceedings? legal in witnesses expert

the practice as a zero as practice the th century.

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3 2 1 of Historismus.” example “forensischen the ain courtroom harmful as tre who Forsthoff, Ernst scholar legal German by off camp of1964,the andpractice historians legal Asas early scholars. furiously written was witness in a number of trials. years” himself J.Rothman, fiftya historianof medicine David observes rarelyhistorians enter has courtroom,afor been it fact commonoccurrence in some the that presume litigators even and colleagues Although role. the assume they how often is title of Reuel Schiller’s recent artic of the Atlantic, similar voices could heard,be their dramatic thrustexpressed well in the and the Historian as Expert Witness Expert as and the Historian 13 (1965): 574– Medicine of Genocide Studies

D Ernst Forsthoff, "Der Zeithistoriker als gerichtlicher Sachverständiger", Neue Juristische Wochenschrift Sachverständiger", gerichtlicher als Zeithistoriker "Der Forsthoff, Ernst Erich “History Justice: Haberer, and prosecution Holocaust Paradigms crimes”, the of of Nazi and Bulletin of the History History the of Bulletin Witness”, Expert as Historian The the Client: and Clio “Serving J.Rothman, avid “The first, but perhaps least appreciated fact about historians as expert witnesses expert as historians about fact appreciated least perhaps but first, “The

77 (2003):25. 75.

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Henry Rousso, Henry Charles Bolton, “The Hi “The Bolton, Charles Nonetheless, a thein century, in last number of participated historians prominent

Morgan Kousser, “Are Reflections J. Expert Witnesses Whores? on ObjectivityScholarship in

TheHaunting Past The Public Historian Public The Arkansas”, in Creationism Witnesses: Expert as storians tand: “Beingan expert witness in a judicial caseallows

5 (Pennsylvania : University of Pennsylvania Press, 2002), 86. 2002), Press, Pennsylvania of University : (Pennsylvania

oject or course lesson, with the intellectual freedom freedom intellectual the with lesson, course or oject

6 (1984): 18. 4

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3 4 CEU eTD Collection University in St.Louis, St.Louis, in University law in which a man’s life and freedom were at stake.” at were freedom and life a man’s which in law historian says or does mattersIn little. the ... Icase had to meet of thea demands court of anything much so of me.thewhat since Afterall,most time demanded and academic mypreviously in I onme made career. before professional Nothing had nor done – goes court to historianwho required indeed,approaches, of a and the stamina techniques and raisedthe limit about questions the veryThe methods, of itself. history practice to skills my professional tested court in witness expert an as experience “The witnessing: expert historical of experience of the complexities the grasped soon he However, wasit a chance offer to what professional I skill had an in public important transaction.” I cou acall tobe me to It seemed hesitation. without and once at “accepted of the war crimes ofIvanovich Mikolay prosecution Berezowsky Australia he in the in matter as historicalinitially Steinberg.consultant expressed Appointed byJonathan 8 http://streaming.wustl.e 7 6 incompatible. Theyjust purposes.”at actually cross can operate latter case, that“history a drew conclusion forensic frequently methodology and are not experiences. expert his concerning speech both witness in Age of Genocide David Irving”, in JohnK.Roth, Elisabeth Maxwell (ed.) Remembering for the Future: in an (Leiden: Ius Deco Publications, 2001), 203 - History in Alain Wijffels, in Trial” Court.Crimes Historical Expertise andMethods in a Forensic Context Court at Historian “The Steinberg, Jonathan end. the in stand the BerezowskiChristopher Hilberg, BrowningSteinberg (Raul and latter Jonathanreceptively).the Only took

Christopher Browning, “ in the Courtroom: Histo in the Courtroom: Denial “Holocaust Browning, Christopher Historians we Historians Deborah Lippstadt, “Perspectives from the British courtroom: My Struggle with Deception, Lies and Lies and with Deception, My Struggle courtroom: from the British “Perspectives Lippstadt, Deborah I was in a witness box for six and a half hours – hours half and a for six witnessbox a Iwas in Some of firsthand the accountsZeal are clear less cut. similar to Kouss re deeply engaged in the Australian relatedcases in deeplyre against the WWII engaged and Wagner Polykovich,

(London : Palgrave Macmillan, 2001), vol.I, 769. Zündel du:8080/ramgen/assemblyseries/clips/2005-

Assembly StreamingMaterial case and Irving v. Lipstadt tackled similar tensions in a recent a recent in tensions similar tackled Lipstadt v. Irving and case

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11- : Expert Witness in an Australian War War Australian an in Witness : Expert 6 rian as Expert Witness”, Washington Washington Witness”, Expert as rian

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4 , CEU eTD Collection Law Review 78(2003): 1518 - Accommodating“HistoriansMartin,federal testimony at courts”, Gate: expert the in AmericanAsher in D. Recentcontext recapitulationJonathan Evans Maoz. the debatesin the and of Lawyers:A Historian’s perspective”, Organisation of American Historians with “Working W.Martin, Brian and from Bench”, the View The “Historians Expert Witnesses: as witness”expert Hastings in Law Journal 49(1998): Evidence” and as History on Reflections Past: ofThings “Adjudication A. Farber, Daniel debates: integrated of such Ex testimonies. historians’ of the (non)admissibility exactly concerns experts of courtroom industry (Ann Arbour : The University of Michigan Press, 1996), 339. 1996), Press, Michigan of University The : Arbour (Ann of HistoryLegal in in Argument”, Terrence J. McDonald (ed.), The Historic Turn in the Human Sciences (2002): 326- linkage with the practical side historical of expert witnessing. direct of the benefit and having theof standard proof, admissibility testimonies expert of criteria of the the constantlywider shifting of discussion connection the with the Anglo- found in be to intellectual issueis dialogue onthe consistentmost The contexts. diverse more even matters and concerns subject diverse sources, undoubtedly the topicitselfis because cutting through severaland disciplines lacking past.” any of its consciousness and dramatically the in United so the States, country thatEur 10 www.oah.org/pubs/nl/2002aug/neuenschwander.html 9 there was anfor understanding thebe topicto viewed aand in transdiciplinary Ingeneralamongabsence legallaw. experts, betweenand of the the discussion history problem of historic spasmodic exchanges over concrete reframing significantly contributing cases,but in the world interest of revival remarkable yearsa theRobert twenty last has Gordon,there been that“inindicator, as noticed by knowledge in the process of justice rendering, the latest contributions to the ever to contributions latest the rendering, justice of the process in knowledge (1993). Although they are primarily interested limit in

Those debatesThose in are constant shift from times the of criterion until Frye the (1923) recent the Daubert test

Robert W.Gordon, “The Past asAuthority a Reflections from non- concerned Continental contributions arethroughechoing contributions differently, largely Continental those concerns 345 and345 Reuel Schiler,E. “The Strawhorsmen of the Apocalypse: relativism the historian and as Law andHistory Review al expert witnessing within the general context of the relationship 1543.

- wide in history among lawyers and legal among scholars historyand in wide lawyers 10

nd as Social Critic: Stabilizing and Destabilizing Functions Functions Destabilizing and Stabilizing Critic: Social as nd 18 (2000):18 559-

very d participants albeit from followed, very ; Also see forums in journals History andTheory journals in forums see Also ; 1009 ing and specifying the role of scientific expert -

1026, 626 centred around contributions of Richard 1169- American l American 1181; opeans like to accuse of of accuse to like opeans

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41 41 5 ,

CEU eTD Collection Ginzburg:, “Just One Witness” in: in: Witness” One “Just Ginzburg:, and the Final Solution : marginal notes on alate Europa nach 1945, KeineR.GarschaVergleich” (ed.), “Abrechnung” Winfried in NS- matter in France and for bibliogra for and inmatter France disciplines Questions (ed), Chandler James in contributions of evidence: proof, practice and persuasion across the (2004) and Imperio Ab Beck, 2000); Geschichteet alia von Gerechtigkeit die Gericht, (ed.), Historiker,Suche nach und Richter judiciaire it did not necessarily better not did its it to understanding.contribute the out relevance ofphenomenon, although the practiceof point the did the out branching ofeditions journals. specialized and volumes published through workshops, or and throughconferences international setting 12 11 Historian”. New “The of the birth Fink Carolesuggest making like observers public history new and States its role the Europe’s in United in publicmemory creation, administrative proceedings.”activity the in nascence range ofboth suchvisible The is of cases, offering their expertiseto prosecution and defense civil, in criminal, and of now adversaries.roles function aproceedings in andas and range experts Historians an unusual sight the in courtroom. Since thehave historians 1950s, active been legal in grew, asHal theAccording“historians practiceout. Rothman, are branched to nolonger Meanwhile,of particular contexts. the andreasons historical legal the address issue to between adversaries and theof supporters the practice, or constrainedby boundaries the appropriat ofRechtsgeschichte volumes in thematic the contributions see Historian?”, Historian?”,

“Der Historiker als Richter Richter als Historiker “Der Stolleis, Michael example: For Public Historian “, Public v. Historian: „Historian Rothman, K. Hal Still theStill desired the scholarlyonthe remainedelusive, closure as dialogue

: , (University ofChicago PressChicago: : 1984). For topics of roundtablediscussions on the http://www.enm.justice.fr/Centre_de_ressources/syntheses/verite_historique/d eness of the role of expert witness for a historian remained largely polarized polarized largely remained ahistorian for witness expert of role the of eness Contemporary European History

Claudia Kurtsidis Claudia

(Wien : Akad, Verl. Anst, Verl. 1998),(Wien :Akad, 430-

, (Cambridge, Mass: Harvard University Press, 1992); Also Ginzbu 3 (2007), all dedicated to relation between history and law. 11 . Such a tendency was reflected on a number of occasions - occasions numberwas of ona reflected a tendency . Such

- twen - Haider, “Überlegungen zu Justiz und Zeitgeschic tieth

Saul Friedlander (ed.), (ed.), Saul Friedlander phy see the dossier of - century miscarriage of justice of miscarriage century

14 (2005): 135 - 434 Probing the Limits of Representation Nazism :

Annie Deperchin, Vérité historique - , 147. – Carlo Ginzburg, The judge andthe Ginzburg, historianCarlo

3 (2004), der Richterder in Frei Historiker”, Norbert als

Verbrechen, Justiz undGesellschaftin 15 (1993): 39;

( Časopis za suvremenu povijest suvremenu za Časopis London: Verso, 1999), Carlo

Carole Fink, “A New hte im europäischen europäischen im hte emande.htm 12 rg´s and other , (München: (München: ,

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CEU eTD Collection (Manchester : Manchester University P (ed.), Theory first instance, we are already involved.” already are we instance, first “In the disputes: oflegal in historians the involvement regarding of the appropriateness Historical Judgment Historical entitled interview recent present,is the needpractitioners forIn make to choices informed be should obvious. a entitled liberal society, beandcan of there nosingle- thatresponsibility, definition a in profession liberal reminds, “in a Mandler As Peter aresponsibility historian. of the understanding professional of the of question for individual proscriptive answer no as is there and controversial topic, a sensitive onsuch consensus would expecta noone sure, be reality. To social seriously laggingbehind is historical witnessing expert 15 14 13 case of probabilities.” onthe balance theguilt, outcomeproof – but rested of on not concluded that the trial he participated in inferences: important drawn witness, andexpert has an involvedas himselfgot the to trial he experts and Theory discussed the practice historical witnessing expert of the in forum of the journal History Irving v Lipstadt witness expert an as testified who Evans, bridge gap, Richard this thematizations of historical to expert witnessingattempt an In is growing larger. ever

Ab Imperio Ab Deak”, Istvan by Reflections Judgment: “Historian’s Peter Mandler, “The Responsibility of the Historian”, in Harriet Jones, Kjell Oestberg, Nico Randeraad Nico Harriet Jones, Oestberg, Kjell in Responsibility“The Historian”, the of Mandler, Peter Richard Evans, J. “History, Memory, the and Law: Historian The as Expert Witness”, Contemporary Hisotry on Trial. Europe since 1989 and the Role of the Expert Historian,

41 ( In light of this increased importance, historiographical debate on the issue of of the issue importance, increased debateon In this historiographical light of ex officio 2002 questioned the applicability of He the applicabilityof questioned He . “Does it apply he it “Does asked, jurisdictions?,” other to and other casesin he ): ): 340.

to decideto uponit”.

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1992) international tribunals : Eleventh Sokol Colloquium Amsterdam : North Hollan :North Amsterdam Publishers, 2002); “Expert Witnesses”, “Expert jurisdictions” law common of law, law, of France and States”, United the Texas International Law Journal31 (1996): 181- Problems “TheMorris, expert evidence in Criminal CasesGermany France, in and Law ”, andContemporary (1987): 307 significantly by the end of the 20 the of end the by significantly experts Law Expert of Evidence. proceedings,from military tribunals to civilian courts, international law.Its weight also changes considerably from to civil criminal greatly onlynational not contexts also has but various in particularits place in while in the latter theyare summoned by the j procedures; forinquisitorial the are in formeremployed usually experts by the parties, adversarial betweenrolesthe or direction of witnessin expert ofthe the distinction further differentiations national within jurisdictions. T there great are traditions thoselegal within of and expert, institution onthe different take law law anda differenthave in continental contexts the Common process. stages of differen defined is experts of role The harvest. a rich promised avenue indeedhistorians testifyunder very circumstances, different such aresearch proposed As contribution. its scrutiny of forserious precondition a witnessing an important as 16 historical expert witnessing. legal studies,realm aof immense help in differentiating between varietiesthe of comparative in research valid of a subject been have considerations those of many fact,

Such studies rest on a solid and long and solid a on rest studies Such

; Richard May Marieke Wierda, International; RichardWierda, Marieke May criminal evidence, , (Melbourne : Oxford University Press, 1987). This comparativ War crim War Evansforfurther the in research was ahistori calling differentiation of ): 504 ”, 2(1935): – 314; es prosecution project Ian R.Freckelton,The Trialthe of Experts. study A of expert evidence andforensic

J.F.Nijboer, C.R.Callen,, expertise law the N.Kwak, evidence of Forensic and

http://www.nesl.edu/center/wcmemos/2001/miles.pdf - 9; 9;

d 1992). , Kimberly, Memorandum Miles, M. for the Office of the Prosecutor, Issue: (Sydney:Law Fact Co, Book (ed.), Lillich 1999); Richard D.J.

Gee

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century: F.Taylor, Robert “A comparative testimony study expert of in

Expert Witness Expert “The , - : Sean P.Downing, “The use of expert witnesses“The civilin : use and Sean of expert P.Downing, standing comparativist traditions in legal studies. See Ploscowe Ploscowe See studies. legal in traditions comparativist standing

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Hudson, Hudson, Criminal Trial” Criminal from jury trialsbench to trials.In

(Ardsely, New York: Transnational Transnational York: New (Ardsely, N.Y. : Transnational Publishers, Publishers, Transnational : N.Y. e aspect in legal studies grew grew studies in legal aspect e , Ian Freckelton, H.Selby, The Ian , 212;

Criminal Law Review Law Criminal tly in varioustly in legal

New England School School England New - finding before cal expert expert cal

25 8 CEU eTD Collection expert testimony should be analyz testimonyexpert should the to problem.proscriptive blanket ‘solutions’ resulting confinement, risk,pushing holistic obvious in the debate an into unhelpful an Henceholds event own,veryevery with circumstances. generalization onits distinct Evenan every trial is each sizes. and historians’ comeand contributions allshapes in pur afact perform can It work. collective a or endeavor individual an be It can trial. material summarybe can or alreadycomposedthe it sakethe published for solely of of orally or bot or delivered form given written in beItcan foroffer elements important differentiation. apart from the legal setting, the form andof the the historian’s content also contribution of formstaxonomies of historical expert witnessing that will not work in practice. envisaged beautifully of creation the to lead best at would approach particularistic from similar discussions in other legal, historical and disciplinary contexts, this hastyinto overal unhelpful, andhas indeed it already the to fragmentation led of the debate.Sidetracked prove equally would extreme position However, historical testimony.this expert they prior t produce, - case the to morecourt can of question testifyin thewhether historians shift debatefrom the pose or provide context. ItInperipheral thecan to proceedings.central orposecontext. short, or be provide sensitive analysis of the circumstances under which they testify and to the outcomes and to testify which they under the circumstances analysis of sensitive As if such complexity the to conclusion that leads the occurrences of historical However, histor h. Ith. can concerned be the with recent or past.It quitedistant can be a l conclusions drawn conclusions froml a particular applied case but generally, isolated o elaborating on the scholarly appropriateness and legal relevance appropriateness the scholarly of and legal on o elaborating ians ought not to not ians ought where stop legal would.Somewhat scholars ed from case to case. Such considerations would indeed case. considerations Such to from case ed -

finding finding 9 CEU eTD Collection (ed.) Tismanenau Vladimir Antohi, Sorin in: more change global this of consequences political and legal On 50. infers that “this judicialization of the past very much belongs to the ‘age of ofmemory’”. the the pastbelongs veryto ‘age infers much judicialization that“this Henry and memory”Rousso ofwidespread theof 1990’srecovery haspublic there a been the public into historians limelight.” Richardconcludes Evans that“since the beg decades, the subjects of the Second World War and the Holocaust have newly thrust the past two agrees that“over Fink volumeonhistoricalpublished expertise.Carole 1989 in Communism have been far of the Cold “TheWar: consequences political of the quitesudden collapse of of historical witnessing expert of memory’ connected the to ‘explosion the following end majority usuallyauthors rarely statement, go beyond of focusing this onthe participants the in debate. Duly thatthe practice noting originated the in 1950’s, the ofof the most topic,keepingthebackground professional been mind this in written on practice historical of expert witnessing totheissue of its genealogy. Surprisingly little such an approach wouldbe refocus to from the discussion the issueof the meritsof the exper historical of phenomenon the of research integrated for acase presents thesis this particularism, 17 reasons back look to into the 20 relations between history and law, thesisthe maintains that thereare still many good contemporary narratives,reengaging the historical scholarsrecomposing andthe field of fullyWhile reshaping in collapse acknowledgingthe of importance of the Communism history of the practicehistorical of expert witnessing. Adam Czarnota et alia, Rethinking the Rule of Law after Communism

Harriet Jones et alia, op.cit, Fink,2; Carole op.cit, op.cit, alia, et Jones 136;Harriet Between Past and Futur Taking the therefore tricky path betweenand the ScyllaofCharybdis holism of t witnessingwithout losing its varieties from sight. The starting point for e, The Revolutions of 1989 and their Aftermath (Budapest : CEU Press, 2000);

th

century search in of the elements important of the - reaching.”, note thereaching.”, authors of the re most

Richard Evans, op.cit, 326; HenryRousso, op.cit,

, (Budapest : CEU Press, 2005).

proliferation proliferation inning inning cently cently

has has 10 17

CEU eTD Collection suche nachGerechtigkeitsuche and the role of the expert historian (Manchester, University : Manchester Press,2007) Methods in aForensic Context contribution fromcontribution the designated fields. dissertation, gathered in a of number recent collective volumes. At the time of writing this are been Valuablecontributions research has done. say to thatno not witnessing. is That monographic st single no is There deterrent. a mighty present topic the of character interdisciplinary 20 19 18 for the study historical of expert witnessingexcellentan is but not well- Gerechtigkeit nach suche und Richter Historiker, Gericht. vor Geschi Laak whoseDirk vanverybefore and Stolleis, Norbert Frei, Michael title by precedents. hist Randeraad Nico and the of expert. sinceEdited 1989 andthe role historian by Harriet Jones, Kjell Östberg account witnessing.expert ontheof history introductionan illuminative of the editor, who provided anyet elegant regrettably short with accompanied volumeis Wijfells’ Furthermore, approach. nuanced requirements a of levels experience of historical of expert witnessing, thus satisfyin by contains which contributions it cut Alain Wijfels, through different casesand different Context aForensic Methods in and Expertise Historical Court. volume Historyin

Norbert Frei, DirkNorbert vanLaakund Michael Stolleis Geschichte (hg.), vor Gericht. Historiker, Richter und Östberg, Nico Randeraad (ed.), NicoRanderaad Östberg, Kjell Jones, Harriet Alain Wijffels, “Introduction”, in Alain Wijffels (ed.), (ed.), Alain Wijffels in “Introduction”, Alain Wijffels, orians in Europe after the fall ofBerlin the wall, but shies away from its historical However, the chronological broadness, thematicand fragmentation,transnational 18 the last such attempt is the volume

This perspective is largely supplemented by the volume edited some years some edited largely bythe is volume supplemented perspective This udy dedicated to disentangling intertwined the ofpast historical expert , it provides, it for a of numberexamples the use expert of of interesting , (München : Verla : (München , , (Leiden : Ius Deco Publications, 2001), 13-

gC.H.Beck, 2000) 19

Much more focused,andindispensable indeed 20

Contemporary History onTrial. Europe since 1989 Contemporary Historyon Trial. Europe History in Court. Historical Expertise and and Expertise Historical Court. in History

36

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Morgan “Expert Koussner, Witnesses,RationalChoice, the and for Search Intent,” Constitutional Le rôle social de l’historien: De la ch la De l’historien: de social rôle Le Dumoulin, Olivier Wijfells’ insightfu

und Vergessen (München, 326 2007), : Meidenbauer, Martin

, 5(1988): 349 s to increase the depth without losing the necessary wideness of the losing of the wideness the necessary depth increasewithout to s the Juridical MemoryJuridical Making and Transformation the of Historical Expert Witnessing:

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University, which takes great pride in maintaining the Neo the maintaining in pride great takes which University, journey. professionallya Socialized Central European UniversityBudapest. in thefor Tribunal Criminal encountered the narratives duringin it MA researchInternational myonthe Historical Idistance, was quitedisturbed by of thehistorical witnessing practice expert I as ching importance atta paramount the to experience ofby historical literature, and sources betweendivision factsand history politics, and and between even values, division stricter

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, conductedformer Yugoslavia my in almamater second fashioned ofwisdom stating academic the obvious, s a historian in the environment of as theBelgrade historianin environment ’ s courtroom performance, as this passionate passionate this performance, as courtroom s th century possible? it make to - Rankean paradigm of a strict strict a of paradigm Rankean

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13 , CEU eTD Collection incompatibility is a major obs Ihistory camethe andbelievemighty also to theory law.appeal of this that of initially fallen into the trap of the implicit, but powerful theory of incompatibility before, many Ilike had, that realize need to I for nuancing. differentiating and came n Soo throughacknowledgment ofconsciously the the ‘armchair negative my weakened thesis’ influencedresearchI the judgmentalevaporated, frame my of considerably.As attitude Republic of . the of Prosecutor Crimes of the War Office the in and former Yugoslavia for the TribunalInternational researchatI the Criminal beingnot internships undertook there”, pas about testify credibly can who “a historian as person byas andofadhoc active possible, takehis roleinspired to one as a clear near as not are things that I learned However, delvingdee witnessingthat make improper. historical expert understandingcausation, and of judgment the ofevidence concepts fact, agency, truth, merger”, and was ready detail to all the incompatibilities between the historical and legal dissertation with a strong thesis to write, treating historical expert witnessing as persons testify to anything. about II had thought a clear case an easy and PhD me to proper seem not did historians deconstruct angles, both From historical narratives. urge to perspectivist rather bythe but byhistoricism, not now induced standpoint, 23 witnessing. “Judging History: The Historical Record of the International Criminal Tribunal for the former Yugoslavia”, Yugoslavia”, the former for Tribunal Criminal ofthe International Record Historical The History: “Judging

Theories of incompatibility of historical and legal narratives are s are narratives legal and historical of ofincompatibility Theories Communicating with both theoret Communicating both with negative preconceived this affect not did “resocialisation” My intellectual 23

In of process ‘historicisation’ this of my the overall position, own frame of

tacle towards better understanding of historical expert expert historical of understanding better towards tacle - cut as I presumed.cut as bymy Prompted supervisor icians and practitioners at the same time time same the at practitioners and icians ystematized in ystematized t events exactly by the virtue of of virtue by the exactly events t Richard Ashby Wilson, Wilson, Ashby Richard per into that realm,

definitions of a of a definitions between between an “odd an “odd 14 CEU eTD Collection Presence and Historical Histor Injustice”, Bevernage, “Time, Berber in scrutiny recent a underwent justice and history of dimensions temporal Shklar Judith in demonstrated are history and law in causality dwells on differentstandards of proof in historiography and in the court of law. Different understandings of 1999). op.cit, historian ( United S legal theory the of “germanization” in bookonlaw his and in Strauss, lamented history yetanother first critics, its One foundation theory. of of this application courtrooms at a when time the other branches of human sciences their legal achieved of out historians keeping and ofwas historiography, forensication process the of intimate relations between the two disciplines, the incompatibility theory was slowing the enterprise an dragged into ahistorical is position.” he law, of the jurist, is antithetical to that of the historian. By very the nature of his summarized byFriedrich, the Karl specific who concluded“that the of student task of perhapsbest explicated and works, was ofa number history law, in implicitlypresent and discuss in the first chapter. This influential antagonistic scheme of relation between particularism. I reco enoughinterpretation emerged,counter to flexible and the potentiallapsesholism into 25 24 Human Rights Quarterly sort of a entire interpretativewhich fiber runs throughthesis. the struggles maintain to legitimacythe of practice. the This tension (in)compatibilityof a is accountsbelated forhistoriography, just theforensication not of the con also for but stant to say that the incompatibility theory was succeeded by the compatibilityIt theory. Cambridge, Mass. : Harvard University Press, 1986), 1986), Press, University Harvard : Mass. Cambridge,

Leo Strauss, Natural Rights Strauss, Leo andHistory Karl Joachim andFriedrich, History”, “Law Vanderbilt Law Review

51- On more specific issues

in Norbert Frei et alia, et and Frei ajudge enumerated are in “Differierende Michael Wildt, Wahrheiten” Norbert in 57. The tates, arguing the reintroduction for of of the natural notion rights. . It. agreat took shake catastropheWar Secondto as World asthe the sameis issue by tackled CarloThe Ginzburg, Judge and the Historian. (London : Verso

nstructed and explicated theory this of incompatibility,Iwhich 27 (2005): 908 - The Cri The Kitson, Clarck y andTheory , ( : Chicago University Press 1953), 35. 925. 925. Sets of similarities and differences thetasks between of a , 47 (2008), 149- tical Historian tical - 194 200. Lastly, even the difference between the Lastly, the differencethe between 200. even , Legalism : law, morals, andpolit 24 , 14(1961), 1030.

167. . (New York : Prager 1967), 13- Derivingfrom the long and émigré émigré

from , Leo Leo Germany, from

25

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CEU eTD Collection the way for many accused to actually hide behind history. behind actually to hide accused the way many for and relevance opening gained the incompatibilitynonetheless thesis global strengthening her statement, dictum this made Arendt circumstances which in particularthe very “this render to trial is justice, and nothing else.” ofquestions seeminglygreater importanceleft abeyance in …bepurpose …The of the deman of example Hannah the criminal trial“Justice of onthe Adolf Arendt, Eichmann: yetIt explain, famouslyincompatibility easyencapsulated was spot. by to to hard is conf 29 28 27 26 alreadydistinction, Kircheimer’s Otto eroded in bookPolitical Justice (1961). A good strict division between law, historyand politics, her criticism has undermined this andInstea history had quiteunpredicted effects. apparatus.” state the by organized massacres system Jerusalem Arendt’s made it her original intention, a clarifyin later addendum Eichmann to in Mass : Harvard University Press 1983), 10. Jerusalem, in contributio case Eichmann 2008), x. Crimes War Prosecuting of Politics the on Perspectives

Hannah Arendt Hannah Arendt, Hannah Harold J.Berman, LawHarold andRevolution. The F Michael “Introduction” Marrus, in Jürgen Heberer, Patricia Matthäus, Atrocities ront implicit theories both of law and of history”. and of both law theories ront implicit

‘something else’, course, of was a messagehistory”. about He observedthatdespite ds that the accused be prosecuted, defended and judged, and that all the other allthe other and be andthat thattheds prosecuted, accused judged, defended

“To follow story the Western the of legal tradition”, writes Harold Berman, “is to Regardless, Arendt’s problematization of the mixture of the concepts of justice of the ofof concepts the mixture Regardless, problematization Arendt’s

and of current concepts juridical deal to with the facts of the administrative Marrus relationthe examineshistory justice between and work on Arendt’s example the of on

Justice andHistory,

that her concern was solely with “the inadequacy of the prevailing legal legal prevailing the of inadequacy “the with solely was concern her that , Eichmann in Jerusalem: Revised andEnlarged Eichmannin Jerusalem n “

( Steven E. Aschheim, (ed.), Hannah Arendtin (ed.), Aschheim, E. Steven Jerusalem” in Eichmann to Berkeley 205California : University of Press, 2001),

.

( London : Faber and Faber 1963), 232. ormation ofWestern the Legal Tradition, (Cambridge, 29 27

Michael Marrus commented recently that that recently commented Marrus Michael , (Lincoln/London : University of Nebraska Press, Press, Nebraska of University : (Lincoln/London , d of reaffirmingd the positivist view onthe (New York : Penguin Books 1997) 26

Consequently, the exact gist ofConsequently, the 28

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213 on Trial. Historical Historical Trial. on

, 294. 16

CEU eTD Collection Possibility the of Conversion into Good, our species thatwillnot spareeven men.” best the of See José Edgard Jorge Filho itself is from borrowed itwhoKant, Immanuelused “the describe seeminglyto inherent deep blemish of social agendas achieved modest legitimacy. legitimacy. modest achieved agendas social the legal.” ofentirely and causality, notions different the and historical incompatible actors the cons or byothers with evil? How shall werespond to massive human rightsviolations committed either by state livewith we shall “How the problem: of aspect the crucial exposed wrongdoings. He ap criminal trial withinmu a thosetortured reduceproportionto orderto similar in throughout the events of a model Shklar,realist, who concludedNuremberg Judith the“history thatin had be Tribunal to a cri in shown is effect this of example 32 31 30 chal legal a describe to Arendt, also byHannah exploited ‘radical evil’, rereading Kantian a term by stepped the field into Santiago legal Carlos Nino, scholar, Argentinean The decades. following grew the in and abusesrights postwar by human the from another.” matter.It is the quality the of politics pursued in thatthem distinguishes onepolitical trial trial itself but the Shklar, however, quitedifferent draws from Arendt: conclusions “It the not political is Trials L Becker Justice. Political

Shklar, op.cit, Shklar, Carlos Santiago Nino, Radical Evil onTrial Nino, Santiago Carlos The politicalThe aspect of criminal justice insocietieswas democratic in thematized Otto Kircheimer, olitical justice was shaken, as shaken, was justice olitical

(Cambridge, Mass. : Harvard University Press, 1986) This conceptThis gained strengthlight in of the burning issueofwartime addressing Political Trials Political . (ed.),

194. Theodore in Theodore elaborated is further topic The 1961). Press University :Princeton (Princeton 31

the conceptofTherefore, survived, althoughthe incompatibility the theory

situation in which it takes place and the ends that is serves which whichtakes serves in it is placeandsituation the which ends that . (N nicipal system … The result was the confrontation of two ofconfrontation two nicipal systemthe result was …The

Legalism: Law, ew Shklar, Morals, York 1971); and Political Judith

the idea of trialsas agents in pursuing wider political and ent and tolerance of their government?” their of tolerance and ent lenge processing endlessstate sets in of http://www.bu.edu/wcp/Papers/Mode/ModeFilh.htm , (New Haven : Yale University Press, 1996), vii. term The University 1996), : YaleHaven Press, (New , tique of the Nuremberg trialsproducedtique ofbya the legal

states. The urgency of dealing with such cases cases such with dealing of urgency The states.

, Radical Evil and the 32

His sombreHis - sponsored sponsored , 4.4.2005. 17 30

CEU eTD Collection evenmore to loosely anydescribe order in repetitive activity by criminal sponsored state. the 2002), 76- (ed.), Savić Obrad Duhaček, Daša in Kant”, i Arent zlu: radikalnom o “Refleksije Bernstin, Ričard see differences the About (University of Nebraska Press, LincolnAnd London 2008). Crimes War Prosecuting of Politics the on Perspectives Historical Trial. on Atrocities (ed.), Jürgen 1998); Verlangsanstalt, in Europa nachAkademische : 1945 , (Leipzig/Wien Kurtsidis stud Bosch’ William of the title was conductedhistorigraphical bywar athorough on research crimessymbolically the trials, expressed in Memory connecting theory with practice. practice. with theory connecting the centerattention of growing theof body literature of dealing with transitional justice, and trialsfrom 1945. trials provided informationresearch onhistorical for processes copious crimes onwar theFrom pedestrian theoryand above below. of below, incompatibilityfrom both approaches such the anlegacy. in studythe legal of atrocious overcoming of of new development the to hadcrimes led of state phenomenon of of the urgency init Kircheimer) who Kelsen,Strauss, Shklar, Arendt, (Friedrich, Europe Central and Germany from émigrés of debate impenetrable wasquestion truly refreshing what in was otherwise a somewhat but pregnant 33 The termwaswidely popularised byHannah Arendt in reactioncrimes the past to regimes, of it placed topicthe juridical of memory andCommunism the global towards transition democracy. by Accompanied legal the of of A law huge onsocialdirection change. this came in incentive the with collapse aunde new towards the way up opened transitional justice had Memory Holocaust Historyand of thewith very ofbookGenocide his War title onTrial. Trialsand Crimes the Formation Harcourt Brace Jovanovich,withHarcourt1975), Brace significa a

Donald Bloxham, Donald , (Oxford : Oxford University Press, 2001). Another indirect attack on the theory of incompatibility ofincompatibility the on theory attack Another indirect 2001). Press, University :Oxford (Oxford , Rising on that current, two streams of literature emerge - Haider, Winfried R.Garscha (ed.), Keine WinfriedR.GarschaHaider, (ed.), “Abrechnung” NS - in, Bernste (Richardin, 88. aoeii l: aetne ae Arent Hane zaveštanje zla: Zatočenici

Genocide on Trial. WarCrimes Trials and the Formation of Holocaust H 33

One of those, Donald Bloxham’s, touche OneBloxham’s, of those, Donald y From Reflections about radical evil: Arendt andKant

Judgment in Nuremberg to Judgment on Nuremberg. Cf. , for in the meanwhile a whole new field of studies in of in studies field whole new a meanwhile the in , for ntly different and morently compreh different and ially shaped the field. A new understanding A new field. ially the shaped

, (Beograd: Beogradski krug i ženske studije, studije, ženske i krug Beogradski (Beograd: , The Origins of Totalitarianism of Origins The Verbrechen, Justizund Gesellschaft d in thed in nineties, pressing rstanding of the influence of the influence rstanding ia, Matthäus, Patric Matthäus, Heberer ia, d onthe fundamentals ). Nino uses the term term the uses Nino ). ensive meaning of. of. meaning ensive , (New York : (New, York

- making in in making istory and Claudia Claudia 18 ,

CEU eTD Collection the Law. ( Law. the and History, Memory Thomas Kearns,(eds.): Sarat, Austin in topic the to contributions Interdisciplinary Mass Atrocity,Collective Memory andthe Law. Societies Democratizing extensively in PalumaAigullar covered et al, ThePolitics of Memory: Transitiona in l Justice most empirically is memory collective on actions oflegal the impact ofliterature, body Within this allare noting i paramount the Perspective Historical in Justice Transitional Books: the Justice Transitional Ruti Teitel, 1997); Dame mémoire 1914- Political Transitions Political etBrupbacher alia (hg.), Eri 2002), 20- (ed.): Accountability in Postsocialist Europe Postsocialist in Accountability United Press, of Institute Peace Justice Transitional (ed.), Kritz Neil justice transitional on Seminal readings 1999). memories Jean Heaven.,London: Yale University press, 2001), 27 of collective history through the recreation and dramatization of t of collective through theand history recreation dramatization representations makingenable vivid of collectiveceremonialstanding forms that history solidarity is enhanced that by shared historical memory”. For Ruti Teitel they are “long “law that considered Osiel 36 35 34 the first such studies e render fair manner. however, thatthe To insist, sole purpose as does, Arendt of a to trial is primary responsibility a criminal of trialresolve is to question guiltofa procedurally in cha directly was For question. and to put lawcompatibility example, wouldbe history of became only not a possibility, a but strong demand, and was social it apparent thatthe trial as legal form.”

Lawrence Douglas, Mark Osiel, “Making Public Memory, Public Memory, Public “Making Osiel, Mark The expressionThe was bywere coined Trials Henry further Rousso. thematized as impo - Paul Jean, Denis Salas (dir), Barbie, (dir), Touvier, Salas Papon. Denis Des procès Jean, Paul pour mémoire la Transitional Justice and the Rule of LawNew in Democracies

justice and nothing else presents a crabbed and needlessly restrictive vision of the the of vision restrictive needlessly and crabbed a presents else nothing and justice were rediscovered as powerful ‘vectors of memory’ of ‘vectors powerful as From above, rediscovered the trialswere

in Nancy Wood, Vectors of Memory: Legacies of Trauma in Postwar Europe Ann Arbor 34. Issue of legalmemory and forgetting is tackled in a number of contributions in Oliver 1998 llenged byLawrenceIllenged one, Douglas: “No deny would believe, thatthe . (Paris . , (New York: NY Zone, 1999), Ruti Teitel, op.cit. 72 op.cit. Ruti Teitel, 1999), Zone, NY (NewYork: ,

The memory of judgment. Making law and history in the trials ofholocaust the - Jean in also 2002); Press Michigan of Univeristy : 35 . (Oxford : Oxford University Press, 2001) and analyzed in depth by Mark Osiel, Osiel, Mark by depth in analyzed and 2001) Press, University Oxford : (Oxford .

Other authorsbetween reframedlaw. Markand history the relation

: Autrement, 1999) and Denis Salas, Salas, Denis and 1999) : Autrement, nnern undVergessen (München , merged merged mportance of trials in the transition towards the new societal consensus. consensus. newsocietal the towards transition in the oftrials mportance - related activities ofsort this contributekind the to

1995); John Borneman, Settling Accounts: Violence, Justice and hastily . . (Princeton, N.J, Princeton University James Press 1997); McAdams . (Oxford : University Oxford Press 2000); Jon Elster, Closing

after 1989,settling scoreswith criminalthe past ly”, Carla in Hesse, C. Robert (ed.) Post

(Brunswick and London : Transaction publishers, 2000). 2000). publishers, Transaction : London and (Brunswick

.

(New YorkCambridge : University Press, 2004)

: Martin Meidenbauer, 2007). „ La Justice entre histoir entre La Justice . (Notre Dame, Univers Dame, . (Notre - 3.

Pierre Bacot, (ed.), (ed.), Bacot, Pierre he criminal past.” . (Washington, D.C : : D.C (Washington, . , (Paris . (New. : York Berg e et mémoire et e

Arendt’s view Human Rights in

rtant carriers of

: Autrement, : Autrement, ity of Notre Notre of ity

Travail deTravail of social social of 36 . , (New (New , 34

„

, in: in: , As As 19 - CEU eTD Collection Mein : FTV 2007). der Erinnerung. Holocaust, Kollaboration und Wiederstand im europäishecn Gedächtnis memory of States Olick, Jeffrey Press 1992),Tzvetan T London:University Press of New England, 1993), Jacques LeGoff, History andmemory Forgiveness”, “M Antohi, Sorin Ricoeur, Paul 2004), Press, Chicago of University : (Chicago Memory “complicated relationship between transitional justice, truth and history”. past or even policingpast. A strong the attemptwas made m to dealing the with past, working the out past, settling closing accounts, facing the the book, history, retroactive justice, transitional justice, transformative justice, didactic legality, past, ofverdidescribe history, ofthe judicialreading judicization history, judging it: to used terms interchangeable of palette confusing a in reflected well are circumstances memory intertwine in an extraordinary media event. which in law, context politics,and historycomplex are recognizablya in operating now reports governmental Theselustrations, or commissions. truth high- such as parliamentaryor extralegalcriminal instruments, proceedings, inquiries, facto expost either through authoritarian past, recent onthe reflect to product need of the the was interest increasing This means. judicial by frequently past, the of reassessment de body of literature on history and memory. body literatureonhistory of reconceptualizing of provided as thehistorians, role it athe with growing connection 38 37 by L Pierre Nora (ed.), Les launched project an ambitious in length with at was dealt politics and history memory, collective between (eds.): Societies Remember How Connerton, Paul making: its and memory ofcollective issue the on readings Seminal sciences. social worksscattered ofHalbwachs Mauriceterm the find to (who coined in serious 1925) resonance the in

Ruti Teitel, „Transitional Justice Genealogy“. Harvard Genealogy“. Human Rights Justice Journal „Transitional Ruti Teitel, Scholarlymemory interest collectivegrew in fairly more recently. It tooksix for thandecades the ep globalep changeswhich towards were democratization, accompanied by the The Invention of Tradition. (New York Cambridge : University Press 1992). The connection , (New York Columbia : University Press, 1996- This nexusThis between law and memory be to of proved much use in Janus Head, 8(1), 2005 : 8-

. (New : York Cambridge UniversityPress Eric 1989); Hobsbawm, Ranger, Terence ieux de Der Krieg Harald Welzer, Krieg (ed.), Der 2003). Press, University Duke (London: ,

mémoire 25.Patrick H.Hutton, History as anart H.Hutton, of memory 25.Patrick

I - odorov, VII. (Paris : Galimard, 1984 37

This development was further prompted by development furtherThis was Lesabus de la M 1998); Paul Ricoeur, Forgetting History, Memory, T é he ambiguities of thosehe ambiguities moire, moire, - ake of the sense threefold 1993);

16 (2003) : 86. (Bruxele : Arlea 1992 profile proceedings profile Realms of of Realms Pierre Nora, 38

emory, History, History, emory, , (Frankfurt am , (Hanover and and (Hanover , , (New York: (New, York:

ct of of ct 20 ) ,

CEU eTD Collection 27 (1993): 193 and Csaba Varga,“Law and History” in Law andPhilosophy law se history and between relation on shaping factor of the history of mankind.” of history the of factor shaping asa acts italso this, through and well, as history its own have to out turns it instrumentality, to stripped entire its in viewed is law the if conclusion: double a to leads this “All concludes: Varga 41 40 39 mainstream. such a blunt embrace of what Osiel boldly calls “liberal show trials” is not the intellectual Yet taught.” the being lessons on the defensibilityof dependsdefensibly practice of the inherently not … is indefensible.pedagogical or The misguided morally purposes Mark Osiel’s answer would be affirmative: “The orchestration of criminal trials for legal law “Should and crucial question: a He posed performance ofboth trial ais crimes war situated in historyyet andtranscend seeks to it.” was neatly captured byGarry Simpson on the example of criminal trials: “The context.” process” andassuring “the that terribleacts individuals of are lifted fromtheir historical “ performing dynamic certain conceptualgrasping”,a “certain its world, in acknowledge dualism reflecting hence - his as title same the bore cent articlesre Two that article. Friedrich’s of Karl time the from changed decisively was Mark Osiel as “problematic as inmyriad Osiel Mark ways”. and consideredby even is of themajor concept, stumbling blocks the perceived one of as Can theyprocesses? compromising without doso values law’s central to integrity?”

Mark Osiel, op.cit, 65, 79. Garry Simpson, op.cit, 801. Ian Buruma, The The Buruma, Ian Hence the presumed incompatibility 39

The of crux this complicated problem of the

a moral historya allthe moral lessoncloakedin ceremonial of due legal trappings The disturbing issue of the rela The issueof the disturbing WagesGuilt of standstill, recently described by Ian Buruma as an as IanBuruma by described recently standstill,

Law andHistory Law , (LondonVintage : Books, c1994), 145, 153. For recent contributions

Loyola Los Loyola AngelesReview History”, “Lawand Read, Phillip John e

of the 41

tionship between history and law is still

-

coming parts from of twodifferent the

relationship between law and history

processes lend themselves to these these to themselves lend processes

relations between law and history . (Budapest 1994), 477- oscillation between ty, andty, not in being 485. 21 40

CEU eTD Collection Retroactive justice Retroactive political systems and legal regimes of Hungary from until 1921 1994. Researched in István wrong reasonsfor people reasons. orright wrong wrong people for wrong reasons, also by but paradoxically convicting the right people for convicting the through only not shaken, more of thelaw in rule thelarger trust and hence wh Europe, ere and Central politicalever Eastern in present more discontinuities were good But don’t necessarily too. serve aboutpolitics this doubts good – becan politics trials It be thatshow may cannot farof. be of show trials ofthen the thelawhistory school.usedrisk When court in is for lessons, similarlywarned as that“just a belief belongs church, surelybelongs in ed historyucation in the end, are illsuited to deal with the subtleties of facing the past”. of the incompatibilityhistory of be not expectedshould dotheof to job historians - and cannot trials that is view own “My Marrus: Michael Holocaust, the of ahistorian was left various courts frequently 47 46 45 44 43 42 meet.” to suited not is justice requirements it loadingthat we stop of must the onto shoulders course, thatall attempts toarriveat the truth in c opposition. fundamental “memory appear nowbe and to farfrom in history, being synonymous, Legacies V. The Holocaust and Justice.

David Chuter David Nora, “BetweenPierre Lieux History: Les and Memory Memoire”, de Representations Ian Buruma, op.cit, 142. Th Rosenberg, Tina Telling example of this phenomenon is the case of Mihály Francia Kiss of case the is phenomenon this of example Telling Michael„History Marrus,:and the Courtroom“, Holocaust inRonald the Lessons Smelser, in: and 47 In fact, observersthe recent theof attempts to settle historicalgrievances in

Hence, even after the astonishing developments in transitionaljustice, the in theory the astonishingHence, after developments even 46

, (Boulder, Crimes Colo.War : LynneRienner Publishers, 2003), 232- Occasionally, onemean, hear canwarnings of does that“this still not . Prehistory of Post of Prehistory e Haunted Land . (London : Vintage Books 1995), 258.

them disillusioned. them disillusioned. - and law was andaside. simply not law brushed Communis Northwestern University Northwestern : Pres (Evanston m

(Stanford: Stanford University Press 2005) riminal trials are doomed.It means rather T ina Rosenberg concluded that “trials, “trials, that concluded Rosenberg ina

to teachto history.” 45

Pierre Nora also warned that that warned also Nora Pierre

the truth.”

, dragged through different s

2002), 216.

though I have my I my though have 44 233

This problem is 43

26 (1989), 8.

42

Much blunter

Ian Buruma ,

Rév 22 , CEU eTD Collection facts, the in field of history, wrapped words”,István in come reminds Rév. render the substantiate to neededorder They in were historians. from help accept to ready was Law the that reason the exactly was This facts. transitional justice was vested in the transformation of societyestablishing by the judicial otherof representatives postmodern jurisprudence. Notwi although Garry lessvisibly, byFish,Douzinas, through studies Costas Stanley Minda and LaCapra Frankwork law, DominickAnkersmith,also to but ofand HaydenWhite, It flowe Derrida. and Jacques Barthes Foucault, Roland close the with postmodern connection challenge posedby different in shapes Michel 50 49 48 epistemological uncertainties they carried into t preconditions for their courtroom appearance. And such was the baggage of necessary the also were Such complexities. its of unaware frequently stepped, lawyers history.” theories of fargreaterareunderstanding obstaclesbyvarious legal of tradition, the posed storyof Harold that“if Berman various warned, schoolsof legalobstacles theory an to pose t exacerbated courtroom the in appearances seminar.” the in first weekassumptions methods of the seeks diligently … a first- speak,knowable, to and ‘out there’,t so “non the whereas it, puts Wiecek Mass : Harvard U 24(1987), 266 Review - Law Western

William M.Wiecek, M.Wiecek, William István Harold J.Berman,LawHarold andRevolution. The Formation ofWestern the Legal Tradition, (Cambridge, Rév The last intellectualcurrent which was adding existingthe to confusion was in , op.cit, 2. niversity Press 1983), 10. “

Clio asClio Hostage: States United The CourtHistory Supreme and of Uses the 50

Such was the in the was Such yeargraduate History in student the learns fallacy of these

- historian assumes that historicalare facts objectively

7. hat theywill disclose themselves to anyone who tellectualminefield into which historians and

he pre he legal process. process. legal he - existing doubts. It became clear, as as clear, It became doubts. existing ing of justice with solid facts. “But “But facts. solid justice with of ing d to historiography through the the historiography through d to

49

thout consequences: thout Therefore, historical historical Therefore, 48

As William ” , 23 CEU eTD Collection say contexts.”, wrote Carlo Ginzburg.say wrotecontexts.”, – of context concerningattitudes the issue havehistorians different are part, in chief different, takehistorians examination under scrutiny across the disciplines, the and conceptjudges started which melting: facts “The thissome time alarming was question even not raised. However, law history from to requirements. transferred safely theybe Could disciplinary established the with accordance in checked neatly was it as long safe considered time a for long andages was attention for safely transferred into historical research.” historical into transferred safely differentepistemological foundations … this is the same title, guided by belief the that “lawand history, it seems, have different rulesand the bookof theand differences the a thehistorianin listed judge number ofbetween other evidence and proof at stake. was Evidence had been of the notion Firstly, legal and process. the scholarshipkey ofconcepts historical both 53 52 51 different with (3) the goals of differ, their investigations historianand their (4) prosecutor present truths different, (2) a the object prosecutor’s of unlikea historian’s, is research, firmly defined, the of truths a (1) prosecutor: the knowl fromhistorians of truths the forreasons differentiating between fourenumerating strong troublesome lurking question behind – Verbrechen“, op.cit, in Frei 51 (ed.), Norbert

The quote is taken from Carlo Ginzburg, “Just one Witness”, in Friedlander, op.cit, 85. 85. op.cit, Friedlander, in Witness”, one “Just Ginzburg, Carlo from taken is quote The The Judge and the Historian Ginzburg, (LondonCarlo : Verso, c1999), 117 - Michael „Differierende Wildt, Wahrheiten. u Historiker The most alarming aspect of the challenge was the fragmentation of some of the the of some of fragmentation the was challenge the of aspect alarming most The modes of argumentation. modes of

- 5. 53

edge of the prosecutor interests historianare and the of question legal and hi

51

52 Ginzburgcontinued the tackle more to

Michael recently Wildt went further by

reason cannot principles be why legal nd Staatsanwälte als Ermittler von NS Ermittler als Staatsanwälte nd at

legal and historical historical and legal of centre the

ground in both disciplines, as as disciplines, ground both in 118. ly because judges and judges ly because or perhaps we should or perhapswe should and back? For quite Forback? quite and brought under tightbrought storical truth(s).

He He 24 - CEU eTD Collection 243 Testimony” Expert and Truth Narrative Truth, between‘historical the ‘narrative truth’ and truth’“Historical legal in Marianne proceedings. Wesson, Časopis za suvremenu ICTY”, the povijest of front in Wtinesses Expert as Yugoslavia Former of Territory the in Conflicts about Truth for Search in “Historians Turković, 1994), 73- Onati Law, of Sociology the for Institute International Judicial and Historical”. In: S. JacksonLegal B. (ed.), Semiotics andSociology of Law. (The Onati events.” establish justice and compile to a awful broadly accountof accepted contentious, varieties of may truth reinforce one in another two And the and consistent. parallel may be each outcomeand of the may be identical complementary,and testthe of their validity maydiffer.But raw the material they use nor competitive necessarily neither are truth for frameworks the other…Thetwo on academic historical interpretations engaged in side, and those onejudicial process, on involvedin bythose ‘truth’ quest for the “the evidencedoubts, twopurposes: serves same ZverzhanovskiIvan mai Gow and working them.James with or witnesses as either practicing were who scholars of field the from came accounts frequent. legalhistoricalof an differentiation between d evocation isthe Truth,truth particularly the the incompatibility theory. Among the different evolved truths from the fragmentation of 56 55 54 ‘true’ result sought by histo the goal of best the possible result given the of time a limits judicial proceedings and the by academic …Thus,there historians an is inherent incompatibility between the forensic conclusion that“Forensictruthdrew theis depressing not more the sameas truth sought papers

On different notions of the truth in law and history see see history inand law truth ofthe notions On different M.C.Mirrow, Purpose Trial: Milošević “The Zverzhanovski, Ivan Gow, James

, 32 (2004):, 897 Paradoxically, this development has once again put on the table a new version of of a version onthenew tableParadoxically, has again once development put this 55 54

On the other hand, M.C.Mirrow, who served as an historical witness, expert How cope to this with challenge? Different and disturbingly disparate Kennewick Man, Identity and and Identity Man, Kennewick

rian constraints.” time regardless of the Washington Law Review the Failure of Forensic History of Forensic the Failure Leon Sheleff, “Four Thruths – Thruths “Four Sheleff, Leon the quest to restore peace and security, to to security, and peace restore to quest the , 36, (2004), 40 - 88. More on legal truth in Ksenija Ksenija in truth legal on More 88.

5 (1984): 331 - Nationalities and Nationalities Performance”, ntained that, in spite of some of spite some ntained that,in , in: Alain Wijjfels, op.cit, op.cit, Wijjfels, Alain in: , 8. Also differentiatio on 8. 56

354.

Legal and Political, Political, and Legal

25 n CEU eTD Collection Quarterly into each and every epist every and each into Important intact. notion own right, its debate in this ought necessarily get not to exported the keep to who wrestle among those and different disciplines, along the of notion lines who parcel thefrom of ofamonge theboth those theth notion present fetishization truth, furtherto puzzling debate, this thatmuch maintains derives of thesis the confusion this 58 57 ofepistemological the topic. dimensions thin substantiate the this line in work of several who helped authors me wrestle the with circumstances.” of variety a in other each to close come least at or each other …onthe contrary, a great activities show manythat the human twocan meet, dest the acknowledgedof differences, the “in spite he observedthat legal truth”. Still, seem cultivate to their own brand ofthere truth: wouldthus be a historical and truth a that the environment.” guided from byrules those characteristic of different history and in academic the pra endeavors setting a in legal are, of mutually course,not activities. Nonetheless, exclusive same an purposepursingthose for academic writing and historical research and with abox less rigid take, likeDouglasLittlefield, who concluded that“undertaking witness the of out came apractitioner Many debates. epistemological of mercy the at be historiography to legalareimportant also too left everyone and to process for discussion,

Alain Wijffels, op.cit. 13 op.cit. Alain Wijffels, Douglas R.Littlefield, “Field Notes, The Forensic Historian: Clio in Court”, Court”, in Clio Historian: Forensic The Notes, “Field R.Littlefield, Douglas inies ofinies historical researchand legal such proceedings to areextent not foreign to ctice of history in the ofand legalctice ona history is arena set of operates basic in assumptions How move to pass these seemingly the Without positions? irreconcilable ambition

25 (1994): 25 507. “discussions on HistoryLaw and often tendconsider to areas thatboth would 57

Summing up the remarks on the differing truths, Alain Wijfells observed Alain Wijfells truths, differing onthe up the remarks Summing

- 15. emological discussion. Namely, if the truth is too important to be emological Namely,be to discussion. important too the is truth if

58

Western Hist Western Iwas trying to orical orical 26 CEU eTD Collection On What isWhat History On Roy Jenkins, in history of his philosophy on Details understanding of history. concept of liberal irony, particularlyas itsquared well with Hayden White’s Ipretensions. Specifically, happy initially find morerefuge to was than Rorty’s in fornotion myprovided me and wi thesis, T the hence task; I tone to down their differences tended Onichtdieser with Freunde, of formingunderstanding than to my aallof eyebrows.themcontributed few However, more raise might it that aware onesentence, in Bernard FeyerabendWilliams Paul and the manner the in principle.” not of application, laypersons and ledexcesses, theirthe True,to but representatives. has thus fault in lies l the before “Testifying witnessing: expert of practice understand thateven such skeptics as Feyerabend initial negative stance towards historical expert witnessing. However,I grew to me that the issue cross the of also convinced They of interest). my field frequent the in very pseudodebates (the latter 60 59 and the ‘the of with encounterkind objection, truth’ the maymore same distortions once ideological, or self often be to turn out biased, instance, onhistory. Account truthfulness” against as “reflex deceptiveness”, emphasized that“suspicion he fastens, for andTruthfulness on Truth proactive byBernardchampioned view, Willia

öne! Paul Feyerabend, KillingTime Objectivity, Relativism and Truth and Relativism Objectivity, Rorty, Richard , as they make to megave the tools between a distinction debates and To this

end, I consciously take the risk of evoking the names of Richard Rorty, Rorty, of Richard names evoking the riskof I the consciouslytake end, . At the very beginning of his study, regarding the “demand for “demandfor regarding the of study, his beginning . Atthe very 59 , (Chicago : University of Chicago Press 1995), 146. 1995), Press Chicago of University : (Chicago ,

- This skeptical line of argumentation favorto seemed my s whichs have been offered as telling the about truth the past disciplinary understanding of truth is a central philosophical philosophical a central disciplinary is truth understanding of

th the tools to approach to theth tools honestly, it without but ,

(Cambridge : CambridgeUniversity Press, 1991), ms, particularly in his collection of essays 60 - serving. Butattempts to replace these

Gradually IGradually the shiftedmore towards were more merciful towards the the towards merciful more were aw, have experts respondto the

(LondonRoutled :

ge 1995)

27 CEU eTD Collection University Press, 2002), 1- break out in seve in break out truthfulness, between and bytensions generated culture problem, the this truth that are they can or thatthe situation happilycoexist is stable …The tensions in our present study.” least if the are humanities aand passionateintelligent supposedbe to as regarded w thatgoes addedthe topic,notingand the of to urgencythe of “thatdenial, politics state makes thatone does need not know to the in truth order recognize to a lie.Also, Williams mistaken for the iss ThereforeI Williams’argument to subscribed the to issueof not the is truth be that historical expert witnessing is something of practical a examplesuch of tensions. truthfulness and the reject years,a ..We accelerate decontructive vortex can demand now howfor see the arguments can merelybe added the to problem, and, as has often happened recent in arises,question 62 61 between Inambivalent … encouragement. the truth, moral absence difference of the the “attackRorteanabout concerned which to ontruth, given Rorty has sometimes yet cautious another IInfoundHaskell helpful. was quite alike, witnessingexpert towards distrust experts neutrality”not indispensable my balanced in Haskell’s the positioningpractice. toward “objectivity is understanding his that Ifound the historian. thepracticing fieldwithin of

ith it, offera real risk the of humanities’ beingalienated fromthe rest the society, of at Ibid, 10. Truth On and Truthfulness, Williams, Bernard An Essay in Genealogy, (Princeton and Oxford : Princeton 62 In the work of Thomas Haskell I found the operationalization ofI thi Haskell the operationalization In Thomas found work of the

whether any historical account can be, aim to simply,true …Such ral styles conflict.” of ues of sincerity and accuracy, as well as to the general implication it it implication general the to as well as accuracy, and sincerity of ues 3.

– ion of truth can go together. However, this does not mean ofgonot ion can truth that However,does together. this expert witnesses, but also lawyers, an lawyers, also but witnesses, expert

61

I grew quite convinced that the issueof I quiteconvincedthat grew d historians who criticize s urgencys 28 CEU eTD Collection Sears Case”, Texas Law 66 Review University Press 1984) , 2. history bad.” from on whenever history scholarship wefrom distinguish good fiction, propaganda, or attention to the intricatenetwork constraints of that weprofessional historians tacitly rely ideal…” perspectives, possibility Justice a an becomes of incoherent adjudication. beyond a incommensurable clash collapses and nothing than of victims villains into more 66 65 64 63 ones.”prejudiced or triumphalist by taken be on will tasks,they these shun good andIf historians judges of history. history… the but historianwouldli perfect justice, just as there is no judicial outcome that can capture complexity the of renders that narrative historical one no be can “There Maier: of Charles motto idealistic and realistic both the respects many in s echoe ambition Such well. as comparative oriented but research opinionatedalso critical; but just just not not casebut sensitive; generalizing, just descriptive, not proscriptive; occasionally but just which not thesis is checks. reality withstand Sears) alsoa proved proof be to thattheoretical onexpert standpoints witnessing could freedom ofand one witnessingconcrete expert of the example cases(EEOC onthe v. profession. Haskell’s ability views apply to his concer responsible towards own methodology, his wellmy squares with understanding of the holistic, than rather transparent objective, than rather accurate truthful, than rather sincere Hopkins University Press, 1998), 10.

QuotedAustin in R.Kearns, 1 Sarat, op.cit, Thomas Thoma Thomas Haskell (ed.), Objectivity is not Neutrality. Explanatory Schemes in History in Schemes Explanatory Neutrality. is not Objectivity Haskell, Thomas s Haskell and Sanford Levinson, “Academic Freedom and Expert Witnessing: Historians and the the and Historians Witnessing: Expert and Freedom “Academic Levinson, Sanford and Haskell s 63

Haskell evokes the important notion of the the notion important evokes Haskell 64

This minimalistic approach definesthat rol the The Authority of Experts. Study in History and Theory

65

On the basis of such insig of such On the basis

(1988): 1629-

66

ke dojustice; to the judge establishsome version must 1655.

hts, Ia write to encouraged hts, was ning the relations of academic academic of relations the ning ethics of history e of the historianas the e of (Bloomington : Indiana Indiana : (Bloomington , (Baltimore : Johns :Johns (Baltimore , , by“ calling 29 CEU eTD Collection its nesting major period legal systemsin by end of the 19 the traces developments the in the realmexpert of witnessing,emphasizing importance the of - case shift in expert witnessing in various social sciences, but still makes a case for history as Hence its sub its Hence dismantles some of the exclusivity unjustly attrib approach an Such century. of the turn at the the sciences gradual through shifting chapter, of historiography and more eventually it cont made and law resulted in an implicit theory incompatibility of plausible seemingly paradoxical the thesis that the disciplinary intimacy between history

the dramatic the impactexamines of of incompatibility, and undermined notion this Gr the interwar period as implicit the theory of incompatibility. The second sub giving expressed tension in forproximitylaw,rise and a to primacy of andbattle history forensicati historiography with do so It Friedjung the in Dreyfus and cases. argues thatthe on the applicability of ‘soft’ sciences in the courtroom by the time of the first attempts to debates heated the alongside sciences, socials towards sciences fromand natural applied eat shift: Theconcepteat shift: universal of human rights specific by taking into account into taking by specific Both research design and content wereand influenced byBoth attempt the research design to make

Preconditions on of history was substantially delayed as it was hindered by the close byclose was wasas history it the substantially hindered on of delayed - chapter, chapter, The long path towards forensic towards path long The historiography , returns the to general of expert evolution witnessing and its Research Design and Sources and Design Research

its intimate and longstanding connection with law.It

is anis investigation of the currents that uted to historical expert witnessing. roversial. end, To such the an first

that has delayed the forensication

th

century. It notes the shift shift It notes the century. , tracks the gradual - chapter, The 30

CEU eTD Collection ofhistory the incompatibility of and law. eroding is, the theory and still was, rereading past, which legal ofleading the a to massive human rights, the conceptof towards universal global shift of aencompasses creation the analysisdramaticallyHowever, new. ofsurpa the scope this landmark for relations between historythe is andthesis law, not introducing something occurred the bytheWar. SecondBy end World of trialsas locating the the Nuremberg genealogy historical of expert witnessing, relating great thathad shift itto the paradigm and made historiansfollow itis scrutinized.It furthers existing the interpretations the of ofThe examination the which eventuallycontext dragged the past into the courtrooms, reach its peak in the mid 60’s with the Eichmann trial and the FrankfurtAuschwitz trial, peri postwar immediate the in stream unsteady an in occurred which cases War It theWorld set of Second dealing is witnessing Europe.with continental in expert which the to forensication the of postwar historical extent influenced trialshave chapterhistorical explores standards scholarship Therefore procedure. the and of legal of requirements disciplinary respective the with accordance in past the of interpretation of closeness the inherent witnessingexpert both of revealed historical paradigms usage of the recognizably features different the in realmCivil and Common of law. Those two l different of varieties thataccompanied have the institutionalization of expert witnessing in importance It the arguesfor and law. Continental Common both ashistorians in experts 20 of the first half events of

The secon The egal contexts.It maintains thattowards shift the universal human rightsgained

historical and legal of investigation the past, and a bitter rivalry the over d chapter, chapter, d th Institutionalizations

century on the sensitive balance between history a balance between history century sensitive on the

, traces the first postwar appearances of of appearances postwar first the traces , sses Nuremberg and Nuremberg sses od, just to to od, just - nd law. nd law. related related the the 31 CEU eTD Collection cases Europe, in and testing is the theory of transfer the in light of war crimes France, in raging the issue, over started that controversies the with cases, related gender in and cases, antidiscrimination historical expert witnessing intheaccounting USA, for the continuation ofthis practice in contemporary in causing de the tumults around the witnessing conceptthatexpert has shifted from the USAto continent, Itclash. current in followsthe arguments onhistorical debates witnessing, expert focused a as byothers and the twoparadigms, of the merger as paradigms, bysome understood Indian cases the to Education claims Brown is Board of v. admittance of historians into American courtrooms in antidiscrimination cases, from gradual and slow humanThe to rights. regards in sensibilities change in reception the of thein USA.The American was paradigmglobalshift more of witnessing expert historical of origins the examines chapter same The witnessing. expert Continental legal settinghas led to the formationof a fairly distinctive of brand historical con cases by criminal characterized paradigm, This debates. contemporary of both whichin historians a took considerable role, frequentlyforgotten the in War World Second in interest of renewal the tracking simultaneously It is case. Continental trials. adversarialthose proceedings, characteras opposed ofthe to inquisitorial type the of wit expert of kind a different of led the to branding cases.That criminalthe character predominantlyderiving rather of civil, than from the differences pointing the to major law, also Continental but of in the developments The chapter, third Problematizations,

its legal peaking discussions, thewith Sears and the regulation its bates. It therefore examines the proliferation of of proliferation the examines therefore It bates. deals theof with junction the two nessing, characterized by the the by characterized nessing,

in a sense mirroring the pace pace amirroringin the sense

related the to domestic ducted the in - related related 32 CEU eTD Collection about the dark side of the 20 The encounter the with phenomenondemarcation of of the legalproper writing historical compares those Criminal and Civil suits within the Common law and Continental law. importance.defamationIrvings,Zündel’s Restingcha David to casesfrom on the legitimate historical interpretation, historicalexpert witnessing of proved outmost of limits In casesregarding the the witnessing. expert of brands different the merger of the nature proceedings and of legal theirparadigms. positioning between various from comes of witnessing historians expert differencesthe in for plausible explanation necessarilylaw not is functionalthe most approach, as a flexibl much more and Continental historicallaw witnessing expert towards binary Common in opposition forward already all with the burdened controversialIt aspects. also thatthe maintains stepped historians which in Europe, in time same reignited atproceedings the which have witnessing in differing legal settings, returning to the issue of Second World War Second World the issueof returning settings, to legal witnessing differing in also but ones belongingcentury the the into debates to 21 the 20 and refocusing Hague, of The International Court Criminal Nuremberg the to criminal law,closing therefore circle the fromInternationalthe MilitaryTribunal of collapse strong of communism, giventhe emphasis to new is advent of international global level after briefly 1989.Examining Eastern in the events Europe following the also dwells onthe spreading of of the historical phenomenon expert historiographical Apart horizontal contexts. from this internationalization, the chapter and national states the of borders their transgressing often otherscharged, testified, and The fourth chapter,The Internationalizations fourth in in the former Yugoslavia.It important out points variations of historical expert th

century cases which turned in historians into ha , aims to further debate the examinin by st.

witnessing onthe

- ve been been ve

related related e and pter pter 33 th g

CEU eTD Collection visibilitypresent after Nuremberg beginning and were from 20 prominence the of the aninto earlier period incidental. are not Many and historical legal trends thatgrew to period, w in order, The areexceptions. there bulk of important the cases derive the postwar from thewith past. theto process of dealing arguab is practice this as witnesses, expert as historians lessenHopefully, should it the reluctance ofposition to historians themselves towards phenomenon. of and the particularization generalization balancing the between great a taskit for but thesis, of the scope this does follow a generalorientation of aims to explore the entire field of historical expert witnessing, which this ispoint at too which in different contexts are historians part. say to that the Thatnot thesis is taking refl to selected are cases Those examples. auxiliary many on reflections with accompanied case, paradigmatic the by assumed role central a with clustered, are trials which in study, acase is chapters these of each that said be It may appearance. region, trendcertain also an but typical intellectual of courtroom types of historical historical witnessing, expert and grasp at only the not same period time a or particular a proximity. applied order is in approach This maintain to the cohesion of the phenomenon, epistemological and thematic their with accordance in chaptered and clustered time same behind the sele century nd yet to trace its different manifestations. Each of the chapters elaborate directly on directly elaborate chapters the of Each manifestations. different its yettrace to nd

Although the cases are mostly presented in a diachronic fashion and chronological chronological and fashion a diachronic presented in Although casesare mostly the It is apparent that the thesisopts forgeneralist a approach; such is the intention as powerful intellectual undercurrents. Hence, although the formal intellectual Hence, undercurrents. althoughtheas powerful hich historians became established experts. However, occasional ‘detours’ However,experts. occasional became established hich historians ction of the cases, which are broadly set in a chronological order but at the the at but order chronological a in set broadly are which cases, the of ction ly their most visible contribution ect the range of range of the ect terminus post terminus post 34 th

CEU eTD Collection for title theexpressed what dissertation. in wouldbe otherwise a rather pretentious that into historians arena, for better or worse.need The acknowledge connection to is this and attemptsthe to overcome them through the eventually legal dragged means, and have continued thecentury. in 21th brought extreme injustices The about by age, this quem theworld sequence into of intensive, murderous the conflicts 20 which characterized and was racial discrimination, the indeed turn of sight the in dragging century, by the of extremes, marked with competition nationalof states andempires, fueledethnic with the dissertation carriesnotion, even it beyond the boundaries set by Hobsbawm Extre of as TheAge Hobsbawmthroughout byEric period dubbed the the ‘birth’ of international criminal law in Nuremberg, andends with its new theof Still, bulk thenational research jurisdictions. concerns starts with which the period isolated from derived are cases the of many character, international the for As not. are many crimes, war the to related are cases the of number significant a Although case. historians’ expert witnessing in international war crimes trials. That is, however, not the Nurem From structural misinterpretations. also chronological, but avoid orderto altered, in was subtitle the occurrences multiplied, such War. As World Second events the predating Hague ante quem, and terminus Nuremberg Hague and was Nuremberg beyond) The to law also andtraceable is the history beginningof the from 20 International The in Court Hague.In Criminal a sense, the overlap international between

, in the initial subtitle of the dissertation (Historians as expert witnesses from berg TheHague to might mean that dissertation the is interested solely in beyond corollary the was meant to emphasize the importance of the neglected neglected the of importance the emphasize to meant was th

century, and continues andcentury, continues mes . Picking up this Picking upthis .

onset in theonset in .

was was The The The The age age th 35

, CEU eTD Collection from report. expert his However, of study his historical knowledge,Defense on In amongIrving’swell asbookonDavid his the as sources, fact in methodwhich derived in the trialsI discuss fall into both categories – witness expert an as who participated Professor Evans, theofRichard writings example: concrete a take To visible. barely becomes literature the and sources the between own, rather than accompanyingIn literature. thatis fact, wherethe spot t Further, debating the texts merit of the practice the fact are frequently in sources their on te Theyexperts. are also composed of the writings and recollectionsof who historians legal material derivingfrom them, or the legaldocuments which frame the role of the the to transcripts cases and the of necessarily donot the amount thesis the this purpose of for sources Original obtainable. as sources original the of many as same principle use –to guidedI bythe In was situations, both discussingin theconfusion practice. causing much more attention wasgive prominence evident, is and which ignited the debate witnessing. onexpert Additionally, whose cases the to given was Precedence explained. be can criteria many Still, them. to allocate to I able was attention the and chosen cases of terms painful in both choices, broken witnessing expert traces of ona historical global toll, expressed its took in scale science political in and the studyLastly, of memory. designof the tracking ambitious the between disciplinesthe legal of andhistorical stu history. This distinction is further complicated as the thesis is necessarily situated researchmaintain in contemporary increasingly the belongs to field of which difficult to

stified in different courts, and of the lawyers who were in contact with the practice. the with practice. contact who were in the lawyers and of courts, differentstified in rces and literature becomes becomes literature and betweenTherces traditional division historical sou n to the cases which were, in my opinion, wrongfully neglected, my in the wrongfully n to cases opinion, were, which the transcripts f transcripts the research to reference frequent with dies, rom the trial are clearly clearly are trial the rom he dividing line 36 CEU eTD Collection War Crimes Chamber of Serbia) and Ivana Ramić (District Court of Belgrade). I am also also am I Belgrade). of Court (District Ramić Ivana and Serbia) of Chamber Crimes War Bogda Prosecutor and Garotić Marijana and Michael Tribunal (International Criminal for Hehn the Judge former Yugoslavia), ( Beigbeder and Yves practice investigators, starting with of a with judges, prosecutors number Lampy me were John with reasoning and sharedtheir testify to who declined Among ones the Cvetković. Srđan and Nikolić Kosta Koljanin, Bill Tomljanovic, Milan Tvrtko Jakovina, Iwitnesses Allcock, Robert John talked were Hayden, to Bjelajac, Mile Nicholas Miller, The a bookproject. avenues servedasonefor possible scholars expert of thewho structuringa this suitable questionnaire, approach this by inclinedformalize to atI first was Although phenomenon. of the studied observers interested participants or I numerous with conversations had thecomposed of s of realm the to theybelong the bibliography, as calland for own. others literaturewould a onits in study Infact, research. ato division which is to a degree reflects but the strange, transdiciplinarycharacter of the element, which itintosets literature.A similar criterion wasapplied elsewhere,and leads does contain quiteaofpersona his lot the other hand, his article onhistorical expert witnessing is listed as literature. Although it their work. On understanding of witnessesdependent ontheir are largelyphilosophical History

, Dejan Jović, Nenad DimitrijevićNenad Jović, Dejan , More importantly, among the sources, some remain conspicuously absent from conspicuously absent some sources, remain More among the importantly, , is also listed as a source,as itreflects mybelief International Military Nuremberg), in April Carter Tribunal Hennis, Tomas

a more detaileda on more explanation why some authorssources in are listed n Stanković (War Crimes Prosecutor’s Office and Office Prosecutor’s Crimes (War Stanković n

turned out not to beturned to not feasible out andperhaps remains

l recollections, it maintains a strong reflective and HenryI Rousso. meritsof the discussed the o- called ‘tacit knowledge’. They are are knowledge’. They ‘tacit called

that the performances of expert expert of performances the that 37

CEU eTD Collection rtu Wjk Rt Tie, nrj ioi, oi Ath, eaa iz Balázs Uitz, Renata Antohi, Sorin Trencsenyi,Immanuel Geis, Xavier Bougarel, Garry Simpson, Mitović, Andrej Teitel, Ruti Wojak, Irmtrud among whomparticularlyhelpful were N and ideas, works or published unpublished who sharedtheir indebted the to scholars Libraryand the College, Magdalen Oxford. of University,Library the the Research of Petnica Station Valjevo, in the BodleianLibrary Archives the ofArchives Yugoslavia, of Serbia, the Library European of the Central internationales, the UniversityLibraryBelgra recherches de Atelier Centre, Cultural French the of Library the Yugoslavia, Tribunalformer International Criminal forLibrary the of the Library Hague,the The in Rechtsgesch für Institut Plank Max the Library Belgrade, theInstitute of for Historyin Contemporary Library the Sofia, the of Library the University of Leiden,ofLibrary the of the Centre for Advanced in Studies nationale France,de British Library,the Lithe Bibliotheque the theof gathered with courtesy but have been dissertation could not this Lastly, of andliterature needed Diethersources Richard for amount Wilson Poll. the IngoLoose,Siegrist, Karl Giordano, AvTucker, Hall, i Witmann, Rebecca Christian ichte in Frankfurt am Mein, the Peace Palace Palace Peace the Mein, am Frankfurt in ichte orbert Frei, Erich Haberer, Erick Ketelaar, Ketelaar, Erick Haberer, Erich Frei, orbert brary of the University of Friebourg, the Friebourg, the University of the brary of de, the Open SocietyArchives, the

Irène Herrmann , Hannes , Hannes 38 CEU eTD Collection specificities ofentangled, the if implicit, relationship between history and law. It case thephenomenon.a with complex doesas burdened resurface, however, ag understanding role the courtroom a of the create emergencehistorians background of for relevant deemed sciences forensic in Developments contexts. legal different hard rangingdisciplines, absorbedfrom and scienceshumanities was to how it into emerged dif in the role expert under conditions which and observethe also to dwell of onthe theofvarious development peculiarin institution expert legal traditions, forensication bymeans is restricted no historiography. rewarding to However, is it to of process the that hence neglecting expert, appropriate an is a historian whether witnesses. enabled lawrelations that betweenand history of a analyzed point turning War is as World by Second great the The induced shift forensication. questionable and delayed of case aspecific as history for made is case the a of into disci historians role expert order the put to in scrutinized is forensication of sciences troubledof The historical witnessing. expert ainst which the forensication of historiography appears by no means a unique unique aappearsforensication of bynomeans whichhistoriographyainst the The debate the craft within around frequently too the of question revolved chapterThis the explores epistemological genealogical and (I.1) (I.2) prehistory

I.1 The Long Path to Forensic Historiography PRECONDITIONS Chapter I

the appearance of historians as expert expert as historians of appearance the

plinary comparative and perspective,

ferent ferent 39 CEU eTD Collection Perspective”, “Expert Kargon,witnessingdevelopment in Robert Testimony of law: Historical in expert common Sachverständingen im St Zivilprozessrecht Kerameus, Konstantinos means of proof. generis a sui therefore being expert, an as solely frequently a witness,but as not defined misleading in the of realm Continental law, where related the institution is most law, becomes Common customary“expert witness”, in labelEven terminologically, the throughoutmany and history, of thos provided, the type of assistance and the legal contexts varied very significantly ways Thewas content, it type the very its legal knowledge, institution. complex of justice by specificknowledg providing e for legal use. Historically, expertwitnessing is a beyond the all 1 to the evidence. As a result, there is relatively little scholarship about the histo related andjurisprudence practices judicial of factor a significant be to science considered activity consider not did lawignored becausebe courtsof to sites it important scientific theyof law, scientific testimony expert long has been by overlooked Historians of both. science Golan: “Situated at the thein absence of thorough research onthe topic,for by the reasons Tal summarized

History of continental institute of expert is thoroughly researched in German literature. is thoroughly legal Cf. ofexpert institute ofcontinental History It is surprisingly difficultto define genericallythe courtroom role of experts before the twentieth century. of lawthey ignored because Historians before it never the twentieth ns of Expert Evidence: GuardsExpert I.1.1 Who ofthens Guardians? Transformatio Law andHuman Behaviour, , (Cologne : Carl HeymannsVerlag 1963); KarlhansDippel, Die Stellung des - purpose truism that an expert is a person who assists the rendering of the thatanarendering assists of is expert person who truism purpose 1

This peculiarThis position readilyis the in literature, noted furthered not but

Die Entwicklung des Sachverständigenbeveises im deutschen undgriechischen , (Heidelberg :rafprozess Dekker 1986). A bold attempt to accountfor

intersection between theinstitutions twodominant of science and

10 (1986),10 15- e differences contemporary persist in jurisdictions.

27.

ry of the 40

CEU eTD Collection only anegdoticaly related to the institute of expert witnesses. Cf. Dippel, op.cit, 5. op.cit, Cf. Dippel, witnesses. expert of institute the to related only anegdoticaly 31 (1996), 184 comparative study expertFra States”, in testimony ncethe of and United Texas International Law Journal Approach, Series Criminal Sciences : Mass Technology in America (Cambridge, , (London and New YorkRoutledge, : 1989); Sheila Jasanoff, Bar. the at Science Law, and Science edited volumes: Cf. alleviated by atrend in recent inquiries scrutinize to nexus this eitherin alocalized co America Science, science and the law.” and the science relations between the two most authoritative institutions in modern Western culture 4 3 2 but also biblical figures like Jo Zoser,Pharaoh the Imhotep, of Vizier Grand could list therefore courtroom expertiseone rely not did ofkind assistance. expert onsomeAmongthe “founding fathers” of examples are legion. a Meticulous le knowledge favored bydifferent cultures or neededdifferent in circumstances. Such concept cont experts’ of variety historical case, constructing hence an insight thatmight the rendering assist of justice. The they step forward as a bearer stake. at establishment of legally relevant facts is not based on their physical proximity to the case with the institution of the eye probably undersdevelopment peculiar institution, ofbest this Testimony in Court – Court in Testimony Eyewitness on “Experts Hallisey, J in Robert More account. ofeyewitness reliability on who testify experts furtherwho complicated by experts

This is adangerous generalization, as itnot differentiateto is always easy between scene The two. the is Tal Golan, Laws Golan, of MenTal andLaws of Nature,The historyof scientific expert testimony in England and Lirieka Meintjes

, (Cambridge : Harvard University Press, 2004), 1. However, these obstacles are somewhat are obstacles However, these 1. University Press,2004), Harvard (Cambridge, : (Oxford : Oxford University Press, 1998); Therefore an not easy is it comprehensive provide to of a the task account 3 –

They usually do not testifyabout not w They do usually

the nature of courtroom expertise was largely dependent on the brand of of the brand dependent on largelyexpertise was courtroom of the nature Certainly,find legal are thesemanifestations, there who as scholars early occurrences only - Expert Evidence in the Criminal Justice Process. A Comparative A Criminal the in Justice Expert Walt, Evidence Process. der Van Expert Evidence: Interpreting Science Expert Law Evidence: the in (ed.), Wyanne Brian Smith, Roger

A Short Historical Perspective”, Perspective”, A Historical Short 2

specific of

, (Amsterdam: Rozenberg Publishers, 2001), 13; Robert F.Taylor, “A -

witness. An expert is awitness. An is expert person whose to contribution the were also the eyewitnesses, and also by growing the presence of seph and Daniel. ribution derives exactly derives ribution a from highly such contextual gal historians suggestwas there legal system no that

Harvard University Press, 1997); general knowledge that can be applied to a given a to applied be can general that knowledge

Howard Law Journal hat they saw, heard or felt. On the contrary, the contrary, felt. On or they saw, heard hat 4

Traces of experts’ contributions arecontributions Traces of experts’ tood through contrasting it through tood , 39 (1995/

Helen Reece (ed.), Law (ed.), HelenReece and

6). 237- ntext or through through or ntext 286.

41 – ,

CEU eTD Collection 1324 Miller interestingGinzburg, research Carlo of of subject a was inquisition of experts the by about brought destruction Fischer 1977), Verlag Taschenbuch Folio Society, 1968), 191- declamation which 1440. in appeared donatione Constantini et ementita credita falso De work his in Donation of Constantine formedieval legal texts purposes,Lorenzo Valla’s such as debunking alleged of the scrutiny ofsubstantially expertisedevelopedthrough the of critical different kind 15 long the road, this the end of at For instance, expertise. of produced types and new institutions Celtic German various with of law Roman whatever alongside theremained with blendingof nameobtained its – practice the law Roman With Greece. Ancient in as well as Mesopotamia in present 6 5 shiftedbut toward other realms of interest. Thethe to Church resort - Empire.Roman However, might it also be noted that the practice extinguished, was not disceptor, peritus, and numnarius, judges relegated known experts, under to Latin different names ( in the which matters technical other and handwriting parentage, as well as issues, medical and various of sanity state were the the forum” for was “what Republic and Empire, conducted by which in “not only laymen, and astronomers physicians cases at stake, the authors of this booklet leave the possibility “lawful of exorcism” inquisitor to recognize witches and perform exorcism. Admitting the complexity of the especially Theologians.” especially

Dippel, 6 Dippel, Malleus Maleficarum Malleus Kramer, Heinrich Sprenger, Jacobus (Paris: Gallimard, 1976). , (London Routledge : and 1980) EmmanuelLe Occitan Roy Ladurie, village Montaillou, It is usually asserted that notion of forensics regressed after the collapse of the of forensicscollapse the notion It after the assertedregressed usually that is - 8.

th

century century forensics 2. 2. Cf. undHexenprozesse ManfredHammes, Hexenwahn , (Frankfurt am Mein :

6

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– meaning “what is formeaning is “what theIn forum”.of times the the expert The Cheese and the Worms. TheCosmos of a Sixteenth-

us ). 5

offers a variety of mea of variety a offers

[The Hammer of Witchcraft], (London : The The : (London Witchcraft], of Hammer [The

driven be the judges, but ns for an expert expert an for ns Canon law, aestimator, , de 1294 a Century Century 42 CEU eTD Collection Raumes Die Geschichte de Sachverstandigenbeweises Poppen, Enno in imStrafprozess des deutsch- has gradually developed into an accusatorial system of fact of system accusatorial an into developed gradually has expertise, it became significant as the rights of the defendants Common law increased. of courtroom muchterms to in amount difference not did findings. this Although constrainedbyits were bynomeans but deemed necessary, on whichever expertisethey proceedings. secretive essentially controlling were Carolina, Constitutio explicitlyas is such the Criminalis in contemporary mentioned and shape, witnessing of expert began resemble institution to the criminal prosecution, its 7 judges guiding.regulating and were the in way questions and answer their judges the front in of reportsappear submit or . Civile Napoleon’sCode in Constitutio Criminalis the as Theresiana such of legalcodifications early procedure, decaychanged This during the title. however was amongdiminished, other reasons, becaus from 1667encouraged judges seek to but opinion, expert trust in institutionthis XIV Louis of the Ordinance instance, For particularlyrespected. not probative was value their actual impact was limited. The na were bythe summoned became judges,In law, Continental the experts still but obvious. investigative difference role.grew of the Asimpactexperts the onthe position sharper, law, the inquisitorial system still presum rather than the judge, were court supposedsupply to evidence. with In the Continental

Constitutio Criminalis Theresiana andof role the experts is Theresiana commented Criminalis Constitutio Carolina, Criminalis Constitutio , ( However, as states all over Europe were gradually assuming monopoly over monopolyassuming gradually over all over were Europe statesHowever, as Göttingen : Musterschmidt 1984), 58- from 1532. Judicial process rested in the hands of professional judges who judges who fromthe hands 1532.Judicialrested processof professional in 7

In thi In s legal setting,the experts werecalled by courtthe to

63. ture of their expertise was doubtful, and its and their its ture expertisewas of doubtful, e the function of expert became a hereditary ahereditary became expert of function e the

ed that the judge should hold anhold active should the judge ed that

in German and ultimately lands from 1765 At their discretion, judgescould rely - finding, in which in finding, the parties, sprachigen 43 CEU eTD Collection Problems fact.” eventually prevailed by end of the the 18 jurors – were expert Theydispute. laymen, helpers but the to court, and therefore chosen often for their understanding of juryemerged in England, jurors were at this earlystageconsidered simply not to be what wouldbecome law and Common legal practice continental in As trial Europe. by 11 10 9 8 party to testifyfront of in the jury ofIn laymen. their performance, a far stricter from the continent, the men of science became “expert witnesses”, uponby called the science.” of men by answered be only can science of men of reasoning the science of matters in “For the famous Folkes v. Chadd testify the to causes symptoms of the observedin autopsy. a which in the murder both prosecution, trial, and defense physiciansPembroke called to principleatalso engagedThis work was the in 1678case v. bythe parties. of Rex the judge, but by could experts beofdifferent summoned expertise.The understanding Britain in leadinga system by However,towards aswas Europe. in the the judges, de increasingly concerns.” it and which faculty, thatscience aidfor of the matters arisewhich our concern in law other sciences and we faculties, apply commonly As1554,“if onejudge in famouslyprovide English problems. insights into declared

Donald Gormley,“Theof the Role Expert Witness”, Ethnohistory 19. op.cit, Golan, Tal

The caseThe is studied Golan, at length 7 Tal in More in Lloyd L.Rosenthal, “The development of the use of Expert Testimony”, Expert developmentuse the of L.Rosenthal,“The of Lloyd in More 8

At about the same time, the first clear differences could be observed between observed be could differences clear first the time, same the about At Even beyond such practice, the court started to call upon skilled persons uponskilled to call courtEven to practice, started beyond the such , 2 (1935):2 409. 11

That had become the trait of Common law. of As oppose Common the trait That had become - expertised in theexpertised in course of the 17

(1782), a which case in the judge, declared:Lord Mansfield,

“those were to be summoned who could best tell the the best tell could who be to summoned were “those - 52. th

century. Its virtues were forcef were virtues Its century. th

century, and experts wer experts and century, , 2(1955): 327 9

10 Gradually, the jurors got jurors the Gradually,

This adversarial aspect aspect adversarial This

d to their colleaguesd to their Law andContemporary ully in defended e consulted

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CEU eTD Collection decided by thewhich experts, naturallyt led ultimately might be whether the trials arose question issue.The onthat own opinion growing dependantonthe as expert, neither the judge nor the juryform was to their able unable grasp to specialized problem. a certain How witnessesexpert were uponbecause called was the court in need and of information underpinningJuvenal, the basic problem of witnessing. expert The as experts, well as the idealPlato’s state, defended by guardians. its who guar “But character of ideal mockingofexpressed aJuvenal’s the to problem,in similar neatly and lawcustomary Continental by Common begi in the criminaldifferences, ofboth and in expert proceedings civil the institution became prevailed in Britishthe Empire, and thereforethe inUnited Stateswell. Despite as those the meaning these of conflicts and the ways toresolve them hadall features the that today mid the by and witnesses, expert scientific been have on the providers facts, tension. an of apparent causing those court the in process of rendering just you reassertto andI’ll rolegive(give confirm law), of me the the facts, meant the nature and purpose The contribution. damihi dictum, ofold their facta, dabotibi ius adversarial This expert. system, alongside the with other own its could juxtapose side the other and onthe matter, opinion his allowed present to special role of expert witness was exactly induced because he was, unlike eye unlike was, he because induced exactly was witness expert of role special factof notion the between maintained was difference

Although the developments in expert witnessing were very different, they had ledwere witnessing expert they in Although different, very the developments ”Discontent with scientific expertise in the courts has existed as long as there there as long as existed has courts the in expertise scientific with ”Discontent ice, was also revealing the dependency of the court court the of dependency the revealing also was ice, o uneasiness and regarding suspicion the ever, that meant that the court was was court the that meant that ever, - nth century, the debate over debateover the century, nth ninetee nning thecentury. 19th of . The opinion and of the notion

features of the Common law,featuresCommon of the ds the guardians?” exclaimed exclaimed guardians?” the ds - witnesses,

45

CEU eTD Collection 247. “anomalous Anglo- in lawof tr enigmaticprocedure, thethe Common parts most became witnessing one lawExpert of particular countries. the in Common prominence It to grew courts. the before appearing cases civil and proceedings criminal both quagmire of their esoteric d esoteric their of quagmire mightexperts start dominating the proceedings bypulling the judges jurors into and the Even if this partisan malpractice wouldaside, setbe there wasa also possibility the that Golan. Tal remarks new”, be to assumed are 14 13 12 w warnedand jurists as early deny as will 1900that“no one some in thatthe law should expert.” scientific the and liar, Willia Judge remark of famous a to and led hadIts many discontents, proliferation early States. of expertinstitutionalization witnessing byend of the the 19 of testifyonbehalf and hired be to be willing would experts the that afear was There experts. the as well as witnesses, the examining and coaching finding, were They evidence. of gatherers principle the were parties the sys legal judges, the of the hands the werein largely weretensions regulated codes, and through civil criminal and the proceedings themselves professionalization of scholarship the in 19

ay effectively use expert knowledge wherever it will aid in settling disputes. The only The disputes. only aidsettling in will whereverit knowledge expert ayuse effectively Golan, op.cit, 255. Golan, op.cit, 4. Lee M.Friedman,“Expert Testimony.Abuse Its and Reformation”,

m Fosterm from “There 1897: of arekinds liars:the three commonliar, the damned This concernThis more or lesssimultaneously appeared the with full

Saxon law.” Saxon ebates. ebates.

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century the in United with the abruptwith , 19 (1910): (1910): 19 , 46 CEU eTD Collection Review necessary at all.” at necessary the is expert task that a forItare incompetent such because they just theiris to own? kind an each experiencejudgeconfessedly upon founded in foreign between twostatements jury the can “how asked he Finally, side”. one of champion ahired becomes “expert danger that the notedconcern with also He best.” doso can it as how is to question 17 16 15 belongs." it which in particular field the in general acceptance gainedhave which the deducti discovery, from the thing admitting experimental testimony deduced froma well - go a way long while thein courts beand will recognized, force ofmust the principle Somewher define. to difficult demonstrable is stages and experimental the between line the crosses discovery or principle a scientific when Itas that "just the Frye came stated influential knownstandard. conclusion, which be to of of knowledge. expert Court the Appeals Distri Hence United States influencingevidence the positi law and of hence the knowledge,expert of legal a standards set for admissibility its gradually was evolving, of contribution salvagealso positive to the the In legal safeguard to but process, order the and in services of opinion enlist t readyprostitute his sell to – expert an is expert an that“to the juryFriedman, who observed M. Lee was sharper Even maters. scientific in jury the to assistance of be would which

Frye States vUnited Lee 247. M.Friedman, op.cit, Learned Hand, “Historical and Co Practical , 15(1901), 40, 53- After some yearsAfter the 1923in case courtroom in some of ambivalent practice, of the judges came up with a judgment that has served as precedent for the use the use for precedent servedas that has judgment a came with judges up the 15 ,

http://www.daubertontheweb.com/frye_opinion.htm He for called the formation of an advisory of board neutr 4.

nsiderationsRegarding Expert Testimony”, Harvard Law on is madeon is must be sufficientlyestablished to on of an witness. expert e in thise twilight in the zone evidential recognized scientific principle or or principle scientific recognized ct of Columbia came to the . Cf. Gol he side that pays side that him.” he a of kind intellectual an, op.cit, 247- al experts, experts, al Frye v. Frye 17 253.

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47 16

CEU eTD Collection Texas TechLaw(1991): Review- 885 22 inconsistancies of scrutinizing expert testimony un testimony expert ofscrutinizing inconsistancies development hos ofthereforeand knowledge, was quite Furthermore,was viewrecognize resting of ona the it? Fryestatic opinion to judges the are How field? a particular in knowledge accepted generally is What Americancourts decades in come. to Howe guide was to own fields its within general knowledge principle expert acceptance of of 19 18 or otherwise.”opinion by experience, skill, knowledge, training or may the education, in form of testifyhitherto issue,afact witnessqu or a determine to in understandevidence the that “if scientific, technical, or other specializedknowledge will assist trier the fact of to the have Federal proclaiming 1975,which ofliberalized the Rules Evidencefield, from astates formulate to need the Hence, practice.the of proliferation the also to but witnessing, dedicatedexpert studies to variouwith s states in the USA regulating the issue differently, leading persistent, were debates the hand, other the On decades. for witnessing expert of area the sciencedescribed while truth, seeks binary in terms: often are science and law between contrasts were questions philosophical at stake: “The date were research.Not only amongfrauds the fears deeper ofbut present, experts

Sheila Science (ed.), Jasanoff at the Bar. Law, Science and Technology in America, 7. This aspect of FederalRules Evidence of However, despite this controversy, the Frye criterion remained a useful guide in guide in useful remained a criterion Frye controversy, the this However, despite I.1.2Varieties Contemporary Witnessing of Expert 19

- wide approach at least in criminal cases was expressed was cases criminal in least at approach wide 912.

(articles 701 (articles der theRulesder Federal of Evidence”, ver, many unanswered: remained questions ver, law does justice.” does law - 706) Kimberly S. Moore, “Exploring the tile towards spearheading up spearheading towards tile alified as an expert expert an as alified 18

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48 in in - CEU eTD Collection Oregon Law Review Oregon Testimony”, Expert witness”, witness”, Review abo worrying and present the understanding past, the L.Faigman, Michael Poter, Elise J.Saks,your “Check crystal ball at the courthouse please: door, exploring example Ps American : DC (Washington, 1999); StanleyL.Brodsky, Coping with Cross Maxims andGuidelines for Testifying in Court L. Brodsky, Stanley 1991); Association, Psychological American DC : and the Expert Witness, the new science waveof literaturedebunkingcourtrooms.” the “junk American in gave acourtroom, to publicdebatea new aboutfollowed impetus theexperts role with of guidelines for testifying in court available. are readily 23 22 http://www.aafs.org/ 21 20 expertise. or even introducing spec witnessing expert form ofas function, and sanctions, restrictingadmissibility as wellthe witnesses, including the legislation, cross examination, peer review,of imposition expert fraudulent negligent to and a solution as fo put rward were Various proposals and yarn.” categoriesexperts of available toassist inlitigation, in areas including judo, legs pit bulls, has varietyThis 7,600 it advertises company ”Oneexpert that overwhelming: is a experts workadvertise promoteof the and and s Science Forensic of Academy American Lawyers and Scientists andScientists Lawyers 2008)The Expert Witness Institute, Institute, Witness Expert 2008)The 2008). Cf. Expert Witness Institute of Australia, Australia, of Institute Witness Cf. Expert 2008). testimonyfederal the under rules of evidence”, Texas Law Review

Pete Cynthia H.Cwik, “Guarding the Gate: Expert Evidence Admissibility”, Litigations Admissibility”, Evidence Expert Gate: the “Guarding H.Cwik, Cynthia Carol Hendersonnegligent Witness expert the Garcia,” to Expert asolution the of problem Malpractice StanleyL. Brodsky, Testifying in Court. Guidelines and maxims for the ExpertWitness Galileo's Revenge: Junk science courtroom the in Junk r Huber, Galileo's Revenge: , 15(1994): 1799 - s are evident at Expertpages, at s evident are Consequently, College Law Review Law College Mississippi 23 21

Proliferation has in

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(London : The LawCompany Book Limited, 1985). 1824; Kimberly S.Moore, “Exploring the inconsistencies of scrutinizing expert expert witnessing evolved to be a powerful and industry, bepopular to a evolved witnessing expert mushroomed, as well as a number of organizations that aim to thataimto of a organizations number as mushroomed, as well ychological Association, 2004). J.H.Phillips, J.K.Bowen, J.K.Bowen, J.H.Phillips, 2004). Association, ychological ial science courts in the cases requiring detailed forensic forensic detailed requiring cases the in courts science ial

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turn provoked a number ofencountersthe in turn problematic provoked number a , 71(1992): 359 - www.expertpages.com/all_top.htm

12 (1991): 39- - , (Washington, DC : American Psychological Association, Association, Psychological DC :American (Washington, , examination andother Pathways to Effective Testimony http://www.ewia.org.au/ nd make them readily availablefor themreadily litigators. nd make

ut the futureut the of scientific Cardozo evidence”, Law 53; John William Strong,“Language andLogic in 372.

and American Academy Forensic of Sciences, AAAS

20 , (New York : Basic Books, 1991); David

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CEU eTD Collection 6 and in Faust Rossi, The ExpertWitnessRossi, Faust in and in6 United States Courts: How the program, (CEU : Budapest 2002), 1. 178- Criminal Proceedings”, in: Helen Law Reeceand (ed.), Science, should decide,should or if the witnessshowsa lack of expertise. able form to prejudicial than probative, or disregard to if it it concerns a topiconwhich the court is evidence,expert excludeevidence to acquiredwhich more the discretion is the judge the (4)of Within experts. properand British law qualifications of rule, exclusionary any of absence The (3) fact, the of trier the assisting in Necessity (2) Relevance, (1) criteria: conditioning admissibility the expert of evidence with fulfillmentthe the of following testimony in other Common influenced by the similar developments in regulations of admissibility of expert http://supct.law.cornell.edu/supct/html/97 25 24 regardingadmissibility the expertof witnessing hence remains fluid to this day. “this reaction, verdict, according Rossi,to Faust afterof period the liberal admissibility, followed by the this With acceptance. general and standardization rate, error review, peer testability, recommendations for admitting Carmichael in reached US liberalcourtroom the era ofin which expertise,the witnessing expert the tightening of Kumho TireCompany v. Carmichael

Dow Merrell v. Daubert Criter A came the beginningthe anwith decisions to the endSupreme in of Court 90s 184. 184. They also are commented in 9 Redmayne, Mike op.cit, ia for Canada and UK are listed and analysed in Paul Roberts, “Expert Evidence in Canadian Canadian in “Expert Evidence Roberts, Paul in analysed and listed are UK andCanada for ia These attempts to further tighten the regulation in theThesein USAwere further tightenregulation to attempts theundoubtedly

Daubert v. Merrell Dow its own judgment, or theissueonwhich even ultimate the concerns court own if judgment, it its (1999). The Supreme Court used those cases to spell out its its out spell those casesto (1999). Supreme used The Court

current stage may be called an era of uncertainty.” of era an called be may stage current 509 U.S. 579(1993)

expert evidence,expert stating depends thatit onfive factors: law countries. Its northern neighbor, Canada, was was Canada, neighbor, Itslaw northern countries.

- 1709.ZS.html (97

- (1993) and widened Kumho in Tire Company v. 1709) http://supct.law.cornell.edu/supct/html/92 526 U.S. 137(1999)

Daubert is commented in Cynthia H.Cwik, op.cit, op.cit, H.Cwik, Cynthia in is commented Daubert 6

(Oxford : Oxford University Press, 1998); - 139.

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eversed. 50 ; CEU eTD Collection School ofLaw, War crimes prosecution project, 2. op.cit, expert’s testimony is forthe court to decide.” mayExperts questioning to by be subjected parties, the but evidentiary the value of the matter. subject expert’s of scope the controlling and relevance the assuring thereby particular field of expertise.The court dictates what the questions expert address will Experts are qualifiedafter meeting national qualifying standardscertification by or a in power limited object to have the to courts choice of anParties expert. expert. their judge(s). Bothmaintainlists of jurisdictions experts from whichcan the courts choose the of knowledge the are beyond which arise factual issues disputed when technicalor courts by the enlisted are witnesses Expert judges. of panel or ajudge before tried are jurisdictions of France and Germany operate under inquisitorial legal systems. Matters law civil “The law Continental countries. law and Common in differentin directions i general some sure, be to are, There follow. to difficult the changes more case, casemaking to anddiscipline, from even from to jurisdiction, discipline to considerablyfromfunctions vary jurisdictions Common law countries, it is also 27 26 establishingin value the probative of evidence. the in handsis of the judge, the with legalfree accordance philosophy in judicial belief of only attack admissibilitythe ofreport the andattempt to invalidate it. The final could and expert, the appointmentof role the in a play donot parties theto judge. The chosen Contemporary Problems

Sean P.Downing, “The use of expert witnesses in civil and common law jurisdictions” in New England England New in jurisdictions” law common and civil in witnesses expert of use “The P.Downing, Sean nce in Criminal Cases in France, Germany and Italy”, Italy”, Germany and France, in Criminal Cases evide in nce “The expert Morris Ploscowe,

Although witnessing expert was mostly the in USAand the debated other by the judge, instructed about the requirements of the trial and submit the reportrequirements of the abouttrial andby the judge, submit instructed , 2(1935), 504 -

9.

nferences. The development of the debate was going going development debatewasnferences. The of the a of elaborate point elsewhere, as its discussion 26 27

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decision Law and 51 CEU eTD Collection expert.” ensureand couldbe duties not thereforedelegated thatthe to judge's sought an to court. concerned wouldabuse Thewas fact legislaturethatthe his judge the of competence technical the beyond clearly issues those to limited was expertise “recourse to ensure that orderto in 1944, Law July of 15 transformed through the fact expert on reliance judicial on take relativelya liberal In instance, France, for controversyeither. of free approachThis not is comp the parties a in very than the different in situation law countries, Common which makes drawn upby Such or justice the ministries. courts experts,a puts legal context judges and system, where not just property but life andliberty were at stake.” the ruling contrary 29 28 yardsticks for of different development was the in reflected 19 mid uncertainties scientific of evidenceasas long these were limited to civil litigation.But by and the increasingly irritated the remained judgesto both relatively oblivious is the division between the civil and criminal law. Historically, “the scientific community less import No witnessing. expert in division relevant only the law not Continental is 109- experts. A Study of Expert Evidence and and Forensic Expert of experts. Experts Evidence Study A R.Freckelton Ian law common within it comparing and witnessing expert scrutinizing International Law Journal 31 (1996):181, The situation

Tal Golan, op.cit, 96. op.cit, Golan, Tal Robert F.Taylor,Robert “A comparative study testimony of expert FranceStates”, in the and United Texas 178. arative of in experts onthe studies position those twogreat legal scarce. traditions th

However, the judge is also not bound by the findings of the report and could make make could and report the of findings boundbythe also not judge is However, the There success, has much however, been noting in thatCommon versus 28

century, of testimony expert the problems the criminal surface to began also in

to theto expert’s findings.

- finders granted by the Code Napol bythe granted finders The experts are usually chosen from the list list the from chosen usually are experts The , (Melbourne : Oxford University Press, 1987), is somewhat better in literature dealing with dealing literature in better is somewhat expert witnessing.In civil a 29

This shift in stakes - finding finding , The Trial of the the of Trial The , éon mission was was ant ant 52 CEU eTD Collection criminal justice criminal Criminal Cases in France, in Cases Criminal Approach, (Amsterdam Ploscowe, Morris Rozenberg Publishers,“The evidence 2001). expert : in Information Service 1994). analysis experts, dactyloscopy, document examina document dactyloscopy, experts, analysis criminal trialswouldnowadays the of contribution without DNA be quiteunimaginable scientific is contribution necessarily onprobability based models. hence quicknotice to thatforensic fi not evidence does verdictcriminalobservers reasonable caserequiresa The which beyond doubt. is were a whereas probabilities, of balance the on rendered basically is judgment the case, 32 31 30 engage to in humanability beings of as the endless as seems a forensic dimension which sciences of plethora full playif the into comes variety the true However, etc.or written, international context, if theyare held under military civilian or courts, if the report is oral the trials – overview. comparative Greatin Britain, Africa South and the are an the subjectinteresting of auxiliary function to the ultimate reasoning. Different p - so evidenceas (the thecannot mainproof serve expert case a criminal in that being rationale customary the tension, this overcome others. and accidents traffic in issues criminal psychiatry, forensic medicine, forensic clinical toxicology, psychopharmacology, measurement, alcohol breath forensic pathology,

These are mentionedThese are in Freckelton, Ian Selby Expert (ed.), Evidence in Criminal Law Those modelsThose and their criminal to relation trials in analyzed are Mike Redmayne, and Expert evidence Lirieka Meintjes contribute the to judicial proceeding taken account. is into of The list sciences with 31 Apart from those differences there are others, concerning various peculiarities of peculiarities concerningApart various are there others, from those differences

Therefore a number of ways were devi were ways of anumber Therefore if theyareif held , op.cit,125 - - Expert Evidence in the in Expert Evidence Criminal Justice Comparative A Walt, Process. der Van

Germany Italy”, and Law andContemporary Problems 32 174.

in front of a jury or not, if they are held in a national or a national in are held if they not, or a jury of front in

tion, firearms evidence, illicit drugs& sed the in Common law countries to called smoking gun), and has an gun),an andcalled has smoking aths towards achieving goal this t easily into this pattern, as its 30 , 2(1935), 504 -

On the other hand, , (Me , lbourn : LBC LBC : lbourn 9.

53 CEU eTD Collection 1984). H Blay,.Theodore Insanity, and the Law Bruce A.Arrigo, The Contours of Psychiatric Justice. A Postmodern Criminal Illness, Mental of Critique (LondonAcademic : Press 2000), s.v. Forensic medicine fromdoctors Antiquity scrutinized the in are detail Jay in Siegellopedia Encyc (ed.), of Forensic Sciences Feinberg, “Ethics and the Expert Witness: Statistics on Trial”, J Trial”, on Statistics Witness: the Expert and “Ethics Feinberg, The Witness”, AmericanExpert Statistician as Statistician “The Matre, , 30 (1976), 2- criminology. of core the formed had that ballistics, as such sciences, other the of as well as more interesting than the the others. to courts Forensic aspects seem of medicine obvious, different To be disputes. sure, legal always have there experience been of human realms 35 34 33 debates. andaccompanying fight science, economics political „harder“ and a such never without asbut statistics, ones, courtrooms remained for sciences. open otherAdmittedly, social more the easily towards 20 atstarting the beginning the psychology with of transition,This social embrace sciences. to forensicswas about realm whenloud of the particularly was uproar The debate. a lively by accompanied was knowledge of branch application remains debated ever since. ever debated remains application thetime, inclusion of experimental psychology was a hotly debatedmatter, and its a that academic significantwas controversy.gaining Around stature, undisputable its scholarship. quite a relevant the general for test and usefulness applicability given realm of a of courtroomIn coulddiscipline fact, find its application.forensic aspect having a became of Economic Perspectives Economic of (1997): 321-

Paul Mei Medicine is historically probably the best established among forensic sciences. Forensic contribution of of contribution Forensic sciences. forensic among established best the probably historically is Medicine On resistance Golan, see its introduction to op.cit.211 Tal

of each and every every and each of the introduction context such wonder in a Small then, that er, “DamnedLiarser, Expert Witnesses”, and Journal of the ASA 331. Richard Posner, “The Law and Economics of the Economic Expert Witness”, of The Expert Economic the “The Richard331. Journal Lawand Economics Posner,

33

However, the list is not exhausted by far, as practically every imag every practically as far, by exhausted not is list the However, The psychologist as expert witness. , (NewYork and London : Garland Publishing, 1996). On the role of expertwitness , 13, (1999):, 13, 91-

35

99; Michael J.Mandel, “ Michael99; J.Mandel, 34

Onceopened bypsychology

(New York : A Wiley : York (New - 253. On themore253. see assessments recent in th ournal of the Royal Statistical Society

century, at theat time whencentury, it was Going for the Gold: Economists as , 81 (1986): 269- - Interscience Publication, Publication, Interscience , the doors of , 276. JosephVan 5; Stephen E. E. Stephen 5; inable inable , 160 160 , 54 ,

CEU eTD Collection (1979): 108- Omer578; Expert C.“An Witness Stewart,Answers Rosen”, American Anthropologist 1979), 111 - Setting Lan The Rieber, Robert 1993; Publishers, :Blackwell MA (Cambridge, Brief and its profound impact is noted by at Law &Expert Witnesses: Quarterly Use, Their Misuse, Law Abuse.” Policy and Sometimes that had a huge impact on the court. that had impact a huge Political Science and Politics and Science Political Witnesses”, Expert as Scientists Ruse. Michael writes witnesses”, expert be should academics that but question no is there where cases imagine can once Equally, … witnesses expert be not should academics trial ultimately re preventinggeneralized any conclusions:“Assuming a in thatthe of question participation was disciplines of variety casesand the However,methodologically of the variety sound. who were such a role if legallyuseful wondering is and professionally andjustified practitioners the also from legal but scholars, and the lawyers constantlyquestioned by the in courtrooms.anthropologyand linguistics thed in bitter debates the advent surrounding of reflecte was debates, ethical and whose constantly method is and epistemological, burdened with theoretical questioned who collected aof number statistics fr the constitutionality working women D.Brandeis,Louis for by of limiting hours hiring Oregonwas front 1907in the, argued in ofstatedefending theof Supreme Oregon Court, 38 37 //www.law.louisville.edu/library/collections/brandeis/node/235 http: 36 Witne Expert In historycomponent. noexception. thatrespect, was 139-

M.Ruse, “The AcademicM.Ruse,“The Expert Witness”, as Science, Technology and Human Values See Lawrence Rosen,“The Anthropologist as Expert Wit 144; Muller State v. of Oregon ,, 208U.S. 412(1908) 38 , (New, York Academy York New Sciences, : The of 1990).

However, changes important coul Still, Still, the debate was Roger Shuy, W 2 111; “LawrenceRosen, Response to Stewart”, , American Anthropologist .;Sue Samuelson, “Folklore and the Legal System: The Expert Witness”, Witness”, Expert The System: Legal the and “Folklore Samuelson, .;Sue sses”, sses”, The Journal of Economic Perspectives Economic of The Journal volves on moral issues, one can certainly think of cases can of onmoral one where issues, think certainly volves Language Crimes: The Use andAbuse of Language Evidence in the Courtroom

bound to rage in every new field which achieved its forensic its which new achieved field every rage in bound to 36 om medicaland sociological in journals his brief

Still, the specific character of social sciences, sciences, social of character specific the Still, Muller v. Ind be noticed. case Muller the famous University of Louisville, The Brandeis Brief Louisville, of University http://laws.findlaw.com/us/208/412.html ness”, ness”, 37 ,2 (1999):113-

Their suitability for legalpurposes was , 24(1991): 521- American Anthropologist .

Joseph E. Scott, “Social Scientists as as Scientists “Social E. Scott, Joseph guage Scientist as Expert in Legal 120. Lawrence J.Leigh, “Political “Political Lawrence J.Leigh, 120. 524.

Western Folklore Western

, vol.81, no.1 (Mar, (1983). 5: 181– , 11 (1986): 69 , 79 (1977): 555- , vol.81, no.1 . Brandeis Brandeis . 214 , 41,

5 , ,

CEU eTD Collection em – close been always have law and history that“the between ties , Carlo Ginzburg noted theThe JudgeHistorian and sciences, 40 39 appeared. had them between time history andgrew to becomelaw institutionalized social practices, powerful tensions advocates, detectives. By the analogy prosecutorsor the However, limitations. had its history the or judgmentof history, compwell as in as Weltgericht understanding Schiller’s in and was Hegel’s immortalized of vision otherdge”. ju whono have of those and judge incorruptible experience, beneficial universally of source inexhaustible that come, to still judgments - “history, purevon Hormayr praising two that was experinoting proximity modes of this between human these authors a of shortage the was hardly There judge”. or expert the knows, the "the who one word Greek Ancient the of meaning the Antiquity; in emergence backbetweencan their traced andto legal be historical inquiry 2006), 30. Romanticism: The Formation of National Movements

Joseph vonJoseph “ Hormayr, and Germany”, in: Balázs Trencsényi, Michal(ed.), Kopeček, Judge and The the Historian, (London Ginzburg, Carlo : Ver ergence in Greece.” in ergence History was an exception, however, in another respect. Unlike novel social novel respect.another Unlike however, in an exception, Historywas

history and law have a longstanding relationship. In an interesting book entitled In entitled an interestingrelationship. book a have longstanding law and history . This vision survived in frequent, if implicit metaphors of implicit the tribunal of survived frequent, in if vision . This I.1.3 Historians in Court: I.1.3 Court: Historians in 39

And indeed, even etymologically, a complex interdependenceetymologically,a evenAnd complex indeed, theythousand fiveyears, datehundred two their back to

ίστωρ

(Budapest : Central European University Press, Press, University European Central : (Budapest From Friedjung Dreyfus to

(historian) in different contexts denotes contexts different in (historian) so,1999), 12. sided mirror of judgments past and judgments sided mirror of arisons of historians with judges, judges, with historians arisons of ence. As early as 1814 Joseph ence.As as early 1814Joseph

40

A similarlypowerful

Weltgeschichte als als Weltgeschichte National 56 CEU eTD Collection Press 1984), 116, 139. (München : R. : (München : from scientific objectivity to the postmodern challenge challenge postmodern the to objectivity scientific from : 18 In history. the be joinedto and of thatjurisprudence law, should foundation upon a solid Frederick William UniversityBerlin of founder the sources of and a onthe balanced creation of interpretation past events, required bythe of the 19 half down the in second 42 41 German towards theof finger military, accusation was Captain Alfred pointed Dreyfus, a the leakedto was French Staff General the information from thatconfidential suspicion political and intellectual land and French shaping its public the dramatic theeventwasin most shaking legal which and by toll, endrereading of its took the the 19 laws and laws by history.” thein 16 - re the rolepivotal in FrenchaFrance.Legal Kelleyplayed scholars historianDonald arguesthat legal of contemporary and concerns society. political the and historians between gap a creating was distance of theory This researched. events creat detachment a secured by was impartiality However, such Cambridge. in LordActon Supérieure and

Classical account on this development given is by Meinecke, Friedrich Die Entstehung des Historismus Donald R.Kelley, Historiansand the R.Kelley, Law Donald in Postrevoluti th th century,than none Montesquieu claimed other that“one illuminate must history by emergence of historical studies and legal scholarship of the Renaissance. Already Already Renaissance. the of scholarship legal and studies historical of emergence e core methodological assumptions of historical science, as laid laid as science, historical of assumptions methodological core Amonge th others, is gap was breached precisely in in precisely breached was gap surprise asPerhapsis doesa thatth come not it s of thes of most influential historical seminars in Europe – th

century, Baudouin François clai Oldenbourg, 1965); Contextualized in Georg Iggers ed through the temporal remoteness between the researcher and the the and researcher the between remoteness temporal the through ed

42

scape scape The imp th century, were based on the meticulous investigation of of investigation meticulous based were onthe century, –

the Dreyfus affair. Launched in 1894 with the the 1894 with Launched in affair. Dreyfus the act of the French constant and its Revolution , Fustel de Coulanges at École Normale Normale École at Coulanges de Fustel , med thatmed historical studies must be placed th (Hanover, NH : Wesleyan University Press, 1997) Press, University Wesleyan : NH (Hanover,

century, turned such reality ambitions to onary France 41

, Historiography in the twentieth century , (Princeton : Princeton University University Princeton : (Princeton , at at Leopold vonRanke 57 ,

CEU eTD Collection by a military tribunal andsentenced to life imprisonment. French artillery officer o officer artillery French 45 http://www.dreyfus.culture.fr/en/ 44 43 isthat it your under presidency thatsuch soci write will History cheek. its on stain this has “France that President French the warned hope of being himselfand hence ontrial indirectly, put the reopening Dreyfus case he the É case.pursuing When revision of the formed newly the around assembled intellectuals of skills. accordin authorship,were but about its consider not were note Esterhazy the researching experts the hand, other the On . contradictory were M.Teyssonnièresand Bertillon, – A.Pelletier and byM.Chararay, later France, ofgraphological theGobert, Bank pol expert of of thoseexamination documents was conductedhastily – by experts different infamous around the authenticity of the documents alle 1898 trial of the other suspect, Esterhazy, Major Ferdinand much of the cases revolved and the Dreyfus of Alfred the 1894trial Namely, both evidence.in solid convictednot on Semitic campaigning was raising suspicions.It was b Le rôlesocial de l’historien:De la chaire auprétoire 1906, Dreyfus, Leymarie in Michael Dreyfus’, l’affaire de historiens et historiographie (Paris

Émile Zola, Émile On Dreyfus affair and on the documents on the surrounding trials see: Dreyfus Rehabilitated: France France Rehabilitated: Dreyfus see: trials surrounding the on documents the on and affair Dreyfus On

Dreyfus Rehabilitated:France 1906, http://www.dreyfus.culture.fr/ : Seuil 1998), 13- 44

However, such renderingchauvinistic prompt ofwith and justice, coupled anti

(Lille - re the Hence bordereau

‘J’accuse’, ‘J’accuse’,

: Septentrion,1998), 151 - 33. L examination of theirof resultsthe was group an request examination important

and the and ‘Aurore f Jewish origin. By the end of the year, origin. off the Jewish end he By for was thetreason tried

en/ 13 janvier 1898.

petit bleu On the role of historians in the Dreyfus case see Olivier Dumoulin,: Dumoulin,: Olivier see case Dreyfus the in historians of role the On 239. Also see Jean ). As graphology was still in the in cradle, graphology still was As ). mile Zola

.

Paris 2003, 163- al crime could be committed”. gedly written by officers the two (the Archives andEducational Resources - Noël

ecoming apparent that Dreyfus was was Dreyfus that apparent ecoming w ed to have sufficient authority or authorityed have to or sufficient

J’accuse! famous J’accuse! rote his Jeanneney, Jeanneney, 43 Ligue des droits de l’homme droits des Ligue

175. and Vincent Duclert, ‘Histoire, ‘Histoire, Duclert, Vincent and 175. ice investigator Alphonse investigator ice

(dir), La passédans le prétoire La postérité La but their findings but 45

He hoped de l’affaire l’affaire de

Alfred Alfred in the the in 58 - , ,

CEU eTD Collection as much as to the Ancient text.” Ancient as the to as much contemporary the methodto text this that gives habit to observe in a the text most detailed particularities wecan as well apply It always education method is because have doesa vary, the not we same. particular such false,authentic, int provenience, between discern to our branch we teach of erudition; to our pupils determine the age, the origin, and ofdocuments: “Thethe composition areand study text naturally part important in one authorship,opportunity using thehistorianover auth assert ofority to thea the sources documents. ArthurZolacase ontheGiry disputed testified the in about the Paul Meyer, Auguste and Émile Molinier applied the historical method of the critique of challe and upthis take forwardFrench step to historians are heatedskills legal applicablechallenges posedof process. bythe a environment the to authenticate The– legal lay question evidence. open to and documents false toreveal skills their by using services for needed occasionally weresince forgeries. the Ages end historians debunking in of since, theEver Middle disciplines of law and history. This stream investigat of fruit had important ion borne remainedauthenticity thefirm only commonground of between documents the issueof the The wouldsupporthim. also some historians onlythat not but history, 46 beto the field of research othergraphology evolvingand of forensic sciences, science, of authenticityas the establishment such and authorship of the documents, came techniques came shaping in together forensics impressed With the asstudents. development his ofmany criminology,applied necessarily whoseas judges were couldsway not not persuasiveas the he hecourt, was,

Dumoulin, op.cit, 165- And indeed, Zola’sAnd indeed, trial wasa respected an fornumber 1898 opportunity of 6. Published in Edmond l’histoire a Haime, acquis Faits Les

, and , and the traditional elements of historical erpolated and sincere documents. The erpolated The sincere documents. and whether theirand methodology nge. Paul Viollet, Arthur Giry, Arthur Giry, Viollet, Paul nge. , Paris 1898. 46

However, as as However,

59

CEU eTD Collection write down, a in sentence or two,t IMr.President. a am professor, just I and as a have poor memory, I am always obligedto des chartes attacked by was presiding for the using judge reading. not “I notes: am undermining the authorityand methodof hi 48 47 Jaurès Jean persuasive. very sentenceyears. 10 to However, waging theiragainst war official experts, werehistorians very long study.” personal you itis aforce, because result thatis a of such with front in of opinion this myself put to Iand the which first in have offered a expertisein I my caseBut if ofallow writing. perhaps tellI not thatam an me expert. the This third is timeI thatcome had to testify theHechallenging previous “You centuries.”was theexperts: authoritymay of previous same rules have thathistorians been allforms applyingto of historical memoires during historical c professional allow will you authority:myself “I remind to topicthat onthis the rules of claiming possiblywritten not by basisof thatthey his could been Dreyfus have onthe Molinier restated the case. Dreyfus goaltheir original – avenue andfor revisionists, had upthe opened However,rendered t appeal. onhis was the verdict before fled England to had was and convicted, Zola classroom.was no courtroom the lesson: important an learn to role, were historians expert beginning their of

Dumoulin, op.cit, 167 Quoted from Jean Historians were even blunter during this review, held in 1899 in Rennes. Émile Rennes. held1899in in review, during this Historians were blunter even ritique which I apply to the expertise of commander Esterhazy’s paper are the the are paper Esterhazy’s commander of expertise the to I apply which ritique

- Noël Jeanneney, op.

arguments onthe documents, issueofarguments authenticity of the disputed 48

wrote: “These men, after conscious s after conscious men, “These wrote: Still, theStill, judges lowered reconvicted Dreyfus,his but cit, (Paris cit, his development aroused more public sympathy arousedthe development for public his more he ideas Ihe ideas am aboutconvey.” to

: Seuil 1998), 16. storians. Paul Meyer, Paul storians. of the École the director

tudy, havetudy, come to

the review of the review of the the 47

At the very the At 60 CEU eTD Collection (1876) time towards the progress of the human race.” human the of progress the towards time same the at and from discrete the works truth a in andgreatness certaintowardof manner , the draw thatwe one ofapart the profit any to assumptions without history, mannerthis that historique of the Revue the Monod, Gabriel founder the ideal werehistorians actingset by upon Injustice. great this of moment of the triumph historical expertise, authority forensic over army. French thewith knighted rehabilitated 1906, in pressure,Dreyfus was Frenc eventually pardoned bythe Picquart, more evidenceon Dreyfus’ innocence was coming light. to After fierce public Georges Colonel of investigation bythe Prompted contributed further developments. to the in Esterhaexperts as the did operate doors closed behind call decisive… They were dividedas not experts the in Dreyfus they case, and donot confirm Esterhazy’s thattheis bordereau andathere is there lot I ofwoulddare what to 50 49 It was yet experienced. had Europe that nationalism intense most the of emergence scientific histor “the us, As the Haroldemergence nineteenthreminds of Berman century the- in so andodds, many if compelled choose, to historians, wouldgive advantage the to former. nation” the of greatness “the serving turned soon that it out Undermining Monod’sdisappointments. optimism, was the at marking same time beginning the of unfulfilled potentials and bitter

Dumoulin, op.cit, 168 Gabriel Monod, ‘Du progrès des études historiques en France depuis le XVIe siècle’, Revue historique XVIe depuis le des France études historiques en ‘DuGabriel Monod, progrès

tributed to the undoing of a miscarriage of undoingof aIn conmiscarriage historians the of tributed Dreyfusto affair, the , inscribed in 1876 at the, inscribed opening in article of this venerable periodical: “It is in

y, that is of systematic and painstaking research … coincided with the y, the with ofcoincided thatis systematic and painstaking research …

and advancing “the progress of the human race” might well be at at be well might race” human the of progress “the advancing and

Légion d'Honneur Légion h President, and was finally was finally and h President, zy case.” zy

and reintegrated into the reintegrated the and into 50

However, the triumph 49

Their persistence persistence Their called called 61

I CEU eTD Collection On Dreyfus affair, historians and right and historians affair, Dreyfus On Twentieth w in the courtroom, but their also mobilization against his rehabilitation. Manyhistorians Dreyfus for historians of engagement the only not was case Dreyfus the of aftereffects the highIn compromise to standardshistoricalFrance, scholarship. of one of threatening was simply thathistory assumed meant national history”. 52 51 that end, he joinedthe campaign fought bynumber of a Viennaaiming journals, to in cause a new origins. Jewish Eventually,his excluded fromfound theGerman Party Greater due he to and 1859- Vorherschaft Deutschland in ( Europe Central of history on the recent respected monographs widely r of onecontemporary autho ofhistorians, FriedjungFriedjung. the first was Dreyfusgotrehabilitated, a libel suit was brought against Austrian historian Heinrich after somewhat 1909, Inlate thecause. of service the in credentials and skills their tradition.” the RepublicanFrench glorificationpast and which of challengedRevolution the the française Action by role a vital assigned were “historians McMillan, James to according Infact, rehabilitation. his prevent thewith clear to desire affair, heightof the at the created 1899, in Twentieth : Harvard University Press 1983), 17.

Action française Action ere nostrangersto More on the role of historians and Louis Dimier in this context in: James F. McMillan, McMillan, F. James in: context this in Dimier Louis and Bainville Jacques ofhistorians the on role More Harold J.Berman,Harold ). He entered political life as pan as life political entered He 1860). Österreich bis von 1848 France was by no means the only country whose historians were historians tempte whose thecountry only means Francewas byno - - Century France: Politics andSociety in France 1898 - Century France 52

defending the Habsburg monarchy from the perceived Slavic danger. the perceivedfrom themonarchydefending Habsburg Slavic To Law andRevolution. The Formation of the Weste , (Stanford: Stanford University Press 1962), 3-

in thatthein movement actively onthe French promoted a view

- wing see Eugen Weber, Action française. Weber, Eugen see wing Der Kriemkrieg und die österreichischen Politik 1866, Derunddie österreichischen Kriemkrieg , a political movement of farright , a political , (New Y (New 1991, 51

Nationalist fervorNationalist of the period , (Cambridge, Mass rn Mass legal Tradition (Cambridge, , 6, 16- orkArnold : 1992), 32- 43

Royalism andReaction in

Der Kampf um die um die Kampf Der - - t was was German, but wing intellectuals d to put put to d 40. 62 CEU eTD Collection society.” anni to be ordered weapon would Austrian if value highest of the cultural deed a would be Croato helped byinsi causedinstabilities by conspiracies constant launchedagainst themonarchy, Habsburg for implications theits region,change stressingthis marked beginning that the of foreign policy. Freie Presse “Österreich article Friedjung’s by backed “Slovene thepurpose with ultimate South” of dismembering the Dual Monarchy. with Serbia - implicate Croatian and Serbian politicians in Austro 54 53 dutyas a place to historianand publicist, pen his at the serviceand doing so of in Austria, being to position defend in fatherland his sword hand, in he conceived it beto his plain lained Friedjung his confidentlymotivation, recorded exp - by R.W.Seton editors of Reichpost and Therefore possession. his andscrutiny in sued him the documents of 52parliamentarians of the Croato- Hodimir Sirotković,“Pravni političkii aspekti procesa Rundpost Politics BetweenNation andState. Serbian J.Miller, Nicholas in happening was process this which in context

Heinrich Friedjung, “ Friedjung, Heinrich Details in Ranka Gašić, Gašić, Ranka in Details hilate the conspiratorial centre in Belgrade and help the healthy elements of Serbian Serbian of elements healthy the help and Belgrade in centre conspiratorial the hilate - in Croatia before the First World First the before Croatia in Such At the very the trial, whichin 1909, beginningof started December in Serbian coalition. His article was not only descriptive, but also prescriptive – also but descriptive, only not was article coalition. His Serbian 53

When askedWhen to provide evidence for accusationsby these the Parliamentarians

articles appeared bythe beginning of the 1909in daily Reichpost

ders in the Monarchy, chiefly the presumably bought representatives of the Monarchy,chiefly ofrepresentatives ders the the the presumably in bought scholarly a scholarly on based was article his that stated Friedjung coalition, Serbian in March 1909. March in receivingmoney from government the Serbian through the organization Friedjung was analyzing the impact the change of Serbian dynasties and and dynasties Serbian of change the impact the analyzing was Friedjung Österreich Novi kurs Srba uHrvatskoj for libel. Presse Freie Neue - Neue Freie Presse d Serbien“, Freie un Neue Ungarn

These essays presented contemporary an overview of

War , (Pittsburg : University of Pittsburg Press 1997), 125 1997), Press Pittsburg of University : (Pittsburg , - Neue the in Neue published undSerbien“, Ungarn , (Zagreb : Prosvjeta, 2001),52- 54 - Hungary for treasonous connections forHungary treasonous -

Fridjung” Fridjung” , 25.3.1909, 2- Starine JAZU , knj.52, (1982);. 4. 4. Watson: “Not Watson: 4; More on the the on More 4;

, and were , and

- 134; “it “it 63

CEU eTD Collection and the Yugoslavs. so a disgraceful manner.” disgraceful a so in said for a such historianin thosea who had position put process damageyour not historian at did the least.and of That a cannot stature man be soldier an in armyI of historians, wanted convey to my to General my thatin view the a pro withdrawn, Friedjung’s but scholarly was reputation badly that bruised, the to extent even The was libel ofsources. nature his recognizedFriedjung the questionable publicly Masaryk Übersberger) Hans Dr Rešetar, the course of the which trial, in a number and ofgraphology linguistic (Dr experts Milan Ä gotwas he directlyfrom Austrian based Count fromForeign Office, onthe material frontline thatFriedjungwasIn defeated. the course of the trialsit emerged thathis essay Consequently, Friedjung andConsequently, Reichpost Friedjung witness appeared, challengingof the documents the authenticity which were used. materialwhichFriedjung on was basing his claims was largelyforged. Witness after interpretations and theand reliability authenticityof sources. his qualityreputation professionalguaranteeinghad his atof put stake,the his professional code; hi ofbusiness thereduce of historianto and a deeds penal words the to provisions men’s citizens by an interpretation of their past history.” Although he claimed that “it is no he was c only 56 55 Southern Slav Question and the Habsburg Monarchy

hrenthal. Being read to unable Serbian Friedjung themvery took Ibid, 277- Detailed contemporary account of the trial wasDetailedtrialthe giv contemporary account of - Slav observerSlav as- Seton such s task is to examine documents, to establish facts and illustrate characters.”, he he characters.”, illustrate and facts establish to documents, examine to is task s

for whom this was yet waswhom this anotherfor 281. “R.W.SetonWatson to Heinrich Friedjung”, 25.December 1909, in: R.W.Seton ontinuing his lifework of strengthening the consciousness of his fellow lifework his offellow his consciousness of strengthening the ontinuing

Correspodence 1906-

and officials from Serbia testified, as well as Tomáš as well as testified, Serbia from officials and 1941 Watson wrote to him after the trial: “As a fellow , (London

lost thelost case through the set , it turn célèbre cause , (NewYork : Howard Fertis, 1969), 211, 215. - Zagreb 1976), vol.I, 65. - R.W.Seton observer keen its by en ed out the that primary 55

tly onthis exac It was much forIn granted.much tlement in which Watson, Watson, -

Watson 56

The The 64

CEU eTD Collection of Chicago Press, 1994), 323. fronted ofcon answers have problems.” since both 1914adherents anywithout interests, devotion,entertainment, belessons, practical it or propaganda. Yet and past the reconstructing of interest theoretical purely the with endeavor an was called for an science autonomous of the Both, humanities. however, thathistory agreed other the of sciences; the natural the imitation as dependenton past reconstruction of the correct the saw “One Breisach. Ernst concludes question”, that to answers two been had historical and political tensions. “What is the proper ‘scientific unfolded by War,First which the World exacerbated beginning of the these legal, 57 historiography. Studied in greater chapter, details innext the it is still worthy outline to war. This debate was the true litmus test of the possibilities of the public utilization of the responsibility historiography in outbreak forexpression the debateover the of was of nationalist hysteriawas followed by postwar resentment and bitterness. period.w The the spreadin interwar contemporary historiography of of distance meltedat the expense of impartiality. pardonner historical understanding was transformed along the of lines comprendre tout est tout methodof classical frameworks. The much national in narrower methods historicist wasuniversal dramaticalof history humankind idealwriting hands. of Theweapons the impartial of their Enlightenment in the or pencils achieved a direct applicability, many as historians took part in the war either with

, (Chicago and London : The University Ernst Breisach, University Historiography. The : Ancient,London Medieval and and Modern (Chicago , Historians entered the age of extremes with this heavy package, to be completely completely be to package, heavy this with extremes of age the entered Historians Such tendencies outlasted the war, and indeed they were the driving force behind behind force the driving theywere and indeed the war, Such tendencies outlasted

into an interpretative model sympathetic the to national cause,and the theory

ly curbed of implementation throughly the

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Its best ion ion 65 CEU eTD Collection 20.20.3006). intervention bycreat The state was nationalistic. deeply content its war, of outbreak responsibility the for Despitenational participation standpoints. the the international in debate over the reignpublishing onfo sources policies,conceived with the idea legitimizing of their arguments favorable “their” to side promoting or large state followed logicremained this and byconcerns, confined political immediate producing providing a critical r interpretative considerably levels, and frustration added and revanchism to outbreak thewarto failure of heuristicthese the ledresolve and to differences onthe historical with legal argumen treaty. revision of Mixing the Versailles and quarrellingwere the sources over publishing frustrated.extended armsforeign European of historians astheir ministries, Working court as a judge.” which helps the making of the judgment relevant with help,does expert but sit not thein a witness, as appear science court,must task …Atthis historical his on thesenot is facts the facts, judgment establish the onlycan As historian solving. its in beshould included is historical, that itcan be decided by “history” that in practice professors of history thatthe essence deeplythink questiongreat, this warned:rooted a mistake is but to of “It the to first contributions issueof the responsibility war, for In the betweenand one law. importanceof relations in its development history for the 58 Zeitgeschichte zeithistorische Forschung in Deutschland. Historiographische Nachwirkungen des Ersten Weltkriegs 1967). Verlagsanstalt,

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(accesed on (accesed . Instead. of , in: in: , 66 CEU eTD Collection York : Columbia University Press 1970), 112. their preoccupations were decisive in shifting attention from drum attention shifting were in their decisive preoccupations and scholarship, group historical to or professional contributed than social any more other o art called the influence the theory thatrevolutionized studies the- so ofthatis, history, legal of closely respect history tiedto content to with both and method. to Second, was it largely f has choice “the that reason fields.” history” which are questions have ceased not trouble to the reflective of students both is “What and law?” is “What both Yet, horse. dead the of commonplaces the beating or “It anywould seem, then, ofand that be ‘law history’ reconsideration a string apt to is of reflections: the further Friedrich to led had observation this reports.” However, records or event of his report an in when the study is we law study we everything elementaryInsense, an Law frozen is history. need … too laboring well expressed byFriedrich,Karl “tie who considered this intimateto and obvious too who proximitylaw. emphasized the The close of and history nature ofintimacy this was 60 59 continuity from of thatagepresent.” historicism downthe to the theof enduringin in sixteenth centurystudies the most elements one provided institutional, social and cultural studies.Finally, marriage the legal of and historical

Carl Ioachim “Lawand Friedrich, History”, Vanderbilt Law Review Donald R Kelley, Fou R Kelley, Donald 59 These apologetic historiographical tendencies were confusing for many thinkers thinkers many for confusing were tendencies historiographical apologetic These

Why? One of these students, Donald Kelley, concluded that there was a good wasconcluded there Kelley, a OneWhy? Donaldthat students, of these f history, in thef sixteenth century. history, happened so in Third, it thatthe lawyers 1.1.4 Theorizing the Incompatibility of History and Law 1.1.4 TheorizingIncompatibilityand of the History ndations of Modern Historical Scholarship. Language, Law, andHistory allen upon the field. Inallen uponthe field. the first place, fieldso is noother

tory, and all history consists of such tory,consists allhistory and , 63(1961): 220. 60

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. (New (New . 67 CEU eTD Collection Scholarship”, Societies Remember Societies,” in Societies,” (CEU Press, Budapest 2005), i teaches us the nature of legitimate authority.” legitimate of nature the us teaches Historygives perspective another us against or which value measure to law. History meaningfor thathas value law, has as for it of the man spirit in manyother aspect a meaning, and a history in is there that urge “I wrote: Wyzanski Charles which Judge of the professions”. historicallyyou or oriented, if backward‘past like the dependant’, most looking, the 64 63 62 61 Uitz. Renata observes reviewconstitutional on referencesand forahave history to t a rely tendencyto as a treasury of reference. points ofsound very Precisely reputation, due this to appears history of record book lawyers,the for “Intuitively, at least many debates. legal contain”. cour cross lawyers as much evidence investigate They inferentially. …proceed Connerton:“Historians Paul as such byothers, analogy followed This was witnes evidence.” French As anMarcBloch “A influential it: document a put historian is – “ that Turković,

Charles Wyzanski, History and Law, University Law, and of Chicago Law History Review Wyzanski, Charles judgesas wellas historians attempt to establish truth about past events thewith help of Ksen Richard A.Richard “Past Posner, Renata Uitz, t of law, extractingt of from evidence that information which not explicitly it does ija Turković, op.cit, 42; op.cit,Turković, ija s; and like most witnesses, it does not say much except under crossmuch exceptunder does say not it witnesses, ands; likemost For similar reason 62

The University of C of University The These efforts efforts These Land andWork in Medieval Europe Constitutions, Courts andHistory, Historical Narrativesin Constitutional Adjudication , traditionally the relationship between law and history has been close very andrelationship has betweenhistory law thetraditionally , (Cambridge : Cambridge University Press University Cambridge : (Cambridge , 61

64 On a practical level, it was rather self rather was it level, a practical On -

Dependency, Pragmatism, and critique of HistoryAdjudication in andLegal

were Marc Bloch.“AMarc Contribution towards aComparative History European of s, Judge Richard Posner Judges, concludedthat“law Richard the most is hicago Law Review

occasionally leading to a true fetishization of history; fetishization a to of true leading occasionally , (London : Routledge, 1967) , 67(2000), 573. 63

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Austin History,(ed.), Sarat, Thomas Kearns Memory andthe Law Quoted from Carlo Ginzburg, op.cit, 13. Vanderbilt History”, and Carl “Law Law Ioachim Review Friedrich,

fact noted many years afterwards by Austin Sarat and Thomas Kearns became became Kearns Thomas and Sarat Austin by afterwards years many noted fact This intimacy,This proved be however,to a mixedblessing. Undermining the seeming

turn spread to the fields byhistory. explored traditionally theturn spreadto th

centu th

ry brought the activities of history century. The barriers of institutional webs and constitutive constitutive webs and institutional of century. barriers The

he without past led a to recognizable division 67

It took years to get a gripgetyearsa complexIt onthese to took , (Ann Arbour : University of Michigan Michigan of University : Arbour (Ann , , 63(1961): 223 - writing and rendering writing

proclaimed proclaimed

65 The first first The

On the the On 69 66

CEU eTD Collection York(2003): UniversityLaw Review 1523 78 - The Historian andthebook TheHistorian Judge asconfluence Ginzburg’s outcome disciplines, demonstrated of between theCarlo the in 70 69 68 expert witnessing inthehumanities was not well received. was the wonder debate it the small ofin question responsibility that Great War, on for the the past was implicitly present.In the con midst the of appropriateprevailed the not most approach was to thathistory tool from disputes legal the sensation the in interwar period, at werehand readily these not contemporary insights of ant haveintimate historians a in cohabited relationship always respects oddbedfellows.” Lawyers many are and suffused historians in nonetheless relationship tension. is with wrotea affinity”, of natural disciplines lawJona and have history divergences thatwereattracting the observers: the attentionof many ways, “In the endeavor: convergenceshistorian and judge.” the explained rationale between Ginzburg of his and of “emphasizingCourt at Assizes, to the same the dedicated divergences and irreparably so so irreparably attempts to reduce role the of judge the toofthat historian, a o historiographical andif onethat ofbut impoverishes knowledge, a judge, one simplifies historianto of the role reduce to the Ifattempts one eventually inevitablydiverge. and (Ann Arbour, The University of Michigan Press, 1996), 339. 1996), Press, Michigan of University The Arbour, (Ann HistoryLegal in in Argument’, Terrence J. McDonald (ed.) The Historic Turn in the Human Sciences

Robert W.Gordon, ‘The PastasAuthority and asSocia The judge an Ginzburg, Carlo Martin, Jonathan D.“Historians at theAccommodating Gate: testimony expert federalin courts”, New Such a connection between them was by no means a guarantee of the beneficial beneficial the of aguarantee means no by was them between a connection Such

“The paths“The of judge run and side by historian, which side for a certain –

the administrationthe of justice.” d the historian (London : Verso, 1999), 19, 117 - 69

Robert Gordon similarly concludedthat“lawyers and , an attempt, torevisit the trial of his friend b 4.

l Critic: Stabilizing and Destabilizing Functions of Functions Destabilizing and Stabilizing Critic: l

68

troversy over the role of historians historians of role the over troversy Increasingly, it was exactly the the exactly was it Increasingly,

than Martin. “This close “This close than Martin. ne contaminates – contaminates ne 118. agonism”.

70 y the Milan

Although distance, distance, and 70 , CEU eTD Collection between History and Law, it was infact was it Law, and History between self very core the contradict to seemed historian the of role expert The sides. both from suspected, strongly was be done could thatmore records. But by using some ofauxiliary his for faculties, instance verifying the authenticity of the 71 Collingwood’s,book of Robin The Ideaechoed History of an in influential is concept This any more. relevance legal no of were predicaments whose periods earlier from actualexpert witnessing, majority sciences were assuming of their historians forensic dimension, were held remote unrestrictedly the in legal system. which Therefore,in paradoxically,the the in period Although self this influence,political and by historian the individual avoiding or bias.” partisanship arequalities guarded of bythe insulation hi the standard of judicialqualities evenhandedness. balancethese and judiciary, As with even are The display propagandist. historian’s worse, conclusions expected the to judge; ne must of it a or neutral, disinterested, interwar by period was“The summarized Novick: objective Peter historian’s role that is of the historian of idealthe position The of interpretation truthful andthe past. just the cause of famousthe of craft, justice.mottos The from sine Tacitus’ ira et studio craft. historian’s Ranke’s Ranke’s (Cambridge : Cambridge University Press, 1993), 2.

Peter Novick Namely, it went as a matter of course that a historian might help the proceedings For the better, many observed.Historical was judgment be to reserved for the wie es eigentlich gewesen eigentlich es wie , That noble dream : the "objec H - istorians were in a sense always indirectly engaged in the advancing of of advancing the in engaged indirectly always a sense in were istorians understanding of the craft seemed to suggestcraft to seemed of thecloseness understanding the inherent

satisfied by reaching historical verdicts ontheir own right.

unmistakably echoe th unmistakably historian’s commitment to a tivity question" and the American historical profession historical the American and question" tivity

re

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71 to to 71

CEU eTD Collection 330. obligation make to mind up withinhis any statedtime.” no under historianis For of law. courts recognized these evidence, in arerules as of of historical methodwouldhardly worthwhile, therefore, findhis it go closely to the into 74 73 72 irrelevance.” andwould be crippling unprotectedagainst insidious a the most of experience our separate, kept and separated were experience of forms these “unless present Oakeshott warned also strongly consciousnesses.” that the of self his explication reality happened, they in really as is only events past knowingthe theone only is since he history presence an is is experience,it historian …What does when he imagines that is it, “Since knowledge: applicable and practical objective, sustainable, create to historians compatibility of experience, ofthe ability modes of being particularlysuspicious of asserted qualification”. without absolutely and the mode, asserted is also beyond is asserted is mode what a appears in when only of every of the mode concrete and other totality itself…Actual appe error, then both interference relevant the from free is experience of mode every respect this in And own its mind to long …so of content cautioned those abstractideas is as world it that“each - scientific of example exact an as stand would expertise,which spacefor historical leavemuch not experience did of lm rea practical furthered into outright separation. His distinction between historical,the scientific and Michaelin elegant Oakeshott’s differingexperience, and conceptof the modes of

Ibid, 94, 4- Robin Collingwood, The idea of history Michael Oakeshott, Experience anditd Oakeshott, ModesMichael

business, is unassailable. is business, None historical but thinking can achieve truth. historical 5

74

, (Oxford : Oxford University Press 1993), 268. , (Cambridge C : historical- 73

Oakeshott was challenging the ambridge University Press 1933), 329- 72

This advantage was welcomed welcomed was advantage This

practical activity. Oakeshott Oakeshott activity. practical ll forms of error – error of forms ll

ars, and and ars, 72 CEU eTD Collection “To put ithortatively: dogmatic the of otherwise: warningtheand dangersofadvised was proceeding keeping them separate, the importance both of the of realms forexistence the Western of civilization, he strongly and History finallycrystallized Friedrich,by Karl admirer the of disciplines. both theIn article Law 75 imaginable. ahistorian of appearance courtroom and possible, amake the took globalit cooperation between the disciplines to shift em strongly wasreasons so for different different things the see past, but into time. quitesome for forensicationof history delay to theory the ofpowerfulenough thinking the incompatibility andwas acting, manner, that under the presumption HistoryLaw and are categories immutable of hum position.” ahistorical a into he dragged is enterprise nature his of of the the necessity further“go a step now to and advance to thatthe the specific argument task arguedthe thereforefor historian”, and of as interpretation is thewith same dimension it the societywhich historical ‘softening’ be not carried must far,or too the legal fabric and dissolved with is such But future. the itselffor free to order past in the ansoftening into inquiry impact of

Carl Ioachim Friedrich, Law and History, Vanderbilt History, and Law LawReview Friedrich, Ioachim Carl

student of law, the of jurist, is antithetical to that of the historian. By the very The definite shape of this theoryThe definite incompatibility of shape this of the and of history law was

he promptlyadmitted the close conn ection between history law. Praising and

it sustains.” Friedrich emphasized that “the not jurist concerned is

and conceptual foundation ofand the conceptual law needs the

The idea that a historian and a judge look look a judge historianand a ideaThe that

, 63(1961): 249. 75

Defined in such a such in Defined bedded that bedded that 73 an an CEU eTD Collection of Chicago Law Review Dependency, Pragmatism, critique and of HistoryAdjudication in Legal and Scholarship”, TheUniversity Judge the places historical the right injustices. wrongsbyaddressing to of the past as perceived increasingly being are courtrooms as justice”, of court the before “dragged been have past the of elements substantial quite ever”, classroom historical greatest “the author At least wouldprobably since found have muchliteral. Nuremberg, too dubbed as 76 Life Historyfor of andAbuse Use On the wrote who Nietzsche, Friedrich by anticipated also was development this As many others, legal matter interest. of becomeanto undisputed history, to the shift towards the institutionalization of historical expert witnessing. formative the in sequence moment lead of postwaringglobal re trials a to a as Nuremberg emphasized, startingfrom historiography is forensic development of impact onits the relationship betweenLaw, Historyand importance and its for the condemning it.” dragging the court before of justice, investigating the meticulously, past it and finally break order a in past andit, dissolve be to able live.He to manages dothis to by “History and the Noble Art of Lying”, Art of the Noble and “History

It seems that Nietzsche’s book resonated better with legal scholars than historians. Inspired by this essay, by essay, this Inspired historians. than scholars with legal better resonated book Nietzsche’s that seems It

as early as 1873: “ 1873: as as early

Richard A. Posner offered an interesting reading of role of history in legal process: “Past process: legal in history an ofA. of role interesting reading Posneroffered Richard In orderfor reappear to historians court in as experts, their field of expertise had Theglobal insensibilities shift induced by th I.2 The Great Shift: The Concept of Universal Human Rights 76

Nietzsche’s concept materialized in the aftermath of WW I.2.1 “Dragging the past beforeI.2.1“Dragging court past of the justice” the , 67(2000): 573 - A person must have the power and from time to time use time from to time and power the have must A person

Rechtsgeschichte 605. His ideas605. als are

4 (2004):4 22- e outcome of the Second World War, Second World the of outcome e o reflectedo uponRoger byBerkowitz, 7. 7.

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it to it to 74 - CEU eTD Collection in G in Fertig 1978); 7- University Press, 1998). as of one the ofturn of the the maintraits century. founder of the Anthropological Society of London. Societyof Anthropological founder the of throughestablishment of good, “the reliable as phrased Hunt, facts”, 1863byJames in politics. Emerging science social hadan important role in world and European of vehicle inseparable an was race or gender class, descent, to the 18 en fromdof the documents those equality in men,inscribed strongly of global a almost Utopian endeavor. liberty level be to Despite seemed the proclaimed and or the Independenceof (1776) Declaration (1689), the Act Corpus Habeas of the through documents the landmark human rights foundations of legal Establishinga the state. single of the framework within painfully proved Obtainingbasicbe to strugg obvious. a human rights complex universalization. made their for case was strong very a Enlightenment, as the early as thinking, and War. Therights earliest political conceptof of human wasof the threads human one 80 79 78 77 of universalism.notion singlyaway moving increa from the were theories social emerging the and racism, with much of the 19 Citizen University of Minnesota, Human Rights Library Minnesota, of University 4.

George L. Mosse, Towards the Final Solution. A History of European Racism : Howards (New York James Hunt,“Introductory Address on the Study of Text ofthose documents War Crimes Law Comes of Age of Comes Law WarCrimes Meron, Theodor in analyzed is development This ermany

There were, to be sure, a number of good reasons preceding the Second World precedinggoodreasons the Second a number of sure, Therewere, be to (1789) was a matter of ongoing social combat. , (New York : Palgrave Macmillan 2004) Macmillan :Palgrave (NewYork , 164; Richard Weikart. Weikart. Richard 164; th

77 centurywas documenting spent in regard in their inequality.Inequalities

However, the discrepancy between political theory and practice was practice and theory political between discrepancy the However,

are reproduced, and the historical contexts in which they emerged is analyzed in isin analyzed which they and emerged historical the in contexts reproduced, are 80

This precarious connection was creating a strong ambivalence, ambivalence, a strong creating was connection precarious This

From Darwin to Hitler, Evolutionary Ethics, Eugenics andRacism , http://www1.umn.edu/humanrts/

Anthropology”, 79 Rampaging modernism was coupled Rampaging modernism 78 Declaration of Right Declaration of

Elevation of those standards ona Anthropological Review providing their legitimating

(1679), the Bill of Rights the (1679),

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century, century, le even even le 75 CEU eTD Collection Law 1870- Zum Zum and destructiveness. important massuprisings against Napoleon’stroops,resulted wars in of widened scope , and equally masse brought en concept with about Revolution, bythe French of levée Paix PerpetuelleEn Europe La Rendre ProjetPour the 1713 as such peace, global community proposingaof output preventi 82 81 was treaties those widen to signatories the of willingness declarative the centuries, the the turnBy of somepractices. war regulated of 1868,which Petersburg Declarations as 1864,concerned wellGenevawounded, in as the of the with treatment the Convention andon Navaldevelopment the(1856) the ParisDeclaration First Warfare started with This rights. individual safeguard would also universally but treaties states, between createto order rest thatwouldnot an international solely on states strove AEuropean number of congresses. alliances through keptperiodic together attempt of European maintainorderthe to continent through the system states on of it France failed, Napoleon’s hegemony of uniteEuropeto the under Pacis ac Belli Jure nat predecessors, law and which international be cameto known asof “thecivilizer gentle concepts. Nation states resumed being one to another hostile at least as much as their

Michael War Howard, in European History ( More in Koskenniemi, More Marti De 1625De his in Grotius concept set byHugo the even fulfill actually not ions”, did ewigen Frieden ewigen The other significant of realm disappointment was the failed and humanization Significant change appeared in the second half of the 19 of half second the changeSignificant in appeared on, if not the abolition of warfare. Although there was no shortage of intellectual of shortage intellectual of warfare.was Although no abolition there the on, if not 1960 , (Cambridge Cambridge : University Press 2001).

(Concerning the Laws of War and Peace). and War Laws of the (Concerning 82

, the realities of the 19 The Gentle CivilizerNations. of The Rise andthe Fall of International the

Abbé Saint of the Abbé London : Oxford University Press 1993), 120 th -

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76 CEU eTD Collection other Balkan wars : a1913 Carnegie Endowment inquiry in retrospect causes andconduct of the Balkan wars Institution Press, 1993) Press, Institution 1999). International, Bassiouni, Meron, WarTeodor Crimes LawComes of Age law. humanitarian of international humanbe both lawrights as regardedand foundations and Haguelaw” to “The and law” Geneva “The as known be to came streams two Those achievements. these to added were declarations and conventions other Several extended, reviewedconventions and were Geneva Hague, and 1906the were in The in signed Inexpressed. 1899theRespecting Regulations the andws La CustomsWar of onLand 84 83 dragging world the into its first war. and conventions majority the signed manner, the of breaching afrequently criminal in populations, 1915,European were their powers executing which was for planned Instead e surpassedBalkan conflict. of the yetreport, Europe dry ontheand stepped aand into wardeath magnitude toll whose not was ink the as greater ever was disappointment The repeated. be never would crimes of full indignat crimeshorrendous intoned was to investigatecrimes the committed in the course of Balkan the wars. Endowment Carnegie 1913bythe up in set commission the international theof in report the representatives of trust the countries. was Nowhere laws and of customs warfare was supposedbe to a of trait of civilisation the European as the adherence more of legitimization, tool humanealsothe became to Theya manner. conducting international relations, or at the very least that th

Carnegie Lyal S. Sunga, Individual Responsibility Sunga, S. Lyal in International 83

Such treaties were giving hopes that wars are about to be abolished as means of of means as abolished be to about are wars that hopes giving were treaties Such

Endowment for International Report Endowment Peace, Crimes Law against humanity in International Kluwer : Criminal Hague Law. (The

, (Washingt ,

on DC : Carnegie Endowment, 1914). Endowment, Carnegie : DC on (New (New xecuting the third conference in The Hague, Hague, The in conference third the xecuting

ofinternational the commission ion, and the hope was expressed that such expressed thatsuch was hope and the ion, York : Oxford University Press 1998). Cherif

law , (Dordrecht : M. Nijhoff, c1992), 16-

of those countries seen better than better seen countries of those ey wouldbe conducted a in

(Washington, D.C. : Brookings Brookings : D.C. (Washington, 84 , to inquire into the

The The in Reprinted The on report 17. 77 CEU eTD Collection Serbe pathologique autrichiennes R.A.Reiss, with authorities: Austrian reports war ofconfronting theinto report grewal His initi 1914. in Serbia in troops Austrian by committed crimes the into inquiry independent aggressive relations. from war international State FrankKellogg and French Prime Minister Aristide Briand intended to exclude of Secretary US by conceived originally treaty the states, of 1928. Signed by anumber Disputes League forthe ofthe Protocol Nations for Peaceful the Settlement International of wahumanize regulating of the treatment prisoners of war. Another step forward taken, to was not establishingLeagueof Nations and theSecond signing1929 Geneva in the Convention seen. conflict deadliest ever plungedthe in European war, states goto expressed never to desire the of aftermath the in and warfare of rules the regulating after Just greater. been have 86 85 committed by other the side. ex warfare, theAlreadywith beginningof venture. a for such enthusiasm there no was Notthat was unsuccessful. bloodshed beforelargely for justice bring responsible those c war for breachescould force producenot its to sign andto it. tangible states sanctions League otherthe with failed documents ofrenounce ofto it Nations, attempting but war,

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86

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ill condemn, but … a may not be considered as an act an directly be not considered as may war condemn,aggression …a ill but of Article and relatedparts 231 of the Versailles on based treaty, findings the of Commission, the published “Commission of Responsibilities, Majority Report, March 29, 1919”, In M ncernant les actes de violation dudroit des gens commis par les états en guerre avec l’Autriche American Journal of Internation al Law Jackson Nyamura Maogoto,. War Crimes andRealpolitik. Maogoto,. International Nyamura JusticeJackson from Wor st

century, (London : LynneRienner Publishers, 2004). ss existed among the Entente existed ss powers. as a set readiness uptribunalsfor to war crimes, unanimous not but supportfor 87 which assembled in Paris to give recommendations for a pending peace treaty, treaty, peace a pending for recommendations give to Paris in assembled which

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Rapport sur les atrocities commises par le troupes austro- 88 154.

Much of this reluctance was politically 231 of the Versailles Treaty relegated relegated Treaty Versailles the of 231

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CEU eTD Collection H Faulenbach, Zeitgeschichtliche„Nach Niederlage. Fragen der Tendenzenuna apologetische in der History”, Deutschland. Historiographische Nachwirkungen des Ersten Weltkriegs the impact this see of debate, open and remains a subject for research. for asubject remains and open still fact in is which scholarly a debate to leading Beard,Charles Renouvin…), Pierre non- issue was by picked up decision restedthat this on a highly misguided and selective historical interpretation. The the interwar period. Theywerechallenging the wording the of Articleattempt to show in a deba Hans Alfred Delbrück and fuelled vonWegerer 1871- Kabinette derPolitik Europäischen supplemented the with growing of primary published collection ( sources für Erforschung der Kriegusrachen by the G the by Kriegusrachen der Erforschung für Kriegsschuldfrage the journal werehistorians forefront Assembled venture. of around this the in on Germanywere the subject of open r war for responsibility the placing treaty the of clauses the convened, never was tribunal http://www.zeitgeschichte 89 der Kriegsursachen, Erforschung die neutral for arguing Aaal, was who Although Legitimation wissenschaft. Legitimation on GermanSecondWar World histo interwar Oxford : Bergham Books,1996), 87- Collective Memory. Government and International Historians through Two WorldWars Wilso Keith in: collected Bazlen, O. Joseph and Evans L. Ellen Witthens, Herman scholarly attempts and predominant politicalmoods is revealed in contributions by Holger H. Herwig, Berliner Monatshef Zentralstelle Bach, August in protagonists the of one by Germany

istoriographie Weimarer Zeit“, der 31 The overviewThe ofin debate the Klaus Grosse Kracht, Kriegsschuldfrage und zeithistorische Forschung in

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1 (März 1937) : 272- Zentralstelle (the Question of Waraided Guilt), the with creation of Zentralstelle -

online.de/md=EKW ( Frankfurt am Mein : Suhrkamp, 1999), parituclarily the contribution of Bernd D'Agostino, Anthony. “The Revisionist s well as (SidneyFay, authors Harry Elmer Barnes,German

- 177. More on influence of legal context of the aftermath of the the of aftermath the of context legal of influence on More 177. 51.

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online, 2004. Die GroßeDie (Providence, (Providence, Forging the 80 CEU eTD Collection /London : University of Nebraska Press, 2008), (ed.), the effects of trials the J in sentence t wascase most one of with the vehementlyyet and Germany, postwar years pursuedin ended prison 4 The American Journal Boldt”, and of International Dithmar Law Lieutenants in conduct “Judgment Trials: in German War case such of example The pursued. enthusiastically historiographiesas well. apologetic st atmosphere which in Germany both wouldbe exonerated and Germans of guilt. Such concludeof sufficesto contributions thatone taskswas important of its create to an declaratively Consciences aux appropriatejournal Appel an published multilingual 91 90 interwar period, filled racism, with anti- realities of local th application.and The showed between universal cleavages standards public. eve of whomwerepeople, six convicted, twoof shorter to whom and prisonterms, sentenced twelve for only thetrials started actual However, Leipzig 1921. in Supreme in Court dw list commandersLudendorff Germany proteststhis in and Afternew Hindenburg. including the wartime German ChancellorBethmann Entente drafted 3000names, contained only be to cut by 854suspects, to themselves for The firstpartresponsibility crimes. war the issue of list of such perp

Due to such pressure, the trials in interwar Germany held in Leipzig where neither numerous, not not numerous, neither where Leipzig in held Germany interwar in trials the pressure, such to Due Kriegsschuldfrage: indled to 45 persons of indeed lowerof 45persons theindled to who triedGerman were front rank, in n escaped from prison with the help of guards and to the delight of the German of the German theguards to delight and the with help of from prison n escaped Atrocities on Trial. Historical Perspectives on Perspectives Historical Trial. on Atrocities 91 The fiascoLeipzig the of trials was just amongthe most visible failures which largeTheclouded contestedresponsibility of outbreak in has forwar issueof the o the officers, who theo officers, their fled respective and early prisonslate in 1921 The 1922. assessment of

rategies were pursued, vehemently, more or less byother interwar the open for contributions from Europe, of allover the antitles even overview contributions for open Inhaltsverzeichnis. Jahrgang 1925 , Berlin1926. ü rgen Matthaes,LessonsLeipzig, Patricia, The of Heberer Jürgen Matthaeus 90

3 Semitism, discrimination orpersecution discrimination Semitism, even on - 24.

the Politics of Prosecuting WarCrimes

- Hollweg andthe military , 16 (1922): 708- etrators that the the that etrators , (Lincoln (Lincoln , 724. This

and was was and 81 e CEU eTD Collection Penguin Press, 1972). ForPenguin the Press,1972). irreconcilable participants see Wint, Total Calvocoressi, Seewar. Peter Guy Causes andCourses of Second the WorldWar of justice. finallycourtsevil past, and beforeconsensus facehistory to the drag onthe the necessity aglobal to create order in course its during committed atrocities worse even and war another It be to took not possible. out War, Firstturned World afterand the as promised promise of the possibilityof the bringing past to trial, as augmented the in Dreyfus case, and totalitarian systems, wereactually contributing growing theautarchy. to The early economic difficulties,behind national closures borders and the buildi gender, ethnicity, strengthenedwith beliefs, classthe or race, basisof religion, political 93 92 mutuallyexclusive ideologies. regardless of their lethality and criminality, to politicalthe level ofconfrontation the of warfare of means the of totality the through warfare, of theatre global the of aspect are still activelyevolving”. consequences traumatic allourwhose in but cultural simplynot practices, omnipresent which essentiallyover,the is asrepercussions past, but aare whose history not “a the watershedwe trauma as consider our...not an times event of e Laubas Doriby War, regarded Felmanand World theShoshanna in periodSecond of the history War of the World (London : Penguin, 2007), 450- The Ferguson, Niall see toll death On the devastating 2000). : CID (Podgorica Intolerant], Times of the

The exp The Shoshana Felman and Dori Laub Testimony. Laub Crises Dori and of witnessing Felman in literature,Shoshana psychoanalysis, and , (New YorkRoutledge, : 1992), xiv. Never seen has the world theand before amountof human devastation miseryas ression total war, used by Goebbels during the war, was overtaken by analysts of its aftermath: aftermath: its of analysts by overtaken was war, the during Goebbels by used war, total ression eI.2.2 th War Legal Second World Reckoning with 92

It was a total war in many resp many in war It atotal was

93

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465,

for the Allies Andrej Mitrović, Mitrović, Andrej ects ects , – unconditional surrender from the geographical thegeographical from Vreme netrpeljivih Vreme

ngof authoritarian ncapsulated in in ncapsulated , (London :

[The [The 82 CEU eTD Collection and Memory country Europe. in in expressed ‘scientific racism’. record for the edification ofrecord andedification thefor victors, posterityalike.” vanquished, the proce duepeoples legal of the the benefits regimes were organizing trials with “didactic aims of illustrating to the conquered executed).(475Hungary issued,189 242 executed), executed) (2940Czechoslovakia (788and issued, issued,713 executed), 1576 Bulgaria (2618 issued, by followed executed. is This France, were 791 wasunreliable, vi it could be punishments and evidence telling.extralegal onlegal is thepostwar Although quantitative retribution veryexperience andscope the to occupationGreece). addition of in The (Yugoslavia )The and Netherlands, Czechoslovakia, Romania, Bulgaria, countries Albania), by powers conquered (France, Axis the Belgium, countries which had the been members of the Tripartite pact (Germany, Hungary, symbolize to was Germany Nazi over The defeat insensibilities. shift global by a accompanied was the onlyacceptable outcome of war, when happened and it in was1945, it 96 95 94 by the Soviets, in the as USSR well as in the occupied territories. (2006), 461 -

Donald Bloxham, Genocide onTrial Bloxham, Donald Vierteljahrshefte für Zeitgeschichte für Andreas Hilger, „Sowjetische JustizundKriegsverbrechen“, Vierteljahrshefte Cf. Cf. Benjamin Frommer, Frommer, Benjamin The dynamics and outlook ofThe the outlook proc dynamics and

515. , (Oxford : Oxford University Press 2001), vii. the defeat over ideology the exterminatio of , (Cambridge Cambridge : University Press 2005), 91 the aftermath of the Second World War was hectic legal activity in every every in activity legal hectic was War World Second the of aftermath the

One of the most important avenues through which this change was changewas which this avenuesof important through the most One National Cleansing, Retribution against Nazi Collaborators in Postwar

. War Crimes Trials and the Formation of the Holocaust History 94

Additiona ss, simultaneously whilst creating a historical sible. Of 7037 death sentences issued in issued sentences 7037death Of sible. eedings differed greatly, particularly in the the in particularly greatly, differed eedings

lly, many of the perpetrators were tried tried were perpetrators the of many lly, countries characterized by a civil war war a civil by characterized countries

nist nationalism embedded in 95

All of the postwar 96

83

3 CEU eTD Collection 1945, (Leipzig Winfried R.Garscha (ed.), Fascists were anti were Fascists history writing had another aim as well – leftwards. shift continental of consequence the a proposes was thatit asks formerlyruled in Europe?”, German of the adult male population and ten five percent ndants, between defe as affecting, event, encompassing all seemingly and vast a such andbecome purges trials these Why occupation. under did German trialsand thathadpolitical administrative been purgesregions of swept Europe through Fascists: anyone who was an anti an was who anyone Fascists: European war According to the postwar trials. We and Eastern significantlyin however, differed sending “Inin educationalmessages. different 99 98 97 prosecute to commitment expressed a on early very national Allies promptings, the Inter countries, whothe formed representatives occupiedEuropean exiled of the ce the of the onthe war, insisten postwar trials. onthe Tony Judt confirm”wrote to for necessary memory convenient was it way, this itselfin historyfor resolved have “In to order the aspirations: weight of such , (Princeton : Princeton University Press 2000), vii. 2000), Press University Europe: WorldWar Princeton : II and Its Aftermath (Princeton ,

István István Deák István Tony “Preface”, Judt, in István Jan Tomasz o Deák, Gross, Tony Politics The Judt, Rév Less clear was the success of such a venture, as various instances were interested interested were instances various as aventure, such of success the was clear Less Still, Still, the initiatives to punish the perpetratorswar of crimes started alreadyduring , Retroactive Justice Retroactive - , „Post , WienAkademische : Verlangsanstalt 1998), 389 99 - crimes tribunalswas provecrimes to that, as a rule, anti

- - world war II political justice in a historical perspective“, perspective“, historical a in justice political II war world Communists.” K eine “Abrechnung” NS- , 234.

- István Allied Conference on war crimes. In addition to theseIn to addition crimes. onwar Allied Conference 98 - Communist is a Fascist.But the trials and Communist

The legal framework was frequently bending under frequently was framework The legal

Rév to prove the truth of historical trivialism that all , “one of the important goalsof the ofEastern the important , “one Verbrechen, Justiz und Gesellschaft in Europa nach

stern Europe, influencing the outlook of of the outlook stern influencing Europe, the wake of the Second World War, World Second the wakeof the

- Claudia Kurtsidis Claudia Communists became became Communists István Deák István 97

f Retribution in f Retribution

This shift, - Haider, Haider, , and 84 CEU eTD Collection Press,1998), 63- allied war crimes policy andthe question of punishment Pre Kohavi, Arieh in details in analyzed are dilemmas Those Morgenthau. Henry from even summary preferred prolonged to trials. executions Suggestionsfor extralegal settlements also came suitable procedure for international ju international for procedure suitable taken deliberation. into different twists and id exactly The doso. to fate of the German1941,with leadershipwas debatedfrom bethe should Axis held responsible, although debates numerous regards arosein how to Nat United the create to attempt the in restated and Charter Atlantic the in expressed as countries, free of alliance creation an global orderthrough the of restore the to Allies through aimof war the theheld waysaccount be they should Crimes Commission that was drafting the lists of potential indictments and negotiating commitment was expressed in mid jointly those responsible both 102 101 100 the to legal addition in reaction preventattempt to European the that, in resurrected victims w IIthe “After prevailing War World the end sensibilities. of and the both perpetrators the goagainst War, evenWorld would if it the Second scares reckoning of visible the with each and every availablewouldbe that employed means clear conduct orderto in a andwas expectations, it equally pessimistic theoccupied even most transgressed Europe in committed crimes the of scope the that apparent became it Germany, reached troops obligations regarding investigations into warcrimes and their punishment. specifiedKingdom the andUnion in Moscow 1943the Soviet declaration of November

There wasThere agreat of deal confusion aboutpenal nature the used, of processbe to in the absence the of a István “Moscow declaration”. 20 In op.cit, Marrus, Rév anted forget to – , Retroactive Justice Retroactive 89. See also89. the correspondence inMarrus, 22 op,cit, Michael eas, the possibilityeas, a trial being of one among just several options 100 ions. There was therefore a wide consensus that the leadership of a thatthe Therewide leadershipof ions. consensus therefore was

Eventually, of the United States, the representatives United to leaveto the terrible memories of their past behind.” , 231.

dgement for individuals. In different phases both Soviets and British British and Soviets both phases Indifferent individuals. for dgement

for the outbreak of war and of war crimes. This - 1943 through the creation of the United Nations War United creation of the 1943 through the able even during the war. Its efforts were reaffirmed reaffirmed were efforts Its war. the during even able - 21

, ( Chapel Hill, N.C. : University of North Carolina Carolina ofNorth :University N.C. Hill, Chapel - 34.

lude tolude Nuremberg : 101

Once Allied 102

In an an In 85 CEU eTD Collection en : Akademischeen : /Wi (Leipzig Verlangsanstalt, 1998), 122- R.Garscha Keine (ed.), “Abrechnung” NS- publishers, 2 publishers, Peace, andHuman Rights. The rolethe of International CriminalCourt sanatorium, and GeneralManila, with in onthe Yamashita other globe. side of the Bergen camp the of subordinates SS his 45of Krammer and Germany prosecuted Josef powers in countries, the occupying powers started a hectic activity – activity a hectic started powers occupying the countries, 104 103 the subsequentonecrimes war Nazi of trials. the prosecutorsin binding lawand through international makingthemlegally national law, and morality, of of and humanity principles fundamental international law know thatsuch conduct was It illegal? was ex facto, not post was but putting positive into children, becausecolor, helpless people, of their their race, re or their murder innocent people, a million includingwomen ofand thousandsof hundreds liberated Europe, such reservations withdrew: “ and complications was political vast.hand, On the the in facehorror other ofe th seen in convincing historical precedent for such an endeavor, and the amountof potentiallegal there no of tribunal. anOnthe was the possibility international one creation hand, of the S considered to be of universal grievance and hence deservingconsidered grievance aapproach. universal universal beand to of hence were crimes whose criminals, war major the for exception an made declaration the bewill punished onthe territory the gravest onwhich they committed However, crimes. activitywasan ofoutcome Moscow the declaration, agreeing all that war the criminals oviets also started an unprecedented number of trials on the territory they occupied. This alsoontheoviets startedoccupied. territory anof they trials unprecedentedThis number

, 25 trial on Atrocities Matthäus, See Heberer, Patricia Jürgen Benjamin“The Ferencz, experience Crimes, of Nuremberg”, Dinah in SheltonInternational (ed.), - In deliberating the details of this approach, particularly vivid were the debates on the debates were vivid approach, particularly of this details In the deliberating Belsen. The American authorities did the same with the staff of the Hadamar Hadamar the of staff the with same the did authorities American The Belsen. 000, 8- 9. 9.

Verbrechen, Justiz undGesellschaft in Europa nach 1945 Who didn’t know didn’t Who that it was illegal to 150.

- 73; Claudia Kurtsidis Claudia ”, exclaimed Benjamin Ferenz, Ferenz, Benjamin exclaimed ”, in mid 104 , (New York: Transnational Transnational York: (New , -

1945 British occupyingBritish 1945 ligion? Who didn’t Who ligion? - Haider, Winfried Winfried Haider,

103 ,

The The 86 CEU eTD Collection conservative procedures legal and the than- 107 106 105 negotiated. For exa criminals.”, wrote the to US Robert Jackson President. be common standardsall civilized areto provable economic Germany who by life of the militaryestablishment , including the General Staff, and and the industrial in financial, government, in were the authority in in and who a officials individuals number large of accuse will We defence? to their put and accuse we will “Whom insisted: criminals, war Americans, The regime. Nazi the – clear was idea general The made. were proposals different Göbbels), (Himmler, dead already elite Nazi the of members and for which for crimes. the cho As Hitlerice with and ofother defendants, important prosecute to whom onthe of question had different very ideas The Alliedrepresentatives Military Tribunal was set. AxisWar the of European Criminals details, and the with signing of Agreement the London the of Major onthe Punishment crimes. Afterofficials Moscow, in London some negotiations, and Parisagreed onthe war of accused forose th process a due for stage setting the April 1945, in San Francisco United States submitted an elaborate proposalthe toBritish and Soviet representatives in noted Ariel Kohavi. International Mil CharterAvalon Project, in: The of reproduced Charter the is was set. proceedings The the oflegal basis

Kohavi, op.cit, 241 Michael Marrus, 41. op.cit, Pursuant to the London Agreement, which contained the Tribunal’s Charter in one of the chapters a a chapters the of one in Charter Tribunal’s the contained which Agreement, London the to Pursuant Eventually, Washingtonthatthey recognized “officials in have from deviate to Once the political decision was made, a legion of procedural questions emerged. emerged. questions procedural of a legion was made, Once decision political the itary Tribunal

mple, the British objectedmple, putting to the Navycommanders onthe 105

Rather than leaving paralegal to the punishment the retribution,

106 , http://avalon.law.yale.edu/imt/imtconst.asp

who had already detained the largest number of alleged alleged of number largest the detained already had who the individuals would symbolize different agencies of of agencies wouldsymbolize different individuals the on the 8. August 1945,the basis 8.August onthe existing but inadequate but existing internationa 107

However, had a to list suchbe

for the International the for l law”, law”, l 87 CEU eTD Collection 200. from their prison cells the on list. andeder, Ro Dönitz probably and, most of prestige,several of added out reasons people onindicting however insisted both criminalized). TheBritain Soviets being see to wanted Great warfare of area the not traditionally was combat naval that mind in (having stand 110 109 108 judged.” being was past the where Tokyo and Nuremberg at Trials great two “the Shklar, Judith the of middle the unprecedented media attention, Party,Nazi Gestapo, SD, and SA the SS, German General Staff) accused. also stood strange, were choices the although some of and achieved, always not was this Although responsible leaders. prosecutors had the accused chosen a organize with to clear a intention trial for the most officers (Wilhelm Keitel, KarlDönitz, Erich Raeder, Alfred Jodl). TheAllied Seyss (Arthur enforcers occupation Hjalmar Speer, Schacht) Frick,Funk, Albert Wilhelm WalterHans Frank, vonNeurath,von Ribbentrop,Konstantin vonPapen)Ley Franz economists(Robert (JoachimFritzsche), Streicher,Hans diplomats propagators(Alfred Julius Rosenberg, officials Martin Bormann,Baldur (Rudolf Hess, vonSchirach), and ideologues c amongHeaded themone the government. byHerman Nazi Göring, regime. ima

ed bargainingComplicat overthe choice of defendantswell is described in Taylor, op.cit, 79 - , Legalism: law, morals, and political trials, political and morals, law, Legalism: Shklar, Judit

ge of the wartime Nazi elite and did stand as symbols of different pillars of a defeated a defeated of pillars different of symbols as stand did and elite Nazi wartime the ge of

Consequently, the 24indicted were- high 109 110

ofCorps theLeadership Cabinet, (Reich organisations Additionally, several The Anatomy of the Nuremberg Trials mutatis mutandis mutatis - Inquart, Hans Frank,Saukel, Fritz Ernst Kaltenbrunner) and

108

they present did an attempt to createa mirror , (New YorkAlfred : A. Knopf, 1992), ranking officialsranking of various branches of

what was follow were to the in view of ( Cambridge : Harvard University Press, 1986), ould see party party see ould 82, 86- 8.

95. 88 In In

, CEU eTD Collection 113 112 111 assuredly history.” belongs to generations be patient must (and ...The world so I) must for what being done is now Intern landmark theof in history great “a very Nuremberg consider to hesitate not did Birkett, Norman Sir alternate, an judges, keen seemed approach. onthis Judge The who was British sit to on the panel as history judgewill tomorrow. us ” which record on the is these defendants judge we onwhich record thatthe never forget issues, as maintained he in his opening statement in front of Tribunalthat the “we must trial. the of eve the on Robert Jackson prosecutorTaylor Telford beforewrote Chief theto Prosecutor tribunal”, Contributing causesbefore benot thebut pleadedbarhistory, defendants may of bythe defendants launch. to d the plan to and cause that factors the be may whatever waran illegal, aggressiveis launching thatplanningand rigorously doctrine the to discussedyears, for has no many it but place this in trial, which must rather stick of war…the causes inquiry the into known as the Trial of Major War Criminals. “It important is that the trial not become an be to came which case the in proceedings the of significance historical the of aware

Quoted in Ann Tusa, John Tusa, The Nuremberg Tusa, Trial John Tusa, Ann in Quoted Robert Jackson, “Openi Taylor,op.cit, 52-

The key architects of the InternaThe key architects of the 53

ng Address for theng States”, United Michael in Marrus, 81 op,cit, 111

Still, Still, I.2.3History Nuremberg onTrial: 113

Jackso

ational Law. There will be a precedent for all successive successive all for aprecedent be will Law.There ational 112

The bench was addressing, he of four composed

n himself seemed equally concerned about similar equallyn himselfseemed about concerned question of causation is important andbe will important of is causation question tional MilitaryTribunal in Nuremberg were well

, (London : BBC Books, 1995), 205.

89 CEU eTD Collection (2003),. E LAW| Murdoch University evolution”, Electronic of Journalcentury of Law in the Twe Orders Superior and Responsibility “Command A Hendin, in: Stuart Detailed happening. from crimes those prevent to able and know to obliged was he hierarchy army the within position oftheir virtue the by meant that which responsibility, according the to command) supreme (or furtherdeveloped Tokyo in trialsand famous General Yamashitawas accountable case. Yamashitaheld international law for serious human rights violations humanitarian law Boston 1997, V. judgement compatible crimes to committed during the war. individual criminal responsibility in order to make the indictments plausible and revolution required and adjustments serious mechanisms of stretching the of limits responsibilityki aanybody individual was different Their killed. of be to thattheyobvious physically anybody, of andthe kill most cases not in did order not did It was of. accused were they wrongdoings the in engaged directly necessarily not were criminal responsibilityat thatlevel proved be to a legal novelty,as the indicted per crimes. war and humanity against crimes peace, against crimes traditions. traditions. the elements of the indictment. also on affidavits),but thousandsof and witnesses 61defense and prosecution witnesses year duringof activity, was asone sessions it (403proceedings, open 33 impressive hi 115 114 trigger a particular historical narrative. of conspiracy, well afurther, charge onecrime, step went producing manner the particular prosecution a with responsibilityindividual of each defendant, the a connecting accused in plausible person storical dimension. These bold expectations were not based only on the scope of the the of the scope on only based not were expectations bold storical These dimension.

Sliedregt, Sliedregt, van Elies Michael Marrus, TheNuremberg WarCrimes Trial 1945 - http://www.murdoch.edu.au/elaw/issues/v10n1/hendin101.html The veryNuremberg legal magnitudewas undertaking of the underpinning in its Such a complex setting was bound to create a complex legal argument and argument legal acomplex to create bound was setting a complex Such

Ann Tusa, John Tusa, The Nuremberg Tusa, Trial John Tusa, Ann

( The Hague : T.M.C. Asser HagueThe : T.M.C. Press,c2003). The criminal responsibility of individuals for violations of international international of violations for individuals of responsibility criminal The - known in Anglo- in known

114

Nazi leaders stood accused for crimes of conspiracy, conspiracy, of crimes for accused stood leaders Nazi

Saxon law, unknownC but in Saxon , ( Dordrecht : M. Nijhoff, c1992). This approach

, (London : BBC Books, 1995), 16- 6. A Documentary History

Lyal Sunga, , 29.5.2005. 115 Indi

As well as est as well As vidual responsibility in in responsibility vidual , 10

Establishing their , Bedford Books, nd, and this legalnd, and this ontinental legal ontinental legal ntieth Century Century ntieth ablishing the 9.

sons sons – 90

a CEU eTD Collection The Nuremberg trial andinternational law Humanity” involved the commission of, Crimes against Peace, War Crimes, andCrimes against the formulation or of execution a commonplan or conspiracy or which commit, to accomplices in or instigators, organizers, participatedas leaders, 1945, preceding 8May yearsconspiracy the persons, …All defendants,divers with other duringof a period becameaccessory their an to and aims some stage purposes at of of the the development with of the conspiracy, and Party Nazi the of amember became defendant Each conspiracy. their of and purposes defendants and their co- certain its subsidiaryof o Party, togetherIndictment. The with Nazi covered bythis such the throughout period known as theParty, Nazi which had been Germany in founded 1920.He in continued as the of NationalsozialistischeFuehrer or Deutsche leader Arbeiterpartei, supreme the also 118 117 116 opening his in Jackson the to Tribunal. address involving a score of n and continent, whole a decade, covering a of the developments litigation single scope a of “Neverindictment. effort legal in has history en before made the been bring within to officials humanity. committed against warcrimes crim and es power Germany in lead an andEurope, aggressivein to pursuing war which the indicted seize attempt to purpose, an in criminal aothers)accused conspiracya with of were

Robert Jackson,Robert in 80. Marrus, op,cit, Av Stanislaw Pomorski, “Conspiracy and Criminal Organisation”, in: George Ginsburgs, V.N.Kudriavtsev, V.N.Kudriavtsev, Ginsburgs, George in: Organisation”, Criminal and “Conspiracy Pomorski, Stanislaw alon Project, Nurembergalon Project, Trial Proceeding According to the historicalgist of the indictment, “ibecamen 1921Adolf Hitler 116

In effect, Ineffect, knowledge of their aims and purposes, or, with such knowledge, such with purposes, or, and aims their of knowledge conspirators and an for instrument the carrying of out the aims ations, countlessations, individuals, and events.”, innumerable said lph Hitlerlph and collaborators his Ado (24 indicted among many rganizations, became the instrument of cohesion among the the of instrument cohesion becamerganizations,

, ( Dordrecht :K Dordrecht v.1 Indictment, http://avalon.law.yale.edu/imt/count.asp Indictment, v.1 118 luwerAcademic Publishers, 1990), 213 -

117

It was a indeed unique 248

91

CEU eTD Collection (New Heaven.,London: Yale University press, 2001), 2. law and rightly watched by courts lest it be abused.” be it lest bycourts watched rightly and law the of dragnet great the which is charge, conspiracy akinthe to closely organisations are of the precariousness of such approach: truealso is that proceedings “It against aware well was Jackson charge. conspiracy a was indictment the of argument overarching The narrative. historical of elements by the impregnated indictment an launched again crimes the of account aplausible offer to anda writers, number of eagerlaw journalists see andthe to in making. history of the rare undemolished buildings in the city, host to was not just the legal staff, also but complexity.courtroomutmost The of the a which task wasof the 121 120 119 is written true.” it that see can we But again. over history make here cannot “We concerned: were law and blunter about the overall of intent the prosecution insofar the relations between history history world”. of seminar the ever heldthe in historical greatest “the Kempner, Robert prosecutor subsequent the thein words of was become, to Nuremberg back. noturning a was there In setting, such ending 1945. in from War,1919,and well producing narrative as World ofastarting the historical Second offered a very influential historical sketc were doing criminal itin Ina way. order to substantiate the indictment,the prosecution they that prove to determined was and history, creating were defendants the that aware t of criminal nature unique exposing the means of

Quoted from Roberet E. Connot, Justice Nuremberg, at NizkorThe Project, Nazi Conspiracy andAggression, vol. 8, 28February 1946, 361. Lawrence Douglas, Hence the trial was to be memorable, persuasive and plausible at the same time, time, same the at plausible and persuasive memorable, be to was trial the Hence 121

The memory of judgement. Making law and history in the trials of the holocaust

h of the development Germany,ash of of the interwar 120

(New YorkCarroll : & Graf xiii 1988), His colleague, Talford Taylor, was even was colleague,His Taylor, Talford he Nazi regime. The prosecution was was prosecution The regime. Nazi he st the peace charge, the prosecutors prosecutors the charge, peace the st 119

Still, thereStill, was noreal other city of Nuremberg, one one Nuremberg, of city

In order

92 , CEU eTD Collection trial trial 1947), 125. aid. had been enormous of account, historica 4 the case until continued the presenting 124 123 122 prosecution and many continued months after longthe case had begun.” the took documentsthe amongnaturally task of these and selection and other in places, documents of had allsorts been away discoveredbehind mines, hidden salt brick in walls and orders German number of enormous that“an Lawrence noted Britain, Geoffrey of thePeter participant Calvocoressi, historians. one baringthis of contemporary the papersto official publiceye and scrutiny”, expert wrote beginto and the investigation launch a“There prosecution. history in noparallel is to locations, fromMarburg Schloss Berchtesgaden. to the OKV, OKL, MinistryForeignandof the the Navy Affairs were captured diffe in than destroy the material entrusted to their charge.” rather ofprofessional own archivists,children who would their psychology eviscerate t “understandingof observes, as Tusa of, out holdings, their destroyarchivists not did German of the contrarymajority received, theStill, orders the to war. the ending of i lacunas were enormous world. Certainly, there the in greatest archival remnants of the one of

AnnTusa, John Tusa, op.cit, 96. op.cit, Tusa, John AnnTusa, Lord Justice in: Lawrence,Nuremberg “The Trial”, Guenael Mettraux, Nuremberg the Perspectives on Peter Calvocoresi,Peter Nuremberg: The Facts, the Law andthe C (Oxford: Oxford University Press 2008), 291. As thewas indictment read ontheNovember 1945,the 20th Prosecution The bureaucratic nature of the Third Reich left more than enough of a paper trail trail apaper of enough than more left Reich Third the of nature bureaucratic The n theseas they holdings, wereor destroyed hidden or simply the in chaos lost of

l facts found in the in captured of found the facts Thirdl Reich archives and elsewhere As the war was reaching its end, the Allies were in possession in were Allies end,reaching the As its the was war

th

March 1946. In a creation of this historical this creation of In a 1946. March 122 123 onsequences

Consequently, the documents of The Presiding from Great Judge

(London: Chatto and Windus Windus and Chatto (London: 124

rent rent 93 he he CEU eTD Collection Bloxham, op.cit, 17. leading Nazis in theirleading in plandominate to the world and wa to Nazis contemporary and for history consumption means and the employed methods by the purposes of the trial of the major war to criminals is document and dramatize for by the trial of very opening publicly announced onthe They were thethe proceedings overallevolved. of purpose conceptsambitious investigators,on moreforeven the atrocitieswere shocking which http://www.law.u 126 125 weregivingvictims Reich. athe insight horrors follow, direct into to Third of the Wisliceny, Erich von dem Lahousen,Erwinn Ohlendorf,ranked as Walter Schellenberg, Otton Dieter insiders such documents were of the 33eyewitnesses, with testimonies supported highly including than rather archives, captured prosecution decision, Jackson’s conducted case was, from on throughthe the documents they widen resist theto not temptation did their approach. majority The of the divided exactlyalong those and crimes against Although peace). of the the prosecutors roles had previously been crimes, humanity, crimesgroups(conspiracy, ofagainst war the crimes four distinctive past.”the about truth the recent Germans the showing value greatest the of be can record Nuremberg the of and testimony statement was echoed by Taylor,Talford the hope who that“the expressed documents

Gordon Dean, Spokesmanto Prosecutor Robert Jackson, Detailed sequence of events during trial the The in Nuremberg Trials: Chronology

ty days the bench was faced with piles of documents on of documents piles with faced was bench the days ty thanDuring seven more In courseof the preparations, the mkc.edu/faculty/projects/ftrials/nuremberg/NurembergChronology.html

Bach Zelewski and Friedrich Paulus. Many eyewitnesses and eyewitnesses Many Paulus. Friedrich and Zelewski Bach

lines, in order in lines, the minimize overlaps, to the in courtroom

through the use of witnesses and affidavits. Still, submittedStill, witnesses and affidavits. through the use of prosecutor Jacks prosecutor and in light of the massing evidence on of theevidenceand massing light on in on’s spokesman:

11. August 1945Quoted from Donald ge an aggressive war.” aggressive ge an “One of the primary primary the of “One

126 125

This This 94 , CEU eTD Collection (London : Harcourt 2001) truth with battle his Erinnerungen transmit a message of universal relevance. universal of amessage transmit amountof responsibility limited assumeand their a opportunity position, improve to ju not message thisStill, presented the accused the with opportunity state to their case and send to a cross thorough a themto opened which behalf, mutual accused testified on di officials Affairs Foreign MinistryLuftwaffe of and officers ranked witnesses. several Although highly Hitler and Himmler. Defendants also attempted to present their cases, presenting 61 attempted to evade t evade to attempted rather but crimes, war of existence the contest even not did accused the peace, the against legitimacy proceedings, the of wellas as the basisfor crime the conspiracy of andcrimes and legality the challenged they Although accused. e th manyproceedings, did of so 128 127 which will be rectified some day by history.” and of logic, which entirely is devoid erroneous “an conception closing as statement at andGöring“foralso of judgment myfuture history.” Hermann of theof people sake the solely defends he that remark the with coloured once was trial the during attitude bizarre used for quit and deliberation nominated begun bythe victorious powers. between the judges tempted to influence posteritya with final appeal to history, evaluating the trial in his

The Speer case Speer was,The and stillmatter is a of fueledmemoires. alivelyby debate, Albert hisSpeer, Michael Marrus, op.cit, 223, 219. If came the prosecution an to understanding of the historical importance of the (FrankfurtMein and furthered : Propyläen am Verlag by 1969), Ser Gitta e different purposes by unrepentant defendants, such as Rudolf Hess, whose Hess, Rudolf whose as byunrepentant defendants, different such purposes e st to the to st bench, historywell. as to Some, but Albert as Speer, used this , (London : Picador 1996) and more recently byJoachimFest, Speer. The Final Verdict d step forward G d step of defence in heir individual responsibilityfor them by relegating the blame to

127 128

The same opportunitywas perceived, but

By end of August sideswere both heard, öringand Ribbentrop,generally the eny, eny, - examination. examination. Albert Speer:

95

CEU eTD Collection trial. Details in Ann Tusa, John Tusa, John Tusa, Ann in Details trial. the during lost was document the of original the Regrettably, future. near the in war for plans the discussing was Hitler which in 1937 November in meeting the at present officers the of one by taken notes the it consi is and against peace, crimes of most for charge document the important was single the memo terminus post quem were contentjudges of persuaded by H the the reading of conspiracythe thewas charge, choice in made againthe light of consideration a historical – existence of many separate plans rather than a single conspiracy embracing them all.” them embracing conspiracy single a than rather plans separate many of existence certain with establishes evidence the …but apparent is that, before probably program …thatplans were as wage to early made war, as 5November 1937,and rest not “The must be planning,to criminal, merely of a onthe party declarations peace was declined. Instead, the judgment opted for a restrictive takefor restrictive a optedInstead, judgment the peace declined. was account 1921- of against humanity, the prosecution’s motion to admit as a judicial notice the historical following the proven of thein elements indictment parts related war to crime clearly is judgment the Whereas war. the predating events historical to related judgment the partsin of cautions wereaccused, particularly they the theythem byjudge way the laws and evidence. Taking heart to Prosecutor Jackson’s remark thathistory judg will events the in historycivilization.” of days: the Nuremberg of Judgment “The may Tribunal ofimportant be the most one deliberation the during West Rebecca by well expressed expectations, the of aware also become historians”,judges keenobservedTaylor. not of the to targets were the uni 1946 was an encompassing accountof the evidence presented. were The judges aware of 131 130 129

The Nuremberg Trial Nuremberg The Tusa, John Tusa, Ann Taylor,op.cit, 554 Judgment of the International Military Tribunal queness of and their were role, scrutinizing the evidence thoroughly. offered “The The Judgement of the International renderedThe 30 Tribunal, MilitaryonSeptember Judgement of the

for the materializationwar.for the for aggressive plan afixed German of 1939 as a period of nesting of a conspiracy to commit crimes against crimescommit against a conspiracy to of nesting of a period as 1939

op.cit, 99- 130 , p

Hence applicable they both rigorously scrutinized 100. .14 ossbach memorandum that this meeting is a plausible plausible a is meeting this that memorandum ossbach

, in Marrus, op.cit, 232 - 3.

Through this restrictive restrictive this Through

on the conspiracy: on the Arguably, Hossbach 129 s and crimes crimes and s

They were were They ty the the ty sted of of sted 131 96

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CEU eTD Collection warning.” impartial record future which may to historians turn for for an truth politicians dfuture touchstone a and and“This contemporaneous Tribunalprovide authoritative will by Hartley Shawcross,British Chief Prosecutor atInternational the Military Tribunal: belief that theya sent message significant of global importance the Many volumes. number shared large of a in and circulated numerousinto languages translated were attention, considerable drew immediately judgments the rendered, Once twelve the individuallyfor party accused, As leadership). four (Gestapo, were - found criminal Sicherheitsdienst Regardingcrimes responsibility, againstofaccused out humanity. seven and crimes bywar characterized aggression of wars of series a waging in culminating Machtergreifung, descriptions of sets violations of of international treaties by Germany defendants.” the against charged crimes for of allthe thecommission the alleged whole and the German people, paved way Hitler's of asupreme leadershipto position power from whichcontrolled it the destiny of growthwar, Naz particular, in tracing of the followed and the the first world “ into They readily delved cases.” two onein or documentsmaking, ofof their which own thechallenged has authenticitybeenexcept not on sure mea large a in rests defendants the against case “the that concluding evidence, 133 http://avalon.law.yale.edu/imt/judprov.asp 132 long or sentences life got accused seven Legacies

The Avalon Project, Judgment of the International Project, Avalon MilitaryThe Tribunal Michael Marrus, . Vol.- 5 Still, Still, these reservation withstanding, the judges were very much impressed by the 133

The Holocaust andJustice, “History of Holocaust in the Courtroom” in Rona in Courtroom” the in Holocaust of “History

( Evanston, IL: Northwestern University Press, 2002), 216 132 - hree were acquitted. term imprisonment and acquitted. were three

What followed was a lengthy account of alengthy was followed What reviewing some of the events that that events the of some reviewing

SD, - Schutzstaffel SD,

death penalties were rendered, rendered, were penalties death , ld M. Smelser (ed.), Smelser M. ld (ed.), , perhaps best expressed expressed best perhaps , organizations,

i Partyi under SS and Nazi and SS

Lessons an an Lessons 97

CEU eTD Collection http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/7_1_1950.pdf Recognized in the Charter of the Nürnberg Tribunal and in the Judgment Tribunal, ofthe See also the 1950ILC Report containing Nuremberg principles: Principles of International Law the Nuremberg Tribunal. Also UNGA resolutons 169 resolutons UNGA Also Tribunal. Nuremberg the from December 1 Punishment of the Crime of Genocide Resolutions, Assembly General Nations United Commission. Law Charter of the Nürnberg Tribunal and in the andin Judgment the theof Tribunal Tribunal of Nürnberg Charter Recognizedwhich Law the International Principlesin hadof by1950recommended international criminalcourt through activitytheof Interna the Charter of the Nuremberg tribunal and stage setting the forthe permanent the creation of issues of war crimes, affirming the principlesof international law as applied in the reflected in a number of Resolutions of its General Assembly, which were General of its Assembly,which Resolutions ofa reflected number in rights towards well shift universal humanwas United the Nations, this creation of the global relations.past andBest international a web establishing new of expressed through thewith recent aimed reckoning towards period postwar theundertakings immediate of 135 134 effectDecembercame into January in 1948and 1951. Genocide of Punishment the of Crime year,during particularlythe Convention onthe and P the same through of andprinciples the expansion Geneva was bythe berevision Conventions to secured the 1948Declaration Universalof Human Rights universal human rights, inbuilt thein Charter of United Nations, wer

See United Nations General AssemblyResolutions 3, 19, 20, 21 (1946) and particularly resolution 95 UNGA Resolution 180 (1947), and 260 (1948). See also OHCHR, Convention on the Prevention and Nuremberg was an important segment among numerous andNuremberg political segment legalwas among an important I.2.4 The ImpactLawI.2.4 the between Relation ofHistoryand Nuremberg on The 4 entitled4 Affirmation of Principles the Law of by International Recognized Charter the of

, http://www.unhchr.ch/html ,

which was adopted by the General Assembly in Assembly General adopted in was bythe which - 177 from 1947, regulatingwork the of International 135 . The operationalization of those /menu3/b/p_genoci.htm http://www.un.org/documents/resga.htm

tionalLaw Commission

e also specified in in specified e also . 134

revention and revention and regulating the the regulating

Principles of

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CEU eTD Collection Harvard University Press 1956) Press University Harvard 1975), and were speedily ratified by t ratified speedily were and 137 136 fohypocrisy,rwere the interiorization shrinking space of ambitious legal devices. accusations taken,membercommitments followed on the bymutual statesof nature over compromisingenvisaged Security order.Disagreements Council between the the legal process a of decolonization confrontation between the East and the West, also thebut tensions connected the to settling To complicate disputes. of international things was further,only it not the hadCouncil shown thatthe c Security the in membership China’s of issue the and Korea in war of escalation the over Trieste or Berlinwere onthe verge of triggering a Worsestill, globalconfrontation. those as such crises of sets as paralysis, a to relations came soon systems international of totalitarianism which werecomparing Stalinism with Hitlerism emerged. Comintern notion of “fascism as the last stage capitalism”. of In the theories West, of democracies for the r shielding project openly East to collide. was Propagandafrom directly the Western accusing was steadily and worsening, it not did take long for the powers thatcrushedthe Nazi a ‘waging as WWII of concept abrupt usually polarization, referred as to a , it became soon clear thatthe application, becameIn negotiations. of a complex matter a world undergoing which was [Yugoslaviasteps on East] Middle the Suez More on the late in 1956. of role UN in this Vladimir Petrovi

Cf. Cf. T he struggle of the system to overcome the strains was obvious during the twin crisis over Hungary and and Hungary over crisis twin the during obvious was strains the overcome to system the of struggle he The Origins of Totalitarianism of Origins The in Arendt Hannah Zbigniew Brzezinski, Karl J. Friedrich, Totalitarian Friedrich, J. Karl DictatorshipZbigniew Brzezinski, and Autocracy However, although some of those legal instruments were voted for unanimously were unanimously for instruments voted of thoseHowever, legal althoughsome

oncept of the United Nations was no guarantee Nations was offor theno oncept United peaceful

nd destabilization in the East in Middle which were nd destabilization , (Beograd : I (Beograd , war to end all wars’ amounted to utopia. The atmosphere amounted utopia.The to end to war allwars’ he member states, their content, he and states, member particularly their emnants of the Nazi regime, Nazi emnants ofreviving the 1930’s - 166 2007), istoriju savremenu za nstitut , (New York : Harcourt Brace Jovanovich, 1951, ć, ć, Jugoslavija stupa na istok Bliski stupa Jugoslavija , (Cambridge: (Cambridge: , 174. 136

137 Fragile

99 CEU eTD Collection and moreand was than 500,000 sentenced financial to penalties. 800,000 were processed: 9,000were convicted on prison terms, 22,000 was removedfrom public offices, which of out trial, to brought were million Germany 3,2 more was screened. than people 13million 88- History of the Twentieth Century, vol.III 1952- A Civilization. to Challenge Gilbert, Martin Cf. overview. encompassing equally ending his there beginning watershed the of former postwarperiod, the his endingwith year, synthetic account the that and latter War of the World. History’s of Age Hatred ( launching an even deadlier confrontation. evenlaunching an deadlier of potentials era,with the new beginningof more than the stabilitywas much not 140 139 138 happened,think andmore is the second importantthan the first.” what people and realize whathappenedNuremberg both there actually that“todayis need constantly postmodern be than to Taylor Telford not more himselfto debated.One contempor the of references cultural even political, historical, legal, crucial the of one represent proceedings Nuremberg not did match the initial trial, which became soon a subject of many As the discussions. to life sentences rest andthe prison to te 20 death, to 23sentenced convicted, 142were trial. 177stood and indicted,persons were officials,abuses, industrialists, SS judges, officials, government leaders), military 185 Germany. occupied in Americans by conducted time untouchedglobal working, The bythe tribunal arisingcontinued conflict. military this havenot been achievements could its powers, the victorious of undertaking joint of a example an As air. the in hanging experience remained the Nurembergdisappointment, remained unlikely a and possibility.bitter distant of this Against the background closed the doors for negotiating international criminal the court, permanent which

To no wonder no To the authorsdifferent as as FergussonMartin Niall as and the Gilbert and 1952 take actual Telford Taylor, Jonathan“Law Politics Friedman, in and subsequent the Nuremberg trials”,in: op.cit, Heberer, Patricia 89. As a total of juridical reckoning with the Nazi past in the immediate postwar period in West in West period postwar immediate the in past Nazi with the reckoning juridical of total As a 89.

It became clear that what was in 1945 regarded as the dawn of the new era of new as of the the dawn It was 1945regarded in what clear that became

Nuremberg Vietnam: and An American Tragedy

London : Penguin books 2007) ary world, their contributions and effects are being effects are andbeing contributions ary their world, 1999 rms.

138 (London : Harper Collins 1999); Niall Ferguson, The

139 Inab

However, the publicity those cases got cases However, those the publicity ility to reach political consensus had , (Toronto: Bantam 1971), 13- In 12 subsequent cases (medical cases(medical In 12subsequent

140

14.. 14..

100 CEU eTD Collection Penguin Books, 2001). North Carolina Press, 1998) Nuremberg : alliedwar crimes policy and the question of punishment trial, Bradley F.Smith, The Road to F.Smith, Nuremberg Bradley trial, Lucent There 1997); Books, muchwas more succes scholarshipin focusing on aspects particular o Nuremberg: Roberet E. Connot, Nuremberat Justice a different Davidson, perspective. Eugene The Trial of the Germans op.cit. Anumber more of recentstudies provide overviewsof the entire process, but are hardly putting it in the Nuremberg trials : a personal memoir Taylor Telford ago time some quite written Tusa, John and Ann by study the and Taylor, Documentary History 1945 Trial on Crimes 18.12.2008. War Major documents Nuremberg The Marrus, R in Michael documents collection, http://www.holocaust contain full transcripts from thewell trial as the as bulk related the of documents. knownSeries as the Red of detailed scrutiny. The records of the trial itself are twosetsof in books contained 142 http://www.yale.edu/lawweb/avalon/imt/imt.htm 141 own. ontheir atopic became Nuremberg of interpretation beginning of the 21 revival idea of this throughInternational the troubled creation of Criminal in Court the yet international waswith another tribunal,followed and tide of literature triggered by the apermanent of creation the of absence the to due exactly perhaps increasing, was stream of monographs onthe topicwas readily availablesince interest time, 1946.Over of l a is Not thatthere shortage discouraging factor. resources required an- for in of corpus entire ofa the part are only which ofavailable piles documents, of easily historical accomplishments of the trial proved unfounded.It seems that the proliferation However, the hope thatmere quantityavailability secure and of would sources the

Seminal introductory readings into the Nurem the into readings introductory Seminal Nuremberg War Crimes Trial Trial Crimes War Nuremberg The Law School. at YaleAvalon Project The The protagonists of the trial correctly concluded that their work will be a subject a be will concluded their work correctly that the trial The of protagonists

Infamy onTrial - .

history.org; HarvardProject Law School Trials Library, Nuremberg

(Boston: Bedford Books, 1997) http://nuremberg st

century. . , R.J.Overy, In

(London : Viking, 1994); Earle Rice Jr. The Nuremberg Trials

Blue Series and the Blue

142 depth analysis of the proceedings, a is more of a .law.harvard.edu/php/docs_swi.php?DI=1&text=overview

However, period, this battles throughout over the

g, ( terrogations : the Nazi elite in Allied hands, 1945 New YorkAlfred : A. Knopf, 1992); Ann Tusa, John Tusa,

(New: York Carroll & Graf Joseph 1988), E. Persico, (New York Basic : Books, 1981);

berg proceedings are stillproceedings are berg the account given Telford by , Project History Holocaust The See

due t due o the color of the bindings. They iterature on Nuremberg. A steady steady A Nuremberg. on iterature .

(University of Missouri Press, 1966); ,

( Chapel Hill, N.C. : University of of :University N.C. Hill, Chapel

Arieh Kohavi, Prelude to Kohavi, Arieh , The anatomy of .

(New York : : (New York , (London : A digital A ; - visited visited 46: f the f the 101

141

A

CEU eTD Collection (London: Focal Point, 1996) Austrianthe prison on charge the of Holocaustdenial. David See Irving, Nuremberg: The Last Battle, into straight him led ventures similar other whose Irving, id Dav historian British of work the is was outputs was corrnerstones BasteiLübbe, 1981), 356- Krosigk, von Schwerin Graf trials, subsequent the in defendants the of one of work the in found be to is trial the historiography“ of the Holodomor, Imperio Ab on trial, trial, on Atrocities ofand Impact Nuremberg, Mythologies.Donald Heberer, Patricia The in Bloxham, Milestones Carolina Shifting University Press,1970). importancewider of Nuremberg context in problematized is Nuremberg, American Attitudes Towards the Major German War CrimesTrials (Durham, NC: North Burchard, “The Nuremberg Trial and its Impact on Germany”, Journal Germany”, on and itsImpact Burchard, “The Trial of Nuremberg International Criminal Justice Trial Institutionalised Vengeance? 13 op,cit, Blumenthal, (2006), 800- Vengeance? the 20 the second of half also ethic legal, but legacyas guardians the Nuremberg of vocal were No the less of the victors. justice understandingdifferent its as of variations international criminal law, Nurembergwasan obvious target for such criticism, based on history. German on averdict as perceived parts its and judgment, particularlyof of of the the revision employed the sake for their legal onthe venture. historical takes However, legal complex were arguments soon topic. No sooner was the judgment rendered,main participants of the t the sensitivity of the mind in surprising,bearing not is works and interpretative abundant the topic, entitled on volumes authoritative most edited latest and the one in of expressed neatlysame, as 144 143 Nuremberg, the main of on factual knowledge the immediate aftermathof the trial, if not even more so. Despite undeniable the progress

David The Blumenthal,McCormack (ed.), Legacy Timothy of Nurem Many of accounts participants in recollected are Mettraux, Guenael Nuremberg the Perspectives on , (Oxford : Oxford University Press 2008). On and German the IMT en 263- The evident contrast between the limited scope of research of scope limited the between contrast evident The Die grossen Schauprozesse. Politische Justiz von der Antike bis zur Gegenwart 829; also Suzanne Karstedt, “The Nuremberg Tribunal and German Society”, in David A. also Suzanne829; German“The Society”,David Tribunalin and Karstedt, Nuremberg case of Ukraine by Johan Dietsch, Struggling with a „Nuremberg „Nuremberg a with Struggling Dietsch, byJohan Ukraine of case the in example for and 282, 144

Maurice Bardéche’sMaurice book The InfluenceLegacyCivilising Institutionalised or Nuremberg: of - 32. For 397. However, revisionwasmeans byno limited to Germany. One of its early

(Leiden/Boston : Martinus Nijhoff 2007). th

century.Hence this debate is no less lively todayas itwas in William J. Bosch, Judgment Bosch, on J. wasUSA, impact William this analyzed by

Nuremberg Promised the or Land

3

(2007), 139- 143

Remaining a discontin

bone of contention remains much the muchcontention the remains bone of 160.

Typically German revisionist view on on view revisionist German Typically

berg: Civilising Influence or al andal political watershed of (1947), and one of its latest vironment see Christopher - oriented scholarship scholarship oriented he trial explained explained trial he ued precedent in precedent ued , (Münche , 102 n : n :

in in 4

CEU eTD Collection .”, writes Erich Haberer. Military Erich Tribunalwrites .”, against humanity Nuremberg controversyinternational hassince the been subject of not, however, bring one closer to one of the problems presented by the trials – presented trials problems bythe closerof however, the not, bring one to considerations of the nature of responsibility war for and for humanity crimes against do “These history: and law between tension presumed the on based were fears – andhistory justice of incompatibility betw betweenand history law and making aif controversial first definite, the in theory breach the front past in of the court ofa justice’ special deserves tipping placein the balance 146 145 perhapssome moral purposes, coursevictors.” was so the the best availableto strengthened it. But in some cases, as at Nuremberg, it has also achieved its political and has thatit law demeanedmore consistency the andhas regardless principle of legal ai political anecessary achieve to law of forms the of use “the that Rubin Alfred of theutilization Nuremberg trials.As a she legal wouldprobably realist, agree with early Shklar. onby Shklar was Judith merely not the issueof questioning political history and law. theincompatibility theory between of embeddedin reading, uneasiness legal about its to related necessarilynot controversy, background is intellectual was whose provoke boundto that high 1997), 183.

Erich op.cit, Haberer, 487. Alfred P.Rubin, Ethic andAuthority in International P.Rubin, Alfred Law, More importantly for the purpos the More for importantly The process greatestconcerns this overin were thedistortions possible express - profile trials might be utilized to influence the collective memory and history

the political context of the Second World War, but is rather reflecting is War, but World of the Second context the political

in the investigation and prosecution of Nazi war crimes and crimes and crimes war Nazi of prosecution and investigation the in een historyeen confluence “The – anddisciplines of law: twodistinct

e of this study, Nuremberg as a sight of ‘dragging ‘dragging ofa sight as Nuremberg study, this e of 145

And indeed, of the the strongintrusion idea

Cambridge : Cambridge University Press Press University Cambridge : Cambridge 146 that of

103 Her Her ed ed m

CEU eTD Collection 1986), 194. juridical process, especially in criminal cases.’ criminal in especially process, juridical the meaning of causality used historical is in as it discourse course and the in of the atrocitie the of and war of origins historic the between difference the not ofincompatible notions causality, the the legal. historical and really is What involvedis and different entirely two of confrontation the was result The charge. central the been war, a thatwouldprobably discussion arisen never have ifhumanity crimes against had system.” events to proportion similar to those a of modelcriminal trialwithin a municipal the Nurembergbe to proceedingstortured reduce “history orderto had in throughthe out crime historic causality. issueemerged This Nurembergand at both Tokyo because the 149 148 147 respons the restrict therefore humanity and crimes against overshadow against peace crimes which in a recent past against the danger of maintaining the legal and historical account of atrocities mass the of an historical to related differences – all opposition of out rooting secret machinations, is the veryessence of the classical political trial with its simple aim However, the view conspiratorial its of in history, any difficulty. create fact, in not, did this Nazis the of case Inthe a war. caused which makingspecificdecisions specific persons to point to possible it makes of past which strain: “A criminal trialfor waging aggressive war inevitably interpretation an involves

Ibid, 172. Ibid, 147 Judith N.Sh Judith - of - 148 - waging

Charges for conspiracy to wage an aggressive war presented a particular aparticular presented war aggressive an wage to conspiracy for Charges klar, klar, Legalism. Law, Morals, and Political trials aggressive - ibility to acircle small of top perpetrators. war inevitably charge ofproduced the discussions causes of

real, fancied, potential or improbable.” potential fancied, real, d legal logic, Shklar was sending a clear warning warning clear a sending was Shklar logic, legal d 147

Shklar had an overall impression thatinShklaran impression overall had

penchant and for plots unearthing , (Cambridge : Harvard University Press, Press, University Harvard : (Cambridge , 149 Shklar’s criticism

Bystressing the s, but between but s, 104

CEU eTD Collection of Germany – Germany of robbed mur and outcome view supported of this history. started WarII, The World Germans and they at the Nuremberg and the prosecution Trials, proved German responsibility. Thusthe for the hor taleprimarily bornwho, this and solely in nor almost long responsible after 1945,were marginalized figuresgroups and collaborated– the with Nazis criminal organisations.” infectedminds, and racism anti with promoted “therepresentation initial of the Holocaust perpetrators as thatof criminal Wa Second World evidence regarding the scope conducted of extermination of the during policies the regardingconspiratorial the view of history resonated well with the alarming historical 153 152 151 150 behavior.” wartime helpers had been punished, they feel themselves could free of allguilt for their own peoples of Deák from this a writesBradley Smith. well in fixing the public mind that the sole responsibility for the war rested with Hitler.” Friedlander, op.cit, 26. University Press 2000). The Nazi Dictatorship, Kershaw, Ian Problems in andPerspectives functionalists

, Deák István by Reflection Judgment: Historian’s István Smith, F. Bradley, Christopher Browning, “German Memory, Judicial Interrogation, Historical Reconstruction”, in in Reconstruction”, Historical Interrogation, Judicial Memory, “German Browning, Christopher

gave an insight on the reasons for the appeal of this message, which “helped the “helped the which message, appealof the for reasons this angave insightthe on Rév

rible crimes committed in in War World committed ribleII. crimes accusedGermans stood by the court Europe believe to thatonce German the leading and Nazis their foremost local , Retroactive Justice Retroactive pproach: “In the West – the West “In pproach: a slowlyeffectively disappearingcountry that existed.” nolonger dered throughout Europe. The guilty were to be found among the citizens among the foundguilty were be to The dered Europe. throughout The Road to Nuremberg :Basic (NewYork . 153

r. “The Nuremberg view”, as noted by Christopher Browning, as noted byChristopher r. Nuremberg “The view”, Introduct

151 150

István

Be that as it may, consequently, “the trials succeeded quite succeeded trials “the consequently, may, it as Be that ion various to between aspects relateddebate the of intentionalists and , 225-

Rév 6

emphasized the distortions of the recent past deriving of the recent distortions emphasized the - Semitism, carrying out criminal policies through

allegedly allegedly Ab ImperioAb

– 3 (2007): 85.

Books 1981), 251. only certain well certain only that is, with the Germans –

. (Oxford : Oxford - defined and 152

István István 105

CEU eTD Collection Perspectives on the Nuremberg the Perspectives Trial, on (ed.), Mettraux in Beyond”, and Nuremberg publishers, 2000). 6- 154 aMarrus turning Nuremberg In considers thatrespect, Michael happened past. the in ought what have to happened,determine and had difference between the what legal eventually order in preconditionsand even wereemploy created to historians, history, Hence justice. rendering of element a desirable even or unavoidable as acknowledged rights violations, between nexus the historicalnarrative andlegal interpretation was grossof human types different against or humanity crimes crimes, war with concerned operated or international the in national framework, whether subject matter their was whether they the Nuremberg legacy, have upon subsequent trialswhich heavily drawn pos come toterms with collective overcomingconsequences of of mass atrocities. fall therefore Nuremberg and illiberal at once, onmanyaccounts.” boring both been have to “appears downplaying against Nuremberg humanity, crimes of Inpast”. conspiracy view, charg his through overemphasizing the history”, such might attempts “distorthistorical understanding recent of the nation’s the country’s of interpretation a particular view teaching to a with several countries increasi has law criminal century, half last the “in that notes who Osiel, importance of the of impact trials on collective memory, such as Michael Osiel. For and historicalparticularly straightjacket, authors exploring involvedin the bythe

Mark Osiel, Atrocity, Mass Law the Collective Memory and e the wouldsuch question, other appear opportunities were if it Nuremberg? for not No wonder then, that Nuremberg has criticized recentlyas been a sort However, despite such words of caution and harsh criticism, it wouldbeHowever,words criticism,it fair despiteof suchcaution to and harsh stress onthe responsibility of of a accused handful leader Nazi top

short of the potential benefits displayed in subsequent legal attempts to to attempts displayed subsequent in potentialbenefits legalshort of the 9 , 91, 97- 91, , 100. Reargued100. in “In Osiel, Mark Liberal Defense – ofTrials Show

154

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(Brunswick and London : Transaction Transaction : London and (Brunswick - focus, his in view, made

704- e and consequent consequent e and ngly been used in been in ngly used 728.

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s, and and s, 106 In CEU eTD Collection Nuremberg”, Nuremberg”, judicially so.” necessary do to and become trials.Notonly it history thinkableput to has has ontrial,become it In the wakeof Nuremberg, a Nuremberg tribunal, which forfirst the time called history itself into a court of justice … judge history stateThis of asaffairs such. has changed since the constitution of the they not but did history, part theyof were dged acknowle sometimes courts The separate. expressing historydevelopment.and aBut were historical specificstage law society’s in and justice was in principle maintained. The law perceived itself either ahistorical as or our time.” and too that dimensions some of theseour efforts speak the understand history to to of the most important things to discuss today.But most would agree that th is possible to believe its warts that and blemishes – endeavor proceeding. an in adversarial Nuremberg by was perfect, not and any it means, searching in quest truth, while of recognizing formal the limitations that attend the to impartial, but not necessarily dispassionate; fair t whichpoin “at itsmoments, best set example an fora kind historical of judgment – 156 155 relationship. Until the middle of the twentieth century, between and history justice. But always theynot have beenconcerned judicially this with Felman: by asamongpresumed observed Shoshana dimensions, incompatibilitystands out those (Cambridge : Harvard University Press 2002), 11-

MichaelMarrus, 254. op.cit, Shoshana Felman, The Juridical Unconscious: Felman, Trials and TraumasShoshana in the Twentieth Century Tipping off the sensitivebalance between history and law by their breaching “Trials have always been contextualized in in contextualized been always have “Trials 155 Yad Vashem Studies

Cf. Michael Marrus, “Nuremberg as ‘a turning point’. The Holoc The point’. turning ‘a as “Nuremberg Marrus, Michael Cf.

26 (1998), 6.

156 displacement hasdisplacement occurred relationship in between history

12.

- minded, but not without without not minded, but moral compass; or even his structural faults – faults structuralor his even – and affected by – by affected and

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David Bloxham, op.cit, 67. The deliberation on Weizmannwas described byMichael Marrus:“InAugust, Peter Calvocoressi, Nuremberg The Holocaust at Nuremberg , 9. Historians have played therefore an auxil - Roper,

witness for the prosecution on the murder of Jews, but only on the prosecution onlycondition witness for but ontheof the murder Jews, on The Last Days of Hitler of Days Last The - Gurion who was enthusiastic about the idea, Weizmann hesitated. He wanted to wanted to He hesitated. Weizmann idea, the about enthusiastic was who Gurion

The facts, the law and the consequences ’s testifying, fearing that the Zionist leader would embarrass them with with them would embarrass leader the Zionist that fearing ’s testifying,

Saxon area. Some of them were professionally shaped by professionallyof shaped themwere area. Some Saxon

(London : Pan Books, 2002). This is thelast ofnumerous -

- examination “withoutexamination being adequately prepared.” Roper, who subsequently published an published who subsequently Roper, Only on extraordinary occasions were Onlyon extraordinary 3

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(New York: MacMillan, 1948)

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After his his After 111 , ; CEU eTD Collection Press, Cambridge, Mass, 17. Mass, Cambridge, Press, ( treated in transnational terms.” there has been some change respect this in …Even European legal history be cameto was to be national history”, wasgetting increasingly obsolete:“In the twentieth centu objective, it bebut to the “history was creed Berman, that thebased. Harold According to setting, metho years broughtimmediate postwar about an unprecedented changethe in institutional value/fact historical in In division scholarship.light of an the unprecedented horror of the historiography and contributed have the to erosionstrict and of theory both distance of importantly, of the the atrocities Second World War prompted certain of remoralization countries previouslyat war each with other.” War saw a of return cooperation forms to between and communication from historians jackets thatprompt andxenophobia chauvinism.years “The following Second World the straightas seen increasingly were which , national of framework the played the in 6 5 4 Journal of forensic sciences Adolphforensic : aspects”, Hitler Death of “The account confirmingalia, D.Marchetti Hitler’s et death. asRoper ayoung h editions of study the based onRoper’s report publishedfirstly in 1947. Recent article analyses the role of forStudies. Historical International the Commission thewith continuationof multilateral activity of degree andencouraged, some cooperationwas ofwriting Council Europe ventures. new motivatedsimilar textbooks. history Bilateral regarding the documents collect Paris,which to 1946in in urged already first sitting at its Europe”, inEurope”, Harriet Jones, op.cit,

BucureştiEnciclopedica, 1997) : Editura George Ioan Bratianu, Harold J.Berman Harold MartinaZala, Cattaruzza, Sacha Could historians contribute more? The experience with the role historians had historians role The the experience with more? contribute historians Could dology, heuristics and the basic sensibility which on historical studies were

, Law andRevolution. The Formation of the Western legal Unvieristy Tradition Harvard , Kriegsschuldfrage istorianand officer of service Intelligence the given the assignmentcompile to an

L'organisation de la paix dans l'histoire universelle : des origines a1945 , 50 (2005): 178-

125.

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Friedrich Meinecke, -

xi. xi. the role of as historians producers offailed ‘mitigating circumstances’ national for The change also fromcame the craft, the with definite establishment of

(1946). The tone of those writings the waswording and dramatic, moirs ofmoirs the or protagonists and seized made available bythe victorious toriography. The idea that historians could legitimatelyexplore their The German Catastrophe: Reflections and Recollections

(1940) or Friedrich German Meinecke’s

about the drama of their own times, of drama about the

, (Boston : Beacon Press, Beacon , (Boston : - sponsored editions, editions, sponsored – a conviction that a inecke. 113 7

In In - CEU eTD Collection : George Allen and Unwin ltd. 1969), 11 - powerfully of lives allof us.” influenced the of which have events and time the own our of theof history demand accounts …for Fifthabout … write and studyback gone to later they have which eventsResistance, in government work, depa propaganda or thein forces, intelligence in them,whether of and out theirbrought involved universityenvironment academics many war The experience. Fourth, … history European years of dramatic most the of twelve of history e secret afterth the event, soon so as never before crimes up, trialsopened of the archives of the Germanand Government the evidence light brought to the in war capture The …Third, luck. Nazis) the appeasing of price as the (such be to lessons drawn in for camps, concentration the about facts (the revealed be to facts were there 9 8 Additionally, parts substantial archives of the available captured German became soon in others, was it loweredyears on30 years forand ordinary, 50 for sensitivedocuments. Inme so states, yearsgrowing. was50 sources banaccess was archival to introduced. In Foreign Policy on British States United Foreign of Relations greater with ze continued War,First was World course immediate aftermath theofof in and the publishing selectedestablished sources, enormous change. diploma fran tiques Kahn, Kahn, Leo see environmentsEurope research continental year less the of in regulated challenges 30 On ban. Public Record Act ofwhich 1958, introduced 50years ban,butwas amended in 1967to accommodate the History British Modern Gorst, Antohny L.J.Buttler, in Britain Great in Office Record of the Public holdings of the time barrier

Alan Bullock, “Introduction”, in: “Introduction”, Alan Bullock, For the overview of official publishing of documents in France see Monique Constant, Documents Constant, Monique see France in documents of publishing official of overview the For Some problems of research in European Archives, in in Archives, European in research of problems Some There were strong heuristic facilitators of this interest. The governmental practice practice governmental The interest. this of facilitators heuristic strong were There ç ais, ais,

, (London : I.B.Tauris, 1997), 35 1997), I.B.Tauris, : (London ,

http://www.diplomatie.gouv.fr/fr/IMG/pdf/ECfrance.pdf The struggle over the the over struggle The http://www.diplomatie.gouv.fr/fr/IMG/pdf/ECfrance.pdf . More importantly, the pressure. Moreban the the customaryon lift importantly, to DonaldCameron Watt (ed.), Contemporary History in Europe

3. 3. ,

Documents diplomatiques français diplomatiques Documents - 8 9 al, leading to large collections such as as such collections large to leading al,

Cameron Watt, op.cit, 339- . . In Britain thewith wasaccess regulated the All those factors co factors those All rtments, or in the or the in rtments, ntributed to this to ntributed 345.

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stance) and stance) Documents . (London 114 9

CEU eTD Collection Nazi crimes”, Holocaust and Genocide Studies 1972). Selbstverständnis, Aufgaben und Methoden der Zeitgeschichte 1988); Schöning 2004), 22- Watt. op.cit; AnthonySeldon, (ed.), Contemporary History. Practice andMe historiographyafter 1945.” thatEuropecombatant “a experiencingDumoulin than the was nothing emergence of less Contemporary Militaryhistory in Freiburg andothers. One might agree with Olivier History Parliamentary of and Political parties Bonn, in The Officefor Research into Institute for the History of National Socialism at Hamburg, The Commission for the such as Research institutions new of plethora in active the most was Institutehistory. The clearly first name “DeutschenInstitut zur Erforschung der nationalsozialitiscchenZeit” was Institut fürand ZeitgeschichteMunich. The in latter was already 1948,and formed in its motivations (1950) ledMainz Institutto theGeschichte creationfür of in the Europäische History' from 1951led to the creation of Georg EckertInstitut Braunschweig. in Similar (1945). In Germany, 'Franco- ‘Benedet Storici Committee of Historical Sceinces.InItaly, there wasInstituto Italiano per gli Studi mondiale. The committee was the 1960with help internationalized in of theInternational for the History the Se of Committee the was that InFrance, historians. of role new the for infrastructure necessary Archives. Of Record the holdingsPublic of 10

Olivier Dumoulin, op.cit, 306 op.cit, Dumoulin, Olivier More on CentralMore in Station Haberer, Erich More in EinführungMore Gabriele Metzler, in das Studium der Zeitgeschichte

addressing its purpose in researching the totalitarian experience of recent German German recent of experience totalitarian the researching in purpose its addressing Creation of new historical institutions to support this interest provided the interest provided supportthis to institutions historical new Creation of

to Croce’ (1947), in The Netherlands InstituteDocumentation for War Netherlands (1947), The in Croce’ to 4.

More aboutself the cond World War, with its War, with Revue World cond guerre d’histoire de la deuxieme 10 - 312. Among surprisingly rare overviews ofthis development:C

German Agreement onControversialIssuesGerman Agreement European in fice Great Britain of and in United States National -

19 (2005): 487- understanding of the role of Institut fur Zeitgeschichte, Zeitgeschichte, fur Institut of role the of understanding “History and Justice: Paradigms of the prosecution of prosecution the of Paradigms Justice: and “History 512. , (München : Institut fur Zeitgeschichte Zeitgeschichte fur Institut : (München ,

thod . (New York : Blackwell, :Blackwell, (NewYork . . (Paderborn : Ferdinand ameron ameron 115

CEU eTD Collection Vashem Jerusalem in 1. December in 2006, Republic 1955- did not succeed.”, not Dietherdid writes Pohl. InstitutZeitgeschichte fürfinally onwards, been from new 1951 developedat the comesoon an”plans to end” for larger but research projects ont where courts were reluctant. were courts where clemency appeared. 21verdicts only consequence and the (1952), 1955,as(1954), in a 123(1953),of 44 123 (1951), 259 809(1950), (1949), 1523 (1948), (1947), 1819 816 (1946), (1945), 238 The statistics ofcrimes war related judgmentsin postwar Germanywere telling: 23 transformationcame at time the when legal away. dealing the withering with was past reshuffling, the institutional of this forefront was the in In Germany, which 14 13 12 11 crimes of trialsforcontemporary research history, a in though rather apologetic way. himself. Nazi crimes, in whichhistoriana was asked to testify.” “it is difficultestablish to the first criminalcase on concerned, court are courts German in vOttoStates Ohlendorf and othe Nuremberg Einsatzgruppe case (United defense forthe in Göttingen, the testified who reportIt expert his Hans forsubmitted was the defense. legalinvolvement in In process. Nuremberg the subsequent one trials,only historian integration 1982),

Diether Pohl, op.cit, 1. op.cit, Pohl, Diether Rebecca Wittman Diethe ics Adalbert Adalbert statist ics The 329. But was there any relevance of this change for legal reckoning with the Nazi past? past? Nazi the with reckoning legal for change this of relevance any there was But However, historiography accordwas in of bynomeans its onthe shape r Pohl, Prosecutors Pohl, r and Historians. Holocaust Investigations and Historiography in the Federal He wa , (New YorkColumbia : University Press, 2002) - 332; Norbert Frei, Adenauer's Germany and the Nazi past : the politics of amnesty and , manuscript of the paper presented at the conference “Justice and the Holocaust” at Yad Yad “Justice Holocaust” the at and conference the manuscript, presented at paper the of s ones of the address first Germanto the implications historians of the war n. n. Beyond Justice, (Cambridge:Beyond Harvard University Press, 2005),

Rü ckerl, ckerl,

“The common assumption was“The thatthe court cases common assumption would NS - rs) 1947- in Verbrechen vor Gericht Verbrechen

11 12

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, lecturer in in lecturer , 116 CEU eTD Collection Krausnick and SeraphimWitmann, see 78 op.cit, Zeitgeschichte für Institutes des Gutachten Generalstaatsanwaltschaft casealongside Seraphim 1958. with in testified this in Helmut Krausnick,who für Institut Zeitgeschichte, deputy of the director Schüle, leadingeventually theto famous Ulm trial, made Investigations Erwin ’s. of prosecutor the half1950 changed second the of situation the in German postwar an author cases,and of a number of reports expert and affidavits. preventive made an in him expert measure. This high demand the with defence the in a consideredbe Union,whichto he attackdebate Hitler’s onSoviet the of nature over a public in engaged also was He trials. Nuremberg the at critical particularly being well, 20 crushing in Remer’sgiving activities the 1952Remerthe July the background trial,of trial ag lateSeraphim 1948by wasDüsseldorf office engaged in thepublicprosecutor’s a for 16 15 started Ludwigsburg, chiefüle, thein leadershipof investigator the Sch Ulm under During 1959,theprosecutors newly first anddayshistorians appointed of prosecutors. the paved acooperation betweenafterwards.for new the wayof kind institution This InvestigativeCentral Agencyfor War Crimes Ludwigsburgformed 1958) in in soon investigations, since itcontributed to the establishment ofZentrale the Stelle ( It the in Bundesrepublik atsituation the time. been legal thein has turnaround termed con case, outstanding an was trial Ulm “The development: extraordinary zeitgeschichtliche Forschung“, in: Hans Kruse and Hans and Kruse Hans in: Forschung“, zeitgeschichtliche Library 650, Report on the duty of obedience ofSS leaders, particulariltwith regard to ordersmurder to (1960), Wiener und Geschichte: Festschrift fur HerbertKraus

th Hans Details in Dieter Pohl, 2 Pohl, Dieter in Details

plot in 1944. in plot - ainst the former Gauleitung which took place in Wuppertal in 1950, as well asGauleitung in 1950, which Wuppertal in placein theainst took former Günther Seraphim, Expert testimony on “Special Treatment” and 14f13 (10 May 1960), www.wienerlibra 15

Seraphim continued testifying and writing about writing the post continued and testifying Seraphim

Frankfurt/M., JS 20/ ry.co.uk/archivearhcive650html - 3. See also3. Hans

, (Munchen: IfZ in 1958). On approachesof differences the , (Kitzingen/Main: Holzner (Kitzingen/Main: , - 61, vol. I/3 (44). Also Hans 82

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he history of Central Station see Eberhard Rundholz, „Die Ludwigsburger Ludwigsburger „Die Rundholz, Eberhard see Station Central of history On the 3. op.cit, Pohl, Dieter eckerl, eckerl, Among the less observed aspects of the advent of juridical m advent of aspects the Among of lessobserved the NS - Verbrechen vor GerichtVerbrechen 17

Verbrechen, Justiz undGesellschaft in Europa nach : 1945 (Leipzig/Wien , Since no historian employed was Ludwigsburg, at the small

, 130- , , (Heidelberg:, Juristischer c.f.Müller 1982), Verlag 143.

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121 He He - CEU eTD Collection Pearlman, extermination. He also warned in dramatic tone that if Hitler’s movement conquest Europe of much of and the spilloverof consequent their policy of 12,000,000.” I more. or 20,000,000souls about have totaled now demographic 8million people), dramatically people claimingthat“the would Jewish thein course of the Holocaust (the factual estimated be to loss 6- European He communities. calculated both Jewish 26 25 24 conc She trial…” putting Eichmann on cross at clearly was it Worse, rhetoric. cheap and history “bad was it view, for, herthis in the thetrial”. in center prosecution stood of Shedeplored concerned, was of her criticism of the trial in which, according her, to andBaron’s long colleague junior otherwise Arendt, Hannah other than byno offered accountwas more critical elaborate and professor the trial, the Dutch writerHary Mulisch,comment: to “ responsibility promptedThis observers one wasof thebeof accused to the situated. of whichual in thegeneral individ criminal the context purposeHis was provide to Baron’s account. was mentioned total.”not in Eichmann’salmost would have name been people Jewish genocide the “the migration, of the Jewish great age Bismarck, before of interpretation of Jewish history, they remained Liberles, close friends. 8 op.cit, history, ofJewish interpretation ( Philadelphia : University of Pennsylvania Press 2005), 63 2005), Press Pennsylvania of University : Philadelphia

The Nizkor Project, The Trial of Adolf Eichmann, Session 13, Part 1 Part 13, Session Eichmann, Adolf of Trial The Project, Nizkor The Baron helped Arendt’s intellectual socialization in the United States, and despite their differencesArendt’s in despitesocialization helpedintellectual their States,Baron United the and in Harry Mulisch, Mulisch, Harry The Capture andTrial of Adolf Eichmann. 24 - like, but Ifail see to dowith whatlike, but to have does it

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(New York : Simon and Schuster 1963), 227- - 26 64. More favorable More eyewitnes64.

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The Nizkor Project, The Trial of Adolf Eichmann, Session 13, Part 2. Hannah Arendt Hannah in Ascheim, E. Steven in details in examined are views Arendt’s 16. op.cit, Arendt, Criminal law of Israel attaches great importance to “cross greatCriminal importance to Israel law attaches of erministic peril inherent to linear view on history: “It is true that in retrospect retrospect in that true “It is history: on view linear to inherent peril erministic ened up a space for unpleasant lines opened upa unpleasant contextualization space for Anda indeed, broad such to me.“to Presiding Judge: warrants.” more influence on the course of history than their importance to the state historical sense - extentwhat an individual person who is not a leader is also responsible in the Witness Baron: “This is not a historical question, but more a legal question. To

28 – (Berkeley : University ofCalifornia Press, 1999). Shewas particularly suspicious of the

every sequenceof events looks as though it could not havehappened otherwise, but this is an

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truth … in the criminal trial … viewed as one of the fundamental rights of a defendant.” adefendant.” of fundamental rights the one of as viewed … … criminaltrial the in truth

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29 , (Westport : Praeger 1999), 53

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35

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Arendt, o Arendt, Irmtrud Wojak, Fritz Bauer: Stationen Wojak, einesIrmtrud Lebens Arendt’s of critical the Eichmann account trial was 1963, in published which was p.cit, 232. > (accessed on 26.6.2006).> (accessedBauer’s on own recollectio ommitted ,in was forhe some time launchinga set of tion on his whereabouts in and requested from the government demand to from whereabouts andthe onhis in requested tion had that chance, he would hardly be influenced by her standpoint, as standpoint, chance, behad he influenced that wouldhardly byher

rney General of Hessen, Fritz Bauer, to read it, as in that year a team year ateam that in as it, read to Bauer, Fritz Hessen, of General rney 37

(1956-

other questions of seemingly greater importance – greater importance seemingly of questions other Von der Diktatur zur Demokratie. Fritz Bauer und die Aufarbeitung der NS- II.1.3 The Frankfurt Auschwitz TrialII.1.3Frankfurt The Auschwitz 1968), (Wiesbaden: Historische Kommissionfür Nassau, 2001). The 38

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Pendas,op.cit, 142- 40Jahre Renz, Auschwitz Werner in: trial the about details Basic It remainswhether confirmed be to the Baron’sperformance at Eich Wittmann, op.cit, 64 op.cit, Wittmann, Großmann othAlso, Bauercould prosecutors. have influenced by alessnoted the to been precedence practice

As those initiatives were stumbling over the Forensic Expertise andthe Law of Evidence ic expertise and the law the C.R.Callen,ic expertise and evidence Germany (criminal in of in: cases) J.F.Nijboer, The Auschwitz Trial Auschwitz Justice. The Beyond

,: ,: Frankfurt Auschwitz Trial, 1963- - -

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41

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- prozess/pdf/auschwitz Bernd Naumann,. Auschwitz, A Report Naumann,. onBernd the Proceedings Fritz Baue Fritz 1965: Genocide, History, and the Limits of the Law. - . (Cambridge, Mass Harvard : University Press 2005); 03_renz.htm

(Amsterdam/New : York North 40 Register zum Frankfurter Auschwitz Frankfurter zum Register r Institut und Staatliches Museum Auschwitz Museum Staatliches und Institut r

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CEU eTD Collection al.: al.: Verlag Taschenbuch Deutscher op.cit. 29- Zeitschrift für Sozialgeschichte des 20. Und 21. Jahrhunderts Auschwitz Frankfurter ersten im Gutachten Historische Kriminologie. und prisoners of war of prisoners Hans 1933 Camps Concentration - and Instrument domination of in whichin occurrence each individual place…” took accused…It for is provide the to expert aof picture the historical and political landscape background. He there not is concern to the with case himself of any particular historical expert is to assist the Court by painting as clearlyas possible a picture of this a his andto political organizational background leading accused whopart took these in crimes can be only judged rightly whole moral, if the defining the role of a historianas an witness expert the in following an of case way: “The the to subsequentaccounte introduction volume,the authors Baron’swith the reports testimony, not did themention accused persons. for Contemporary History by Münich and in were vocation. historians prepared byHelmutKrausnick 45 44 43 history. Anatomy the of SSstate subsequently came published present to historiographical a seminal onthe reading Anstalt 19 Anstalt

Helmu On historians’ contribution in the Auschwitz trial: Irmtrud Wojak,:Die Verschmelzung von Geschichte von Geschichte Verschmelzung Wojak,:Die Irmtrud trial: Auschwitz the in contribution On historians’ Gutachten des Zeitgeschichte des für Instituts in Gutachten together were firstly published Reports Anatomy of the SS State - Adolf Jacobsen According the plan, to arranged the reports for the Frankfurt trial were Auschwitz t Krausnick, et al.: Anatomy al.: et of thet Krausnick, SS State 45 66) and soon reprinted in Hans Buchheim et al., Anatomie des SS- al., et Buchheim Hans in reprinted soon and 66) 45; Werner Renz, Der erste Frankfurter Auschwitz- Renz, erste Der Werner Frankfurter 45;

). 43

Apart of Hans ( . New York York New . The Commisionars Order Commisionars and Mass ExecutionsThe Soviet of Russian , which has had impac quitevisible 1967), Quotations are taken from the English version: Helmut Krausnick et et Krausnick Helmut version: English the from taken are Quotations 1967), 1945

( The Persecution of the Jews the of Persecution The : Walker 1968) : Walker Command and C and Command - and e experts came from Institute Institute from came allofe experts th Adolf Jacobsen, National . (New York : Walker 1968), xiii. 1968), :Walker (New York

- socialist Policy towards the Poles ompliance , 15(2000), 11- Process. Völkermord als Strafsache, als Völkermord Process. ctions is surveyed. The task of The task of surveyed. is ctions 44 t in the in fieldt of contemporary

), Hans Buchheim), Hans All of the reports were were reports the of All - Proz The (The Broszat Martin ), d for this absence, by absence, by d for this ess”, Frei (ed.),Norbert in Staates 47. In analogy another

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(München ( The SS– In the ) and and ) 129 : CEU eTD Collection and Operations of KZ Auschwitz and its Sub and Auschwitz ofKZ Operations and which commits no one, but may have a decisive influence on the fate of the accused.” the of fate onthe influence adecisive mayhave but noone, commits which dispassionately, presentedfacts are for the merely not of an the subject historical analysis Jus period theof to Court maintaining methodological caution: “When presenting the historyNational of Socialist procedure, before hearexperts to National Socialist criminals, printed version theirof collected reports: “For this reason during these trials the of account.”into entered i were facts known unless commonly them to formally presented evidence the only could evaluate courts “the as the context 48 47 46 , 32(1999), Justiz Sachverständigen? Zum FranfurterAuschwitz ersten Kritische Prozess, Rezeption, Wirkung , (Frankfurt am Mein Campus : Verlag, 1996), 123- Frankfurter Auschwitz most deadly stage of capitalism. alia inter of demonstrating, purpose atestimony clear had showed potentialfor Kuczynski backlash. was andexpert, unwillingly admittedashis an prosecution chosen approach bythe case, the of broadness analogy the to Eichmann testify on economicthe basis ofcamps the ingistthe of dogmatic Marxism. the notable economic DDR. Karl Kaul, representative of the victims from East Germany insisted on including of theyFebruary their exposes, midst 16,andwere the in joinedbya colleague from the

Helmut Krausnick, op.cit, xiii op.cit, Krausnick, Helmut Pendas,op.cit, 143- His report was entitled „The Intergation of Security Police and Economic Interests in the Establishment Establishment the in Interests Economic and Police ofSecurity Intergation „The was entitled His report Hence, the to Eichmann similar trial, the assumed historians the role of providing The trial20,1963. comm December enced on 46

The experts were well aware of this role, as they write in a preface to the to preface a in write they as role, this of aware well were experts The 144. - Prozess un Prozess

historian fromUniversity, Humboldt Kuczynski.Hehistorian was Jürgen to - xv. tice, a special effort must be made to do so rationally and rationally so do to made be must effort a special tice, Auschwitz. Geschichte, Geschichte, Auschwitz. in: Zeitgeschichtsforschung, deutsche die d

it has been thought advisable, contrary to normal advisable,Court has beenit contrary to thought

the witnesses.” They justified such a perspective by by a perspective such justified They witnesses.” the - Camps“, Details in Pendas, op.cit, in Pendas, Details Camps“, nto the record, the court could not take them take not could court the record, the nto Historians started testifying on , that fascism a last is and the 138; Irmtrud138; Wojak, Herrshaft der

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Wittmann, op.cit, 108. Auschwitz Das Urteil im Urteil Das (hg.). Renz, Werner Despite this last attempt of instrumentalization, How relevant than was historical expertise in this case? The issue of the relevance relevance the of issue The case? this in expertise historical was than relevant How - Prozess Prozess

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Reactions on the verdict in Wittmann, op,cit, 323 op,cit, in Wittmann, verdict the on Reactions Arendt, Hannah

Arendt understood that, despite generic semblances, two courts were in factin courts were generic semblances,two despite Arendt that, understood answerPrompt was given byHannah observer keen Arendt, to attempts of legal 53

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Nicolas Der Berg, Holocaust unddie westdeutschen Historiker: Erforschung undErinnerung. Wochenschrift Neue Juristische Sachverständiger, gerichtlicher als Zeithistoriker Der Forsthoff, Ernst

hanges introduced by new research, it is unsuitable for the courtroom purposes. purposes. courtroom for the unsuitable is hanges research, it bynew introduced Buchheim, Hans: Hans: Buchheim, Such spotlight was prone to attract criticism in which methodological concerns (accessed on 30.6.2006). 75. On Forsthoff’s positionmotivation and DirkLa Van 56 Auchüber dasNationalsozialismus Nachdenken und Holocaust ist nicht anders als -

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aberer, op.cit, 505. aberer, However, report despite the criticism, down and bottom down 58

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Buchheim, and Wolfgang Scheffler, whose whose and Scheffler, Wolfgang Broszat Buchheim, Martin -

known or vaguely understood crime ..Both complexes e much legal the criticismof directed towards those y have had much impact on the contemporaries. y However, onthe much impact had have ant yardstick for the level of decency of a given society. society. a given of decency of level the for yardstick ant - up played a crucial role in maintaining the Europe crucialrole the maintaining a in up played s exceededs their courtroom purposestill and 135 - CEU eTD Collection prosecutors and Jerusalem in Frankfurt were provided byspecialists. evidence, valuable gathering time same the at but trials, the of effect pedagogical War, there were results of historicalsolid already scholarship onthe issue. Pursuing the h were trials Nuremberg the Whereas contemporary in historiography. developments and the memory making of juridical between advent occurred sensitivejunction the postwar a in re and theauthenticators movedspotlight of into the courtroom. of documents sharp criticism from different positions. Historians left their auxiliary role of casesdrewjudgments. practice considerabl Finally,this both in the into incorporated selectively were and evidence as taken were reports the cases, both Inthe accused. ofentirely activities out the case, backgroundleaving the for overall providing reports, expert with came forth In historians casesreputed produceboth it. to provide such was a context and an opinion, expert theycalled uponhistorical scholarship an – occurred accused the of crimes the which in context political the of assessment awide for calling was a task such cases, a landmark his Frankfurt trial are Auschwitz In striking. cases the both prosecution was striving towards

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eld in the absence of twodecadeseld thehistorians, in absence afterSecond the start World of the How can this transformation be interpreted? Going back to the entangled entangled the to Going back be interpreted? transformation How this can the and trial Eichmann the in historians of engagement the between Resemblances torical trial supposed to send a powerful message to the world. Inworld. both a the to powerfulmessage supposedsend to trial torical pert Witnessing from Authentication to Contextualization and to Witnessing from Beyond Authentication pert

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George Historian K.Clark, Critical op.cit,Haberer, 491. torical scholarship. Why was this aid institutionalized in the form of the expertise about the general This reintroducThis 59

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, (New York : Basic Books, 1967), 17-

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137 CEU eTD Collection Ludwigsburg,which now commonpractice is the in field.” through theand experts their networks. ....More and more made historians their way to public. ...So the impact of the trials onGerman historiography was rather indirect, Verbrechen hundreds early were verdicts the in Amsterdam published were byKarl published Germany Nazi of history the on eses first majordecade, synth the the end of Reich. Atthe onthethe Third and the focussing 1960s, on developedduring rapidly contemporary history Research on extent. a limited very historiography to only during the post sense common considered was which a picture presented rather historians the restricted: and “In historians. courtrooms, however, these German debates more or were less between jurists cooperation a to stop put not did run, the debates long the in assesses that 61 historical documentation”, and has consequently wideencouraged cooperation with orconduct provide task of historicalwho “to research maintainedcourts thatthe was decades, Zentrale was Stelle led by Rückerl, Adalbert the director 1986, 1966to of from two andthe SA For next NSDAP. earlierface ofin of revelation his membership the in resigned he 1966,when until Schüle Erwin was chaired byprosecutor institution Administration for the Aufklärung Verbrechen nationalsozialistischer (

Diether Pohl, op.cit, 10. op.cit, Pohl, Diether “In general, where historians work, debate arises.” writes Diether Pohl, and Pohl, Diether writes arises.” debate work, historians where general, “In Ludwigsburg was hostingLudwigsburg was Anatomy of the of SS- Anatomy the After . - war era. On the other era.hand,war the lega

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Specializing in the crimes of Nazi period, became it soon an important eckerl, eckerl, , ed. (München: Oldenburg, 1986), 187. - stelle.de/ NS - Wages of guilt Verbrechen vor Gericht Verbrechen Nach Hitler: Der schwierige Umgang mit

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Laurie challenges Goering, Despite crimes, ofwar prosecuting Nazifishing keeps German office for Alexander Krug, Übernehmen Sie endlich Verantwortung, Süddeutsche Zeitung, 15.09.2008. On global Verantwortung, endlich Sie Übernehmen Krug, Alexander Chicago Tribune Although Schwammberger trial was promptly dubbed by the m bythe dubbed promptly was Although trial Schwammberger , October 20, 20 Kurt08; Schrimm, Joachim Riedel, 67

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Christopher Christopher Erich op.cit, Haberer, 510

34 Gradual maturing of postwar both historiographyand judiciary perhapsbest in 69

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CEU eTD Collection drum.” m alas, canperish direction. unlesswe and, But determine of if arepossible, aware the drift its which without thatvision to however theeye. humbly, people contribute, cannot And we naked the to the stars the movements of as history without unperceived as drift ceaseless incompatibility, also contained an almost prophetic corollary:yet “And there a is otherwise address, theimpartial.” to theory praise However, whichof his was convincing of documents and of evidence,arrangements the make choiceand ofto material a summarizing those traits: “Lawyersand historians face common Theproblems: analysis Am An system. law common the of character partisan and adversarial by the influenced was USA ofthe in the incompatibilitytheory version This such purpose. resistancesimilarly to stiff 70 the issue of racially motivated discrimination. similar motivation a more had but variety, much and eventually outlook have in proceedingsshown were significantlydifferent well. Those as witnessing expert gavenumber historical proceedingsspace to of legal Atlantic. Although l

Ben Palmer,“T 70 any of us, whose responsibilities cannotany responsibilities be of whose us, gainsaid, the distant are oblivious of erican scholar Ben Palmer, addressing the American Bar Association in 1946, was was 1946, in Bar Association American the addressing Palmer, Ben scholar erican of enteredInhistorians onthe the otherabout courtroom the sameside time, the

The distant drum that undermined the incompatibility the theory in USA was case. The lawyer’s purpose if frankly partisan; the historian’s professedly professedly frankly the historian’s partisan; if lawyer’s purpose case. The Historical Expert Witnessing in the Shadow of Racism he Historian and the Lawyer”, American Bar AssociationLawyer”, the Journal and Historian he egal and political context in the USA was considerably different, a considerablydifferent, the in USAwas and context egal political II.2 Adversarial Paradigm

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CEU eTD Collection From Slavery to Freedom: A History of African Americans Liberty: American History 1607- formation of the UnitedStates, there weremillion Black over 3 slaves onits territory. of time the Consequently,by the workforce. and as sold Atlantic acrosstransported were Africa in Blacksflourishing. captured was slave trade South, Northboth and Further, in theof land. in pursuit fertile theAmerican West towards increasingly tribes Inand silver mines. North, English the and French were pushing colonists Native put and enslaving conquistadors were Spanish In the South, newcomers. superiorityof the the claims of of Americas,both were onthe formed basis structures, evolvingin betweenand the native thewere colonizerspopulation New loomingpolitical high. oftimes the first explorers the NewOld into the who tens camefrom World, the conceptneeds of of voicing the legally unprotected peopleFrom history. without the 72 71 “the name of the Viennain of the Congress decision throughabolished the Europe in afterwards, 1808,the in Congress andimport, slave slave trade banned was altoge hence immediatelythe issueof Blackconstitutionally as slaves dubious. opening equal”, created were men “all that proclaimed States United the of Independence the atrociousSpaniards America. in policies ofDeclaration more of Even famously, the membersChurchprotestingevolving were of Many forcefully the over Catholic societies.

Bartolomé Las de Casas, Short Account of the Destruction of the Indies The Limits of of Limits The M.Jones, in: Americas the in discrimination and inequality slavery, on information General ting to death and misery the indigenous population, exploiting their work in the gold the in their work exploiting population, the indigenous ting and death misery to The issue of racial inequalities in the USA came on the agenda through the agenda through the came onthe the in USA racial inequalities The issue of Such situation was,Such situation to be with sure, collision in the moral foundations of those II.2.1 Racism in the USA as Legal as II.2.1His the Racismin USA and 1980, (Oxford : Oxford University Press 1983); John H. Franklin,A.Moss,

I - II, (New York : Knopf 2000) torical Problem , (London: Penguin, 1999)

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DeclarationEmancipationAct,Reconstruction of.R.Frazier Independence amendments Thomas in (ed.), David Paterson et alia, CivilR - (Belmont, Calif.: Calif.: (Belmont, Sources Primary History. American This division was furtheringalready the existing constitutional tensions between

ights in the USA 1863

73

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For survey of the development of of development the of survey For Michael“Class the Tadman, and Construction ‘Race’: White of RacismAmerican in South”, the in: However, even after the abol the after even However, thur Gobineau ( thur Gobineau

(New York :Macmillan Palgrave 2004)

164; Richard Weikart. Weikart. Richard 164; he imperialism of the European powers. he imperialism Foundations of the of 19 Foundations the proclaimed rightsgloomy andreality the scholarly was found in th Essay on the Inequality of Human of Races Inequality Essay onthe

century, which was providing legitimization for suchcentury, policies. legitimization was providing which nitative in the Civil War and Reconstruction”, in: Stokes, op.cit, 407 op.cit, Stokes, in: Reconstruction”, and War Civil the in nitative

‘scientific racism’ and its connection to Social Darwinism and politics politics and Darwinism Social to connection its and racism’ ‘scientific From Darwin to Hitler. Evolutionary Ethics, Eugenics andRacism ion of slavery in the USA, it was hard to find such find such to hard was the in USA,it slavery of ion lacks away from theprocess political awayfrom andlacks disabling ishing and of scars deep slavery, visible of division th

(Oxford : Berg 2002), 327-

Century

), which were gaining currency as),gainingcurrency the which were 76

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CEU eTD Collection when its blood haswhenbeen blood once thatoffreely its our into allowed chi flow to of a race we lower the eradicate …Howstigma blood shall white Negro, with sprinkled half Indian, half races, mixed of progeny effeminate by the “inhabited USA the feared He cha of purity against the a is sin communitycivilized a in as incest against nature, surgeon a 78 77 also through the laws separating Black and White Americans. The most immediate fe prejudices, popular wasdiscrimination and sentiments furthered throughbut the only not half of increase the and races, of crossing the warnin Louis disciple, was ofabolishment Harvard slavery, Nott’s Professor Agassiz, Jean thosefor tendencies.During affect not the did 1863preparations nor disrupt the Suc ‘mulatto…a monstrosity ofproduct, and of races”,heavily nature.” its “amalgamation the published Knox 1850Robertin miscegenation. Already the also contributedbut authors ‘scientific to asown aswritings. early his 1856,in racism’ Races of the Earth; New Chapters of Ethnological Inquiry (1854) and Josiah Clark Nott, George Robins Gliddon, and LouisFerdinand A Sculptures, andCrania of Races, andUpon Their Natural, Geographical, Philological and Biblical History Types of Mankind : Or, Ethnological Researches Patterson: S. Henry and Usher, William Agassiz, Louis Morton, George Samuel Gliddon, R. George Nott, Clark Josiah ofcollaborators: group with the his ideas he disseminated War the Civil to prior years In the in 1851hewrote An Essay onthe Natural History of Mankind, Viewed in same year he gave Two Lectures onthe Connection between the Biblical and Physical History of Man,and epidemiolog innovatory editionnot did appear until 1898. Its translator, Josiah Clark Nott begun his career as skilful a doctor and Unites States alreadyyears three on 1856, the after original. French sake the For German comparison, of

Quoted from Niall Ferguson, The WarFerguson, from Niall ofWorld theQuoted Count Arthur Gobineau, Essay on the Inequality Gobineau, of HumanArthur Races Count h notions persistedh notions both in the North and South, and interestingly war enough, Civil fear of their mixing, particularly expressed in American writingas the scare of g the American Freedmen’s Inquiry Commission “to put every possible obstacle to obstacle “toeverypossible put to Inquiry Freedmen’s g Commission American the The response to this question cameof question legislation theThe states, this as to response through the was inequalityof direct races One most of consequences the ofphilosophy the nd self nd - styled ethnologist, who translated Gobineau and other European racist other and Gobineau ethnologist, who translated styled ist with Sketch of the Epidemic of Yellow Fever of 1847, in Mobile.

: Based Upon the Ancient Monuments, Paintings, (London : Penguin Books 2007), 21- - breeds” whose “production is as much a sin sin as much a “production whose is breeds” (1857)

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United States Supreme Court, Plessy v. Court, Supreme States United to voting rights regardless of voting the to color, rights regardless access the secure to introduced amendment, ) presented a Civil War as a tragic and unnecessary struggle between two two between struggle unnecessary and atragic as War a Civil presented ) Klansman Such reversal of policies was a major setback for the Black community. After a a After community. Black the for setback amajor was policies of reversal Such – one American of the theof Nation D.W.Griffith’s first TheBirth blockbusters, (Oxford : Oxford University Press 1974) e nation, accompanied with a racist ridicule of a presumably inferior inferior apresumably of ridicule a racist with accompanied e nation, - slaves through posing difficulties in voting, serving on jury or or serving difficulties voting, onjury in slaves through posing

JimCrow lawsdiscussed in C.Vann Woodward. The Strange ipation the in immediate postwarperiod, their th

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century, and the attempt to challenge to attempt andcentury, the Ferguson, 163 U.S. 537 (1896) 79

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that segregation is segregationis that r in fact, wherever wherever fact, in r 147

CEU eTD Collection Transformed: A History of the US since 1900 of the racial policies of period the are analyzed in E.Rosenberg, G.Gerstle, N.Rosenberg, America raising educational opportunities. raising and rights voting segregation,equal enforcement the 14 of ontheBois. EdwardBurghardtbased NAACP foundation Villard Du its and William Garrison Oswald founded People,1909by Advancement anin of organization Colored forbyNational the Association against moviewas the screening ofmade the 81 80 phase. new a entering was treatment Decades home. and d abroa racism over aim asV’war ‘Double wonder campaignersright - were the dubbing thathuman no were bared.which peopleTo black from allowed pubs in were war prisoners of through it mix to ordernot in people, and black white segregatingof blood still the was Red Cross home as well, as humiliations were outrage: during causingwar, obvious the American blatantly racist r global against war werea fighting War the United World States During the Second likewhites. treated be expect to could rightfully and whites the were alongside dying an American Latin Americans, Black reward. acollective for calling was society American of effort wartime collective The war. the by exacerbated were but decades, for agenda the on were that Thess. postwar succe period brought about their many for of issues inequalities context adequate an provide War to World Second inducedglobalshift bythe aIt period. took initiatives was farfrom certain in aneconomically volatile and socially uncertain interwar

The Afro The A.Wynn, Neil Aldon Morris, transfusions. It happened so that in some of the American states, German states, German American of the It some happened thatin so transfusions. The Origins of the Civil Rights Movemen CivilRights the of Origins The egimes. Victory meant that those principles were to be implemented back d Indian Americans were drafted in the military alongside the whites, whites, the alongside military the in drafted were Americans Indian d - Am th erican and the Second WorldWar

and 15

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amendments particularly in regards to abolition of abolition regardsparticularly to amendments in 81

(New 1999),Harcourt 22 Brace York : - long strugglelong obtainequal ofto black Americans t

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CEU eTD Collection American Eugenics SocietyAmerican Eugenics influential academics attempted to dissociate itself from Hitler 1922 in formed Society, Eugenics American instance, For academia. mental as habits, the opposition was coming not also from but from onlythe politics, to pass related legislation.It was difficult to substantiallychange long the Rights, were however inefficient not recommendationsdid as its force re 83 82 the in power growing voting Negro effect the of Nazism, against a war the ideologyof time, various intellectual, social, and political pressures wereat work impetus of the immediate postwar period is wells other with countries.” relations adverse our effect country on this hasin an Dean “The 1946: claimed Acheson existence of against discrimination in minoritygroups War wasCold beginningthe itselfa USAhad prove to advancingfor fightracial the inequality, butthe also postwar international setting. As the environment ondifferent social groups. consequences political acknowledging and of social it maintained the existencea of single human race, this middle way wascallingalso for although Still, racial superiority.” to “claims Japanese German and andagainst Negroes” anti encourages which racism against fight of “passionate between way’ anthropologists find ‘a attemptto his middle capital book his wrote Huntington, aandof theeSociety, scholar interwarth Yale one presidents of Ellsworth such in quarters. even felt War was World Second change bythe brought in

David Paterson, op.cit, 107. Mainsprings of Civilization of Mainsprings Huntington, Ellsworth First steps in this direction, such as PresidentTruman’s Committee Civil on Mainsprings of Civilization http://www.amphilsoc.org/library/exhibits/treasures/aes.htm

- Semitism, slavery, exploitation

in January 1945 made important concessions in concessions Januaryin important 1945 made 82

, (New York : A Mentor Book 1945), 49- Not only was contribution the wartime ummarized by Harvey “ByWish: this

true bearer of antifascist legacy. legacy. antifascist of bearer true the influence of heredity and and heredity of influence the

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luctant Congress Congress luctant ; the influence of the influence of .

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This This 149 CEU eTD Collection 569. America's Struggle for Equality the ideal, legal were issues forcefully boundto erupt. was prove to itselfas a land of equal andmirror opportunities, not wheredid the reality North, as an incident of a new wave of inte 85 84 years.” the has custom prevailedColumbia ninety nearly for permitted the practice the if localcommunities whished it, and in the District of quired re segregationof publicschools,four others states Seventeen patients. mental segregated railroadtheir ontrains within passengers borders. segregated Fourteen states buses and streetcars. states operated Eleven separate schoolsfor blind. Fourteen states Neg required states Eleven travelers. train and and were publichalls segregated. all statesroomsfor required separate Ten bus waiting circuses, theaters amusementracetracks, halls, bathingand pool parks, facilities, fishing playgrounds, states, parks, Ineight race. by separated were patients tuberculosis states, beIn not chained together.seven In states,could white andprisoners black mines. six factories. required Four Carolina cottonmills. states South themin requiredtheir themin wash separate racially required Carolina North another. one of company a Incouldenter not pollingwhite the andvoters placein black textbooks. Arkansas, of some editions same use to the white andstudents black permit not Florida did cont all Africa, in especially states, white leadership abroad, and the challenge of the national liberation movements in the non- who useddiplomats the facts hamper to discrimination (and America’s of myths) racial

California Western Law Review Law Western California Segregation”, School at Looks Historian “A Wish, Harvey Simple Justice Simple Kluger, Listed in Robert

As late as 1951, “the state of Texas did not allow interraci allow not did Texas of state “the 1951, as late As . (New York : Vintage, 2004), 327

, The H The ributed to the attitude of this time.” istory of Brown v. Board of Education and Black rnal migrations, the taunts of Communist ro passengers to ride in the back of the the of back the in ride to passengers ro

85

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84 55, (1964-

America America 150 5) 5) CEU eTD Collection Schools”, Koussner, “Separate but not but into equal’ standard public education.was Its base segregationalist in described by details Morgan 20 the Strategiesin AmericanAfrican Freedom Rights: Civil Fairclough,“Segregation and Stokes (ed), op.cit, 155 - turned to courts. As Peter Lauturned courts. to As Peter notices, 88 87 86 overcrowded. schools for Black were children only not also understaf but fewer, child, a white than on four less times e.g., were Carolina, South in schooling child in a black on expenditures colleagues, white their of salaries the half receiving generally – meanwhile emerged findings empirical However, shocking Board . School v. Cumming 1899 and FergusonPlessy (1896), particularlythrough v strongholds segregation, through ofrecognized Southern indirectlyconstitutionally weredismantling schooling. the laws that segregatingpublic at aimed particularly was People Colored of Advancement the for Association coordinated National initiative, nationwide through laws. The challenge segregation the be to ear by the form heightened achieved and it but 1960s, betteris understood light in of a broader social movement thathad often understood as anthatsparkedrights civil event movement theof mass the 1950s , (Durham and London : Duke University Duke : Press,London 2004), 105 and (Durham American Democracy, II.2.2 Solving “an American Dilemma”: Social Scientists in

Joseph W.Cumming v. School Board of Richmond County Peter F. Lau From (ed.), the Grassroots to the Supreme Court. Brown vs Board of Education and Significant changes in the strategy of postwar Black civil rights activist are described in Adam in Adam described are activist civil rights Black postwar strategy of in the changes Significant

in their everyday life turned Black lifeAmericans their turnedto in everyday the courts in an attempt to The difference between the proclaimed and real, between between real, and proclaimed the between difference The

The Journal of Southern History

75

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CEU eTD Collection available they were merged by the NAACP and appealed to the Supreme Co Supreme the to appealed and NAACP the by merged were they However, denied. were Virginia EdwardCounty, Prince Carolina, and South County of Segregation from Clarendon education Delaware, claimsDistrictof in Kansas, Columbia, Educational t Fundparticularlystimulated NAACP of the equal’but could be not maintained practice, in which why is Legal Defense the and http://www.archives.gov/education/lessons/brown http://www.kshs.org/research/topics/cultural/brown/index.htm ht 90 89 Adolf wrote Hitler the to racial stock”, to orof injurious novalue allthe bein probability, ofAmerican peopleconcerning of whose prevention reproduction would, progeny states ar without Not creed”. “Nazi time preparing to thistake issue. on Many Justices privately referred segregation to as v EducationBrown . Boardof have a say included the a in case which number of went plaintiffs, but down history to as It Supremestandard 1896. in Court now setfor bytheto U.S. was Court the Supreme claiming that schooling the system of Topekais satisfying the „separate but equal“ Black school a away.The mile ruled DistrictCourt favor in of attend anKansas, being Topeka,public schoolcorner,forcedall in around and to just the the in get enrolled to Brown, unable Lindagirl, Black for named cases was merger of Documentation Cf. Cf. The National Archives of the United States: Documents States: United Archives ofthe Related National The to Brown v Board of Education Board, Electronic Resources at various available databases: With all Deliberate Speed. The Legacy of Brown v

tp://laws.findlaw.com/us/347/483.html Onmerger the of cases the Kluger, see 515. op.cit, opinionsThe in instances lower courts and federal are Brown Bibliography US Supreme Court, Brown v Board Education of Court, , 347 U.S. 483(1954), Supreme US http://www.brownvboard.info/index.htm Education was the obvious example that the constitutional doctrine of ‘separate doctrine of ‘separate thatthe example constitutional Education the obvious was The caseondeaf whichCourt, fall was not thesome did earsin Supreme for quite Brown v Board of Education of Topeka http://eisenhower.archives.gov/Research/Digital_Documents/Civil_Rights_BrownvsBoE

http://65.36.189.169/iecme/hardfiles/ 90 eason: “I have studied with great interest the laws of several several of laws the interest great with studied have “I eason:

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CEU eTD Collection War Crimes T Crimes War Otto Wagner, Otto 94 93 92 91 gaining hear to momentum a case regarding segregation,and was aboutgive to a benefit the in Supremepost onwhich Court since he 1940. had served his resumed has and Chief Prosecutor, a was where he Nuremberg got the he from back friend a once to Jackson wrote segregationpolicies”, underlie which racial conceits with t the seen would be vulnerable for accusations of maintaining double standards. treated”,exclaimed, he thinking of segregation and realizingwhile thatexists, the it USA circums regrettable some have “We raised: was citizens German the to done things for elite German Tribunal, Justicewas Robert Jackson visibly embarrassed when the issueof punishing Jews.” templates with Nazis when they ban to relationships sought between ‘Aryans’ and Southern states whose legal on prohibitions interracial and marriage sex provided the interpretation to which they ordinarily looked for guidance- for ordinarily looked interpretation they which to between and their values. views personal constitutional theirThe legal of sources “Brownsegregation. was hard Still, forthe justicesbecause many of posed a it conflict of colleagues his the in Supremeaware was Court, of well thebrought injustices about by precedent - precedent

Ibid, 1, Michael 50 yearsv “Brown J.Klarman, Later”, Board Humanities Niall Ferguson, op.cit, 221, 225. Minutes of the LondontheConferenceMinutes for of preparation the trial, the Michael in Marrus, of 91 Be as InternationalDuring of thathad the ledtheMilitary to foundation the negotiations www.neh.gov/humanities/2004

errible consequences of racial hatred in Germany. We can have no sympathy sympathy no have can We Germany. in hatred racial of consequences errible seemed to indicate that school segregation was indicate to permissible.” seemed thatschool segregation rial 1945-

it is, for is, someit time after the War Secondthe Supreme World Court was

SA Chief of Staff. In ChiefSA of Staff. according fact, NiallFerguson, to “itwas the tances at times our in tances own country which in minorities are unfairly 6. A Documentary History

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The United States Constitution, 14 Constitution, States United The Michael ofvs “Brown in Education J.Klarman, Politics?”, Board Peter Law F. Lau or op.cit, 203. (ed.), th regation constitutionality.as of the but publicschooling, its relation in And insofar

k children, constituting segregation and violated the principle of equality. A number A number equality. of violated the principle and constituting children, segregation k amendment …onthe ok.” basisofsegregationis precedent Brown was initially argued in front of the Supreme Court on December 9, 1952 onDecember Court front Brown in of the initiallySupreme argued was th

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UNESCO,

Simple Justice Richard Kluger, Simple Mark Chesler, Joseph Sanders, Debra Kalmuss, Social Kalmuss, Debra Sanders, Joseph Chesler, Sc Mark in Details How to bridge this gap? Marshall devised an avenue through which the results of results through which Marshallan the gap? avenue devisedHow bridge to this The Race QuestionThe Race 100

As the Justices were supposed to deliberate on the cases of segregation segregation of cases the on deliberate to supposed were Justices the As , p.3. , 563. , (Madison : University of Wisconsin Press, 1989).

ndance of such findings wasndance presented of such findings to - esteem of young Black Americans. Americans. young Black of esteem 101 ience in Court: Mobilizing Experts Experts Mobilizing Court: in ience

yed theto back claim the of Social scientists were at the at were scientists Social r, it seemed that law was was law that seemed it r,

21, (1959),21, 37- 99 Herbert Garfinkel, Garfinkel, Herbert

eports. Social eports. Social Certainly, the k nothing k nothing 59.

their 156 CEU eTD Collection LA Times LA Segregation”, on Ban Board of Education. Law or Politics?; in: Peter Lau, op.cit, 200 Lau, op.cit, in: Peter Politics?; Law or ofEducation. Board vs ‘Brown Klarman: several refusals, with a blunt explanation: “Somebody explanation: blunt doit.” several a to refusals, with had after call the accepted who Whitehead, J. Mathew University, Howard at professor associate as (such educationalists and dolls) author with experiment of the controversial 103 102 and his outside shortsighted, unjust both travels is States he convictions of Southern b may us any of fiercely however egalitarian views, hold may “However us any of passionately was reasoning blunt: evidence. His additional for Frankfurter ask to Justice Felix al the had been aggravate discriminate to nointent Blacks. Fearingcould thatdividedopinions thatthere purported but show to of quality education, of there a been differentiation had admitted They facilities. separate the in equality educational an create honest attemptto Democratcandidate presidency,for made the considerablemade show effortthey to had Davis, former W. prominent being John most attorneys, the states, byskillful represented “sociologists”. Consequently, as be to seen want not actually did the law,Justices more and than sociology its constitutionality – detrimental effects of segregation decisive.but persuasive evidence expert Although was and the immorality insofar similar topic. onthe but sizes, and different shapes of contributions with follow, to academics were

Detailed description on the standpoints of the Justices and their biographies is provided by Michael J. J. by Michael is provided biographies their and the Justices of standpoints the on description Detailed op.ci Kluger, ready 1953 June heatedatmosphere,in the Supreme accepted Court the proposal of elieve that such a policy thatsuchelieve a undoubtedly the tenacious segregationas expresses of However, the impact of social scientists onthe Justices inthe first instancewas all

t,

331. More on Clark’s role in Ellaine Woo, “Kenneth Clark, 90. His Studies Influenced was still a matter still of NAACP’s doubt. it, puts As Jackson briefwas was , May 3, 2005

by the end of 1952they were dividedonthatmatter. were concerned, the question of questions –the issueof theconcerned, of question questions were

- 208 102

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The The 157 CEU eTD Collection reproduced in Richard Kluger, op.cit, 618- segregation.” judicial authority private reason if for this alone he declares policy unconstitutional of 106 105 104 cases the having ‘catastrophic’ a divideddecision, impact of Frankfu suggested rter Klarman,J. this historical detour was aof matter buying time, as “worried about the understand, wouldabolish thatit segregation publicschools?” in Fourteenth contemplated Amendment conte or not did the ratified which conventions and legislatures the state and submitted Congress which the that there is evidence What cases: respective the to relevant are they as insofar year. byCourt that the end of amendment, draw relevant the conclusions for their case and present the themto Supreme theConsequently, 14 were at askedlook theof another history thetake sides to Amendment, intended outlaw to racially state based schoolssegregationstatute the andFourteenth Congress theasked,ratifyingand Court the submitting states, Amendment, with respect to state legislation imposing racial school segregation. Has Congress in submitting, and the state legislatures in ratifying, the Fourteenth of companionintent reargueand termssides to casesin of its the Brown original 1953instructed counsel June, for byhearing both arguments thein Court, initial counsel, precedent rewriting of history means as of a creating operation the for rationale proposed in this

Alfred Kelly,‘ Ibid, 211. This demand was followed by four other questions related to the first,an to related questions four other by followed was demand This Supreme Court asked the parties in litigation to the to tempted byaresort new ... thewas Court “Confronted difficulty this with - NAACP. “After “After NAACP. of experts the of one Kelly, Alfred recollects breaking“,

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CEU eTD Collection Imperio securing additional time to resolve their differences.” theyshould invalidate segregation.The justice original the understanding Fourteenth Amendment of and the remedial available options reargued thatthe justicesrequired further onthe pretense such as briefing the onissues 109 108 107 resort history, were opinions and analysis its frequentlyfamously packedhistorical with as a state laws and judgments, the Supreme was Court frequently call to upon position in attempt to reconstruct the original intent of the creators of the 14 historical findings. or objective historians.” eitherappeared is thoroughare not accurate. completeJudges often the to forefathers or it as law early the restate to Justices of effort thatthe “not confident noted thathe is Robert Jackson sharedasearly 1945,Justice the Justices Frankfurter’s As intention. constitutional its own complex relation to history, mitigating between the realities of the present and the Supreme Court, as a verypeculiar institution in American legal and political system, had request the behind reasoning this

See “Interpretation, Ball, also Terence IntentionLaw: the and against Case ‘Or The Credit”, Faith and “Full Jackson, Robert Klarman, op.cit, 208. to impartiality. , 3/2007,, 19- Regardless of the reason,the parties were into look to history, supposed an in

provisions from the past. fromprovisions the 34; Renata34; Uitz, Constitutions, Courts History, and Historical Narratives in II.

2.3 Historians and the Analysis of Original IntentAnalysis2.3 HistoriansOriginal and the of 109

Justice Oliver Holmes, one Wendell ofprominent legal the most 108

He and the others could as well genuinely be interested in interested be genuinely well as could others the and He

, both appellants and apellees took it very seriously. The very it and apellees took appellants , both

Columbia Law Review

Assigned to maintain constitutionalitythe of the s were less interested in answers than in in than answers in interested less were s 107

45 (1945): 6.

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amendment. Whatever Whatever amendment.

iginal Intent’”, Intent’”, iginal Ab Ab 159 CEU eTD Collection (1996) 1679- California his role in the public school segregation cases cases segregation school in thehis public role that neither the of text the 14 that diverged significantly.The represent findings with Justices werethe Supremelateconfronted in reconvened 1953,the Court atook into look the past in quest for the arguments substantiating their case. Hence, when and traditions.”. rely history to on references to reference. atendency Precisely this to reputation, due have constitutional fora rev iew least for lawyers, bookof history the record appears as a treasury of points ofsound very past, tailored suit to the needs of theIn sidesin the process. typical for Anglo setting adversarial The reference. of point a neutral such secure rarely could history historical arguments as a tool of legitimating for the dec usingkeen on particularly which was Supreme States Court, United reasoning the of still to a largeextent the study history.” of study“rational law of asserted that as is he a logic”, volumein worth page history of is figures late 19 of the 113 112 111 110 Adjudication Constitutional prevent segregationas such. revealing to intent about, were the brought on whichwas it Congressional sessions mammoth researchmammoth much time loomed,without job doit.” to History History is history and Court Supreme US the

Uitz, op.cit, i. i. op.cit, Uitz, William“Clio as M.Wiecek, Hostage: States United The Court SupremeHistory”, and Uses the of Richard Kluger, op.cit, 622 On the making of the brief see the article of one of his authors, Sydnor Thompson, “John W. Davis and and Davis W. “John Thompson, Sydnor authors, his of one of article the see brief the of making the On (Cambridge, Mass. :(Cambridge, Mass. Harvard University Press,1969);

Western law Review 1695. The text of the brief: Brief text ofthe brief: The 1695. for Appellees onReargument

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century, expressed this philosophy in a nutshell: “upon this point a point this “upon nutshell: philosophyexpressedcentury, a this in , (Budapest : CEU Press Budapest 2005), 3-

24 (1987): 236- 112

analyzedCharles in The Miller, Supreme Court and the Uses of In to order th

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prove otherwise, the plaintiffs embarkedprove the otherwise, plaintiffs on“a 110 111

Renata Uitzobserves“intuitively, that at

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Washington and Lee Law Review isions. However,isions. practice in 4, 7. Special 7. relationship4, between 113 , 8 (Oct. Term, 1953), 2. Brown

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CEU eTD Collection 5 (2005) http://theoccidentalquarterly.com/ar QuarterlyThe Occidental (2005) 5 abundant factual evidence of racial discrimination and segregation and discrimination racial of evidence factual abundant was There situation. a paradoxical in fact in were They easy task. an not was That proveto thatthe intent of the makers of the amendments was allow to not segregation. Hope Franklin,John whose field of expertisewas the in realm order in of Recon struction, 115 http://www.vdare.com/francis/brown.htm 114 when contrary, it either plausible, seemed or bydistorting when bysuppressing it that According Kelly, to theyproduced a “law the objective data by provided an historical research into urgentfor plea justice.” t prepared paperswhich maintained thatsegregationundermined the egalitarian of intent historianC.the White But Vann Franklin Woodward. nevertheless and Woodward did So polemics.’ with aboutexpressed ‘the pollute…scholarship concernto temptation advocacy”and Hope notedbetween Franklin ‘thescholarship John difference case." somethingadequategloss of convincethethatwea to Court historical had historian's discoverythe . truth of .the problem instead wase th formulation of an discouragedthat it Alfred even Kelly, who observedthatthe problem was the not making of the 14 favor ofas and theinterpretation carefully desired just doctoring all oftradition American advocacy, every carefully marshaling scrapof possible evidence in of perfectly valid constitutional history. But italso manipulated history in the best he Fourteenth Amendment.

Raymond Walters, Constitutional History,“Social Science and Brown vs.Board of Education 1953- Sam Francis, Sam Francis, To thatend theyengaged three AlfredKelly, historians, and Vann C. Woodward Kelly’s colleagueswere of same the mind: “Atthe outset,Black the historian th

amendment. of Years Fifty In 1963, Franklin felt thathe transformed hadIn Franklin “deliberately felt 1963,

"The evidence with respect to original intent is so clear clear so is intent original to respect with evidence "The

Brown Brown - office history. It aoffice presented, history. indeed, gr Blunder: Ruling Class Learns Nothing chives/vol5no1/rw

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CEU eTD Collection The Public Historian and thePublic The Sources”, historical evidence in as competent a fashion as did the NAACP.” the did as fashion a competent as in evidence historical future times law less no was boards suppression was The possible. not brief submitted for the respondent school southern 119 118 117 116 foresaw mightadopting.” it be, the language under were they thatthey conclude also to abolished; impossible be thatsegregation Congress intended conclude to impossible thatthe is 39 forcedthat “it report Bickelto was lations, re racial mean”” to them want interpreters the whatever mean to regard originalwithout to interpreted canintent wordplay, should)be constitutions (and acertain contains that theywere writing a realizedFourteenth Amendment of the framers , was thatthe wrote later Bickel NAACP, under the languagewere they might adopting,it be. Thethatcould most be said for the Fourteenth neither Amendment intended thatsegregation be abolished nor foresaw that, examination of historical re yet another undertake to Court, Supreme the at clerk a law then Bickel, Alexander Frankfurter Justice Felix Kelly wereand NAACP, asked otherfor historians the working easy. nomeans by was lawyers of processrearranging historical evidenceaccommodate expert orderto in the of needs the Bickel, “The Original Understanding of the Segregation” HarvardLaw Review Segregation” the of Understanding Original “The Bickel,

This process is described in details by Paul Soifer, “The Litigation Historian: Objectivity, Responsibility Responsibility Objectivity, Historian: Litigation “The Soifer, Paul by in details is described process This Alfred Kelly, op.cit, 142. Raymond Walters, op.cit. Walters, Raymond Cf. Politics Klarman,or Law However, the Court . Like some modern ‘deconstructionists’, Bickel argued that, through Bickelargued that, through ‘deconstructionists’, modern Like some elasticity -

rted, twisted, and suppressed twisted, rted, disto doctored, It, too history. office constitution

, 211. , 211. Bickel’s recollections on the drafting canin found be Alexander that allows for reinterpretation to satisfy the requirements of anticipated such disagreement between the parties. “While “While parties. the between disagreement such anticipated cords. Bickel concluded thatthe Congress discussing the

, 5(1983): 47 - 117

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CEU eTD Collection which is correct. So your Honorswhich arereasonable correct.afforded is field So the for selection/” does know not d offriend thesaysas Court, he a andGeneral, question; the Attorney Congressin per is it skepti the with met was 7, December evidence on the historical who summarized Robinson, Spotswood NAACP, for the thedistributed Bickel which report had quitean impact onthem.Consequently, attorney 122 121 http://www.lib.umich.edu/exhibits/brownarchive/oralarguments.htm 120 the 14 that the assertion for warrant there no is say We are presentedthis: with then your Honors part, in ontheit, same historic He stressedthe appellantsfriends that“our takeentirely andcontrary they an view, take contemplate andunderstand not segregation did wouldabolish thatit publicschools.” in evidenc overwhelming of the preponderance that“the argument presented the Davis uncertainties.John seizing uponthese endoverall to the ofsegregation.Therefore intent the the appellees legislators were segregatio school to reference thatin race.” admit to the “debates However, he had proper, find only we one specific framers broadlyfor to provide the complete legal equality of allmen, irrespective of of the the intention evidence“considerable of noted He segregation.” would abolish conventions thatratified the Fourteenth contemplated Amendment and understood thatit and and it the legislatures submitted Congress demonstrates that which submit thatthe we

Argument of John W.Davis, Ibid, 33- Ibid,3- 1, vBo Brown Archive Digital Library, Michigan of University The th argued in front of the Supreme Court, the Justices were were Justices Supreme the ofCourt, the front argued in re was case the Once

Amendment dealt with the school question. The appellants sat from the debates 4, 7 4,

fectly clear thatthe Congress wantedthe school deal to with

al testimony.” He summed up with a dose of humor: “Now, ahumor: upwith dosealHe of testimony.” summed n.” 35. 35. 121

The bestcould thatNAACP prove a loose, was cism. 120 e demonstrates that the Congress … did not not Congress …did thatthe demonstrates e

He maintained that “historical evidence evidence “historical that maintained He

ard of Education, Oral Arguments 122

, 163 CEU eTD Collection of shied off.” separation’. But the Court Fourteenth as there Amendment hadthe in use been of history Jefferson’s revive to ‘wall potentially available rea in plausibility much was there curious as certainly because techniques the more is PlesseyFergusson Themeans“sociological” opinion. contrast of a v. bybetween the two of rule equal’ but ‘separate the break to ‘originalInstead meaning.’ they proceeded the Court’ssanction upon a new judicial version of the Fourteenth Amendment’s precedent 124 123 “sociological” decision. thatwereissues ontheir not agenda, the court a took bolder approach resorted and a to Congressmen 1868 onto and imposing “too straight” record historical Instead setting of wasof and unanimity underminingfor was the decision, it l the sake segregation. But the history showsdifferent.” “he thatthe 14 thought always support from the great Clark was Emancipatorhimself.” eve Justice find any indicationthattheir view supportwas andhad decisive, certainlyno their I amBut unable an to of theamalgamated Negro liberated population. assimilation into wouldbringfound complete thatit awho fewsocial hoped about e history Jackson the Amendment. argued of thatamong the legislators “may time of the be the adequate in explanation find anto unable been as theyhad Justices, surprised the

Klarman, op.cit, 212- Alfred Kelly

content in fact The shied away Court fact in the burden under of the Bickel report, whose content It seems that “the Just - breaking device. At the last moment, however, they drew back from placing from placing however, they back drew moment, last device.Atthe breaking , op.cit, 148. 214.

- examin

ices flirted rather seriously with a resort to history as a ation of the historical intent behind the passage of the passageof the behind intent the ation of the historical th

amendment covered the matter and outlawed outlawed and matter the covered amendment 123

124

It was hence the historical argument that argument historical the It hence was n blunter, sayingn blunter, that quality and early early and quality argely discarded. discarded. argely 164 CEU eTD Collection exposed too grossly, too exposed at least for the the moment, entire fallacy of the law 125 the of Chief Justice The new 1953. September in suddenlyVinson died Justice Frederick order for the Justices to acquire moredeliberation. time for history favorof in sociology.” In rejected Court feeling words, d ‘a the children. other Negro of in inferiority’ generate thewith twentieth century of protection’ ‘equal implications segregation because precedent of benefit any without history, new accord not simplydid bydeclaring thatit segr state the historical evidence respectwith the to Fourteenth Amendment’s concerning intent reneged.Court embarrassment, in As though Mr.Chief Justice Warren’s declared opinion with whic …Equipped an with historicallyactivism oriented impressive massof historical evidence of sociologically oriented reformist activism may be as difficult to defend as are those of adjudication, althoughthe pieceof orientated a historically rather than Myrdal, after Gunnar “sociological” opinion, might damage the prestige of the decision. The Justices resorted instead a to themselves, in a situation precipitated amonga the opinion Justices by serious difference histories of the various deciding the cases atIt hand … would seem likely the that evident difficulties presented the interpretatione th NAACP, only of the theirconsistent with obvious onein intent adopting in embarrassment felt considerable Justices me, to the Quite possibly,seems, it

Alfred Kelly, 144. Alfred Kelly concurs: “My half concurs: Kelly Alfred Such development seemed to confirm the assumption that the delay was caused in caused in was thatthe delay assumption the confirm to Such development seemed egation laws to be inconclusive, and then proceeded to suppose of the Plessy laws be to inconclusive,ofegation proceeded the andPlessy suppose then to h it might well have mighth it well rewrittenthe history purpose, amendment’s the of the

truth of matter the well may be that theoretical the foundations where unanimity essential and was even concurring opinions

125

- ted guessted is that the competingeduca briefs

In Chief the meanwhile, - office history. 165 CEU eTD Collection the Supreme Court.” I economic,we socialbelieve on thinking need and ofthat “represent kind political, the to thought whomEisenhower conservative as a appointed unintentionally. was He Brown,although in quite wastheturnover desired create to Eisenhower’s appointment This ofParty. politician the Republican Earl influential Warren, Supreme became Court htt Ee (ed.) The Papers of Dwight David Eisenhower 126 inconclusive.” are some light,is it enough not resolve which to with we the problem are faced. Atbest, they historical evidence on originalthe intent, claimingalthough that historical “sources cast even 1896,when to Plessy v.Ferguson was written.” He the legal dismissed relevance of was or adopted, Amendment when the 1868, to back the clock turn cannot problem, we Amendment.” Turning back onhistory, the Justices found that“in approaching this in instances between of overcoming thewas division an the Justices unanimous decision the creator a new onthe bench of compromise of the Supreme One Court. of the first alleged to alleged under lawspermitting requiring orsegregationaccording race. to segregation This was In each instance, been they had deniedschoolsattended to admission bywhite children obtaining admis courts in of the aid the seek representatives, legal through their race, Negro ofminors the publicly onJanuary14,1954. rendered

p://www.eisenhowermemorial.org/presidential “ , reached by the Supreme Court by Court Supreme the by reached v EducationBrown , Boardof Pers onal and confidential To Milton Stover Eisenhower, 9October 1953”, In L. Galambos and D. van Signed by Warren, Justice The Majority found that“in opinion each of the cases,

deprive the plaintiffs of the equal protection of the laws under the Fourteenth the Fourteenth laws under equal of the of protection the thedeprive plaintiffs sion to the public schools of their community on a nonsegregated basis. a communitynonsegregated the to publicschoolsof onbasis. sion their

126

However, office, in once October from 5,Warren proved be to

- , - papers/first , doc. 460.

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166 CEU eTD Collection Fourteenth Amendment.” segregationof, deprivedprotection complained guaranteed equal of the of lawsbythe the others similarly situated for whomthe actions been have brought are, byreason of the educational are facilities inherentlyunequal. Therefore, we thatthe hold plaintiffs and place.Separate equal' theeducation, doctrine‘separatethe has field no of but public a in and wayaffect minds unlikel their hearts their racegenerates feeling a inferiority of theiras to status in the community that may of others because solely themfrom ...To separate on equal terms all be availableto made provide to state has... Suchanit, where undertaken is a opportunitythe which right must “Today, function important of perhapsthe most state is governments education and local 127 stating in the judgment “ that were Justices unconstitutional. schooling precedentsconstitutional andsegregated made overturned the verdict unanimous Supreme that reaching Court helpedthe data the that precedent conservative, and convictions personally torn between Court, liberal their Supreme Justices of the i Court Effect of Prejudice and Discrimination on Personality Development (Midcentury White White (Midcentury Discrimination onPersonality Development and Effect of Prejudice briefs thesociological to Supreme theand “B.Clark, in case: submitted Court pedagogical including of the effects segregation, works onthe of issueof social science “the dispute most modern quoteda in footnote authoritiesthe were 11to judgment, afterwards labeled as

US Supreme Court, BrownBoard v of EducationCourt, , 347 Supreme U.S.US 483 (1954), The reports came as a great help to the the to help great a as n reaching came groundbreaking this reports decision. The However, the ruling clearly use not this did finding as a to pretext back off: Eventually, social scienceto turn out did be of immense help to the Supreme - laden footnote in American constitutional law”,contained which the footnote American in laden constitutional - driven constitutional review. Social scientist filled this gap with 127

this findingthis amplysupported is by authorit modern

y ever to be undone ... We conclude that, in conclude that,in y ...We beever to undone

y.” Those 167 CEU eTD Collection Legitimacy.” Legitimacy.” reply Professor to Kenneth Clark”, Villanova Law Review A Cases: Desegregation the in Law Ernest Review (1959); 5 Can“Social Haag, der Science Testimony (1959) Kenneth 1; 73 Desegregation Clark, “The Case: Criticism the of SocialRole”, Scientist’s Villanova 1 (1953): “ racial differencies. racial years of inherent resting onthe notion for whichinfluential body was scholarship of an blowto direct and a the plaintiffs greatfor victory was a country instance the in Frazier, The the in United Negro (1949), States 674- (1949), Welfare(MacIver,ed.,44- and National Discrimination Educational in Costs, Brameld, 229(1949); andInt. Res. Attitude 3Opinion Facilities?, J. of Equal Conditions areWhat the Psychological Effects 483,495] U.S. of [347 Psychol.(1948);Segregation:of 26J. Chein, SocialScienceOpinion, A Survey259 ofThe Enforced Psychologicalc. Effects the and Making (1952),VI; Chein, Deutscher House and Conference Youth,1950);Kotinsky, Witmer onChildren Personality in 129 128 witness,ranging expert produce an to field scholarly everyreappearingnew practically in and length, the footnote,regarding in disputed onlythe but not authors quoted backbones of the Brown started with criticismProfessor of Kenneth Clark’s experiments, which were oneof the provokeThe to Suchaactivism. avalanche landmarkwasresistance. bound decision their responsibility guard and to ging provisions, plun the constitutional into the judicial double American Dilemma (1944).” Brown Brown

Kenneth Clark, “ Clark, Kenneth Famous footnote eleven of the US Supreme Court Decision is commented at length by Sanjay Mody, Mody, Sanjay by length at commented is Decision Court Supreme US the of eleven footnote Famous - However, Brown evocation and its decision of “modern authorities” was a edged sword for the Supreme Court. The Justices were attacked overstretching overstretching attacked were Justices The Court. Supreme the for sword edged Footnote Eleven 5 - Harvard Law Review Harvard Law, ofConstitutional Principles Neutral Toward Wechsler, Herbert 10; Stanford Law Review 54(2002): 793- The Social Scientist as an Expert Witness in Civil Rights Legislation” Rights Civil in Witness an as Expert Scientist Social The

in Historical Context: Social Science and the Supreme Court's Quest for for Quest Court's Supreme the and Science Social Context: Historical in

case.

128 129

From on, thatpoint the controvers Such sort of a literature review from the highest legal legal highest the from review aliterature of sort Such 830

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Social Problems dal, An 168 48; 48;

CEU eTD Collection the Royal Statistical Society Statistical Royal the “ 21, (1959): 44, 37. Economic Expert Witness”, TheJournal of Economic Perspectives 394 (1986), 269- 2), p.403. Lawyers use Social Science in Experts Desegregational School Society Cases’, Law Review and But the ire of its critics was all the more aroused.” generally boosted. was sciences of the behavioral prestige publicschools, segregation in “whenphilosophy.” the Still, Supreme cited Court such evidence striking in down racial science path, ascourtroom social “modern a is dangerous critics were pointing thatrelying out behavioral onsocial and sciences evidence the in Less venomous fiction”. of science precedents favor Amendment established in and the the Fourteenth of the law, framers of of thesociology rejecting intent on rather than on decision the “basing of accused were they sociologists”, nine “the as Labeled key controversy of the points initial on of was opinions expert the the impact Justices. from economy political to and statistics science, sociology and linguistics. 132 131 130 function. its public serve legitimately could scholarship which in places as perceived became alikehistorians was regard boosted in the to relevance of their Courtrooms findings. role.” continues be to presentedthese in cases and, ifan anything,has comeeve play to questioned litigative relevance this of evidence well as as its accuracy … such testimony (1977), 555- (1991), 521- 113- Going for the Gold: Economists as Expert Witnesses”, Witnesses”, Expert as Economists Gold: the for Going

Herbert Garfinkel,Herbert ‘SocialScience EvidenceSegregation andCases’, School the The Journal of Politics Expert“DamnedLiars Witnesses”,Journal and Paul Meier, of the American Statistical Association, 81, J.Sanders, B.Rankin J.Sanders, Political Science and Politics and Science Political Witnesses”, asExpert Scientists “Political J.Leigh, Lawrence 120. 132 Hence, since Brown since Hence,

On the sincedecision, other the this hand, confidenceand of social scientists 578; 524.

276; Stephen E. Feinber

Lawrence Rosen, “

- Widgeon, D.Kalmuss, M.C , 160 (1997),321 - , “various social scientists, lawyers,, “various have socialand scientists, judges

The Anthropologist as Expert Witness”, American Anthropologist Witness”, Expert as Anthropologist The g, “Ethics and the Expert Witness: Statistics on Trial”, JournalTrial”, of on Statistics Witness: Expert the and “Ethics g, 331. Richard A.Posner, “The Law and Economics of the hesler, ‘The‘Irrelevant’Testimony: Relevance of Why The Journal of Economic Perspectives 131

, 13(1999), 91-

is not in agreement in its basic 99; Micha 99; 130

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CEU eTD Collection Society evaporated entirely from the contemporaryevaporated scholarship. entirely from eug and of thefirst BlackSupreme Justice Court the became eventually the plaintiffs for council Marshal, War.Second Thurgood World the after States United the of achievements basic the of one as interiorized was decision which strike to down other laws based onthe doctrine of separation.Eventually, the Brown with unleashed and the Crow tide laws, logic Jim of heavilythe very plaintiffs undermined the favorof in the decision the Still, century. last and scholarlythe deep decision. realize So effort to - schools. desegregated attending were speed”, ten years after years after ten speed”, and theunconstitutional, verdictdesegregation calling for “wit was society. American was ahead not only overtly the racist state legislation, but also of the realities of the materialize. 133 In … recognizepoint should a thathistory case, the the suchjudge simply must is beside exactly due the to acknowledgment that“there whenare times judge both and historian historians’ legal ruling This contribution. earnedplace its the in constitutional history inconclusive Brown in

II.2.4 Historical Expert Witnessing from Antechamber into LegalWitnessing from BeyondII.2.4 Antechamber and Historical into Expert Arena Cf. Ralph. D Mawdsley, “A Legal History of Brown and a Look to the Future”, Education andUrban Future”, the to Look a and Brown of History Legal “A Mawdsley, D Ralph. Cf. , 36 (2004): 36. It for some time took the victory won Rights for Movement in the Civil 1954 to Although historical expert witnessing considered andambiguous was Althoughexpert historical It seems that on the matter of desegregation forward desegregation of matter the on that It seems

Although racial discrimination in public education was rendered was publiceducation in racial discrimination Although , its usage, was an importantfor step legitimization the of Brown,

in 1964,onlyin Black thanchildren 2% slightly more of 133

It took significant political, legislative, judicial re the prejudicessownre in we seeded enics and ‘scientific racism’ had had racism’ ‘scientific and enics

became the foundation from from foundation became the - looking h all deliberateh

social science science social 170

CEU eTD Collection University of Pennsylvania of University , Politics, Southern of Structure bills.” wasa sponsoringof series legislatureDavis administration announcedthe thathis to state ordered of the the publicschool desegregation system, newly elected Go had Orleans New in court afederal after day “The process. political the of out Blacks whoseeducation was keep mainpurpose to wasof therealm discrimination, not only and inefficiencyof implementations the of the discriminatorylaws in educa the proliferation ofexpert testimony the in similar cases after Brown the slownesswas for reasons the of One authorities. the of intent segregationalist the on exactly based were desegregateto society American be to for important proved of a cases, number which history, Brown Supreme in Board did ndent asCourt the v. of Education”. transce 136 135 134 measures. such of introductions the to 1900 due remained in registered. Only5320 Lou it. exercised rarely it possessed such with intent. political process.Literacy tests, poll taxes or residence qualifications were introduced came be to known as Black Codes,designed systematicall to of which different sidetracked mechanisms, Southern statesthe with imposition many in Acts.War, and Those were strengthened rights Rights through 1866Civil effectively votinggranted rights Black to 14 Americans bythe conclusions about theof intent thereachvery 19 positive inability to the first half the of 20

Peterson,op.cit, 181- Payton“Bringing Courts McCrary, Equality Federal Power:the to How Transformed Electoral the 234 op.cit, M.Wiecek, William 135 By the end of the century, the majority that has lost right, and even the ones who

Those bills wereThose bills reviving of segregationcornerstone the other - 2. 2. th

century there were no clear no were there century - 235.

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US Supreme Court, Baker v Carr 369 U.S. 186 (1962) 1957,", Exhibity 2. Among weregroups were of the the wrongs the that redress of seeking the past Baker v Carr in Context in Carr v Baker s, almost destructed almost s, during half the second of the 19 tion in in tion somewhatreservation lands was improved byIndian the

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CEU eTD Collection York: York: the Indian Claims Commission, on the Internet, Internet, the on the Indian question in the USA see David Paterson et alia, alia, et Paterson David see USA in the question the Indian the Digital Library of the Oklahoma state University. University. state Oklahoma ofthe Library the Digital 1960s in cases in 1960s as such forceful integration was harming the traditional life of Native Americans. 139 138 Dr stepped Robert H. White forth as full Ho rights and in their stood breaches the waylegal process. of likeDr Experts Helen of of knowledge Native also substantial compensate,lack readiness to only of but lack taken proper. 1964when in example, For Californian tribes were for the land compensated nor retrievable easily necessarily neither was compensation However, compensation. and t sixties, early the in started claims Such treaties. of by anumber guaranteed rights, fishing the territory a in breach lost of treaty. the federal was Their land and unique nature ke oftribes. the One Indian government and federal between the relations assigned foster Commission, to orderIndianin 1946theCongress in US an alleviate formed to thehas Claims tensions, the shrinking of reservati – many were issues The formed. was Council Indian 1960Nationalway.for in slow, legalAs theirthewas in Youth progress rights fight to determined Indians 1944was of(NCIA)in Americanformed Congress National

General information on theAmericans of history Native Index in American of Native History Resources Bureau for Indian Affairs, Affairs, Indian for Bureau rnbeck Tanner, historian from The Newberry Library a or Newberry The from rnbeck Tanner, historian hey varied from retrieving the fishing rights and land property to granting a proper granting a proper and landto property rights retrievingfishing hey from varied the

Garland Publishing in previous 100 years, getting 47 cents per acre for millions of taken acres. of taken years,acre millions for centsgetting per 47 100 previous in http://www.hanksville.org/NAresources/indices/NAhistory.html yareas in this dialogue was to be legal claimsforcompensations for , 1990). h ons. Asons. BureauIndian affairs of poorly, these handled problems Patawatomie Tribe of Indians et alia v. Indianset of alia the United Tribe of States Patawatomie ttp://www.doi.gov/bia/ Distinguished studies in American legal andconstitutional history

Cases before the Indian Claims Commission are electronically stored in CasesClaimsCommission electronicallyin stored are Indian beforethe

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Harvey D. Rosenthal, Their day in court: Rosenthal, D. a historyHarvey of fishing rights, educational problems and problems and fishing educational rights, Civil Rights in the USA 1863 USA the in Civil Rights

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173 Not Not CEU eTD Collection adversarial courtroom. interests of participants of the trial, conducted the in competitive environment of an of and intents of but particularities background historical of onlynot detailed scrutiny detached historical overviewbackground. of a It for below’, called a a view ‘from more paradigmhistorical witnessingcases.This expert than a required a of in variety complexities and controversies, was still more clear of responsibility labor,individual allt of with the accused. Suchdivision prosecutors, investigators and other officials state the to of establishparticularities the of cr testified abouta theFrankfurt generalparticular which trial background in Auschwitz Eichmann in case Experts the in the massatrocitiesWar. or Second World of the those track. to Still, difficult whose varietynumber is of proceedings growinglyengaged a in became they USA, the of arenas legal various the into Court Supreme the of antechamber largely co largely end of the Second World War, the demands put in front of the American were historians interconnected, clearlyas itwas linked with changethe in sensibilities prompted by the gai was which courtroomsyears in tocome, as the practice was fully institutionalized. America

ime has been committed, presenting therefore a view ‘from above’ and leaving to the a leaving the viewto presentingabove’ime hasand committed, ‘from been therefore proceedings weremostly civil cases, in contrast to criminal investigations related to This paradigm was in many ways in contrast with the type of historical expertise in order to change that. Such appearances became usual sight in American American in sight usual became appearances Such that. change to order in nditioned the by specificities of legal the setting.In stepping from the ning currency in Europe in the same time. Although the motivation wasmotivation the Although time. the same in Europe in currency ning

- cut than the adversarial paradigm of of paradigm adversarial the than cut he inherent 174 CEU eTD Collection seriously problematized in the yearsseriously the in come. problematized to w expert andhistorical adversarial inquisitorial of paradigms both cleavage, brink of this between proclaimedthe standardsand their neglect in reality.Institutionalized at the of elusivehuman rights trends the and their breaches, and exposing the cleavagetracking past were more the recent distant or from findings Their‘what factual by was’. displaying perspective trend historical this in ofmore putting even difficult hadhistorians task the past times. As the legalsyst and ought ‘whatem ‘what attempted be’, reconcile to to is’ historians were mitigating between this present commitment and the cultural habits of human rights, universal toward struggle proclaimed the waveof Onconsequences. the past. Testifyingabout grim the realities of racism,they aimed to contributeto undoing its and the in United States, stepped historians into the courtroom testifyabout to the bad no immediatethey connection, Germany in muchBoth resemblance. undoubtedlybore However, although the circumstances of ins sidesof onboth the Atlantic.became courtrooms in experts coincidence, historians incompatibility between historyandIn what law. at firstglance seems a major

itnessing were bound to trigger major controversies and were both widely expanded and triggerand anditnessing were major widely both expanded werecontroversies boundto serious challenges had been posed to the theory of theory had posed the been to serious1960s, challenges ofBy the the beginning *** titutionalization varied significantly,titutionalization and bore

175 CEU eTD Collection . sphere legal this witnessing 1 witnessing inthe ad Alongside with this branching out, ofsome problematic the aspects historical of expert of protection. groups need and in ethnic cover differentto widenedsocial discrimination, atvisiblet or least most subjects, theirfield predominan remainedin the area of thein position achievedhistorians only a also quit legitimizedbut not fully come. the in decades to out courts States early branched Unites in 1960s two paradigms of the bythe 20 end comparative(III.2). Finally,explores perspective it of the modalities closure between the witnessingEurop overe in continental in historical expert Italso tracksdiscussions the historical courtrooms expertisein the in USA (III.1) and the debates scrutinizes caused. it proliferation theIt of tracks witnessing. expert historical in antthe paradigms twodomin (CEU : Budapest 2002), 1.

Faust Rossi, Rossi, Faust III.1 Historical Expert Witnessing in Antidiscrimination C The foundations of historical witnessing expert laiddownthe in late 1950s and chapterThis deals prompted the by with problematizations within developments that in the era which Faust which era the in that The Expert Witness in United States Courts: How the Law has Changed legal process. Histo process. legal 1

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PROBLEMATIZATION

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2 historical framework Republic.” of the by the onegreat crime America’s in history andis soluble only within the political and mannerseducatingsocial and customs … theof children enforcing by segregation,not by laws thatis, equality bysegregationlaws, violated is and the country, of law the equalitybefore is issue real The issue. real the avoid to trying the in w I convincedimplication be an … addition is wouldin thatthere been hadbefore than in it humiliating a position child into more unavoidably, has my put Littlethe Rock incident, “Iwould feelSupreme ruling, Court thatthe unwillingly but werea Negrothewrote South”, HannahArendt mother in an in immediate reflect ruling. subjected Blackwerepressure were to children admitted,but still andI abuse. “If aut the to federal ArkansasNational Guard deployment the forces, armed subordinationof of the including action, strongfederal It took integration. prevent orderto Guard in of byparts peers,seconded enrolling bytheir from were prevented Arkansas in High School strongIn a resistance.group 1957, of nine Black enrolled students Little in Rock Central include Black c was by no means in the secure realities of United States politics. The first attempts to 194, 198,

Hannah Arendt, “Reflections on Little Rock”, the local White community and by the governor of the state who used the National National the used state who governor the of bythe and community White the local horities and direct pressure from President Eisenhower to enforce the Supreme Court’s Court’s theenforce Supreme President Eisenhower to from horities and pressure direct Brown v. Brown in movement rights civil the for victoryThe legal

hildren into the ‘integrated’ schooling system in the South were with the met ‘integrated’the into in South system schooling hildren

III.1.1 Rights Voting Cases 2

Responsibility andJudgment

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Civil Rights Act of 1964 of Act Civil Rights C History body. tion of voters,tion Voting announcing document This a therefore Rights 1965 Act. The systemic solution that Arendt was arguingfor was attemptedby the entral, entral, 4

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178 , CEU eTD Collection Chandler Chandler to contributions University Southern Review Law Cases”, Voting Southern in Witnesses the Voting Rights Act 1965 - unlocked byBaker v.Carr has staggering.” been “the therushcourts as 60s, through the bythedoor were beginningof the upin US piling minority anopportunity equal elect voters to tatives of represen their choice.” the new provide of orderto in lawsuit, type new shifteda to litigation rights of voting awith considerableBlack majority several into Consequently, districts. voting “the focus was byconducted usually of t votes partitioning through the dilution It minority. theeffect black the voting orderof in minimize to boundaries, misused was many Southern countries the tradition gerrymandering,of that is redrawing electoral the of Black further obstacles voters, were their access r posed political to this to the number greatlyRights Act increased although Voting main battleground. the Namely, 7 6 5 parityBlack officeroutine.” whites.had whit become holders existed and in some localities Afric registration to transformed Formal recognition. andnolonger barriers voting beyond portrait of this Americaninequalityhad landscapepolitical been “By 1990 South. of the inas wellextension 1975.The as its success racially significant of those casesredistricting number with concerned a weremeans as of trials such and states, 33 in filed were Structure of Southern Politics 1960 - (2002), 676.

Payton McCrary,“Bringing Equality to Power”, 666- Peyton Courts ‘Bringing McCrary, Equality Federal Power:the to How transformed Electoral the Peyto n McCrary, J.Gerald Herbert, “Keeping Herbert, Role Honest: ofn J.Gerald Curt as the Historians McCrary, Expert The - What remained was the implementation of this legislation, and courts became its motivated vote dilution. The Voting Rights Act was a strong boost to such cases, such to strongboost a Act was The Rights Voting dilution. motivated vote

Davidson, Bernard Grofman (eds.), 1990

(Princeton : Princeton University Press, 1994).

1990’, University of Pennsylvania Journal of Constitutional Law an - American registration and turnout approached registration andAmerican turnout

were becoming more and more common. A common. more and more were becoming es of voting rights changed significantly the votinges changed rights significantly of the 708. These far These708. 6

Quiet Revolution in the South: The Impact of Only 1962‘redistricting’ in lawsuits - reaching effects are described inreaching effects described are , 16(1989): 104. 7

he residential areas areas residential he

5

Such cases cases Such ight. In

5 179 CEU eTD Collection stricter standardsfor establishing the existencediscriminatory of intent. inclu Justices, three whichCourt, 1980became in the quitedividedwith decision favor in of With Mobile. legal the 1976with class counterstrikecame in actiongroup of a of 9 8 testimony by historians be have cases some Indeed,cases. rights federal in voting witnesses expert as role a major have play to begun field the in a layman than evidence indirect evaluate to qualified better as expert academic an such no such ‘smoking gun’.... view The courts “Historians have played role, important their most predictably, the in caseswhere is there reportsexpert provided by why Peyton One historians. of McCrrary, them, explained ofconstituencies race. ontheSuch basis evidence, at look the to patterns wasofcharting in past it discrimination important upthe on theand continuity onthe intentdirect dilution behindno vote such in practice.With Board, the apellees turned in historians to an attempt ob tain to solid historical evidence In of discriminate. theto proof intent v. theanwith Brown also of but analogy the effect, substantiate their claim that the election rulesare discriminatory. It demanded not only a thatthe the opinion with Court, the to lower remanded the case back which Court, case the Supreme frontargued in of was complex American voters. This Alabama, arguing that their electoral system was not discriminating against Black details see Mobile v Bolden, Further readings

McCrary, Herbert, op.cit, McCrary, op.cit, Herbert, 106. US Supreme Court Mobile v Bolden, 446 U.S. 55 (1980) However, development this was far from a straightforward story. success The ding Thurgood reaffirmed ding Court Marshall the Supreme dissenting, en decided primarily because the courts have placed credence in in credence placed have courts the because primarily decided en ” 8

Still, suchStill, evidence did seem not compelling to the Supreme

, http://law.jrank.org/pages/13410/Mobile , a purpose was to be established on the basis of the basisof established was on be purpose to a

http://laws.findlaw.com/us/446/55.html

… within the … within decadelast historians

citizens of Mobile, 9

- v - Bolden.html pellees must must pellees

180

For For CEU eTD Collection School Desegregat 1999) Press Carolina Reconstruction ofNorth University : Hill (Chapel , Koussner Morgan Historical Evidence in Case”, VirginiaSchool the 70 Board s 1981. as early as Sanders Joseph wrote years”, fifteen last the in role larger even an play to come has anything, if and cases, these in presented be to andConsequently, the “such courtrooms, continues stormed testimony experts you thatway it do can’t decision. But sociologist and we present wouldjust our facts theto court and letit come a upwith would have nosociologistwould have no bettercould and agree we we offthatthey if IAnd though thing the whole wasa just waste of I time. we thought wouldhave been … side did other thembecause the use one“we only attorney,testimony. According to expert use to reluctant initially was theto adversarialof nature the process. defense The the nature and purpose historical of expert witnessing.Its limited e a barrierminority equality full for to voters.” evidence.” historical the of the significance dismissed courts purpose, the did not prove that recent legislative decisions … were also racially discriminatory in Amendment protection voting in rights lawthe in late began … 80s because the plaintiffs movement. McCrary, According wha to 12 11 10 Supreme the reinterpreted Court case redistricting congressional the in 1993 followed ruling an unfavorable and were courts, amassinglower in

J.Sanders, et alia, “The Relevance of ‘Irrelevant’ Testimony: Why Lawyers use Social Science Experts in Science in Experts use Lawyers Social“The Why J.Sanders,‘Irrelevant’ et alia,Relevance of Testimony: by this to phenomenon dedicated study is An entire 707. Power”, to Equality “Bringing Payton McCrary, “Yes, McCrary, Peyton in Lately? HaveDoneck But Bla Role to What TheyPeople The of Discussed This decision was, according to many, a serious blow to the antidiscrimination antidiscrimination the blowto a serious many, to according decisionThis was, A concern about the future of the vote ofA future concernthe about the , Colorblind Inj Law and Society Law Review and Cases”, ion ustice: Minority Voting Rights andthe Undoing of the Second

, in which “5 in Reno, v. Shaw

guarantees 14 of the – theya have soc t followed was “the erosion of the wasFourteentherosion followed “theoft 11 , 16(1981): 403 -

- dilution cases brought about a debate on casesabout a debateon dilution brought Chi. th - 12 Kent L.. Rev (1995): 1276

iologist and we have to have one.” one.” have to have andwe iologist

Amendment in a way that made it - 4 conservative majority the of 4 conservative

428

ffect was contributed contributed was ffect 10

Such verdicts 181 CEU eTD Collection events the the wordpresent”. in real of In doing,re the in South. historical politics so relationship between complex and testimony our enrich the race serveto understanding of the courtroom ignoredissues findingsin the in past, byhistorians and presented research. academic for given rarely resources financial scholar’s to available make also cases These other. each from learn academic and lawyers cause’” serorder to in evidence of the their interpretation distort to somehow scholars tempts troubles some academics, who wonder an ifproceedings involvementin adversary 14 13 issuecommented: the reportsexpert on 25 lessthan of no veteran aKoussner, successful concerned cases, witnesses expert vote in dilution and they vehemently. reacted the latter motivation into action that is science.” Such problematization particularly di appropriateness of claiming such role, dogood that“theto motivation or bad – plaintiffs’ experts. A vote casesdefendants’ fall these from sidelikely in profe are more to serving muddledthinking,sloppiness, detail, to and thatexperts the of or attention lack witnesses fall thanmore arepreyto pedestrianvices, partisanship to such to lesslikely as that is experience Our causes. serving of guilty especially as liberals see some testify; whichpartisans cause for they of the witnesses become to adversary tempts system

McCrary, Herbert, op.cit, McCrary, op.cit, Herbert, 128. McCrary, op.cit, Herbert, 101 fferent the motivation how find out from to things work, the transformation andis it of Inattempt an to clarify engagement, his PeytonMcCrary admitted that role “this On the other side, political scientist Warren Miller casted over Warren doubt scientist On the a other side, political 13

He was certainly not among them, as he concluded: “Critics charge that the that charge “Critics concluded: he as them, among not certainly was He

-

dilution lawsuit is an interdisciplinary enterprise in which

14

search may exercise a direct influence over over influence direct a exercise may search

The often investigation deals with ssional grace than are are than grace ssional is simply Morgan Morgan ve a ve 182 CEU eTD Collection Reconst The Public Historian, Public The with purpose.” a History and Relativism On Dreams: protection right.” clause self otherwise prefer forget.” to - judges educate to least, at order, in testimony by historiansmight be usefulgeneral to painta picture of history the racism, of opportunities at witnessing) all.(Expert afforded such me different pursuits science are not history or the soundness of Millers’ Warren observation. Changingg doin the world and normal doubt to me causes cases rights voting six in witness expert an as experience “My own 18 17 16 15 academe.” as those of are as the courtroomhigh The appear of not standards onthewill stand. evidence.If, after that,the testimony not likely help is to lawyer’sthe case, expert the research,e hardth in primary work honest thoughtful and sources, analysis of allthe of field their in scholarship the all of knowledge academics: by valued those as same the are witnesses expert in seek lawyers that virtues the any event, “In McCrary: Peyton was equallypursuits.” both objective are scholaring and testifying .. charged. less from that which honest scholarsemploy their in everydaywork is sometimestan process bywhich a witnessarrives expert fundamentally …differs honest at conclusions ”The asses uponthan it: the others called to less no historians deemed he and accused, the other part cases took historians revolved which in around the issueof of intent the

an Histori Public The Witnessing,”, Expert

McCrary, Herbert, op.cit, McCrary, op.cit, Herbert, 128. Koussner, Colorblind Injustice: Koussner, MinorityMorgan Voting Rights andthe Undoing of the Second Morgan - evident ruction, Koussner, “Are Expert Witnesses Whores? Reflections on Objectivity in Scholarship and Scholarship in Objectivity on Reflections Whores? Witnesses Expert “Are Koussner, 18 Are Expert Witnesses Whores?

–

456 1999), Press Carolina North of University : Hill (Chapel to tell the tell truthto anddogoodat the same time. if the does “get Court not history the 16

In that respect, he thought that voting rights cases, as well ascases, asrights well thatvoting thought In thatrespect, he

15

The importance of for historians voting was rights for him , 6 (1984): 7- 19.

to remind themto remind of socialfactswhich they might

10. Also Koussner,“Ignoble Intentions and Noble

right, it cannot it right, get the equal He maintained that “expert “expert that maintained He

15 (1993): 15- 17 28.

Even blunter

183 CEU eTD Collection Ohio Valley Historic Indian Conference” ValleyHistoric Ohio first the for together brought were Government U.S. the against claims American Native in evidence Act the 1950s anthr oftheClaims mid 1946.By American Societyfor “as of Ethnohistory the anresearchIndian outgrowth for done the evidence the claims of for AmericanIndians eventually contributed the to creation of the and anthropological historicalpostwar collectinge debate.Inth period, this in the expressed passion by the surprised less be would cases claims legal American Native the 21 20 19 forwarded.” justice of and cause counselsgreatly beenand have aided,the research for and preparation trial, there thatthe but task noquestion of is the Commission and careful thorough casesalready in issues heard, through been bear broughton to means of that same system honestlyand intelligen continued thatthe testimony valuablegainedexpert by submitted canis from aid be it opinions, expert producing of system adversary the in deficiencies several the “Despite optimism: cautious of n was one conclusio and his Gormley, C. were byDonald exposed recognized.” challenge anthropology to thatseem me to more fundamental generally than is 1 as earlyas noted Steward, Julian activity,

Donald Gormley, “The role of the expert witness”, Ethnohistorywitness”, of the expert role “The Gormley, Donald H.Steward Julian The American Society for Ethnohistory Historians, ethnologists and anthropologists who were for decades testifying in in for testifying decades were and who anthropologists Historians, ethnologists 20

In the same year the experiences gathered in preparation of such cases such of preparation in gathered experiences year the In same the , “Theory Application , and aSocial in Science”, Ethnohistory III.1. 2 Indigenous People’s Legal Indigenous Claims 2 People’s

, http://www.ethnohistory.org/sections/about_ase/ , 955 that “the Indian Claims cases present present cases Claims Indian “the that 955 opological and used historical reports as tly utilized. Wheretly anthropology utilized. has , 2(1955): 336. . 19

One of the pioneers of this of pioneers of the One

2 (1955): 292.

21

184 CEU eTD Collection 187, Commission “it has become an endless challenge to try to arrange historical information so it can “it has challenge it so becomean be endless historical arrange information try to to cases, of number a plaintiffs in forIn the background information profession”. the finding warfarecourt of thelaw.” in that the law opposed history; is to the law and are thathistory of aperpetual in state of the complexities in the field of forensic historiography:“Myexperience has taught me decades. several over cases such in witness expert aregular became Tanner Ohio and Michigan southeastern in claims land Indian Encouraged to step in by colleague the anthropologist and by the lawyer litigating the Library, served native Chicago,witness in who c as an expert veterans endeavor, of this Dr Helen Tanner, Hornbeck historianfrom the Newberry of that tension in the realm of forensic humanities was well- sciences social from witnessing expert as insofar tensions asStates, one of the main traits of the common law, proved be to a great source of 23 22 anti very was process whole The angry. me contemporary preserve research and century nineteenth and writing; of course,thatmade for and questioning introduce as evidence anyprinted bya material living author callingthe in author without one could not said thatoneI rule found information.evidence for historical using UniversityMercy Detroit of Review Law 76(1999): 693.

Cases in electronically are the stored Library Digital of Oklahoma the stateIndian University, C Helen http://digital.library.okstate.edu/icc/v27/iccv27p252.pdf

Was Gormley too optimistic? The adversarial nature of legal process in United in process legal The of nature adversarial GormleyWas optimistic? too Amonggreatest obstacl the Hornbeck Tanner, “Historyvs.Hornbeck Tanner, Legal Law: the processingAmerican the in System”, Indians , Patawatomie Tribe of Indians et alia v. the United States of America, 27 Ind. Cl. Commission Commission Cl. Ind. 27 America, of States United the v. alia et ofIndians Tribe Patawatomie ,

cross - 23 examination … lawyers were veryproud to eliminate

es in her work were the “absolutely irrational rules of “absolutely were irrational the workes her in 22

- ount revealsount acc much personal recent Her historical and showed no respect for my my historical respect and for showed no

was concerned. The worsening was concerned. described by one of the laims fromlaims 1963. laims laims 185 CEU eTD Collection processed by the legal system.” legal the by processed 26 25 24 case a in legal a role historian The of corner’. be the in ‘third feel historianshould thatthe I decision. So, acceptable an make orderto in have to ought she or information thathe the thattheof so deprived judge manipulateof is to evidence possible the rules is rendergood a decision. There can fulfilling properly. bethis I problems in can see thatit historian has to presentsufficient facts with reliable interpretation so thethat judge can of historic role legal the to approach constructive proposals onmore the of introduction historical evidence be to need reviewedand revised.” had a set of She beto doneIn aboutand history ‘hearsay evidence’. my in fact, allthe rules opinion, for case.” the of facts basic the on agreements andallowed legaldiscussions come have caseto were to opposed sidesof the same i anthropologists.” lawyers appearing atIndian the Claims Commission seemed ambivalent about of HistoryI or that had never had aIn any coursein fact, branch of Anthropology. the lack IndianIt tribes. did not seem to matter that my field of specialization was Latin American qualify me to d Ifactrecentlyobtained that mythe had University from Michigan Ph.D. of to seemed The simple witness. historical expert an rules being for any concerning remarkablylax be me to appeared evidence, they real historical using in sticklers the rules on n an adversarialwouldbe “I it aworking context. think mark of if historians progress on

697 Tanner, 699 Tanner, 698. Tanner, exposure to formalexposure to trainingprobably factor. The was Anthropology a in positive Over the years, Tanner became very critical towards the role of historical expert expert historical of role the towards critical very became Tanner years, the Over -

700. iscuss andiscuss offer about a opinion broad range of history about many and

25

24

On the other hand, “if lawyers seemed and judges like 26

Further, she advised that“something needs al expert witness: “A “A witness: expert al 186 CEU eTD Collection is significantly differentfrom th 29 28 27 of the United States.” Constitution the in promised achieve to the proposed justice any others that theythan are better and State, Untied the of patterns legal/cultural for my respect increased role contrast of …in anthropologist Rosen, to myexperienceas an witnesshas expert the scholarly might adverselybeing influence an witness expert expressed byRosenthat academic community.Stewart, S. “didshare However, Omer not student his t the on impact the and scholars between clashes the over concerns on particularly cases, technical implications their of work.” troubled deeply been have proceedings legal in appeared have that scientists giventestimonies Indian front in of the and Commission concluded Claims that“social involving AmericanIndians”. the Rosensummarized effect of the anthropological expert in was role predominant “their that emphasized Rosen Lawrence cases”, of community. Noting have that“anthropologists too appeared astonishingly in wide range justice achieve that decisions reaching of incapable fundamentally is system, value embedded seem to me to be unsatisfactory.I really believe that Anglo and reasjust be forrender will possible a thatit a byso being judge to and distorted lawyers warped of the two parties, responsibilitythe is to keep integritythe the of historical record from 569.

Omer C.“An Witness Stewart,Answers Expert Rosen”, American Anthropologist Tanner,op.cit, 708. Lawrence Rosen,“The Anthropologist a

in Indian in terms.” Similar concerns were raised by the end of the 1970s by the anthropological anthropological bythe 1970s of the end bythe raised concerns wereSimilar onable decision. Even with the best evidence, most decisions in Indian in cases decisions evidence, Evenmost the with best onable decision.

27

e role of the lawyer. Although a historian is hired by one one hired by a historianis lawyer. Although the role of e s Expert Witness”, Witness”, s Expert 29

28

In an unusually sharp reply Rosen has further reply Rosen In an sharp unusually

Rosen was of himselfengageda in such number American Anthropologist - Saxon law, because of its its of because law, Saxon , 81, (1979),, 110.

I am convinced , 79 (1977): 558, he fears fears he by the the by cases cases

187 CEU eTD Collection American historians personal objectivity and the principles of American constitution law.” personal principlesconstitution andof objectivity American the circumspect for self suggestion even ..thatthey the mistake most from scholarlysignificant ones way different scholars havethemselves believing deluded into thatlegal proceedings no are in anthropologicalunderlined in the problems witnessing: expert “It bec is 31 30 Court. washistorians bases one of ofthe the to verdicts, appeals leading the themupto Supreme as century these construct on modern placea tendency to “had notedexcerptexperts but thatone takendifferent testimonies, of expert a the from vPatak York New circumstances of the treaties”. Similarly, in the more recent of Cayuga Indian Nation Indians”Lakesasof the Great to total thecourt upper help to “the and unable therefore eit by not “was Michigan of State the of expert historical the that concluded judge the case, rights native another even to For tensions. exposed greater in instance, Claims, meaning that jo the of Court States United the to transferred were claims new and remaining the However, morewith than 540claims, awarding more than 800milliondollars for damages. affairs.ordinary The people continued as the cases CommissionIndian under Claims became the quite

Lawrence Stewart”,Rosen,“Response to American Anthropologist Neuenschwan the ‘good guy’ and the state as guy’.the ‘bad United States v Sioux Nation of Indians of Nation v Sioux States legal United feud The longstanding Despite such contestations, the issueof the rightsIndians of and other indigenous der, John A.‘Historiansder, View Witnesses: as The Expert from Bench’, the Organisation of , www.oah.org/pubs/nl/2002aug/neuenschwander.html i

(2001), judgment the his presiding in relied ona large judge historical

Commission was discontinued in 1978, by which time it had dealt had it dealt time which was 1978,by discontinued in Commission her trainingexperience or thoroughlyfamiliar the with culture b was not nearly done. In regular courts historians wereIn courts historians regular done. b was nearly not

- analysis and modest legal reform as attacks ontheir attacks legal reformanalysis as and modest 31

U.S v. State of Michigan (1979),U.S v. Michigan Stateof

- This lack of trust in adversarial in trust lackThis of portray US the and to events, old , 81, (1979):, 111

30

the was, the in ause some some ause 188

CEU eTD Collection moreexact (or inexa than anfor law, an not is thatmatter unnatural, thenot in Court's is to This since no of opinion. history, the materials referred of congressional committees,than have positions takenthose expressed different some in writing or havingobservations i forconclusions inserted of the purpose their the in dissentingwarned Justice “ Rehnquist opinion, Still, that statements. onhistorical based 1980Supreme largely wording judgment ofCourt the 34 33 32 wrong discipline.” of questions the historical court ask caseed this actions. in Nonetheless, ...the for criminal legal or disputes co the aid can historians professional and accord in are history academic and history forensic which in cases are there “certainly that commented expert historianThe who well. testified as in the case, indecisive M.C.Minow, the body, the give court to historians asked their but their opinion, findings were NativeAs forensic American tribe. anthropologydecisivelyfailed identify the to race of communitya by scientific andclaimed BC by the was both man, 7000 a corpsefrom fishing rights, other were topics courts. in tackled it with overwith 30pages of devoted the Courts’opinion history. to the plaintiffs, favor of was a in result verdict for The plaintiffs, more andthe defense. five five whichwitness expert in nolessthan Americans Minnesota, in present. Cf. Lazarus, Black Edward HillsWhite Justice The Sioux nation vs the United States, from 1775 to the 2001), 241 - History in Court. Historical Expertise andMethods in aForensic Context

Quoted in Farber, op.cit, 1012. Nation v Sioux States United M.C.Mirow, ‘Kennewick Man, Identity, and the Failure of Forensic History’, in Alain (ed.), of Wijffels ForensicFailure History’, in the Identity,‘Kennewick Man, and M.C.Mirow, prove

( not be not simply discarded,On as thecould historical otherwitnessing expert hand, d New NY: Ha York, 6. crucial for a a for crucial

given rper Collinsrper Publishers, 1991).

of Indians, 448U.S. 371 (1980),

case, as in the fishing and hunting rights case of the Native Native of the case and rights hunting the in fishing case, as

34

In http://laws.findlaw.com/us/448/371.html of the Kennewick of the case Kennewick recent the urt in determininga just solution ct) science”. ct) , (Leiden : Ius Ius : (Leiden , Different historians, not not historians, Different 33

Apart from land and land from Apart 32 es testified for the

Deco Publications, Publications, Deco n the reports

189 the the

CEU eTD Collection 592. the common law doctrine of indigenous people International and Comparative Law Quarterly

36 35 way. under are cases such of number and a Zealand, and New Australia in cases was not written in vainas in theyear sameguidelinea for historians testifying in such plea His and relativebut constructed.” is understanding thatallhistorical openlydeclare whohistorians rather with witnesses, expert andexpertise of than engineers,other doctors are(post)modernizing. clearly Courts at homethe with comparativel more at success own its of because precisely context title native the in marginalized been It has case thathistory processes. be theprominent in nativeindeed the claims may edifice of the native title claim processes … Paradoxically though, histor be should historians well nativeIt title. wouldseem axiomatic that, history as foundation is of native title, criticized in Australia David by Ritter.Heclaimed that “history the foun is anthropologists who were the in forefront of the venture. was historians Absence of conception was necessarily not by brought in Outside of the USA, historians. was it the regardingraisesand difficult betweenhistory”. questions thelaw link the development doctrine of the Accordingly, placecenturiesago. took of events that history,into peoples wouldhave as indigenous their right the in light land to recognized Gilbert “TheonindigenousJerome observed: reaches commonlawtitle doctrine farback C The Issues of Native Title Native of Issues 2 Laws” Rights, Land, Title, Bulletin Law

anada, Australia and other in democracies onthe based territory of indigenous people. David Ri David Jerome Gilbert, “Historical indigenous people’s land claims: a comparative and international approach to international to “Historicalindigenous acomparativeJerome claims: and approach land Gilbert, people’s

issue of the property ofrights native and indigenous people wasrelevant in highly Controversial itmight as be, tter, “Whither casetter, Historians? The for the Historians the in Native titleprocess”, Indigenous , (1999), Cf. (1999), , 2. Christine Margaret “Historical O’Connell, Choo, Proof of Narrative Native and - represented amongst those who are busy constructing the constructing the are busy those amongst who represented

this phenomenon was also growing outside the USA. USA. growing the outside also was phenomenon this , vol.2, no3. (2000); Debbie Fletcher, Mel Keenan, 35 dation of the dation of the ians are not not are ians y objective

, 56(2007): Th 36

is new new is

190 CEU eTD Collection 10, 1990. CIV 86 Mexico, v. New Watchman al et 15 (1993), 41- the Najavo Nation: An Historical View Historical An Nation: Najavo the witnessing in a federal court case, case, court a federal in witnessing hasRothman, verycandidly process described the whole ofengagement in his the expert expert witnessing in native claims. One reflective the of w 37 the 1999Australian and NewZealand Law and History Society Conference (1999) NativeTitle’ in Historian the of Role Future the and Agreements Use Land Indigenous exclusi forasked the … and case the for no bearing had that the testimony Albuquerque. in Court “Howe historianon his put the stand …Pound objected, arguing historian as a counter witnessto the plainti historian’s testimony relevant not was to the case” and decided “notseek to another “believed thatthe Pound attorney John ofside, the other recognized.’ representative The risk, calculated a It was … West the in relations who had published not directly had onthebut federal Navajo, expertisein policyand ofyoungerhistories the…He Navajo onaHal eventually K. Rothman, settled historian, could credibly … thatcontext express InitiallyHowe researchsolid onthe matter, “Howe find the to merelykind needed of historianwho was there As particular”. in Navajos and general in Americans Native towards feelings aimed prove to that“the decision cut to funding prove the discriminatory by intent putting the wider case in historical perspective. He aimedHowe, to Henry Indians. the plaintiff, for attorney Navajo The care of program Mexico

an v. Historian: Interpreting the past in the Courtroom“, Courtroom“, the in past the Interpreting v. Historian: an „Histori Hal Rothman, K.

In United however,are States, the opinions still divided onthe meritsof historical The case was front heard in of the Judge Edwin L. of Mechem the U.S. District

argued in 1990inargued in front of a federal court for cutting the funding a home health of 3.

His report: StructuralHis report: andInstitutional Discrimination by the State of New Mexico Against - , in support, ofwitness expert t 0576 M, U.S. District Court, District of New Mexico, September September Mexico, New of District Court, District U.S. M, 0576 Navajo Nation and Watchman and v. Nation etNewNavajo alia Stateof ff’s historian.” ff’s

both the historian and the attorney the attorney theboth historianand might be governedmight be by preexisting

37 contacted authors of published

estimonyin Navajo Nation and itnesses, historian Hal K Hal K itnesses, historian

The Public Historian Public The Paper presented at Paper on of the on of the 191

CEU eTD Collection deep historicroots.” the historical testimony,remarking that itdemonstrated a pattern decimatio of noted he … Navajo of favor in case the decided Mechem Judge later months six Nearly was strong.… inference than 1970,the recent morewhich were of at leastexamples, ten irty th than years more with … period a 300 over Navajo and the toward behavior …theadmissible historian gaveemphasizing commentary his the continuity of attitudes testimony. Judge Mechem decided to thehear testimony before determined he if itwas 40 39 38 difficult.” become the commonplacein courtroom, retaining the credibility become will more profession the requires thatin courtroom, historians As historian remain historians. cre …the areof“historians arbiters the information in courtroom warned as of conclusion, means becameByRothman that two historians irrelevant”. the the court ordered a pre even citedIn the otherreport.. worksfact, his ac ofin in the they were much so evidence quoting and same the relevant, same documents thatwas basic chronology. One ano In exercise.” academic far is an from Historycourtroom question. in the situation the in the in courtroomhistorians depends ontheir ability presentto a credible interpretation of series taken purposes.” offor actions official invidious the decisiononehistoricala is backgroundevidentiary reveals source,particularlyif it of

Rothman, op.cit, 39, 50 Navajo Nation v. State of Mexico; US Court ofAppeals, 975F.2d 741 10 Circuit. S Hal K. Rothman, op.cit, 43- ther case he testified, an ironic situation developed. The two historians agreed on the the agreed on twohistorians developed.The situation an ironic testified, case he ther Rothman 40

remained critical of his own success, maintaining that “the value of of value “the that maintaining success, own his of critical remained 38

- The verdict the appeal, was upheld that“the on which stated trial settlement. “In this case, the interpretative testimony the of 44.

39

ept. 22, 1992 dibility the of n thathad cord, that

192 CEU eTD Collection Yale University Pr University Yale York: Harvard University Press 1996), NancyCott, F. The Grounding of Modern Feminism. (New Haven: (Oxford : Oxford University Press, 1996). movement to provide it on the level of the Union arose by the beginning of the 20 arose beginningof Union bythe of the onthe level movement provide to it brought Wyoming the in state about the femaleof suffrage 1869,but national in rights to all male

41 hist women’s into and insights did so ground, offirm theoretical women position acquired cultural and economic of setting society.from Starting the 1960’s, such reflections onthe from the solved issueof of suffrage women the reviewing position in to the of the context the military. What is usually referredas ato wave second feminism of was moving away even and market job the entered permanently women as crucial, quite respect this in was complete genderequa ratified.In time, as women acquired more andmore political rights, did claim so for culminated August in 1920,when the 19 century, Suffrage supportedgreat Woman rough This th the National fight Association. 15 the instance, For a ways. numberdiscriminated againstof in had reasons seek to redress for historical injustice the in United States, where they were antidiscrimination trials whatyears hadyet happened some afterwards,within generation another of exactly is This courtroom. the in between themselves clashcomparison historians the to

Cf. Cf. ory. Eleanor Flexner,Eleanor The conflict be conflict The 41

ess, 1987); ess, WallachJoan 1987); Scott, Feminism andHistory (Oxford Readings in Feminism)

Century of Struggle: The Woman's Rights Movement in the United States citizens, enraging the early feminists. The first serious initiatives lity was growinglity ever World The stronger. War role of the Second III.1.3 FromIII.1.3 Gender: Sears to Race v.EEOC tween historical professionals and judges turned out to be minor in minor be to out turned and judges professionals historical tween regarding As elsewhere rights. women’s the in world, women

th

amendment, granting women voting rights, got th

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CEU eTD Collection origin, and, religion. sex Civil Rights Act,VII, title based onrace, thatprohibited discrimination color, national the Civil Rights Act. Its purpose was ensure to the usage of the employment par created a1964through federal US Employment institution in Commission, Opportunity history addressing its to One many of offspring theseof its was issues. the Equal political American in constant renewal and owed importance its 1964 Rights Act of Civil itself indivisiblewider from a striving towards universalization the of human rights. The _cra_title_vii_equal_employment_opportunities_42_us_code_chapter_21 42 ten the “During men. for reserved been have places the best women, numbersubstantial of employsalthough quite The that,Sears claim was Sears was discriminating against women in h claiming was 1979, that suit brought in The Co. giant & against Roebuck the Sears, trade foropportunities men and women, one probably visible was most the the legal suit their attention,primarilygender based. whichdiscrimination wasfocus, very its but other aspects soon of came discrimination to discriminations and helping the litigants sue the companies. At first, it was racial all reviewing inspecting and through the way found hasdecisions, it positions on the same basis as males andbasis as b onthemales same positions sales failingDecember females commission hire 31,1980,by to into and promote nationwide against women pattern from of or March3,1973to discrimination practice engageda in sought thatSears prove to EEOC 135 trial days, the 13, 1984,and consumed Opportunity Commission

Civil Rights Act, Title VII, Equal Opportunities, Equal Opportunities, VII, Act, Title Rights Civil These reflections were indivisible from an immediate call for action, which was Among a number of initiativ more on its website http://www.eeoc.gov/ website more its on 42

However,was given asenforce not to theright EEOC its the

es ensure to promote equal and employment http://finduslaw.com/civil_rights_act_of_1964 http://finduslaw.com/civil_rights_act_of_1964 iring onpositions of commission sales jobs. y paying female checklist management management checklist female y paying - month trial which began September

On On Equal Employment egations of egations of t oft the 194 CEU eTD Collection Company, Defendant Company, of Barnard College and Alice Kessler Alice and College Barnard of controversy centers on a conflict between of twohistorians women, Rosalind Rosenberg comenot from from but the the verdict, engagement of witnesses: historianexpert “The judgmentthe initial late in 1988.Thethe casehuge wasuproarHowever, a did uproar. partial summary judgment.” 1986, held forall claims and Sears also denied on the EEOC's for motion outstanding employees less than similarly situated maleemployees. The district courton January 31, 44 43 sales hirescommission or whether women’s allegedly motives seeking different in employment statistic prove that Sears intended to discriminate against women in on theof questions whethe testify to asked In “Rosenberg doso, wasattempt to discriminate. to of intent company’s amatter not is disbalance that evidence the prevent to compelled was Sears employer. the anotor was sales commission Sears’s in of the besuit 1980’s,to discrimination EEOCSears, vs. the major Roebuck&Co.” sex Kessler and Rosenberg strange to historians but extremely familiar to law review readers – setting a activities in Instead, their controversy involves the field history. of women’s the to haveconcerncontributions both for prizes their wotheir scholarship: n deserved devoted American enhancingforin to opportunities women debate the life. The does not ilt.ilstu.edu/teeimer/Court%20Cases/EEOCvS.htm http://l F.2d839 302May 19, 1987, Argued January 14, 1988, Sears Case’, TexasReview Law Case’, Sears

Equa Thomas Levinson, Haskell, Sanford ‘Academic and Expert Witnessing: Freedom Historians and the l Employment Opportunity Commission, Plaintiff Commission, Opportunity l Employment Where did the disagreement appear? As the disbalance between men and women women and men between disbalance the As appear? disagreement the did Where - Appellee, Cross - Harris too Harris , 66(1988): 1629. 43 r discriminations the of apparent sex showed patterns by

ppealed, but the appealed,but appeal confirmed was court verdict The - Appellant No., 86- k opposite sidesask opposite witnesses expert in what prove will - Harris of Hofstra University. Both are feminists ious fact, the case revolved around theof the fact, intent casearound revolvedious

- 1621 US Court of theAppeals for the 7 Appellant, Cross Appellant, - Appellee, v. Roebuck& Sears, a court ofa law. th

Circuit Circuit 195 44

CEU eTD Collection Press,2008), 81- Proof Harris, 767 Written Rebuttal Tes the testimony of Dr. Ros the testimony Dr. of cited Rosenberg that fact the was employmentcould explain the statistic 48 47 46 45 women- so in whatever field are those jobs offered, and nomatter what the hours. Failure find to numberclaimed ofbeenat “thatwomangood substantial has in availablefor pay jobs use them as if theywomen the in 1970s?” illustperspectives myrated on womanhood thatemerged United in in yearsStates the before the Civil War. Why then and factthein But theyideology are correctly they writedescribe quoted. of those words, selling.” noncommissioned in and lessstress friendship, and contact social more is there because and easily, more job the leave and enter can they because sales, noncommission salesmore as commission attractive than view competitive. then Theyasof less themselves tend see to the workplace. Women aspects the in socialof more and cooperative interestedman tendbesuch. to Women than accessories ona sold noncommission basis, soft sell to prefer generally “women purposes.account women’s criticize on Rosenberg’s Harris to discrimination.” employers’ or attitudes unexamined preferences, which phenomenon the is essence of

Kessler CharlesPeter Histo Hoffer, The Sears case, 628. F Supp. 1281 Published in special edition of Women’s History goes to Trial EEOC v. Sears. 1 Signs 1 v. Sears. EEOC Trial to goes History of Women’s edition special in Published

concerning the Testimony of dr. Rosalind Rosenberg757- - Harris quoted in Haskell, Levinson, op.cit, 1634 op.cit, Levinson, Haskell, in quoted Harris - 779.

3. called tradi called

47

Their opinions were submitted at the trial: Proof Offer of Concerning timony of D alind Rosenbergalind , tional jobs can jobs tional only thus beconsequence interpreted as a of

rians' Paradox: The Study of History in Our Time

r Rosalind Rosenberg.. Rosalind

her own work on women on the market of labor. “I did “Iof labor. did market women onthe work on own her - line production, such as apparel, housewares or housewares such as or apparel,line production, al results away. The EEOC employed Kessler employed EEOC The away. results al Written Testimony of Alice Kessler 45 and are less interested in selling products products selling in interested and less are

- Particularly irritating for Kessler 5.

766, Written testimony of Alice Kessler – Kessler Alice of testimony Written 766, 48

Rosenberg testified that

(New York : NYU York (New 46

Kessler

(1986). Offer of - Harris - - Harris Harris Harris Harris 196 and -

CEU eTD Collection feminism” feminism” (New YorkColumbia : University Press, 1988) recognition and for status traditionally and femaleforms values of behavior?” p differences those view we should Or them? between differences cultural and social the ignoring identically, men and women treat that policies boiled downa to distinct practical “Are question: women’s interests best served by public poststructuralist theoryfor feminism”. division in her in “Deconstructing article division equality strive for equality with men lack ambition. Joan Scot was delineating well this known liberal feminists were pushing for legal rights, radical feminists claimed that women who directions. To simplify, whereas complex and continued different in women’s rights thefor fightas social to inherentlyaction, connected developed streams, various coming straight from the verydevelopment feminist of the 50 49 the analysis of intentions. eachanalysis employers, other’s with theof ended intent the of tes their Therefore, testifying. in motives other’s each controversy, attacked scholars both also but onlyfindings, not the and interpretations, answers, lending their expertise to the parties theIn at trial. ensuingthe extra the world shaped by The witnesses men. had provided therefore behaviorand in thinking of women’s the specificities women, emphasizing Rosenberg history of interpretation women’s modes of the differing proponents of witnesses happenedbe to rereading of American history was division, clearlyand influenced bythis the two

Ruth“Women’s studies Milkman, and history Sears the Feminist Case”, Joan Scott, “Deconstructing equality “Deconstructing Scott, Joan How they did come such to conclusions? differing -

Feminist Kessler studies - Harris being committed to idealan of equality between men and , 1 4 (1988), 33-

- versus 50. See also Scott, Joan 50.

49 -

difference or the uses of poststructuralist theory for for theory poststructuralist of uses the or difference Applied to case, this e th theoretical dilemma - versus timonies, which startedas the

Much of their differences were were differences their of Much Gender and the Politics of History of Politics the and Gender - difference or the uses of of uses the or difference ositively and seek greater greater seek and ositively

12 (1986)|: 381 ory and history,ory and which completely opposed 50

- Massive judicial 197

CEU eTD Collection Roebuck and Company”, responsibilities in this regard, either to put their work to practical use or protect it from special have scholars Do feminist qualification? privileges and irony, contingency agency?Is the style of discourse demandedlitigation by inimical to a discipline that past predicts the future, and downplaying ignoring possibilities unrealized human wiexpert as of historians controversy? the use Does happens scholarship to when bring historians and expertise their skills to bear legal in the use raisedSears andquestions of …What abuse history case has bythedowith to class“prone“unpro to “immoral”, “stupid”,fessional”, as followed, labeling her well wanted not …had other women testifythat to wasinfuriated prepared thatRosenberg“ would set a legal thatwouldi precedent Worse,it applicants. future and as past well as Sears at worked who would damagethose in a political trial … What was togainedbe by such testimony? A successful argument Kessler by least 53 52 51 far has case “the simplya polemical subject and not a true historical subject”. think criticism along those line I was“disturbed offor Rosenberg nonetheless athavingSears, thetestified criticism for etc. Such criticism wasmet by Carl Degler, himselfwho refused to testifyfor Sears. He University Library, Library, University

Haskell, Haskell, Haskell,Levinson, 1651. Further in commented Stephanie Riger, “Comment on - paying jobs …Thepaying jobs potentialconsequences were terrifying.” Rosenberg being thenot was views, exposing her lesspublicly attacked, bitterly Their testimonies were published by journalTheir Signs were a published testimonies Levinson, 1631- - Rosenberg, Rosalind, Papers 1979- Hariss:“A femalea historian, position had taken a feminist, identifies as - reaching impact for the future of aff of future the for impact reaching Signs,

2.

13, (1988) Rosenberg on13, papers matterthe at Her held theare Harvard

s will hurt women’s history, will makeit seem to be nhibit affirmative action.” 1987, 87

“Women’s history goes to trial: EEOC v. Sears, v. Sears, EEOC trial: to goes history “Women’s - M143- tnesses necessarily imply that the irmative action … One set of , as the editors concludedthat 171 53

51 . Kessler . 52

Other attacks attacks Other - Harris was Harris - bias” bias” 198 CEU eTD Collection Law Review Kessler Hypothetical Pools: A Reply to Alice Kessler to A Reply Pools: Hypothetical wrote Thomas Haskell. Thomas wrote the demands of and their of profession the needs the lawyercalling testify.”, themto be witnesses expert as serve to refuse simply should thathistorians is episode Sears of the the moral private conversation that suggested in historian… United “Onedistinguished witnessingStates. expert the in of historical outlook impact onthe profound had a still it However, edge. some of its distortion?” 56 55 54 theories social of construction. its decision This of the Supreme Court was publicly gender, of the history Foucault’s and influencedanalysis byMichael other of sexuality American normswereculture.deeplyhomosexual the embeddedin a nation- was sending Court Burger.Warren Supreme The fundamental rig society.theprotected act"To sodomya ofsomehow that homosexual is hold as American condemning in in sodomy traditional elements historical and relying heavily on ofividuals two ind the Insame sex. the decision, the Supreme upholding was Court upheld stateconsenting the of statute of Georgiabetween criminalizing the intercourse Bowersv. in Hara reached decision ofCourt the United States me sa time as the District theat Court was deliberating on in Renata Uitz, op.cit, 25 op.cit, Uitz, in Renata (1986): 751-

Jacquelyn Dowd Hall, Preface by the board of associate editor, Women’s History Goes to Trial, Jacquelyn by of Women’s Trial, Hall, associate Dowd Preface History board Goes the to editor, Enfacto, Haskell, Levinson, op.cit 1657. The debate continued with a comment on Haskell and Levinson by Levinson and Haskell on comment a with continued debate The 1657. op.cit Levinson, Haskell, - Harri Such a message was ill received, not only i only not received, ill was a message Such contradictedHowever,events conclusion. depressingPractically the courseof this Bowers v. Hardwick v. Bowers

2. 2. 67 (1988):429- s, “ s, 54

Academic Freedom and Expert Witnessing: AResponse to HaskellLevinson” and As the controversy from the courtroom moved the periodicals, into lost it ht would be to castaside millennia of moral teaching", wrote Justice - 30. 55 440 and ThomasLevinson,Academic“On 440 L.Haskell, Freedom Sanford and

, 478 U.S. 186 (1986), http://www.enfacto.com/case/U.S./478/186/ Detailed

- cause improbability of the both to of being faithful Harris, Texas Law ReviewTexas n the growing of scholars field of

Sears v EEOC v Sears 67 (1988), 1591 - wide message that anti that message wide , (1986) where it where it (1986) , dwick 56

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Texas Alice Alice 199 , 11 , - CEU eTD Collection http://bingweb.binghamton.edu/~clas382a/study_guides/03- More on theirMore p 76. Martha C. Nussbaum,“Platonic Love and Review Law Law.” Virginia California Wiecek. good history secure cannot a doctrine, history unsupported weaken can it”,wrote William currentpri vulnerability of can theDoctrines sword in same of way, concoctedperish thatlivebythe history and the your health.’ civic for maybe product dangerous this of Inept use improper ‘Caution: or the past comes think to that history ou has subjected Court Supreme States United which the uses to the historian who considers “The Court: bythe history of a misreading and privacy, of right state’s onthe invasion order to emphasize in even stronge even in order emphasize to antisodomyIn wording laws. Scalia, theAntonin who descended, of Justice only but in constitutionality of which upheldyet the decision another reach to for the Court open door wide leavingSears the case, the to mblance rese much showed disagreement cons wide of expression a criticized as the both 59 58 57 the conduct.” “ Constitution, the nature of homosexuality Nussbaum Martha and between Finnis.John However, historical expertise ended an upin adversarial- dead across Cour the Supreme special favor and protection to those with a self those with to andspecial protection favor

Enfacto, Orientation.’ ‘Sexual and Morality, “Law, J. Finnis, John ofHistory, the Uses and Court Supreme States United The asHostage: Clio M.Wiecek, William 57 Western Law Review 24(1987), 227, Review 247. Law Western Romer Evans v.

Therefore a took historians more proactive role this in subject, which came ositions and contribution to the case: Ancient the case: to Sexuality contribution and and Genderositions 59

i f itis rational to criminalize the conduct, surely itis rational to deny , 517 U.S. 620 (1996) t again in another similar case and related case, case, related and case similar another in again t vacy thatwhile doctrine and association suggests intimate

r wording based on the original interpretation of the wording onthe of original based interpretation the r ght… required bewarning to bear to label: this http://www.enfacto.com/case/U.S./517/620

- avowed tendency or desire to engage in in engage to desire avowed tendencyor ervative turn, as encouragement for the the for encouragement as turn, ervative

” 17_evans_v_romer.htm Notre Law Dame Review lock argumentation over lock argumentation , Evans v. Romer, Romer, v. Evans ,

80 (1994): 1515

69.5 (1994):1049 – Romer vEvans Romer .

58

– Their Their 652. 200 . CEU eTD Collection in Renata Uitz, op.cit, 18. op.cit, Uitz, in Renata notions as recentnotions phenomena. culture. the were in field,considered experts were top The debunking who such scholars, expressed a in prejudice thatthe history antisodomyare in laws and firmlyembedded influence. challenging The was brief gender understanding the ahistorical of relations, brief an wrote Amicus notable American historians B Whether In Bowers v.Hardwickbe should overruled?” avoidtheattempt to both an and the (3)privacy Fourteenth Due ClauseAmendment; of Process protected bythe consensual sexual intimacy in their home violate their vital interestsin liberty and equal protection behavior bydifferent law Wheth (1) 2003.Once in Court before the Supreme three Court, were issues bythe raised plaintiffs: Texas v. Lawrence case the until states American

61 60 beshould and overruled." now is v. Hardwick bindingremain Bowers precedent. It to not ought today. correct not and is it conducthomosexual directed nolongstandingat concluding laws history country ”there is this of in that down the criminalization sex in of homosexual Texas, overriding decision and the 1986 vs.Texas’, vs.Texas’,

owers v.owers Hardwick George Lawrence v Texas539U.S. 558 — So Chauncey, ‘What Gay Studies taught the court. The historian’s amicus brief in Lawrence Lawrence in brief amicus historian’s The court. the taught Studies Gay ‘What Chauncey, which criminalizes sexual intimacy same by GLQ: A Journal of Gay andlesbian Studies, 2004 10(3):509- - er the petitioners' convictions underConduct" criminal the"Homosexual Texas call ed sodomy laws continued therefore moreed existence in sodomythan a their dozen laws of the laws; (2) Whether the petitioners' for criminal adult convictions

as a distinct a as matter Bowers … - blunder vEvans of and the epistemological nihilism Romer sex couples — sex

(2003) 60

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Detailed Detailed , ten 201

CEU eTD Collection working expertsas in legal matters increased has in the past decades, two is still hardly it setting conceivably is as broad.” Martin just claimed that“if the number of historians indispensableexperts. legitimate, courtroom frequently but full range of human experience, the variety of historical issues that may arise in mayarise that issues historical of variety the experience, human of range full research dispel: to aims for “Because the litigations, both law and history encompass the org litigation researchIncorporatedHistory atMaryland), Associates (Rockville, an decision.” rewarding see to historians for their collective scholarly enterprise such to a momentous Board ruling of Education …Even would this be gratifying was it deeply enough, and Bowers, much as the Warren court cited of the social work sci decision historical simplyits scholarshipCourt helprecent to explain overturn to used that the press exaggerated the importance of ouris intervention; it more likely thatthe 62 raising Brian which long suspicions, W.Martin, market, as such organizations as HistoryAssociates Incorporated onlynot the in fieldstarted ofWhat antidiscrimination. turning as a was a precedent into wit Research Associates Research

George nessing as began doubts, historians different caused many cases, many in testifying anization whichanization offers the help of historians, also including conducting historical One of the authors of the brief, historian George Chauncey George One brief,obser authors of of the historian the Indispensable might as it have become, the proliferation of historical expert III.1.4 Debating the Adversarial Paradigm of Historical Expert Witnessing Chauncey, op.cit, 509 62

In any case, fifty years after the Brown Brown the years after fifty In case, any

appeared Suchdevelopments litigants experts. with link were to - 10.

- standing employee and vice presidentemployee for and standing vice verdict, became historians only not entists in its in 1954 entists Brown v. and and ved: “I suspect ved: “I Historical

a legal a legal 202 CEU eTD Collection Ame Historians (1982): 59- Fundamentalism creationism and creationism treatment’ ‘balanced a of calling for Arkansas (1981) Act 590of changeThe to ambition school boards Tennessee, in Alabama Kansas,Illionois at the Arkansas, andtime. even AmericanLiberties Civil Union. ‘Scopes Monkey Trial’ The famous the rendered Butlerlawteaching 1925. was in illegalthrough Darwinism statesUS was and notorious, had ledlegislative to as in prohibitions, Tennessee, which in and crebetweenevolutionism main bones of contention20 in the one example, For of a controversy. provoking sharein had their the casesalso art’ andVoting Denat Rights, Deportation Rights, American “Native cases: of types four in regularly appear but visible, barely are of in pool experts total the courtroom: Amongdifferent 7,600 types of historians experts, the of fraction a tiny only “represent historians that agreed also He expert. reliable and accurate an having in interest avested have courtroom the in sides all as justice, of cause and the judgeagreed thethat adversarial nature of the legal system harming is not the growth industry.” a 65 64 raised in the and out context academic of of scope thismeans dissertation,no butnegligible. by also shedsmore light on the financial aspect of h 63 outcry. Kansas Board votedout ofevolution Education curriculum, of its causing strong a public

The Public Historian Public The Arkansass, in Creatonism Wintesses: Expert as Historians “The Charles Bolton, John Brian W.Martin, “Working With Lawyers: A Historian’ Lawyers: With “Working W.Martin, Brian rican historians, historians, rican Neuenschwander, ‘ Neuenschwander,

, 70. Mor http://www.oah.org/pubs/bl/2002may/Martin.html

(Cambridge Icon : Books 2000.) e on the history of reception of Darwinism in Merryl Wyn Davies, Darwin and Davies, Wyn Merryl in Darwinism of reception of history the e on

evolution brought historian Charles Bolton to a case launched by the a case launchedbythe Bolton to brought historianCharles evolution www.oah.org/pubs/nl/2002aug/neuenschwander.html 63

der, history professor history A.Neuenschwander, John claim, In his to response Historians as Expert Witnesses: The View from the Bench’ the from View The Witnesses: Expert as Historians

case removed this obstacle, but creationists were controlling were the creationists but obstacle, case this removed ationism. The rejection of Darwin’s teaching in some of the some of in the of Darwin’s teaching Theationism. rejection

th 65

century respect this in schooling US was the relation

The a with 1999the case ended compromise,in for uralization, and State of the Art and Cases.” uralization, Stateof the

istorical expert witnessing, which is a matter not often often not matter a which is witnessing, expert istorical

Short but interesting text of Brian W.Martin W.Martin text ofBrian interesting but Short s Perspective”,

Organization of American , Organisation of of Organisation , 64

‘State of ‘State 203

4 CEU eTD Collection art 68 67 66 massive convince campaignto publicthatsmokingsafe was ofthe disinformation historians to testifythat dollars”, US defense, wroteearning a million half Robert Proctor, over years,for always the past over15 the at trials least 13separate on tobacco … industry witnesses workingexpert foras an thathe the year has quietly shocked been learn were to for the History of Medicine Similarly, the engagement of Kenneth Ludmerer emerged. debates historians and social scientists alike to not blind have known thatalready the in United States”. He wasby followed others, warning onthe labelscigaretteyou first went packs, have to wouldhave be deaf and War “when after Secondthe cannotgood,and World that and bethe smoking harmful is haz by smoking. analyzed He the the level publicreceived of information about health caused injuries health to related case Louisiana a in testified Ambrose Stephen Professor conduct of the tobacco thatperiod the in realmIn until industry of advertisement. 1994, warnings onpackaginglabelsof 1966,the in crux such cases revolved around the in USA v Philip Morris et alia, alia, et Morris v Philip in USA the fulllis and ofthe case Background Morris. v Philip USA civil action the in ofplaintiffs behalf on filed witness report Expert . http://legacy.library.ucsf.edu/tid/vmm56c00/pdf Robert Proctor,

Robert Proctor, Should medical historiansworking be for the tobacco industry?, The Lancet Laura Journal“Witness Bearing for Maggi, Tobacco”, of Public Health Policy Cases,Overview those of Tobacco in cases

appeared in tobacco and health related cases. As the United States en States United the As cases. related health and tobacco in appeared ards the in postwar period, and he concludedthat there was a general knowledge that The The P ublic controversy, theexpert realm within bitter unusually even historical other important aspect of historical expertwitnessing the of regarding state

A Historical Reconstruction of Tobacco and Health in the US, 1954- 67

Ambrose was accused of being a hir being of accused was Ambrose

“i http://www.ttlaonline.com/usdoj/index.htm nstead of

provoked aoutrage complete

.

66 onestly on the hazard hazard the on honestly reporting

http://www.tobacco.ne , president of the American Association ed guned for the tobaccoindustry. u.edu/litigation/cases/index.htm : “Historians medicine of last t of exhibits, reports and judgments

. 21 (2000), 296. the industry began a a industrythe began 1994 one of the first first the of one , forced tobacco tobacco forced , 363, (2004)

. 68

and and 204 CEU eTD Collection Journal The Public Historian Public The Sources”, the and Responsibility historian in a legal process was treated only occasionally. was treated only process ahistorian in legal whether testify to not or the ethics of about haven'tdiscussions we publications, had for have rules disclosure ''We don't historical really professionfor Robert beenProctor, hasnot this,'' said prepared propergood expertisewas a indica 72 71 70 69 object of goal vEvans Romer and case Sears Chipavaa, notably cases, several of example the on strain the illustrated legitimizing after became temptation for This advocacy harder purposes”. also resist,harder but to and views recast simplifyher to pressure witness…under adversarialims pushes “expert where law, common in great particularly is thechallenge that well d recognize impact of the postmodern challenge onthe erosion of those concepts far is studies. historical in and jurisprudence challenged in both been recently have concepts those all that warning exclaimed, he proof antruth”, d like evidence, concepts of the basis on roles their defined traditionally historian have spark was theWor First offerto legal The to issuewas discussed proceedings? 1997within in the

Ibid, 1031. Objectivity, Historian: Litigation “The Soifer, Paul debate ofsuch formation ofthe signs Early New The York Times Lawsuits”, in Industry Hire for “History Cohen, Patricia Daniel A. Farber, “Adjudication of Things Past: Reflections on History asEv History on Reflections Past: Things of “Adjudication A. Farber, Daniel

49 (1998): 1010 - A the bitterfield controversy of theof history medicine within over the of nature ed by Daniel A.Farber. “However their tasks may differ, both the judge and the judge and the may the differ, both “HoweverDaniel tasks ed A.Farber. their by

ivity,” but had but ivity,” atonthefor theneed same caution. warned time ld C ld . He the reached conclusion that “it wouldbe a mistake to abandon the

onference Trends onNew what Farber distinguisheda as multilevel attack on objectivity. He 1

to testify.”

69 tor that this issuewas “The tor thatthis underproblematized.

And indeed, the issueof the responsibility of a

, 5(1983) 47- in in Investigation andCriminal E 62 70

Do historians have somethingDo have historians 71

He maintained that the , June 14, 2003. idence”, idence”, Proceedings of - reaching. He He reaching. 72 Hastings Law

. It It . vidence

205 CEU eTD Collection Appleby, Huntand Jakob: quoted therecentwork criteria historiographical of of asbya reliability exposed 74 73 thattheseis thethe are apocalypse four horsemen not rather but the of four threatens- truth disrupt to have emerged as horsemen the four of the apocalypse, forming andalliance that unholy Farber, historical relativism, post- and the rise of historical relativism. particularly by raised the in methodological concerns of the postmodern advent critique l a new applicable criterion as insofar social science concerned is new, not Farber is but to it took an not is concern ThethatDaubert historians. from to scientists could reasonably stretch the scientific community”) been subject peer to review and publication, 3.The general acceptance the theory of in hasWhether it 2. has tested, thebeen theory on scientific 1.Whether method(namely: criterion ofCourt the Supreme makes objective knowledge possible.” replicateddisputation, communication and the extended freedom censorship from – Expert Testimony”. Cardozo Testimony”. Law Expert Review of Nonscientific Reliability the Ensuring to Approach Epistemological Similar a Developing Daubert, History Less sympathetic, moreLess sympathetic, systematicin Thompson account Mark is History’? ‘What On Jenkins, Keith see scholarship historical Apply to (London : Routledge, 2001)

Farber, 1036- Application of Dauber in social sciences isApplication sciences social in discus Dauber of . (New York : Norton1994), 281. Inan the put topiconfirmer attempt to common ground, Farber transdisciplinary Reuel Schiller commented critically on Farber’s contribut Social Science Evidence”, California Law Review 84 (1996): 1657 On 1657 theLaw of in California issue (1996): Social Review relativism Science 84 Evidence”, evel by scrutinizing the developments in contemporary in historiography, the developments evel byscrutinizing 8. Quoted from Joyce, Appleby

finding in the judicial system. T . He cautiously what to extent the questioned Daubert criterion

“The system of peer review, open refereeing, public

in in modernism, multiculturalism and critical legal studies

the Daubert case, which admits evidence if it is based based is it if evidence admits which case, Daubert the 15 (1994): 227; Teresa Renaker, “Decidingwhen Daubert should 74

73 , Lynn Hunt, and Margaret Jacob Telling the Jacob Truth About Margaret and Hunt, Lynn ,

He standard optimistically this juxtaposed the to sed in Edward Winkelried, “The Next step after Nextstep“The after Winkelried, sed Edward in , (London and New York,Routledge 1995). , he problem with Farber’s paper paper Farber’s with problem he Postmodernism andHistoriography ion: “Accordingion: to 206 ,

CEU eTD Collection Hastings Law Journal the ivory tower, the legal processthe ivorysafe.” is the legal tower, discredited in the courtroom. While historians debate the merits of Derridian relativism in historian “may wa postmodern The outright and deceit.” interpretations, biases, laughable flawed data, cross truths in the interes the adversarial process an is excellentbuffer against these who wouldabuse historical inflamed onthe passions part of the the historians, I lesson cases from draw these that is well with the needs of legal the prof mesh not often does … truth for search the historians’ of nature “the also because but “age onlynot of the because that the role of historical expert witness in an adv That Noble Dream Noble That Novick’s Peter book of success and of and others Hayden White of the theoretical work demise of objectivityhistorical in scholarship, arguing the impact of that is that notion strawhorsemen.” 76 75 gay voting rights, water rights, trademark disputes, rights, border gender disputes, fields and instances of taking historians the the stand in USA(Native American rights, to the criticism of expert witnessing andproposals to reform Accommodating Federal Testimony in Historical Expert Courts the at Gate: 2003, entitledHistorians in article an alarming Martin wrote Jonathan

Ibid, 1176. witness”, asexpert historian the and relativism Apocalypse: ofthe Strawhorsmen “The Schiler, Reuel E. - examination, lawyers put historians’ testimony through a crucible thatuncovers a crucible through historians’ lawyersput testimony examination, half a century of debates, of century a of half points the much of agree. Summarizing Not allwould

75

, but warning that it does not stand for the state of the art. He claimed art. claimed He the of the state stand for does not it warning that , but 49 (1998): 1169 rp young the in classroom,rp hebe minds but will challenged and Schiller was toning down Farber’s concerns, particularly about the concerns, particularly Farber’s down toning Schiller was ts ofts their client. Through the use impeaching of rival and experts - old temptation historyto mold to suit the of needs litigants”,

ession.” “yet, he Nonetheless, maintaineddespite that 76

ersarial system is problematic indeed, indeed, problematic is system ersarial it. Martinenumerated the , which was drawing back 207 CEU eTD Collection York UniversityLaw (2003): Review 78 participants). and tobacco product deportation liability, litigation of and Holocaust alleged discrimination, employment discrimination, establishment 78 77 generate to historians and uncharacteristically assertions.” categorical unequivocal adversary system exertsa powerfulall force on trial participants, and it compels “The source of problem the with historical tes experts. the between exchanges courtroom futile or justice of miscarriage towards way a up or opens either insignificance into sinks often and heavy a with burden comesthat it sometimes even indispensability of historical testimony for the legal system, he claimed of the 20 end the Boardvs. until a short summation of historians’ involvement in the American legal systemfrom Brown testimony. now historians frequently As a result, offer unr and blind’ ‘deaf Ambrose’s akin to something towards categorical compressed and adversary routinely system toward historians push interpretations of the past thatare take into account all the available evidence trial, …At that arguments balanced and nuanced complex, formulate to another one expect generally ofmethods their craft whenhistorians offeringtestimony.expert Outside the courtroom, method. Martin claimed thatparadoxically, often neglect “historians the conventional interpreted reliability relying as a onsound epistemological basis and recognizable demanding thattestimony be reliable be orderto in admitted. The Supreme Court co Federal courts. federal of level the on particularly

Ibid, 1541 - Martin, Jonathan D.“Historians at theAccommodating Gate: testimony expert federalin courts”, New 2. 2. 77

He concluded that their testimony “poses a problem for the legal system”, system”, legal the for aproblem “poses testimony their that concluded He

1520 th

century. While acknowledging the importance and and importance the acknowledging While century.

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clause violations, toxic torts 78

208 CEU eTD Collection Witnesses”, Witnesses”, Experience”, an own of expert its choosing consultation with of the parties. many of the aberrations can be avoided 706,permitting through rule the court appoint to usingUSA in some of the neglected of t rules of historical witnessing, expert appearsas insofarit front in of courts the federal in require expert historicaltestimony.” historians should be appointed by the court rather than cal process, due intellectual ensure to order in that “argues he Therefore altogether.” witnessing. He maintained that “history is too important to the legal process to omit 80 http://www.law.cornell.edu/rules/fre/rules.htm //www.law.cornell.edu/rules/frcrmp/Rule16.htm http: 79 would find this solution unburdening,In also troublesome. but the of latest edition the course react wouldhistorians ofand justice. How the judges r befor harmful which the in courtroom hasto historians proven paradigm clash between complete of a avoid the possibility would carefulfor scrutinyproceeding that call importance thepeculiarities occasional and of historiography its elements were incirculation from the end of 19 the as revolutionary, proposalshis were not sure, andgrouorganizations Tops. be academic he called also for charting the lists of qualified expert witnesses by professional resistance and overcome themto Martin this urged Still, clause. nonadversarialuse this that, although possibility al this was

About this solution Pamela Louise Johnston, “Court Johnston, Louise Pamela solution this About Ibid, 1521 - Martin showed nointention the abolish to instit However, this renewed urgency is underlining both the epistemological epistemological the underlining both urgencyis However, renewed this Oregon LawOregon Review High Technology Law Journal 3. Cf, Federal Rules of Criminal Procedure, Rules3. Cf, Federal of

77 (1998), 59-

79

ways at hand, judges were by and large reluctant to to reluctant large and by were judges hand, at ways 2 (1987),2 249-

Martin sawfor the improving solution the impact 75

- Appointed Scientific Expert Witnesses: Unfettering Unfettering Witnesses: Expert Scientific Appointed and particularily and Federalof Rules Evidence, he Federal Criminal Code. He claimed that that claimed He Code. Criminal Federal he 272; Ellen E.Deason, “CourtAppointed Expert th century. led by the parties when cases cases when parties the by led ution of historical expert 80

However, Martin noted

it might have in a eact? Many experts experts Many eact? 209 CEU eTD Collection sv. sv. define what “good” is history, methodologically both as morally.” as well legitimacy togreater field.our A relevanceand involvement of historianswill force us to and the ourhumanistic purpose sense forceof crystallize will traditions to us that lend system thelegal from demands the that believe We more. deal agreat avoice without often are who those owe we and deal great a society owe we that argue would we Yet, In publicdisputes?involvement in be part,will a this wheredilemmas areforced we what the confront question: are to theof boundaries our moral screaminginto and dragged kicking may We be our skills. for growingthe demand account of their trials and tribulations: “In this context, it is important for recognize to us al History Medic 82 Harm’ Personal and Pollution for Responsibility 81 historicalcompletely witnessing expert challenged from was positions. opposite c of realm developmentswith the in coincide dilemmas such Interestingly enough, commonlaw. in towards application its stepimportant witnessing ofexpert adversarial an is However, problematization the very profes regulate to attempts scholarly the an into backfireeven approachinfringement as might task any and better, this far. so results recen labeled however, attempts, regulating

Cf. Alun Munslow, The Routledge c Munslow, Alun Cf. David Rosner and Markowitz Gerald , ‘ Ethical turn Ethical

82

Still, it is is it complicatedStill, an judgeswould perform this open if question the

David Rosner and David twohistorians, Gerald Markowitz (1/2009),

ompanion to historical studies The Trials and Tribulations of Two Historians: Adjudicating Adjudicating Historians: ofTwo Tribulations and Trials The ontinental law, where the institutionalization of sional and ethical standards within the craft. ethical within and standards sional , Medical History Medical

tly as ‘ethicaltly turn’, have provided modest

n unwelcome circumstance for us. us. for circumstance unwelcome n 59, no 2(2009): 290.

(London : Taylor & Francis, 2006),

81

Such self Such

, give an an give 210 - CEU eTD Collection countries Yugoslavia. War in World perspective by scrutinizingalongside them the Hence Continent. French the were evident the across equally problematizations important but lessvehement, public controversy. However, historians in exposing bad the the of past Vichytimes through those trials triggered a t that cases criminal War World Second belated the in and the rangingwith collapse of communism visible through themost decade, last were the beginning USA.Suchdebates, adversarialfrom perceived of practices importation continental Europe’s historicalexpertise subject is a stro of law. Paradoxically, changes such wouldbe introduced exactly the in period which in USA wouldcome the to inquisitorial closer model of as experts exercised the in Civil . areexperts question. are in supposedplayit to in similar d much the same happenedYugoslavia to 1941) in proved be to strong enough produce to fighting of 1940,partlyoccupied and partly the to collaborationist regime, subject and th that seemed the pillars of integration, European Yugoslavia disintegrating into civil war. Still, it the capitalist West, Yugoslavia inthe communist East, Franceexiting the period as one of This unlikely comparison calls for justification.It would be hard to imagine two Ifreforming were proposals be to e adopted, historical III.2 Historical Expert Witnessing in Settling Europe’s Bad Past ebates, at least insofar as the legal handling of the past and the role historians as role as historians the past and the legal handlingof as insofar the atebates, least erent postwar history postwar erent diff with more a e semblance of their wartime experience (France was defeated in the brief brief the in defeated was (France experience wartime their of e semblance legal handling of crimes from the Second the Second from of crimes legal handling –

France entering the postwar period in in period theFrance postwar entering cases are put into a comparative a comparative into put are cases ook place France. The in role of ng criticism,ng least not for the xpert witnessing in the in witnessing xpert

211 CEU eTD Collection , (München : DTV, 1991), 192 Kollaboration 1991), nach dem Zweiten DTV, : Weltkrieg (München , Dietmar Henke,Politische Hans Woller, Säuberung in Europa, Die Abrechnung mit Faschismus und französische VergangenheitsbewältigungZweiten Rechtsprechung die des durch Weltkriegs am Beispil des

84 83 of village of642 inhabitants the executing for were tried Waffen unit a SS which of in members thewith Oradour trial, encompass theperpetrators both Nazi French and theircollaborators, peaking 1953 in in exhausted not years.the first postwar A steadystre collaboratorslegal reaction against other was Europe countries The Western together. in French citizens, among whom more than a third were actually were third a than more whom among citizens, French and 3executed. The justice launched investigations or civil on criminal about 350000 More than 50% were term condemnedto or 18were life prison; in condemned death to Lava and including politicians, Petain and100 ministers other were executed any without judgments real …The High of Court Justiceon trial about put 10000peoplebeginningbrutal. ofabout “Between1944and the summer of 1945, the all over Europe.” stunning statistic with the conclusion that “the French trials wer ends this really 1600people Rousso Henry wereexecuted.” pronounced,and at least accused, about 95000were actually condemned.Finally, penalties 7000death were Europe: WorldWar II and Itson Aftermath University :Princet (Princeton , Press, 2000), 194- France see contributions in:Deák, Tony István Gross, Jan Tomasz Judt http://www.

The timeline of those cases and the detailed and cases those timeline of The Rousso, Henry Dealing with the pastthe inimmediate postwar period in utexas.edu/cola/insts/france Vichy, , and the Trials for Memory III.2.1 Legal Dealing with the Past in theLegal in PostwarIII.2.1 the France Past Dealing with 83

Indeed, moreallthe in peopledeath to France than werein sentenced

-

ut/archives/rousso.pdf, p.4. More on the postwar retributions in Oradour

analysis process inOradour of Hennig the Die Meyer, - sur

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on June 10th 1944. 10th June on am of trials continued in order in am of trialscontinued to , The Politics of Retribution in in Retribution of Politics The , - 240

put on trial …Among ontrial the put l, the heads of the State. State. the of heads the l, , University of Texas, Texas, of University , e among the most tough most e among the

France was particularly particularly was France

84

The military 211; Klaus

212 - CEU eTD Collection 265- well as its overseas territories in Algeria. entangled War was theWorld allbut beginningpostwar periodFrance. France of for the true was the anti the country.It also a was the a to reexaminingput stop of the past was only not stabilize perceivedto the as a way presentingFrench societyfirmlyunified in strugglethe against Fascism.This attempt to new of past, thewhich vision French was downplaying ofand the scope collaboration the enforce to as well as past, the with break clear a make to a tool as serve to meant was afterwards soon declared amnesty general year.The same the of end the by acquired they amat was sentence Their citizenship. French remained covered. Historians wereremained of their Historians the in forefront dismantling. not covered. Third Republic of the downfall contributed to Consequently, which layers many recent past. side theof dark its dig to attempts into Francewas discouraging surprise gruesome a with telling crime whichconfronted Bordeaux tribunal in was was the trying 85 „Oradoursprozesses“, et Brupbacher alia (ed.), in: Oliver a stop to these venturesafter expiry the of its statute of limitation for murders in 1965, could put Federal Germany trial raised that the Republicthe of Frankfurt fears Auschwitz wave The France. in concerns Meidenbauer 2007), Second World War in France is described in Stanislav Sretenović, “Istoriografske debate i kontroverze u u kontroverze in: Srbija iItaliji”, (Jugoslavija)Francuskoj i 1945- debate “Istoriografske Sretenović, Stanislav in described is France in War World Second Empire Overseas An1996), account on themaintain attempts postwar to the colonies in Frederick Quinn

Martin Shipway, Shipway, Martin 275.

However, the ambiguous trends in prosecuting Nazi crimes in Germany raised Germanyraised crimesNazi in prosecuting trends in ambiguous However, the - fascist coalition and to boost its international stature, as the end of the Second of the Second end as the stature, international its and boost to coalition fascist –

in armed conflicts, struggling to maintain its colonial Empire in Indochina, colonial struggling Empire maintainits in conflicts, to armedin as out of 21 perpetrators available to French Justice, 14were of enjoyingout 21perpetrators Justice, French availableto Alsatians , (Westport : Praeger (Westport ,

TheWar: Road to France and Vietnam, 1944- 230- 246.

means of upholding the stature of France country as a victorious of

of trials ofof low , 2000), 219 2000), , , (Beograd : Institut za savre za Institut : 2005 , (Beograd 85 - 270. The struggle to wrestle with the legacy of the the of legacy the with wrestle to struggle The 270.

ter of public outrage, as well as the pardon well as publicoutrage, of ter - Legitimizing itself as a democratic state, ranking perpetratorsfrom Ulm the to case

Erinnern und Vergessen, 1947, (New York : Berghahn Books,

(München : Martin menuistoriju, 2006), , The French, 213

CEU eTD Collection in Frankreich’, in: Martin Sabrow et alia, alia, et Sabrow Martin in: in Frankreich’, International and ComparativeQuarterly Law and therefore therefore and 88 87 86 On scholar,Paxton. the other conductedangovernment, American Robert indicatively by documentary the with filmingtendencies of the in beginningof 1970s, boomed Indochinarole in and also about but Algeria, the hidden past of the mainland. about the French just not andquestions, posingexacerbating important the disaffection War. The profound revolt of its antiestablishment 1968with positioning Second World thewith legalfurtherencouragement dealing giventhe of to process was Algeria. Indochina and the French in military accusations about the of behavior the growing connection differentiation might thatthis beto pointedout humanity in Critics of 1968. FranceUN sign not internationalonwar did the agreement andagainst crimes regards humanity, against the to crimes regarding not war but On the crimes. other hand, Importantly,Tribunal Nuremberg. in the statute of limitationwas abandoned only in limitations in regardscrimes to against humanityas defined International by the Military the statute of abolished 1964 in Frenchand parliament the trial, Eichmann kidnapping to prevent the possibility of Nazi criminals avoiding justice altogether andalso incited by (Paris M Algerian French in War the historiansthe and’The Raphaelle Branche, state, France’ in war Algerian the of memory L Stiina in Algeria and Vichy the between connection the on More 268. l’humanit 174 op.cit, Jones, Harriet

On the see connection Etien HenryRousso, op.cit. 5. See

Martin Clausnitzer,Statute ’The ofLimitations forin the Murder Federal Republicof Germany’, : Autrement, 2002), 136 Still, Still, although that not have might beenchief the motivation of legislators, the é 87 ?’, in Jean in ?’,

Le chagrin etpitié la abandon the project of dealing with the Nazi past altogether. the with Nazi dealing of abandon project the - Paul Barbie, Jean,Denis Salas (dir), Touvier, Papon. Des procès pour la mémoire - 192. Raphaelle192. pendant ’La la Branche, guerred’Alg torture

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ç ois, um ’Die späte Debatte das Vichy , Journal of the History of the International Law , Zeitgeschichte als Streitgeschichte als Zeitgeschichte as well as with the historical research on the Vichy Vichy the on research historical the with as well as

29

(1980): 473- (1980): 479.

- Regime und den Algerienkrieg Algerienkrieg den und Regime öytömäki , (Münschen : Beck, 2003), emory, 1991 - , é

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Robert Paxton, ’The Trials ofHo Trials ’The Paxton, Robert . Alan Levy, Hunter. Nazi There was a way long be to crossed actual from to indictments trials.The studies odux or René or odux 1972) was an icebreaker a for number of dealing studies the with extent

a second generation of war crimes trials in France. in trials crimes war of generation a second

French postwar strongmen became a matter of close scrutiny, and and scrutiny, close of amatter became strongmen postwar French

The Wiesenthal file Wiesenthal The s of Jews from France. The slow pace of criminal investigations pace fromslow of ofs France. The Jews , Old Guard Vichy Old France, Paxton’s Robert elite. French the in locaust in Perpetrators France’, Smelser Ronald in (ed.),

Northwestern University Press 2002), 240- Press University Northwestern : (Evanston , Bousquet, postwar power broker, who was at the time who power was postwar Bousquet, broker, 90

By the end of the 1970s, there were seven indictments seven were there 1970s, the endBy of the , (London, Robinson : 2005), 298 -

Jean - Semitic dimension of crimes - Paul Jean,Denis Salas Paul , op.cit, 13. g new research, which which g research, new 300. In 1978 Kla 89

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Richard Bernstein, ‘Pap Richard J.Golsan, Vichy's Afterlife: History andCounterhistory in Postwar France :University (Lincoln Perhaps this was the reason why the accused on the first belated trial was a was trial belated first the on accused the why reason the was this Perhaps Verg Verg è s ’s ’s 91 è s

client, but succeeded in widening the public debate on those issues. In In issues. onthose publicdebate widening in the client, succeeded but The was question how and when would French its to own society react

was delighted to use the Barbie case in order to offer a counter a offer to order in case Barbie the use to delighted was -

New York Times May 191987, Times York New Authentic’, called Barbie on ers Klaus B Klaus

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è s . Leftist - term term 216 - CEU eTD Collection Salas (dir), Barbie, Touvier, Papon. Des procès pour la mémoire , Klaus Barbie, , 247- trial on legal Atrocities in: Heberer”, Patricia contexts’, didactic aspects of theLawrence trial in D war crimes were bringing results. bringing were crimes war that memoryasinvestigations bytheperpetrators beginningof onFrench the the 1990s of the awakeningfrom the long expe was France François president French involvement of then 95 93 however was He treason. for absentia in death to sentenced was he as known, well was case His and propaganda. of information Henriot, Vichy minister assassination of Phillipe seven in 1944in imprisonedJews June Rillieux execute to order the was crimes wartime his Among government. local the in Barbie the of member Frenchman tried for committing crimes agai humanity. nst publicity crazed rankingregime, of stand official trial, thehe Vichy was was about gunned to down by a Ren was being wasSince it but built, easy not a process. laun to ch telling subtitle ne passe pas passé qui Seuil, 1987

Cf.Jean Short overview by Richard J.Golsan, “Crimes J.Golsan, Richard by overview Short 94

Henry Rousso, Rousso, Henry Rousso’s 1987monographRousso’s of the same and title, the subsequent book thewith - Paul Jean, ‘Les reprochesPaul aRen Jean, crimes http://www.jewishvirtuallibrary.org/jsource/Holocaust/barbietrial.html#court Vichy : un passé qui qui passé un : Vichy Henry Rousso, Connan, ); Eric - riencing, in the in wordingriencing, Henry ofexplosion “anmemory”, ofRousso, seeker, it was to be a collaborator of lower rank to be the first first be therank lowera wasto collaborator beof it to seeker, ne passe pas

Française Lesyndrome de Vichy (1944- - dormant Vichy syndrome. Vichy syndrome. dormant

, the Vichy paramilitary force, actually served under under served actually force, paramilitary Vichy the , 94 ouglas, op.cit, 185

The thathistory consensus be to trial brought is to , (Paris : Fayard 1994) , revealed that the trials the are important “vectors”that of revealed - against é

Bousquet 1943, 1949, 1993’, in Jean - humanity trials in France and their historical and and historical their and France in trials humanity

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Cf. Alain Wijffels, Alain Cf. Nicola Gallerano, ‘History and the Public Use of History’, in Francois Bédarida, The Social Bédarida, Francois in History’, of Use the Public and ‘History Gallerano, Nicola In respect to expertise, French procedure, rooted in continentalin legal is rooted doctrine, French In procedure, respectexpertise, to 100

History in Court. Historical Expertise andMethods in a Forensic Context

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Elisabeth Bumiller, ‘A Historia Bumiller, Elisabeth è Its contemporary relevanceLaurence in ‘L’expertise Dumoulin, dans judiciare la construction du s

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Wijfells, op.cit, 286 op.cit, Wijfells, Henry Rousso, ‘French legal procedure and terms’, in Henry Henry in terms’, and procedure legal ‘French RulesRousso, examined are of procedure in Henry The Haunting Past Broader were of thewho historians exposés testified about the generalin context - - papon/index02.php 292, Their testimonies are testimonies Their 292, , which was procedurally not desirable. not was procedurally which , , (Pennsylvania: University of Pennsylvania Press, 2002), 87 2002), Press, Pennsylvania of University (Pennsylvania: , “ As a historian, I've sinceadministration 1960. the Vichy As a studied historian, , 2vols, Paris Albin Michels, 1998. Parts of transcripts and other case . 107

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oath when an was ended ended was - 223 CEU eTD Collection Golsan victims and their relatives. thewith decision d’Etat by Conseil the 110 one French calls France's sociologist shifting ''extraordinary its masochism''over view of what in media, French the through participants, active become have colleagues his and ''sensitize to historian is about the publicopinion complexityEither ofway, the past.'' he the of the role In view, his the past. from be learned thatcould lessons about the dubious Likefor said. my position,'' added Mr. many Rousso Mr.historians, Rousso thathe was testify''Ito declined.knowledge but be to used, atfor thenot Papontrial refused my whose own work byMr. Rousso onVichy was was influenced Mr. Paxton. asked deeply prominent historians, ofby France'smost oneThe held Rousso, Henry is same view had beenI asked,haveI declined. would really it's think the don't function of historians asknow asanyone little else. They gone not have through man. If this theI records of the historians being, testify trying human after one all, hand,about which case atis, the background,But probably O.K. ofyou the the members juryIfwant read. people can to about the a lecture the is historians from wants allone ''If book. Paxton's ofedition Mr. Hoffmann, Harvard the said Stanley feelings,'' mixed ''I very have do well.'' didn't person well, that person did understand the make past, to the pastyou intelligible. But judge certainly do -- innocence of an w individual the for experience this

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224 this but but .'' CEU eTD Collection Touvier, Papon. 1998. Reflections1998. of participants observers collected in are and French JusticeFrench HenryRousso, ‘L’expertise des historiens’, Jean in (Paris being thrown in the same boat willy same being thrown the in where therhetoricgets thewith accusers the upper accusedand hand onargumentation, relations between historyand law. “In analysis, the final a judicialhistory a is history and aTouvier Papontrial. H both witnessin double serveas refusal to debate. a thorough organize to was importance theset he venture, awarethe results, of but of condemn.” which seeks understand to rather thanjudge to and lessto even absolve or to clearly legitimate, but in my opinion, theseends have little to do with scientific method, of historians. theminstrumentalization The court summons myin there. stops the comparison The opinion, primary from the riskcomes seektaken likethe detectives“conduct inquiriesand partthe just truth those as in they... said. ''WeMr. Rousso are part of the scene now.'” compl scholars only are not ''We II. War World itself in 113 112 111 Touvier Paul the in 1994 byplaintiffs testifyin askedbeen to already claimed:had “I trials”. “show these of image bizarre less the not was truth see raising historians right their hand, and swear they say will the all truth onlytruth, the explain at to the bar came professionals who the first time, a court based its verdict on a still elaborated historical expertise, given

Henry Rousso, Henry Rousso, Henry York New Present’,The to Past from Leap his Defends ‘A Historian Bumiller, Elisabeth

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Henry Rousso, Henry Henry 114 This activityThis aimpact onthe profound understanding had of the role of historians Rousso, op.cit, 58-

Le memoir et l’histoire, et ronde, memoir Le Table

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: 226 CEU eTD Collection sensitive and comparatively oriented approach to the topic, whose importance was was whose importance the to topic, approach comparativelyoriented sensitive and their own way, and efforts Rousso’s Dumoulin’s contributed the to diachronically in Each States. United the of characteristic practice legal adversarial the by influenced be which to heavil hecontext, found legalFrench deficiencies contemporary of the foll was France in trials crimes war the regarding essays of collection Jeanneney’s precision.” and calmness veryconcrete: historianhashimself express to the in unfavorable conditions towards both replacement, specific function of the historian Papon case. Papon commented critically Dumoulin theof in the role expert onthe change of historians pers historians was widely reflecting on the issue of historical expertise in a longer historical Del’historien. chaire la aupretoire2003.This in critical account publicrole of the system: “This confusion betw French legal greatest from derived the confusion the noted promptlyrecent cases,he le ledans juge pretoire. etjournaliste L’historien, la 117 116 ofexperts a singular breed, wereHistorians. Strange summoned: witnesses defense wouldhavethe tribunal into made of History, witnesses of a particulargenre, expertise one century “In later. which frontcivilianparties Tribunal, of and this the the in DreyfustheFrance ful of the authentification documents mere case from to processes in their legal courtroom involvementin role was ofthe in historians tracking

Le rôle social de l’historien de social rôle Le Dumoulin, Olivier Jean pective - Nöel Jeanneney, 13 op.cit,

in the French context. His His context. thein French 117 un faire

Dissatisfied with the outcomes,he also connected shift this to the owed by a detailed Olivier research in Dumoulin’s - valor , a warning? And is justice aware of it?” of aware justice is And a warning? , - 16.

een witnessing and the expertise has other consequences, consequences, other has expertise the and witnessing een

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indeed” l - blown 227 y CEU eTD Collection by the nationalist armed factions. omnes of omnicontra war civil brutal a groups, to amounting ethnicwarfare between Yugoslav conflicts between the communist and noncommunist resistance, as well as the atrociou groups settingThis the in country.was further complicated Yugoslavia in by open London, vested continuationof in the struggle supporting and the fragmented resistance regimes on its former territory.France, As in government the exile was in installed in Dismembered gave it as France, only not birth theto one several but weeks,outnumbered differences. weakened internal militarilyand both through its of a in powers matter Axis of attack the the alsoto succumbed Like France, Yugoslavia different, the tendenciesregarding dealingwith the past bore some striking similarities. perspective. comparative a Therefore,in witnessing the best widerunderstood is and it European belongstrend. to expert historical theof in history event an isolated means no contradictions, by is which history, law, memoryFrench meet. and However, politics allits experience, with witnessing in France was filled with tensions and twists which cut deep into the realm in expert historical of century A criticism. their of vehemence very the by underscored

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Archives of Yugoslavia,komisija Državna zautvrđivanje zločina okupatora njihovihi pomagača . (State Overview of historiographical historiographical of Overview 118 By the end of 1944, the partisanendBy of Movem 1944,the the

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Seminal reading on this issue: Ivo Banac, With Stalin Banac, against Ivo Tito : Cominformist issue: this on splitsYugoslav in reading Seminal Suchfindings were duly confirmed in December 1945by the StateCommission for Doc In events of spite surrounding thatchange, the theWar end of the Second World

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CEU eTD Collection jugoslovenskih zemalja (Beograd, : genocida, Muzej 2005), 77 Nikolić, Nikolić, near to the official numbers. official the to near itsbut results were embargoed named as the 597.323persons, list which was eve not 1941- of war victims “The census collaborationists. This i and picked upby the beginningof by the sixties Federal the which Government, initiated 1950 the creation of the of list the victims of war. However, discontinued, their task was launched veterans war (SUBNOR) in the Organization of prevento speculations, such t 125 124 - Ustasha the of and particularly uglyover the and nature ofthe debateover in scope thevictims number ownhi formulating his on set was Tuđmanembittered, marginalized and Squeezedof jail. out publiclife, in months which nine brought him Yugoslavia, initiatives his were the stopped with crushing of thatmovement1971, in cultural andwithin politicalCroatia initiatives of towards the great independence er needed. was numbers ofurgent the revision an that argued Tuđman Serbs. predominantly million, a almost reach to some by claimed camp, particularly targetingconcentration number the victims of of the Jasenovac was He period. postwar the in inflated artificially were terror fascist Croatian the thewhose with arguments him of numbers for thatthe provided mainthesis victims his Croatia, had agenda. political In an he elaborate 1965 of Movement Workers the for Institute the of head the Tuđman, Franjo General like did, n 1964 a census of the victims, excluding though the citizens ofn 1964aexcluding theYugoslavia censusthough citizens who died of as the victims,

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(Beograd : Institut za savremenu istoriju 2003), 279- 124

- 5“ iz 1964“., in: Genocid u20.veku na prostorima 125

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acquired a draft of the census, census, the of a draft acquired 1945” was completed in 1966, 1966, in completed was 1945” 318.

, 73Cf. Kosta 232 n CEU eTD Collection Ru and maintained close personal contact with Sartre and Russell. and Sartre with contact personal close maintained and the R creation of the in engaged much was He promoter. rights and human from the Party andmoved to theestablished West. He himselfa as historian inUSA the was official Tito’s biographer Vladimir Dedijer, fell from grace who 1954,was in purged comingfrom other quarters andwith differentambitions as well. itsOne c of abroad. literature the in debate the influenced account his War, but of the Second World ofdenying 1.700.000victims number official the for more once jailed was Tuđman Franjo 1981, February as early As instrumentalization. preventing the structuring of this sensitive debate andgiving elements for its effectively was which repression, of waves and outbursts nationalistic unpred ictable years insecurity, of liberalizations in public life were intertwined occasionalwith both enter to not the public field until the death of BrozJosip Tito 1980.In in the following were claims These wouldnotvictims exceed ethnicities. 30,000of victims of different 126 uncover scopeThere the diminished of WWII were atrocities. Church 20 in the role Catholic of idée thehis fixe, was the issuewhich to closer topic brought it last 1973 tribunal in Russell investigatedThe Latin rights of breaches America. human in the policies of conquistadores the Spanish America. Southern and in The Central Second America, of States United the in Americans Native of fate the Germany, in repression moving from the Vietnam war and time in both space, raising the issue Tribunal was 1967, fallingin Dedijer apart attempted open to upa plethora of new topics,

ssel, Jean Milo Gligorijević, Gligorijević, Milo This retackling of the issue of war casualties and the nature of genocide was was genocide of nature the and casualties war of issue the of retackling This - Paul Sartre, Das Vietnam Tribunal oder America von Gericht th

centuryatrocities. Bringing this interest back home, Dedijer now strived to Rat i mir Vladimira Dedijera imir Vladimira Rat

, (Beograd Narodna knjiga 1985), 115-

, (Rowohlt : Hamburg 1968)

also proactive efforts to 126

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Bertrand Bertrand hampions hampions of police 233

CEU eTD Collection the Paper Yugoslavdelive Space?”, on aconferencered reception of on the 2006. Paris ICTY, committed by Serbian nationalist Chetniks against Muslim civilians in Eastern Bosnia. Henationalist. was equally interested open in discuss was thatof not motivation a Serbian fascist regime, Ustasha his ChurchCatholic and the literature. AlthoughDedijer wasattempting to prove intimate the connection of the end, he forcefully the term ‘genocide’ reintroduced a in the transcripts from the immediate postwar trialsor by organizing a nation discourage the War Secondbyendalternative narratives World of of the therepublishing 129 128 127 the in again as tribunal,front but of the in history periodentire of anopportunity bring to an was case Artuković the France, in case Barbie the with As administration. Reagan’s immediate influe difficultdiscover to is case, the it 1988.As an in French and he diedprisonin in Zagreb 1986and in condemned death. to The was verdict carried not old due his to age, Andrija Artukovi tha Yugoslavia in outbursts the to comparable Barbie trial is archbishopof its the Church Catholic Alojzije Stepinacgenocide. and for desir the or UN, the of General Secretary Waldheim, Therewere other initiatives, such as attempts the to claim the responsibilityKurt of 1984. August on genocidein sources Board collect to and a formed Sciences Belgrade.Lastly, following Vladimir Dedijer’s initiative, the Serbian Academy of Arts Institute coordinated bytheon wartime repression,

On Waldheim see affair 274 op.cit, Gligorijević, Milo Bougarel Xavier in is detailed initative This In confusion, of the this avalanche the midst started France in that the with Klaus nce from the USA, besides the extradition of Artuković at the time of of time the at Artuković of extradition the besides USA, the from nce ć, Minister of Interior in the Pavelić government, who was tried in in tried was who government, Pavelić the in Interior of Minister ć, Alan Levy, - 9

Nazi Hunter (London : Hunter RobinsonNazi 2005), 407 “When and How Did the Term Genocide Enter Genocide Term the Did How and “When e to reemphasize the responsibility thereemphasize responsibility e to

ion ofion the scope of atrocities for Historyin Contemporary

public sphere and scholarly t followed the extradition of extradition the followed t - 520. 129

- wide project

127

To that 234 128

CEU eTD Collection ć, op.cit,Nikoli 279 60 godina odzavršetka Drugog svjetskog rata – Stanojević, Kuljić, “Revised History and and History “Revised Kuljić, (2005): 63- for Serbian goals. nationalist F and utilized was of swayed Academy Board and Dedijer’s 1990, in President of Croatia over the number of of war victims became leading – figures acontin as presenting stateas was wella in war, dismantlingviolent the opposing which sideswere frequently preparation ofnew inflicting ones. As thenarrative Communist was falling apart, the dangerous ground. Barbi 132 131 130 War.Second World was set for official or unofficial rehabilitations of the anticommunist leaders of the camp the Jasenovac. in concentration killed the number debateabout wasgruesome the satisfied nobody.Particularly War victims contemporary which was shifting attention from the mid the publicstabilizing memory of thatperiod,yet Yugoslavia collapsed another into war, the memory over the in order dead tolegitimize the policies of confrontation. maintain to and theof fight the debate takeover nationalistic was the to eroding, leading Europe after Socialism godina odzavršetka Drugog svjetskog

For exampleFor see Tea Sindbaek, «Masakri i genocid počinjeni u Drugom svjetskom ratu i ponovno otkrivanje žrtava», u: u: žrtava», otkrivanje ponovno i ratu svjetskom Drugom u počinjeni genocid i «Masakri Sindbaek, Tea Such in described are trends Ulf Brunnbauer (ed.), e case, without the presence of historians. However, the out presence historians. e the of case, without Eve 86. zije Stepinac: Zločinac ili svetac? ili Zločinac Stepinac: zije Aloj ntually, instead of opening up new cases from the War Secondand World ntually, of casesfrom opening upnew instead

Srđan Milošević, „O jednoj desnoj reviziji pogleda na antifašističku borbu u Srbiji“, u: Srbiji“, u borbu antifašističku na pogleda reviziji desnoj jednoj „O Milošević, Srđan

ones. Sobering attempts to establish the actual number of Second World Second the actualWorld of establish number to attempts ones. Sobering - i 292, 304- ntroduction in the reprint of the transcripts of the Stepinac trial by Branimir by trial of the Stepinac the transcripts of in the reprint ntroduction , (Münster : Lit Verlag 2004). For revisionism in former Yugoslavia see Yugoslavia former in revisionism For 2004). Verlag Lit : (Münster , 132 Old wounds were a in opened reckless way the means as for

uation of the Second Worlduation War. Many the in fight a champion

316. New Identity Journal Eastern in Europe”, for Politics, Gender andCu lture,.4

urthermore, instead of retrials or belated trials, the scene scene the trials, belated or retrials of instead urthermore, rata –

kako se sjećati 1945.godine

kako se sjećati1945.godinesekako , (Beograd : Nova knjiga, 1986), 9- - 20

(Re)writing History. Historiography in Southeast 131 th

century casualties and war crimes to to crimes war and casualties century These initiatives fertile, fell on if , Sarajevo 2006, 37 - , Sara , Tuđman was elected elected was Tuđman - jevo 2006, 63- of 76. - courtroom debate debate courtroom

130 54.

73; Kosta Kosta

Todor 235 60 CEU eTD Collection lity.” Detailed in tapings“Hiroshima asmora Detailed lity.” a of floor to an expert opinion of philosopher Svetozar Stojanović,who as a professor of ethnics labeled secret basisof conversation.secretly presidingtaped The Radulović, Judge Ilija hadgiving set free, Ivković the 1997), Case1997), in célèbre was this Ivkovi respect dr of More in More disinclined expose to theirwork such to form scrutinythe to of due pressurewas theexperiencing. craft dictated the field of their expertise and was likely to hand to likely was and expertise their of field the dictated recommended were experts bythe parties, exclusively summoned by judge, the who amende code, criminal German the after created basically was setting legal whose Yugoslavia, socialist of jurisprudence the were fromin rarely socialdeployed sciences Yugoslav courts. Experts of capacity the in made he statements the for tried was Tuđman Franjo and judge, a of role the in historian of sort past, albeit indirectly. Vladimir Dedijer served a as president Russell’s of Tribunal, a as

134 133 commander of the Jasenovac tracked concentration camp, by downArgentina in Efraim Šakić Dinko of extradition the followingCroatia from came impetus direct first second was so half the ofengagementof the the in legal 1990s, historians processes. The Mitr Andrej historians, leading Yugoslav judge, was one ofexplicit orthe an attorney”, a prosecutor, a supposedbe not to is and interests. not, simply, “To is historians it put the field keeping of of was legal athemout distance theoryas of strictadherence towards rare. were Exceptions experts.

DetailsSnežana in Soković, Andrej Mitrović, Mitrović, Andrej ović.

Đorđe Stanković,Ljubodrag Dimić, During socialism, Yugoslav histo However, as the topic of the crimes of the Second World War was reopened in the in reopened War wasWorld Second ofthe the crimes of theHowever, topic as 134

Propitivanje Klio Propitivanje III.2.4 Historical Expertise inthe formerYugoslavia d in accordance in model.Although thewith Soviet theyd could be

a historical historian,but expertisewas demanded not by the Veštačenje

133 , (Beograd : Vojska 1996), 118.

Historians were particularly not prospective witnesses, . (Kragujevac: Pravni fakultet, fakultet, kao dokaz u Pravni krivičnom postupku (Kragujevac: . Istoriografija podnadzorom rians were engaged in the legal dealing with the the with dealing legal the in engaged were rians Hereticus ć, whowasfordefamingaccused ć, the regim

3 - 4 (2007),4 260-

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pick from the list of from sworn the list pick (Beograd : Službeni list, 1996) 2.

e on the the on e , wartime 236

CEU eTD Collection Office at Čerkez the debates over historians at available 20 year prison verdict of Šakić, who died in Zagreb prison. Zagreb in died who Šakić, of verdict prison year 20 the to contributed appearance whose scientists, social or historians were Glavina) Frane and Žerjavić Vladimir Kolenović, Josip Smreka, Jelka Goldstein, (Ivo Five forward. which began Zagreb in was a massive event which in more than 40witnesses stepped Zuroff Wiesenthal of the Simon Centre, and over handed Croatia to 1998.The in trial 137 136 135 involvement their resistance indeeda towards huge thesewas and there in investigations, the war country thathad torn that apart. Yugoslavia Serbia order in prosecute to onthe crimes war committed territory of the former in created (WCPO) Republic of Office Prosecutor’s Crimes War Special the was 2003 vic twist. Duringthe war the informer Yugoslavia,general the atmosphere impunity of and anticommunist vehement a strangely with well, as Serbia in warfare recent with coupled International for Tribunal the former Yugoslavia. Criminal the frontabroad regionin of andthe from both furthered of bythe historians appearances that itis not historians’ job to adjudicate the past. Similarly strong sentiments were Argume time. the at Croatia of president was still who Tuđman, Franjo the findingswas and clearlyof at with odds theirrecent interpretation history, Croatian in issues sensitive most the of one tackling were giving were they accounts the as debate Janković (ed.), (ed.), Janković

Historical expert testimonies regarding Croatia and wars in former Yugoslavia deployed in Kordić deployed and Yugoslavia former wars in and Croatia regarding testimonies expert Historical Material and detailed documentation on Trial of Dinko Sakic, http://public.carnet.hr/sakic/ Clipping on on Clipping http://public.carnet.hr/sakic/ Sakic, ofDinko Trial on documentation detailed and Material Mandate and infromation on the jurisdiction, legal basis and activity of the War Crimes Prosecutor’s Crimes War the activity of jurisdiction, the legaland basis and on infromation Mandate timhood was inhibiting legal system and dividing the historical community. Only in Only in community. was inhibitingthetimhood andhistorical system dividing legal

case are available are andcase “ICTY in Belated legal interest for the atrocious aspects of the Second World War was was War World Second the of aspects atrocious the for interest legal Belated http://www. . In the first years the WCPO was largely focused on the cases deriving from from deriving cases the on focused largely was WCPO years the first the In . Office of the War Crimes Prosecutor 2003- tuzilastvorz.org.rs/html_trz/index_eng.htm

http://public.carnet.hr/sakic/hinanews/arhiva/9905.html

the Historians”, Časopis theza Historians”, suvremenu povijest 137

Historians were likelyof not much help be to 2008, (TRZ : Belgrade, 2008)

oe n rn Vkrć Jsa Šarčević- Jasna Vekarić, Bruno in More 136

135

Their expertise cau expertise Their , 36, (2004).

nts were raised raised were nts

sed a sed 237 CEU eTD Collection Beograd, 2002 rb l rhbltvt žte oiikh progona političkih žrtve rehabilitovati li Radija Slobodna Evropa, Treba u: istorije sećanja», Tokovi kultura medijska «Srpska Stanković, Đorđe of rehabilitation: possibility the on historians kao izazov pravu ldmr oiei, Rhbltcj, vm uro“ n eeiu 1 20) 251 (2007): 1 Hereticus in uprkos“ svemu „Rehabilitacija, Vodinelić, Vladimir krajem veka XX how, grew sterile. debates confront, to breaches the onwhich remainedand elusive, frompast and the past to took its toll on humanitarian sensibilities, the issues of atrocities became hostages of day has quite a Serbia that clear became it regime, Milošević the of collapse the After 1990s. the during debate public enraged of amatter became which aspects, atrocious its on particularly Yugoslavia. systematic research in regards to the crimes committed during the violent diss Hague Tribunal. Atthe same conduct local not time, did historians neither thorough nor exactly the to abundant due and controversial usage testimony expert of historical The in http://www.danas.co.yu/20060218/vikend3.html http://www.parlament.sr.gov.yu/content/lat/akta/akta_detalji.asp?Id=331&t=Z# 139 138 legislation make to the was possible annulment supposed of the judgments which were rehabilitating weregiven who persons not a propertrial from 1941onwards. controversial the was denationalization, only acourse and legal actual response of lustration accusing and rehabilitating, and the legal system did not react.In Srđan Cvetković, Rehabilitacija, -

Todor Kuljić, Kuljić, See critical comments in Todor daypolitics. The possibility maintaining of ayardstick universal towards human righ Zakon o r o Zakon Theresearch saidonthe same forWar, Second couldbe World the not de facto was historiography as greater, ever becoming was cleavage This

number of untackled bad confront. paststo However, as experience wartime ). ). , 1

, (Helsinški odbor za ljudska prava u Srbiji : Beograd 2002); Vladimir Vodinelić,

( - Rehabilitation of Law Srpska strana pravnog 2/2006, 265- ehabilitaciji, Law of Rehabilitation, Narodna skupština Republike Srbije, Srbije, Republike skupština Narodna Law of Rehabilitation, ehabilitaciji, 138

284. Th Hereticus

attds f itras ia S.rtć n Bak Pp in Prpa Branka and St.Protić Milan historians of attitudes e savladavanja Prevladavanje prošlosti. Uzroci i pravci promen istorije slike e

1 (2009): 212- ,

from April 2006,opening possibility a of (12.12.2006)

prošlosti 225.

), (Centar pravnih), : unapređenje studija za Overview of the rehabilitated persons in in persons rehabilitated Overview ofthe

Criticaly c Criticaly stead of pursuingstead of the - 271.

Early reactions of ommented in olution ofolution Prošlost Prošlost 139

both both This This Most Most 238 ts ts - ,

CEU eTD Collection leader 7 onJuly District Court to rehabilitate two gendarmesgunned down by a Communist resistance of the supporttheŠabac to decision wrote opinion expert Contemporary an History Nikol ThereforeJanuary2009Kosta in responsibilities. burden of sharethis orderto in engagejudges historians to motivated some of the inconsistencies Such never rendered. were or benot found their could judgments as rehabilitated, been couldhave not persons notablyinnocent some hand, On the other individuals were rehabilitated, due to the fact that there were shortcomings in their trials. legion, and they a constituted very base broad rehabilitation. of Some for clearly guilty proces the in faults Procedural appeared. uneasiness cases, these generally calling for However, historians. attention of the aspublicwas the diverted to asthe basesthe law ups faults, ofwas procedural opening Interior, Justice and Ministry and judgments usually the of secret services, on the nullify emerging cases.would routinely They theask documents for from the Ministry of of regular The cour petitions. judges avalanche rehabilitation of and the in absence of a publicor professional debate.Its first actual consequence was an shortlaw ofthis which unclear, very but was promulgated abruptly application, broad andpolitical ideological reasons starting 1941.Quite serious problems from To thatend,providedrehabilitatingtheirfor unjust. it rights for of deprived persons Serbia. in Its indirectdelegitimization through this rehabilitation triggered a debate 2003 celebrated was event controversy, until theas Resistance as this the Day official of This policy of rehabilitation without touching upon the merits of the case was not was not case touchingthe meritsof without the policyThis upon rehabilitation of th

owever added fuel to the the to fuel added historianhowever the 1941. The of inclusion ić from the Belgrade Institute of Institute Belgrade the from ić uch possibility. ts were pressured by the the by pressured were ts ses led from 1941 were 1941were from led ses

derived from 239 CEU eTD Collection nauka i politički sudovi”, sudovi”, politički i nauka date appropriate for appropriate date celebration of in Day the Resistance, futile ended of discussionswithout result. new the about with historians consultations wide launched Policy Social and Labour of Ministry Serbian between historians. between http://www.tuzilastvorz.org.rs/html_trz/PREDMETI_ENG.htm 141 pomirenje 140 Iremained thein WCPO, as an theBeing wrongdoers opencouldbe intern not identified. hist investigativecase an No moved into stage. was members of Royalist the Chetnik group, a surprise cameas for the prosecutors,and the Germans. by the shot apparently curatormuseum Serbia,a who found central in by Topola a the petition started with well. Suchinterest War as Secondfrom World the as anlight thatmight institution oncases help shed WCPO many the regarded people committ were they where and when prosecution onthe committed territory of war crimes regardless of formerof Yugoslavia crimes fromjurisdiction the its 1990s, was defined broader, as so encompass to Prosecut Crimes War Serbian the the activityof historical expertise,through avenue another ground of events for laidthe demands Serbia. War in the of complex World dealing thewith Second absence archival material,likely enough of is prove appropriate to it not sensitive suit to the case, in In any culture memory. of new a creation of the accusations of provoketo be to both utilized by different likely is actors it or individual, on politicalthe sceneand political spectrum. As the process of rehabilitation can be initiated by anyinterested party sidesof the all rehabilitated from getting is andpeople encompassing persons longer

Kosta Nikolić, “Uloga seoskog vašara u srpskoj istoriji”. istoriji”. srpskoj u vašara seoskog “Uloga Nikolić, Kosta War CrimesWar Prosecutor’s- Cases, Office, Pre

- In contrast to this project of dealing with the past ‘from above’, a curious set of set of a ‘from curious theabove’, with past ofIn dealing project contrast this to na - ex - yu - prostorima/istorijska 140

The debate is likely to be furt be to likely debateis The Nova srpska politi

141 or’s Office. Although set upprimarily deal to war with - nauka

Upon exhumation, the identity who were victims, of ed. In c ed. the - i k misao čka - politicki - haotic context ofhaotic post context sudovi.html , 20.04.2009 , 08.01.2009; Đorđe Stanković,08.01.2009;Đorđe“Istorijska , NIN

grave with remains of six people of six remains gravewith orians were consulted and the case case the and consulted were orians

hered over the year, as the list of list the as year, the over hered . Indeed, as Indeed, early. as February 2009, Trial Stage, Oplenac,Trial http://217.26.213.177/istina - Milošević Serbia Milošević

240 - i - CEU eTD Collection the implicit theoryof incompatibility, but contributeI to could resistance which the noting suchin cases, wasinterested naturally 143 142 could helpthe put case adequate in and the in pattern context of could events make which elements other ofcase, but many which regarding the material the of just possession not who Cvetković, Srđan Institute, the at widelypublished onthe repression Serbia in 1944- colleagues close my of one of subject key a was case Tomić the However, done. be can much evidence not the of the state mind in having crime, awar be to seems case the although that told was and Office, Prosecutor’s Ithe investigators. the with enquired contactedand wasanswergot by a positive Office, Prosecutor’s Crimes War the to aletter wrote he that Institute my at colleague the I response.grew my remaining a hearwithout plausible Then,from astonishment, to to returned Yu to Tomić Serbia. County, Zaječar Boljevac, in grave mass the at buried and shot supposedly 1945, afterand Dušan was from arrest.father father’s His disappearedprison, his came D know to of and 1990s, due the to are likely not be to pursued, for both practical of keeping reasons onthe thecrimes focus cases such that me told well as he However, patterns. criminal similar by many preceded w was and history in a interest keen BogdanProsecutor Deputy Stankovi from onlyfeedback the got some positive I In conversations unofficial crimes. and recent more theurgent recent losing from focus

Pretrial Exp Pretrial Interviewwith Prosecutor Bogdan Stanković, Užice, June 18, 2008. At the same time, through my work in the Institute for Contemporary History, I Institute for History, Contemporary the in At the same work through my time, ertreport byCvetković forTomić Srđan in the case Crimes Serbian War Prosecutor’s Office goslavia in 2000, asking repeatedly for justice in many instances but instances but many in forrepeatedly justice 2000,asking in goslavia r Dobrivoje Tomić, an elderly dentist who emigrated from Yugoslavia in in Yugoslavia from emigrated who dentist elderly an Tomić, Dobrivoje r

notion thathistorynotion judgment. already its rendered has

ell aware of the fact that the recent bloodshed was was bloodshed recent the that fact the of aware ell

also to the understandable necessity of not of not necessity the understandable also to 1953.

143

I thathe knew was in 142 ć,

who had who had 241

CEU eTD Collection and submitted it to the containing materials regarding historical expert witnessing in comparative perspective, informed choices complex participants for venture. this in the I a prepared portfolio contribute theto rstood thatnowthe time is to I making unde of witnesses. expert as serve the theory incompatibility of togradualthe reception of idea the that historians might intern and WCPO, in was the in position to both witness and participate thefrom in shift the same timeresearcher a inInstituthe beingat interactions disciplines, complex of the of process the opportunity observethe to wish. encountered both by legal systems and community of practitioners. Thecommunity overall andof systems practitioners. encountered bylegal both challenges the particularly and trials, crimes war in expertise historical of experience testimony fo made expert an Jakovina which Tvrtko in Ašner Milivoj case of the well as testified, as historians of group a and tried was Šakić Dinko which in Croatia, in experiences recent would probably of the the to exhumation lead was gratefullyreceived has advanced and the case, which not is likely get to court, to but Cvetković by in brought evidence The meeting. a up set I and case the on information I aem historianwho that has know therelating prosecutor and th to the investigator, I to agenda, this talked possibility. With a avenue is such at leastan without hinting that accompanying the practice. Still, it seemed to me quite illegitimate to simply shy away Iawa more witnessing, was than topic of historical expert this a case. crime awar this

However, meeting,I afteraofsearching. this I soul unique bit a did had r the prosecution. I ther articles the enumerated American prosecution. onGerman and

The dilemma I was in was rather obvious. As a researcher of the I rathera researcher was the in dilemmaAs was obvious. of The WCPO, as well as to fellow historians. In this I included also theI also In included this historians. fellow as well as to WCPO, te for Contemporary History in Belgradeand Contemporary Historyin te for

gravesite, which was Dr Tomić’s initial Tomić’s Dr was which gravesite, re of the controversies re the of 242 CEU eTD Collection sustainable sustainable needs eitherWCPO to discontinue efforts direction this altogether in or create to a the cases, the of nature sensitive the and judiciary Serbian of specificities continental th was recommendation http://www.tuzilastvorz.org.rs/html_trz/PREDMETI 146 145 144 Serbiain and he was be to stripped ofcitizenship. his Koljaninwas engaged onthatcase that an Americancitizen Peter Egner is identifiedas a person who committed war crimes broke news the week, same the in Virtually case. the with acquainted was he as Office, researcher. biased War,Second Koljanin World had labeled shown outstanding as sensibilitya not and was of atrocities of the field worked the in who historians of eKoljanin. Unlik the majority Milan colleague,I Dr another proposed heated topic, verya impartial historianon find an to Inan Ašner Austria. attempt of from Milivoj a extradition for request the Independent State expertiseonthe offer credible could who appropriate historian recommend an to called Iwas has Neither happened. approach. the institutionalized to integrated boost theywill either d History their Prosecutor’s Crimes cooperation.formalizing and Office, War tha from witness,suchexpert the responsibilityto institution the be field. should assigned To the individual engaging rather than the German model,that relyingalso on proposed,

War Crimes Prosecutor’s Office, Cases, Pre Cases, Office, Prosecutor’s Crimes War TRZS, Upitnik povodom dokaznogmaterijala, July 09, 2008; ISI, VladimirIzveštaj Petrović, o istorijskimveštačenjima ratneTužilaštvuza July zločine, 2008. 7, t end, an exchange of letters of intents was made by the Institute of Contemporary madewas bythe lettersexchange end, oft anof intents When in a in When coupleI of days received I a from phone the call WCPO, that assumed and compellinglong iscontinue the ‘belated’ cases in light of such controversies or givea or lightcontroversies cases in of the such ‘belated’ iscontinue

146 of Croatia in the Second World War, as the Prosecution decided to file file decided Prosecution to War, as the World the in Second of Croatia

I and him, he promptly phoned touchthe in with got Prosecutor’s at, having the controversial mind in nature historical expertise, of

- term strategy maintaining of ayardstick. universal - Trial Stage, Egner,Trial Peter Milivoje Ašner Šandor Kepiro, _ENG.htm

Predlog osaradnji, July 10, 2008. 145

144

243

I CEU eTD Collection the pretrial stage, without anyguaranties could he that playa role in the trial as well. in a contract on expert the a put to possibility The has prosecution list. person the outside came of from sworn the list witnesses, although the judge can assignan or institution a concernedanother is usually Expertise narrowexperts with opinion. expert and matters, theIn the expert, j case right sidescontest limited propose to the theirs. code theand judgeexperts the lawsopposing and choosing procedures, sideshaving is penal earlier the in As experts. select to capacity full the has who judge the of hands the Law Procedure. onCriminal Law Theputting 2001is existing from the investigation i dependant inter question, open alia an remains witnesses blown expert realm of my study. Itrials, and grew the tremendous realize to impact of volatilitycontingency andthe in those in experts as would be suggested historians forward and pushed those wouldbe T and expected, actually Ašner, of Képíró Milivoj andextradition Egner Sándor Peter 2009the take not still did beginningof integralcases.By approach the WCPO the to Incommunityengaged. became atte restless. of allthis Professional light the historians and prosecution the activityof the to as cases, as well those was to drawn immediately,ashis narrower this was topic. the At same time, substantialpublic attention 147 greater roleat the investigation, expense in of the investigativeare judge, they be to in play to As prosecutorsare supposed choosing experts. say stronger in giving a the parties by experts, the of introduce choice prosecutorial investigation, the and wouldaffect Law would the the in 2006 proposal Procedure of onCriminal The changes introduced

Zakonik o krivičnom postupku iz 2001. (Law on Criminal Procedure 2001) In that respect, whether historians would appear in Serbian courtroom as fullcourtroom Serbian in wouldappear historians In thatrespect, whether

omić and Oplenac are in a standstill. Still, in the near future, future, near the in Still, standstill. a in are Oplenac and omić

is still awaited, but not

udge would order wouldorder udge on changes in the the changes in on ntion, the ntion, 244 147 n -

CEU eTD Collection Vekarićet alia, Public their defense in criminal proceedings in South East Europe Ross, Ricarda Stefanie in Serbia“, Studies: Law „Country Škulić, Milan poređenju sa Zakonikomik, 2007), oglasn 10, krivičnom 24. See also postupku Službeni : iz 2001 (Beograd , still stuck in a parliamentary quagmire. Law are the in changes the as seen, be to remains witnessing expert historical influence affecting andFrench German the both penal codes as well. How this will setting influence and of of theinternationalization criminal adversarialisation law, notedbe to respective callings.years Only later did historians come to established a natural affinity and between understood howhistorians courts their closer theOne with experts. contact 148 then the because partly least regard only not lawyers’ because were the documents those most hardlyexpertise is American “Historians invention. an followed the lawyers’ lead in this through historical addressing and its German particularity, a bynomeans pass is a more adversarial outlook. In neutral position. are nonadversarial contrast,jurisdictions towards continental striving accusatorial jurisdictions therea call to is reform expert witnessing towards more a dissatisfaction the with currentIn practice. the USAand other countr emerged, which could leading lead proposals to a to certain procedural caused by closure, Continental law faced similar challenges. Alongside its diffusion, powerfulcriticism which from experts abroad could be contracted.

Milan Bajović, Škulic,Vanja Although in manyways different, historicalexpert witnessing in C Relations in prosecutors Offices (Belgrade : SINRJS, 2007), 24- Novine i izmene zakonika o krivičnom postupku iz 2006. godine u In the light of these developments,e th past which not will

- prevalent of conception the ‘historian as neutral judge’

of the greatest novelties was setting the conditions in

*** 148

(Bucharest : KAS 2008), 287 -

These changes come as a recognized a recognized as come changes These The rights of suspects/accused and

realize how the evidentiary evidentiary the how realize

readily available, but at at but available, readily 50. 341; Bruno

ommon and and ommon ies of the ies of the 245 CEU eTD Collection publishers, 2000), 100. but gotbut largely by internationalized end of the the 20 witnessing only not therefore betw was shifting of problematization historical confront. expert to Subsequent own past Europe its had came to be as‘intentionalist’ the interpretation of the period.”,Mark writes Osiel. what favorof analysis in their skewed unwittingly criminal proceedings has thefocus of 149 one the of consequence amere is witnessing concludereasoncontinentaThere thatthe no to is

Mark Osiel, Atrocity, Mass Law. the Collective Memory and

- sided transfer of American legal experience. experience. legal American of transfer sided een adversarialim and inquisitorialism,

(Brunswick and London : Transaction Transaction : London and (Brunswick l revolution in historical expert historical revolution in expert l th

century. century. 246 149

CEU eTD Collection the role of expert witn phenomenon of of pastgenre thecrimes. of denial this The which in trials took historians analyzes oflegal contribution in historians dealings transnational the with the worse. for or better aconstitutes processedgescredible academic through which arecut, of discourse for the cases such in involvementof historians andlegal the interest, of has the been subject hazy this the craftfield Much within and both of it. outside are taken account, be into to a description betweenand facts values, traditional distinctions the sends trend the which to approaches,theare representations there of the past. Even limits if one subscribes to and illegitimate appeared ofdistinguishing in involvementof the in context the courts between legitimate criminal endthe courts rebirth of at the the of20 the international played historians role in deals the with internationalization, (IV.2) horizontal the chapter 20 the of decade last the nd interpretation to the junkyard of historiography, several rather lively “reality checks” checks” rather“reality lively the to junkyard several nd interpretation of historiography, IV.1 Hist IV.1 Some of the most interesting features of transnational historical expert witnessing

This chapter deals with aspectsthe internationalization of of expert witnessing in orical Expert Witnessing in Legal Limits of Past Interpretations

historiographical interpretations. Namely,historiographical contraryradical postmodern to interpretations.

esses are revisited in different national jurisdictions. Alongside this INTERNATIONALIZATIONS th

ntury and in the first decade 21 century of the in first the and Chapter IV Chapter

th century.

st . Firstly (IV.1) it

246

CEU eTD Collection 2000). Different aspects of revision are a topic of History andTheory exposed in Brigitte Bailer Brigitte in exposed detailed account on negationismdetailed account Valérie in on For negationism“revisionism” France). (inor (in being aslabeled USA) the in article increasingly this is are of the offreedom expression. of suppression victims academic Irving Zündel,and such Germarrevisionism, as claimingthatthey Ernst Rudolf, David commenting of onthe some imprisonment of the leading figurescontemporary of

2 http://www.doew.at/information/mita 1 long the of astage is predicaments legal their always operated, at a between sensitivejunction history and law. The current wave of Rathermore it. to than simple of crime victims of thought, operate, revisionists and have demands Mark Weber, of head the USA proceedings. Some are them of in jail. the world a number of self Pri balance. the tip often academia outside instruments powerful presents a surprisingly slippery task. sensible, but would seem policies) extreme apology of of the through truth distortion nonconformist questioning and ofbeliefs) entrenched “revisionism” (deni terminology straightdifferentiating by betweenrevisionism (provocative, controversial legitimate reassessment of the past and its illegitimate manipulation. Setting the November 16, 2006,

The dilemmas of distinguishing the narrow and wider understanding o understanding wider and narrow the distinguishing of dilemmas The Mark Weber, Fr Mark Weber,

Ambiguities termloaded surroundrevisionism, meanings, with the denotingboth IV.1.1 and Historical between Denial Revision Nonconformism eedomforEurope’s PrisonersConscience! of Irving Zundel, Rudolf Still in Prison, http://www.ihr.org/news/061112_prisoners_of_conscience.shtml - Galanda, - proclaimed revisionists are revisionists proclaimed caught the upin webs of legal

“Revisionism” in Germany and Austria: the Evolution of a Doctrine Doctrine a of Evolution the Austria: and Germany in “Revisionism” rbeiter/beitraege/revisionism.html 1 Igounet, Igounet,

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Commission on the Responsibility of the Authors of the and War on Enforcement of Penalties Art Comparative overviews of the postwar retribution Europe: in Kurtsidis Claudia icle 231 and relatedpartsonicle ofbased were the 231 Versailles the findings treaty of international the emics, and a politically saturated exchange. High exchange. saturated a politically and emics, ecisions and maintained by the majority of allegedly opportunistic academics. This allegedly academics.ecisions bytheopportunistic of andmajority This maintained - Structurally similar, albeit manifestly very different developments occurred in the How did this connection emerge? To begin with, revisionists (legitimate as well

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A.J.P. Taylor, Mark Osiel, Holocaust andJustice

Mass Atrocity, Collective Memory, and the Law the CollectiveMemory, Atrocity,Mass and The Origins of the for barrages of political, legal andhistorical criticism. Skeptical voices - people havedoubts. informed many

( Princeton, N.J. : Princeton University Press, 2000). 2000). Press, University :Princeton N.J. Princeton, , (Evanston, Illinois : Northwestern University Press 2002), 235. e and moree factual and knowledge gathered was the atrocious about

Second WorldWar

István Deák et alia eds. . Following onan unprecedented defeat the scale, Third

( Origins of the Second World War theWorld of SecondOrigins Middlesex: Penguin Books The politics of retribution in Europe : World

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Maurice Bardéche’s into entrance the limelight by analyzed is Igounet, 37 op.cit, Revisionistsfound many similar footholds in this approach. There is no reason to detail on all the existence of the written order signed by Hitler regarding the final solution of the of the orderexistenceHitler solution of regarding the the written final signed by the death camps. death the stations of such writings, but its last word, David Irving's Irving's David word, its last but writings, such of stations http://www.nizkor.org/ftp.cgi/people/i/irving.david/press/Electric_Telegraph.961109 However, unlike benevolent critiques, they were using selective, guidedHowever, critiques, unlikebenevolent theyin wereselective, attacks using Fishing in this murkywater was bliss a for newly the emerging, significantly

- of murdered was for misused Jews recurrent reductions of the death- socialism, theyof socialism, produced otherwise frighteningly successfuldistortions many

(1947) point as its of departure. ents. The participation of Soviet representativesThe participationthe in Nuremberg ents. of Soviet e policies Nazi thatwere buried the in Nuremberg. some Shieldedto 8

- generated crimes equation those of with of of the communism y single out Maurice Bardéche’s book Bardéche’s Maurice out y single

the postwartrialsand revise their findings. Criticizing

(New York : Free Press, 1992), 50. borah Lipstadt, in Lipstadt, borah 7

Without theWithout benefit of much scholarly Nuremberg: The LastBattle

that he knewor nothing little

and byBailer

Denying the Holocaust: The - Nuremberg the or 60. He is singled out as - Galanda, op.cit.

(20.10.2006)

toll. The toll. (London : 250

CEU eTD Collection questioning the dictum of a peace treaty, was a which political were historians interwar revisionist offer. the lessto Whereas had far new revisionism War,First and World did contribute a to wider understanding history, in of causality the the knowledge o on factual which advance did guilt, ofquestion German Chamberlin”. Elmer Barnes, A.J.P. Taylor, Charles Tansill, and William H. his pioneered revisionism bydistinguished the of tradition historical “DevotedHistorical Review and states: truth to accuracyIHRcontinues the history, in Institute thefor Therevisionism. of presentation of interwar themselves as inheritors and“growing memory”. assault ontruth 10 9 light of the deepeningcrisis of historical scholars instead of whommavericksofover different brands the the in floor. took Nevertheless, the ranks of the new one revisionists could seldom find reputable professional historians, anpower”into outright human suffer denial transformed of was “speaking to truth of the the in spirit Academic nonconformism ontheir doubts findings. this skepticism to investigations into crimesagainst humanity andwarcrimes, casting rev new Nuremberg, at defined as peace against crimes and conspiracy of crime of concept the criticizing on concentrated scholars other most Whereas were proceedings. corelegal of attackingdocument,revisionists postwar postwar the Vidal atrocities andsuffering. ,. op.cit, 21- Memory. Essays onthe Denial of the Holoc

- Vidal Pierre of denial: strategies typical the systematize to attempted authors Both

IHR, IHR, - Naquet labeled “an assassination of memory” and Deborah Lipstadt calls assassinationa “an ofand memory” Naquet Deborah labeled A Few Facts About the the Institu About Facts Few A The attack on the Nuremberg and related trials was at the heart of what Pierre Pierre what of heart the at was trials related and Nuremberg the on attack The 10

However, the differences were striking. Unlike the interwar debate on the on debate interwar the Unlike striking. were differences the However,

(Cambridge : Polity Press, 2001) 27. Onmatter27. the Stanley see also Cohen

Historical for te aust

(New York Columbia : University Press 1992), 18- 9

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hip shaken by relativism, strengthened shakenhip byrelativism, http://www.ihr.org/main/about.shtml , States of Denial of States ing. Suspiciously,ing. among

imposition in a legal torians such as Harry Harry as such torians Naquet,. : knowing about isionists carried utbreak of the utbreak the of

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251 CEU eTD Collection

sensitive field. ainto recognizable onthe margins extremely standpoint of this controversial and the seventies course of theirseveral approach individuals, the developedin marginalized workInitially of the visibility. gainedseventies,early significant War ofthey theWorld so the by 11 revisionists. researchboth and rendering of history of justice. The tables have turned against the toward studycollective of memoryand its impact on society had an immediate effect on President Reagan’s the to Bitburg visit cemetery. On the other hand, powerful strive new were sentiments powerfullyaugmented bypubliccontroversies likethe one over Frankfurt the trial, throughgeneration the second of Hol growingglobalof the sensitivitycrimesWar, Secondenhanced towards World the himself was sentencedyear a to prison,although in he never went jail. to However, with revisionist literature regularly has assigned themthe to derogatory labelIn of “revisionists”. the fact authors of them,and of against legal a mechanisms set motion in put seventieseighties which and See Hope also Tzvetan Todorov, and Memory. Pierre Nora, “BetweenPierre Les and Memory Lieux History:Memoire”, Representations de (Bloomington: Indiana University Press, 1986). On

On thesee issue Bitburg Geoffrey (ed), Hartman Ironically, it was precisely the limited success the of precisely the was newit revisionists of Ironically, the late - called “Hitler’s wave” of both increased and esthetisized interest in the Second Second the in interest esthetisized and increased both of wave” “Hitler’s called IV.2.2 The Long Arm of the State(s): Defining Revisionism Legally the State(s):IV.2.2Long Defining of The Revisionism Arm 11

- Auschwitz trial otherAuschwitz proceedings elaborated the in second chapter),

come into collision with theBardéche law. Maurice ocaust related trials (The Ulm trial, the Eichmann

(LondonAtlantic : books 2003)

Bitburg In MoralPoliticaland the of revival thememory study its of and impact see

Perspective.

26 (1989), 7-

24. 252 CEU eTD Collection

12 prohibits incitement to racialIn hatred.addition, explicitly orarticlebehavior of under the which thecomplainant honor 130(3), violating which punishes of the Penal Code, 185 have routinearticle matter under of becomea aprospective of bystander mere the become the Third Reich, as wellas the determination never again to allow the judicial system to RepublicFederal and the between ondiscontinuity an insistence as bewhich seen might jurisdiction to jurisdiction. Germany long has tradition of combating revisionism legally, one in are, aspects expression Many of functioning democracies. in far fromsphere unlimited is the in public of belief,and available.Contraryspeech were therepopular tools to freedom representation of those events. inadequate or memory aberrant the with concerned trials, related War World o wave anew way for the paved also hatred racial to incitement and speech hate concerning legislation elsewhere, and United States the Canada, Kingdom, the United Switzerland,Israel.Slovakia, Spain, and direct was Where criminalization absent, as in Lithuania,ia, Roman Portugal, Poland, France, Germany, Belgium, the Republic, Czech formulations which differ significantly,Holocaust denial constitutes a crime in Austria, in Expressed humanity. against crimes of existence the contesting of ways these atrocities, above Holocaust allwith denial. A number of countries have crimina also illegal in a number of countries. This is particularly case the with the denial of mass 2004), 65 -

Comparative overview in Rob in overview Comparative

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Verges’sstrategyin Lawrence, 207 Douglas is op.cit, analyzed Henrymaintains Rousso the that postwar purge of and Nazi Vichy collaborators ratureLyon France,and vocalin University the ofmost Holocaust atwho thedenier Legifrance. Loi Gayssot

46 Comparable practice developed somewhat later in France, as what Henry Rousso Rousso Henry what as France, in later somewhat developed practice Comparable - - 50 – 117. circumstancesThe 117. whichunder in described are was Igounet. it 444 passed op.cit, 17 in 1990 Parliament passed the Parliament so 1990 in

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For more about Chomsky’s involvement see Vidal For arecentFor Alexander's criticalsee Gerard “Illiberal Weekly overview Europe”, Standard, Denial of Holocausta the Several such initiatives are mentioned in Christopher Caldwell,. “Historical Truth Speaks for Itself” Itself” for Speaks Truth “Historical Caldwell,. Christopher in mentioned are initiatives such Several tchens, Hi Christopher to Letter October Faurisson. 5,Robert 1994, Many otherwise think who donot have publicfigures revisionists the facts right , February 19, 2006, (20.10.2006)

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Ira Moskowitz.Ira “U.S. Timothy Garton, Ash, “This is the Moment for Europe to dismantle tab dismantle to Europe for Moment is the “This Ash, Garton, Timothy Still, quarrelling scholars addressed the court to resolve their claims. “Once resolve claims. to their quarrellingcourt addressed the Still, scholars

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The memory of judgment. 213

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She underscored his “thesis that Hitler did not know about the Final Solution”, finding him ‘an ardent ardent ‘an him finding Solution”, Final the about know not did Hitler that “thesis his underscored She Holocaust Denial on Trial, Transcripts, Day 01, Opening Day 01, StatementsTranscripts, Trial, on Denial byHolocaust Richard Rampton and David Deborah E.Lipstadt don and New York:A Plume Book, Penguin Group 1994), 161, 180 -

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chard Evans, David Irving, Evans, Hitler andHolocaustchard Denial 47

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These critical approachesare assembled 186op.cit, Evans, Richard in Vienna Imprisonment Irving, David Media coverageMedia of ofwas asurvey: trial the “ asubject Yurman. Dan herson observed that in a trial “fragments of history are snatched out of context, are out snatched history“fragments of a in trial that herson observed Idea These long quotations are only excerpts from a devastatingaThese excerpts are only fromov quotations verdict long The Irving - established of standards historical scholarship”. , 5, (May 24, 2000),

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A/RES/61/255 daccessdds.un.org/doc/UNDOC/GEN/N06/509/67/PDF/N0650967.pdf?OpenElement Michael Marrus, Smelser, 227. Ronald in op.cit, Ibid, 188 - any denial of anythe Holocaust;denial reservation 2. Urges Condemns without any Richard a Evansview, different, expressed moreenumerating optimistic the 191.

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criterion. What was necessary was to to was necessary was What criterion.

an important an important - egged egged 277 CEU eTD Collection with the crimescommitted by the Allies case particularlythe is War. This World the Second of crimes other the were caused by ago. adecade half occurred that shift global a of repetition War, this activity World of thecrimesamounts Second to a ofof the sort denial of and Germany. This is not only the indicatorgreater of intellectual mobility.In the realm and the witnesses came from Great Britain, but from also Unites States, Netherlandsthe Canadian citizen of German origin. In Irving origin. of German citizen Canadian a defendant was and Canada, the United and States Canadian camefrom in court a front in of witnessing. expert transnationalisation who stepped of Witnesses historical I ZündelHolocaust the denial, casesregardingto the from different rules and jurisdictions, regulations, its maintenance elusive. Regardless seems parceledItIn world in difficult say. to the How is could universal standard become? this trend Ellen Schneider,arguedby Wendie who thatthe hailed was case Irving the in verdict The 57 the global conclusionis thattherewriting. history legal aglobalized is there that were prove to events if those However, dimension. theachieving legal ofvery brink onthe time some are Europeanfor ofEastern the framework Germanswider expulsion in ad the during crimes elsewhere, recurrent suchofficers as topic.Thetheof execution Polish issues the in Katyn and forest a became this pact, Warsaw the of collapse the after Consequently, Soviets. by the

Wendie Ellen Schneider

it was setting could be the beginning of standard be“conscientio the wasbeginningof of could it setting Does thin this linecontain a possibilitygrowingyardstick? of a into permanent , ‘Case Note:‘Case PastImperfect’, The Yale Law Journal

activity and globala community of historians, it is still far from

vancement of Soviet troops into Germany, troopsinto Soviet also the but vancement of

during the war, particularly the ones committed committed the particularlythe war, ones during was from the United States, States, United the from was defendant the ,

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278 57 ,

CEU eTD Collection 2003), 20 - Zeitaltern von Methoden, Tendenze der Extreme. Theorien, 1900 bis zur Gegenwart specialists and their ideas. their and specialists emigration of through the mass impetus given new them other onthe had tendencies, but these interwarontheundermined War one and hand thehas tumultuous period First transnational World asthrough cooperation. congresses theof as other well forms

58 Europe, much attentionwas given the to intellectual and educational - realm tensions. process, of thehidden otherwise much exacerbating development in international criminal lawwas oneof important the influences in this ofthe just ageresurfacingGlobalization of throughout extremes. were past the on takes particularistic and generalist between tensions However, history or curricula through in of syntheses universities voluminous history. of world’s tendency maintained was still through standards i the common frameworksnational historiographical of the 19 of prevalence the with neglected Somewhat Enlightenment. the since least at research Intellecutelle)League was sponsoredNations by International of with Bureau of commissions

Geschichtswissenschaft im On im nascent the of history international RaphaelLutz, 20th the in centurysee Geschichtswissenschaft IV.2.1 Writing Global History and Rendering Global Justice in the in AgeIV.2.1 Justice Extremes Writing Global HistoryandGlobal of Rendering IV.2 Historical Expert Witnessing in Global Rendering of Justice Interna Strive to study the totality world’sof historywas an important trend historical in 2, 40-

42, 59- between France and Germany (Commission Internationaledeé Coop between and Germany (Commission France tionalization of historical studies was institutionalized as early 1900,as 63, 152- 3, 196- 58

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th

and early 20 early and th

century, universalist this n teaching of general , (München, : Beck ice through the

bilateral bilateral

ration 279

CEU eTD Collection (Providence 1996)Intern Forging the Collective Memory: Government and International Historians Through TwoWorld Wars (ed.), Wilson Keith in tensions On interwar committee. 1926 the of members the to dedicated war but 1 Enciclopedica, Editura :universelle (Bucureşti des origins a1945, die WeltWiener vom Kongress bis 1945, re/Geschichte:developmentLe Geiss GuillaumeHenri, see Peter Quintrec, Histoi Daniel (hrg), Europa und this longstanding of outputs ofthe latest one For textbooks. historical on experts German French and historians mirrorhistorians of confrontations. political congresses of which made War hostilities, international the Cold researchagendas and by studies)postcolonial global historiography,differentinternational or relations, Marxist structuralism blends of (historyof trends historiographical new appeal of despite wide historiographies. Still, Committee of Historical Sciences held in Geneva in 1926. under the guidance under the initiativescooperation bysimilar War, but were cutWorld rebuilt down the was Second cooperation was InternationalInstituteEducation and Intellectual- of Co 61 60 59 o “lifting the However, scale. global a on place History transnational history. - old activityInternational for the Commission Historical of Sciences and through a plethora of cooperation acquired expressed of also through historians new dimension, more dynamic Press, 2000);. Between Past (ed.) andFuture, TheTismanenau Revolutions of 1989 and their Aftermath See contributions i On 1989 : of impact cultural Palgravethe Macmillan, 2003). Ruprecht, 2006); Patrick Manning, (ed.), (ed.),

RaphaelLutz, 215 op.cit, On On On thatmeeting see introduction L’organisation Georges in Bratianu, de la Paix dans l’histoire new expressions such as universal history, globa as universalnew such history, expressions International Commission for Historical Sciences, http://www.cish.org/ Cf Gunilla Budde et alia alia et Budde Gunilla Cf http://www.cish.org/ Sciences, Historical for Commission International Transnationale Geschichte; With With the end of the Cold War the context has abruptly

(1990) were launched, but strive towards massive negotiation with the past took the past took massive negotiationwith towards strive launched,but (1990) were

taking place in historiography, channeled through the Internationaltaking place historiography, in channeled through the ational cooperation inpeakedbetweenational cooperation postwarcollaboration the the West

61 - of UNESCO, and they had some impact on the national the national impact on had some they UNESCO,and of

6. Not just Not just that the new periodicals, such as World Journal of

historyemerged, constrained hardly by both the national state NavigatingWorld History. HistoriansCreate aGlobal Past

Themen, Tendenzen undTheorien

(Stuttgart/Leipzig : Klett Verlag 2008). Verlag Klett : (Stuttgart/Leipzig 60

f the iron curtain” did not bring about a the bringabout ironnot curtain”a did f l history, international history or operation based Paris.Similar in 997) in997) wrotevolumehe the after the 59 (Göttingen : Vandenhoeck & Vandenhoeck : (Göttingen

shifted and international and international shifted Fragile as it was, such such was, it as Fragile

n Sorin Antohi, Vladimir Vladimir Antohi, Sorin n (Budapest : CEU CEU : (Budapest

(New York York (New 280 . CEU eTD Collection Europe Brunnbauer, Brunnbauer, i history scrutinized fromscrutinized the outside. t shapes andsizes. currents differenin shapes cameafter 1989 t those historiographies quantity in rich content. in those All problematic but powerful rel seemed approach comparative of and The prevalencehistory of partyand military history, avoidance of contemporary history states. national of needs specific the accommodate to fit narrative Marxist sustainable showed enormous and personal instituti contemporary in fromhistory the East comparativecame contributions Early light. to closure, as significant differences of thehistorians in workdifferent of of Europe parts 64 Verlag, 2004). 63 62 history times.”, concludes of bad the is Europe Eastern and Central of history recent … The consolidated publicmemory participants and eyewitnesses, whosemostly andnormalized worksolid, embeddedin is Western historian,who can sources, published turn to memoirsby contemporary report, part theEastern“Writing Centralunlikethe ofwork is recentand of Europe history of the which wassituation a very cause of concern, history content the but of the writing: archival chaotic the funding and of the proverbiallack just It not was and experience. confusion the in transfer even additional created has some dimensions in change, and abrupt bring the not War did Cold the end of agenda, the the history on was

István majorFor differences in scrutiny this volume “ see thematical 206 op.cit, Watt, ” n the 1980s American Historical Review Historical American Although with the collapse of Communism a global new of trendcollapse Communism writing Although toward the with Rév , (Re)Writing History. Historiography in Southeast Europe Lit after .: Socialism. (Münster Retroactive Justice Retroactive

- (New York : St Martin's Press, 1991) 306. Cf. Georg Iggers, Marxist historiography Iggers, in Georg Cf. transformation306. : East German social , 3. 62

97 ( 1992) ( with and97 compate more account recent comparative of U

Hidden beneath were the enormous differences between between differences enormous the were beneath Hidden

István Rév atively and petrified, uniform particularly when onal effort creation of pushedthe toward . 64

Historiography of theCountries of Eastern 63

of knowledge - 281 lf lf

CEU eTD Collection Seminal readings on transitional justice (Neil Kritz, Kritz, (Neil justice transitional on readings Seminal Democracies Institute Press, of1995; Peace James Transitional (ed.), McAdams Justice and the RuleNew in Law of Justice in Democratizing Societies Democratizing in Justice Transitional Memory: of is Politics Aigullar etmost empirically extensivelyal, The Paluma in covered Perspective. Oxford University Press Historical in 2000);Justice Jon Transitional Elster, the Books: Closing those of 1968, and in Poland with 1980?” asked those of 1980?” 1968,andwith Poland in with Czechoslovakia 1956,in events of the with Hungary one begin therefore in Should dead. are today the 1940s crimes perpetrated ofin those Most who the perhaps? to 1940s, forof make the retribution;whomto tr individually responsible decide, a in region likeEastern Europe, how far go should one back time in the in process werecontroversieskind with consensus: “It the initial burdened beyond not to hard is 66 65 creation of inventive mechanism, such as truth commissions, largely failed. emulating Curtois’s Communism. of Book Black to follow bygovernment the officials, by or manyhis of Eastern More European countries. or condemnations lessprompt of were Communism and lawyers which historians waspoliticians, theburdening actually question dowas to a series of legal encounterstheir with own past. haveto countries produceda communist structural deep, post social change, embarked in own past seemed troubledits to legal Germany, whose relation Following of example the of democratization, came be to known as transitional justice, was central ventur this to the in process Legal alike. activity and jurists addressed, byhistorians past neededbe to with replaced amaster of collapse the Europe, Western the in that

“Historian’s “Historian’s Adam et Czarnota alia, Rethink In the area in which the feeling of victimhood had significantly different meaning significantlydifferent meaning had of the feeling victimhood which In in the area

(New York : Cambridge Universi Cambridge : York (New Transitional Justice Transitional Ruti Teitel, 1997); Dame ofNotre University Dame, (Notre . Ab Imperio Ab Deak”, Istvan by Reflections Judgment: the historical accounts which were had destabilizing potentials. Still, the . (Oxford : Oxford University Press, 2001) ing the Rule of Law after Communism

ty Press, 2004) impact of legal actions on collectivememory Transitional Justice Transitional 65 István

This is not is This say to tures of thatven that However, despite deliberations on deliberations However, despite torians, who fashioned their studies who their fashioned studies torians, - narrative could as well have been been have well as could narrative Deák

3 (2007): 84. . 66 , (BudapestCEU : Press, 2005).

agedies of the past – ofagedies Where to begin, and whatWhere begin, to

. Washington, D.C : United United : D.C Washington, .

. (Oxford : back back 282 e. CEU eTD Collection law in in The Revolutions of 1989 and their Aftermath (Budapest CEU : Press, 2000), 266. Interesting contributions constitutionalism. constitutionalism. as Tr@nsit Past." Communist with t Terms to ofComing Politics "The Rupnik,. Jacques by distance historical from greater account communist Eastern Europe : prosecuting history University Press, 1997), followed by

68 67 it.”, writes the nor need remember time the and neither to is thatthere face to talk it, to about it, or suggest the belief that,unlikefascism, communism has finally an to and end, come truly afterstrange silencetheof1989,however, history communism surrounding to seems and historical interestthe in C its collapse, despite vivid legal actions (or telling their telling absence),political, social delivered valuable insights. ascholarl practically became level a comparative on countries European Eastern of responses legal into Researching telling. were choices The span of a time. countries short such in of such to number deal past offered the with bad va such was before never perhaps Indeed, cases. criminal or restitutions denationalization, secret ofarchives, propertyrehabilitations, service civil or wrestle with the Communist legacy legally, be itlustrations, commissions, opening of the beyond appeal.” been condemned by history has now it history’s,and neverother anythan “Communism Furet: tribunal conceived (Budapest: Vindzor Club 1994). Rosenberg, An observer in early akeen account Tina of Accounts: Violence, Justice and Accountability in Postsocialist Europe Bo Vintage York, (New Land,

Csaba Varga , István East European Constitutional Review Martin Krygier et alia (ed.) Marxism andCommunism, posthumous reflections on po

(Amsterdam : Rodopi, 1994) Still, Still, once pass this blanco Rév, Rév, István

“Counterrevolutions Coming to terms with the past under the rule of law : the German and the Czech models,

68

Rév

- and explains this strange this explains and from aFrancois with quote phenomenon Virtuelles Forum Virtuelles , Settling Settling , Borneman John in scrutinies comparative first oks the of 1995); One

67 to disappear, lock, stock and barrel. It’s defeat, therefore, is is therefore, It’s defeat, barrel. and stock disappear, lock, to

”, Sorin Antohi, Vladimir Tismanenau (ed.) Between Past (ed.) and Future, Tismanenau Vladimir Antohi, Sorin ”,

However, it is difficult not to notice that, two decades after Auro ommunist period is somewhat witheringaway. “The

are entirelyare this to dedicated change realm the in of ra Voiculescu,ra , (22), 2002. Apart of Transit, a number of other journals, such condemnation, controversies remaine

(Lewiston, N.Y. : Edwin Mellen Press, 2000). Short Short 2000). Press, :Edwin Mellen N.Y. (Lewiston,

Human rights and political justice in post y own, which on its has discipline . ( Princeton, N.J. : Princeton :Princeton N.J. Princeton, st number of proposals to proposals to of number st The litics, society and and society litics, d on how tod on

Haunted - he he 283

CEU eTD Collection CEU Press 2004). - Mungiu Alina in of contributions subject is a itself development The 2005); Macmillan, :Palgrave Hampshire (Basingstoke, this development in Umut Özkırımlı, Özkırımlı, Umut in thisdevelopment locus of crimes and the profile of victims.” programs in existence and the international nature of Nazi criminality in terms both the dissonance afundamental between the national cleavage was of the various“there trial squabbles over the creation of permanent court, was but put additional to scrutiny as Warthe Cold only discontinued in national not level,criminal was justice onthe creating However, thesurrounding tensions were shift of interpretation this the local unavoidable, human rights. universalisation of great towards the shift to least support declarative international lega keepingglobal the historical interpretations together wasa thin stream adherence of to consciouslyIn parochialisation. their risking one a of context, the such fibers thatwere historiographies the ‘drums wereand tempted trumpets’ of the national revival, towardsgeneral local deeper the integrations, by trend authors. Spiting various serious obstacle to simple applications of transitional justice mechanisms recommended nationalism serv condemnation a is tool of communism the in hands and of nationalists, every attack on peculiarThis setting, barelycomprehensible a to Western observer, which in every historiography

70 69 withdrawal communism of was the renaissance of nationalist narratives.

Donald Bloxham, op.cit, 1- This phenomenonhasnaturally aboom induced studies the in of nationalism. Fairly assessment recent of In fact, the most obvious phenomenon on the political landscape in the eve of the ofeve the landscape the political in phenomenon obvious In theon fact, most

new trenchesthebattleground. of in old new renderingNuremberg, as a symbol Pipidi, Ivan Krastev (ed.), Nationalism (ed.), Krastev Ivan afterPipidi, Communism. Lessons Learned

and legal mechanisms became prone to become carriers of such messages. messages. such of carriers become to prone became mechanisms legal and es to legitimize communist legacy,es legitimizecommunist to additional burden was an and a l standards and signed international conventions, accompanied with at at with conventions, accompanied international and standards signed l 2.

Contemporary debates onnationalism : acritical engagement 70

(Budapest : : (Budapest 69

,

Both Both

284 CEU eTD Collection global level. sensitive culture, andtheeme necessity understanding of human rights interiorized creation of for the justice rendering of localadvantages of the both Osiel, Mark as seeing expectations, mixed had observers and Researchers http://www.un.org/icty/glance 73 72 71 combating denial and preventing attempts at revisionism.” …TheJudgments determination beyond reasonable of doubt certain crucial is facts in estab been have dispute to subject once Facts haveYugoslavia the conflicts in 1990’s emerged. the in formera historical record of the former Yugoslaviathat“as was, the workICTY progresses,elements of theof important Intern the of achievement a core as expressed conviction 1993adhoc courseof established the in reactions, the Securityhas Council those onefor of reaction. As calling and was Rwanda international community and realitiesthe atrocious of warfar the of commitments proclaimed the between discrepancy the and globally, exacerbated were crises humanitarian and Wars place. stable less became world the War Cold the judiciary, leading wentand painstakingly thecourt negotiations such to a slow. the international of power under the submit ready to more much are not that the states of permanent international tribunal were started a the 20

Paul Betts, “ Betts, Paul Mark Osiel, op.cit, 207, 235. The International Criminal Tribunal for the former Yugoslavia (ICTY), Tribunal’s Core Achievements, Achievements, Core Tribunal’s (ICTY), Yugoslavia former the for Tribunal Criminal International The th The events, however, par were much faster. Somewhat was beWhat to the future of international re

century was evoked as a possible avenue, and negotiations for the establishment the for and negotiations avenue, possible a as evoked wascentury Germany, 71

The example of Germany and its experience with international law during during law international with experience its and Germany of example The

International Justice and the 20 and Justice International - e/index.htm

, 2.3.2006.

criminal tribunals for those regions. The regions. The those criminal tribunalsfor th

century”, lished beyondlished by a doubt reasonable new. 72 History & Memory & Memory History ational Criminal Tribunal for the

ndering 1989? of justice after However, was it revealed soon 73 rgence standards of such ona

e in places like Yugoslavia Yugoslavia like places e in adoxically, with the endadoxically, of the with

17 (2005): 45 - 86 285

CEU eTD Collection at the Crimes Yugoslav War Tribunal,” The Journal Institute of the International of the prosecution in the ICTY Quarterly Internatio the of Record Historical The ofwitnesses:Ancic, the Mladen svjedoci Ideoloski defense Milošević Trial: Purpose and Performance”, and Purpose Trial: Milošević

i.net/fcs/international_criminal_tribunal_critique.htm http://www.hercegbosna.org/ostalo/ideoloski.html http://www.umich.edu/~iinet/journal/vol11no2 74 those communitydi echoing scholarly is the of rest The defense. the of witnesses expert Lessenthusiastic are the prosecution. the ones uponby called is expectedlychampioned byhistorians who testify did at the tribunal, particularly the ex Historical practice. this of meaning the over debate public yet another Hayden. antagonisticSuch couplets became trend a in the trials come, giving to rise to and scholar, adelivered Robert byanlegal Professor theanthropologist defense for in concerned. is historians expert faras Already challenged, the of contribution as however, impartial account contribute might togoalsthe of the tribunal.optimism This was andtestimonies submitted a number of reports, expert and the hope was t Historians have oral subjects. delivered many were or historians testifyonhistorical did the first witness atfirst trial, the Professor Gow James in Februaryuntil 2006,226belong the to category Many experts. of among including them, haveInternational taken so the a stand at Tribunal Criminal for the former Yugoslavia Hayden, Hayden,

Accounts of expert witnesses supportive to the practice: Robert Donia, supportiveRobert witnesses Accounts expert practice: the to of rsctr s Tadić vs. Prosecutor IV.2.2 Locating TribunalIV.2.2International Criminal foria the theformer Yugoslav

Experts wereExperts play to an venture. role important this in Outof 3360witnesses who , vol.27, (2005), 908 UN War Crimes Tribunal Delivers Treavesty o a War Tribunal Crimes UN -

942. Professor Gow’s testimony was contested by the e by contested Gow’s was Professor testimony , The Hague, The ,

nal Criminal Tribunal for the Former Yugoslavia”, Human Rights Yugoslavia”, Former the for Tribunal Criminal nal Nationalities Nationalities - 3/donia.htm , 2.3.2006; The Witness Expert Mladen Ancic on the role http://www.hercegbosna.org/engleski/ancic.html , 12.3.2006. Richard Ashby Wilson,“Judging History: Papers ; James Gow, Ivan Zveržhanovski, “The “The Zveržhanovski, Ivan Gow, James ; , 32(2004) : 898- Prosecutor vs. Duško Tadić Duško vs. Prosecutor “Encountering the Past: History History Past: the “Encountering f Justice sturbances. , [Ideological, Witnesses] 919. Voices of criticism ofcriticism Voices 919. , pert witnessing 74 http://www.d

, 11(2004), hat their xpertise , Robert

286 - n - , CEU eTD Collection misao, 2001), 5 Serbia: The Public Relations of Post Hagan,human Facingfacing past: rightsthe activists Margaret the approachesin Past in Post Court: not just to judge to just not judge men,alsoCourt: to but history.” Croatian past by the entire on nations putting trial. They “ allege appearance ofsustain to historians the claim that the Tribunal is judging Serbian and 77 http://www.ceu jevic.html http://www.law.nyu.edu/eecr/vol11num1_2/special/dimitri 76 75 setting itleans more towards adversarial than inquisitorial mechanisms, at areindividuals forIn of being serious international violations law. humanitarian its tried court which in criminal international an It is law. continental and of common both testimonies. make to ofICTY, sensehistorical antagonisticand couplets particularly of the taken account into assess orderto in thetestimony expert meaningat of the historical helpdo not muchassessing in A number of theirha such contribution. points could partly the strong explain criticism directed voices oftheir performance, towards but ICTY century troubled and its practice, past. the facing agenda of wider indispensable broader the in approach find this crimes. others The of comm appalling nature hence history, blurring the sinking proceedings into are excurses historical that worried are them of Some well. as issue the on divided Territory of Former Yugosl Review Constitutional 36, (2004), 41 -

Vojin Dimitrijevic, “Justice has to be has to “Justice Dimitrijevic, Vojin Kosta Čavoški, Čavoški, Kosta Such attempt was made by Ksenija Turković, “Historians in Search for Truth about Conflicts in the the in Conflicts about Truth for Search in “Historians Turković, Ksenija by made was attempt Such Meanwhile, war crimes deniers in Serbia and Croatia exploit the courtroom courtroom the exploit Croatia and Serbia in deniers crimes war Meanwhile, Complexities and tensionsComplexities the in field which in theICTY are historians operating 76

However, this problem is as a rule seen as a the related to unique phenomenon as rule However, problemas seen is a this 77 67. -

budapest.edu/nation/theses/hagan0304.pdf

TheICTY is operatinga mixed legal in regime whichcombines elements

Presudjivanje istorijiHagu u avia asavia Expert Wtinesses front in of the Časopissuvremenu ICTY”, zapovijest, , Vol.11,, No.1/2, Winter/Spring 2002,

- Conflict Human Rights Activism Rights Human Conflict

done and seen to be done: the Milosevic trial”, trial”, Milosevic the done: be to seen and done - long history is altogether omitted. [ Judging History The at Hague

; Attempt to differentiate the Serbian Serbian the differentiate to Attempt ; , MA Thesis (Budapest : CEU, 2004) 75

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CEU eTD Collection international war crimes trialsince Nuremberg (Durham,, : CarolinaAcademic N.C. Press,1997) first the behind story the : justice Balkan Scharf, Michael in foundation Tribunal’s the about information in Honor of Gabrielle KirkMcDonald (The, Hague:Law Kluwer international criminal law: the ICTY and the principle of flexibility. of principle the the ICTYand law: criminal international investigating mechanisms equivalent to the ones at the disposal of the state. difficult.” very evidence of gathering tremendously its when Tribunalthe task of the adopt strictadmissibility rules on evidence of thesecircumstances in would complicate evidence of admission in kept a lowthreshold ICTY relatively practiceits has the jurors be to protected the possibly from misleading effec bench trials,the judges perform to not need the classical gatekeepingas there duty, are no Having only concerned. is witnessing, expert issueof evidence, the including of the law 79 78 adversarial an setting, in given prominence. However, wouldbe history, sciences, as such which in crimescontext took place. That meant thatthefrom experts the field of “softer” judgescoming a different with needed be broader locationsto worldwide, provided from the collapse of the former Yugoslavia, the internationallycomposed panels, the with f the circumstances, adversarialism is one of the approaches which wouldbe for a substitute and spatially since an 1991is which internationaltemporally, jurisdiction is judicialbodywith International HumanitarianLaw Committed in the Territory the of Former Yugoslavia of Violations Serious for Responsible Criminal Persons Prosecution Triof the bunal for ICTY, that is, its international character.

More on theMore ICTY Almiro Rodrigues, Cecile Tournaye, “Hearsayin:Cecile Rodrigues,Evidence”, Almiro Essays Tournaye, onICTY Procedure andEvidence act - finding difficulties. In dealing difficulties. finding with massthe crimes committed the in course of Such practice squared with the most important differentia important thewith most Such practice specifica squared substantively limited. ’s rules of procedure and law’sprocedure of Gideon rules of evidence: Boas,Creating laws of evidence for

As an international tribunal, the ICTYAs tribunal, anthe international cannot rely on 78

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CriminalLaw Forum12 (2001). 41- t oft evidence. the problematic In

Internbational 2001), 297. General the International 79

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CEU eTD Collection Party Party on the admissibility of theIn report. case deemed theis report admissible, and the other decides judges, three of consisting author. panel, The of its credibility the contentof or its onthe report basis challenge to the opportunity has the party other The well. as side other upon an who expert is submitting the report the to Trial Chamber and to discloses it the historical reports expert as well as any procedure as the the is follows: party other, calls that prevailed far,only so werethe provreports parties expert witnesses.iding For and practice the in However, themselves. judges the by as well as parties, by the summoned andexperts their accounts. it also meant that the parties would use the opportunity of challenging ea 81 http://www.un.org/icty/Supplement/supp39 80 mainly but research, academic of part fundamental is debate because partly is This consciousness early in modern But times. such debates are unlikely be ever to s national aBosnian of existence the about debate a lively featured trial Kordic “The antagonistic interpretations of the of past former the Yugoslavia. Chuter As David notes itselfconfrontedICTY wi has found beginning,the very Therefore,from the has calledas an awitness,the expert defense historian has kind.” respondedin about the content of the report and gets cross testimonies were at stake. usuallyICTY the the case in an practice,when without exception almost historical expert Prosecutor, Issue: Expert Witnesses, Witnesses, Expert Issue: Prosecutor, towards thewitnesses of role the expert seeM. Kimberly Prosecutor vs. G vs. most in guideline the elaborate Prosecutor appeared Procedure and Evidence

Robert Donia, op.cit. Rules of of BasicDocuments, Legal Rules ICTY, thevery scarce. rules are As considered, far are experts as is still questioningis it, the expert is summoned to courtroomthe where testifies he Experts are only briefly mentioned in the ICTY rules of procedure. They can be of TheyICTY procedure. rules mentioned the in areExperts briefly only

, Rule 94 bis, The adversarial setting its toll: took “

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David Chutter, op.cit, 15 op.cit, Chutter, David The courtroom interplayof competing historical narrative extent was an to 82

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CEU eTD Collection University by University of Toronto Press, 2002), 37. 2002), Press, Toronto of University by University of the ICTY.of the analysts, rather than by lawyers”, criminal noted Louise former Arbour, Prosecutor Chief trials as we know them and wouldtypicallydocumented be and by military historians 85 www.un.org/icty/cases 84 83 analysisoperations1992 and military between Bosniathe in connections of the in the disfunctionality. deficiencies its 1974Yugoslav thein analysisconstitution, and ultimate of the on the constitutional aspects of the collapse of Yugoslavia.Both of them had a foot internal aspects ofconflict the in Bosnia. Bo in war international forcesarmed the the involvementofin conflict, character Serbian of i.e. the perspective. historical the University of P of KingsWar Studies College (the witness) prosecution’s and Dr Robert M.Hayden from Department of of the Gow Dr James BothBosnia. experts, in war ofdifferent the phases scope of the involvemen the basically was contestation of issue The conflict. the of nature the of view a specific cases onthe stand. Their byputting witnesses expert goal argue was, to among others, for Tadic (IT Tadic andas people nation. alternative The interpretations of and Gow Hayden: ICTY question revolved aroundinterpretation the ofword the “narod”which could be translated in English both framework,were and if thoset wascontentionwas questionwho of the bearer the the related to of sovereigntyYugoslav in federal a the conclusions had for great their importance assessment ofnature the of in conflict Bosnia.issue The of

Testimonies of both witnesses are available at ICTY, Cases and Judgments, Tadic (IT and Judgments,witnesses Cases Tadic availableTestimonies at are ICTY, of both Much of their assertions were based on linguistic interpretations of this long, complicate long, this of interpretations linguistic on based were assertions their of Much Louise Arbour, War Crimesand the Culture of peace And this is exactly h what - 94- snia at the time of the Tadić’s crimes. The defense witness was emphasizing the emphasizing witnesswas crimes. defense The Tadić’s of the time at the snia 1), pp.148- 83

85

- Moving more to factual assertion, Gow based testimony his onthe e/index 151; pp.5594- ittsburgh (the defence’s witness) approached from a the problem

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, Gow’s testimony, pp.52 - 5560. appened. and defence Both their prosecution opened

84

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, (Toronto: Published in association with Victoria with Victoria association in Published (Toronto: , 387. Hayden testimony: pp.5590 - , Cases, and Judgments, - 94- d document, but 1), Tra 1), 5648. nscripts, nscripts, hold hold

291 CEU eTD Collection Tadic (IT Tadic 60 (1985): 331.; language. It is exclusively upon the evidence presented before this Trial Chamber that that Chamber Trial this before presented evidence the upon exclusively It is language. byadoptingappropriatelyconflictneutral it theresolve Trialhasto sought Chamber conflict;such t in in evidence was seldom and by Defence testifiedregardgeographic in the to historical and and the background their findings judgement:“Expertwitnesses Prosecution called entered the bythe both part of expert testimony.” historical an often truth inevitable and onsuchform time of space,questions views their historical happenedsome have in to believe what they asked state usuallyto not directly training, much of their testimonywas overwhelmingly historical: “Al are experts though a historianby was experts Althoughalong loyalties. of of lines the ethnic none the apart fell the country through which constitutionalism, of ethnic policies decisive of role insist was Hayden eighties, late the in Serbia of policies by the federation the conflict But,outlook. whilean Gow international was emphasizing the blowdelivered to giving was from troops of plans andBelgrade,which Bosnianwith instigations the Serbs 87 86 well. those counts as guilty on found eventually was and he appeal the reverted on Chamber 1997was from Trial of the decision This Convention. of breaches Geneva charges concerning the Republic of government Federal of not does actions the of agents as acting were to belonged he forces armed the and he that suggest criminal Tadić of context and place time, the one, international an

Marianne“Historical Truth, Narrative Wesson. Expert TruthTestimony”, and Judgments of Chamber both Trial Appeal and Chamber available are at: IC The panel of judges has deci has judges of panel The - 94- 1), 1),

www.un.org/icty/cases 87

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TY, Cases and Judgments, Judgments, and Cases TY, Washington Law Review, ing onthe 292

CEU eTD Collection Southern Europe and the Balkans , (London: Crimes War Hurts & Company, 2003), 20. Hayden’s review of Gow’s book in: Journal of b Arbour: The University of Michigan Press 1999). James Gow reflected onthe courtroom encounter in a Robert Hayden, Blueprints for the house divided: The constitutional logic of Yugoslav Conflicts International Criminal Tribunal”, Fletcher Forum Tribunal”, Criminal International led evidence.” in backgroundthis relies, noreference and has made been other to sourcesmaterial to not or 90 http://www.un.org/icty/Tadić/trialc2/judgement/tad 89 tsj70507JT2- 88 “t Ramet, by Sabrina journals. scholarly the in afterwards was continued which debate,much of aa for scholarly podium The became courtroom theechoing academia. andwithin widening the polarisation both hence was “straitjacket” heard, makeof to theirt allowingthe senseinterpretations, court out Although it might seemthat sides both there problem it, in having was nointrinsic been rather than the role of an adviser t to Ottoman Turks”. century fromthe protectestablished sixteenth the as asthelands early Hapsburg to Hungarian Empire or its predecessors; a military f Its northernEmpire. the Austro the westernand - formed boundary borders with report:years “for than 400 more and Bosnia Herzegovina wasof the part Ottoman of Yugoslavia,dissolution containing p theAges until from history Bosnian Middle overview of an 300 pages)contained between the one twocamps…On side are those who have taken universalistic a moral ook, largely composed ofhis ICTY expert report:

Hayden Tadić, Duško vs. Prosecutor Judgements, and Cases ICTY, ICTY, Judgements, Judgements, ICTY, Adversarial system in which the expert plays the role of an advocate to the party, party, advocate the to an role of the plays expert the Adversarial which in system - Gow debate continued wellGow continued debate trial: after Hayden, M. Robert and “Bosnia's the War Internal e.pdf , p.20. 89 88

Consequently, of the judgement a of considerablearound part (20 out Prosecutor vs Dusko Tadic

he fiel he , 5(2005). d of ‘Yugoslav’…studies has again been divided largely largely divided been has ‘Yugoslav’…studies again d of

90 he court, was setting scholars rather in defined roles.

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22 (Winter/Spring1998): 45- , p.20. (May 29, .2005) , 7May 1997,

he legal legal he 64 and and 64 , (Ann (Ann , 293 - CEU eTD Collection Dealing with the past discussing conflict prevention, peace/building,discussingreconciliation.” conflict prevention, or when consideration taken serious into be must which something disruptive potentialis powerful role which s the of the good a past is illustration distant a respecteven with to case antagonistic truths of perception the in regionof the former Yugoslavia. As noted by Gordano, “the Christian complicated problemthe relation of very already an aggravated has That facts. historical of asettlement for strives the addition, impression spreadICTY perpetrators, individual that,besides the punishing who, their in accounts, embrace one or version another of moral relativism.” perspective…Onreject side areand authors the framework other who the universalistic 92 91 responsibility their actions bylegitimizing through those policies. Therefore, although the Many of them were defending the policies of their states, or at least attempting to avoid only in themselves defending not the accusedwere persons international law. humanitarian However, apparent became it a thatin number of cases prosecutor the in name charging individuals is the of mankindfor the breaches of and national historical narratives.In internationalthe a Tribunal, crimi the of nal setting come more between even time international to andirreconcilable this has led interplay, wars in Bosnia andKosovo, (CambridgeCambridge : University press, 2005), 1-

Christian Giordano, “Dealing with the past, dealing with History”, in: Mo Bleeker, Johan Bleeker, in: Mo with History”, dealing with past, the “Dealing Giordano, Christian Sabrina P.Ram This initial cleavage initial This further was uponbythe seized defendants the in casesto in Antagonistic Couplets 4.2.3 HistoricalWitnessingin Expert et, et, Thinking about Yugoslavia: Scholarly debates about the Yugoslav breakup and the , Swisspeace, KOFF Series 2/2004. 2005, 59. ymbolic sphere may assume as a potential source of conflict. Its conflict. of source aymbolicassume potential as may sphere

of the legal developments in The Hague with their with developments The in legal Hague of the

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In In CEU eTD Collection Madame Prosecutor: chatiment et Paix Hartmann, Florence trials: framework sucharguments. closing as the at opening their statements, disposal, wereLawyers alsounfolding, disseminating themselves historical narratives inthe legal high of testimonies the through courtroom the entering also are narratives Historical Ančić. AllcockJohn were contrastedby sociologist sociologist Donia and historianRobert forward by pushed evidence of the law. Similarly, was testimony confronted Gow by mentioned, of the historical James accounts. alternative offering by facts offered the to de indirect support proved be to a fruitful playground for exercise. such an The respective states often and historycontention, issueof an important existence, became cameinto war or how the of context, the war, issue the courseof conduct aboutconcerned in their court primarily is 93 expected.asand misunderstandings,were be theas to tensions, well thewas defence usually YugoslaviaBalkans, or the for specialists among academia, Western the in experts their finding typically were particularism, also originating but academic from different prosecutors The traditions. al polarized expected, be to was interpretations sensitive area historical of witnessing, exchange the mutually of incompatible expert witnesses merelybeing oneamong many.However, this implied that, within the authorit issueofwitnessing, several the thatis,

See the recollections of the officials of the Tribunal reveil their undersanding of historical role ofthe role historical of undersanding their reveil Tribunal ofthe the officials of the recollections See - profiled eyewitnesses, the statesmen who were in position to observe to history were position this in who the statesmen eyewitnesses, profiled Historians are not the exclusive transmitters of those narratives. As already already As narratives. of those transmitters exclusive the not are Historians This diversity is revealing yet diversityThis surrounding expert revealing problem is another historian

(NewYork : Other Press 2008)

fendants, contributing to the courtroom establishment of establishment the to courtroom contributing fendants, (Paris : Flammarion 2007 :Flammarion (Paris

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All of testimonies the available are intranscripts respective case Cases at ICTY, Judgments, and The pattern set byset Hayden pattern The Such broadness was fur wasSuch broadness - ć discontinuities: and Continuities Cepulo, Dalibor 360; towardsthe debates over the specificities of Balkan identities and their , Prosecutor vs. Naletilić and Martinović and Naletilić vs. Prosecutor ) triggered seriesexpert of testimonies deliveredsociologists by and xpert survivinga thexpert witness,in face and asordeal, of validating this - examination. The dynamicsexamination. are discussed bya protagonistof such - 210; Davor Expert Marijan, Opinion:war connections the On Croatia ofand e/index , 36, (2004): Robert Donia, Statement of Expert Witness, 107- 1995, 249-

- thering antagonistic couplets through the confrontation ofconfrontation through the couplets antagonistic thering e.htm, 12.3.2006. Reports, aswell Kordić and Čerkez and Kordić 292; Mladen Ancic, Society, ethnicity and Politics in Bosnia in Politics and ethnicity Society, Ancic, Mladen 292; - Gow and encounter grew continued, more even (Boulder : Lynne Rienner Publishers, 2003, 120- 94

The content ofThe those testimonie content 415.

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296 - CEU eTD Collection reception of the ICTY, Paris 2006, 6- cut into the examination by rulingI that was“generalist” a rather than a specialist.” Bennouna, who credibility mercifullywas my halted byJudge research! assault This on be in such a generally adversarial situation. I found it extremely tense.” extremely it I found situation. adversarial generally a such in be couldor be it that.’ Suchan answer Of ridicule. course, new invites wasme to it also reallyallowe and not is answer, gives an aasked question, words, the in courtrooms we does ‘discuss’ of openly. discuss, not One the ICTY – ask each and we other- may questions, mid our minds change as or friends, converse wequestions, ask and thein audience discussing our work,I orgive when even a paper at anyou academic conference and are one)this donot follow the same logicyou as scholarship. When I and around sit t was problem basic The unpleasant. extremely be to precise) tourism a bit of a dilettante, rather than a serious expert. Especially damningwas my interest in Iwas indicatedYugoslavia possiblythat about publications my of diversity grounds. The experience. attorney The defense began my byquestioning credibilityon at leas myown certainly was This a witness. as credibility her or his to challenge the of that sys adversarial particularlythe centralwhich, the in heremanner is under problems 96 95 Prlić v. Prosecutor historian versedSerbo- the in Allcock’s seconded is sentiment the with experience of Profe

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Some those of available expert are reports at MilosevicTrial Public Archive, ICTY Expert Report, 995, Highlights and Excerpts", submittedAugust 2003, Expert 1, Report ofAudrey Budding, " Emir Suljagic, The Seeds of Yugoslavia’s downfall, IWPR Reporting, Reporting, IWPR downfall, Yugoslavia’s of Seeds The Suljagic, Emir Her testimony came under pressure in the course of the cross the courseof the in pressure came under Her testimony From of the view point ofbetween the collision national international and f the Prosecutor to write to an report. expert f the Prosecutor “The initially prosecution called on he HarvardInternational Academy for and and Area Studies

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ICTY, Cases and Judgements and Cases ICTY, Judge May: methodological mistakes in century, doyou as an historian believe thisthat amounts one to of gravestthe Milosevic The the otherwerein questioning based exchanges of different methodological Milosevic Judge May: available evidence. work, that I did myvery best presentto matters objectively and on basisthe of the preparation in that state which my of report, I viewed as apiece ofscholarly Budding: change the opinion of the same author, depending on the purpose? scholarly paper Milosevic ability both in of them follow same the standards of scholarly objectivity. dissertation. Although they obviously serve different purposes, I, best of the my to state state in the report, parts of -- Budding: with the identical topic, the Serb national question? you prepared for these purposes here and your cross Milosevic: Budding thesis was the result of your free and independent scholarly choice; correct? commissioned by the side opposite. Is true? that And I your that suppose doctoral Milosevic:

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Budding, p.24865- the Nacertanijethe in my report. specifically, I but what don't understand use Mr. Milosevic believes Imaking am of different historical eras. I think that such parallels should al Budding: century? Is possible it drawto parallels between the two, and anis errorit if you do? nineteenth century when dealing situation, a with say, end the at waysimpler putting of can it is, you use situationa occurred, that say, in the Judge May: science history,of I'm and asking historian an about whoit, she knows -- of one century the to first half of another century a is methodological mistake in the Milosevic: no r Karadzic, for instance, as an example ofSerbian nationalism? Are you sayinghas it saying -- that don't Judge May: moveto my onto question. next methodological mistake in the science history. of Ifyou don't understand this, I have projection projection aof historical situation on Karadzic countingfor asSerbs everyone who uses the Stokavian dialect. That is a Second World War, claiming Muslims, Montenegrins asSerbs or blaming Vuk nationalists usingfor G Milosevic Judge May: Stop Whichthere. historical situation are you talking about? from - the Milosevic: mistake,the so that we can follow it? historian has done which you describe as agrave methodological mistake? What is us Judge May: history? considered beto one of the gravest methodological mistakes in the science of phenomenon copying, of stencilling a situation? a of SoI'm asking Budding it Ms. is century onto the first half of nineteenththe century, does it amount to the Milosevic The core testimony ofPopov’s Professor dedicated was theof to refutation Dr

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she calls this a process of a of process calls this she 34381 303 CEU eTD Collection Rule of Law Jess 1992), Press, Pennsylvania of University (Philadelphia: one at present.” form the aspects century of an ofglobalisation, is and ongoing the 20th the which process Nacertanijewritingsjudgementor plan,Garasanin's or or [phoen] Sardusin's design of 110 109 between cleavage the resonatesgreatly one with of the core sources ofonthe human uneasiness rights agenda – collective in competition However,clash victimhood. this needs be to addr human rights the in nationalism discourse versusdebates, communism or distasteful posingendless obstacle of is appropriation as seeminglyinterpretations much past of the becomes fruitless.Intellectually disappointing, clashthe ‘international’ of and ‘n the least elementary commonground, philosophical exchange of historical testimonies a It functioningnot could have epistemologicalit the in same hardlybe regime, of much use. subject the of courtroom historicalwitnessing at its worst.Being exchange an of interpretations of interpretation Serbia’sPopov’s of 19 from theof subject the mattertrials.Still, clash between andBudding’s Professor Dr itbut proves the more generalizedabout the nature conclusions and meaning testimonies, of allthe historical Europeanthe wider of framework history. historiograph national Serbian narrative of aembedded positivistic in

Popov, 34569- More on theMore cleavage: lso directs tocrucialthe problemwith historical testimonies.Inabsence the even of Even within a single legal framework provided by the ICTY, frameworkdifficultdraw Even theto ais legal within single providedit by , (Oxford and Portland : Hurt Publishing, 2005); Christopher L.Eisgruber, Andras Sajo (ed.), - matter far removed from the case between the protagonists who are simply who are simply case the fromfar removed protagonists thematter between 34570 109

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CEU eTD Collection for the Former Yugoslavia”, balanced, impartial and just account of the criminal aspects of recent past. recent of aspects criminal the of account just and impartial balanced, acquiring knowledge expert from thatallowedconstructing different branches fora the process success of accountresulted rendering his justice. Muchin from of this creategovernments. to very HeICTY’s highly efforts ranked a historical record lasting i problems posed by local the hegemonyby narratives the of national pursued overcome the to the helped court has perspectiveby taken international that the very recentlya Richard Wilson denial? of culture about the be said same ICTY, the can would walk freely.if the culture of Still, impunity wasactivity shuttered bythe of the Tr imagine of how the region former likeifInternational wouldlook Yugoslavia worth asking proliferation if its contributed the to overallIt goalsICTY. of the hard is to dwell. justice of beneficiaries which in places other and Yugoslavia, former region of a the remains in lastingresolution has questionable impact whether such criminal byinternational law, provided still standards of it favor in resolved rupture is 111 (2005): 47- “LegalRedondo, Between Reasons: Universalism and Particular UniversalLaw”, Criminal Journal of International Criminal Justice Publ Global Justice andthe BulwarksLocalism: of Human rightsContext in providingin mankindan to empirically verifiable accountof what the amidst transpired e nthusiastic is Robert Donia is nthusiastic

ibunal was not set up. Many atrocities would pass unpunished, and many a perpetrator Many unpunished, andperpetrator atrocitiesibunal wasmanya setwouldpass up. not Richard Ashby Wilson, “Judging History: The Historical Record of the International Criminal Tribunal Tribunal Criminal ofthe International Record Historical The History: “Judging Ashby Wilson, Richard ishers 2005). Closer to the legal aspects of the cleavage: George P. Fletcher, “Parochial versus Fletcher, P. George cleavage: the of the aspects Closer legal to ishers 2005). In the light the of described tension inherentthe to historicalIn expert witnessing, it is 68.

IV.2.4 Local InteriorizationLocalIV.2.4Legal of theActivity Global Human Rights Quarterly : “The Tribunal is graduallyfulfilling its major oneof tasks , 27 (2005): 908-

ism”, ism”, 942. , (Leiden, Boston: Martinus Nijhoff Nijhoff Martinus Boston: (Leiden, ,

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Robert J.Donia, “Encount Peace Review “InternationalSerbia”, Peace Iavor Rangelov, Local in law and Ideology A puzzling concept of the world’s history (Weltgeschichte) as a world’s court (Weltgericht) is is world’s (Weltgericht)world’s court a history A the as of (Weltgeschichte) puzzling concept ], Sarajevo : Svjetlost, 1989), 459- Therealternative which histories, are obstruct are, however, 113

, 11, (2004) ering the Past: History at the Yugoslav War Crimes Tribunal,” The Journal of Tribunal,” Crimes War Yugoslav the at History Past: the ering Judy Batt, The The Batt, Judy Serbia in particularly region, the in achievements Tribunals of 114

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MinaLessons Shrag,Learned from Experience. the Notes for the ICTY Journal Prosecutor, ICC of Richard A. ‘ Richard Wilson, Nicola Piacente, Establishment ICCand operation of Office of the Prosecutor, the on February 16, 2009, 12. Such concerns were also raised at the conference of the International Society for for Society International the of conference the at raised also were concerns Such 123 121 122

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uently called by the court, with the judges defining their position and position their the judges defining with court, bythe uently called uence a debate unnecessarily burdened with either/or either/or with burdened unnecessarily adebate uence ns grew dissatisfied with the fruits of this tense - of - the 322 - CEU eTD Collection outlook. outlook. in adversarial rather was experts of performance the as States, Unites the from influence advent of historical expertise in these trials was occasionally even attributed to the of law, the Continental in courseW of the Second potentialexpressed itselfathis degree controversy. the to outmost the However, in realm trigger to potential a containing was case new each precedents, of a number quite Despite United and States beyond. the in name abad experts give to prone was witnessing expert of character Litigant attention. considerable attracted intertwined memory the participation of acontext awhich historianin complex law, politics, history and procedure, and were historians strangerscourtroo not Once the m. in sight, a blasphemous offering theirexpertise. One thing was certain: history was alien no more to legal important cases paved wayfor a new of the market ‘litigant historians’, specialized in less not but notable ss le other The case. Sears the as such academia, mainstream werehistorians of spilling out courtrooms and influencing in the developments expert of Battles problematic. considered frequently experts of performances with the practice spread antidiscrimination from in ord States, United Inthe resistance. strong with met be to frequently case, to case from and country country to from which differed largely practice and the development haphazard theory was succeeded theory not incompatibility of bythe of define partially could witnessing just expert such alleviate clashestheir overrole. The thebut practice mushroomed nonetheless. A number of carefullycriteria devised set to

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Archives BelgradeDistrictCourt of the Witness Expert as Scientist B. andas Allcock, TheSocial John sources Unpublished Historian asCourtroom: Expert Browning, Denial“Holocaust the in Christopher. Bougarel Law,LawThe at in Yale Avalon Documents and ProjectSchool. Diplomacy History Archives of Yugoslavia, Belgrade Brown v Board of Education E BrownBoard of Education v Nazi ConspiracyNazi and Aggression (The RedSet) Trial of the Major War Criminals Before the IMT Proceedings Volumes (The Blue Set) The International Military Tribunal Germanyfor The Eisenhower Archives. Digital Documentation Civil Rights: Brown v Bo conference Recept conference aud.rm http://streaming.wustl.edu:8080/ramgen/assemblyseries/clips/2005 Material, onNovember 25, 2008. accessed Washington UniversityWitness”, St.Louis, in AssemblySeries Streami http://brownvboard.org/ BrownvsBOEfiles.html http://eisenhower.archives.gov/Research/Digital_Documents/Civil_Rights_BrownvsBoE/ http://www.archives.gov/education/lessons/brown http://www.kshs.org/research/topics/cultural/brown/index.htm Kansas State Historical Society: Topics in Kannsas History Brown v Board http://www.brownvboard.info/index.htm Deliberate all With Speed. The Legacy Brown of v Board, http://avalon.law.yale.e State Commission for Documenting of the Crimes of the Enemy and the Collaborators War Crimes Chamber War Crimes Prosecutor’s Office Rehabilitation Cases Paper delivered on a conference on reception of the ICTY,Paperconference deliveredParis2006 onareception of the Justice Department of the FNRJ Reports Nuremberg the for Trial The National A In of Freedom Pursuit and Equal e Enter the Yugoslav Space?”, Space?”, Yugoslav the Genocidand HoweEnter “WhenDidthe Term Xavier

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Fritz BauerInstitut Dreyfus 1906, Rehabilitated: Internationa International of Court Justice, International Real CampaignHistory, for Resources Claims Indian EmoryHolocaust Denial University, onTrial,

Jurisdiction < Auschwitz Bureau Bureau for Indian Affairs, Jurisdiction and Admissibility Establishment Court of the Situations andCases Rules Procedure of andEvidences, The Court Expert Reports Documents Trial The http://digital.library.okstate.edu/icc/index.html http://www.archives.gov/research/guide- The National Archives. Records of Expert Evidence Transcripts of proceedingsthe urteil.php Register zum Frankfurter Auschwitz onVerdict Auschwitz. The Frankfurt Auschwitz Trial 1963- Der Auschwitz - Materials from the Trial andEducationalArchives Resources The Long Road to Justice Cases OSU Library Digitization, Indian Claims Commision Decisions List of experts before the International Criminal Court as http://www.fritz l Criminal Court

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332 - CEU eTD Collection Proctor,US, Reconstruction Robert.1954- ATobacco Historical of andHealththe in SrđanPretrial reportthe Cvetković in Tomić case Expert War byCrimes the Serbian for Holocaust Investigations andHistoriography Dieter. andHistorians. Pohl, Prosecutors Petrov L’Affaire Papon. Site des Parties Civile Library, Virtual The Jewish TrialBarbie, of Klaus LewisThe Trial Bernard to The 1946 Mihailovic Trial Draza of Dragoljub Trial of DinkoSakic, Witn Expert Faust.Rossi, The IndependentThe Pavelic researchof project Papers. the movement history the Ustase of Re Final Budapest,Open SocietyArchives, Hungary The Project Nizkor ić, Vladimir. Izveštaj o istorijskim veštačenjimaIzveštaj ić, 2008. Vladimir.zločine, oistorijskim Tužilaštvu ratneza The Trial of Adolf Eichmann, the USA v Philip Moris, Moris, Action no99- theinc. USAvPhilip Civil witnessreport 1994, Expert in filed onbehalf plaintiffs of Office Prosecutor’s andVashem, theYad Holocaust”,2006. December Jerusalem, thein Federal- Republic 1955 Photo ArchivesPhoto Transcript Official The - al.html#court http://www.jewishvirtuallibrary.org/jsource/Holocaust/barbietri Trans Documents Indictment program,Legal.J.D. Budapest 2002. requiredCEU, readings, studies, http://legacy.library.ucsf.edu/tid/vmm56c00/pdf Institute HumanLaw Rights Records the of International adolf/transcripts/Sessions/index- z/ zundel CourtSupreme Canada:of http://pavelic papon/traductions/chronicle04.htm cripts - port of the United Nations Commission of Experts the of of port Commission United Nations ernst/supreme

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