29 March 2018

The Role of International Tribunals in the Development of Historical Narratives

On 22 March Moshe Hirsch, Professor of International Law at the Hebrew University of Jerusalem, participated in the Graduate Institute’s International Law Literature Forum, where he presented a paper on the role of international tribunals in the development of historical narratives. Professor Hirsch has granted us an interview about this article forthcoming in the Journal of the History of International Law.

Professor, you presented a wonderful and inspiring paper exploring the pros and cons of international non-criminal tribunals participating in the construction of collective memories. May I ask how you have come to develop this topic?

I worked on collective memory and international law while I was preparing a chapter dedicated to this topic in my book Invitation to the Sociology of International Law (OUP). In this chapter I explored the interrelationships between collective memories and the development of international legal rules. I focused on the rules of the EU, more precisely of the Economic and Monetary Union (EMU) with regard to financial stability. I asked myself why so much emphasis was placed on stability in these Eurozone legal rules. The answer that I encountered related to the collective memory of Germany regarding the hyperinflation during the Weimar Republic and the lingering fears of economic and political instability. The hyperinflation is connected in the German collective memory not only to the loss of millions of Germans’ savings but also to the breakdown of democracy and the Nazis’ rise to power. Indeed, when the Maastricht rules were drafted, the Deutsche Mark was stable and for Germans this financial stability was of great importance. And once they entered the recently formed Eurozone, their clear-cut condition was ensuring the stability of the common currency. Thus, the central EMU’s rules were considerably influenced by Germany and its central bank, particularly the provisions concerning price stability.

Moreover, in this chapter I worked also on Argentina, which experienced relatively high inflation rates but without being too concerned about that, unlike the Germans. I checked some historical tables showing that the worst hyperinflation was not in Germany during the early 1930s; there were worse cases of inflation in other countries. But in Germany, the link between the Nazi rise to power and the rapid deterioration of financial stability was inscribed in the collective memory.

What inspired you to bring those collective memories within the narrative of international non-criminal tribunals?

I presented earlier vesions of this book chapter in several conferences and workshops, and several questions regarding the desirable role of international tribunals arose. My answer was that the chapter focused on EMU rules, Germany and Argentina, and that I did not investigate whether international tribunals are generally capable and equipped to deal with those issues. But these questions fascinated me. There were also several pages in Ruti Teitel’s Transitional Justice (OUP, 2000) about domestic courts and collective memories, and she raised the issue of whether it is desirable for domestic courts to engage with collective memories. Consequently, I decided to analyse this question from sociological perspectives and I found that different sociological approaches might generate different answers. It depends, for example, on how you conceptualise collective memory: for example, should it unify the group, or is it desirable to have multi-vocal memories within a single society? Each sociological approach provides a different answer.

This is how I started on this article. The first time I presented it was at the meeting of the European Society of International Law in Oslo. Later on, I presented it in several academic meetings and I got very interesting questions and comments, so I revised the text again and again.

When did you decide to look at non-criminal tribunals as opposed to criminal tribunals?

The first and second versions of my article addressed criminal and non-criminal tribunals. The issue that bothered me was that for criminal tribunals, the most important task is to determine whether an individual person is guilty or not. This is crucial: it means deciding, for example, if a person can return home or must spend 20 years in prison. And there is some concern that some judges in international criminal tribunals might be more preoccupied with their historical role at the expense of individual justice. I am not saying that criminal tribunals should always refrain from dealing with historical narratives – they do it eventually – but from a normative perspective I felt that it is something different. This is different, for example, from other cases of the European Court of Human Rights, or the International Court of Justice, or the Inter-American Court.

Consequently, I decided to focus in this article on non-criminal tribunals. I must say that when I wrote on non-criminal tribunals I thought again and again on the criminal ones and still I found that in many cases the latter deal with historical narratives because they must do it in order to resolve particular legal disputes – and there are parallel questions in criminal and non-criminal tribunals – but again, I felt these tribunal are different, so I chose to focus on non-criminal tribunals.

What is the added value of non-criminal tribunals engaging with collective memories?

Tribunals have several limitations if you compare them to other agents of memory; for instance, historians are more likely to work several years on one historical event and produce a long study like a book, but judges cannot allow themselves to do that. On the other hand, in many cases I found that the production of historical narratives by some other agents of memory are more biased and much influenced by political interest or other interests (such as national bias). In that regard, the advantage of international tribunals is that we have at least three judges drawn from different societies, and relatively such tribunals are less susceptible to many biases. For example, governmental bodies that influence collective memories are often more biased, and journalists that are not constrained by rules of evidence may produce a less reliable historical narrative. And we should keep in mind that anyhow, international tribunals almost always operate alongside other agents of memory (and these others may influence and constrain tribunals also in this field). So, my partial answer is that tribunals should take into account the work of historians (and other agents of memory) and that they should not be excluded from the interactionist arena in which historical narratives are constructed.

Full citation of Professor Hirsch’s paper:
Hirsch, Moshe. “The Role of International Tribunals in the Development of Historical Narratives” (21 February 2018). Journal of History of International Law (forthcoming). Hebrew University of Jerusalem International Law Forum Working Series 03-18; Hebrew University of Jerusalem Legal Research Paper No.18-1. doi:10.2139/ssrn.3124825.

Interview by Oana Ichim, PhD candidate in International Law.