FWO Fellow at Ghent University, Ghent, Belgium
This chapter considers three different forms of interdisciplinary practices of law and history that are similar to expert witnessing but remain distinctly different. I discuss the French Dreyfus affair, the Nuremberg and Tokyo tribunals, and the legal amicus curiae briefs written by historians. These different interactions of law and history provide an introduction to the field of forensic history and its controversial nature.
The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.
Second Nuremberg Principle
This chapter examines a selection of cases in which history and law have interacted in court. There exists a tendency among researchers, who discuss historians serving as expert witnesses, to wrongfully identify every interaction between law and history as an example of expert testimony by historians.
The French Dreyfus affair provides a good example of such a misconception. I argue that the Dreyfus trials were about paleography or the forensic assessment of documents rather than about expert witnessing. Essential in the definition of expert testimony is the expert’s ability to give an opinion, based on expert knowledge and research, in order to aid the trier of fact. Other examples of wrongfully labelling the interaction between law and history as an event where historians have served as expert witnesses, have been the Nuremberg and Tokyo tribunals. While the trials were major events in the history of the twentieth-century, historians did not give any testimony. Although historians did not serve as experts, the Nuremberg trials remain very important as the cradle of criminal and international tribunals where historians and history are still playing a major role.1 Furthermore, I analyse one other form of interaction between law and history that I do not categorize as expert witnessing, namely, the legal briefs or amicus curiae briefs that historians present to judges in the hope of historically informing their judgment. This chapter thus gives three instances that are often conceived of as examples of expert witnessing, but who are in fact examples of other interactions between law and history. By examining these instances we are confronted with general problems that arise when history and law come together. Problems that are also characteristic for the practice of expert witnessing. Furthermore, considering what borders on the practice of expert witnessing aids us in determining the demarcation lines of what judicial use of expert witness testimony by historians consists of.
5.1 The Dreyfus Affair: Paleography
Historical works on the role of the historian as an expert witness often start with the French Dreyfus case.2 The affair spans two decades and reminds us of a strong anti-Semitic current apparent in the French establishment at the turn of the twentieth century. In 1894, captain Alfred Dreyfus, a French artillery officer of Jewish origin, was accused of leaking secret information of the French general staff to the German military. Dreyfus was tried for treason before a military tribunal and sentenced to life in prison. The swiftness with which Dreyfus was convicted, gave rise to questions. Soon doubt arose about the conclusiveness of the evidence and the overall fairness of the trail Dreyfus had received.
Dreyfus’ conviction was based on the assumption that Dreyfus was the author of treasonous documents that had been intercepted. The court had enlisted experts to study those texts. A police investigator and a manuscript expert of the French national bank soon came to the conclusion that Dreyfus was the author of the documents. A group of intellectuals, among them not only the novelist Emile Zola, but also historian Charles Seignobes, and sociologist Emile Durkheim, demanded a re-examination of the documents.3 In 1899, under increasing national and international pressure, the French government allowed the Dreyfus case to be reopened and the documents re-examined. After studying the letters, the French historian Émile Molinier argued, based on his professional knowledge as a historian, that the documents were not written by Dreyfus. Dreyfus’ sentence wasreduced to 10 years. Eventually, and because of unrelenting criticism, the French government cleared Dreyfus of any blame, after which he was released and reinstated in the military in 1906.4
It is not surprising that some historians have argued that ever since the Dreyfus affair historians “were occasionally needed for services by using their skills to reveal false documents and to authenticate legal evidence.”5 Historians announced with a certain amount of pride that they had undone “a miscarriage of justice.”6 The Dreyfus case is an example in which historians had “defeated” anti-Semitism. Although, in the end, Dreyfus had been imprisoned for 12 years and anti-Semitism stayed in France only to recur under the Vichy-regime during World War II, the case is continuously cited in the literature on historians serving as expert witnesses as a tribute to the virtue of the historian in court.
In contrast, I argue that the case is an example of a historian who used his ability to authenticate historical documents. Falsifying historical sources is a basic and essential element of professional historical practice. When Molinier argued that the documents were not written by Dreyfus, he had studied the documents aided through one of the auxiliary disciplines of history: namely paleography. Along with numismatics, archaeology, diplomatics and other fields, paleography aids historians in determining whether a historical document constitutes a falsum.7 Determining the authenticity of a historical document is something very different from what an expert witness does in court. Experts give an opinion based on their own research of a historical subject to aid the trier of fact.8 This opinion is based on years of study on a certain subject not on the falsification of a single document. To conclude therefore, like Petrovic, that the so-called forensic form of history started with the Dreyfus affair is too straightforward.9
5.2 The Nuremberg and Tokyo Tribunals: The Birth of International Tribunals
The Nuremberg and Tokyo tribunals10 are two of the most important legal events in twentieth-century history. Both were held shortly after World War II and were designed by the Allied forces to prosecute the perpetrators of certain mass atrocities during World War II. As much as these trials were about historical events, their legacy helped shape the historical narrative on the war and those events themselves. The Nuremberg and Tokyo trials are illustrations of cases in which history itself was made and remade in court. Furthermore, especially the Nuremberg trials form a cradle for international human rights, international tribunals, and the transnational justice movement. The Nuremberg tribunal, in contrast to the Tokyo tribunal, did not only have to confront the act of aggressive war and the crimes of war committed by the German military as a whole, but also the Nazi design to root out the Jewish people. There also played a peculiar legal issue in Nuremberg. Which was that technically, the Nazis had not committed any crimes according to German law. Following the legal principle nulla poena sine lege (no penalty without a law), the defendants argued that they could not be convicted for crimes which had legally not existed when they were committed. To overcome this problem, the prosecutors responded that there exists a form of legal awareness, which is founded on historical principles, apparent among all civilized peoples, which incriminates certain atrocities even without written laws. This argumentation is called “the Nuremberg clause” and is written into the second section of article seven of the European Convention on Human Rights and article fifteen of the International Covenant on Civil and Political Rights.11 Although the Nuremberg clause represents an infringement of standard practice in international law, the Nuremberg trials left an important mark on the charters of human rights of Geneva and the United Nations.
According to the German historian Erich Haberer “Nuremberg succeeded in delivering justice within limits. But it failed to capture the true nature of the Nazi state and the Holocaust.”12 For the Allied forces that had in fact not been the true purpose of the tribunal. American chief prosecutor, US Supreme Court Justice Robert Jackson, was asked by a British judge on the Nuremberg tribunal, Lord Justice Lawrence, what the goal of the Nuremberg trials was. Jackson answered that the tribunal was established to educate the German people about the war. The trials legitimated the prosecution and the punishment of the German leaders and proved to the world that the German war had been illegal and unjust.13 American legal scholar Michael Osiel noted that the importance of the tribunal of Nuremberg was its impact on collective memory and on national histories.14 Historian Ian Buruma writes that the Nuremberg tribunal was not so much about representing the historical facts as accurately as possible as it was a political process and a moral, pedagogic lesson.15 The German-born American lawyer Robert Kempner argued that the Nuremberg trials were “the greatest historical lecture in world history.”16 For the Tokyo trials, Buruma is even harsher and writes they were an example of apologetic revisionism, a history lesson, a failure, an absurd ritual, and finally a rigged political process which undermined the European idea of justice.17 In conclusion, the tribunals of Nuremberg and Tokyo are criticized for forcing history into a political straightjacket in court.
The Nuremberg and Tokyo tribunals did not call upon historians as expert witnesses because both tribunals were more in the business of making history than letting history aid the trier of fact.18 The legacy of the post-war tribunals is thus twofold. First of all, the tribunals influenced how the war would be remembered to such an extent that they became important historical events themselves with their own topic in historiography.19 Secondly, the Nuremberg trials are an important moment for the transnational justice movement. The concept of prosecuting perpetrators of mass atrocities in Nuremberg has been a precedent for tribunals of a national or an international character. Nuremberg was the starting point of handling historical injustices and their possible repair in court.20 Contemporary examples of such tribunals are: the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the Special Tribunal for Lebanon, the Extraordinary Chambers in the Courts of Cambodia, the South African Truth and Reconciliation Commission, and other tribunals in Latin-America to confront the atrocities committed by dictatorial regimes. In contrast with Nuremberg, these tribunals are much less about delivering a convincing history lesson than about confronting and understanding a difficult and complex past in a nation’s history. Their goal is to amend and strengthen national bounds. Overall, these tribunals wish to prosecute and prevent mass atrocities. For this difficult task these tribunals use the services of historians as expert witnesses.21
5.3 The Amicus Curiae Brief: The Webster Case
The amicus curiae brief is a legal figure already established in Roman law which found its way into common law. The amici curiae (friends of the court) have the opportunity to write the court about a case to introduce legal arguments relevant to the case by which the judge could render a more impartial and informed judgment.22 Historians have used such briefs to ensure a correct interpretation of historical facts relevant to litigation.23 For example, historian David Rosner together with other scientists wrote a brief to the US Supreme Court considering the Daubert v. Merrell Dow Pharm. Inc.