International criminal tribunals (ICTs) can, and are often expected to, perform a multitude of potentially contradictory functions. One of the more simultaneously celebrated and derided functions is that of writing the histories of the conflicts they adjudicate. As Zammit Borda aptly illustrates in his perceptive and refreshingly pragmatic new book, the possibility of ICTs to write authoritative and universally accepted histories of armed conflict and atrocity was one of the main justifications given by prosecutors at the Nuremberg Tribunal for the very establishment of the first ICT. Since then, many legal scholars and practitioners have questioned the wisdom and practicality of an ICT attempting to write an accurate history of a complex conflict. In Histories Written by International Criminal Courts and Tribunals: Developing a Responsible History Framework, Zammit Borda positions himself in between these two extremes and argues for a need to recognize that ICTs do, in fact, write histories as part of their judgments and that they must do so responsibly while acknowledging the limitations of their ability to write academically rigorous histories.

Zammit Borda begins this volume with an analysis of this theoretical debate on whether ICTs should write historical narratives (Ch 2). He divides the theories into three broad camps: the restrictive camp arguing that ICTs should stick to adjudicating criminal liability,Footnote ¹ the expansive camp arguing that ICTs should focus on writing history potentially at the expense of other goals,Footnote ² and a moderate camp arguing that truth and justice must inevitably be rendered together in a responsible manner.Footnote ³ In first setting out a strict dichotomy between restrictive and expansive approaches, Zammit Borda risks creating strawmen out of complex theories. However, he acknowledges this risk, and his actual analysis of the theories is nuanced and sees pros and cons in both camps. Although Zammit Borda does not lay out his own theory until Chapter 7, it quickly becomes clear in this theoretical discussion that he finds the moderate camp the most persuasive.

An important and eminently rational aspect of this moderate view that Zammit Borda adopts is that ICTs must understand and acknowledge their limitations in telling full historical narratives. In Chapters 3 through 6, he analyses what he sees as the most relevant and understudied of these limitations. He begins with a novel and intriguing analysis of how the structure and process of international criminal adjudication can result in biases and blind spots for judges at ICTs (Ch 3–5). He does this through a frame analysis where he looks at the lenses through which ICT judges see the world as they adjudicate cases. These lenses determine which aspects of the facts of a case judges are likely to focus on and which aspects they are likely to see as irrelevant. They serve as a helpful indicator of what aspects of history ICT judges are likely to focus on or to ignore.

Zammit Borda analyses the ‘individual-centred’ lens (Ch 3), the ‘crime-driven lens’ (Ch 4), and the ‘law-affirming lens’ (Ch 5). His choice of the ‘individual-centred’ and ‘crime-driven’ lenses is logical as these two lenses help to determine the personal and substantive scope of the frame through which ICT judges view history. ICTs generally focus on how the acts of individuals acting alone contribute to crimes and only focus on those acts which constitute crimes within their specific jurisdiction. The ‘law-affirming’ lens may appear a slightly less systematic selection as it reveals a fairly specific bias of ICT judges. However, it leads to one of the more interesting conclusions on the inability of ICT judges to see how law can oppress people – which is relevant across many situations and cases.Footnote ⁴

Zammit Borda continues his discussion of ICTs’ limitations when writing historical narrative by comparing legal and historical epistemology – that is how lawyers and historians come to know facts (Ch 6). The question raised here is whether the truths that ICTs produce are historical truths in the sense that historians would use the term.Footnote ⁵ This question is vital as very few people would dispute the idea that ICTs produce facts but the question of whether they produce historical facts or historical narratives is more contested.Footnote ⁶ As he does throughout this volume, Zammit Borda answers this question in a suitably nuanced fashion. He finds that some aspects of the legal process make it more or less conducive to the production of historical knowledge.Footnote ⁷ In fact, some aspects of the process can be both conducive and detrimental to this production. The adversarial process is a particularly interesting example of this phenomenon.Footnote ⁸ Zammit Borda argues that the pitting of the defence and prosecution narratives of the crimes against each other in court can allow for assumptions and evidence to be tested in historically rigorous ways but that the process only allows for two distinct possible narratives to be tested in this way.Footnote ⁹

This analysis quickly runs into the question of what exactly a historical narrative is as opposed to a legal one.Footnote ¹⁰ This question is quite difficult to answer given the many debates within history academia.Footnote ¹¹ After an acknowledgment and discussion of the most relevant of these debates, Zammit Borda decides that the most relevant question is whether ICTs produce some form of historical narrative or whether they solely produce so-called collective memory.Footnote ¹² The essential differences between the two are the degrees of transparency about selectiveness and biases and of diligence with which evidence is examined – with historians being more transparent and diligent.Footnote ¹³ He finds that ICTs produce something in between history and collective memory because they are diligent in their examination of evidence but can be less transparent about certain choices and biases.Footnote ¹⁴

Given that the comparison between collective memory and history does not lead to a concrete answer on whether ICTs produce historical narratives, there is the possibility that historical narrative versus collective memory is not actually the most relevant question. It is certainly a logical question given the literature that Zammit Borda cites on history-writing by ICTs, but it is possible that a historian would disagree.

The final chapter before the brief conclusion brings together this discussion on limitations of ICTs in writing history and suggests a novel framework for ICTs to acknowledge these limitations and produce the most accurate and intellectually honest histories (Ch 7). Zammit Borda also draws from his earlier chapter on the relevant theoretical debate to elaborate on the reasons why ICTs should be concerned with writing history at all. The most persuasive of his reasons is the simple fact that ICTs do produce historical facts – whether they intend to or not.Footnote ¹⁵ Many international crimes require an understanding of historical context that obligates ICTs to engage in historical fact-finding and debate. Additionally, the historical facts that they do arrive at are produced through a rigorous process of testing evidence that encourages other actors to believe them and to incorporate them into other conflict resolution processes.Footnote ¹⁶ Since ICTs do produce historical truths and historical narratives that are believed by the public, they must be responsible in how they find and tell these truths and narratives.

A slightly less convincing argument is one based in the emerging right to truth.Footnote ¹⁷ The connection between the right to truth and the right to have ICTs write the history of conflicts is not immediately clear. A victim’s right to know the truth about what happened to them does not necessarily include a right to know the historical circumstances surrounding it or to have that history narrated to them. As an example, Article 24 of the Convention on Enforced Disappearances grants victims’ families the right to ‘the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person’. It is not clear whether these facts about the specific incident would also have to include historical narratives. Nonetheless, Zammit Borda’s argument from the inevitability of ICTs writing historical narratives is persuasive and makes the reader curious about how ICTs can ensure that they write these narratives responsibly.

There are four elements to Zammit Borda’s responsible history framework: i) ICT judges must acknowledge the importance of writing history,Footnote ¹⁸ ii) ICT judges must write history sincerely and accurately,Footnote ¹⁹ iii) ICT judges must recognize their limitations,Footnote ²⁰ and iv) ICT judges must recognize that they do not necessarily have the final word on history.Footnote ²¹ This framework allows the author to lay out disparate ideas in an organized and understandable way. In the context of the book, the elements of this framework appear obvious which is most likely a sign of the persuasiveness of Zammit Borda’s arguments. Acknowledging the importance of writing history is necessary for ICT judges to engage in any form of responsible history writing. ICT judges should unquestionably tell the truth by doing everything within their power to discover the truth (accuracy) and only saying what they believe to be true (sincerity). Earlier chapters on lenses and legal epistemology make clear what limitations judges must look out for and acknowledge. The element of recognizing that ICTs cannot have the last word is a newer introduction but a vital one given the legal finality of ICT judgments and the constant evolution of historical narratives.

Overall, Zammit Borda provides a nuanced, novel, and practical analysis of the problems and possibilities inherent in ICTs writing historical narratives. He also produces a pragmatic and relatively easy to implement framework to ensure that the histories that ICTs write are as accurate and useful as possible. He threads theory and case law together to create an accurate picture of where theory can helpfully guide ICTs in their work. He goes beyond the theoretical debates on the wisdom of ICTs writing history to persuasively argue that ICTs are currently writing a history that is listened to and that they must do that responsibly.