Uses and Misuses of History in International Criminal Justice and Intertemporal Law

This chapter will discuss two phenomena in the field of international criminal justice which both relate to time: the politics of historical truth-seeking and intertemporal law. The concept of truth may be given either a broad or a narrow meaning. Broad in the sense of seeking to set the historical record of a broader course of events straight, or narrow, by merely focus on the individual responsibility of a defendant. The middle ground would be to acknowledge that although the task of judges is narrow, atrocity trials may, as a side effect, contribute to writing historical narratives. The intertemporality of law deals with the dilemma that a court’s pronouncement of a legal rule does not necessarily mean that the legal rule came into existence at that same point in time. The cause of this phenomenon is that international courts do not create binding legal precedents. Thus, it is difficult to pinpoint when a specific rule was established. It is not enough that an international court pronounces what appears to be a new rule. For the rule to be binding, we have to search for state consent, in one form or another, or create a fiction that such consent existed when the rule was pronounced.