The Emergence of Historical Forensic Expertise. Clio Takes the Stand

With his broad overview of how historical forensics became part of the judicial process, and how historians gradually entered the courtroom as experts, Petrović makes a welcome original contribution to an area that is not well covered in the literature. He argues that historians were amongst the last to enter the courtroom, one of the reasons being, paradoxically, that law and history are so intertwined that they make odd bedfellows, giving rise to repeated statements of their incompatibility. Judges measure events against the prevailing legal criteria, assessing whether individuals are guilty of having committed certain crimes, whereas historians interpret the past by striving for objective academic accounts, keeping scholarly distance and detachment. In normal circumstances, the legal profession cannot do much with general historical judgements, while historians resist individualised judgements of the legal kind.

Nevertheless the last 120 years or so have seen a gradual normalisation of historical forensics in court, and that is the process this book analyses in great detail, a recent example being the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague. The first historians entering the courtroom in the late nineteenth century adopted an auxiliary role, being assigned the task of assessing the authenticity of documents. In the following decades historians remained nonetheless reluctant to enter the court-room as experts, and this only changed after World War Two, with attempts to achieve some form of justice in the case of the Holocaust. The dramatic scope of the state-sponsored violence unleashed by the Nazi regime brought about a fundamental shift in the relationships between law and history, as it was a whole regime— and ‘history’ itself—that was brought to court, not just individuals who committed crimes. As history was brought to the stand, historians had to follow suit. The legal profession, particularly prosecutors like Fritz Bauer, a Jewish legal expert who had returned to Germany in 1949, relied heavily on the expertise of historians, to provide historical background and context to the Nazi crimes. During all stages described in the book, debates about the viability of this interdisciplinary cooperation flared up, and scepticism remained, although the overall trend has been one of increased acceptance and normalisation of historical forensics.

The neglected history of historical expert witnessing is the principal theme of this book, and in both the introduction and conclusion (a section titled ‘Implications’) Petrović writes that it makes sense to produce an overview of the evolution of historical expert witnessing to extract some kind of positive learning curve and avoid repetition of the debates of the past. Even though he acknowledges to have started to investigate the topic from the inside—being an intern at the War Crimes Prosecutor’s Office in Serbia and at the International Criminal Tribunal for the former Yugoslavia in The Hague—there is surprisingly little this book teaches any readers specifically interested in Southeastern Europe regarding the use of historical forensics in war crimes trials related to the former Yugoslavia. It is as if the author wrote the book for an audience who is familiar with this story or has even acted as an expert witness at the ICTY themselves. I am sure that even ICTY expert witnesses (like myself) would have appreciated an informed historical and comparative assessment of how historical forensics has evolved in the jurisprudence around the Yugoslav wars. The author may have had very good reasons not to include this most recent part of the story, but he never makes these reasons explicit.

It is understandable that Petrović wanted to provide a broad historical overview and scrutinise the origins, transformations and varieties of historical forensics, rather than focus on its latest incarnations. He shows how historical expert testimony became an established, albeit debatable, practice; and how historical forensics worked differently in the two major legal systems, that is, in common law with its adversarial procedures as practiced in the US, and civil law with its inquisitorial procedures being the rule in continental Europe. In the former system ‘expert witnesses’ are used by the prosecution and defence whereas in the latter ‘experts’ are commissioned by the judge, if the judge deems his or her knowledge of an issue to be insufficient. The role of experts has differed across time and space: ‘Historians’ forensic contributions come in all shapes and sizes’ (3). The role of the expert witness can be usefully compared to that of the eyewitness, who can help establish the facts through physical proximity, while the expert witness’s contribution is based on scholarly knowledge.

The book is divided into three parts, each consisting of two chapters. The first part (‘Inceptions’) looks at the first court-room performances of historians in the Dreyfus and Friedjung cases. In the post-World War One climate of revisionist historiography in Germany, historical forensics played no role worth mentioning. Historians generally withdrew into their (national) academic ivory tower presuming the implicit theory of the incompatibility of law and history. After the devastation of World War Two, the first cracks appeared in this presumed incompatibility with the creation of the International Military Tribunal of Nuremberg, where the Nazi elite were dragged to court. Collective historical injustices were put on trial and not just individual crimes. As prosecutors put history on trial it was a matter of time also for historians to appear in court.

Part 2 (‘Improvisations’) looks at historians soon becoming regular characters in courtrooms. The author compares Germany and the US, where social scientists and historians were enrolled as expert witnesses in trials against racial segregation and supporting native Indian claims on land. In Germany there was a large amount of archival material from the Nazi period to be consulted, which led to the creation of several contemporary history institutes, first and foremost the Institute for Contemporary History in Munich, investigating the recent German past. They produced reports on various aspects of that past for the authorities and the courts. Although in this period, the prosecution of war crimes was not always high on the agenda, key figures like the mentioned Fritz Bauer were determined to bring Nazi war criminals to justice. He mobilised the expertise of historians, analysing the vast archival documentation that would help to charge the accused.

Part 3 (‘Intersections’) looks at the normalisation and institutionalisation of historical forensic expertise in the 1960s, in particular with the Eichmann trial (1961) and the Auschwitz trial in Frankfurt (1963-65). Both dealt with the Holocaust as the crime of crimes, the Eichmann trial from the top, the Auschwitz trial at the grassroots level. The prosecutor in the latter, Fritz Bauer, commissioned comprehensive historical expert reports, particularly from historians working at the Institute for Contemporary History in Munich. The judges in Frankfurt referred extensively to the historical context in their verdicts, before determining the individual responsibilities. As Petrović writes, this was a victory for Bauer and for the concept of historical forensic expertise, which started to take centre stage and became indispensable for example in establishing the context of the territories occupied by the Nazis.

A model of cooperation emerged and historical expertise became firmly established in the German courts, although the marriage between historians and legal professionals in court continued to be fundamentally questioned by people like Hannah Arendt. Petrović argues that German historiography underwent a process of re-moralisation, discarding the idea of the neutral historian, which threatens to turn ‘tout comprendre’ into ‘tout pardonner’ (214). In the US a similar process occurred amongst historians engaging with racial segregation and anti-discrimination cases. US academics joined the Civil Rights Movement, inscribing the moral relevance of historical scholarship and helping to rectify historical injustices. This was part and parcel of a turn towards global, comparative and contemporary historiography, revolving around concepts of universal human rights, willing to contribute to the key issues of the time and the problematic and traumatic aspects of the recent past. Petrović argues that we have now arrived at ‘a point of no return’ in the normalisation of historical forensics: ‘Legal confrontation with this bad past eventually dragged the historians into the arena, for better or worse’ (8).

In my view, the author could have done more to illustrate and make visible the presumed incompatibility between law and history, for example by showing how disciplinary habits may differ and sometimes lead to clashes in the courtroom. Law and history have different objectives, canons of evidence, and logics of argumentation, and how this works in practice would have made this notion of incompatibility more tangible. In spite of this and some other omissions, notably the non-inclusion of the ICTY, the book provides a thorough and comprehensive analysis, based on superb and in-depth knowledge of this topic. It is an absolute must-read for anybody interested in historical forensics at the interface between historiography and legal practice.