Wednesday, 13 February 2013, 1:00PM
Barnard's Inn Hall

Legal Process as a Tool to Rewrite History - Law, Politics and History

Professor Sir Geoffrey Nice QC

Trials at the ICTY concerned political violence and criminality that resulted from disintegration of a federation from which seven new successors states were formed.  That process has been defined as a 'clash of state projects', where violence happened in areas claimed by two or more parties, or an aspiring state. The war crimes trials at the ICTY that resulted from overlapping territorial claims in Croatia, Bosnia and Kosovo produced a huge record of trial evidence. Problems in the very small state of Kosovo may be seen as the beginning of the violent process of disintegration, now known loosely as the Balkan wars of the 1990s. The conflict in Kosovo of 1998-9 may be seen as the end of those wars.  Kosovo now seeks global recognition as an independent state but faces opposition both as to its international legal entitlements and as to how its history in the conflict should be viewed. 

Conflicts in the small state of Bosnia may be seen as the heart of the 1990’s Balkan wars. Bosnia’s complex constitution and uncertain political equilibrium have left it with an insecure future. ICTY trials had several objectives, including bringing retribution and achieving deterrence but they never sought to write history and those who would seek historical truth in the trial record might be disappointed; every trial record produces at least two competing narratives, a Prosecution narrative and a Defence narrative or narratives, neither / none of which may be accurate. Yet outside the courtroom, the trial record will be used - or abused - for shaping the collective memory of the peoples and nations involved and for providing an overall narrative of the wars themselves. 

The struggle for the interpretation of historical events through the trial record might be as important in long run as the determination of guilt or innocence of the individuals tried. 

Kosovo and Bosnia both face a former foe – Serbia - which might like to leave a ‘historical record’ that suggests moral equivalence between Serbia and Kosovo and between Serbia and Bosnia.  The ICTY’s policy of prosecuting representatives of all states /entities involved in the wars, may have contributed, some argue, to a  concept of 'proportionality of criminal responsibility’ that may assist Serbia in achieving this goal.  In any event, Serbia may have shown itself skilful in the use of the court system and of the court record to write or re-write narratives of the conflicts in Kosovo and Bosnia? If it has, how can Kosovo and Bosnia fight back and write their own – or at least better - narratives?  

This is a part of Sir Geoffrey Nice's 2012/13 series of lectures as Gresham Professor of Law. The other lectures in this series are as follows:
    International Criminal Tribunals
    The end of Slobodan Milošević
    The ICC and Africa
    State Involvement in War Crimes Trials
    Regulation at home, but not abroad

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Sir Geoffrey Nice QC has practised as a barrister since 1971.  He worked at the International Criminal Tribunal for the Former Yugoslavia – the ICTY – between 1998 and 2006 and led the prosecution of Slobodan Milošević, former President of Serbia.   Much of his work since has been connected to cases before the permanent International Criminal Court – Sudan, Kenya, Libya – or  pro bono for victims groups – Iran, Burma, North Korea – whose cases cannot get to any international court.  He works for several related NGO’s and lectures and commentates in the media in various countries on international war crimes issues.  He has been a part-time judge since 1984 sitting at the Old Bailey and has sat as judge in other jurisdictions, tribunals and inquiries.  Between 2009 and 2012 he was Vice-Chair of the Bar Standards Board, the body that regulates barristers.

The six free public law lectures for 2013/14 Sir Geoffrey delivered as Gresham Professor of Law included four lectures on how legal process can fail the citizen in armed conflict, one explaining advocacy work in courts, and a final lecture covering recent legal changes.

The first five of his 2012-13 lectures dealt with issues arising from the work of international criminal courts and tribunals.  The sixth contrasted the practice of law in international criminal courts where there is little or no effective regulation of lawyers and judges with the present working practices of the English Bar.

Professor Sir Geoffrey Nice QC continues his Law series in the 2015/16 academic year, entitled 'Law and Lawyers - not all bad?'.

Professor Nice's previous lecture series are as follows:

2015/16 Law and Lawyers - not all bad?
2014/15 From Human Rights to Srebrenica
2013/14 Law Lectures by Professor Sir Geoffrey Nice QC
2012/13 International Criminal Courts

All of Professor Nice's past Gresham lectures can be accessed here.

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13 February 2013

Legal Process as a Tool to Rewrite History - Law, Politics and History
Professor Sir Geoffrey Nice QC

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