A SENSE OF GRIEVANCE

Many defense lawyers in international criminal trials have had recourse to historical arguments, believing that they provide the key to understanding the motivations for violations of international humanitarian law. As with prosecutors, however, a variety of views exist on the topic, and some defense attorneys recoil from using historical evidence in their cases. One prominent defense lawyer, Michael G. Karnavas, president of the Association of Defense Counsel of the ICTY, has maintained that it is “false and erroneous to assume that a court is there to find historical truth.”

As with previous chapters on the prosecution, this chapter explores the legal incentives for including historical arguments in defense cases. And yet one needs to acknowledge at the outset that there are compelling nonlegal reasons at play as well, because generally speaking, history matters more to the accused as an end in itself. It also carries weight with the audience back at home and with a majority of defense lawyers from the region.