History on trial

Should historians give evidence in the courtroom? That's a question on many people's lips after academics were called as expert witnesses during a recent court case on the British torture of Kenyans in the 1950s Mau Mau uprising. Katie Engelhart reports

The three Kenyans who were tortured by British forces in the 1950s are joined by supporters at a demonstration outside the Royal Courts of Justice. (BEN STANSALL/AFP/Getty Images)

This article was first published in the April 2013 issue of BBC History Magazine

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The British Empire is in the dock. Early last October, a London high court ruled that three elderly Kenyans who were savagely abused by British colonial officers in the 1950s could bring a case against the British government. For the first time, colonial victims have a green light to sue their former British colonisers.
The case made headlines across Britain. Yet little thought was given to three of its leading participants: the professional historians called to court by the Kenyan claimants to provide historical context.
History is on trial. In Europe, the past is being dragged reluctantly before judges and juries. In many of these trials, historians serve as expert witnesses: filling the role, say, that a psychiatrist might play in a murder trial, or a ballistics specialist might play in a military case.
This is a new phenomenon. And indeed the ‘historian witness’ is the inspiration of a raucous debate about the historical profession’s raison d’être. Can historians be activists? Is there space in court for scholarly rigour? Many academics argue that historians and the law are unhappy bedfellows. “In my soul and conscience, I believe that historians cannot be ‘witnesses’,” wrote French historian Henry Rousso. “It is one thing to try to understand history in the context of a research project or a course lesson… it is quite another to try to do so under oath when an individual’s fate hangs in the balance.”
And yet, more and more historians are taking on judicial roles – in trials that involve crimes that were committed decades ago.
David Anderson of Oxford University, one of the witnesses in the Kenya case, admits that this is cause for disquiet. “There are real dangers here for the independence of scholarship,” he says. “But there are also ethical and moral obligations; as historians, we cannot ignore evidence of atrocity and crime when we come upon it.”
The ‘historian witness’ is an American import: born in the civil rights struggles of the American South. Three historians offered evidence in the landmark 1954 trial on racially segregated schools, Brown v Board of Education, in which segregated schooling was declared unconstitutional. The historians testified about the history of segregation, arguing that it was born of long-standing racism.
Today, historians are fixtures in American trials. They’re active in Native American land claims, discrimination suits and disputes over old artwork. They’re also used in product liability cases – testifying, for instance, about when tobacco companies discovered the health risks of smoking, and whether they would have been compelled (by the medical mores of their time) to tell customers.
In Europe, historians have long lent helping hands to judges in need. In the famous 1898 retrial of Alfred Dreyfus, French historians verified documents. But it was a spate of Holocaust-related trials that propelled historians into European and Middle Eastern courts.
Historian Salo Baron appeared at the 1961 trial in Israel of Adolf Eichmann, the Nazi lieutenant who scheduled trains to concentration camps. Baron, a Columbia University professor, testified broadly about Jewish life and culture pre-Holocaust.
A few years later, historians prepared background testimony for the Frankfurt Auschwitz trials in Germany, which prosecuted low-ranking concentration camp officials.

Nazi militiaman

In the 1990s, historian witnesses were called to Versailles for the crimes against humanity trial of Paul Touvier, who had been a militiaman in Nazi-occupied France. The amount of time that had passed meant that most members of Touvier’s jury were not even alive during the war – when Touvier ordered the early-morning, point-blank execution of seven Jewish men. The historians’ role was to provide context by creating a picture of war-torn Europe.
The Second World War – or, rather, the writing of it – was at issue again in the 1990s, when David Irving sued fellow historian Deborah Lipstadt for libel, after Lipstadt branded him “one of the most dangerous spokespersons for Holocaust denial.” Early on, Cambridge University historian Richard Evans was called in, essentially, to judge whether Irving was a bona fide historian or a liar. Evans’s opinion (expressed in a 740-page report, 28 hours of in-person testimony and, later, a book) was that Irving was undeserving of the name historian. Evans accused Irving of “manipulate[ing] and distort[ing] the documents” in an effort “to exculpate Hitler”. (Irving’s case was thrown out.)
At The Hague, home of the International Criminal Tribunal for the Former Yugoslavia (ICTY), a group of historians are teaching judges and lawyers about the 1992–95 Bosnian War. Robert Donia is one of them. His first appearance before the court, in 1997, felt pretty academic. “I lectured for five or six hours,” he recalls. “I went way back to the Slavic migrations of the fourth to eighth centuries.” Fifteen years later, those lectures are much briefer. Lawyers have learned their broad history – and now want evidence on minute events.
Back in London, historians involved in the ongoing Kenya case are working hurriedly on behalf of the three Kenyans who allege that they were beaten, raped and castrated by British officers, during a violent counter-insurgency in the 1950s.
In their witness statements, the historians have helped lawyers make a difficult, but legally critical, leap: from individual colonial officers to the grand chambers of Whitehall. Violence against Kenyans, the historians charge, was part of a government scheme, and not rogue acts by rogue officers.

Pol Pot’s regime

The historian witness has become a global staple in mass atrocity cases. Historians were involved in South Africa’s post-apartheid ‘Truth and Reconciliation Commission’, and in the trial of Cambodia’s Pol Pot regime.
It’s not surprising, then, that businesses are rushing to capitalise on the trend. Consultancies like the US-based History Associates Inc promise to link up litigious clients with relevant experts, boasting: “Our professional historians have the knowledge, skills and expertise to address your historical questions.”
That’s a tall order. And historian witnesses have attracted their share of critics, who insist that courtrooms are hostile to nuanced scholarship. History is uncertain; lawyers want guilt or innocence. Historians opine and speculate; witnesses must swear an oath that their testimony is the truth. When historians testify in court, opponents charge, you get a bastardised version of history.
It’s true that fiery cross-examinations are alien to the lonely scholar. Historian David Anderson hasn’t testified in person yet – but he might have to. “I will not decline,” he says “but I am aware that it is likely to be a far more hazardous task than writing a formal statement… In the cut and thrust of question and answer I am sure it may prove more challenging to stick rigorously to the evidence.”
And then there’s the politics. Historians are often called to court by a specific side: prosecution or defence. By their very nature, they aren’t neutral figures. Sometimes they volunteer, but other times they are handsomely paid. Can their scholarship still be trusted?
Some core questions emerge. Should historians be advocates? Or is good history always disinterested? Can historians be certain enough about anything to swear an oath on it?
But perhaps pragmatism should reign. Courts are going to rule on historical issues, whether historians like it or not. At the least, they should have the best evidence from the most qualified experts at their disposal.
Caroline Elkins, a Harvard University historian, says she had “no reservations” about taking part in the Kenya trial. The trial has been politicised, Elkins grants. But her role is simply to recount what happened, from the perspective of a scholar. “If I had been asked by the defence to offer my services,” she insists, “I would have done the same.”
Katie Engelhart is a writer and journalist. She has studied modern European history at Cornell University and St Antony’s College, Oxford University