History, Memory, and the Law: The Historian as Expert Witness

There has been a widespread recovery of public memory of the events of the Second World War since the end of the 1980s, with war crimes trials, restitution actions, monuments and memorials to the victims of Nazism appearing in many countries. This has inevitably involved historians being called upon to act as expert witnesses in legal actions, yet there has been little discussion of the problems that this poses for them. The French historian Henry Rousso has argued that this confuses memory with history. In the aftermath of the Second World War, judicial investigations unearthed a mass of historical documentation. Historians used this, and further researches, from the 1960s onwards to develop their own ideas and interpretations. But since the early 1990s there has been a judicialization of history, in which historians and their work have been forced into the service of moral and legal forms of judgment which are alien to the historical enterprise and do violence to the subleties and nuances of the historian’s search for truth. This reflects Rousso’s perhaps rather simplistically scientistic view of the historian’s enterprise; yet his arguments are powerful and should be taken seriously by any historian considering involvement in a law case; they also have a wider implication for the moralization of the history of the Second World War, which is now dominated by categories such as “perpetrator,”“victim,” and “bystander” that are legal rather than historical in origin. The article concludes by suggesting that while historians who testify in war crimes trials should confine themselves to elucidating the historical context, and not become involved in judging whether an individual was guilty or otherwise of a crime, it remains legitimate to offer expert opinion, as the author of the article has done, in a legal action that turns on the research and writing of history itself.