The Creation and Protection of History through the Prism of International Criminal Justice in Al Mahdi

In: Journal of International Humanitarian Legal Studies
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  • 1 University of Canterbury, College of Business and Law, New Zealand
  • | 2 School of Law, Oxford Brookes University, UK

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This article examines the role that international criminal justice plays, firstly in creating history, and secondly in protecting history. With regards to the former function, history, in terms of historical truths and narratives are frequent casualties of war and so the first major thread of this discussion outlines the historiography of international criminal justice through the prism of the illustrative case of Al Mahdi before the International Criminal Court. In other words this paper aims to set out an overview of the approaches and strategies as well as the constraints within which international criminal justice develops historico-legal narratives when pursuing its primary goals of retribution and deterrence. With regards to the latter function, history, in terms of cultural heritage, may often be destroyed in order to annihilate the identity and even the existence of a people. Accordingly, the second major thread of this discussion is that when it comes to memorialising the significance of cultural property and the impact of its destruction for the benefit of our collective memory, Al Mahdi is an emblematic case. It represents a careful balance between legal pragmatism and legal principle in a context where the icc arguably has to manage greater budgetary and therefore strategic constraints than those faced by the ad hoc tribunals for the Former Yugoslavia and Rwanda, which have been criticised as being too expensive and too expansive in responding to atrocity crimes.

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