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9 J. Int'l Human. Legal Stud. 1 (2018)

handle is hein.journals/jihuleg9 and id is 1 raw text is: 

                                                                  lU MANTIARrAN
 BRILL                     STUDIES  9 (2018) 1-60                 LEGALSTUDIES
NIJHOFF                                                           brilicom/ihis

The Creation and Protection of History through the

Prism of International Criminal Justice in Al Mahdi

        Shea Elizabeth Esterling
        Lecturer in Law; University of Canterbury, College of Business and Law,
        Christchurch, New Zealand

        Senior Lecturer in Law; School of Law, Oxford Brookes University,
        Oxford, UK


This article examines the role that international criminal justice plays, firstly in creat-
ing 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 In-
ternational 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 cul-
tural 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, AlMahdi 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 stra-
tegic 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.

© KONINKLIJKE BRILL NV, LEIDEN, 2019  DOI 10.1163/18781527-00901001

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