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The Historical Function of International Criminal Trials: Re-thinking International Criminal Law

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The establishment of the International Criminal Court provides an opportunity to re-think international criminal law and procedure, and to develop a more coherent theory of international criminal justice. This article argues that increasingly the demands placed upon international criminal trials go beyond the process of securing convictions. There is an increasing expectation that such trials will contribute to broader processes of social recovery and reconciliation. Claims are also made for their having a pedagogical and documentary role. To this end, the author proposes the recognition of an historical function of international criminal trials. This is suggested as best forming part of the variety of policy rationales which underpin the processes of international criminal law. It is conceded that overemphasising the role of history could be dangerous and infringe upon the rights of the accused, but it is argued that underemphasising the role of theory and history is unsatisfactory. The article concludes that recognition of an historical function for international criminal trials involves tensions, but will provide a framework and rationale for a more narrative-based and victimfocused system of international criminal law which might provide an important discursive beginning for victims and affected communities, whilst balancing due process concerns.


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