Wednesday, December 5, 2018

Exploring the Cultural Legitimacy of the International Criminal Court



In January of this year I successfully defended my Ph.D thesis entitled “The Road to Reconciliation? Optimizing the Legitimacy and Efficacy of the International Criminal Court within the African Union and in Africa.” This book will be published in 2019. The stimulus for undertaking this piece of research was based on the fact that at some point all cases before the International Criminal Court had been opened exclusively in Africa. As a result the African Union over these past years regularly threatened mass withdrawal from the ICC on the basis of selective prosecution that had exacerbated ties between both institutions. Further developments included the failed Kenyan cases at the International Criminal Court where the Prosecutor was forced to drop charges against Kenyan President, Uhuru Kenyatta for lack of evidence leading to a further deficit of legitimacy within the AU and in some parts of Africa. Other developments also saw South Africa formally deposit its instrument of withdrawal from the ICC as well as The Gambia and Burundi following suit. Given these developments and on hindsight this piece of research in my opinion has proven to be invaluable, actual and relevant over these past years.

While my book in effect explores three main deficit areas of the International Criminal Court’s legitimacy such as its institutional legitimacy, jurisdictional legitimacy and cultural legitimacy, if objectively viewed from beginning to end this piece of research weaves in aspects of culture as viewed from an African perspective that are at odds with international criminal law and thus in effect poses problems at the level of the ICC. So the book essentially focuses on the ways in which the Court can develop a better understanding of Africa, and advocates a practical approach to implementing a more culturally attuned way to enforcing international criminal justice. I would like to boldly add here that the issue of law and culture has never been explored from a perspective that merges most cultural conundrums that affect ICL, and more importantly by an African scholar such as myself, and while there are many wonderful authors who have explored the issue of culture and the law either from an anthropologically exclusive perspective or from an international legal perspective nobody has combined all these issues so comprehensively in a compilation on ICL and the ICC as yet. Credit must be given to the insights of authors such as Tim Kelsall, Rene Provost, Nancy Combs, David Rosen, Susan Shepler, Mark Drumbl, and Alison Rentelen amongst many others, whose wonderful work I am in awe of, and whose research has proven invaluable to my final insights in this book. The relevance of exploring culture in conjunction with international criminal law and human rights has ultimately been to contribute towards a more effective and optimistic cooperation between the Court and the African Union, and generally a better cooperation with Africa as well. I am proud to stress that the end goal of my research has thus been to facilitate reconciliation between the Court and the African Union, and by extension reconciliation with Africa in general.

For purposes of this blog post however, I will specifically cover the issue of cultural legitimacy which I address in detail in one portion of my book. There will be two additional blog posts that will focus on the remainder of my research namely the ICC’s institutional legitimacy and jurisdictional legitimacy, but for purposes of this present discussion I will zoom in on the cultural aspects that are at odds with with International Criminal Law.

Under the section of of cultural legitimacy in my book, I start off by exploring what would be the most culturally legitimate approach that the disciplines of human rights and international criminal law could adopt from a moral and ideological perspective. Here I delve into the debate on universalism and relativism and finally concede that a third way or middle way approach might be the most viable approach to increase popular support across a diversity of cultures both for human rights and ICL. A third way approach that I advocate for is one that commits to universal standards but at the same time takes cognisance of diversity, meaning that changing societal values must be taken into account in light of existing legislation in place. At the level of the judiciary, this would require a more teleological interpretation of the law instead of only the strict adherence to the literal letter of the law meaning that judges not only would need to be diverse but would need to represent a diversity of views. In other words judges would need to be open minded and culturally sensitive enough when adjudicating on the case in question. A third way approach would therefore be indicative of a pluralistic system that does not infringe on human rights or pivotal requirements of ICL but at the same time it would need to be flexible and practical enough to accommodate cultural pluralism.

At the level of the ICC this will speak to the multitude of constituencies that the ICC currently serves and more so to those that are deeply pluralistic societies such as African states parties and perhaps even Latin American states parties. In this way pluralism will ensure that the less dominant legal culture is protected against the dominant legal culture which arguably is the Western legal culture. Should the ICC for reasons of democracy and public policy take into account the reality of cultural diversity, and thus pluralism, it could garner more public support from its African constituents while still maintaining continued support from its Western constituency. Furthermore the benefits of pluralism for an accused would in turn mean that an accused’s right to culture is balanced with his right to a fair trial if cultural proclivities genuinely play a role in his/her case.

Aside from multiculturalism and pluralism a second area I explore are cultural paradigms that are currently facing the ICC. Here I have particularly delved into procedural and substantive aspects of ICL that are at odds with culture. Procedural problems take the form, where for instance witnesses from radically different cultural backgrounds are called upon to testify at the ICC, and linguistic diversity for instance poses a problem. Similarly I explore substantive aspects of of ICL such as the criminalising of certain acts as well as the definition of certain crimes that do not fit in to the 'mould' of another's cultural understanding of the act or crime in question that do pose a problem in ICL and subsequently also at the ICC. So cultural paradigms such as the genuine belief in magic, sorcery and witchcraft, differing cultural conceptions such as childhood, familial relationships, patrimony and sexual taboos although featuring often in international criminal trials have been overlooked or neglected because they cannot match up to or reconcile  with the “rational” disposition of judges and other legal professionals. These cultural paradigms if ignored can directly impact on the fairness of the trial and the quality of judicial determinations handed down especially when the mens rea of an accused becomes questionable.

Tuesday, May 8, 2018

The Veil of Sexual Shame: The Impact of Sexual Violence and its Social Stigma in the Case of the Rohingya



It has commonly come to be known that sexual violence is integrally associated with shame and stigma. The logic that aggressors employ in using this tactic as a weapon of war is usually meant not only  to undermine the individual but also the collective identity of an entire community. In this way aggressors destroy social relationships and the fabric of a community that thrive on traditional religious and moral understandings of the institution of marriage and family. In a recent UN Security Council Meeting dealing with the repercussions of sexual violence in conflict situations, Acting Special Representative of the Secretary General of Sexual Violence in Conflict Adama Dieng stated that not only does sexual violence “turn victims into outcasts by fracturing families and corroding community structures but it also prevents justice from really being done.” In Dieng’s words it is the “stigma that kills and prevents victims from coming forward.  Much of the time it is this fear and cultural stigma prevents most survivors from claiming their rights and the proper legal assistance available to them.
Social stigma associated with sexual violence may in some societies be even more pronounced than in others. Research has, for example shown that in the MENA region while the rate of sexual violence is quite high the prosecution and conviction of rape is quite rare. This can be attributed to the fact that rape victims will probably face a plethora of stigma associated with the crime, part of which includes dishonour and accordingly a diminished prospect at marriage. The severity of the stigma that attaches is evident through some of the laws that are promulgated in some Islamic countries which go as far as forcing rape victims to marry their rapists in an attempt to restore family honour and dignity. In such situations it is believed that the woman who has been raped is better off being married to her rapist as a trade for her decency and honour. No doubt this is where some people err and confuse Islamic law by mistakenly equating rape with adultery or fornication. Interestingly the Quaran condemns the crime of rape classifying it as one of the violent and vilest crimes and clearly denotes it as a form of terrorism.
Considering the social stigma of sexual violence, often faced in some communities it may not be so far fetched in trying to understand the recent events surrounding Rohingya particularly the plight of Rohingya women and children who have fallen prey to and who have become victims of sexual violence in recent months. The massive displacement of this Burmese ethnic group has reached a climax as of last year where approximately half a million Rohingya have fled the country leaving those displaced living in refugee camps all across neighbouring Bangladesh .  Since 1824 the Rohingya as a Muslim minority in Myanmar have faced and continue to face a plethora of discrimination. This has been due to the fact that they have been rendered citizenless following applicable legislation regulating their status in Myanmar and are therefore seen as illegally residing in the country. As a result, many have been unable to get access to basic human rights some of which include proper access to education, religion, healthcare, and employment.  
As a further consequence, tensions emanating out of the relationship between Buddhist and Rohingya in Rakhine state has further exacerbated matters and has acted as a catalyst in the most recent humanitarian crisis in Myanmar. This has led to large-scale attacks against Rohingya including large- scale sexual attacks where women and children have been indiscriminately targeted. Increasingly evidence confirms that Myanmar’s military uses systematic mass rape and sexual violence as a form of ethnic cleansing, the impact of which is to arguably destroy this ethnic minority. Employing sexual violence as a weapon of war has evidently demonstrated that such violations are so powerful in Rohingya communities that it threatens to derail family life and family honour. From interviews conducted with Rohingya victims of sexual violence it has become apparent that many victims of rape much of the time keep the details of their sexual violations a secret fearing that their status as ‘soiled’ women will not only undermine their existing relationships with family and friends but more so, the relationships they hold with their husbands. In other words, there is a fear that once their husbands discover that they have been sexually violated they might face further rejection and dispossession. Single women also face a similar fear and stigma, namely that they will never be married or desired as a prospective partner should their ‘status’ as one who has been sexually marred, come out into the open. An explanation for this might be that the violation in question is deemed to be so shameful that erroneously part of the blame falls on the victim rather than on the sole perpetrator/s of the crime. Women in some instances may thus be seen as complicit in the act of rape and may therefore be perceived as having sex outside the boundaries of their marriage union and their religion
It is not surprising, that perpetrators of sexual violence also realize these benefits and therefore employ sexual violence methodically, as an alternative to weapons, but nevertheless still as a very effective weapon of war.  What may however come across unusual, in this particular instance could be however, the fact that Buddhists who are much of the time considered to be peace loving and non-violent have been the ones who have been pivotal in orchestrating these vicious and planned attacks. This goes to show that Western understandings of Buddhism tend to idealize and romanticize Buddhism and that Buddhism  itself like any other religion may be prone to corruption and used to promote violence and extremism if wrongly wielded. This raises a number of issues that I will address in a future post, namely  the origins of violence in Buddhism as a means to political ends; additionally, the role of women in Buddhism considering the inferior position that women hold in Buddhist culture and relatedly, the role of sex in Buddhism if one considers the use and value of women as sexual consorts in Tantric Buddhism. Finally the reasons why anti-muslim or anti- Rohingya sentiment has been spreading in Myanmar will be pondered upon to consider the deeper issues at play.

Posted by Ingrid Roestenburg Morgan

Tuesday, April 24, 2018

A New Chinese Discourse on Human Rights





If you think that I intend to introduce my analysis of current Chinese discussions about human rights, you are mistaken, or at least not entirely correct. Human rights are being discussed intensely in China these days and the title of those debates is: ‘A new Chinese discourse on human rights’. The motivation for initiating such a debate at this particular moment should be easy to figure out. China is attacked on its human rights record from Western governments virtually on a daily basis. Whenever top Western politicians, e.g. my own Prime Minister and King recently, prepare for an official visit to China, fellow politicians and the local media vie for expressing the expectation that, while those envoys are discussing economic relations to ensure that we do no miss out on business opportunities, they will ‘mention human rights’. Those statements themselves are interesting material for discourse analysis. China will soon be the world’s largest economy and all nations want to cash in on that. China is liberally sharing its newly acquired wealth with other nations. The One Belt One Road initiative in combination with newly founded institutions like the Asian Infrastructure Bank, are linking the world’s fast developing high speed rail network (China’s, in case you are guessing) with the infrastructure of China’s neighbouring countries. These are all win-win projects. They benefit China’s economy and the economies of the neighbours alike.
This is a good point to return to the new Chinese discourse on human rights. The so called Universal Declaration of Human Rights is rooted in Western thinking. The very word ‘universal’ already indicates that the document is a product of universalist culture. The first clauses keep referring to the rights of the ‘individual’, similarly clearly showing roots in individualist cultureAs a result of China’s economic success, the one fifth of the world’s population living in China has access to sufficient nutrition, health care and education. The Chinese discourse regarding human rights so far was positioning that achievement as evidence of concern for human rights in China. This growing economic and political influence of former developing nations, led by China, is generating an increased pressure for a discussion about the conflicting rights of the individual and those of the social groups to which the individual is a member.
Many emerging economies are former colonies. They now find themselves frequently criticised by their former colonisers for ‘violating human rights’. However, the same former colonisers usually reject responsibility for causing the development gap. The new Chinese discourse on human rights addresses that issue by positioning the ‘right to development (RTD)’ as a prime human right. The commemoration of the proclamation of the RTD in 1986 was celebrated with a forum in Beijing in December 2016. An interesting detail is that only one nation opposed the proclamation of the RTD. That nation was itself a former colony and its Declaration of Independence contains a statement that ‘all men are created equal’.
Individualist – communitarian is not the only dimension for measuring national cultures, but it one that is best known by non-specialists. However, for people whose culture is on one end of that dimension, it is not so easy to grasp the way people on the other extreme makes sense of the world and their position in it. People who give priority to the rights of the group, when those rights clash with those of the individual, will have a problem with several of the clauses of the UDHR. Nations are large groups of people, and sometimes individual citizens need to cede part of their individual freedom for the benefit of their nation. The will, however, be able to share in that communal benefit, being the good citizens that they are.
The new Chinese discourse does not propose to replace the UDHR with another declaration but enrich it by adding a number of rights rooted in the cultures of the emerging economies. This also asks for a fresh approach to human rights in the developed, Western, world. A conflict between individual and group rights will be solved differently in strong individualist and strong communitarian cultures. Western nations need to stop interpreting the other approach as a violation of the UDHR, and instead see it as another way of implementing the same basic rights. Regional implementation of human rights needs to fit in the local culture and social practice.
In the coming months, I intend to contribute a number of posts to this blog, each based on another dimension of Trompenaars’ Seven Dimensions Model.

Guest Post by Peter Peverelli (Peter Peverelli is affiliated with the Cross Cultural Human Rights Centre at Vrije Universiteit Amsterdam)