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. The issue of law and culture has never been explored
from a perspective that merges most cultural conundrums that affect ICL by African scholars. Many authors have explored the
issue of culture and the law either from an anthropologically exclusive
perspective or from an international legal perspective but very few have combined the interaction of these domains. The valuable insights of authors such as Tim
Kelsall, Rene
Provost, Nancy
Combs, David Rosen, Susan
Shepler, Mark
Drumbl, and Alison
Rentelen has added significantly to the insights contained 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. The end goal of my research has been to facilitate reconciliation between the Court and the African Union, and by extension reconciliation within 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.
