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. 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.

In order to demonstrate this point I have examined case law at the level of the ICTR, SCSL to show how the cultural context of international cases may be overlooked or undermined by the judiciary. At the ICTR I analyse and rely on the insights of Nancy Combs amongst others to show how culturally loaded witness testimony in the Rutaganda case and other relevant case law can impact the fairness of a case. Here I demonstrate how miscommunication based on language and body language can be wrongly perceived and mistakenly assessed.

Similarly from the SCSL I respectively rely on case law such as the CDF (Civil Defence Forces) case and the AFRC (Armed Forces Revolutionary Council) case to show how judges sidestepped the tricky issue of supernatural power and the law because they were not culturally competent enough to deal with these issues, and that lack of clarity and substantive vagueness with regard to the definitional elements of forced marriage impacts an accused’s right to be afforded a fair trial. In the latter case I discuss the thin line between customary marriages and forced marriages. In order to strengthen my analysis of the case in question I have relied on anthropological insights from Tim Kelsall and Rene Provost amongst others to further prove my points.

I then examine ICC case law to demonstrate the same, namely that if the Court fails to take into account the history and cultural background of the accused and if it  overlooks either advertently or inadvertently cultural factors that do genuinely play a role in the determination of an accused’s guilt or innocence for fear of compromising the accepted standard of rationality, it may willingly or unwillingly violate an accused’s right to be afforded a fair trial. Here I relied on the Lubanga and Bemba cases to prove these points.

In Lubanga I specifically put emphasis on the issue of voluntary recruitment and by implication, the consent of child soldiers together with the related concept of childhood and the determination of the age of a child soldier, all of which might have an impact on the mens rea of accused who has been charged with the recruitment and conscription of child soldiers. I pay particular interest to the difference as posited by David Rosen of “a child in culture and a child in law” to explain how such a difference can uniquely impact the mens rea of an accused. I also rely on the insights of Drumbl and Shepler to suggest that child soldiers can in certain contexts can be viewed with more agency and mental maturity and while not physically mature may in fact be more mentally older to strategize and take certain decisions. In I put forward the argument that because children do not age uniformly both on a physical and mental level the the actual age of a child needs to be determined in each context especially if the accused’s mens rea is is found to be diminished in such instances and thus must be afforded a fair trial. ( I have addressed this issue briefly in another post)

In the Bemba case on the other hand I show how the doctrine of command responsibility could be difficult to transpose onto loosely structured militia groups in certain parts of Africa as well onto the authority and leadership of an accused who may not qualify as a commander as such as in my opinion was wielded in the Bemba case. I draw on the insights of Hoffman, Kelsall and Kubai to show that in the Bemba case the Chamber made its analysis based on conventional western, strict hierarchies and linkages and that it did not consider that the MLC did not function according to a strict conventional military structure and command based on their changeability and instability consistent with an existing militia structure operating in the CAR. ( This issue has also been briefly written on in a previous post)

Finally as a solution to dealing with these issues I have explored what could be a third way response to ICL and for the ICC to consider. As a solution I thus put forward that ICL and the ICC consider a cultural defence in certain instances. However, I do not go the full mile and  advocate for a full defence of culture, but rather for a moderate model as suggested by authors such as Ben-David. I explain how this moderate cultural defence could operate in a hypothetical example namely the Dominic Ongwen case currently at the ICC, by employing its use within the framework of existing defences available to Ongwen at the ICC. (See a previous post on this issue)

The aim of drawing attention to cultural issues in closing has been mainly to assist the ICC in increasing its legitimacy not only with African states parties but with those states parties who are already pluralist in its legal traditions and to ensure that the rights of the accused namely fair trial and culture are properly balanced against each other. The solutions I have advocated for in my book are consistent with the spirit and purpose of the Rome Statute. So for those of you who are interested in these issues, my book aims to provide a balanced approach to culture and the law which most often is considered to be in antithesis to one another. I must also add that the purpose of the ICC in obtaining cultural legitimacy is pivotal to its future existence and to the fair application of the Rome Statute and I am optimistic that the insights that I have laid down in this book will be of vital use to the Court and to other judicial institutions with multicultural societies who would be interested in exploring the intersections between culture and the law. I would recommend it to anyone who is interested in issues relating to the legitimacy of international criminal law and international courts and tribunals through an examination of culture in general.

Posted by Ingrid Roestenburg Morgan