HIV/AIDS and Traditional Medicine

 Overview of HIV/AIDS (Stats)

Stacey Links PhD Researcher Receptor Approach

The HIV/AIDS pandemic, which broke out during the early 1980s has become an issue that has gained increased attention in all fields within a short amount of time.  The explosion of cases of the virus has had enormous effects not only medically speaking, but additionally across legal, social and particularly economic aspects of society.  To give a brief overview of the degree of the pandemic and its enormity: In 2011, there were approximately 34 million people living with HIV/AIDS worldwide. With this, Sub-Saharan Africa (Hereafter SSA) has been the worst affected accounting for more than two-thirds of all HIV/AIDS cases while South and South East Asia come in as the second most affected region.  In 2010, 69% of all HIV cases were in SSA, while 66% of all deaths related to HIV/AIDS were from SSA.  Globally speaking, South Africa is home to the largest population with HIV/AIDS.  To give some insight into the gravity of the problem by way of comparison, in South and South-East Asia in 2011 there were approximately 5million people recorded as living with HIV/AIDS.  South Africa, as a single country alone has 5.9million people living with HIV/AIDS.  This is of course merely a statistical insight into the enormity of the problem but nevertheless concisely indicates the gravity and depth of the pandemic.

HIV/AIDS as a virus is of course not geographically contained nor does it solely affect the developing world.  With that being said, there nevertheless exists a clear divergence in factors present in the developed and developing world.  These factors have affected the virus’s growth and path of development in distinct ways within these two regions. 

What has remained problematic in the developing world, however, are the discrepancies between the public and private domains regarding discussions on HIV/AIDS. In SSA the issue of HIV/AIDS has been relatively visible in the public sphere.  Publically speaking, by way of the dissemination of information, campaigns, rallies, and overall visibility, the issue of HIV/AIDS has been seemingly, albeit surprising to some, at the forefront of medical and social debate.  In the private sphere however, a very different story unfolds.  It is here in the private sphere that the ills and dangers of stigmatization and secrecy emerge. This stigma exists in a variety of forms, and is useful to deal with as a distinct phenomenon in its existence and functioning within society.  But first I will briefly lay out the issues surrounding traditional medicine and conventional biomedicine before getting to the issue of stigmatization. 

Dialogue in the Receptor Approach to human rights model: some lessons from Theatre for Development (TfD).

In this article I will first present briefly the idea of the receptor approach to human rights and the important role that dialogue as part of an effective communication strategy plays within it. I will then consider Theatre for Development as practiced in East Africa with a view to highlighting aspects in its process that I believe could be useful in strengthening of effective dialogue within the Receptor Approach to human rights.

The Receptor Approach to human rights is a practical and functional approach for the promotion of international human rights obligations in local contexts, according to which international human rights norms and local cultural practices could and should mutually reinforce each other. The Receptor approach borrows its name from the field of biomedicine, where receptor molecules residing on the cell surface or nucleus receive and transmit external chemical signals. These signals are usually loaded with specific instructions for the cell, controlling such vital functions as cell division, extinction, as well as entry and exit of substances to the cell membrane. For the communication to be effective, the signaling molecules (carried for examples in hormones, drugs and neurotransmitters) have to lock onto specific receptor molecules which then translate the signals into the desired actions.

The Receptor Approach analogously makes use of human rights receptors within cultural societies that provide a path through which both cultural and social institutions and treaty obligations can be received, analyzed, understood, translated and delivered for enjoyment by right holders. This approach therefore considers that international human rights will be most effective if they are able to lock onto social and cultural receptors. As such, it is a two way communication process to which effective dialogue is crucial.

The Receptor Approach is a two-step process that involves matching and amplification. Using established approaches from ethnography, it identifies the core elements of the international human rights regime and looks for analogous phenomena in the societies of the state party concerned. Consequently, the duty to implement a particular right may be matched by social institutions other than law, such as kinship, religion, custom, customary law, pledge societies, social support networks or group-help. If there is a full match, the state is living up to its international human rights obligations despite not relying solely on legislation. If there is no match or only a partial one, then amplification is required and the state has to extend existing social arrangements to bring it in line with its obligations.

Such amplification may involve reforms, and the Receptor Approach promotes the idea that reforms should be indigenous and add to but not replace existing social arrangements. It opposes the introduction of foreign notions into local contexts if local remedies can be found which, while undoing the violation, remain loyal to the social structure existing in that particular society. This position is informed by the belief that changes that add to the existing arrangements stand a far better chance of being supported and carried out by the community than those enforced top-down. For this process to be effective, it is imperative that honest, genuine and mutually respectful dialogue that results in a transfer of knowledge to both parties be at its heart, and this is where the experience of Theatre for Development TfD provides valuable lessons.

It is recognized from the outset that no unified methodology or ethical standard in TfD exists at the moment. Joseph describes TfD as operating in an extremely discursive and eclectic context, and finds the lack of a guiding ethical standard as seriously hampering the effective practice of TfD. The attraction of TfD to the Receptor Approach, however, lies in its stated intentions, founding ideas and ethos, rather than as a robust model of unqualified success.

School of Human Rights Research and Shandong University join forces in the Fight Against HIV/AIDS

On the 15^th and 16^th of October 2013, The School of Human Rights Research joined forces with Shandong University to host a seminar which addressed various ways of combatting HIV/AIDS. The seminar which was held at Shandong University, in Jinan, China titled “ Relying on culture to protect human rights: the combat against HIV/AIDS and the stigma associated with it,” saw speakers from China, Africa and The Netherlands, discuss issues dealing with HIV/AIDS in China and Africa and issues surrounding the disease. High level speakers included, the likes of Professor Geert-Jan Knoops, of Shandong University, Professor Laurence Juma from Rhodes University, South Africa, Professor Ben Twinomugisha from Makerere University, Uganda, Dr. Serges Kamga, from the Thabo Mbeki Leadership Institute in South Africa, and Professor Yanping Qi, Dean of Shandong University Law School. Researchers from the School of Human Rights Research and The Netherlands Institute of Human Rights included Michael Odhiambo, Julie Fraser, Stacey Links, Qiao Congrui, Penny Peng and Ingrid Morgan.

Professor G.J. Knoops

Dr. Serges Kamga (middle) Mimi Zou(left)
Prof. Ben Twinomugisha(far Right)

Prof. Zwart and Prof. Man

Campaigns to combat HIV/AIDS and to remove the stigma that patients often face in certain regions of China and Africa have not always been effective and besides this, there have been stigmas attached to the person suffering from the HIV or AIDS virus. These stigmas emanate from a myriad of factors. The seminar was unique in that it focused on the positives of local culture, which could be used to combat the disease. Discussions also focused on cultural sensitive ways to protect human rights more generally and more broadly with the interplay between culture and human rights protection.

The seminar formed part of the Receptor Approach to Human Rights Project sponsored as a pilot for a period of four years, by the Dutch Foreign Office. The receptor approach is in short, an approach, which assumes that culture and the existing social institutions of Eastern and Southern countries can meet human rights standards by relying on socio-cultural arrangements already in place. If these arrangements fall short, they may be enhanced or amplified. In other words, elements may be added to strengthen these institutions, so as to meet their human rights obligations. This however, does not mean that states have the freedom to depart from their human rights obligations. They are still held accountable to the treaties they sign except that they may enforce their obligations more broadly, in accordance with their own culture, if fitting human rights standards.

In the weeks ahead, this blog will feature a number of guest posts, not only from researchers engaged in the Receptor Approach Research Project but those who are also interested in the interplay between culture and human rights and who gave a presentation at Shandong University. 

Posted by Ingrid Roestenburg-Morgan

         

What made these women so mad at me? Arguing for a “soft” approach in addressing the issue of female circumcision

Photo Courtesy of Elena Butti

“You are abusing us” – this was only the last of the series of accusations which showered me when I tried to address the topic of female circumcision in a focus group with Maasai women during my work in the subvillage of Remiti, part of Mtakuja, in Northern Tanzania. “Why do you want to know all this? Are you a health trainer? If you want to hold your seminar, you should give us food, and also pay us. We are losing our time here.”

Being accused of abusing your own research represents the ultimate failure for a researcher. When the women started attacking me, while I was sure I was doing all I possibly could to be a sensitive researcher, discouragement took hold of me: I broke into tears in the middle of the focus group, and the women’s effort to dry my watering eyes with their clothes (not exactly what you would call soft cotton) did not really help.

I had done something wrong. But what? I knew in advance that the issue of female circumcision was sensitive, and I had taken all the precautions I could think of to address it properly. I had made sure to frame my questions in a non-normative, open-minded and non-leading way. I had made clear from the outset that I had absolutely no intention to claim that something was right or wrong, but that I was just a student eager to learn from them. But still, something in my questions made the women react on the defensive. What was it? 

The thought kept me thinking for days, until I realised that, perhaps, it was not so much my approach that was wrong – it was the issue itself, the very words “female circumcision” pronounced by a white NGO worker. No matter how open-minded my approach was: the very action of me addressing the issues triggered associations which were, apparently, deeply problematic. The whole issue puzzled me. What had happened for female circumcision to become so critical that it could not be addressed at all, even with a non-normative approach like mine?

In this blog article, I seek an answer to this question. I first provide an account of how female circumcision (henceforth: circumcision) has historically been addressed by the government and NGOs in Tanzania. I then elaborate on how the traditional “hard” approach to the eradication of circumcision has proven counter-effective, making it virtually impossible for any Westerner today to address the issue at all. This claim constitutes the central thesis of this paper, and provides a possible explanation to the reaction of the women in my focus group. After suggesting some alternative “soft” approaches, I reflect on the inadequacy of the sole legal prohibition in order to eradicate deeply embedded practices. I conclude with a few remarks on critical reflexivity.

“Whose Justice Matters?”

ICC Justice Matters Campaign Photo ​© AP/Reporters/Karel Prinsloo

As part of its 10 ten year anniversary, the International Criminal Court has set up a multimedia exhibit campaign entitled “Justice Matters”.  The exhibit uses explicit and graphic photographs and video clips and its aim is to show that justice matters to the individuals and communities affected by the crimes under the Court’s jurisdiction and to show that it matters to the world. This got me thinking about the meaning of the term justice and whether it meant the same thing to most people, especially those affected by mass violence or conflict?

According to the great social scientist and African Scholar Mahmood Mamadani, in his article entitled “How Shall We Think of Mass Violence: Criminal or Political? Reflections on Nuremberg and CODESA”, he suggests that notion of justice as criminal justice has had the effect of being symbolic or performative. This in his opinion is victors’ justice and has largely shaped our perception of the term justice when it comes down to mass violence as we know it today. Mamdani draws attention to the new human rights paradigm which focuses its attention on individual criminal responsibility for mass atrocities rather than focusing on the main issues that drive the violence, whether political or otherwise. He distinguishes between victors justice, victims justice and at last posits a new framework of justice called survivors justice. In victors justice there is a clear victor who will emerge as powerful as was the case during the Second World War ending with Nuremberg.  Under victims justice there is no clear perpetrator as both victim and perpetrator exchange roles blaming each other during the ongoing conflict, as is often the case in during civil wars such as in Rwanda where both Hutu and Tutsi blamed each other, often switching roles of victim and perpetrator. While, with survivors’ justice, victims transition into survivors as a result of political reform, such was the case in South Africa, with CODESA (Convention for a Democratic South Africa) where strategic multiparty talks were held and agreement was reached to end apartheid. Mamdani argues that there can be no single narrative in each given case and that each case should be determined accordingly.

Mahmood Mamdani 

I think we can learn a lot from Mamdani’s analysis which is a good vantage point to analyse the processes of justice in each given case. It makes one think out of the legal box, which is often confining. Similarly, aside from understanding the driving forces which propel individuals or states into conflicts, we should also re-evaluate the international justice process as it operates today. Since we have reduced justice to individual responsibility, as Mamdani puts it, shouldn’t we make sure that the processes which shape its development are effective: first to its victims, perpetrators and immediate community and then to the international community? As Howard Zehr, aptly puts it, “Justice is an act of liberation” It should work to liberate the victim from the offense and offender by making the offender feel accountable. In other words, by making him aware of what he has done to his victims while coming to a true realization of the harm he or she has inflicted upon another.  Zehr holds that the current justice paradigm only focuses on making sure that guilt is relieved through punishment of the offender rather than focus on the process as a whole and its outcomes, which in his view should be that of restoration and healing. Genuine accountability in Zehr’s words is giving the offender the opportunity to make things right, or to repair the damage with the victim and society. This cannot happen by only establishing the guilt of the offender only or by reducing the justice process to an impersonal adversarial battle where victim and offender are marginalized during the trial process.

The Kenyatta case shows that the International Criminal Court needs to reset it relations with Africa

Prof. Tom Zwart

Prof. G.J Alexander Knoops

In April the newly elected Kenyan President, Uhuru Kenyatta, was sworn in during a public ceremony in Nairobi. While many African states, as well as countries like China and Russia were represented at the highest level, Western states had deliberately sent only lower ranking officials. The reason was that President Kenyatta has been indicted by the International Criminal Court (ICC). He is accused of having committed crimes against humanity by playing a role in orchestrating the violence after the 2007 elections. 

This lowkey presence amounts to a denial of the presumption of innocence. After all, at this stage President Kenyatta is only a defendant and therefore entitled to be presumed innocent until proven guilty. By comparison, when the American President Bill Clinton was impeached for high crimes and misdemeanours in 1998, Western states did not scale down their contacts with the Administration, nor did they have to. Therefore, one cannot blame African observers for believing that a double standard is being applied here.   

The presidential elections in Kenya turned into a referendum on the ICC, which emerged with a bloody nose. The Court has undoubtedly itself contributed to this state of affairs. It had several means at its disposal to prevent this clash, but it proved unwilling to use them.

Firstly, President Museveni, who spoke during the inaugural, observed that the case against Kenyatta should have been dealt with at the national level. There is strong support for this position even at the Court itself. In a dissenting opinion to the decision to charge Kenyatta and his co-defendants, Judge Hans Peter Kaul indicated that the violence committed in 2007 did not amount to crimes against humanity. Therefore, the Court lacked jurisdiction to try the case, which instead should have been prosecuted before an ordinary Kenyan criminal court. The majority of the Pre-Trial Chamber, however, decided to continue with the case regardless. 

Secondly, highly charged cases like this, in which it is difficult to prove the facts and to determine who is most responsible, can best be settled with a plea deal. President Kenyatta could express regret for his failure to prevent loss of life after the 2007 elections, in exchange for the charges to be dropped. Although other international tribunals resort to plea-bargaining to facilitate reconciliation, the ICC has not yet done so, probably because it believes that it should be above such ‘horse-trading’. However, in the Kenyatta case, such an agreement would not only allow it to give Kenyatta a slap on the wrist, but also to invest in its standing in the region.

By not seizing these opportunities until now, the Court has done itself a disservice. Opposing the Court has become a way for Africans to assert their independence from the West, which is boosted by impressive growth figures and closer relations with China. During the ceremony President Museveni indicated that he too is losing patience with the Court. His critical remarks are a telling sign that the tide is turning. In 2003, he breathed life into the ICC by agreeing to refer the first much needed case to it. Now, the time has come to ‘reset’ the relationship between Africa and the ICC. This can be done by taking two important steps.

   

Firstly, as President Museveni rightly pointed out, the ICC is being driven by legalism, i.e. the idea that its work should be determined entirely by law without taking the political context on board. Interestingly, since the Rome Statute does not prescribe legalism, the decision not to engage in politics is by itself political. The idea that the Court operates on a strict diet of pure law is a myth, which is rightly met with scepticism in Africa. Therefore, Africans tend to see the ICC for what it is, a political actor, and they treat it that way. To maintain its legitimacy the Court should therefore acknowledge this political dimension to its work.

Secondly, in his inaugural address President Kenyatta made clear that no one country or group of countries should have control or monopoly on international institutions or the interpretation of treaties. The ICC does little to honour the African sense of justice, although the Rome Statute allows it to apply African criminal law notions like restorative justice, reconciliation, and peace as an integral part of justice, as well as respect for local culture. If the Court succeeds in showing that it takes these elements of African justice seriously, its legitimacy will increase, and so will the compliance with its rulings.

Uhuru Kenyatta (Left) shakes President Museveni hand at  President Kenyatta's Inauguration

President Kenyatta’s observations are reflected in an initiative, taken by legal academics form Africa and elsewhere, which is aimed at combining more respect for African justice on the part of the ICC with increased cooperation on the African side. It is important that both sides soon endorse this initiative, led by professors Laurence Juma from Rhodes University and Tom Zwart from Utrecht University, before irreparable damage occurs. 

Guest Post by Alexander Knoops & Tom Zwart

Alexander Knoops is a Professor of International Criminal Law at Utrecht University; Tom Zwart is a Professor of Human Rights at Utrecht University.        

Gender Gets a Raised Profile at the ICC

Besouda and Inder at Coalition Reception for the New ICC Prosecutor. Photo courtesy of CICC

What has caught my attention in recent months is that gender issues have been given a raised profile at the International Criminal Court. Since Fatou Bensouda’s rise to chief prosecutor, the OTP has started placing important emphasis on addressing and prosecuting sexual and gender based crimes. It has also appointed a new gender advisor, Brigid Inder. Inder brings with her years of experience in gender related violence. She is mostly well known through the human rights organization Women’s Initiatives for Gender Justice, which regularly publishes gender reports on situations of armed conflict. The organization advocates for the accountability of gender crimes through the International Criminal Court.

Inder has stressed the crucial importance of prosecuting gender crimes with the help of the ICC. In a recent address to the Court she made clear that the OTP would need to alter its strategy to enhance its effectiveness. Part of this strategy means undertaking investigations and prosecutions into gender-based crimes and the appointment of more gender analysts and specialists within the organ itself. What I very much like about her approach, is her recognition and involvement of experienced professionals at the Court who understand and who have dealt with gender related crimes. The ‘cherry on the cake’, would be if such professionals were trained or recruited on the basis of their cultural knowledge as well, given the contexts in which they operate. Her approach in accessing women and victims through the use of local organisations, credible enough to understand the issues at play, is to be commended. Such an investment is important, as issues of rape and sexual violence, remain often of the time, a private matter and generally unspoken of, within many African communities. Understanding the culture and taboos at play are therefore essential if victims are to speak out. So in other words, building up the support of local organizations, equipped with adequate cultural knowledge is a step in the right direction if the Court is to increase effectiveness and legitimacy in each of its situation countries.

Separate to this, I’m also wondering if this sudden focus on gender is somehow related to the prosecution of Simone Gbagbo, the wife of former President Laurent Gbagbo now at the International Court? The case is attention grabbing because she is the first woman to be prosecuted by the ICC. The counts against her include murder, rape and other forms of sexual violence  and persecution as crimes against humanity, committed in Cote d Ivoire between December 2010 and April 2011. The attention grabbing part is that she is a woman firstly, and secondly that she is being held accountable for the crime of rape. The words 'woman accountable for rape' are almost in antithesis to each other and in most people's minds don't usually go together. You can refer to the arrest warrant here.

Congratulations to ASEAN on the adoption of its Human Rights Declaration

Cambodia's PM Hun Sen, left, with ASEAN Secretary-General Surin Pitsuwan after the ceremony for the adoption of the ASEAN Human Rights Declaration, during the ASEAN Summit in Phnom Penh, November 18, 2012.

Compliments

On 18 November 2012, the ASEAN Heads of State and Government adopted the ASEAN Human Rights Declaration. This Declaration, which is the first comprehensive human rights document issued by ASEAN, displays an authentic regional vision on the promotion and protection of human rights.

The Presidency of ASEAN, held by Cambodia, which brought the process to a successful completion, and the ASEAN Intergovernmental Commission on Human Rights, which took care of much of the drafting, need to be commended for their stewardship of the process and the quality of its outcome. Since the cultures, political systems, and therefore the human rights ambitions of the member states of ASEAN are very different, the fact that they were able to produce such a consistent and convincing document deserves a compliment.

ASEAN’s efforts become even more commendable when one takes into account that the principle of non-interference has always been a pillar of the cooperation within ASEAN and an important part of its success. During the early years, states were focusing on internal problems and they were not eager, therefore, to take on each other. At a later stage the organisation accommodated the accession of a number of states with radically different political systems. This could work only because the members adopted a ‘live and let live’ attitude towards each other. ASEAN has now shown that it is willing to sacrifice a principle which has contributed much to the success of the organisation by turning human rights into an issue of common concern.

Increasing the Jurisdiction of the African Court of Justice and Human Rights

 

Since the decision by the African Union in July of this year to propose adopting a Draft Protocol increasing the jurisdiction of the African Court to try international crimes; there has been a whole lot of debate and criticism surrounding the issue. It’s been said that this is the African Union’s (AU) way of getting back at the International Criminal Court (ICC), given their already troubled relationship. Also there has been talk about the ‘the hurried process’ surrounding the Draft Protocol; the assumption that Africans want to be  tried by an African Court only; the subject matter of the courts jurisdiction; resource and financing issues; lack of experienced personnel and judges; insufficient capabilities and manpower in dealing with large scale, future investigations; incompatible mandates between the human rights section of the African court and its international criminal law section and the list goes on…  For more information on some of these criticisms you can read Max du Plessis’s recent blog post on Ejiltalk and Frans Viljoen’s post on AfricLaw.

While there are, indeed an array of concerns and questions, academics are rarely commenting on the positives that increased jurisdiction of the African Court may bring to the table for Africa and the international community. The problem is that we focus so much on the negatives, that we forget that there are reasons why such a Court may be beneficial. My own view on the issue is that an African Court could benefit Africa and the international community for a myriad of reasons, some of them include:

Inheriting a New Perspective – Women and the Land of South Africa

South Africa’s distressing history of segregation and problematic implementation of Human Rights standards, unfortunately, still peeking its way into the present day. Gender Rights in regards to Land Laws is especially one of the areas of the law in which these violations are being recognized. If South Africa wants to become a country sensitive to International Human Rights Norms, it must be realized by everyone that this is a feat much easier said than done, especially with South African customary law – laws built of customs and practices of the indigenous peoples - being as complicated and intricate as it is. Legal Pluralism is one of South Africa’s biggest obstacles to overcome; colonialism’s brought regulations translated from both Roman-Dutch law and English common law, which had to mix with a huge number of indigenous or customary laws already in place. Integration of these rules was not a smooth process; the settlers of 1652 from Europe, namely the Dutch East India Company that recognized the Roman-Dutch Law as the official law of the land - at first ignored the native laws of the tribes, then tolerated them after the second British occupation in 1806 when it was stated that there should be no interference with the native laws of the country, and eventually recognized them in the Interim Constitution of 1993. If South Africa wants to accomplish a true pluralistic nature to the law, and a multicultural nature of the society, it is necessary for everyone within that society to become more sensitive to the various cultural practices around them and to use a more bottom-up approach for implementing the changes.

Recognizing Customary Law can only be done if it is understood in itself, which is very difficult to do with the vast number of different regulations and customs followed by the different tribes and native communities. Land Tenure alone is two fold; there are the Official Customary Laws, which are the explicit laws about how inheritance of Land occurs and what procedures are to be followed, and the Living Version of Customary Law, which is the way in which the courts have interpreted and applied the provisions in real cases. The problem resides in the fact that there is a great disparity as to how the laws are applied; the lower courts have a tendency to take social practices and changes into account more so than the higher courts, which have a tendency to strictly apply the original customary rules, even though the laws weren’t in fact that strict at all.

Primogeniture – the preference for senior males as heirs to inherit land – is a dominating feature of inheritance and tenure law within the customary system, and is something which many indigenous tribes still follow, regardless of the new laws put in place. It was codified in Article 23 of the very controversial Black Administration Act 1927, a major piece of Apartheid legislation codifying the segregationist character of South African society. The basic idea behind this rule, under Official Customary Law, is that property of a family head, when deceased, is passed onto the heir, usually the oldest of the sons in the first house. In a Zulu household, “power is inherited by men but transmitted through women”; in polygamous marriages, if the husband were to die, then the property is to be distributed accordingly amongst the sons of the houses that are identified by the wives: the first wife of the “great house” (indlunkulu), the right-hand house (qadi) and the left-hand house (ikhohlwa); determining the seniority of the wives is usually on the basis of marriage order. In a Swazi household, the senior wife is chosen by the family, which helps identify who the heir should be – usually her oldest son. In almost every tribal community household, it is very difficult to say that there is no male heir to the deceased’s estate, due to the fact that an heir will eventually be found along the bloodline -  succession passes onto the deceased’s father, or the brothers, or the descendants in order of seniority.  Sometimes, succession will even be passed onto grandchildren, and then if failing the oldest grandchild, will then follow through the second oldest of the family line of males until an heir can be found. In the event that no heir can be found, however, the traditional leader of the community will then take hold of the estate, but is under the duty to use the estate to maintain the surviving dependants – women included. I have simplified these customs as much as I can, but the basic idea is that the heir to the estate is usually always a male – women seem to be avoided completely. However, women are used by many communities as a way in determining the heirs, for it is the women who are the leaders of the households, especially in polygamous marriages.

Fatou Bensouda New Prosecutor of the ICC

Photo Courtesy of ICC

Fatou Bensouda was officially instated as new Prosecutor of the International Criminal Court on 15^th June 2012. She brings to the table her years of national and international experience, first serving as solicitor general of Gambia, and then she broadened her experience internationally by serving as legal advisor and trial attorney at the International Criminal Tribunal for Rwanda (ICTR) and thereafter as Deputy Prosecutor at the International Criminal Court. There are many proponents who say that Bensouda could redeem the muddied reputation of her office left behind by her predecessor especially in the context of the Africa and the African Union. But in a recent interview with Radio Netherlands Worldwide she stressed that she was elected to the position not because she was an African but because of her accomplished track record.

Bensouda doesn’t deny her African heritage and makes clear that she is installed as Prosecutor of the International Criminal Court to fulfill her legal mandate given the speculations that she will be better equipped to deal with the Africans then her predecessor has. She uses the motto: “The ICC for African Victims” and already her strategy is to relate the current prosecutions to African victims. She also places a lot of emphasis on African participation outside and within the Court. She states that Africa is currently the most represented region at the Court, 28% of the judges are African and three African States (Uganda, DRC and CAR) have referred the situations on their territory to the Court. In other words she has highlighted Africa’s commitment to international justice in a more positive manner.

Whether Bensouda will bring change to the strategy adopted by her predecessor, Ocampo, only time will tell. One thing is for certain she does understand African custom, culture and politics more, and is therefore more likely to engage more meaningfully with African leaders and hopefully more sensitively with next prosecution she undertakes in Africa.

For more information on Bensouda’s swearing in ceremony visit:

http://www.icc-cpi.int/NR/exeres/C0AEA6EE-B485-4BE3-BF61-9D404163E119.htm

 Posted By Ingrid Roestenburg-Morgan 

Lubanga Judgment: New Case Law on Child Soldiers

Thomas Lubanga at the ICC    Photo Courtesy of Evert Jan Daniels

This year the International Criminal Court celebrates its 10^th anniversary since opening its doors in Hague in 2002. This year is not only the anniversary of the Court but also the first time that the Court has handed down a conviction to date. March of this year saw the founder and leader of the rebel group Union des Patriotes Congolaise (UPC), Thomas Lubanga Dyilo found guilty on charges of conscription and enlistment of children under the age of 15 by using them to participate actively in the ongoing armed conflict in Ituri. This is an important Judgment for the International Criminal Court as it is not only authoritative at the international level, but it is the first judgment which solely relates to the use of child soldiers.

The crime of recruitment and use of children under the age 15 years as a war crime has so far not been relevant under international criminal law. The judgment is relevant since according to the Trial Chamber it extends to any armed group within the context of a non-international armed conflict and within the ambit of international humanitarian law.

Kai Ambos has already written a paper dealing with an analysis of the legal issues emanating from the trial. His paper entitled “The first judgment of the International Criminal Court (Prosecutor v Lubanga): A Comprehensive Analysis of the Legal Issues” deals more in depth with the legal issues of the judgment.  He pays special attention to the definitional elements of the crime as handed down by the Chamber and affirms the Chambers findings that the verbs ‘conscripting’, ‘enlisting’ and ‘using’ under Art. 8(2) (e) (vii) reflect separate offences and thus should stand on their own.  

I found the topic dealing with the problem of consent which he also addresses to be particularly interesting. Ambos holds that while the definition of ‘enlistment’ implies voluntary recruitment as opposed to the term ‘conscripting’ which implies compulsory recruitment as decided by the Chamber; the autonomous decision of a child who voluntarily decides to join an armed force may negate the actus reus of the offence in question. So in other words, the objective element of the crime coupled with the intent of the accused and which in turn produces criminal liability for the accused is brought into question when a child voluntarily joins an armed group. What the Chamber has done in Lubanga to overcome this problem is to treat both offences as equal. In other words, the Chamber has held that the offences of ‘conscripting’ and ‘enlisting’ are committed at the moment a child under the age of 15 is enrolled or joins an armed force or group, with or without compulsion” (Para. 618 Lubanga Judgment).

What Ambos argues is that by doing so the Chamber has overlooked the autonomy of the potential victim which may in fact violate the protection of his/her personal autonomy and free will. What this leads to is that if a child agrees to voluntarily join an armed group, a definitional element of the actus reus is absent and the offence in question cannot be fulfilled because the prosecution cannot show or prove this element of the relevant offence in question. Such voluntary consent could further provide a valid defence to enlistment.

Related to the issue of voluntariness of consent is still the concern that culture also has a role to play and should have also been considered by the Chamber during the evaluation of evidence. In my opinion, and as I have addressed before in a previous post dealing with child soldiers in the Sierra Leonean context, the questions that need to be asked are: Was the offence a crime under customary international law of the DRC? Is it perceived as a crime in the DRC and has it been criminalized as such? Has this practice formed part of the culture of the country and if so could the accused’s guilt be mitigated?

As in the case of Sierra Leone, the protection of children under Congolese national law has been both scarce and ineffective. Despite the fact that the DRC ratified the Optional Protocol to the Convention of the Rights of the Child on the involvement of children in armed conflict in 2001 and set the voluntary age for recruitment at 18, the practice of child recruitment continues to date even though under its 2006 Constitution the DRC makes clear that any person under the age of 18 is a child. The Constitution lacks in that it does not specifically prohibit the recruitment and use of children. Furthermore, although DRC is a member to the Rome Statute, no implementing legislation has been enacted to bring its national laws in line with the Rome Statute. It was only in 2009 that a Child Protection Code was enacted prohibiting the recruitment and use of children, by armed forces, groups or the police. But still, no definition has been provided for the terms ‘recruitment’ and ‘use’ under the Code, making it difficult to understand just exactly these terms should mean within the Congolese context. For information and a better understanding of DRC national laws and ratification to international treaties dealing with the rights of the child read the OPAC Shadow Report of 2011.

Photo courtesy of Unicef

In other words how to prosecute those responsible for a crime if the crime is not perceived as a crime by the offender or victim? By perceived I mean that both persons should feel morally convicted that something illegal is taking place and should know this. Even if it can be shown that the offender knew this doesn’t imply a duty on his part to refrain from a practice which might not be perceived as harmful by him in the first place. As I mentioned in one of my older blog posts there is no universal qualification for the concept of a child and a distinction should always be drawn between the ‘child in law’ and ‘child in culture.’ And even though taking these factors into account will not change the crime in question as set out under the Rome Statute, what it can do is provide for mitigation during punishment and a better sentence for offenders who can prove that their cultural beliefs or practices were at odds with the international understanding of the crime in question.

Posted by Ingrid Roestenburg-Morgan