Gender Equality through Yin/yang Philosophy in China

Peng Qinxuan PhD Researcher SIM

My name is Peng Qinxuan, I came from Netherlands Institute of Human Rights, Utrecht University. I work with Prof. Jenny Goldschmidt on the research of human rights protection for the migrant women workers as domestic helpers in China, in which both elements of gender issue and Chinese culture fascinates me. That is why I wrote this piece of article on promoting gender equality in China using Yin-yang philosophy with which the discourse that Chinese people are familiar. I feel very honored to be able to present my ideas amongst so many brilliant minds, which I think is also a great opportunity to learn from you.

The structure of the presentation goes like this: The first section is a brief explanation of the concept of Yin-yang, including where does it come from and how widely is it applied in every aspects of Chinese culture. The second section is an introduction of the concept of gender and what are the general principles of modern-day gender equality. The third part is to apply yin-yang philosophy to match the principle of gender equality in order to make it accessible under the Chinese context. Finally, the floor is open for questions, discussions and suggestions.

First, the origin of yin and yang concept came from the ancient Chinese classics dated from 11c BC when Wenwang, the ruler of Zhou Dynasty hosted an activity among scholars to codify the their ancestors’ wisdom and their observation of the law of change. (It can be compared to the 5c, when the ruler of Roman Empire Justinianus presided the Roman law codification, only a lot earlier.) Given the enormously wide and deep application and incorporation in Chinese lunar calendar, agriculture schedule, astronomy observation, architecture, traditional Chinese medicine, regimen, martial art, music, traditional Chinese calligraphy, and other philosophical schools including Confucianism(Yang-oriented) and Taosim(Yin-oriented). I intend to view yin-yang as a philosophy that integrated epistemology, way of thinking, value system and aesthetic apperception.

So what is yin-yang? In I-Ching, Hsi Tzu passage, it says a yin and a yang interact with each other, that is the natural law of everything. Yin and yang can be widely interpreted into two opposing nature of things, which are exactly the elements that promote things to change and evolve under yin-yang interaction. But it is necessary to know that neither yin nor yang, as an intrinsic nature of thing, has its own virtues(see PPT). And the imbalance of yin-yang coordination can cause inauspicious effect. Here is the misconception of yin-yang philosophy starts when there is an overall worship of Yang in the society, people tend to praise Yang and suppress Yin. This is wrong because only yin or only yang cannot help to evaluate anything; either of them is help to describe things. It is the way how they interact and balance that helps us to evaluate and predict whether it is a promising development or not. For example, a weakness in either yin or yang may cause imbalance, which is inauspicious. (Further explain with PPT diagrams that yin and yang has their own virtues.)

Now you may wonder what does the most ancient wisdom yin-yang philosophy has to do with the most modern concept of gender equality? Can the self-contained eastern rooted philosophy echo the global trend? My answer is yes. Let’s first examine the gender theory. Gender is a social institution that determines responsibilities, allocation of resources, opportunities, and deciding power according to one’s biological sex. To put it simply, gender is the social interpretation of one’s sex. To eliminate the prejudices and discrimination arise from gender stereotypes, gender equality has long been on the agenda of scholars and policy-makers alike. Through generations of debates and efforts, there are at least a number of consensus arrived concerning gender equality under the UN documents since the gender mainstreaming dissemination, the question remains how to get these consensus reach each local-based community and make them truly understand and accept the notion and principles of gender equality as a global strategy.

I hereby argue that the local-grown yin-yang philosophy in China can actually help us to better grasp the major ideas of gender equality since they have several overlapped understandings according to the modern concept of gender equality. I will give 4 examples to better elucidate my point. 1. Gender refers to both men and women, and the interaction between them. 2. Based on the socialization process, gender is a dynamic, changeable concept that implanted through education system, political system, legislation, culture and traditions. 3. Gender also includes other cross-cutting socio-cultural variables: race, class, social status, age and others.(i.e. intersectionality) 4. Gender mainstreaming aims at reaching a gender-neutral society for a people-centered development, this necessarily involves women’s empowerment.

Applied yin-yang philosophy, then it is much easier to comprehend the above-mentioned ideas: 1. Yin-yang philosophy refers to yin and yang, especially the interaction between them, so is gender. 2. The essence of yin-yang philosophy lies in change, so is the gender. Neither of them are set in stone, they are open to modification and dynamism of outside world, they are prepared to change along new situations. 3. Each “diagram” is composed of yin and yang composition, seldom is there yin-solely or yang-solely diagram, which suggests an ancient perspective of intersectionality that in a diagram or a situation, we cannot only pay attention to a single line of yin or yang, they are complicated composition of different elements. So is gender. 4. Yin and yang interaction makes change, positive and harmonious co-existence and interaction makes auspicious change. Weakness in either side would be inauspicious even harm the society. Accordingly, disadvantage in either men or women would harm the society, too. Only harmonious men and women relations and cooperation benefits humankind.

Actually, the more I explore the gender theory and the yin-yang philosophy, the more common grounds I found between them. But since time is limited, I will leave it there and I conclude that yin-yang philosophy exist and thrive for a reason: it is an open system that evolves with time and change. Applied to gender equality principle, it helps with the modernization of the yin-yang philosophy and maintains its vitality. Vice versa, by using the local-grown yin-yang philosophy that Chinese people are familiar with can help us better grasp the essence of gender equality and incorporate it into our policy-making and daily practice. The vitality of a culture lies in its openness and its willingness to adapt to new situation, and the only way to preserve and thrive our culture is not retaining it to ourselves inwardly, but opening it to modernization and internationalization.

Guest Post By  Peng Qinxuan ( Peng Qinxuan is a PhD Candidate at the Netherlands Institute of Human Rights (SIM)) (Speaking notes for the Seminar on “Relying on culture to protect human rights: the combat against HIV/AIDS and the stigma associated with it”)

National Implementation of International Human Rights Obligations: Legislation and “Other” Effective Measures

Julie Fraser PhD Candidate Receptor Approach

Campaigns to combat HIV/AIDS and to remove the stigma that patients often face have not always been effective. The assumption upon which this Seminar is based is that the effectiveness of human rights protections may be enhanced by relying on local culture. While not dealing directly with the topic of combatting HIV/AIDS, this paper discusses the legal issues surrounding the use of culture to protect international human rights. The central question addressed is whether it is permissible under public international law for States to utilize culture - or other social institutions - to protect domestic human rights and uphold their international obligations?

The Receptor Approach seeks to accommodate “non-Western” methods of human rights protection within public international law. The Approach identifies pre-existing social institutions – such as culture or traditional medicine - that can be relied upon by the State to meet its international human rights obligations. The Receptor Approach works from the premise that human rights may be implemented – and even more effectively implemented - through non-legal means like social institutions.

This paper contends that States are not always obliged to legally incorporate international human rights treaties, and that they have discretion in implementation. When considering such measures of implementation, the focus is not on the method adopted but on their efficacy. Therefore, it is submitted that, subject to certain conditions, there is scope within the UN system for the Receptor Approach to implementation of human rights obligations.

The Chinese Government's role in the HIV/AIDS Discourse and its Potential Effects to Protect People Living with HIV/AIDS

Qiao Congrui PhD Researcher Receptor Approach

I.           Introduction.

Although there are numerous studies on different dimensions in which anti-stigma campaigns are designed, i.e. intrapersonal, interpersonal, organizational, community and governmental levels, an important dimension has been somehow rarely visited-public discourse. The Chinese leadership is observably able to intervene effectively in the public sphere due to a stronger confidence that their people show in the government as well as a state-guided media system, thus rhetoric and measures on HIV/AIDS adopted by the Chinese leadership affects the societal environment where combats against the stigma associated to HIV/AIDS are carried out.

This paper offers an overview of a changing discourse on HIV/AIDS in China, based on analysis of documents applicable nationwide and reporting of a newspaper with the largest circulation called the People’s Daily. When examining the above-mentioned texts, the paper provides significant changes during the development of the HIV/AIDS discourse, and ends with proposals for taking the public HIV/AIDS discourse into consideration when anti-stigma campaigns oriented at various levels are launched. The paper further suggests that the cotemporary HIV/AIDS discourse should involve sexuality concept in order to develop a less pressuring culture that can benefit more affected individuals.

In the discourse where HIV/AIDS is de-moralized, a friendly environment should work in such a direction that encourages the public, including institutions, communities and society at large, to protect rights of the people living with HIV/AIDS.

1.         Hypothesis of this research

Study of government trust in China has indicated that a vertical dimension emerges when the object of trust is a multilevel, as Chinese people have varying confidence in local, regional and national governments.

Citizens of electoral democracies, e.g., the United States, Japan and Taiwan, tend to have weaker confidence in the federal/national government than in the local government. On the contrary, trust in central-level political institutions is more prevalent in authoritarian countries. In China, for instance, 30 to 60 percent of the population were observed to have stronger trust in the central government than in local government (Asian Barometer Surveys, 2002, 2008: Q008, Q014;).

Besides, though it is observed that the Chinese media are developing toward a non-politicalized direction, major media entities, in particular traditional ones, are still frequently intervened by the Communist Party of China (the CPC).

There are evidences that issues related to public interest are usually reported in a way in favor of the government decisions (e.g. HE, Qinglian, Frost over the Chinese media, 2006 edition.)

The hypothesis thus believes that legal instruments made by the central government of China and corresponding media reporting have a strong effect on public discourses including HIV/AIDS.

2.         Research methods

This paper is aimed to clarify the interaction between Chinese governmental role and the changing HIV/AIDS discourse in China. Based on the hypothesis interpreted above, the research will:

-          first examine legal documents made by the central government and media reporting that are direct relevant to the HIV/AIDS issue,

-          then analyze significant changes during the development of the HIV/AIDS discourse,

-          and finally try to elucidate factors that may work to protect people living with HIV/AIDS in China.

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.