Defending Culture: The ICC and Cultural Defence

We are pleased to welcome this guest post from Dr Noelle Higgins, Senior Lecturer, Maynooth University Department of Law

Introduction

The ICC was created in 1998, with the signing of the Rome Statute (Rome Statute of the International Criminal Court 1998, UN Doc A/CONF.183/9. Hereinafter, Rome Statute) and has jurisdiction over the most serious crimes of concern to all of humanity, i.e. genocide, crimes against humanity, war crimes and aggression. The Statute is the culmination of negotiations between 160 States, representing the main legal systems and cultures of the world, and when the Rome Statute came to a vote in 1998, 120 States voted in its favour. In 1998, the percentage of civil law States in the world amounted to 51%, while common states accounted for 25%, Islamic law States made up 14%, while the remaining 10% of States had a mixed legal system. The negotiations during the Rome Conference required States from different types of legal systems to compromise on many issues, from the definition of crimes, to the limits of acceptable defences, to the rules of evidence and procedure. Each State was influenced by its own legal culture during the negotiations, with negotiators introducing ideas based on their own domestic legal system as best practice (Emilia Justyna Powell and Sara Mitchell, ‘The Creation and expansion of the International Criminal Court: A Legal Explanation’, Midwest Political Science Association Conference, Chicago, Illinois, 3-6 April 2008 <http://ir.uiowa.edu/polisci_pubs/3/> accessed 2 October 2017).

The Court currently has 123 States Parties, representing a variety of legal traditions and cultures. A question arises, therefore, if the Court allows for differences in culture in its framework and practice, so that it is a truly ‘world’ court?  A related question is, if the Court does not pay due regard to the legal systems and cultures of its constituent States, can justice be adequately served? This issue is important given the current criticisms of the Court as a colonial institution with an anti-African bias, which has led States to threaten to leave, and indeed, leave, the Court (Burundi withdrew from the Court on 27th October 2017). The ICC Statute does accommodate a number of cultural issues, including the right to an interpreter, the establishment of the Victims and Witnesses Unit, and the geographic representation requirement in respect of appointment of judges. However, a further way in which the Court could accommodate cultural differences is to allow for defences on the grounds of culture to be introduced.

Cultural Defences

The term ‘cultural defence’ has been defined to include ‘all possible settings in which cultural factors affect the penal liability of individuals in cases brought before the court’ (Kimmo Nuotio, ‘Between Denial and Recognition: Criminal Law and Cultural Diversity’ in Will Kymlicka, Claes Lernestedt and Matt Matravers eds, Criminal Law and Cultural Diversity Oxford University Press 2014, 81). However, the term is also sometimes extended to include cultural arguments which are presented throughout the course of a case, including plea bargaining or mitigating factors with respect to a defendant’s sentence, thus encompassing both liability and mitigation issues. Cultural defences, although controversial, have been accepted in an ad hoc rather than systematic manner, at the domestic level in a number of States, particularly in States with a multicultural population, such as the United Kingdom, the United States, and Australia. The legitimacy of such defences is contested because allowing them means that people would be treated differently in a court of law, based on their cultural background, thus breaching the principle of equality before the law. Numerous other objections to the cultural defence are made, including the contested nature of culture, and the problem of cultural relativism. On the other hand, however, there are various strong arguments proposed in support of accepting defences based on culture, including tenets of international human rights law, the unassailability of the enculturation process, and the theory of individualised justice (Will Kymlicka, Claes Lernestedt and Matt Matravers, ‘Introduction: Criminal Law and Cultural Diversity’ in Will Kymlicka, Claes Lernestedt and Matt Matravers eds, Criminal Law and Cultural Diversity Oxford University Press 2014, 1, 5).

A question which has arisen in a number of analyses of the cultural defence in domestic law is whether this defence should be available in cases involving ‘irreparable harm’. This is even more significant in the context of the ICC, which has jurisdiction over only the most serious of all international crimes (Article 5 of the Rome Statute sets out the crimes over which the ICC has jurisdiction) genocide, crimes against humanity, war crimes and aggression. The jurisdiction of the ICC over the crime of aggression has not yet been activated (see Dapo Akande, ‘The ICC Assembly of States Parties Prepares to Activate the ICC’s Jurisdiction over the Crime of Aggression: But Who Will be Covered by that Jurisdiction?EJIL:Talk!, 26 June 2017 <https://www.ejiltalk.org/the-icc-assembly-of-states-parties-prepares-to-activate-the-iccs-jurisdiction-over-the-crime-of-aggression-but-who-will-be-covered-by-that-jurisdiction/> accessed 2 October 2017).

Defences at the ICC

The right to raise a defence is a central component of the right to a fair trial, guaranteed in democratic societies. However, while the right to raise a defence is also respected in international criminal tribunals, there has been little practice, and not enough academic analysis in respect of such. Indeed, defences are one of the most neglected aspects in this sphere of study (see Robert Cryer et al, An Introduction to International Criminal Law and Procedure 3rd edn, Cambridge University Press 2014, 398. The seminal work in defences in international criminal law is Geert-Jan Alexander Knoops, Defences in Contemporary International Criminal Law 2nd edn Martinus Nijhoff 2008 with Eser describing international criminal law defences as a ‘vast terra incognita’, Albin Eser, ‘War Crimes Trials’ 1995 Israel Yearbook on Human Rights 201, 202). In addition, the practice concerning international criminal law defences has been very scarce before the ad hoc international criminal tribunals. This neglect may be as a result of a lack of sympathy towards suspects that come before international courts, with Eser stating that there are ‘certain psychological reservations toward defences. By providing perpetrators of brutal crimes against humanity … the defences for their offences, we have effectively lent them a hand in finding grounds for excluding punishability’ (Albin Eser, ‘Defences in War Crimes Trials’ in Yoram Dinstein and Mala Tabory eds, War Crimes in International Law Martinus Nijhoff 1996, 251, 251). However, when the ICC chose to prosecute Dominic Ongwen, who himself is a former child soldier and against whom, heinous crimes were committed, this narrative may have changed slightly, and thus reliance on defences in this case may evoke fewer ‘psychological reservations’. Another proposition forwarded for the neglect of the subject of defences in international criminal law, and particularly at the ICC, is its nature as a court of last resort, which is charged with dealing with ‘the most serious crimes of concern to the international community as a whole’ (Preamble of the Rome Statute. Article 1 of the Statute states that the Court ‘shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions.). Given the limited resources of the Court, it would be hoped that the people chosen for prosecution would not be those who would be able to raise a strong and plausible defence to the charges levied against them. Given that the issue of defences receives so little attention in international criminal law, it is no surprise that the concept of cultural defences has engendered scant attention in the literature to date, and indeed, much of the literature that does exist is in the field of anthropology and sociology rather than law (see Richard Ashby Wilson, ‘Expert Evidence on Trial: Social Researchers in the International Criminal Courtroom’ 2016 43.4 American Ethnologist 730; Nigel Eltringham, ‘Illuminating the Broader Context: Anthropological and Historical Knowledge at the International Criminal Tribunal for Rwanda’ 2013, 19 Journal of the Royal Anthropological Institute 338). Article 31 of the ICC Statute sets out circumstances that can exclude the criminal responsibility of defendants. These are: mental incapacity, intoxication, self-defence and duress / necessity. Article 32 also allows for the defence of mistake of law or fact and Article 33 allows for the defence of superior orders.  In addition, Article 31 also states that the list of defences allowed is not exhaustive. Therefore, other international criminal law defences may be raised before the Court.

There is, therefore, no explicit defence based on culture in the Statute. However, the provisions on defences are not elaborated on in great detail, and the language employed leaves room enough for cultural issues to be taken into consideration under the explicit defences included within the Statute. For example, cultural consideration could be discussed with regard to the defence of superior orders and the related concept of command responsibility. Indeed, the Special Court for Sierra Leone has already been faced with such a scenario, and a similar case could arise before the ICC in the future. In the CDF case (Prosecutor v Fofana and Kondewa, Case No. SCSL-04-14-A, Judgment 2 August 2007, and Appeals Judgment 28 May 2008) at the Special Court for Sierra Leone, evidence had been presented concerning initiation ceremonies for child soldiers in the Kamajors militia, during which, they believed, they were rendered bullet proof through the use of magic. At trial, the question was raised if the person responsible for these ceremonies, Kondewa, who was a type of High Priest, exerted sufficient authority over the members of the Kamajors to make him responsible for the crimes that had been committed by the Kamajors on the basis of command responsibility. (Command responsibility is provided for in Article 6(3) of the Statute of the Special Court for Sierra Leone). This case highlighted a clear link between the actions of the defendant and the culture and beliefs of the people of Sierra Leone. The belief of the local population in the power of magic and the importance of the role of magic in the initiation ceremonies for the child soldiers was discussed at depth. However, the question whether command responsibility could be established through the use of / belief in magical powers, was ultimately side-stepped by the Tribunal, as it concluded that the evidence which had been presented at trial had not established without a reasonable doubt that Kondewa had the material ability to prevent and / or punish the crimes that had been committed by the Kamajors (see Kelsall, Culture under Cross-Examination Cambridge University Press 2009, 126-128). Commenting on this case, Kelsall states that ‘[i]n some respects, the judges were in an impossible situation here… If the judges accepted that Kondewa had effective control on account of belief in his mystical powers, they would have been under more pressure to take seriously the defence that belief in mystical powers also worked as a form of prevention and punishment. Crucially, they would have had to form a judgment on whether the ritual taboos were ‘reasonable’ preventative measures.’ (Kelsall, Culture under Cross-Examination Cambridge University Press 2009, 144-145). If the Chamber had acquitted on these grounds, ‘they would have risked giving credence to a belief system with which they presumably disagreed.’ (Kelsall, Culture under Cross-Examination Cambridge University Press 2009, 144-145). Therefore, the role of culture and its potential importance in the context of defences was ignored by the Court.

Conclusion

Avoidance of cultural considerations will not develop the law, can lead to unfairness to the defendant and delegitimize the Court and it is hoped that if the ICC were to be faced with a similar case concerning cultural beliefs, that it would embrace the opportunity to engage with the topics of culture and cultural defences in depth. Acknowledging differences in culture between States Parties will be to the benefit, rather than the detriment of the Court, and it will help to reinforce its position as a truly global institution.

* This piece is based on research for a book entitled Cultural Defences and the ICC, to be published by Routledge in 2018.

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