Intersections of law and culture at the International Criminal Court: Introduction

Abstract

On a rudimentary level, culture is often seen as the shared ideas and values of a community, 1 and law as institutionalising and enforcing the norms of a society's culture. 2 Yet, while this view of the relationship between law and culture may serve in small-scale, relatively homogeneous societies, our modern complexity asks for a deeper inquiry into the intricacies of these intersecting, mutually constitutive concepts. 'Culture' denotes a set of ideas far more complex than only shared understandings and practices, and laws are more than a means to enforce cultural norms in that they also 'revise and reshape' culture, 3 and are themselves part of culture. 4 Despite this, law and culture are often divorced, estranged, or even pitted against one another as antithetical. This dichotomy is most observable from a legal perspective. With some notable exceptions, law and culture are often studied in separate academic disciplines with limited interactions between the scholarship. However, as revealed especially in practice, law and culture cannot be addressed so independently as this positioning undermines our understanding of how they connect, contest and influence one another. We are in an era where an increasing awareness of positionality, identity and structural power relations invites us to uncover the nuanced entanglements of law and culture as revealed in different contexts. This edited volume takes up that invitation and explores the intersections of law and culture at the International Criminal Court (ICC or the Court). As in domestic criminal systems, as well as other international(ised) systems, questions of 'culture' raise important issues for the ICC. Such issues relate to 1

Situating ‘law’ as ‘culture’ in scholarly discourse on the International Criminal Court: a reflection on Fraser and McGonigle Leyh's Intersections of Law and Culture at the International Criminal Court

“…The book is thoughtfully well structured in four parts: ‘Substantive crimes and culture’, ‘Proceedings and culture’, ‘Defences, sentencing, victims and culture’ and ‘The ICC's global reach and legitimacy’, covering a broad range of different aspects of ICC proceedings. The chapters of Part I ‘Substantive crimes and culture’ engage with legal questions as to how cultural interests can protect and are protected by the Rome Statute, specifically in the context of current and proposed Rome Statute crimes regarding tangible and intangible heritage and in the context of gender-based violence (Fraser and Leyh, 2020, pp. 38–126).…”

“…The work in Part I on ‘Substantive crimes and culture’ contributes to the doctrinal scholarship on crimes that involve the protection of culture and suggests deficiencies. Notably, this part highlights important lacunae in the Rome Statute's criminalisation of non-state armed group's destruction of culture, as revealed by the Al Mahdi case in Peta-Louise Bagott's chapter ‘How to solve a problem like Al Mahdi: proposal for a new crime of attacks against cultural heritage’ (Fraser and Leyh, 2020, pp. 47–48).…”

“…In Part II, the focus shifts to more immediately practical questions surrounding ‘Proceedings and culture’ at the ICC, and while therefore focusing in on more specific questions for the courtroom about how culture manifests itself in legal proceedings, these chapters also move further away from the broader questions surrounding the role of cultural examination at the Court. The first of these insightful chapters examine the solemn undertaking that witnesses must declare before giving oral testimony before the Court in its cultural context and here is perhaps the writing of the book that sits most closely with anthropological writing on cultural, since Joshua Isaac Bishay examines the ‘thicker’ symbolism involved in oath-making, hypothesising that aside from the practical benefits of an oath, it is first and foremost a ritual, which ‘can be knitted with the cultural understandings and beliefs’ (Fraser and Leyh, 2020, p. 64) of the witnesses and affected communities through the use of symbolism and tradition. Here the book is extrapolating and interpreting the meaning involved in oath-making with the oath as a cultural artefact in its own right.…”

“…Next is a fascinating chapter on the role of ‘spells’ and ‘spirituality’ in court proceedings, a case-study chapter of testimonial evidence in Katanga and engagement with the debate on meanings of ‘justice’ in prosecutorial culture (Fraser and Leyh, 2020, pp. 127–128).…”

Interrogating the Role and Value of Cultural Expertise in Law

“…Wilson's findings are supported by Eltringham (2013) who studied the International Criminal Court for Rwanda. There are clearly a number of factors which influence the reception of CE in international criminal courts, which, in addition to the issues already discussed, include judicial conceptions about culture as something practiced by 'distant (read backward) communities', the court's failure to appreciate its own organizational culture (as somehow objective and situated above socio-cultural specificities) and the judges responsibility to assign culpability (Fraser and Leyh 2020).…”