19TH SESSION OF THE ASSEMBLY OF STATES PARTIES
December 10, 2020
Name of the Side Event: Book Launch: Intersections of Law and Culture at the International Criminal Court (Co-hosted by Australia, The Netherlands, Montaigne Centre, Public International Law & Policy Group (PILPG), SIM, UGlobe (Utrecht University))
Report by: Alexandrah Bakker & Paul Weber, Junior Research Associates PILPG-NL
Highlights:
The ICC’s culturally steeped procedures and areas of operation offer many areas for research on the intersections between law and justice - from varying conceptions of justice, the cultural impact of language, to cultural reservations to international criminal law.
Improved cultural sensitivity on part of the ICC might effectively counter criticisms like the “African bias” that the Court is often accused of.
A better understanding of cultural mechanisms may improve the administration of justice by the ICC and the Court’s relationship with communities affected by violence.
Summary of the Event:
Matthew Neuhaus, Australian Ambassador to the Netherlands and chair of the event, opened the book launch by introducing the panelists. He noted that Nikhil Narayan’s chapter, which discusses Asia’s reluctance to join the International Criminal Court (ICC), is of particular interest to Australia as a member of the Indo-Pacific. He also expressed delight at how the book engages closely with African perspectives.
Judge Raul Pangalangan, judge at the International Criminal Court, made some introductory remarks. He observed that although cultural arguments find immense currency in other fields of international law, they are rarely raised in international criminal law. He referred to the Al Mahdi case, in which he served as part of the Trial Chamber, as bearing promise of a change in this trend. He lauded the book for its nuanced reflections on the cultural features and implications of the ICC’s dispensation of justice both inside and outside the courtroom.
Julie Fraser, one of the editors of the book, observed that international law is culturally informed and is an element of culture. The book makes a novel contribution to scholarship in so far as it addresses not only the more obvious aspects of culture at the ICC but also the less visible aspects: intangible cultural heritage, justice as a concept, processes like oath taking and truth telling. Brianne McGonigle Leyh, the other editor of the book, then introduced the contributors of the book and the panelists for the event.
Dr. Leigh Swigart, the first panelist, addressed the academic motivations of her chapter on how the ICC responds to the challenge of accommodating linguistic needs in the vastly different situation countries. Swigart’s chapter draws largely from her past interviews with ICC officers who provide and use language services. Swigart noted that language and culture are very tightly intertwined: language is a part of culture, and language is used to transmit and express culture. However, many ICC officers consider themselves as far removed from the culture of the situation countries. This underlies many institutional features of the Court such as its unspoken bias towards the English language over the French language and the privileging of legal knowledge over other kinds of expertise.
This was followed by a presentation by Owiso Owiso and Phoebe Oyugi, who have contributed a chapter on plea negotiations. Defined in Article 65 of the Rome Statute, plea negotiations are a legal device through which the accused agrees to plead guilty in exchange for a lower sentence or a lower charge (based on consultations with the Prosecutor). Even per their current conception, plea negotiations enhance the efficiency of the Court: they result in shorter trials, fewer appeals, and dispense with the need to fly witnesses to the Hague. Owiso and Oyugi argued that plea negotiations, if suitably reimagined, hold the potential to better integrate the ICC with domestic transitional justice processes. By way of illustration, in addition to pleading guilty, the accused may be required to engage in public confessions (as in the mato oput in Rwanda), and participate in reconciliation and peacebuilding activities.
Nikhil Narayan, the fourth panelist, contributed a chapter examining Asia’s relationship with the ICC. The Asia-Pacific is the least represented region among the ICC’s states parties: only 19 of the 54 states that constitute Asia-Pacific have ratified the Rome Statute. In his chapter, Narayan observed that this trend ties into a more systemic issue - the common distrust amongst Asian States towards issues of sovereignty, territorial integrity, and non-interference in domestic affairs. The “Asian values” argument is often cited to justify Asia’s reluctance to cede sovereignty to international law. This has manifested in a deep suspicion of the institutionalization of human rights law, with Asia being the only region that lacks a strong coordinating human rights mechanism. Some scholars argue that this skepticism will undermine human rights in Asia, and that Asia needs to engage more constructively with international criminal justice. Conversely, Narayan called on the ICC to engage more closely with Asia and dispel any legitimate misconceptions with regard to Western bias.
Melinda Taylor, the final panelist, spoke of how culture is often invoked and characterized as a defence to the law. Such a narrative invisibilizes the reality of law as a construct of culture. Therefore, it is not appropriate to place law and culture in opposition with each other. Taylor likened the Rome Statute to a language, where different words hold different meanings and values for different users. She pointed to the example of Rwanda, where witnesses reported “seeing things” in locations where they were not physically present, because “seeing things” held a particular significance to them. It is vital for different cultures to see their own values recognized and reflected in the Rome Statute. This could encourage a sense of local ownership and the legitimacy of the international criminal justice project.
The event concluded with questions from the audience - on community engagement and the implications of the recent American presidential elections on the US’s relationship with the ICC. Responding to a question on the ICC’s outreach activities, Owiso and Swigart spoke of how the Court’s current outreach efforts do not go far enough in integrating communities with the visions of the Court. More can be done to repackage the VPRS’ messaging so as to align it with the cultural sensitivities of the victims. Melinda Taylor further noted that outreach efforts should also seek feedback from communities on what they expect from the Court. Notwithstanding concerns of logistical feasibility, local hearings would advance this cause.