Julie Fraser & Brianne McGonigle Leyh
On 17 July 2018, the Rome Statute (RS) creating the International Criminal Court (ICC) celebrated its 20th anniversary. The ICC is a permanent court that investigates serious international crimes including genocide, crimes against humanity, and war crimes, and prosecutes individuals believed to be most responsible. In this way, the ICC promotes the rule of law internationally and seeks to end impunity for the most heinous crimes. The Statute’s agreement was a remarkable achievement many decades in the making. In the last 20 years, the ICC has grown from small beginnings into a fully-fledged court of international law. Progress has not, however, always been smooth, with many issues and obstacles arising, including in relation to culture. While international law (including international criminal law) is typically portrayed as objective and not limited or bound by a particular culture, as revealed especially in practice, law and culture cannot be so clinically separated. Culture influences our view of the law, of the facts to which it applies, and the fairness of any outcome. From the substantive charges and their defences to the scope and content of reparations and the operation of the criminal process, the impact of culture can be problematic given the nature and context of the ICC’s work. And, yet, culture and the ICC has not been comprehensively addressed in scholarship.
The ICC’s first case was the prosecution of Mr Thomas Lubanga Dyilo of the Democratic Republic of the Congo (DRC), who was charged and surrendered to the Court in 2006. His case was the first internationally to deal with the crime of recruiting children under the age of 15 and using them actively in hostilities (child soldiers). The case was long and slow, as the Judges, Prosecution, Defence, and Legal Representatives of Victims grappled with operationalising the RS. Already in this first case, issues of culture and law came to the fore with a focus on cultural differences relating to the age of majority and African traditions of children participating in hostilities. For example, in both law and culture, different societies answer the question of who is a child differently. This raised the matter of cultural defences and how the ICC would resolve issues of law and culture. After many delays, the Court in 2012 convicted Mr Lubanga and sentenced him to 14 years in prison, which was upheld upon appeal. A reparations order was made against him for the victims recognised in the case, with the Court finding that he was liable for collective reparations of USD 10 million. As Mr Lubanga is indigent, it falls to the ICC’s Trust Fund for Victims (TFV) to determine how best to undertake reparations. The topic of reparations raises other cultural issues such as how reparations can be tailored to specific victims of crime from diverse and unique cultures in order to be meaningful.
More recently, the Prosecution’s case against Mr Bemba Gombo was hailed as a success, being the ICC’s first case to convict for sexual violence (including against male victims), the highest sentence given to date (18 years), and relating to the most senior accused at the Court (Mr Bemba was the former Vice President of the DRC). The case was also the first dealing with criminal liability based on command responsibility. Under Article 28 RS, a military commander like Mr Bemba can be held responsible for the crimes of their troops if they fail to exercise effective control over them. This type of liability relies on the existence of military hierarchies and superior-subordinate relationships. However, scholars have questioned how this Western concept of ‘conventional’ military structure and organisation applies in the African cultural context, where allegiances can be based on patronage rather than formal chains of command. Ultimately Mr Bemba’s conviction was overturned in June by the ICC’s Appeals Chamber, with some celebrating the victory for fair trial processes and others lamenting the Prosecutor’s poor track record.
Culture has also been raised at the ICC in cases like that of Mr Al Mahdi. He was the first person to be accused and plead guilty to the war crime of attacking historic monuments and buildings dedicated to religion, including nine mausoleums and one mosque in Timbuktu, Mali. The ICC convicted and sentenced him to nine years in prison and found him liable for EUR 2.7 million in expenses for individual and collective reparations to the community of Timbuktu, the wider Malian population, and the international community. Given that Mr Al Mahdi (like Mr Lubanga) is indigent, the matter of reparations again falls to the TFV. However, UNESCO has already carried out the restoration work, and, as scholars note (here and here), the Court has stressed symbolic reparations and guarantees of non-repetition. This case highlights how the ICC is now operating in the same space as cultural actors like UNESCO. Most recently, another accused, Mr Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, was transferred to the ICC to face similar charges regarding the destruction of holy shrines in Timbuktu. Such cases raise questions regarding how international criminal law can be used to protect cultural heritage, to deter crimes against it, and how it can contribute to repairing damage to victims. To formalise their intersecting interests, at the end of 2017 the ICC’s Prosecutor entered into an agreement with UNESCO to collaborate on protecting cultural heritage.
The ICC has, to date, heard cases regarding the DRC, Central African Republic, Mali, Uganda, Sudan, Kenya, Libya, and Cote d’Ivoire. Formal investigations by the Office of the Prosecutor have also begun in Burundi and Georgia. Of all the cases and situations under formal investigation, only the situation in Georgia is outside of the African continent. Preliminary examinations by the Prosecutor, however, are also being carried out in Afghanistan, Colombia, Honduras, Gabon, Guinea, Iraq/UK, Nigeria, Palestine, the Philippines, Korea, Ukraine, and Venezuela. While its expanding case load has won the Court important praise, its extensive focus on crimes committed in Africa has equally garnered significant criticism. There have been numerous accusations of the ICC having a Western cultural bias against Africans, including by Rwandan President Kagame, and threats of African States withdrawing from the Court. In fact, in late 2017, Burundi became the first State to have formally withdrawn from the RS of the ICC. And while some practitioners and scholars defend the Court’s caseload and its prioritisation of crimes suffered by African victims, contending that victims in fact welcome the Court’s intervention, the charge of Western cultural bias is an important one to examine.
Given its international practice, the ICC also deals with culture in a number of ways in its operations. For example, as an international organisation, the ICC operates in a culturally diverse environment with 123 States Parties, professional staff from 85 countries, and situations being examined in 21 States. This multicultural setting presents many challenges including in relation to organisational culture, communication as well as working languages. Furthermore, given the right of defendants to receive information in a language they fully understand (Articles 55 and 67 RS), the Court’s Registry has a large translation and interpretation section. This section is responsible for providing language services to the Court not only in French and English (its working languages), but also in Russian and Arabic, as well as African languages including Kinyarwanda, Acholi, Lingala, Sango, and Zaghawa. Many of the languages that the Court uses to communicate both to defendants as well as victims are often unwritten and limited in scope. This presents many multilingual challenges. For example, new terms and concepts in international criminal law need to be created in some languages, and equivalents of other terms sensitively translated. This can be more of an art than science. In a court of law – especially criminal law – the precise meaning of particular words can have a substantive impact.
It is unlikely that such cultural issues at the ICC as outlined above will be resolved any time in the near future. In fact, given the Court’s mandate and global reach, culture will certainly continue to play an important role in its work and deserve further academic scrutiny. Each new case at the Court brings with it a host of (new) cultural concerns to be addressed. For this reason, and to commemorate 20 years of the Court, we have launched a call for papers on the intersections of law and culture at the ICC. The purpose of the project is to delve into the convergence and tensions between the cultural underpinnings and legal foundations of the ICC as a global institution. The project aims to bring together insights on the development and articulation of ideas regarding the multifaceted ways in which culture relates to the work of the ICC. Abstracts from both practitioners and academics working in the field of international criminal law and other relevant disciplines are welcome.
Please see the Call for papers (pdf) for more details.