International Criminal Justice and Non-Western Cultures

When signatories to the Rome Statute meet in Uganda later this year, one of the tasks confronting them will be to take stock of progress in international criminal justice (ICJ). ICJ has advanced in leaps and bounds over the past ten years, and yet a significant number of voices – activists, academics, statesmen – continue to debate its relevance to African conflict contexts. To date much of the discussion, emanating in particular from Uganda and the Sudan, has centred on the trade-offs between peace and justice, and on the distinction between restorative and retributive justice (see for example Allen 2006, 2008; Branch 2004; Huyse and Salter 2007; Baines 2007; Otim and Wierde 2008; Edozie 2009; Johnson 2009; Mamdani 2008). In this, my own brief contribution, I want to pick up this debate, but provide a different angle, drawing on research conducted at the Special Court for Sierra Leone. That Court, now entering its final stages, raised a number of questions about criminal justice and cultural dissonance, questions of a jurisprudential, procedural, and normative kind.

I turn first to jurisprudential matters. Although international criminal law strives to borrow from and legitimate itself via a plurality of legal systems, the fact remains that its basic doctrines are Western in origin. This can cause problems when the jurisprudence has a poor sociological fit with the non-Western societies to which it is applied. Take for instance the doctrine of ‘superior responsibility’, one of the modes of liability under which international criminal suspects are commonly tried. Although the case law on superior responsibility is increasingly sophisticated, and the doctrine has been applied with sensitivity and intelligence by some judges, it remains the case that it evolved in the context of well-drilled Western-style bureaucratic and military organisations, in which it made sense to think that a superior could be held responsible for the actions of his subordinates, no matter how far physically removed (Knoops 2007).

In Africa, however, well-drilled hierarchies of this nature are a rarity. Over the past forty years many African governments, armies and guerilla movements have found it tremendously difficult to create stable organisations, and authority relations tend to be informal and fluid instead (for introductions to a vast literature see Chabal and Daloz 1999; Clapham 1985; Jackson and Rosberg 1982; Médard 1982; Migdal 1988; Murphy 2007). This was certainly the case in Sierra Leone, where authority in at least one of the fighting factions – the Civil Defence Forces – was based on patron-client or neo-patrimonial ties, and was more akin to a ‘militarised social movement’ than a conventional army (Hoffman 2007; Kelsall 2009).

While it is not impossible that superiors in such networks should have the ‘material ability to prevent or punish’ the crimes of their subordinates, as the superior responsibility doctrine demands, it is much less likely than in a Western context. Nevertheless, some international prosecutors have sought, rather unthinkingly, to gain convictions under this doctrine even when the evidence for it was flimsy. This, in my opinion, has led to a waste of time and resources and, in the worst cases, some highly questionable judicial decisions (Kelsall 2009, 71-104).

A related problem, although I lack space to address it here, is that the superior responsibility doctrine as currently conceived is ill-equipped to deal with the exercise of charismatic authority, which is rather more common in Africa than it is in the West (see for example Ellis 1995, 2001; Ellis and ter Haar 2004, 90-113). In Sierra Leone it played a part in the trial of Allieu Kondewa, alleged by the Prosecution to have authority over his subordinates by virtue of the ‘mystical powers’ he possessed, and it is arguable that it would also be significant were Joseph Kony ever brought to trial (Kelsall 2009, 105-145).

The next issue I would like to raise is procedural. Just as most of the jurisprudence used in international criminal trials is Western in origin, so is the procedure. Legal anthropologists have long pointed to the more informal and inquisitorial style of African customary courts as compared with Western ones, especially in adversarial, common law contexts (Gibbs 1963; Gluckman 1964). It is difficult for most of us to imagine how unnerving international trials must be for many African witnesses, who find themselves miles from home, in a courtroom of extraordinary grandeur, confronted with robed judges and lawyers who speak a foreign language, and who subject them to highly unusual communicative practices including frequently hostile cross-examination. It is no wonder that getting clear testimony in such circumstances has often proved difficult (Cryer 2007), a problem compounded in contexts, not uncommon in Africa, where secrecy is prized as a high social ideal, and in which there have developed a repertoire of dissembling rhetorical techniques (Ellis and ter Haar 2004, 70-89; Ferme 2001; Murphy 1980; Shaw 2000).

Things are made worse where local conceptions of space and time are at variance with Western coordinates, as they are in many rural African contexts, such as in Sierra Leone. Existing attempts to put witnesses at ease by concealing their identities, paying them allowances, and proofing them before testifying, create their own problems. In my analysis these communicative troubles, in addition to making trials, slow, laborious, and expensive, can seriously call into question the quality of the evidence on which judicial decisions are based (Kelsall 2009, 171-224).

Finally, I turn to normative issues. While some of the crimes adumbrated under the Rome Statute are doubtless regarded abhorrent by all but the most deviant sub-cultural groups or individuals, the same cannot be said for all of them. The issue here turns on the relation between the international ‘community’ that makes international law – comprised of activists, academics, statesmen and lawyers, at the pinnacle of which are the States Parties themselves – and the less cosmopolitan communities existing on their periphery. Take for instance the crime of enlisting children under a certain age (the age has varied over time) into an armed force. Anthropologists and historians have shown that the very conception of what it is to be a child varies cross-culturally, as do the expectations of what a ‘child’ can legitimately be expected or forced to do (Archard 1993; Boli-Bennett and Meyer 1978; Hoffman 2003; James and James 2005; Rosen 2007). Such appeared to be the case in rural Sierra Leone where, in the case of the Civil Defence Forces, commanders enlisted and communities volunteered young fighters, apparently not knowing that this was a morally or legally wrong act. By prosecuting individuals for this crime, the Special Court arguably held those concerned to an alien standard of justice of which they knew nothing, imposing international norms and law on people, raised in a different culture, with contrasting moral ideas. Rather similar points could be made in respect of the crime of ‘forced marriage’ (Kelsall 2009, 146-170, 243-254).

To conclude, at the same time as the States Parties reflect on some of ICJ’s recent achievements, they might also consider some of its difficulties, including those problems that are not prominent on the agenda but become apparent when we dig deep into international trials. These difficulties concern the appropriateness of international criminal jurisprudence, procedure, and norms to African and other non-Western contexts. Is it within the power of the States Parties to recommend a more sociologically attuned use of the existing jurisprudence? Can they, by addressing the entire ecology of the courtroom, make international criminal procedure as friendly and productive as possible for witnesses unfamiliar with a Western courtroom setting? And can they advise a more sensitive enforcement of those laws which, although regarded as universally abhorrent by the ‘international community’, have yet to penetrate the consciousness of communities on its fringe? In short, is a more genuinely international, multicultural type of justice attainable than the kind we have now?

REFERENCES

Allen, Tim. 2006. Trial Justice: The International Criminal Court and the Lord’s Resistance Army. London: Zed Books.

———. 2008. Ritual (Ab)use? Problems with tradtional justice in Northern Uganda. In Courting Conflict? Justice, Peace and the ICC in Africa, edited by N. Waddell and P. Clark. London: The Royal African Society.

Archard, David. 1993. Children: Rights and childhood. London and New York: Routledge.

Baines, Erin K. 2007. The haunting of Alice: local approaches to justice and reconciliation in
Northern Uganda. International Journal of Transitional Justice 1 (1):91-114.

Boli-Bennett, John, and John W. Meyer. 1978. The ideology of childhood and the state: rules distinguishing children in national constitutions, 1870-1970. American Sociological Review 43 (6):797-812.

Branch, Adam. 2004. International justice, local injustice. Dissent (Summer):22-28.

Chabal, Patrick, and Jean-Pascal Daloz. 1999. Africa Works: disorder as political instrument. Oxford: James Currey.

Clapham, Christopher. 1985. Third World Politics: An introduction. Madison: University of Wisconsin Press.

Cryer, Robert. 2007. A long way from home: witnesses before international criminal tribunals. International Commentary on Evidence 4 (1):1-4.

Edozie, Rita Kiki. 2009. Globa citizens and Sudanese subjects: reading Mamdani’s Saviours. African Affairs 108 (433):661-668.

Ellis, Stephen. 1995. Liberia 1989-1994: a study of ethnic and spiritual violence. African Affairs 94 (375):165-198.

———. 2001. Mystical weapons: some evidence from the Liberian war. Journal of Religion in Africa 31 (2):222-236.

Ellis, Stephen, and Gerrie ter Haar. 2004. Worlds of Power: Religious thought and political practice in Africa. London: Hurst.

Ferme, Mariane. 2001. The Underneath of Things: Violence, history and the everyday in Sierra Leone. Berkeley: University of California Press.

Gibbs, James L. Jr. 1963. The Kpelle Moot. In Law and Warfare: Studies in the anthropology of conflict, edited by P. Bohannan. Austin and London: University of Texas Press.

Gluckman, Max. 1964. The judicial process among the Barotse. In Law and Warfare: Studies in the anthropology of conflict, edited by P. Bohannan. Austin and London: University of Texas Press.

Hoffman, Daniel J. 2007. The meaning of a militia: understanding the Civil Defence Forces of Sierra Leone. African Affairs 106 (425):639-662.

———. 2003. Like beasts in the bush: synonyms of childhood and youth in Sierra Leone. Postcolonial Studies 6 (3):295-308.

Huyse, Luc, and Mark Salter, eds. 2007. Traditional Justice and Reconciliation After Violent Conflict: Learning from African examples. Stockholm: Institute for Democracy and Electoral Assistance.

Jackson, Robert H., and Carl G. Rosberg. 1982. Personal Rule in Black Africa: Prince, autocrat, prophet, tyrant. Berkeley: University of California Press.

James, Allison, and Adrian James. 2005. Introduction: the politics of childhood – an overview. In The Politics of Childhood, edited by J. Goddard, S. McNamee, A. James and A. James. Basingstoke: Palgrave.

Johnson, Douglas H. 2009. Mamdani’s ‘settlers’, ‘natives’, and the War on Terror. African Affairs 108 (433):655-660.
Kelsall, Tim. 2009. Culture Under Cross-examination: International justice and the Special Court for Sierra Leone. Cambridge: Cambridge University Press.

Knoops, Geert-Jan Alexander. 2007. The transposition of superior responsibility onto guerilla warfare under the laws of the international criminal tribunals. International Criminal Law Review 7:505-529.

Mamdani, Mahmood. 2008. The new humanitarian order. The Nation, September 29.

Médard, J-F. 1982. The underdeveloped state in Tropical Africa: political clientelism or neo-patrimonialism. In Private Patronage and Public Power: Political clientelism in the modern state, edited by C. Clapham. London: Pinter.

Migdal, Joel S. 1988. Strong Societies and Weak States: State-society relations and state capabilities in the Third World. Princeton NJ: Princeton University Press.

Murphy, William P. 1980. Secret knowledge as property and power in Kpelle society: elders versus youth. Africa 50 (2):193-207.

———. 2007. The powerful presence of the past: historical dimensions of integration and conflict in the Upper Guinea Coast. Conference paper. Max Plancke Institute for Social Anthropology, Halle/Saale, Germany.

Otim, Michael, and Marieke Wierde. 2008. Justice at Juba: international obligations and local demands in Northern Uganda. In Courting Conflict? Justice, peace and the ICC in Africa, edited by N. Waddell and P. Clark. London: The Royal African Society.

Rosen, David. 2007. Child soldiers, international humanitarian law, and the globalization of childhood. American Anthropologist 109 (2):296-306.

Shaw, Rosalind. 2000. “Tok Af, Lef Af”: a political economy of Temne techniques of secrecy and self. In African Philosophy as Cultural Inquiry, edited by I. Karp and D. A. Masolo. Bloomington: IA.

* Tim Kelsall has taught politics at the Universities of Oxford and Newcastle, is a former editor of the journal African Affairs, and is the author of Culture Under Cross-Examination: International Justice and the Special Court for Sierra Leone (Cambridge University Press, 2009) (http://www.cambridge.org/9780521767781). He is currently living in Phnom Penh, Cambodia, working freelance as an Associate of the Africa, Power and Politics Programme (http://www.institutions-africa.org/) and as a Visiting Fellow of the War Crimes Studies Center, University of California at Berkeley (http://socrates.berkeley.edu/~warcrime/).

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7 thoughts on “International Criminal Justice and Non-Western Cultures

  1. You said “Take for instance the crime of enlisting children under a certain age (the age has varied over time) into an armed force. Anthropologists and historians have shown that the very conception of what it is to be a child varies cross-culturally, as do the expectations of what a ‘child’ can legitimately be expected or forced to do”

    I think regardless of whatever age a child is classes as an adult in many arican countries, it is generally still too young for them to be enlisted (volutarily or otherwise) into the armed forces. th esad fact is that too many governments see children as a means of cheap (dare I say “slave”) labor to be exploited in any way they see fit. Whether it boils down to an educational issue where the governments are enlighted on the future of the country that the children hold in their hands, or a more forecful approach is taken remains to be seen, but something definitley needs to be done.

  2. Tim said:
    ” Can they, by addressing the entire ecology of the courtroom, make international criminal procedure as friendly and productive as possible for witnesses unfamiliar with a Western courtroom setting? And can they advise a more sensitive enforcement of those laws which, although regarded as universally abhorrent by the ‘international community’, have yet to penetrate the consciousness of communities on its fringe? In short, is a more genuinely international, multicultural type of justice attainable than the kind we have now?”

    This is very interesting indeed and some very good questions, especially the last one. Also, are the challenges with the african justice system “real challenges” or is it just we “western people” who think our systems are always the best?

    Well…I just ranting on. Guess time will tell :) Keep on writing.

    Sincerely
    Martin Harsson

  3. Hi Tim, I found this paper to be very interesting and profoundly intuitive. I’m wondering if you have given any thought to the idea of improving justice systems within the countries themselves. I always read and hear people talking about the breakdown of system, regarding the ICC and related justice departments, without much mention of improvements to the countries prosecution systems. When talking about Sierra Leone, and the enrollment of children, it’s without a doubt one of the worst crimes that a national can commit, yet so many of these commanders were kids themselves…growing up in a country torn by war, with very little structure left. The criminal courts are left completely lame, and ineffective. Well, it’s all very frustrating, almost every part of it. The inability of the ICC to act against certain groups or factions, and the overall lack of power for countries to punish/convict their own criminals. As an outsider, it is very sad, and aggravating to say the least. To see very bad people, getting away with terrible crimes.

    Great paper, I will have to bookmark and read more, when I have time.

    Mikayla Wilkinson
    Author @ http://www.artprintsreviewed.com/african-art-prints

  4. I am just wondering what you think the impact of the ongoing conflict in Ivory cost will have in the context of non-western international criminal justice. Obviously, there are many ongoing problems there, how best do you think they could be addressed?

  5. This is a very interesting topic.  You brought up some great points that I had not considered before.  Living in the United States, I’m definitely guilty of assuming that our criminal justice system is superior, such that it should work just as effectively in most other cultures besides in Western cultures.  But, the points you made regarding jurisprudential matters, the superiority responsibility doctrine, and procedural matters are ones that I had not thought of and ones which have caused me to realize how naive it is to assume that our Western criminal justice system should be effective in other African cultures such as the ones you mentioned simply because it seems to work well in Western cultures.  Is a more genuinely international, multicultural type of justice attainable than the kind we have now?  Well, I’m beginning to wonder if that is even possible.  Great article!

  6. A very intriguing article indeed. We westerners think that everything we do is always the best way of doing things. Yet people in African nations lead totally differnet lives to us. In general, the level of wealth, the education system, the justice system. Everything is like chalk and cheese. Who are we to say what we do is best when you’re talking to nations that have different values, different beliefs.

    I once heard of a ritual of native people of a country. If someone had raped another within their tribe. Their punishment was to stand in front of the men of the tribe from sunrise to sunset and dodge spears all day as the men threw them at the offender. If they introduced that punishment into western culture, would it sit right with us. What if they told us we had no choice, it’s just the way it was. How would we react as a society. It seems that if the shoe is on the other foot, all is ok though? I think each culture should have a justice system that suits them. If foreigners don’t like it, don’t go.

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