Cultural Defences at the International Criminal Court

Cultural defences, i.e. claims that certain aspects of a defendant's cultural background should be taken into consideration by courts when adjudicating on their guilt or innocence, have been raised before domestic courts in a variety of jurisdictions. This has been a very sensitive and controversial issue. However, the issue of cultural defences at international tribunals is one that has not yet been fully explored. The main objective of this book is to analyse if the International Criminal Court can, and should, accommodate cultural defences as answers to legal charges, or if the Court should accommodate cultural considerations in other ways.

Contents

INTRODUCTION

Introductory Comments

Research Question

Structure

CHAPTER 1: THE CULTURAL DEFENCE; ITS USE AND ABUSE

Introduction

What is `Culture'?

The Cultural Defence

Arguments in favour and against the Cultural Defence

The Right to Culture

Creating a Legal Framework

Cultural Relativism

Enculturation

Religion as Culture

The Right to a Fair Trial

Human Rights Treaties and the ICC

Individualised Justice

Conclusion

CHAPTER 2: THE ICC STATUTE; A CULTURE CLASH?

Introduction

Law as Culture

The Making of the Rome Statute

Cultural Accommodation at the ICC

Cultural Property

Linguistic Diversity

Victims and Witnesses

Expert Witnesses on Cultural Issues

Judges

Sentencing

Reparations

Article 21 of the ICC Statute and Sources of Law - A Cultural Portal?

Applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict

General Principles of Law

Conclusion

CHAPTER 3: DEFENCES AT THE ICC

Introduction

Defences in International Criminal Law

ICC Statute provisions on defences (Articles 31-33)

Mental Incapacity, Disease or Defect

Cultural Issues as part of the Mental Incapacity Defence

Intoxication

Cultural Issues as part of the Intoxication Defence

Self-defence, defence of others and defence of property

Cultural Issues as part of the Self-Defence Defence

Duress or Necessity

Cultural Issues as part of the Defence of Necessity or Duress

Mistake of Fact or Law

Cultural Issues as part of the Defence of Mistake

Superior Orders

Cultural Issues as part of the Defence of Superior Orders

A Cultural Defence as Another Ground for Excluding Criminal Liability

Conclusion

CHAPTER 4: ICC PRACTICE

Introduction

Linguistic Diversity

Child Soldiers

Child Soldiers and the Lubanga case

Child Soldiers and the Ongwen case

Duress in the Ongwen case

The Destruction of Cultural Property

Hisbah

Ziyara

Cultural Considerations in the Al Mahdi Reparations Decision

Moral Harm

Conclusion

CONCLUSION

INDEX