Intersections of Law and Culture at the International Criminal Court


Intersections of Law and Culture at the International Criminal Court

9781839107290 Edward Elgar Publishing
Edited by Julie Fraser, Assistant Professor and Brianne McGonigle Leyh, Associate Professor, Netherlands Institute of Human Rights, Utrecht University, the Netherlands
Publication Date: 2020 ISBN: 978 1 83910 729 0 Extent: 456 pp
This pioneering book explores the intersections of law and culture at the International Criminal Court (ICC), offering insights into how notions of culture affect the Court’s legal foundations, functioning and legitimacy, both in theory and in practice.

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This pioneering book explores the intersections of law and culture at the International Criminal Court (ICC), offering insights into how notions of culture affect the Court’s legal foundations, functioning and legitimacy, both in theory and in practice.

Leading scholars and legal practitioners take a multidisciplinary approach to challenge the view that international law is not limited or bound by a particular culture, arguing instead that law and culture are intertwined. Analysing how culture influences views of the law, the facts to which it applies, and the fairness of the outcome, the contributors consider the implications of culture and law for the ICC and its international reach. Chapters discuss important intersections of law and culture, from religion and politics to the definition of international crimes and their interpretation by judges. Highlighting the inherent but often overlooked role of ‘culture’ at the ICC, the book puts forward recommendations to aid the Court’s future considerations.

This book is a valuable resource for academics and students in a variety of fields including law, criminology, anthropology, international relations and political science. Its practical focus is also beneficial for legal practitioners and civil society organisations working in international criminal justice.
Critical Acclaim
‘Intersections of Law and Culture is an exciting and important contribution to legal scholarship on the ICC and it extends several of the existing discussions about ICC substance and procedure in new directions. ... a timely and innovative addition to the literature on international criminal law.’
– Tomas Hamilton, International Journal of Law in Context

‘This volume provides an innovative perspective on the ICC’s work and is heartily recommended for scholars and students in the field of transitional justice looking for nuanced comprehen- sion of the challenges the ICC faces in delivering global justice.’
– Mirjana Gavrilovic Nilsson, Journal of International Criminal Justice

‘This text is an important and incisive exploration into cultural issues relating to the practice and procedure of the ICC.’
– Molly Thomas, Cross-Cultural Human Rights Review

‘This is thought-provoking analytical work that calls for self-awareness and engagement with culture. The collection will interest anyone working in the international criminal law field, and with the ICC - whether practitioners or academics.’
– Silvina Sanchez-Mera, Law in Context

‘This provocative volume on the culture of the ICC comes amid growing awareness that the Court''s internal culture shapes its own legal operations as well as the far flung cultures in which it intervenes. Fraser and McGonigle Leyh have assembled an impressively diverse array of contributors to dissect the numerous cultural dimensions of the ICC''s work. What they show is that, rather than delivering a universal conception of justice, the ICC''s norms and approaches derive from specific (mostly Global North) cultures and intersect in complex – sometimes damaging – ways with different cultural practices and perspectives around the world. This book is essential reading for anyone interested in the culturally specific character of a nominally “global” institution.’
– Phil Clark, SOAS University of London, UK

‘This is a highly original and thought-provoking book on the ways in which culture impacts the work of the ICC. While some topics may be more familiar to lawyers, like cultural defences, other chapters discuss novel areas where law and culture intersect in relation to the Court. As detailed in this extraordinary treatise, the Court has continuously grappled with cultural entanglements both inside and outside its proceedings. For anyone interested in this global institution, this book is a welcome and much-needed addition to ICC scholarship.’
– Michael Scharf, Case Western Reserve University, US

‘Offering a missing piece of the puzzle for conceptualizing the place of law and culture in international criminal law circuits, Julie Fraser and Brianne McGonigle Leyh have provided us with a brilliant framework for making sense of the ideas and complexities that shape international criminal law. Through an exploration into the way that various communities deal with norm breaking behavior and produce cultural codes which shape court daily practice, Intersections of Law and Culture at the International Criminal Court highlights issues that often go unaddressed in the life of the law. Instead, the volume offers us an intervention into the profundity of cultural processes that are central to the perceived stability and dynamism of international law.

This is a must read for students of international law, who seek to understand the complexities of law and culture in the contemporary period.’
– Kamari Clarke, University of California, Los Angeles, US
Contributors: P.-L. Bagott, J.I. Bishay, K. Breemen, V. Breemen, M. Coleman, C. Davis, T. Doherty, A. Dundes Renteln, M. Fałkowska-Clarys, J. Fraser, M. Goodale, N. Higgins, B. Holá, L. Martinet, G. Maučec, B. McGonigle Leyh, F. McKay, A. Merrylees, N. Narayan, A.-L. Nistor, O. Owiso, P. Oyugi, I. Roestenburg-Morgan, S. Schot, L. Swigart


1 Intersections of law and culture at the International Criminal
Court: Introduction 1
Julie Fraser and Brianne McGonigle Leyh
2 Now you see it, now you don’t: culture at the International
Criminal Court 14
Leigh Swigart

3 How to solve a problem like Al Madhi : proposal for a new
crime of ‘attacks against cultural heritage’ 38
Peta-Louise Bagott
4 Cultural heritage destruction and the ICC: lessons from
connecting cultural heritage and human rights through
a library lens 59
Vicky Breemen and Kelly Breemen
5 Keeping the ‘delicate mosaic’ together: can the ICC deal
with intangible cultural heritage? 81
Martyna Fałkowska-Clarys and Lily Martinet
6 A political analysis of sexual violence in the International
Criminal Court 102
Alison Dundes Renteln

7 ‘Solemnly declare to tell the truth’: internationalising the
Solemn Undertaking before the International Criminal Court 127
Joshua Isaac Bishay
8 Spellbound at the International Criminal Court: the
intersection of spirituality and international criminal law 147
Adina-Loredana Nistor, Andrew Merrylees and Barbora Holá
9 ‘Questioned by the Court’: the role of judges and
sociocultural aspects of testimonial evidence in Katanga 169
Suzanne Schot
10 The power of culture and judicial decision-making at the
International Criminal Court 190
Gregor Maučec
11 Doing ‘justice’ at the Office of the Prosecutor: portrayals of
a cultural value 209
Cale Davis

12 In defence of culture: should defences based on culture
apply at the ICC? 229
Noelle Higgins
13 Introducing aspects of transformative justice to the
International Criminal Court through plea negotiation 249
Phoebe Oyugi and Owiso Owiso
14 ‘Culture’ and sentencing at the International Criminal Court 268
Michelle Coleman
15 A delicate mosaic: the ICC, culture and victims 288
Fiona McKay

16 The quest for cultural legitimacy at the ICC: a third-way
approach as an appropriate response to African cultural paradigms 312
Ingrid Roestenburg-Morgan
17 ‘We will let it die on its own’: culture, ideology and power
at play between the United States and the International
Criminal Court 337
Brianne McGonigle Leyh
18 Asia’s reluctance to join the ICC: who is jilted by whom? 358
Nikhil Narayan
19 Exploring legal compatibilities and pursuing cultural
legitimacy: Islamic law and the ICC 378
Julie Fraser
20 Afterword: culture, genuine and juridical 397
Mark Goodale

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