The Power of Culture and Judicial Decision-Making at the International Criminal Court
iCourts Working Paper Series No. 188
25 Pages Posted: 10 Mar 2020
Date Written: February 10, 2020
This chapter examines the influence of culture - as one among many extra-legal factors - on the International Criminal Court’s judicial decision-making. Specifically, it considers whether admitting social science evidence, such as testimonies and opinions of cultural experts (for example, anthropologists or sociologists), can be seen as an adequate means to overcome the challenge of international judges’ remoteness from local cultures and to fill in cultural knowledge gap on their part when finding facts and making decisions. Starting from a broad and dynamic definition of culture, the chapter first introduces the vexed question of cultural relativism in international criminal law, looking at how the ICC judges are supposed to deal with it in culture-related judicial decision-making. While arguing that the ICC judges should reject arguments that culturalise violations of international criminal law and instead aim for universal application of joint criminal law standards and principles, it portrays ways how cultural understanding and sensitivity is meaningful to the Court’s judicial practices. It then goes on by highlighting an additional value that, in the right circumstances, the use of cultural expertise could bring to judicial deliberations and decision-making at the ICC. Having considered the role and contribution of cultural experts, the chapter turns to briefly discuss possible ways to increase overall cultural sensitivity of the ICC judges and ensure that their decisions are made independently of their cultural assumptions. The final part of the chapter finds that cultural understanding and sensitiveness of the international criminal judge is indeed an important factor in ensuring fair trials and rendering just decisions. It concludes with some recommendations on the appropriate engagement of cultural experts in international criminal trials.
Keywords: International Criminal Court, judicial decision-making, judicial fact-finding, cultural influence, cultural experts
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