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397
20. Afterword: culture, genuine and
juridical
Mark Goodale
The chapters in this volume examine the ways in which the contested
intersections where law and culture meet provide an innovative analytic for
understanding the work and broader significance of the International Criminal
Court (ICC). Even more, the volume’s case studies are remarkable for their
empirical granularity, for the scale of nuanced detail at which the chapters
approach the question of law and culture. In this, Intersections of Law and
Culture at the International Criminal Court stands in welcome complemen-
tary contrast to much of the recent scholarly literature on the ICC, which has
analysed its institutional evolution within large regional and historical frames.
For example, Phil Clark takes up the question of the ICC’s status in Africa
through an examination of the role of national politics, the clash between
domestic and international legal jurisdictions, and the ‘distance’ that is created
between different conceptions of justice: local, ethnic, national, and interna-
tional.1 In her critical analysis of the ICC, Kamari Maxine Clarke views the
ICC through an even wider lens: that of colonial and neo-colonial history. As
she argues, the ICC must be understood as the continuation of an enduring and
problematic heritage in which legal institutions imposed by foreign powers
regulate African populations through affect, that is, through the emotional con-
sequences produced through legal categories such as ‘victim’, ‘perpetrator’,
‘impunity’, and even ‘justice’ itself.2
The current volume, however, privileges a distance-near perspective on the
relationship between law and culture at the ICC, including, importantly, insid-
ers’ accounts of how culture – through its different and contested meanings
– shapes the inner workings of the Court, its administrative and prosecutorial
activities, and its responses to wider critiques of its investigations. As the
editors argue in the Introduction, it is through a study of the intersections of
1 Phil Clark, Distant Justice: The Impact of the International Criminal Court on
African Politics (CUP 2018).
2 Kamari Maxine Clarke, Affective Justice: The International Criminal Court and
the Pan-Africanist Pushback (Duke University Press 2019).
Intersections of law and culture at the International Criminal Court
398
law and culture that we can best understand the dilemmas faced by the Court
and its prospects for the future. As they put it, the problems of culture have
created ‘cracks in the armour and operations of the global court’, openings that
expose weaknesses at the same time that they let in critical light.
To their credit, the editors refrain from attempting to definitively fill in these
cracks through hard and fast prescriptions, either regarding the conceptual
relationship between law and culture or in relation to how the intersections
of law and culture influence in practice the operations of the Court. Instead,
the volume serves as a collective call to action that encourages greater
self-reflection about how the ‘challenges related to culture …. add to the
growing number of critiques faced by the Court’, as the Introduction explains.
In this Afterword, I intend to contribute to this call to action by offering
a number of reflections about the relationship between law and culture, reflec-
tions that are meant to place the volume’s crucial interventions into a broader
context.
To begin, it is important to situate Intersections of Law and Culture at the
International Criminal Court in relation to the current and troubled historical
period, one in which global legal institutions and legal doctrines of all kinds
are confronting a number of countervailing currents. Although the impetus
for an international permanent criminal tribunal waxed and waned at different
moments during the twentieth century, it is not surprising that these efforts
took on qualitatively different meaning after the end of the Cold War. This was
a period in which the end of the bipolar Cold War system – with its dominant
global logic of Realpolitik, the fundamental priority of national interest, and
the intertwining forces of decolonisation and non-alignment – gave way to
a juridical new world order, one in which human rights and other cosmopoli-
tan legalities became the ‘archetypal language’ of social change and political
transition and ‘key ideas of contemporary world-making’.3
Most of the 1990s were a sort of Golden Age for human rights and inter-
national law, in which a ‘culture of human rights’4 took root in different and
consequential ways, from the transformation of international development
into a form of human rights activism to the establishment of various ‘special
tribunals’ as a response to mass atrocities in the former Yugoslavia and
Rwanda. This was also a period when the various now-iconic world confer-
3 Richard A Wilson, The Politics of Truth and Reconciliation in South Africa
(CUP 2001) 1; Ulf Hannerz, ‘“Human Rights” Has Become One of the Key Ideas of
Contemporary World-making’ in Mark Goodale and Sally Engle Merry (eds), The
Practice of Human Rights: Tracking Law Between the Global and the Local (CUP
2003).
4 Jane Cowan, Marie-Bénédicte Dembour and Richard A Wilson, Culture and
Rights: Anthropological Perspectives (CUP 2001); see also Goodale and Merry (n 3).
Afterword 399
ences took place, including the 1993 World Conference on Human Rights,
the 1995 World Summit for Social Development (in which human rights and
development were formally fused), and the 1995 Fourth World Conference
on Women, at which then-First Lady Hilary Rodham Clinton famously pro-
claimed that ‘human rights are women’s rights and women’s rights are human
rights’. It was also throughout the 1990s that the international legal doctrine
of indigenous rights took on political importance through the ratification and
implementation of International Labour Organization Convention 169 by
countries with significant indigenous populations such as Bolivia, Mexico,
Guatemala, the Central African Republic, and Norway.5
It was thus during this decade of rapid institutional and normative expansion
for human rights that the Rome Statute was mooted, drafted, and adopted by
the UN General Assembly, in July 1998. However, the fact that the Statute did
not enter into force until 2002 – a relatively short period by the standards of
major international treaties – is important in understanding the ICC in its his-
torical context. In 2000, UN Secretary-General Kofi Annan could confidently
declare that ‘at the dawn of the 21st century’, the world was living through
‘the Age of Human Rights’.6 Yet just a year later, the attacks of September
11, 2001 proved to be a negative turning point for this period of human rights
optimism and growing global solidarity, a global shock that in retrospect
served to bookend the era that began with the end of the Cold War. The rise
of the national security state and global electronic surveillance, the images of
US soldiers torturing prisoners at Abu Ghraib, and the dislocations wrought by
the later financial crisis of 2007–08, all contributed to the closure of the ‘Age
of Human Rights’ and its replacement by a much less cosmopolitan world in
which the ‘unsettled status of human rights’ only deepened.7
What this means is that the entire history and development of the ICC as the
world’s first permanent international criminal tribunal committed to seeking
5 As with most human rights treaties, the ratification history of ILO 169 is also
notable for the countries that are not states parties. These include the major settler
colonial countries such as the United States, Canada, Australia, and New Zealand, all
of which have important indigenous populations, and China, which, according to the
International World Group for Indigenous Affairs (IWGIA), has the largest indigenous
population in the world, although the official policy of the Chinese government is that
there are no indigenous people in the country, only ‘ethnic minorities’ (www .iwgia .org/
en/ china .html).
6 Kofi Annan, ‘The Age of Human Rights’, Project Syndicate, http:// www .project
-syndicate .org/ commentary/ the -age -of -human -rights ?barrier = true, last accessed 30
March 2020.
7 Austin Sarat and Thomas R Kearns, ‘The Unsettled Status of Human Rights’
in Austin Sarat and Thomas R Kearns (eds), Human Rights: Concepts, Contests,
Contingencies (University of Michigan Press 2001).
Intersections of law and culture at the International Criminal Court
400
justice for victims of mass human rights violations have taken place against
a wider background, in which human rights have been under attack in different
ways from many of the world’s leading powers, including the United States,
China, and Russia. At the same time, beginning in the early 2010s, many of
the leading national opponents of human rights like the United States, China,
Turkey, and Saudi Arabia crystallised their common commitments – not to
human rights, but to the strengthening of the global capitalist system. The
growth of this ‘G-20 world’ has been associated with (if not the cause of)
a range of impediments to human rights promotion, from global economic
inequality to resource conflicts to mass migration.8
Finally, and particularly relevant in understanding the historical context in
which the intervention of Intersections of Law and Culture at the International
Criminal Court takes place, the ‘rise and fall’9 of human rights as a dominant
political and moral (if not necessarily legal) register has been accompanied
by a corresponding resurgence in ethno-nationalism, from a United States
that elected Donald Trump as president to the Hindu politics of Modi’s India,
and from the ‘Little England’ in the imaginaries of Brexit nationalists to the
deeply ethnocentric allure of the Turkish President Recep Tayyip Erdoğan. In
the stunning return of nationalism as an increasingly pervasive global logic,
‘culture’ has taken on new and often troubling forms. Indeed, one could say
that the current moment (2020) is characterised by the re-culturalisation of
politics at all scales. From a global perspective, we seem to be moving away at
the speed of light from the ‘Age of Human Rights’ that gave birth to the ICC.
This is all to say that the intersections of law and culture have taken on dif-
ferent meaning and implications, both at the ICC and beyond. Given the retreat
of universalist ideologies of human rights and global justice, their relationship
to ‘culture’ must be understood differently. The clash is no longer between an
ascendant international court dedicated to the protection of human rights and
those who would avoid its reach based on recalcitrant and discredited concep-
tions of ‘culture’. Rather, the real lines of tension seem to mark something like
the opposite: a conflict between an international court whose legitimacy and
effectiveness are in question and the growing importance of local, national,
and regional legal institutions, all of which are grounded in non-universal
ideologies of collective belonging and legal responsibility. Even the so-called
Pan-Africanist alternative to the ICC (the proposed African Court of Justice
and Human Rights), while framed in relation to a vast continent characterised
8 See Mark Goodale, Reinventing Human Rights (Stanford University Press,
forthcoming).
9 Lori Allen, The Rise and Fall of Human Rights: Cynicism and Politics in
Occupied Palestine (Stanford University Press 2013).
Afterword 401
by tremendous diversity at all scales, is still ‘non-universal’ in the sense that
it is not meant to serve as a global court that protects the human rights of all
human beings.10
Nevertheless, despite these shifting landscapes on which the intersections
between law and culture create points of both conflict and possibility, certain
fundamental problems endure, as the current volume demonstrates. First, and
most basic, is the question of the meaning of culture itself. This is obviously
a question that can and has been answered from a wide range of perspectives:
the anthropological (itself varied and contested, but still associated with
Edward Tylor’s conception of ‘that complex whole which includes knowl-
edge, belief, art, law, morals, [and] custom’11); the Arnoldian (from Matthew
Arnold, the nineteenth century English critic who said that culture was ‘the
best which has been thought and said’, a restrictive sense of culture that gave
rise to later distinctions between ‘high’ and ‘low’ culture12); the Marxist
(which would relegate ‘culture’ either to the less important, and sometimes
dangerous, strata of the ‘superstructure’, or insist that it be seen as an expres-
sion of class domination); the feminist (which might view ‘knowledge, belief,
art, law, morals’13 as indelibly shaped by patriarchy and seek to replace it with
more egalitarian or even female-centric alternatives, as with Carol Gilligan’s
‘ethics of care’14); and so on.
Interestingly, given that several chapters in Intersections of Law and Culture
at the International Criminal Court analyse the ways in which the Court has
grappled with the relationship between human rights enforcement and ‘cultural
heritage’, one can also identify yet another approach to culture, that promoted
by UNESCO with the adoption of its World Heritage Convention in 1972.
In designating only certain expressions of cultural heritage to be worthy of
international recognition and protection, UNESCO applies an understanding
10 See Clarke (n 2). Even so, the status of this Africanist alternative to the ICC
itself remains very much in question. Since the African Union adopted the proposal
to create a new African court (through the ‘Malabo Protocol’), only 15 of the AU’s 55
member states have signed it, with zero ratifications (even among the continent’s fierc-
est country critics of the ICC, like Kenya, South Africa, Gambia, and Burundi, the only
African country to actually leave the Rome Statute). The reasons for these difficulties
seem to have less to do with regional tensions between law and culture than with polit-
ical conflicts within the AU, including those over the Malabo Protocol’s controversial
art 46A bis, which would grant immunity from prosecution to all senior African politi-
cal leaders, including heads of state.
11 EB Tylor, Primitive Culture (G. P. Putnam’s Sons 1871).
12 Matthew Arnold, Culture and Anarchy (Oxford University Press 2006 [1869]).
13 Tylor (n 11).
14 Carol Gilligan, In a Different Voice: Psychological Theory and Women’s
Development (Harvard University Press 1982).
Intersections of law and culture at the International Criminal Court
402
of culture that is a curious mix of the anthropological and the Arnoldian. On
the one hand, UNESCO’s definition of cultural heritage starts with broad
anthropological references to ‘values’, ‘events’, ‘living traditions’, ‘ideas’, and
‘beliefs’. On the other hand, the approach then accelerates into the restrictive
domain of Arnold’s ‘best which has been thought and said’ in identifying
only cultural heritage of ‘outstanding universal value’ for inclusion on the list.
As scholars have observed, it is perhaps not surprising that the results of this
process of inclusion and exclusion have been controversial, with almost 50 per
cent of all cultural heritage sites of ‘outstanding universal value’ being located
in Europe and North America.15
The editors of the volume reflect on the different meanings of culture and
adopt a general approach that is inspired by an anthropological understanding.
At the same time, the editors remain keenly attuned to the ways in which the
chapters reveal deep contestation around culture as a polyvalent concept that
intersects with law at the ICC in different ways. Yet if the problem of culture
forms an important part of the book’s context, a closely related question is,
who speaks for culture? In other words, here we must draw a distinction – fol-
lowing the philosopher Isaiah Berlin – between the conceptual and categorical
dimensions of culture. The problem of culture-as-concept is precisely what has
just been described: culture as the ‘complex whole’, culture as ‘the best which
has been thought and said’, culture as expressions of patriarchy, culture as
tool of class domination, and so on. But the categorical dimensions of culture,
following Berlin, are something else: they are what constitute the concepts
in both theory and fact. Once one settles on an anthropological approach to
culture-as-concept (for example), then one must identify the ‘knowledge,
belief, art, law, morals’ that distinguish one complex system from another; if
one follows a feminist approach to the problem of culture-as-concept, then one
must show how particular beliefs and practices express an underlying patriar-
chy. The same applies, no matter which definition is adopted: the distinction
must be made between the definition of culture and its categorical content.
Now leaving aside the fact that these distinctions are not always clear cut,
a number of important questions follow: Who is entitled to make these dis-
tinctions? Entitled in what ways, for which reasons? What happens if there is
a conflict about this distinction, either about which definition of culture should
prevail, or of what culture consists, or both? Are these conflicts philosophical,
legal, or political, or all of these in different measure with different conse-
15 See Lynn Meskell, ‘States of Conservation: Protection, Politics, and Pacting
within UNESCO’s World Heritage Committee’ (2014) 87(1) Anthropological Quarterly
217. See also Christoph Brumann, ‘Shifting Tides of World-Making in the UNESCO
World Heritage Convention: Cosmopolitans Colliding’ (2014) 37(12) Ethnic and
Racial Studies 2176; and Lynn Meskell (ed), Global Heritage: A Reader (Wiley 2015).
Afterword 403
quences depending on the specific situation? A specific example of how the
‘who speaks for culture?’ problem plays out in the ICC can be seen when the
cultural defence is raised as a legal defence to criminal charges. Beyond the
procedural question of admissibility, what I have described as the categorical
dimensions of culture must ultimately be established. What are the actual
beliefs and practices of the particular culture that is being invoked to justify
actions? In this case, the legal system allows an expert to testify so that the
judge can make a ruling about which testimony can be accepted as evidence
for a specific culture (note that in this case the conceptual dimension of culture
is not at issue; in relation to the cultural defence, courts, including the ICC,
implicitly adopt an anthropological definition). Yet as scholars have demon-
strated, just because the court has the legal right to speak for culture does not
mean that the wider problem is resolved. In particular, expert testimony almost
always demands a simplification of the categorical dimensions of a culture
through tailored descriptions that are shaped and sometimes deformed by their
translation into legal forms.16
In the end, the questions of who speaks for and of culture will remain as
an area of conflict, one in which certain groups, including anthropologists,
jostle for priority and legitimacy. Indeed, this problem has been one that has
occupied anthropologists from the beginning, as the title of this Afterword sug-
gests. In 1924 the linguistic anthropologist Edward Sapir published a critique
of the varying, and often contradictory, approaches to culture in an attempt to
draw a distinction between what he considered ‘genuine’ cultures and those
that were ‘spurious’.17 According to Sapir, genuine cultures were those in
which beliefs and practices became closely associated with a people’s socially
inherited ‘genius’; spurious culture, by contrast, was either the growing mass
consumerism of the time or the tendency of American elites to adopt European
tastes for ‘high culture’ in the Arnoldian sense, usually around art and liter-
ature. Yet it perhaps goes without saying that Sapir’s efforts to definitively
distinguish between ‘genuine’ and ‘spurious’ cultures hardly resolved the
matter. As we have seen, the polyvalence of ‘culture’ is not a problem that can
be solved. Instead, as the current volume shows, this polyvalence must be put
in specific context and made a key part of our critical and empirical investiga-
tions, whether in relation to the ICC or otherwise.
16 See the chapters in Marie-Claire Foblets and Alison Dundes Renteln (eds),
Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defence (Hart
Publishing 2009). Despite the manifold problems with the cultural defence, the editors
are generally supportive of its use in criminal trials.
17 Edward Sapir, ‘Culture, Genuine and Spurious’ (1924) 29(4) The American
Journal of Sociology 401.
Intersections of law and culture at the International Criminal Court
404
Finally, in foregrounding the intersections of law and culture as a basic
point of conflict for the ICC, the volume makes an important contribution to an
enduring debate over the relationship between universal legal categories and
those whose juridical meanings are embedded in – and circumscribed by – the
boundaries of particular cultural systems. The question becomes: are some
legal concepts universal, or is all law in the end ‘cultural’, meaning derived
from particular legal cultures? This debate was most famously associated with
Max Gluckman and Paul Bohannan, who argued against each other in various
texts and even at professional conferences. Gluckman insisted that some
legal concepts – such as the ‘Reasonable Man’ – could be used universally to
analyse law even in different cultural contexts. Paul Bohannan, by contrast,
argued that the search for legal universals was flawed in two ways: first, by
preventing the scholar from understanding the cultural particularity of differ-
ent legal concepts; and second, by assuming that what were actually Western
legal concepts were in fact universal.18
What the chapters in Intersections of Law and Culture at the International
Criminal Court reveal in such convincing detail are the ways in which this
fundamental tension – between legal universality and cultural particularity
– has shaped the evolution and institutional functioning of the ICC. As we
have seen, the ICC emerged from an historical period in which universal
legal categories and institutions were becoming increasingly powerful in the
post-Cold War period. Indeed, as the world’s first permanent international
criminal tribunal, the ICC stands as a signal example of what might be thought
of as the apotheosis of legal universality: a permanent court committed to
prosecuting violations of nothing less than humanity itself. Yet as the volume
shows, the assertion of this super-universalist legal prerogative almost imme-
diately confronted resistance: political, regional, and yes, cultural. In an echo
of Bohannan’s disagreement with Gluckman, the ICC was accused of asserting
jurisdiction against African leaders based on ‘universal’ legal categories such
as human rights when in fact it was acting as an institutional agent of Western
neo-colonialism.
Even so, the debate between Gluckman and Bohannan was never fully
resolved, even if Bohannan’s insistence on understanding law through its
different cultural ‘folk’ categories eventually won the day, at least among
anthropologists of law. Yet this was as much for political-academic reasons
as anything else, as legal-cultural particularity became the order of the day,
especially during the years in which postmodern legal critique reinterpreted
the pretensions of legal universality as ‘meta-narratives’ that masked insid-
18 For an overview of the Gluckman–Bohannan debate, see Mark Goodale,
Anthropology and Law: A Critical Introduction (NYU Press 2017) 15–17.
Afterword 405
ious colonial or neo-colonial processes. However, many of these same
anti-universalist legal critics would later have to come to terms with the
surging importance of global legal ideologies, and human rights promotion
in particular, since arguments for cultural authenticity came to be associated
with practices like female genital mutilation (FGM), witchcraft accusations
against children (often followed by ritualist torture or killing), and forced child
marriage, which were often justified precisely as expressions of ‘local’ (read:
genuine) culture.
And if the wider debate over legal universality and cultural particularity was
never fully resolved, the same will continue to be true for the tension between
law and culture at the ICC. In this sense, it is entirely apt to describe this
meeting point as an intersection, a place of encounter, sometimes a collision,
but always a place where different actors must confront each other – hopefully
constructively – over fundamental questions of universal norms, cultural dif-
ference, institutional power and justice.