Adjudication of war crimes: Keeping sight of cultural sensitivities
Courts that adjudicate war crimes or other crimes against humanity are increasingly taking regional norms and cultural values into consideration. PhD candidate Seun Bakare examined whether this could also be an asset in cooperation with the International Criminal Court (ICC).
When it comes to the prosecution of war crimes and genocide, there is a need to think about changes in the application of international criminal law. Seun Bakare, a Nigerian Barrister currently leading strategic litigation work for East and West Africa, at the Human Dignity Trust, UK has identified a trend in which regional perceptions about war crimes, for example, are taken into account in court rulings. This can help victims and the community in general to see how their own legal systems are engaged in restoring justice. These developments at the regional level inspired Bakare to conduct doctoral research in Leiden into whether this could benefit the International Criminal Court (ICC) in The Hague.
Bakare: ‘My research suggests that justice is not a one-layered structure, but a network where different courts at various levels can complement each other, ensuring that perpetrators are held accountable and victims see justice done at both local and international levels.’
Cultural norms
The trend of taking cultural values into account in prosecution and sentencing can be seen, among other things, in regional tribunals such as the proposed African Court of Justice and Human Rights (ACJHR), which aims to administer justice from Tanzania with the creation of an international criminal chamber, in addition to the existing chambers that are already dealing with human rights cases. These types of regional courts and tribunals will deal with crimes against humanity and war crimes, as the ICC does. Besides applying international law, they will also keep sight of the concept of justice as it prevails across regions and within cultures.
Competing tribunals
Legal experts sometimes present this emerging regionalism as a counterpart to the ICC, which, after all, is regarded as the highest court that adjudicates crimes against humanity and other core international crimes. For various reasons, such crimes might not come before the courts in the individual countries concerned. In the application of treaty law, Bakare identified a change in this area which triggered his research topic.
‘I undertook this research because the field of international criminal law is at a crossroads. While the International Criminal Court (ICC) is often seen as the pinnacle of global justice, I realised that there are many other levels of courts – domestic, hybrid, and regional – that also play significant roles in delivering justice. Yet, there is little clarity on how these different levels should interact. My research was driven by a need to understand and provide a framework for how these various systems can work together rather than compete.’
A tailored approach
Bakare: ‘This topic is crucial because justice cannot be confined to a one-size-fits-all approach. By exploring the concept of a “system of justice,” I wanted to help develop a more flexible, multi-layered approach to criminal accountability, one that recognises the value of regional efforts and their ability to address crimes in ways that are contextually relevant and are complementary to international mechanisms. My research shows that regionalism does not have to compete with international law, but can actually be an asset.’
An inclusive approach
This research is highly relevant to both criminal justice and society because it proposes a more inclusive and coordinated approach to delivering justice for serious crimes like war crimes and crimes against humanity.
‘By recognising that regional courts and tribunals can play a vital role alongside the ICC, it enhances the effectiveness of the global justice system. For society, this means that justice can be more accessible and culturally sensitive, allowing communities to see their own legal systems engaged in resolving issues of mass atrocity.’
Bakare also explains that it encourages collaboration between different levels of courts, promoting efficiency and avoiding unnecessary conflict of jurisdiction.
Seun Bakare’s will defend his PhD thesis entitled ‘Regional complementarity in international criminal law: Making sense of the four-tiered justice paradigm’ on Wednesday 6 November.