Part of the SLSA Blog Series ‘The Legal Treatment of Defendants with Partial Criminal Responsibility’
Vera Piovesan
People’s cultural background determines how we each perceive, understand, and respond to the world around us. Normally, our own values align with those espoused by the criminal justice system, thus leading to fairly uncomplicated outcomes. However, what happens when the individual feels compelled to comply with cultural norms that clash with legal obligations? Should the cultural background of the defendant be entirely dismissed in order to honour the legal imperative? Or should it be considered in determinations of culpability? These questions have given rise to lively debates in multiple domestic settings, especially those of multicultural societies.[1] Yet, the cultural defence remains only a (controversial) legal strategy to introduce cultural evidence in the courtoom rather than a codified defence.
Now commentators in the field of international criminal law have started to discuss the same topics,[2] asking: is there a space for cultural defences in international criminal trials?[3] In order to answer this question, one must establish: what cultural norms are; what kind of influence these norms hold; and, finally, what space can be found in existing law to accommodate them. I will answer each in turn and conclude that there is some, albeit very limited, space for a cultural defence in international criminal law, most plausibly articulated in the attribution of partial responsibility by way of mitigation of sentence.
What is culture?
In the context of a potential cultural defence, culture should be conceptualised as enculturation, a process and construct through which cultural norms are internalised by the individual and, resultingly, become the “key” – so to speak – through which the individual interprets the world, including their legal obligations.[4] Crucially, understood in this sense, culture does not merely equate observable practices but is instead a process that needs to be considered in order to understand individual decision-making. After all, the regime of individual criminal responsibility hinges on the moral agency of the individual, meaning their ability to distinguish right from wrong and to make free, informed, and deliberate decisions based on that.[5]
Why does culture matter?
Surely, however, culture is not the only element that complicates individual moral agency. Of all the forces that play a role in directing an individual’s decision-making process in the commission of a crime, is there something qualitatively different in culture that differentiates it from a range of other factors, such as passion, or greed, or even socio-economic status?[6] The answer to this question is ‘yes’ and the reason lies in culture’s role in constructing the moral agency of the individual.
To then assess the importance that culture has, one could subscribe to a complete ‘inability thesis,’[7] according to which the individual is coerced into action by cultural dictats. However, this remains a minority opinion. The most persuasive stance is that cultural processes influence, without determining, decision-making. What matters is that social and cultural processes contribute – on a scale of degrees depending on the stance taken – to making individuals ‘persons’[8] and moral agents accountable in law. It follows that a detailed investigation of cultural background might not negate the moral agency of the individual, but it certainly complicates attribution of culpability. As a result, it seems plausible that cultural processes should be given adequate consideration in the courtroom in order to properly reflect the level of blameworthiness of the individual.
Where to locate a cultural defence in existing international criminal law?
In international criminal law, challenges to culpability may manifest as defences or as mitigation. Limiting the analysis to ICC law, the ability of cultural background to be recognised as significant enough to amount to a full defence appears to be limited. Some commentators have maintained that cultural evidence can contribute to fulfilling the elements of a listed defence.[9] Other observers have posited that a separate ‘cultural defence’ could be introduced pursuant to the open clause of article 31(3) of the Rome Statute, on account of the defendant’s right to a fair trial and right to culture.
Both options are plausible, but whether they are viable depends on the way in which the principle of individual criminal responsibility is constructed in international criminal law. The Rome Statute recognises a number of grounds for excluding criminal responsibility. However, the standard for exclusion is very high. Plain readings of the defences of intoxication (31(1)(b)) and mental defect (31(1)(a)) both explicitly state that, for the defence to be effective, the accused must demonstrate that cognitive and volitional abilities at the time of the commission of the offence were entirely impaired (‘…destroy[ing] that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of the law …’). As outlined above, cultural processes, in the way understood here, are more likely to be taken to influence rather than determine behaviour, thus failing to fulfil the standard for exclusion. Another comparison could be made to duress, set in article 31(1)(d), which allows for an excuse in the case of overwhelming threat of serious harm. The language of the Statute is strict, allowing solely for necessary and reasonable conduct that does not cause greater harm than the one the defendant was trying to avoid. Allowing for duress is based on multiple reasons, one of which is particularly relevant for my considerations on culture: an individual can be held accountable if they were able to exercise meaningful moral choice in their conduct.[10] Accordingly, one should ask ‘whether [the defendant’s] capacities for responsible agency were sufficiently fully and freely engaged in relation to the offense to justify a finding of liability.’[11] In other words, duress is a ‘concession to human frailty.’[12] Choice is physically possible, and cognition and volition are not eliminated. Yet, circumstances justify the reduced culpability that should be attributed to the individual in accordance with what society can reasonably expect of its members.[13] In the case of culture, a similar reasoning may apply, as the ‘culturally embedded social person’[14] feels compelled to comply with cultural norms to the point that asking them to do otherwise might be unfair.
These considerations suggest that the construction of the notion of individual criminal responsibility in accordance with article 31 may extend beyond a complete destruction of cognitive and volitional abilities, at least when the standard for duress is analysed. Yet, many may find a full defence unlikely to succeed in international criminal law due to the magnitude of the events of which defendants are usually accused at the ICC. Using a similar standard to that of duress in a potential separate cultural defence, for instance, would likely fall on the proportionality between the defendant’s conduct with the compulsion felt.
A solution that does not negate culpability but that accounts for the more limited blameworthiness of the defendant is partial criminal responsibility. There are no partial defences as such in international criminal law, meaning defences that lead to the conviction for a separate and lesser offence.[15] Yet, mitigation may absolve a similar function.[16] According to rule 145(2)(a)(i) in the Rules of Procedure and Evidence, circumstances that fall short of a full defence may amount to a mitigating circumstance. A compromise often advocated for by domestic observers in cases of cultural defence,[17] it has also been suggested as a hypothetical compromise in potential cultural defence cases in international criminal law.[18]
Conclusion
In conclusion, cultural background has a powerful hold on individual conduct, which so significantly contributes to individual decision-making to be relevant in attribution of individual criminal responsibility. In spite of this, a strict reading of rules of individual criminal responsibility suggests that there is not much space for cultural considerations to enter judicial decisions on guilt. However, an analysis of the rationale behind existing and applicable defences at the ICC might lead to a more lenient approach that considers cultural background, especially when articulated as partial responsibility amounting to mitigation.
[1] See, illustratively, Daina C Chiu, ‘The Cultural Defense: Beyond Exclusion, Assimilation, and Guilty Liberalism’ (1994) 82 California Law Review 1053; Julia P Sams, ‘The Availability of the “Cultural Defense” as an Excuse for Criminal Behavior’ (1985) 16 Georgia Journal of International and Comparative Law 335; Kay L Levine, ‘Negotiating the Boundaries of Crime and Culture: A Sociolegal Perspective on Cultural Defense Strategies’ (2003) 28 Law & Social Inquiry 39.
[2] Tim Kelsall, Culture under Cross-Examination. International Justice and the Special Court for Sierra Leone (Cambridge University Press 2009).
[3] Noelle Higgins, Cultural Defences at the International Criminal Court (Routledge 2018).
[4] Alison Dundes Renteln, The Cultural Defense (Oxford University Press 2004); Nobuo Shimahara, ‘Enculturation – A Reconsideration’ (1970) 11 Current Anthopology 143.
[5] I problematize the assumption in Vera Piovesan, ‘The Mind’s Eye: The Invisibility of Culture in Individual Criminal Responsibility’ in Mark A Drumbl and Caroline Fournet (eds), Sights, Sounds, and Sensibilities of Atrocity Prosecutions (Brill 2024)
[6] On the relevance of those factors to culpability, see e.g. Richard Delgado, ‘“Rotten Social Background”: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?’ (1985) 3 Minnesota Journal of Law and Inequality 9. For an analysis of its articulation in international criminal law, see Raphael Lorenzo Aguiling Pangalangan, ‘Dominic Ongwen and the Rotten Social Background Defense: The Criminal Culpability of Child Soldiers Turned War Criminals’ (2018) 33 American University International Law Review 605.
[7] Mark Tunick, ‘“Can Culture Excuse Crime?” Evaluating the Inability Thesis’ (2004) 6 Punishment and Society 395, 397.
[8] Sal Zerilli, ‘Socialization’ in George Ritzer (ed), The Blackwell Encyclopedia of Sociology (Blackwell Publishing 2007) 4566.
[9] Noelle Higgins (n 4).
[10] Aligning with the Judge Cassese’s considerations in ICTY, Prosecutor v Drazen Erdemovic Dissenting Opinion of Judge Cassese, Appeal Chamber, IT-96-22-A (7 October 1997).
[11] Nicola Lacey, ‘Socializing the Subject of Criminal Law? Criminal Responsibility and the Purposes of Criminalization’ (2016) 99 Marquette Law Review 541, 547 (emphasis in original).
[12] For basic articulation in English law, see David Child, John Ormerod, Smith, Hogan, and Ormerod’s Essentials of Criminal Law (4th edn, Oxford University Press 2019). 592.
[13] Dissenting Opinion of Judge Cassese (n 10) para 47.
[14] Thomas E Jr Hill, Respect, Pluralism, and Justice: Kantian Perspectives (Oxford University Press 2000) 62 (emphasis in original).
[15] Kai Ambos, ‘Defences in International Criminal Law. Exceptions to International Law?’ in Lorand Bartels and Federica Paddeu (eds), Exceptions in International Law (Oxford University Press 2020) 353.
[16] Ibid.
[17] See, e.g., Jeroen van Broeck, ‘Cultural Defence and Culturally Motivated Crimes (Cultural Offences)’ (2001) 9 European Journal of Crime, Criminal Law and Criminal Justice 1.
[18] Moshe Hirsch, ‘Social Cognitive Studies, Sociological Theory, and International Law’ in Andrea Bianchi and Moshe Hirsch (eds), International Law’s Invisible Frames (Oxford University Press 2021). For support of the conclusion in the case of socialization, see Lucia H Seyfarth, ‘Child Soldiers to War Criminals : Trauma and the Case for Personal Mitigation’ (2013) 14 Chicago-Kent Journal of International and Comparative Law 117.
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