- Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa, and: Culture under Cross-Examination: International Justice and the Special Court for Sierra Leone
Kamari Maxine Clarke’s Fictions of Justice and Tim Kelsall’s Culture under Cross-Examination, two recent books from the Cambridge Studies in Law and Society series, both address the phenomenon of international criminal justice from an anthropological perspective, focusing, in particular, on the question of its legitimacy with respect to predominantly African conflicts. Kelsall endeavours to address how international tribunals might better take cultural considerations into account when conducting trials and in evaluating evidence, whereas Clarke looks at the broader question of what alternatives exist to international criminal justice and endeavours to show how neo-liberalist legalism exists alongside and competes with a range of other religious and cultural formations, as well as multiple processes of justice.
Kelsall provides a case study of the experience of the Special Court for Sierra Leone (SCSL), and in particular, of the trial known as the ‘CDF’ trial – the trial of three members of the Civil Defence Forces, local militias composed of traditional hunters who fought on behalf of the government of Sierra Leone against the rebel Revolutionary United Front during the civil war. Taking what he terms an ‘anthropolitical approach’ (19–25), he analyses the trial from start to finish, examining numerous exchanges between the parties, judges and witnesses, interviewing key participants, and identifying several areas in which the court, in his view, failed to take into account cultural considerations specific to the Sierra Leonean context.
Kelsall’s project is more modest than Clarke’s, and his book is more accessible to those unfamiliar with current anthropological theory. [End Page 151] Kelsall raises concerns about several issues that arose during the trial – child soldiers, command responsibility, different cultural mores with respect to truth-telling in a culture based on secrecy and dissimulation, and the role of the occult and mystical powers. His position is that the Trial Chamber erred in these areas because it failed to give sufficient weight to the cultural context. This assessment is insightful in relation to several issues – particularly, his discussion of the offence of the enlistment of child soldiers and the criminalization of forced marriage, where he argues that the Trial Chamber failed to take into account that these may not, in all cases, be illegitimate from the perspective of the local culture (although he points out that they would be in certain situations), and his analysis of the court’s failure to consider the centrality of the occult in assessing the authority of one of the defendants in the case.
However, in several instances, it is not entirely clear what Kelsall’s anthropological approach adds to his criticism of the trial. For example, Kelsall concludes that the theory of command responsibility is not applicable in cases where there are patron-client relationships or a neopatrimonial authority structure or that, at the very least, it should be subject to ‘extra’ scrutiny in such situations. Moreover, he suggests that, by focusing on de jure authority, the Trial Chamber failed to conduct a proper analysis of whether commanders actually have de facto authority in systems in which there is a patrimonial authority network. However, the jurisprudence of the international tribunals, particularly recently, has stressed that it is ‘effective control’ which must be proved and that this may be based on either de facto or de jure authority, which can be exercised by civilian as well as military commanders. The jurisprudence further emphasizes that de jure control is neither necessary nor sufficient to establish effective control.
While Kelsall may be correct in concluding that there were difficulties with the Trial Chamber’s approach to command responsibility in its assessment of liability, this may have...