How do you construct an international trial? Cultural differences before the ICC

• In Event: Prosecuting atrocities – challenges of collecting, presenting and evaluating evidence in a cross-cultural setting

Abstract

Recent studies have shown that cultural differences profoundly affect the way in which national and international courts and tribunals deliver justice to societies that are geographically and culturally distant from them. This issue presents specific hurdles: linguistic issues (translation challenges and the difficulty of finding interpreters), taboos, different understandings of how certain concepts are defined across cultures (such as childhood, distance or time), the over-reliance on intermediaries to name just a few. The mismatch between the legal norms that guides the judges and the diverse cultural norms of those participating in the legal proceedings has not seldomly led to tensions and errors that raised substantial criticism. Given the International Criminal Court’s (the ICC) almost universal jurisdiction and the culturally diverse background of the actors who take part in the ICC trials, challenges relating to the cultural differences of those participating in the international trials (either as defendants, lawyers, witnesses or victims) are bound to continue to emerge with every new situation brought before this Court. Many of the misunderstandings can arise before the trial has even commenced, during the investigations phase. Based on an in-depth analysis of ICC trial transcripts, this presentation will highlight the cultural challenges that have been identified by trial participants during the proceedings, in particular, challenges that occurred during the collection of evidence. The presentation will zoom in on two ICC situations: the Democratic Republic of Congo (Lubanga, Katanga and Ntaganda trials) and Uganda (the trial of Dominic Ongwen) and will provide an overview of the potential ways forward.

Author

• Adina-Loredana Nistor, Faculty of Law, Vrije Universiteit Amsterdam (The Netherlands)