Cultural defences, i.e. claims that certain aspects of a defendant's cultural background should be taken into consideration by courts when adjudicating on their guilt or innocence, have been raised before domestic courts in a variety of jurisdictions. This has been a very sensitive and controversial issue. However, the issue of cultural defences in international tribunals is one which has not yet been fully explored. The main objective of this book is to analyse if the ICC can, and should, accommodate cultural defences as answers to legal charges, or if the Court should accommodate cultural considerations in other ways.
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Introduction Introductory comments Research question Structure The cultural defence; its use and abuse Introduction What is culture The cultural defence Arguments in favour and against the cultural defence The right to culture Creating a legal framework Cultural relativism Enculturation Religion as culture The right to a fair trial Human rights treaties and the ICC Individualised justice Conclusion The ICC statute; a culture clash? Introduction Law as culture The making of the rome statute Cultural accommodation at the ICC Cultural property Linguistic diversity Victims and witnesses Expert witnesses on cultural issues Judges Sentencing Reparations Article 21 of the ICC Statute and sources of law a cultural portal Applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict General principles of law Conclusion Defences at the ICC Introduction Defences in international criminal law Statute provisions on defences (Articles 31-33) Mental incapacity, disease or defect Cultural issues as part of the mental incapacity defence Intoxication Cultural issues as part of the intoxication defence Self-defence, defence of others and defence of property Cultural issues as part of the self-defence defence Duress or necessity Cultural issues as part of the defence of necessity or duress Mistake of fact or law Cultural issues as part of the defence of mistake Superior orders Cultural issues as part of the defence of superior orders A cultural defence as another ground for excluding criminal liability Conclusion ICC practice Introduction Linguistic diversity Child soldiers Child soldiers and the lubanga case Child soldiers and the ongwen case Duress in the ongwen case The destruction of cultural property Hisbah Ziyara Cultural considerations in the al mahdi reparations decision Moral harm Conclusion Conclusion.