Humanitarian law is rooted in the laws of war. Genocide likewise has its genesis in military conflict between nation-states. As a body of law, humanitarian law targets behavior occurring in exceptional times – a time of war or civil conflict – and between nation–states. To the extent that it has a pedagogical purpose, humanitarian law seeks to educate governments about the rightful conduct of wartime events.
19J. S. Mill,On Liberty(1859), Chapter1, para.9.
86 Helen Stacy When Ethiopian Prime Minister Meles Zenawi expressed reservations about criminal prosecutions effecting changes to long-standing social practices, he hinted at two important differences between international humanitarian law and international human rights. First, a criminal trial of a “big fish” such as Miloˇsevi´c or Karadˇzi´c in The Hague is fundamentally different from the domestic trial of an individual outside the theater of war. Second, criminal prosecutions may not be the best means – either normatively or practically – of influencing everyday behaviors enacted in the name of social or cultural norms. Zenawi raised, in fact, two deep aspects of the long-standing debate about the limits of law.
First, international human rights treaties put an obligation on national governments to produce behavior that sometimes differs sharply from local practices. Given the past use of domestic laws to criminalize dueling, foot binding, and sati, it may seem logical to do the same for today’s version of harmful phenomena. Yet, contemporary data suggest that forcing social change through legal sanctions may do nothing more than increase hostility and defiance among the very people who are the target audience. Prior to recent developments in international humanitarian law that the ICTY, the ICTR, and the ICC exemplify, the “soft” law of international human rights treaties had been the main plank of the international system. From the1950s through the early1990s, the UN human rights treaty system developed in the hope that national governments would incorporate international standards into their own domestic legal systems.
In relation to FGC, for example, even though more and more criminal laws are being passed across Africa and in many Western countries to prohibit the practice, courts have dismissed most cases for lack of evidence. This is often despite strong evidence from the victims and even confessions from their parents or the practitioners. Data, particularly from the African nations, suggest that the criminal laws have not worked. Indeed, there is anecdotal evidence that criminalization of FGC has worsened the situation: Instead of reducing the incidence of FGC, it seems to have driven the practice underground, and with the average age of victims decreasing. Since the anticutting law in Tanzania was passed, the practice has been increasingly performed on newborn babies so as to shield death caused by a botched FGC procedure among general infant mortality rates. In Kenya, where the criminal penalty for practicing FGC on girls less than eighteen years old is imprisonment of up to fifteen years, cutting is now performed on infants with childhood illnesses so as not to arouse suspicion among neighbors and relatives. In some parts of Burkina Faso, villagers reportedly have given local leaders large sums of money so they may have their daughters circumcised without fear of arrest
Criminalizing Culture 87 or prosecution. The views of the girls themselves are rarely sought by local prosecution agencies, and in the event that they are, the girls are reluctant to testify against family members.
Perverse effects also go the other way when it comes to criminal law and cultural behavior, more directly involving governments. For example, “honor killings” – women murdered by brothers and fathers for having sex outside marriage or refusing an arranged marriage – are not uncommon in traditional, male-dominated Arab societies. Each year in the Middle East, the murders of hundreds of women and girls by male family members go unpunished.20The execution of a female family member for perceived misuse of her sexuality is a social and political issue that these domestic governments tacitly approve.
Legitimacy for such murders stems from a complex code of honor ingrained in the consciousness of some sectors of those societies, and local activists cam- paigning against honor killings find it difficult to stop them.21Honor killings are now on the rise in Europe’s Middle Eastern, Arabic, and Asian immigrant com- munities. For example, in2003in Britain, a Kurdish Muslim was sentenced by a British court to life imprisonment for slitting the throat of his sixteen- year-old daughter after she started a relationship with a Christian boyfriend.
Yet, activists estimate that the number of criminal prosecutions reflects just a tiny percentage of actual killings. For example, when over a four-month
20Given that honor killings often remain a private family affair, no official statistics are available on the practice or its frequency. According to a November1997report by the Woman’s Empowerment Project, published in Al-Hayat Al-Jadida, there were twenty honor killings in Gaza and the West Bank in1996. One representative of the group added, “We know there are more but no one publicizes it.” Similarly, an unofficial report given to the Palestinian Women’s Working Society stated that “recently” forty women had been killed for honor in Gaza. The report defined neither the period in which these murders took place nor their exact circumstances. During the summer of1997, Khaled Al-Qudra, then Attorney General in the Palestinian National Authority, told Sout Al-Nissa (Women’s Voices), a supplement published by the Women’s Affairs Technical Committee, that he suspects that70percent of all murders in Gaza and the West Bank are honor killings.
21Honor killing emerged in the pre-Islamic era, according to Sharif Kanaana, professor of anthropology at Birzeit University. It is, he believes, “a complicated issue that cuts deep into the history of Arab society.” He argues that honor killing stemmed from the patriarchal and patrilineal society’s interest in maintaining strict control over designated familial power structures. “What the men of the family, clan, or tribe seek control of in a patrilineal society is reproductive power. Women for the tribe were considered a factory for making men. The honor killing is not a means to control sexual power or behavior. What’s behind it is the issue of fertility, or reproductive power. Punishment for relationships out of wedlock is stipulated as 100lashes if the woman is single, or if married, death by stoning. In both cases, however, there must be four witnesses willing to testify that the sexual act took place; conditions that make punishment of the perpetrator of the rape difficult, if not impossible.” See Suzanne Ruggi,
“Commodifying Honor in Female Sexuality: Honor Killings in Palestine,”Middle East Report, No.206(Spring1998),12–15, available at http://www.merip.org/mer/mer206/ruggi.htm.
88 Helen Stacy period in2005, the bodies of six Muslim women living in Berlin were discov- ered, family members told police that the women had brought dishonor to their families because of their “free” lifestyle, but would not provide enough evidence to help police identify a clear suspect.
Second, individualized criminal punishment, with its focus on the individ- ual, overlooks a government’s human rights obligations to embark on long- term social and economic policies to improve background conditions that ultimately enable self-help to modify harmful cultural practices. International human rights often need affirmative action on the part of governments, influ- encing everyday behavior through policy, opportunity, and direct regulation.
This is so for the narrowest of civil and political human rights, such as free- dom from arbitrary detention (it requires policies of policing, whole matrices of management of armies and courts), and broader social and economic human rights such as rights to health care and education. International human rights law implies a government’s agreement to implement those rights into the fabric of its domestic governance.
The humanitarian contract, in contrast, is a requirement of how govern- ments ought to behave in times ofextremis, at moments of military aggression.
To be sure, the growing corpus of international criminal laws on genocide and crimes against humanity now individualizes responsibility for failures of humanitarian law, using criminal trial procedures to punish them. This should be seen, however, as the exceptional crossover of two systems.