A. Past Uses of Criminal Law to Change Social Practices and Cultural Habits
Using criminal laws and criminal punishment to stop harmful social practices makes perfect sense. Indeed, it seems to have worked in the past. For example, by the beginning of the twentieth century, most Western (or Westernized) countries had criminal laws that prohibited settlement of private disputes by dueling with swords and pistols. A long history of national bans on dueling began when King Henry IV of France outlawed it in1602, making participation in a duel punishable by death. English legislation during the seventeenth and eighteenth centuries likewise criminalized dueling. In the German Weimar Republic, a1928criminal code made dueling an offense punishable by impris- onment. In the United States, the District of Columbia first outlawed dueling in1839, and then, after the American Civil War, every U.S. state introduced antidueling legislation with sanctions ranging from disqualification from pub- lic office to death.
The Hindu rite of sati– the practice of self-inflicted “widow-death” of a grieving widow throwing herself onto her husband’s funeral pyre – was crimi- nalized in1821by the British government in India, at a time when the annual count of widow deaths in a city like Calcutta was estimated to be approximately 500.1Satiwas declared illegal and punishable by the criminal courts as culpa- ble homicide amounting to manslaughter, (ironically) punishable by death.
When orthodox Hindus protested the new criminal law to the Privy Council in London, the appeal was dismissed and the colonial criminal anti-sati law was upheld. The practice has virtually disappeared in today’s modern India.
Similarly, the Chinese social practice of foot binding has stopped, even though approximately40to50percent of Chinese women in the nineteenth century (and virtually all women in the upper classes) had bound feet. Foot binding was first outlawed by the Qing dynasty in 1912when government inspectors would levy fines on parents who bound their daughters’ feet. When the Communists came to power in 1949, they also issued anti-foot-binding
1S. R. Sharma,The Making of Modern India from A.D. 1526 to the Present Day(Bombay, India:
Orient Longmans,1951),478.
78 Helen Stacy laws that carried criminal penalties. The practice has completely disappeared in modern-day China.
Whereas these historical examples seem to endorse the utility of criminal law as an intervention in social practices causing bodily harm, deeper analysis of the causal role of criminal penalties is less conclusive. For example, it seems that foot binding was already dying out in many parts of China by1900 because of anti-foot-binding associations. People who joined these associations took an oath that they would not bind their daughters’ feet and, perhaps even more important, that they would not permit their sons to marry women with bound feet. This created a new marriage market unpredicated on tiny3-inch
“lotus” feet in potential wives. The change in social practices was already well underway by the time the 1912legal prohibition was enacted. By the time the Communist government issued its ban in1949, the cultural habit of foot binding had all but vanished.
Likewise, the historical record on sati suggests that there was more to the story than the simple application of “civilized” human rights standards backed up by criminal sanction. Historians of the Indian colonial period now suggest that sati was more likely a cultural rebellion against British colonization itself, rather than a deeply ingrained practice of any long duration. This more recent research explains the demise of sati as coextensive with imperialism, such as the British using local rajahs as a means of colonial influence, which in turn altered the mechanisms of resistance to colonial rule. In other words, extinction of the practices of foot binding and widow-burning seems to be less attributable to criminalization and criminal penalties and more an outcome of other, deeper, social forces.
B. Present Uses of Criminal Process under International Humanitarian Law
The use of criminal law has intensified during the past15years. The Interna- tional Criminal Tribunal for the former Yugoslavia (ICTY) and the Interna- tional Criminal Tribunal for Rwanda (ICTR) are ad hoc criminal tribunals that exercise criminal jurisdiction under their United Nations (UN) Charter Chapter VII powers, as do the hybrid criminal tribunals of Sierra Leone, East Timor, and Cambodia. The new International Criminal Court (ICC) exer- cises criminal jurisdiction under its status as a multilateral international treaty.
These legal bodies utilize criminal standards of evidence and procedure and then convict and sentence individuals for egregious human rights violations in war (or warlike) situations where the international community has sent in troops or peacekeepers.
Criminalizing Culture 79 Criminal law also has been deployed in other contexts where there is little or no connection with international intervention. For example, of the twenty or so national truth and reconciliation commissions established around the world under domestic jurisdiction, roughly one third of them have quasi-criminal power in that they can withhold amnesty and instead refer allegations to processes of domestic criminal prosecution. In other cases such as a new court in Herzegovina, the international “hybrid” criminal model seen in Sierra Leone, East Timor, and Cambodia, international humanitarian law has been
“domesticated,” giving local courts criminal jurisdiction under domestic law to convict and punish political leaders who have used violence on their own populations. Finally, national courts are using their national criminal powers to exercise “universal jurisdiction” in the name of international human rights, as, for example, in 2001in Belgium, where five Rwandans were criminally charged, convicted, and sentenced for their role in the Rwandan genocide.2
The moral logic of universal jurisdiction is that particular human rights violations are so bad that all people and all governments are morally outraged, licensing national criminal courts to act as proxies for international sentiment.
Belgium, for example, passed a law in1993allowing for punishment of severe violations of international human rights that occur anywhere in the world, using the standards of the1949Geneva Convention and the1977Geneva Pro- tocols I and II. In1999, jurisdiction was extended to include the crime of geno- cide. Belgium’s universal jurisdiction law transformed an international moral interest into a legal right, giving Belgium the power to prosecute war crimes and crimes against humanity committed by foreigners outside its own territory.
Those opposed to universal jurisdiction argue that it breaches the principle of national sovereignty. Belgium, it is said, has no political authority to try a crime committed outside its borders, no matter how heinous.3Indeed, when
2In2001, a Belgian court heard cases against four Rwandans – two nuns, Consolata Mukangango and Julienne Mukabutera; a businessman, Alphonse Higaniro; and a university professor, Vincent Ntezimana – alleging participation in the massacre of more than7,600ethnic Tutsis at the Sovu convent in Butare. After the massacre, the defendants fled to Belgium where they were ultimately arrested and charged. Following an eight-week trial, the Court of Assizes of the Administrative District of Brussels sentenced them to Belgian prisons for terms ranging from twelve to twenty years. The United States, China, and Russia reacted strongly to these trials, especially when a spate of highly political cases were deposed in Belgian courts against former Israeli Prime Minister Ariel Sharon (accused of involvement in a1982massacre in Lebanon), against former Palestine Liberation Organization leader Yasser Arafat (accused of terrorist actions), and against U.S. President George W. Bush, U.S. Vice President Dick Cheney, and former U.S. Secretary of State Colin Powell (accused of responsibility for the1991Baghdad bombings).
3An example of such opposition is Henry Kissinger, “The Pitfalls of Universal Jurisdiction,”80 Foreign Affairs(2001),86. The “Rwandan nuns” trial also elicited mixed reactions among both
80 Helen Stacy confronted with the sharp increase in deposed suits, Belgium amended its universal jurisdiction to require that the accused must either be Belgian or at least living in Belgium. Some cases that had already begun continued despite these amendments, including the indictment in2005of Chad’s dictator Hiss`ene Habr´e for crimes against humanity, torture, and war crimes, among other human rights violations.4 Other international warrants issued by the Belgian court for Rwandans living outside Belgium are still outstanding, but only for those alleged criminals whose victims were Belgian citizens.5
victims of the Rwandan genocide and human rights advocates. The case was welcomed by some as an important first step in convincing nations to fulfill their commitments under the Geneva Convention and to prosecute individuals in their jurisdictions who had committed atrocities. Among other Rwandans, however, the case was criticized as an unjustified attempt by Belgium (and France) to evade responsibility for the tensions and passions that they helped generate during their periods of colonial rule. More important, the Belgian trials display many of the disadvantages of international human rights trials, with few of the advantages. The distance and isolation from the victims in the Rwandan community could not have been more pronounced – it was much greater than the distance issue that plagued the ICTR in Arusha, Tanzania – which meant that there was no engagement with domestic Rwandan judges, court personnel, or even the Rwandan public.
4The International Court of Justice (ICJ) has refused to rule on whether universal jurisdiction claimed by a nation-state is valid under international law. An arrest warrant was issued in2000 under the Belgian law against the then Minister of Foreign Affairs of the Democratic People’s Republic of the Congo. The warrant was challenged before the ICJ inThe I.C.J. Arrest Warrant Case.Congo v. Belgium,2002I.C.J.2(Feb.14). The ICJ’s decision, issued in2002, found that it did not have jurisdiction to consider the question of universal jurisdiction; the Court instead decided the question on the basis of the immunity of high ranking State officials. The ICJ held by a13–3vote that sitting foreign ministers, like heads of state and government, are immune from criminal process in other countries. The Court emphasized that foreign ministers need to be able to travel the world representing their nations, free from the constant fear of arrest.
The ruling effectively derailed several pending Belgian cases, such as one against Israeli Prime Minister Ariel Sharon. However, several of the judges considered the matter in separate and dissenting opinions, such as the separate opinion of President Guillaume, who concluded that universal jurisdiction exists only in relation to piracy, and the dissenting opinion of Judge Oda, who recognized piracy, hijacking, terrorism, and genocide as crimes subject to universal jurisdiction.
5A group of scholars from Princeton University publishedThe Princeton Principles on Univer- sal Jurisdictionin2001, aiming to clarify the jurisdiction of courts by adopting a universal approach toward jurisdiction. SeePrinceton University Program in Law and Public Affairs, The Princeton Principles on Universal Jurisdiction(2001), available at http://www1.umn.edu/
humanrts/instree/princeton.html. In their view, the crimes giving rise to universal jurisdiction include slavery, war crimes, crimes against peace, crimes against humanity, genocide, and torture. The alleged crime need not have taken place within the relevant state, nor do the victims or perpetrators need to be citizens – rather the jurisdiction stems from the severity of the alleged practice, the necessity to prevent such crimes, and the willingness of a national court to bring the issue to trial. Other principles espoused by the Princeton group include 1) government officials – including heads of state – should not be immune from prosecution based on the defense that they were acting in an official capacity;2) there should be no statute of limitations on the prosecution of these crimes;3) a state should refuse to extradite an alleged
Criminalizing Culture 81 All of these criminal prosecutions, in both international and national courts and tribunals, are in some sense based on the premise that every individual who causes harm to another is criminally liable for his or her actions. Impor- tant for their symbolism and their emphasis on individual responsibility, these developments in international criminal law are setting new standards of inter- national procedure as well as creating a body of legal principles that individual nation-states look to as precedent. These laws make human agency a central feature, and start with the normative assumption that individuals who do harm must be held criminally responsible for the harm and sanctioned, somewhere and somehow. The hope is that respectable legal processes with transparent legal standards will deter human rights tyranny.
C. Present Use of Criminal Law for International Human Rights Violations
Less discussed is the use of criminal law as a mechanism to pursue human rights violations that are not a casualty of civil or political conflict – prac- tices such as FGC that seem abhorrent to outsiders but may occur routinely within a community. Habit, in other words, has conferred legitimacy. In this sense, FGC is the contemporary analogue to dueling, foot binding, and sati, where outsiders introduce criminal penalties in the name of more “civilized”
standards. Today, though, the civilized standard comes in the package of an international human rights treaty.
Each year in Africa, approximately 3 million girls and women are “cut”
under a custom viewed by many traditional cultures as a necessary rite of pas- sage. The procedure originated in Africa and remains today a mainly African cultural practice, although it also takes place in immigrant communities in the West. It predates Islam and is widely practiced in countries where the predom- inant religion is Christianity, such as Ethiopia and Kenya. The consequences can be dire: They include prolonged bleeding, infection, infertility, and death.
For those who suffer infibulation – the most severe form of genital cutting, in which all external sexual organs are cut away – cutting is repeated with each new birth to allow passage of the baby. Approximately130million women in the world today, principally in Africa, have undergone some form of cutting.
There have been a small handful (most recent statistics suggest approxi- mately eight or nine) of criminal prosecutions for cutting in Burkina Faso
perpetrator when that person is likely to face the death penalty or any cruel, degrading, or inhuman punishment, or would face sham proceedings with no assurance of due process; and 4) blanket amnesties generally are inconsistent with a nation’s obligation to hold individuals accountable for these crimes.
82 Helen Stacy and Ghana. In Ghana, two practitioners were convicted of second-degree felony after having performed FGC. Of the fifty-three nation-states that are part of the Africa Union, twenty-five have signed on to CEDAW6 and forty- nine have adopted an instrument of ratification, accession, or succession into their national law.7 FGC practices have been well documented in twenty- eight of these African States.8 Of these nations, eight have introduced some form of sanction that seeks to prohibit and punish the commission of FGC by law.9 This legislation ranges from one country to the next: The Djibouti law, which prohibits all forms of FGC, provides for imprisonment and/or fines for both persons who perform the procedure and persons who request, incite, or promote an excision by providing money, goods, or moral support – this in addition to its Penal Code, which outlaws FGC and includes prison terms and fines.10 Sudan, in contrast, prohibits only the most drastic forms of FGC.11
Western countries have also passed criminal sanctions against FGC. For example, in the United Kingdom, the Prohibition of Female Circumcision Act was passed as early as 1985. The Act also makes it illegal to aid, abet, counsel, or procure the carrying out of these procedures. The UK Children Act of1989brings FGC within the ambit of child protection systems permitting removal of a child from her parents. France is the leading European nation in its criminal prosecutions of FGC, even though it does not have a specific law prohibiting the performance of FGC.12French prosecutions are made under
6These are Benin, Burundi, Cameroon, Congo, Democratic Republic of Congo, C ˆote d’Ivoire, Egypt, Ethiopia, Gabon, Gambia, Ghana, Guinea-Bissau, Guinea, Lesotho, Madagascar, Mali, Nigeria, Rwanda, S˜ao Tom´e and Pr´ıncipe, Senegal, Sierra Leone, South Africa, Tunisia, Uganda, and Zambia.
7These are Algeria, Angola, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Cape Verde, Centrafrcaine, Comoros, Congo, Democratic Republic of Congo, C ˆote d’Ivoire, Djibouti, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Gabon, Gambia, Ghana, Guinea-Bissau, Guinea, Kenya, Lesotho, Liberia, Libya, Madagascar, Malawi, Mali, Mauritania, Mauritius, Mozam- bique, Namibia, Niger, Nigeria, Rwanda, Sao Tome and Principe, Senegal, Seychelles, Sierra Leone, South Africa, Swaziland, Chad, Togo, Tunisia, Uganda, Zambia, and Zimbabwe.
8These are Benin, Burkina Faso, Cameroon, Central African Republic, Chad, C ˆote d’Ivoire, Democratic Republic of Congo, Djibouti, Ethiopia, Egypt, Eritrea, Gambia, Ghana, Guinea- Bissau, Guinea, Kenya, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone, Somalia, Sudan, Tanzania, Togo, and Uganda.
9In1999, the following African nations had national laws prohibiting FGC in all or parts of its forms: Burkina Faso, Central African Republic, C ˆote d’Ivoire, Djibouti, Egypt, Ghana, Guinea, and Sudan.
10World Health Organization, Female Genital Mutilation – Programmes to Date: What Works and What Doesn’t – A Review 1999, available at http://www.who.int/reproductive- health/publications/FGC/FGC_programmesreview.html.
11Ibid.
12For more on this, see Sophie Poldermans,Combating Female Genital Mutilation in Europe, 32–49, available at http://www.stop FGC.net/dox/SPoldermans FGCinEurope.pdf.
Criminalizing Culture 83 Article222of the1992Code Penal. Since1979, thirty-five to forty cases have been filed for FGC practices. In the majority of these cases, the accused was not the person who carried out the procedure but rather the mother of the girl on whom FGC was performed.13
Criminal sanctions for FGC have recently fueled a passionate debate in the United States, reverberating on the African continent. In2006, in the U.S.
state of Georgia, a Muslim gas-station clerk from Ethiopia named Khalid Adem was sentenced to ten years in prison for aggravated battery and cruelty to his two-year-old daughter after he removed her clitoris with a pair of scissors in his suburban kitchen. At the time Adem was charged, many U.S. states – including Georgia – had no laws prohibiting FGC. Adem was charged with aggravated battery and cruelty to children, and Georgia then swiftly introduced legislation to criminalize FGC.14Response in Adem’s native Ethiopia was mixed: A senior official in Ethiopia’s Ministry of Women’s Affairs praised the punishment
“because what he did is a violation of child rights.” Ethiopian Prime Minister Meles Zenawi, in contrast, said that although it was his government’s policy to discourage the practice, it was still common, and “[i]f a whole community is involved in this practice, you cannot jail an entire community. You have to change the mindset, and that takes time.”
Although no specific domestic law prohibits FGC in Ethiopia, the Ethiopian Constitution bans “harmful traditional practices.”15 More impor- tantly, however, Ethiopia has both signed and ratified the CEDAW. In1990, the CEDAW Committee recommended that female circumcision or FGC be viewed as a discriminatory practice against girls and women. Then in1995at the Fourth World Conference on Women in Beijing (the largest conference in the history of the UN), the UN called for CEDAW signatory nations to prohibit female genital mutilation “wherever it exists and [to] give vigorous support to efforts among non-governmental and community organizations and religious institutions to eliminate such practices” and to “take urgent action to combat and eliminate violence against women, which is a human rights viola- tion, resulting from harmful traditional or customary practices, cultural prej- udices and extremism.”16In1999, the CEDAW Committee passed General
13Ibid.
14See Patricia A. Broussard, “Female Genital Mutilation: Exploring Strategies for Ending Ritu- alized Torture; Shaming, Blaming, and Utilizing the Convention against Torture,”15:19Duke Journal of Gender Law&Policy(2008)19,21.
15Article35(4) of the Ethiopian Constitution states: “The State has the duty to guarantee the right of women to be free from the influence of harmful customary practices. All laws, stereotyped ideas and customs which oppress women or otherwise adversely affect their physical and mental well-being are prohibited.”
16Fourth World Conference on Women, Beijing Platform for Action, UN Doc. A/CONF .177/20, para.232(h) and (g) (1995). Reprinted in35I.L.M.409(1996).