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Cursus: RGMUIER210
RGMUIER210
Capita Selecta Public International Law: Cultural Defence in International Criminal Law
Cursus informatie
CursuscodeRGMUIER210
Studiepunten (EC)2,5
Cursusdoelen
After this course:
  • Students will learn to critically question some of the assumptions underlying international criminal law
  • Students will gain knowledge of the legal defences recognised in international criminal law
  • Students will learn how to rely on disciplines other than law, in particular anthropology, to strengthen their legal case
  • Students will learn how to think outside their own cultural boxes
  • Students will learn how to represent clients with worldviews other than their own
  • Students will learn to develop trial strategies
  • Students will learn to approach law from a multidisciplinary perspective.
     
Inhoud
Defendants in international criminal law cases sometimes invoke their culture to claim that their acts are not punishable. Thus, a defendant prosecuted before the Special Court for Sierra Leone claimed that recruiting child soldiers was encouraged in his culture, which favours toughening up children to prepare them for adult life. Another defendant, who had 'bulletproofed' soldiers with the help of a potion, claimed that the only soldiers who would die regardless where those who did not live up to the requirements of international humanitarian law, on which the effectiveness of the potion depended.
 
Some sceptics reject these arguments as 'lame cultural excuses' or undesirable manifestations of cultural relativism. Others take the view that such claims constitute legitimate cultural defences which amount to errors of fact or errors of law, or even go to mens rea. Ignoring them may rob defendants of a fair trail. Furthermore, rejecting such defences may seriously erode the legitimacy of international criminal law, as is already visible in the opposition of African states to the behaviour of the International Criminal Court (ICC). 
 
This module is designed to introduce the students to some of the dilemmas defence counsel, prosecutors and judges face. How can the reliability and veracity of such claims be established? What should be the legal consequences if the claim appears to be genuine? Most of the defendants are still from the Global South, while most of the lawyers representing them are still from the Global North. Some Northern lawyers avoid raising defences in this area, because they are unfamiliar with the cultural background of their clients and the resulting defence opportunities. However, ignoring these issues may deprive their clients of the opportunity of acquittal or a lighter sentence. Therefore, it is important to gain some insight in these matters, which may make the difference between conviction and acquittal.
 
After an introduction to the field, some challenging cases will be discussed. The students will be invited to argue opposite sides of these cases. The legal analysis will be supported with the help of insights from anthropology. The aim of the course is to show why cultural defences should be part of the toolbox of defence counsel.
 
The course is taught by Prof. Tom Zwart, who has been registered as an expert in this field, called forensic ethnology, by the ICC. Prof. Zwart currently serves as a member of a defence team representing a client before the ICC. His brief is to develop a cultural defence to exonerate the client. Dilemmas and strategies involved in this case will be shared with the students on a confidential basis.
 
This module is open to students interested in human rights and international criminal law. Students who are considering pursuing a career in international criminal law, which is one of the fastest growing and most dynamic fields of international law, are especially encouraged to enrol.



General information
 
In ‘Capita Selecta – Selected Topics of Public International Law’, students will broaden their knowledge of international law by taking mini-modules which are intertwined with on-going research projects carried out by the lecturers. The course is divided into four sub-periods. During the first sub-period (week 7), students will write a research proposal for their master’s thesis. During the three other periods, students will take five different modules out of a range of options offered. Each module will last for three weeks and have, in principle, 10 contact hours. Within the short period of time, students will familiarize themselves with current topics and challenges that have not been addressed in depth in the General Course or other courses of the specialized tracks. Through the Capita Selecta course, students will further develop their skills to critically analyze case-law and existing literature, write short papers, present findings, and provide feedback to other students.
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