The anthropological dimension of international crimes and international criminal justice

The enforcement of norms involves a series of objective actions, in the sense that what is at stake is not the perspective of the judge, the prosecutor, the accused or the victim as to the appropriateness and legitimacy of the relevant law. On the contrary, subjectivity should play no role in the administration of criminal law and the entire criminal justice system operates in such a way as to avoid the infusion of personal biases. This, of course, is welcome because the law is already publicly available and hence any personal views of the judge or the prosecutor would violate the principle against retroactivity. Hence, this chapter attempts to explain why a departure is necessary in order to understand the particular context of societies in conflict and the social interactions inherent therein. For a very long time, international crimes have been assessed solely on the basis of the norms regulating armed conflict and criminal conduct, absent a thorough examination of the social and cultural context within which the relevant actors existed. However, what is different between the perspective of culture and society provided by anthropology as opposed to other social sciences is its particular vantage point; that is, its view of society and culture from the point of view of the direct participants under observation. The anthropologist is interested in the way that his subjects view family, lineage, religion, work, socialisation and everything else that makes them who they are and behave in the way they do. It is therefore no accident that the term cultural relativism, which is so prevalent in human rights discourse, originated in anthropology but possessed from the outset a very different meaning. Boas, who first conceived but did not coin the term, was dissatisfied with evolutionist theories of his time, which viewed some civilisations as higher or superior to others. To him cultural relativism was a method of examining cultural variation free from prejudice. Given that prejudice is inherent in all observation of the external world, Boas sought to see the world from the eyes of the informants, or natives (the term is not used pejoratively). It is only when one possesses a good enough understanding of the lives of others that one is legitimised to offer moral judgement against them and, in the case at hand, to apply criminal sanctions in a just and equitable manner.