Three months into the new Obama administration, there is a new respect for the role of courts in setting human rights standards. International human rights courts should also be high on the Obama administration’s agenda. International human rights have never been more urgent, as the controversy over the International Criminal Courts war crimes indictment of Sudan’s President Mohammed al Bashir for committing genocide in Darfur demonstrates. Paradoxically, though, genocide is the most straightforward case for the international community. While it is easy to condemn wide scale violence, it is much harder to assess human rights violations that fall into the category of “cultural,” practices such as female genital cutting. When western nations criticize such practices, they may be accused of a failure to understand cultural, social, and economic realities in other countries.
My proposal is for a regional human rights court system that expands over the next decade to reach all nations of the globe. Three regional systems of law already exist: in Europe, in Latin America, and in Africa. These regional human rights courts offer particular advantages. For example, the new African Court of Human and Peoples' Rights will likely be faced with the issue of female genital cutting. The African Court can affirm the underlying culture in which cutting takes place, yet disaggregate a harmful practice by directing government to promote alternative coming-of-age rituals. Alternatives are already in place in Kenya, where the objective of cultural inclusion for girls and young women is met and the rate of female mortality and infection is reduced.
If developed in the right way, additional regional institutions could play a role in making cultural human rights adjudication both morally credible and practically attainable. These institutions would have a unique vantage point that derives from their position as neither national nor international. Regional institutions can operate between nation states and the UN human rights system. Unlike UN institutions that are bound to emphasize a lofty, often inaccessible, standard of human rights, regional institutions have more direct access to the human rights history in their part of the world. This means that regional human rights courts can be an important interlocutor between international human rights standards and claims of local culture.
The logical first step for regional courts is to assess the authenticity and prevalence of a cultural practice. A regional judge can review evidence about a culture's relevance to the particular facts, asking such questions as: What are that group's deep cultural practices? How different is the particular cultural practice are from general standards within that country and from standards across the region? What is the individual litigant's place in a particular cultural group? What are positive and negative consequences--social, economic, religious--for an individual that participates in these cultural practices? Courts need to know if violations of cultural standards can result in ostracism, corporal punishment, or even death.
Courts will need ethnographic and anthropological expertise to test the authenticity, legitimacy, and prevalence of cultural practices. Ultimately, an effective argument for cultural exceptionalism ought to weave a comprehensible narrative from facts about a culture and persuade a court that in the particular context of the case before it, the relative benefits of a cultural practice outweigh its relative harms. Cultural identification on this view does not expunge individual agency or government responsibility; rather it puts both into the cultural context in which they are exercised.
Regional courts also need to hear the arguments of those who dispute the legitimacy and desirability of practices declared customary by inviting conflicting testimony from psychological and cultural experts. One objection to having a higher level of legal regard for communal identity is that it could have the effect of reinforcing some of the most repressive or retrograde elements in minority communities, with particularly worrying consequences for the rights of women. Courts need to learn whether cultural dictates compel every member of a group and if susceptibility is conditioned by the strength of social identification with a culture.
A judicially administered standard of cultural exceptionalism at the regional human rights courts would transport judicial inquiry into barely charted territory. Regional human rights courts can carefully undertake the work of parsing ethinographic evidence of group identity, clarifying the features that merit protection and separating cultural habit from cultural necessity.