Scholars reflecting on the participation of African witnesses in international trials have argued that ‘culture’ is an impediment. While some judges at the International Criminal Tribunal for Rwanda (ICTR) supported this position, the majority of judges and lawyers placed emphasis on other impediments to witness testimony unrelated to Rwandan culture, including simultaneous interpretation, the question and answer format of witness examination, protection orders and the consequences of witnesses having given testimony in multiple trials. The paper assesses whether the consequences of these non-cultural impediments have been misrepresented as being due to ‘culture’ and how this relates to the essentialising and demeaning of ‘culture’ in domestic legal contexts. While seeking to challenge the notion that Rwandan ‘culture’ was an impediment to Rwandan witnesses at the ICTR, the paper also suggests that the ‘exceptional’ practice of international criminal justice is instructive on the nature of (adversarial) law wherever it is practiced. Impediments to witness testimony, including the artificial question and answer of witness examination; that witnesses only state what they have been asked about; that witness testimony is a co-production with lawyers; and that ‘foreign material’ will inevitably be incorporated into testimony are all present in domestic jurisdictions, but have been become naturalised and made unremarkable. However, once these impediments are made apparent in exceptional contexts such as the ICTR, the blame is placed (by some judges, lawyers and scholars) on to the alien ‘culture’ of the witness rather than an alien ‘legal culture’ that all witnesses, wherever they testify, have to negotiate.
Nigel Eltringham is a Reader in Social Anthropology at the University of Sussex. He has written extensively on the aftermath of the 1994 Rwandan genocide. He is the author of Accounting for Horror: Post-Genocide Debates in Rwanda (2004); contributing editor of Identity, Justice and “Reconciliation” in Contemporary Rwanda (2009; a special issue of the Journal of Genocide Research); contributing editor of Framing Africa: Portrayals of a Continent in Contemporary Mainstream Cinema (2013) and contributing co-editor of Remembering Genocide (2014). His monograph on the International Criminal Tribunal for Rwanda (Genocide Never Sleeps: Living Law at the International Criminal Tribunal for Rwanda) will be published by Cambridge University Press in 2019. He is currently preparing another monograph on the anthropology of peace and reconciliation to be published as part of the Routledge series Critical Topics in Contemporary Anthropology.