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An Illustration of Anthropology’s Contribution to Refugee Law Research

Published online by Cambridge University Press:  27 September 2022

Katia Bianchini
Katia Bianchini*
Affiliation:
Law and Anthropology Department, Max Planck Institute for Social Anthropology, Halle/Saale, Germany
*
Corresponding author:[email protected]

Abstract

This article contributes to the debates on the role of anthropology in refugee law research by showing the added value of an interdisciplinary approach to the understanding of complex asylum claims related to cultural and religious beliefs that are unfamiliar to the Western perspective. Based on the analysis of asylum claims in UK courts involving witchcraftbased persecution in the country of origin—both applicants who feared becoming victims of witchcraft practices and those who could be accused of having engaged in witchcraft practices—I demonstrate how anthropology can provide the tools for bridging the gaps between the law in the books and its implementation in practice and solving issues that are beyond the scope of the law. In particular, anthropology can feed into a broader legal conceptualization that accounts for the realities of our diverse societies and helps explain how fear of persecution due to witchcraft can indeed be real and connected with serious human rights violations. Moreover, cultural expertise can assist in assessing asylum claims in their cultural, historical, and political contexts, affording the claimant a fairer and better adjudicated outcome. Nevertheless, the use of anthropology inevitably comes with some challenges related to the different fields’ epistemologies, languages, and styles, as well as a lack of appreciation for interdisciplinarity in some areas of academia.

Keywords

Refugee lawanthropologywitchcraft beliefschallenges to decisionmakingUnited Kingdom
Type
Article
Information
German Law Journal , Volume 23 , Special Issue 7: Breaching the Boundaries of Law and Anthropology: New Pathways for Legal Research , September 2022 , pp. 943 - 959
Creative Commons
Creative Common License - CCCreative Common License - BY
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
Copyright
© The Author(s), 2022. Published by Cambridge University Press on behalf of the German Law Journal

A. Introduction

This article illustrates the added value of integrating anthropology into refugee law research, as well as the personal challenges that come along with doing so. I focus on my own firsthand experience as an academic and lawyer researching the judicial treatment of asylum claims involving fear of witchcraft persecution in the UK. These claims include both factual situations where applicants maintain that, upon return to the country of origin, they would be victims of traditional practices or would be accused of having engaged in violent or unlawful witchcraft practices. The cultural and social background of these applicants is particularly relevant, as it is embedded in the claim for protection yet generally remains unfamiliar to jurists. Input from anthropology can help contextualize and interpret such culturedependent facts. More generally, this article contributes to the growing debate on the role and relevance of anthropology for legal scholarship, particularly in the field of human rights.

Previous studies in both disciplines have emphasized the potential of anthropology to elucidate the implementation and enforcement of refugee law at different levels, understand the behavior of actors, and unravel the complex sociocultural, political, and legal environments within which such asylum claims take place. Unlike legal scholars focusing mainly on the black letter law, anthropologists are able not only to tease out the various power relations that weaken or strengthen the law, thereby uncovering inequalities experienced by certain individuals or groups, but they can also appreciate bureaucratic and/or legal procedures within a given context.Footnote 1 With this in mind, anthropology supports critical reflection on the Western reaction to unfamiliar beliefs, practices, and norms or, perhaps more accurately, the shock that people in the West sometimes experience when confronted with unfamiliar beliefs, practices, and norms in a context of human rights.Footnote 2 Anthropology opens the door to other “realities.”Footnote 3 This is of particular importance when it comes to better understanding asylum claims and judicial decisions involving complex religious or cultural issues such as those where persecution is linked to witchcraft practices. In its recently adopted resolution on th“Elimination of Harmful Practices Related to Accusations of Witchcraft and Ritual Attacks”, the UN Human Rights Council stressed the pressing need to pay “attention to local context” in order to understand the circumstances and the urgency for protection.Footnote 4

The situation is precarious from a human rights perspective: Cultural issues arising in asylum claims can affect the assessment of cases, especially when they involve beliefs and practices that are deeply embedded in local realities but are unknown to Western decisionmakers who can get caught up in a “cultural bias.”Footnote 5 Moreover, unlike claims where the applicant may be able to submit evidence or the facts are known or easily verifiable, asylum seekers fearing witchcraft often cannot provide anything more than their testimonies. The evaluation is complicated by the fact that witchcraftrelated persecution may be intertwined with intricate cultural, political, and societal dynamics. Thus, Maritza Black advises caution when “[e]valuating another culture’s religious beliefs through the lens of a reasonable person standard,” as it can “resul[t] in blanket discrimination against nonWestern ideologies.”Footnote 6

Determining whether and how witchcraft triggers the need for international protection poses a number of questions that cannot be easily answered, such as what witchcraft is, what constitutes persecution in the context of witchcraft beliefs, and when the persecution is due to the individual’s beliefs or membership in a particular social group. Recognizing the complicated cultural and sociopolitical aspects of these cases, I turned to the anthropological literature to gain a more nuanced understanding.

It should be noted that, in line with the common aim of this Special Issue of the German Law Journal, in this contribution I am explicit and transparent regarding the “course of action” that I have followed in adopting an anthropological approach and an interdisciplinary perspective more generally. Behind this approach is the idea of “reflexivity”—an integral part of the anthropological endeavor—which requires the researcher to examine their own choices and motives and be explicit about the methods used, the data collected, and its analysis.Footnote 7 It also involves critically examining the researcher’s “positionality”—their role, experiences, and biases—visàvis the research participants and the subject matter studied.Footnote 8 As a result, in the text, I have frequently resorted to a firstperson narrative style.Footnote 9 I acknowledge that most lawyers may be unfamiliar with such a subjective writing style, but in anthropology—and other social sciences—it is considered appropriate and characteristic of a critical and open dialogue.Footnote 10

In the following section, I provide some background to the topic. In Section C, I consider applications for asylum involving claims of witchcraftrelated violence and the frequent challenges they pose to decisionmaking in the UK. In Section D, I discuss how anthropology allowed me to reach a better understanding of the legal and factual issues by going beyond legal texts and exploring particular dimensions of the beliefs and practices at stake. In Section E, I present some reflections on the problems arising from the cultural differences between adjudicators and asylum seekers, as well as from the lack of background information and expert evidence, and how recourse to anthropology could help to tackle these problems. I also explain the difficulties faced by lawyers and judges when presented with anthropological evidence, and the personal challenges I faced when I sought to go beyond the limitations of conventional legal approaches.

B. Background

The idea of carrying out research on how UK judicial decisions address witchcraft persecution claims arose while I was collecting and analyzing judicial decisions for the Cultural and Religious Diversity under State Law across Europe (CUREDI) project at the Max Planck Institute for Social Anthropology in 2020.Footnote 11 The CUREDI project involves the creation of a database of judicial decisions throughout Europe addressing issues of cultural diversity and religion, with a focus on case law analysis and how and to what extent judges accommodate such issues. After reviewing the selected cases, I began to reflect on the difficulties decisionmakers face when trying to fit unfamiliar claims and culturally “exotic” testimonies into the definitions and procedures of refugee law.Footnote 12 I also began to reflect on how and why anthropological scholarship could improve decisionmaking.

The 1951 Refugee Convention is the main international instrument providing protection to people fleeing persecution from their home countries and establishes the commonly accepted definition of “refugee,” that is, a person “who is unable or unwilling to return to their country of origin owing to a wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”Footnote 13 In addition, under the UK Immigration Rules, a refugee has to show that they cannot receive protection from the authorities or cannot relocate to another area of their country.Footnote 14 People claiming to need international protection as a refugee, and making applications to that end, must prove their cases to a reasonable degree of likelihood.Footnote 15 Generally, asylum claims cannot be dismissed simply on the basis of the asylum seekers’ failure to corroborate their testimonies.Footnote 16 However, supporting evidence is required in some specific circumstances, including when the applicant (i) has not made genuine efforts to substantiate the claim; (ii) has provided statements that are found not to be coherent or plausible and are not in line with country of origin information (hereinafter, COI); or (iii) has not established his or her credibility.Footnote 17 On this point, the Asylum Policy Instructions of the Home Office clarify that asylum seekers who fail to provide evidence in these cases shall nevertheless be given the benefit of the doubt if their statements are internally consistent and compatible with known facts.Footnote 18 The need to submit corroborating evidence is even greater if the claim involves accounts of persecution of which little is known or understood in the Global North.Footnote 19 The evidence should include not only personal documents, but also COIFootnote 20 that is reliable and can assist the authorities in reaching a decision.Footnote 21

The issue of how to improve decisionmaking concerning asylum claims has been at the center of debates in refugee law studies.Footnote 22 Determining asylum claims is extremely complex due to the frequent lack of evidence offered in support, the cultural differences between decisionmakers and applicants, and decisionmakers’ concerns to protect the integrity of the system from fabricated claims.Footnote 23 Witchcraftrelated cases are particularly vivid illustrations of these difficulties, primarily because the “supernatural” elements contained in accounts of persecution and the difficulties connected with establishing facts raise credibility concerns. Problems already arise during the collection of evidence and the preparation of the case for the hearings: Lawyers themselves may be unaware of pertinent aspects of the applicant’s cultural background and relevant COI, and thereby face challenges in drafting a plausible witness statement and finding evidence to support it. In this context, anthropological evidence is crucial to appreciating the cultural factors, asking the right questions in preparation for the hearing,Footnote 24 and understanding how cultural background can affect a person’s way of narrating the facts of the case. However, on the basis of my own experience as a solicitor, I can aver that anthropological expertise is difficult to access due to a lack of resources, as in most cases lawyers representing asylum seekers do so through legal aid, which only pays minimal fees to experts. Thus, lawyers may find themselves in a dilemma: On the one hand, they need to follow the evidence; on the other hand, they are operating in a Western system that is not always receptive to “other” realities and beliefs. Thus, they might feel compelled to make the individual’s story “fit for purpose” to improve the chances of success. In other words, they may think that witchcraftrelated claims will be better framed as other issues, such as genderbased violence, that are more familiar in the Western legal context, more clearly defined and regulated by law, and better understood by judges.Footnote 25

Against this backdrop, I decided to further investigate the complexity of cases involving witchcraft to identify common trends. Accordingly, I sought out published decisions in the UK legal databases in which witchcraft was one relevant element of the case. I found thirty seven judicial decisions from 1999 to 2020Footnote 26 and analyzed them, trying to identify (i) the main factual patterns, (ii) the challenges for decisionmaking, and (iii) how to address these issues. It should be noted that in an earlier publication, I explain in greater detail the findings and analysis of the judicial decisions and the role of anthropologists as expert witnesses.Footnote 27 Here, I focus instead on my approach to mobilizing anthropology to obtain a better understanding of refugee law and adjudication issues in cases involving witchcraft.

C. Claims of Witchcraft-Related Persecution in Judicial Decisions: Common Patterns and Challenges

In the cases under review, witchcraft persecution occurred according to a very specific modus operandi: Usually, the violence was intentional; it involved assault, harassment, torture, even murder; and it was connected to a system of beliefs. Such beliefs justified various rituals, including human sacrifice and exorcism.Footnote 28 The cases concerned individuals who were either afraid of being attacked through the use of witchcraft or who were accused of being witches themselves and faced persecution as a result. For instance, decisions in which individuals were accused of being witches include Oco v. A Decision of The Upper Tribunal (Immigration and Asylum Chamber) [2012] CSIH 65. In this case, the applicant, a woman from Nigeria, claimed to have suffered domestic violence and violence at the community level due to her husband’s accusations that she was a witch. Another example is Ismaila Demba v. SSHD [2015] UKUT 01405 (IAC), where the appellant, a Gambian citizen, feared persecution at the hands of the authorities because he and his family were believed to be witches. Appeals from individuals who were afraid of being attacked through witchcraft include, for example, HK v. Secretary of State for the Home Department [2006] EWCA (Civ) 1037, in which the applicant fled from members of a secret society in Sierra Leone after the members forced him to undergo a harmful initiation ceremony, and RG (Ethiopia) v. Secretary of State for the Home Department [2006] EWCA (Civ) 339, where the appellant claimed to be fleeing domestic violence and black magic that, she claimed, was being inflicted on her by her husband.

The link between the harm feared and the relevant grounds of persecution is one of the main challenges that emerged in my analysis of the thirty seven cases.Footnote 29 Several applicants struggled to prove that their experiences or threats of violence were connected with local beliefs or perpetrated against them as members of a particular group—a basic requirement for qualifying under the “religion or membership in a particular social group (MPSG)” grounds of persecution.Footnote 30 In religionbased cases, the credibility of applicants bringing such claims in Western countries is a particularly recurrent problem, confirming that there is an ethnocentric bias leading to a tendency to oversimplify, generalize, and reach unfounded assumptions about “[t]he complex lived experiences of religiosity and worship by people from other cultures.”Footnote 31 Moreover, there is also a propensity to view beliefs in a vacuum, without considering cultural or individual factors.Footnote 32 An example of this approach is found in Omoruyi v. SSHD [2000] EWCA (Civ) 258, in which a Nigeran asylum seeker claimed to fear persecution at the hands of members of the Ogboni cult.Footnote 33 The judge refused to consider the Ogboni cult a religion because it involved “pagan rituals.”Footnote 34 Although the court did not assess the nature of the cult, the reach that both the cult and its kinsmen have in the country, or its possible connections with the police, the judge did conclude that the Ogboni cult is a criminal organization and its members were not interested in the applicant’s beliefs.Footnote 35 Therefore, the claim could not be made on the grounds of “religion;” the grounds of “MPSG” was not even raised by the appellant.

Problems with claiming protection against witchcraft persecution on the MPSG grounds were usually linked to lack of background evidence, such as in JA & VA v. SSHD [2019] UKUT 10004, 10028 (IAC), in which the judge rejected the case of applicants claiming to fear persecution if their mental health problems were mistaken for manifestations of witchcraft upon their return to Nigeria; the judge even commented on the lack of corroborating documentation.Footnote 36 However, when applicants fell into categories that could render them more vulnerable in their own societies—such as women, people with disabilities, and children—and could provide adequate documentation of country conditions or expert evidence, they were usually found to be MPSG. For example, in AA and others v. SSHD [2016] UKUT 05484, 05482, 05486, 05490, 05489 (IAC), the judge granted refugee status to a disabled child. Relying on an expert report, the judge reasoned that, given that belief in witchcraft in Nigeria was widespread, the child would be perceived as being possessed by evil spirits and, consequently, it was probable that he would face persecution as an MPSG.Footnote 37 In LSL v. SSHD [2017] UKAITUR (PA/11792/2016), where the COI documentation was sufficient to corroborate the case, the judge allowed the appeal in favor of a Malaysian asylum seeker who had been subjected to exorcism that included physical violence—she was beaten with a cane—and psychological “correction”—she had to see a psychologist—because she was transgender and her family believed that she was possessed by spirits.

Several claims involving witchcraftrelated violence turned on the claimants’ assertions that internal relocation and internal protection would not be adequate but, in the absence of convincing corroborating evidence, they tended to be rejected on these very grounds. In some cases, the judges reasoned in light of their own understanding of legal concepts and systems that internal relocation was possible because the feared harm was at the hands of private actors who would presumably not be capable of pursuing the claimants countrywide.Footnote 38 For instance, in SSHD v. BL (Ogboni Cult, Protection, Relocation) Nigeria CG [2002] UKIAT 01708, the judge found that the COI did not support the conclusion that the police or authorities in Nigeria routinely fail to act against traditional religious cults, nor did it support the propositions that cults are nonstate agents of persecution or that the police or authorities would necessarily fail to exercise control or investigate satanic/ritualistic ceremonies that can even include cannibalism.Footnote 39 Similarly, in Senu v. SSHD [2002] UKIAT 06449, the judge found that a Ghanaian male who claimed to be a target of local cult members did not provide enough evidence to rule out the possibility of internal relocation. The Asylum and Immigration Tribunal argued that the cult members would not be able to figure out his domicile unless he told his family of his whereabouts.Footnote 40 Upon review of the decision, it seems that neither the judge nor the applicant’s lawyer questioned the difficulties connected with the internal relocation option. This is striking because people are usually more vulnerable once they have left their residence and community—for example, their social safety net. Being on their own, they might find it more challenging to integrate into a new community or to find employment and could, in fact, more easily become victims of human rights violations.Footnote 41

In SSHD v. MK [2016] UKAITUR (AA/11180/2014), a woman from Sierra Leone refused to undertake a role that she had inherited from her mother as a practitioner of female genital mutilation (FGM) in the Bondo society.Footnote 42 The judge noted that, regarding the risks to a person who refused to participate in FGM and the issue of her relocation to Freetown, there was only one relevant background report, and it expressly stated that information on the consequences of refusing to take up an inherited role as an FGM practitioner was lacking.Footnote 43 The applicant’s argument that she could not relocate because the Bondo society would be able to use witchcraft to find her was, therefore, not accepted. Whereas the widespread belief in supernatural forces in Sierra Leone was acknowledged, the judge could not find any objective basis for the claimant’s fear that she could be so easily located.

On the basis of my analysis of the judicial decisions, I can say that, in general, there was a failure to take relevant cultural information into account.Footnote 44 In some cases, it was reduced to a superficial assessment of the facts and country conditions, as in WO (Ogboni Cult) Nigeria CG [2004] UKIAT 00277, where the judge reasoned, “[i]f any political violence in Nigeria has an Ogboni element, the objective materials would say so. Given the restricted ambit of the cult and the virile nature of the Nigerian press, silence on the issue cannot be ascribed to fear.”Footnote 45 In other cases, judges held that the COI provided was insufficient to establish that internal relocation would not be an acceptable protection measure.Footnote 46 In yet other cases, no expert report was available. For example, in BL, the Immigration Appeal Tribunal voiced its frustration at the lack of expert evidence and other relevant information concerning the applicant.Footnote 47 Finally, in some cases, judges simply rejected culturebased arguments that struck them as unfamiliar or unreasonable, as in Senu v. SSHD, in which the judge commented, “[w]e utterly reject as having any objective basis his claim that the cult members could find him by means of black magic.”Footnote 48

Finally, another problematic issue—although not mentioned in any of the judgments—concerns determining who the persecutor and who the persecuted is. Generally, the witch is assumed to persecute his or her unintended or selected victims, but from the anthropologist’s and lawyer’s perspective, the persecuted person is just as likely to be the person accused of witchcraft. As Max Marwick’s work suggests, those accused of witchcraft are disproportionately likely to belong to a group or category of vulnerable persons who are discriminated against, or to a category of persons who are susceptible to conflicts for sociostructural reasons, such as cowives or brothers who are competing for the inheritance of the father’s property.Footnote 49 This reversal of causality suggests that the perceived victim from the viewpoint of witchcraft beliefs may actually be the persecutor from the legal standpoint. This opens up the possibility that a person claiming to have been persecuted may actually have violated the human rights of others by making accusations against them.Footnote 50

Clearly, a purely legal approach to the cases discussed here fails to capture the nuances of the practices and human rights violations associated with witchcraft beliefs in the countries of origin. Thus, I turned to anthropology in an effort to inject a greater degree of cultural awareness into case law and legal scholarship dealing with witchcraft beliefs and practices.Footnote 51

D. The Contribution of Anthropology to the Understanding of Witchcraft-Related Persecution

In anthropology, witchcraft has been widely studied.Footnote 52 Consequently, I found a rich variety of materials discussing witchcraft beliefs in various contexts and countries, the harmful consequences of witchcraft practices, and how witchcraft makes sense in the local realities of the countries where it is practiced.

First, I tried to find more evidence on the scope, general features, and real consequences of witchcraft in the countries of origin. In this regard, anthropologists approach witchcraft beliefs, accusations, and persecution not as a relic of the past, but as phenomena that are widespread throughout the world today. There is a wide variety of local representations and practices, as well as consequences, including physical and mental violence, abuse, and exclusion.Footnote 53 As Gerrie ter Haar notes, witchcraftrelated beliefs per se are not necessarily harmful, but the associated practices can be violent and may breach human rights law.Footnote 54 Individuals accused of practicing witchcraft often face different forms of violence that can lead to their deaths. Being labeled a witch “is tantamount to being declared liable to be killed with impunity.”Footnote 55 Girls and women are particularly vulnerable and often face double or multiple forms of discrimination.Footnote 56 Some theories have attributed the recent increase in witchcraft allegations to globalizationinduced societal changes,Footnote 57 the spread of certain Christian religions that have a focus on exorcism and the devil,Footnote 58 social and economic imbalances,Footnote 59 and transformations of traditional institutions such as the extended family.Footnote 60 Witchcraft beliefs are also manufactured to control and suppress ethnic and minority groups.

Second, I tried to identify the groups of people who are frequently victims of witchcraft in order to assess whether they meet the requirements of the MPSG category of the refugee definition.Footnote 61 Anthropologists explain that anyone can be a victim of witchcraft, although often it is people with certain characteristics or who are identified as belonging to particular social groups who are more affected than others. These include women,Footnote 62 children,Footnote 63 the elderly,Footnote 64 the disabled,Footnote 65 albinos,Footnote 66 and other vulnerable persons.Footnote 67 For instance, in the Democratic Republic of Congo, children are increasingly being accused of engaging in witchcraft and, as a result, are subjected to violence.Footnote 68 This seems due to two main factors: The pervasive violence present in daily family life, and the transgressions of social norms by children who live outside the ordinary social networks—family, school, etc. In Tanzania, there is a strong belief that the body parts of albinos have magical powers.Footnote 69 Witchdoctors are the main propagators of such beliefs, as they use the body parts of albinos for their magical remedies. Therefore, albinos are hunted for specific body parts, “such as the skin, tongue, hands, ears, skull, heart and genital organs, which are commercially traded for use in magical potions and charms.”Footnote 70 Even men can be particularly vulnerable in some regions—for example, in Kenya and Melanesia.Footnote 71 However, compared to women, they seem to maintain a “privileged” position. Power struggles between women and men—for instance, men and widows in Nepali or Ghanaian communities—often lead to witchcraft accusations.Footnote 72 Intersectional vulnerabilities such as age, gender, and poverty or wealth can either contribute to such accusations or be a factor in combatting them.Footnote 73 In some countries, such as Cameroon, witchcraft is a public matter due to its links with politics and law.Footnote 74

Third, to determine whether witchcraftrelated beliefs can qualify under the religionbased grounds of persecution, I investigated the meanings underlying witchcraft beliefs. Anthropologists clarify that beliefs that may appear irrational to us in the Global North can be perfectly logical to people in a different cultural setting. As EvansPritchard explained, witchcraft beliefs are part of a collective imagination and a commonsense approach to life that assists believers in finding explanations for certain events and misfortunes.Footnote 75 He viewed witchcraft not as the essence of irrationality—which is what most people in the Global North are likely to assume—but as reflecting an excess of rationality by seeking to provide explanations for specific events that modern scientific thought would attribute to the spheres of chance and accident.Footnote 76 Anthropological studies can, therefore, provide valuable insights into the meanings that people attribute to their beliefs and how they fit into wider social and cultural contexts.Footnote 77 The anthropologist Anthony Good collated characteristics of witchcraft beliefs based on previous studies. According to his summary, witchcraft includes, but is not restricted to, a division of the world into sacred and profane domains, an interest in godlike beings and humans’ relationships with them, ritual practices, supernatural punishment for breaching an ethical code, and a priesthood.Footnote 78 Other anthropological studies have addressed the meaning of religion more generally and show that anthropology can provide a broad definition to encompass people’s understanding of the world and their personal experiences.Footnote 79 Thus, Good criticized the judge in the Omuruyi case discussed above for not querying the prevalent meaning of religion.Footnote 80 According to him, most decisionmakers are not aware of traditional beliefs, concepts, and realities.Footnote 81 Jenni Millbank and Anthea Vogl noted that these judgments exhibited a pattern of categorizing the harm that people fear not as being linked to traditional beliefs, but to “a ‘personal’ dispute, removing it from broader social conditions and structural considerations.”Footnote 82

Fourth, I explored whether cultural issues affect the degree to which internal protection and relocation options would be realistic and effective, as these elements are important in assessing whether people qualify for refugee status. The anthropological scholarship explains that information on these matters is essential to an accurate evaluation of the alternatives available to applicants. For instance, most African countries have laws that criminalize witchcraft; however, in practice, these laws are often not enforced.Footnote 83 The reasons behind this include weak state institutions, corruption and bias among authorities, delays, and inefficiencies.Footnote 84 They also include the fact that belief in witches is common across these societies,Footnote 85 and there may be reluctance to prosecute witchcraftrelated violence where such beliefs are deeply rooted.Footnote 86 Furthermore, women are not likely to appeal to state institutions to help them overcome a lack of “financial resources to pay fees, travel costs, geographic distance, or lack of witnesses,” or to help them pay for “victim protection services or legal aid.”Footnote 87 They may also fear reprisal or exclusion from their communities.Footnote 88 Accordingly, many victims do not report the abuses suffered.Footnote 89

Also, regarding the internal protection alternative in the country of origin, anthropological studies can provide information on the reasonableness of relocation, as relocation bears a number of consequences for vulnerable persons: It entails integrating into a new community, affects one’s opportunities to earn a livelihood and to access basic services. Familiarity with anthropology can therefore assist one in reaching a better understanding of the existence of inefficient legal systems, biased institutions, and discriminatory structures, and provides ontheground information about access to justice and internal relocation.Footnote 90 It can also help in gathering appropriate COI, such as what the situation of internally displaced persons—especially vulnerable persons—is, the possibility of making a livelihood in the new location and effectively integrating into the community, the accessibility of travel routes, and whether witchcraft violence is deeply rooted throughout the country.Footnote 91 Finally, some legal anthropology addresses the effectiveness of the law, that is, its implementation and enforcement. This is particularly important because, while there may be laws that criminalize witchcraft in different manners, whether or not they effectively protect victims of witchcraft in practice and provide access to redressFootnote 92 is another question that empirical anthropological data is more likely to be able to answer.Footnote 93

In conclusion, the information that lawyers, judges, and legal scholars can glean from anthropology convincingly shows that witchcraft beliefs and practices can cause serious risk of harm and thus raise legitimate fears of persecution, thereby constituting grounds for protection under the 1951 Refugee Convention. Although it is not realistic to think that all cultural expectations and stereotypes can be magically erased from the credibility assessment, recourse to anthropology assists in contextualizing asylum claims within the different realities of diverse societies and in understanding the intersectional vulnerabilities of applicants.Footnote 94

E. An Anthropological Approach to Refugee Law

Analysis of the asylum decisions on witchcraft and relevant anthropological literature highlights two areas that are particularly problematic for decisionmakers: (i) cultural differences between the applicant and the adjudicator; and (ii) insufficient COI documentation or expert evidence on witchcraft violence persecution.

Regarding the first issue, an anthropological approach to the cases reveals the judges’ tendency to approach witchcraft from a Eurocentric perspective. In some of the decisions under study, the harm feared—which can include indirect physical manifestations in the form of illness—was at odds with decisionmakers’ conceptions, cultural expectations, and awareness of how religious and traditional belief practices vary from country to country.Footnote 95 The narrativesFootnote 96 reflect conceptions of a “dynamic ‘West’, holding the key to transcendent ‘truth and justice’, while a backward developing world is mired down in the particular views of culture and tradition.”Footnote 97 The problem of ethnocentrism in decisionmaking in the UK has been pointed out in earlier studies discussing how asylum decisionmakers reject an applicant’s credibility on the basis of their own assumptions of what is normal or what they believe they would have done in a particular situation.Footnote 98 The lack of awareness of different perceptions is a major cause of misunderstandings and affects the asylum procedure.Footnote 99 An anthropological approach to asylum claims can help address this issue; it emphasizes the importance of being open to ideas, concepts, and practices that are uncommon and unfamiliar in the asylumgranting country, and contextualizes and explains them in a way that presents them as reasonable and normal.Footnote 100

Regarding the lack of evidence, and very much in line with earlier scholarship, my study on witchcraft persecution points to the difficulties of having to decide cases on the basis of COI, which is general in nature and does not address witchcraft forms of persecution.Footnote 101 Moreover, COI is based on desk research, relying on “second and often third or fourthhand information gleaned from other reports compiled by UN bodies,”Footnote 102 NGOs, newspapers, and other “interviews with experts.”Footnote 103 In contrast, as demonstrated above, by taking an anthropological approach, lawyers can explain and contextualize aspects of the claims, such as particular vulnerabilities, gender violence, religion and traditional beliefs, logics of exclusion and inclusion, and the meaning of concepts related to culture, religion, and power dynamics, as well as lack of effective state protection and enforcement of laws in countries of origin. Anthropology regards these issues as part of complex scenarios that are shaped by historical, social, cultural, and political events.Footnote 104

Aside from anthropological literature, cultural experts—sociologists, but above all, anthropologists, with their focus and engagement with nonWestern societies and diverse culturesFootnote 105—can assist decisionmakers in reaching wellinformed conclusions. When judges assess cases, they rely on legal knowledge as well as their world knowledge—the source of the latter being their own “common sense,” which is based on their life experience, the viewpoint of their social group, and their cultural perspective.Footnote 106 The use of common sense in decisionmaking can be problematic because it tends to be biased toward one’s own cultural background and therefore fails to adequately consider the validity of the diverse backgrounds and practices of applicants. In such contexts, cultural experts can mitigate the effects of cultural prejudice on the final judicial decision.Footnote 107 Indeed, it has been noted that cultural experts have two functions:Footnote 108 Firstly, to provide cultural information on the case at hand; and secondly, to interpret and communicate this information by overcoming gaps of understanding between the applicant and the judge.Footnote 109 As my study also demonstrates, reliance on cultural experts in asylum cases provides judges with information that would not otherwise be accessible, mitigates judges’ cultural biases, and thus increases the likelihood of favorable outcomes for applicants.Footnote 110 Importantly, such work shows that—when compared to cases in which recourse to expert cultural evidence was not taken—those cases in which expert witnesses were called on to testify, judges generally found the harm feared by the applicant to be reasonable and wellfounded.Footnote 111 In particular, cultural experts provided specialized knowledge and testified on events, human rights, the future risk of persecution, the agents of persecution, internal relocation and protection options in the country of origin, as well as “unusual” cultural practices.Footnote 112 They also explained the specific meaning of injuries suffered by asylum seekers that were related to the “symbolism” behind certain practices in specific regions of a country and assisted forensic experts in identifying and interpreting lesions and other wounds.Footnote 113 In other words, the anthropologists could make sense of the “other reality” and bring it before the judge. As Joost Fonstein put it, anthropologists show how culturally unfamiliar explanations and descriptions make sense in a countryspecific setting.Footnote 114

While anthropology can bring unique and important contributions to refugee law, I am fully aware that it also comes with both personal and implementationrelated challenges. At a fundamental level, law and anthropology promote different styles of thought; therefore, bringing them together in legal settings presents difficulties of implementation for decisionmakers and lawyers, as well as for anthropologists when acting as expert witnesses. According to Clifford Geertz, there is an “epistemological divide” between anthropologists and lawyers, in that they take two different perspectives on the real world,Footnote 115 particularly in relation to how they conceptualize facts and how their different perspectives influence their reasoning. While lawyers “believe that they can objectively look at facts in the real world without preconceptions,” anthropologists immerse “themselves in a dialectical discourse on the relationship between theory and fact.”Footnote 116 In this regard, I acknowledge the ongoing debates on the extent to which there is a “culture clash” between law and anthropology. It is outside the scope of this article to address this “clash” in detail, but I would nevertheless like to make some observations about the different approaches of the two disciplines and some issues that can arise, the resolution of which requires practical interdisciplinary communication. For example, in relation to the reliability and quality of anthropological evidence in court, legal procedures require anthropological expertise to be objective.Footnote 117 However, the imperative within anthropology to be reflexive effectively forces the anthropologist to acknowledge “that no anthropological research can be truly objective.”Footnote 118 Expert witnesses must therefore be very deliberate in their presentation of evidence, demonstrating that it is based on scientific facts and, if possible, crosschecked and backed up by other research, in order to avoid having their testimonies dismissed as unreliable.Footnote 119 The key point seems to be that lawyers take as “true facts” matters that have been established to the appropriate standard of proof—that is, when they pass the “reasonable man” test, which is, of course, a legal fictionFootnote 120—and judges see their task as deciding how the law should properly be applied to those “facts.” By contrast, for anthropologists, “facts” are always contingent; they are products of the processes of contextualization that are a fundamental aspect of the anthropologist’s theoretical approach,Footnote 121 and “truth” is at best provisional and contested.Footnote 122 To claim objectivity, experts would need to state that “no reasonable expert” on a given topic “would be likely to reach a different conclusion.”Footnote 123 Given the existence of this basic epistemological gulf, judges and experts continue to differ with regard to the weight and status that should be accorded to expert evidence.Footnote 124

Regarding the personal challenges that I encountered, they include my lack of formal training in anthropology, the unfamiliar terminology, and the reticence to embrace interdisciplinarity in some academic fields. Given my lack of training in anthropology, I tried to be especially careful to avoid falling into the trap of dilettantism, especially in identifying relevant literature. To bolster the interdisciplinarity of my work, I discussed my approach and findings with colleagues in my department, both anthropologists and legal scholars. I also benefitted from a judicial training session on witchcraft persecution, which I conducted jointly with a colleague who specializes in anthropology. As part of this session, my colleague explained the meaning of witchcraft in African countries, where she had carried out extensive ethnographic research on the topic.Footnote 125

The field’s terminology was an additional challenge. The disciplinespecific meaning of some recurring terms was unknown to me, which forced me to engage in some remedial research to be able to completely understand certain texts. For instance, the words “witchcraft” and “sorcery,” which are so central to my research, have long been debated in anthropology and have acquired their own precise and nuanced meanings. The more traditional view argues that “witchcraft” refers to innate supernatural powers that cause either adversity or death. “Sorcery,” alternatively, involves rituals, spells, and the use of herbal substances to cause harm to someone, and its practice can be learned.Footnote 126 This distinction, however, is not universal; it is generally applied to societies in East Africa and parts of Melanesia.Footnote 127 In other parts of the world, the term “witchcraft” encompasses both ideas.Footnote 128 For my purposes, Jill Schnoebelen’s more general definition, which conflates witchcraft and sorcery, is most useful: “[H]armful actions carried out by persons presumed to have access to supernatural powers.”Footnote 129 Nonetheless, one of the important lessons I learned from anthropology is to beware of the ethnocentricities that can be implicit in even the most apparently neutral and innocuous of terms. A controversial word such as “witchcraft” is, therefore, a minefield of potential misunderstandings. The best way to avoid the dangers inherent in such terms is to use them for purely descriptive rather than analytical purposes and characterizations.

Finally, the general lack of openness to genuine interdisciplinarity in legal scholarship, which is reflected in what ultimately gets published in journals, has proven to be a limitation. Despite the everincreasing focus on interdisciplinarity in the social sciences, opportunities for communication between law and anthropology on the topic of witchcraft remain limited, as scientific journals, conferences, and employment opportunities in the legal field are still highly disciplineoriented. My study underpins the need for interdisciplinary research that will help broaden and change current perspectives and approaches.

Regarding publications, one particular issue that I have encountered is meeting the expectations of peer reviewers when my work deviates from the accepted disciplinary standards and conventions. My first attempt to publish an article on the topic of witchcraft in asylum decisions in a legal journal failed, as the anthropological literature was outside of the editors’ “comfort zone.” I was, however, later able to publish the same article in the Journal of Refugee Studies.Footnote 130

In short, anthropology has much to contribute to the ongoing debates concerning refugee law issues involving cultural sources of persecution and reasons for fleeing injustice, and can assist decisionmakers in reaching better informed decisions. Those engaging in such interdisciplinary work, however, must be ready to deal with the challenges they will encounter.

F. Conclusion

In this article, I have demonstrated how the established conceptualization and standpoint adopted to analyze refugee cases is often inadequate, as many applicants for asylum come from cultures and societies that are unfamiliar and hold beliefs that can seem strange, exotic, and irrational to asylum decisionmakers. Thus far, sufficient attention has not been paid to assessing asylum claims in light of their specific sociocultural frames. Witchcraftbased persecution cases demonstrate how a careful reading and analysis of judicial decisions can bring to light key problem areas in the decisionmaking process, namely, cultural differences between applicants and judges, credibility issues linked to accounts of supernatural acts, and the lack of thorough, culturally aware, and sensitive background country information.

To counter these problem areas and to reach a better assessment of the asylum seekers’ claims of witchcraft persecution, I engaged with anthropology. The anthropological literature was very helpful in understanding concepts such as witchcraft and religion, the complex social, political, and cultural contexts of countries of origin, the contemporary scope and meaning of witchcraft in those contexts, and ultimately in connecting these factors with harmful practices and grounds of persecution. In particular, anthropology introduced me to culturally sensitive information on the nature of the beliefs in question and made me appreciate the value of anthropological expertise in asylum cases. In this regard, the opinions of cultural experts proved capable of mitigating the consequences of cultural clashes by providing the relevant information on the social, cultural, and historical contexts and “translating” it into something that decisionmakers could identify with and use. However, disciplinary boundaries, obstacles, and gatekeepers continue to frustrate efforts to achieve deep interdisciplinarity. These must be confronted and overcome in the pursuit of professional activities such as conference presentations, publications, and employment.

Acknowledgments

I thank Dr. Brian Donahoe’s for assistance with editing the paper, as well as Prof. Marie-Claire Foblets and Prof. Anthony Good for comments that greatly improved the paper.

Declarations

There are no competing interest declarations from the author.

There are no funding statements (including grant numbers) to be made related to the article.

Footnotes

Dr. Katia Bianchini is a research fellow in the Law and Anthropology Department of the Max Plank Institute for Social Anthropology in Halle. She holds a law degree from the University of Pavia (Italy), an LL.M. in Comparative Laws from the University of San Diego (California, USA), and a Ph.D. in Law from the University of York (UK). Bianchini practiced immigration and refugee law for ten years in the United States and the United Kingdom, and she has published in the field of refugee law and statelessness.

References

1 See Josiah McC. Heyman, Putting Power in the Anthropology of Bureaucracy: The Immigration and Naturalization Service at the Mexico-United States Border, 36 Current Anthropology 261 (1995); see also Stijn Deklerck, Ellen Desmet, Marie-Claire Foblets, Joke Kusters & Jogchum Vrielink, Limits of Human Rights Protection from the Perspective of Legal Anthropology, in Facing the Limits of the Law 375 (Erik Claes, Wouter Devroe & Bert Keirsbilck eds., 2009).

2 See, e.g., Sally Engle Merry, Human Rights Law and the Demonization of Culture (And Anthropology along the Way), 26 PoLAR 55 (2003).

3 See, e.g., Bruce Kapferer, Understanding Witchcraft and Sorcery in Southeast Asia (C.W. Watson & Roy Ellen eds., 1993); David Hicks, Ritual and Belief: Readings in the Anthropology of Religion (2010).

4 See Human Rights Council Res. 47/8, U.N. Doc. A/HRC/47/L.9, at point 4 (July 5, 2021).

5 See Maritza Black, Adjudicating the Religious Beliefs of an Asylum Seeker: When the “Well-Founded Founded Fear” Standard Leads Courts Astray, 5 Concordia L. Rev. 191, 194 (2020).

6 Id. at 191.

7 See Matti Bunzl, Anthropology Beyond Crisis: Towards an Intellectual History of the Extended Present, 30 Anthropology & Humanism 187 (2005); Jeanne-Pierre Olivier de Sardan, Epistemology, Fieldwork and Anthropology, 104–10 (Antoinette Tidjani Alou trans., 2015).

8 See Sardan, supra note 7, at 127–130.

9 See id. at 104–10.

10 See id. at 108.

11 See Max Planck Institute for Social Anthropology, CUREDI—Cultural and Religious Diversity Under State Law Across Europe, https://www.eth.mpg.de/5713411/curedi.

12 See Jenni Millbank & Anthea Vogl, Adjudicating Fear of Witchcraft Claims in Refugee Law, 45 J. L. & Soc’y 370 (2018); Katherine Luongo, Allegations, Evidence, and Evaluation: Asylum Seeking in a World of Witchcraft, in African Asylum at a Crossroads: Activism, Expert Testimony, and Refugee Rights 182, 190–91 (Iris Berger, Tricia Redeker Hepner, Benjamin N. Lawrance, Joanna T. Tague & Meredith Terretta eds., 2015).

13 Convention Relating to the Status of Refugees, Apr. 22, 1954, 189 U.N.T.S. 137, art. 1(2)A; The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 SI 2006/2525, Reg. 2 (Eng.); Immigration Rules 1994 GBR-215 ¶ 327.

14 See Immigration Rules, supra note 13, ¶¶ 339O(i), 339L; Directive 2011/95, of the European Parliament and of the Council of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted, 2011 O.J. (L 337/9), art 8.

15 This standard is lower than in civil cases, where the applicant must justify their claim “on the balance of probabilities.” This is because it is recognized that asylum seekers may face difficulties in collecting evidence, and their life and liberty may be at stake. Immigration Rules, supra note 13, ¶ 339I; Home Office, Assessing Credibility and Refugee Status, Asylum Policy Instruction Version 9.0, (2015), § 5.2. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1086451/Assessing_credibility_and_refugee_status_pre_28_June_2022.pdf.

16 See Immigration Rules, supra note 13, ¶ 339L; Directive 2011/95, supra note 14, at art. 4.5; Mark Henderson, Rowena Moffatt & Alison Pickup, Best Practice Guide to Asylum and Human Rights Appeals Elec.Immigr. Network ¶ 1.39, 1.40 (2021) https://www.ein.org.uk/bpg/chapter/1; HKK (Article 3: burden/standard of proof) [2018] UKUT 00386 (IAC) (“The effect of Article 4.5 [of the Qualification Directive] is that a person who has otherwise put forward a cogent case should not fail, merely because he or she does not have supporting documentation.”).

17 See Immigration Rules, supra note 13, ¶339L (discussing how COI is publicly accessible information published by governments, civil society organizations, newspapers, institutions, and academic institutions).

18 See Home Office, Assessing Credibility and Refugee Status, Asylum Pol’y Instruction Version 9.0, (2015), §§ 2.4, 5.6.2, 5.6.3.1, 5.6.5, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/397778/ASSESSING_CREDIBILITY_AND_REFUGEE_STATUS_V9_0.pdf.

19 See Immigration Rules, supra note 13, ¶ 339L.

20 See Benjamin N. Lawrance, Iris Berger, Tricia Redeker Hepner, Joanna T. Tague & Meredith Terretta, Law, Expertise and Protean Ideas about African Migrants, in African Asylum at a Crossroads: Activism, Expert Testimony, and Refugee Rights 2 (Iris Berger, Tricia Redeker Hepner, Benjamin N. Lawrance, Joanna T. Tague & Meredith Terretta eds., 2015).

21 See Femke Vogelaar, A Legal Analysis of a Crucial Element in Country Guidance Determinations: Country of Origin Information, 31 Int’l J. Refugee L. 492, 501–504 (2019).

22 See, e.g., Rosemary Byrne, Assessing Testimonial Evidence in Asylum Proceedings: Guiding Standards from the International Criminal Tribunals, 19 Int’l J. Refugee L. 609 (2007); Robert Thomas, Consistency in Asylum Adjudication: Country Guidance and the Asylum Process in the United Kingdom, 20 Int’l J. Refugee L. 489 (2008); Hugo Storey, Consistency in Refugee Decision-Making: A Judicial Perspective, 32 Refugee Surv. Q. 112 (2013); John R. Campbell, Examining Procedural Unfairness and Credibility Findings in the UK Asylum System, 39 Refugee Surv. Q. 56 (2020).

23 See James Souter, A Culture of Disbelief or Denial? Critiquing Refugee Status Determination in the United Kingdom, 1 Oxford Monitor Forced Migration 48 (2011).

24 See U.N. High Commissioner for Refugees (UNHCR), Beyond Proof. Credibility Assessment in the EU Asylum Systems 67–68 (2013), https://www.unhcr.org/en-us/protection/operations/51a8a08a9/full-report-beyond-proof-credibility-assessment-eu-asylum-systems.html.

25 See Benjamin N. Lawrance, Country of Origin Information, Technologies of Suspicion, and the Erasure of the Supernatural in African Refugee Claims, in Technologies Of Suspicion and the Ethics Of Obligation in Political Asylum 129–30 (Bridget M. Haas & Amy Shuman eds., 2019); see also Amy Shuman & Carol Bohmer, Representing Trauma: Political Asylum Narrative, 117 J. Am. Folklore 394, 398 (2004); Anthony Good, ‘Undoubtedly an Expert’? Anthropologists in British Asylum Courts, 10 J. Royal Anthropological Inst. 113, 114 (2004).

26 In most of these cases, the asylum seekers came from Africa.

27 See Katia Bianchini, The Role of Expert Witnesses in the Adjudication of Religious and Culture-Based Asylum Claims in the United Kingdom: The Case Study of “Witchcraft” Persecution, 34 J. Refugee Stud. 3793 (2021).

28 See Nigeria: Prevalence of Ritual murder and Human Sacrifice and Reaction by Government Authorities (2009-2012), Immigration and Refugee Board of Can. https://www.justice.gov/sites/default/files/eoir/legacy/2013/12/18/NGA100384.E.pdf.

29 Similar challenges arise in the asylum assessments in the US. See Black, supra note 5.

30 See Bianchini, supra note 27, at 3803.

31 Douglas McDonald, Escaping the Lions: Religious Conversion and Refugee Law, 22 Austl J. Hum. Rts. 135, 143 (2016).

32 See id.

33 The appellant described the Ogboni cult as a secret cult that performs rituals, worships idols, and engages in sacrifices of innocent people. Its members include politicians, civil servants, police officers, and businessmen. See Omoruyi v. SSHD [2000] EWCA (Civ) 258; see Millbank & Vogl, supra note 12, at 381.

34 Omoruyi SSHD [2000] EWCA (Civ) 258 at ¶ 29.

35 The approach in Omoruyi was followed in other cases, such as SSHD v. BL (Ogboni Cult, Protection, Relocation) Nigeria CG [2002] UKIAT 01708; Prince Bright Omoregbee v. SSHD [2001] AIT 01TH02176; Prince Michael Paulinus Eze v. SSHD [2000] AIT 00TH01308. See Bianchini, supra note 27, at 3801–02.

36 See JA & VA v. SSHD [2019] UKUT 10004, 10028 (IAC), ¶¶ 7, 9.

37 See AA & others v. SSHD [2016] UKUT 05484, 05482, 05486, 05490, 05489 (IAC), ¶ 20.

38 See CN (Internal flight alternative, female minor) Cameroon [2004] UKIAT 00275; Prince Bright Omoregbee, v. SSHD [2001] AIT at ¶¶ 19, 20; VAO v. SSHD [2019] UKAITUR PA/03644/2019; Senu v. SSHD [2002] UKIAT 06449 at ¶ 19.

39 See SSHD v. BL Ogboni Cult, Protection, Relocation) Nigeria CG [2002] UKIAT 0170 at ¶¶ 9–10, 14.

40 See Senu v. SSHD [2002] UKIAT 06449 ¶ 19. A similar case is Kenny Keniyinbo Owei v. SSHD [1999] IAT 17447.

41 See Jessica Schultz, The Internal Protection Alternative in Refugee Law: Treaty Basis and Scope of Application Under the 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol 4–8 (2019); see also Jeff Crisp, Witchcraft and Displacement, 31 Forced Migration Rev. 74 (2008).

42 The Bondo society is “an ancient, all-female commune located in West Africa” that directs girls into adulthood. Both girls and women must engage in a number of rituals, including FGM, in order to join. See J.V.O. Richards, Some Aspects of the Multivariant Socio-Cultural Rôles of the Sande of the Mende, 9 Can. J. Afr. Stud. 103, 103–104 (1975); see Richard Fanthorpe, Sierra Leone: The Influence of the Secret Societies, with Special Reference to Female Genital Mutilation (2007), https://www.refworld.org/docid/46cee3152.html; Chi Adanna Mgbako, Meghna Saxena, Anna Cave, Nasim Farjad & Helen Shin, Penetrating the Silence in Sierra Leone: A Blueprint for the Eradication of Female Genital Mutilation, 23 Harv. Hum. Rts. J. 111 (2010).

43 See SSHD v. MK [2016] UKAITUR AA/11180/2014 at ¶ 17.

44 However, cultural expert witnesses, when given the opportunity to provide evidence, helped to offset the apparent ethnocentrism. See Bianchini, supra note 27, at 3809–10.

45 WO (Ogboni Cult) [2004] UKIAT 00277 at ¶ 21.

46 This was the case in Prince Bright Omoregbee v. SSHD [2001] AIT 01TH02176; VAO v. SSHD [2019] UKUT 03644 (IAC); Senu v. SSHD [2002] UKIAT 06449; CN (Internal flight alternative, female minor) Cameroon [2004] UKIAT 00275; OA v. SSHD [2019] UKUT 07338 (IAC); and Obasi v. SSHD [2007] EWHC 381 (Admin).

47 SSHD v. BL (Ogboni Cult, Protection, Relocation) Nigeria CG [2002] UKIAT 01708.

48 Senu v. SSHD [2002] UKIAT 06449.

49 Max Marwick, Witchcraft and Sorcery (1982).

50 Sarah Dehm & Jenni Millbank, Witchcraft Accusations as Gendered Persecution in Refugee Law, 28 Soc. & Legal Stud. 202, 205, 208–9 (2019); Juri Gogoi Konwar & Dina Swargiari, Conflicting Idea of “Victim” and “Perpetrator” in Witch-Hunting: A Case Study in the State of Assam, India, 3(5) Int’l J. Humanities & Soc. Stud. 132 (2015); Adam Ashforth, Witchcraft, Justice, and Human Rights in Africa: Cases from Malawi, 58 Afr. Stud. Rev. 5 (2015).

51 See Jean Comaroff & John L. Comaroff, Introduction, in Modernity and Its Malcontents: Ritual and Power in Postcolonial Africa xi–xxxi (Jean Comaroff & John L. Comaroff eds., 1993). See also Jean Comaroff & John L. Comaroff, Occult Economies and the Violence of Abstraction: Notes from the South African Postcolony, 26 Am. Ethnologist 279 (1999); Mary Douglas, Purity and Danger: An Analysis of Concepts of Pollution And Taboo (1966); Mary Douglas, Cultural Bias (1978); E. E. Evans-Pritchard, Witchcraft, Oracles, and Magic Among the Azande (1937); Peter Geschiere, The Modernity Of Witchcraft: Occult in Postcolonial Africa (1997); Diane Ciekawy & Peter Geschiere, Containing Witchcraft; Conflicting Scenarios in Postcolonial Africa, 41 Afr. Stud. Rev. 1 (1998); M. G. Marwick, Sorcery in Its Social Setting. A Study of the Northern Rhodesian Ceŵa (1965).

52 See Evans-Pritchard, supra note 51; Bronislaw Malinowski, Magic, Science, and Religion and Other Essays (1955); Witchcraft Confessions and Accusations (Mary Douglas ed., 1970); Peter Geschiere, Sorcellerie et Politique en Afrique: La Viande des Autres (2005); Magical Interpretations, Material Realities: Modernity, Witchcraft and the Occult in Postcolonial Africa (Henrietta L. Moore & Todd Sanders eds., 2001).

53 Wyatt MacGaffey, Preface to Peter Gechiere, The Modernity of Witchcraft: Politics and the Occult in Postcolonial Africa viii (1997); see Bianchini, supra note 27, at 3796–3797; Philip Alson (Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions), ¶49(b), U.N. Doc A/HRC/11/2 (May 27, 2009).

54 See Gerrie ter Haar, Introduction: The Evil Called Witchcraft, in Imagining Evil: Witchcraft Beliefs and Accusations in Contemporary Africa 9 (Gerrie ter Haar ed., 2007); see also Jill Schnoebelen, Witchcraft Allegations, Refugee Protection and Human Rights: A Review of the Evidence, in New Issues in Refugee Research, Research Paper No. 169, 2.

55 Id.

56 See Human Rights Council Res. 47/8, U.N. Doc. A/HRC/47/L.9 at point 4 (July 5, 2021).

57 See Comaroff & Comaroff (1999), supra note 51.

58 See Peter Pels, A Politics of Presence: Contacts between Missionaries and Walugru in Late Colonial Tanganyika (1999).

59 See Marwick, supra note 49; Lyle B. Steadman, The Killing of Witches, 56 Oceania 106 (1985).

60 See Comaroff & Comaroff (1999), supra note 51; Theodore Petrus, Defining Witchcraft-Related Crime in the Eastern Cape Province of South Africa, 3 Int’l J. Soc. & Anthropology 1 (2011); Theodore Petrus, Influence, Insecurities and Evil: The Political and Economic Context of Witchcraft-Related Crime in the Eastern Cape, South Africa, 4 Int’l J. Soc. & Anthropology 179 (2012).

61 See supra, section C.

62 See Marwick, supra note 49; Susan S. M. Edwards, The Genocide and Terror of Witchcraft Accusation, Persecution and Related Violence: An Emergency Situation for International Human Rights and Domestic Law, 4 Int’l Fam. L. 322 (2013).

63 See Edoardo Quaretta, Children Accused of Witchcraft in Democratic Republic of Congo (DRC): Between Structural and Symbolic Violence, 8 Anuac 61 (2019).

64 See Mensah Adinkrah, Witchcraft Accusations and Female Homicide Victimization in Contemporary Ghana, 10 Violence Against Women 325 (2004); Scholastica Ngozi Atata, Aged Women, Witchcraft, and Social Relations Among the Igbo in South-Eastern Nigeria, 31 J. Women & Aging 231 (2018); Friday A. Eboiyehi, Convicted Without Evidence: Elderly Women and Witchcraft Accusations in Contemporary Nigeria, 18 J. Int’l Women’s Stud. 247 (2017).

65 See Angi Stone-MacDonald & Gretchen Digman Butera, Cultural Beliefs and Attitudes About Disability in East Africa, 8 Rev. Disability Stud. 295 (2014).

66 See Aleksandra Cimpric, Children Accused of Witchcraft: An Anthropological Study of Contemporary Practices in Africa, UNICEF (2010) https://www.unicef.org/nigeria/media/1326/file/%20Children-accused-of-witchcraft-in-Africa.pdf.pdf; Julie Taylor, Caroline Bradbury-Jones & Patricia Lund, Witchcraft-Related Abuse and Murder of Children with Albinism in Sub-Saharan Africa: A Conceptual Review, 28 Child Abuse Rev. 13 (2019).

67 See Shelagh Roxburgh, Homosexuality, Witchcraft, and Power: The Politics of Ressentiment in Cameroon, 62 Afr. Stud. Rev. (2018); Bianca Dahl, Beyond the Blame Paradigm: Rethinking Witchcraft Gossip and Stigma around HIV-Positive Children in Southeastern Botswana, 44 Afr. Hist. Rev. 53 (2012).

68 See Quaretta, supra note 63.

69 See Knut Christian Myhre, The Power of a Severed Arm: Life, Witchcraft, and Christianity in Kilimanjaro, in Pentecostalism and Witchcraft: Spiritual Warfare in Africa and Melanesia (Knut Rio, Michelle MacCarthy & Ruy Blanes eds., 2017).

70 Samantha Spence, Witchcraft Accusations and Persecution as a Mechanism for the Marginalisation of Women 18 (2017); see Cimpric, supra note 66, at 28.

71 See Schnoebelen, supra note 54, at 9; Dan Jorgensen, Preying on Those Close to Home: Witchcraft Violence in a Papua New Guinea Village, 25 Austl J. Anthropology 267 (2014); Miranda Forsyth, The Regulation of Witchcraft and Sorcery Practices and Beliefs, 12 Ann. Rev. L. & Soc. Sci. 331, 335 (2016).

72 See Mensah Adinkrah & Prakash Adhikari, Gendered Injustice: A Comparative Analysis of Witchcraft Beliefs and Witchcraft-Related Violence in Ghana and Nepal, 6 Int’l. J. Socio. Anthropology 314, 318 (2014).

73 See Wumbla Issah, Condemned Without Hearing: An Intersectional Analysis of the Practice of Branding, Banishing, and Camping of Alleged Witches in Northern Ghana 8 (Int’l Inst. Soc. Stud. Working Paper No. 63, 2018).

74 See Geschiere, supra note 52; Michael G. Schatzberg, Witchcraft as a Mode of Political Causality, 79 Politique Africaine 33 (2000); see Luongo, supra note 12.

75 See Evans-Pritchard, supra note 51, at 18–32.

76 Id.

77 See Adina-Loredana Nistor, Andrew Merrylees & Barbora Holá, Spellbound at the ICC: The Intersection of Spirituality and International Criminal Law, in Intersections of Law and Culture at the International Court (Julie Fraser & Brianne McGonigle Leyh eds., 2020).

78 See Anthony Good, Anthropology and Expertise in the Asylum Courts 72 (2007); see Millbank & Vogl, supra note 12, at 382.

79 See, e.g., Clifford Geertz, Religion as a Cultural System, in Anthropological Approaches to the Study of Religion (Michael Banton ed., 1966); Emile Durkheim, The Elementary Forms of Religious Life (1912).

80 See Good, supra note 78, at 69, 72–73.

81 See Id. at 71–73.

82 See Millbank & Vogl, supra note 12, at 383. Although the anthropological scholarship is prolific on the different varieties of “magic,” religious persecution rarely comes up in these narratives. See id.; Luongo, supra note 12, at 185–186, 193–195; Julia Powles & Robert Deakin, Seeking Meaning: An Anthropological and Community-Based Approach to Witchcraft Accusations and Their Prevention in Refugee Situations 7 (UNCHR Research Paper No. 235, 2012); Jeanne Favret-Saada, Death at Your Heels: When Ethnographic Writing Propagates the Force of Witchcraft, 2 HAU: J. Ethnographic Theory 45 (2012); Chi Adanna Mgbako & Katherine Glenn, Witchcraft Accusations and Human Rights: Case Studies from Malawi, 43 Geo. Wash. Int’l L. Rev. 389, 398–402 (2011); see Comaroff & Comaroff (1999), supra note 51, at 279; Javier Aguilar Molina, The Invention of Child Witches in the Democratic Republic of Congo (2005); see Good, supra note 78, at 69, 72.

83 See Emilie Secker, Witchcraft Stigmatization in Nigeria: Challenges and Successes in the Implementation of Child Rights, 56 Int’l Soc. Work 22 (2013).

84 See Cecilia M. Bailiet, Persecution in the Home: An Overview of Harmful Traditional Practices, Lecture for INTACT-UNHCR (Nov. 22, 2011), https://www.intact-association.org/images/documents/colloques/2011/Persecution-in-the-Home-Cecilia-Baillet.pdf.

85 See Karl Hanson & Roberta Ruggiero, Child Witchcraft Allegations and Human Rights, European Parliament PE 433.714, 11, (2013) https://www.europarl.europa.eu/RegData/etudes/note/join/2013/433714/EXPO-DROI_NT%282013%29433714_EN.pdf.

86 See id.

87 See Baililet, supra note 84.

88 See id.

89 See id.

90 See id.

91 See Hanson & Ruggiero, supra note 85.

92 Prosecution of the family provider is often not pursued due to family dependence on his income. Thus, victims might not report abuses and may be unable to show that they sought internal protection. See Baililet, supra note 84.

93 See Secker, supra note 83; Steve Greenfield, Guy Osborn & Stephanie Roberts, From Beyond the Grave: The Legal Regulation of Mediumship, 8 Int’l J. L. Context 97 (2012); Miranda Forsyth, New Draft National Action Plan to Address Sorcery-Accusation Related Violence in Papua New Guinea, Austl. Nat. Univ. Brief 2014/8, https://bellschool.anu.edu.au/sites/default/files/publications/attachments/2015-12/IB-2014-18-Forsyth-ONLINE_0.pdf;, National Action Plan to Tackle Child Abuse Linked to Faith or Belief, National Working Group on Child Abuse Linked to Faith or Belief (2012), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/175437/Action_Plan_-_Abuse_linked_to_Faith_or_Belief.pdf; Anuja Agrawal & Madhu Mehra, Contemporary Practices of Witch Hunting: A Report on Social Trends and the Interface with Law 138, Partners for Law in Development (2014), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2660070; 21st Century Witchcraft Accusations & Persecution: 2013 Global Report: Presented at the UN Human Rights Council Session, Witchcraft and Human Rights Information Network (WHRIN) 9 (2013), https://www.whrin.org/wp-content/uploads/2014/03/WHRIN-UN-report_small-FINAL.pdf.

94 Roger Ballard, Alessandro Ferrari, Ralph Grillo, André J. Hoekema, Marcel Maussen & Prakash Shah, Cultural Diversity: Challenge and Accommodation, in Legal Practice and Cultural Diversity 9, 20 (Ralph Grillo, Roger Ballard, Alessandro Ferrari, André J. Hoekema, Marcel Maussen & Prakash Shah eds., 2009).

95 As explained above, the case of Omoruyi provides a good illustration of the judge’s lack of familiarity with the background of the Ogboni cult in Nigeria and with the broader, cross-cultural definition of religion.

96 Decision-makers, for instance, made the following comments: “We utterly reject as having any objective basis his claim that the cult members could find him by means of black magic.” Senu v. SSHD [2002] UKIAT 06449 at ¶ 19. In another case, they said, “There is no evidence that members of the cult select relatives because they are relatives …. On a common sense basis, it could hardly be so, if such sacrifices however infrequent were repeatedly carried out—the supply of victims would very rapidly be exhausted.” SSHD v. Ann Obikwelu [1997] IAT 15343 at 3.

97 See Edwards, supra note 62, at 327.

98 See Mary Coussey, Independent Race Monitor: annual Report 2005/2006 (Home Office), at ¶ 3.19; see also Jan Shaw & Rachel Witkin, Get It Right: How the Home Office Fails Refugees, Amnesty Int’l UK (2004) https://www.amnesty.org.uk/files/get_it_right_0.pdf?VersionId=3tisZ.5.ZLA4Bc.4TsTKb8B_yQyDwQZA.

99 See Walter Kalin, Cross-Cultural Misunderstandings in the Asylum-Hearing, 20 Int’l Migration Rev. 230, 234 (1986); Anthony Good, Anthropological Evidence and Country of Origin Information in British Asylum Courts, in Adjudicating Refugee and Asylum Status: The Role of Witness, Expertise, and Testimony 122–144 (Benjamin N. Lawrance & Galya Ruffer eds., 2014); see also Barbara Sorgoni, The Location of Truth: Bodies and Voices in the Italian Asylum Procedure, 42 PoLAR 161, 169 (2019).

100 It should be noted that some scholars point out how COI cannot be seen as “objective evidence;” the term per se precludes the contextualization and interpretation of factors that contribute to the development of knowledge. See Robert Gibb & Anthony Good, Do the Facts Speak for Themselves? Country of Origin Information in French and British Refugee Status Determination Procedures, 25 Int’l J. Refugee L. 291, 321 (2013).

101 COI does not usually deal with supernatural questions. See Benjamin N. Lawrance, Country of Origin Information, Technologies of Suspicion, and the Erasure of the Supernatural in Asylum Claims, in Technologies of Suspicion and the Ethics of Obligation in Political Asylum 145–46 (Bridget M. Haas & Amy Shuman eds., 2019).

102 See Liza Schuster, Fatal Flaws in the UK Asylum Decision-Making System: An Analysis of Home Office Refusal Letters, 46 J. Ethnic & Migration Stud. 1371, 1374 (2020).

103 See id.; see Good, supra note 78, at 128; Jovana Bogićević, Representing the Other: A Case for Interdisciplinary Clinical Legal Education: Example of the Human Rights and Migration Law Clinic, 26 Int’l J. Clinical Legal Educ. 93, 108 (2019).

104 See Ellen Messer, Anthropology and Human Rights, 22 Ann. Rev. Anthropology 221, 227–235 (1993).

105 See Damien Short, Sociological and Anthropological Approaches, in Human Rights. Politics and Practice 100 (3rd ed. 2016).

106 See Masua Sagiv, Cultural Bias in Judicial Decision-Making, 35 Bos. Coll. J. Law & Soc. Just. 229, 230 (2015).

107 See id. at 236.

108 See id.

109 See id.

110 See Bianchini, supra note 27.

111 Id.

112 For instance, in JA (child—risk of persecution) Nigeria, the Upper Tribunal relied on a very helpful expert report that was crucial to demonstrating that albinism is believed to be a curse and that there is widespread discrimination and potential abuse against albinos in Nigeria because of that belief. JA (child—risk of persecution) Nigeria [2016] UKUT 00560 (IAC) at ¶ 11.

113 See Anne-Sophie Bonnet, Maria Carlotta F. Gorio, Francesca Maglia, Laurent Martrille & Cristina Cattaneo, Case Study: Lesions Due to Forced Ritual Scarification in Cameroon – A Warning from Cultural Anthropology to Forensic Medicine, 53 Legal Med. 1 (2021).

114 See Joost Fonstein, “She Appeared to Be in Some Kind of Trance”: Anthropology and the Question of Unknowability in a Criminal Trial, 4 HAU: J. Ethnographic Theory 75, 85 (2014).

115 See Clifford Geertz, Local Knowledge: Fact and Law in Comparative Perspective, in Local Knowledge: Further Essays In Interpretive Anthropology 184 (1983), cited in Jonas Bens, Anthropology and the Law: Historicising the Epistemological Divide, 12 Int’l J. L. Context 234 (2016).

116 See Peter Rigby & Peter Sevareid, Lawyers, Anthropologists, and the Knowledge of Facts, in Double Vision: Anthropologists at Law 13, 20 (Randy Frances Kandel ed., 1992).

117 See, e.g., Gary Edmond, Thick Decisions: Expertise, Advocacy and Reasonableness in the Federal Court of Australia, 74 Oceania 190 (2004); see Good, supra note 25, at 114.

118 See Bens, supra note 114, at 248. “Reflexivity” refers to the researcher’s awareness of his or her limitations, advantages, and other potential influencing factors when studying and writing about the lives of others. Karen O’Reilly, Ethnographic Methods 17, 213 (2d ed. 2012).

119 See Bens, supra note 115, at 248; Bruce J. Einhorn & S. Megan Berthold, Reconstructing Babel: Bridging Cultural Dissonance Between Asylum Seekers and Adjudicators, in Adjudicating Refugee and Asylum Status, supra note 98, 41–42.

120 See Good, supra note 78, at 138.

121 See id.

122 See Good, supra note 25, at 131.

123 See Good, supra note 78, at 138.

124 See id.

125 The judicial training was held remotely on Nov. 19, 2020. Max Planck Institute for Social Anthropology and the European Judicial Training Network (EJTN). Cultural and Religious Diversity in the Courtroom. Judges in Europe Facing New Challenges (November 19–20, 2020). See the work of my colleague Sophie Andreetta, “Saisir L’État”. Les Conflits D’héritage, La Justice Et La Place Du Droit À Cotonou [Seizing the State: Inheritance Conflicts, Justice and the Place of Law in Cotonou] (2018).

126 See Evans-Pritchard, supra note 51.

127 See Bianchini, supra note 27, at 3794.

128 See id.; see also Isak Niehaus, Witchcraft and Sorcery, in The Encyclopedia of Social and Cultural Anthropology 715 (Alan Barnard & Jonathan Spencer eds., 2010).

129 See Adam Ashforth, Reflections on Spiritual Insecurity in a Modern African City (Soweto), 41 Afr. Stud. Rev. 39, 64 (1998); Schnoebelen, supra note 54, at 2.

130 See Bianchini, supra note 27.