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| Ms. Theary C. Seng, 31 Oct. 2013 |
In light of the growing discussions about the International Criminal Court, it may be helpful to revisit the underpinnings and raison d'etre for this ICC. For a long time, the ICC has wanted to counter-balance its image of being a court to try mainly African leaders. Burma came up as in discussions, but unfortunately, it never ratified the ICC Agreement. In recent days, the conversation about the ICC in Cambodia has taken on a new fervor. Let's go back to the fundamentals of what this ICC is all about.
[Sent in by Ms. Theary C. Seng, 18 Jan. 2014]
. . .
The International Court Court: ABOVE NATIONS, HUMANITY
(Commentary by Ms. Theary C. Seng)
This
afternoon, the meeting between the CNRP and CPP again failed to come to
an agreement. Also today, the Constitutional Council rejected some of
the complaints filed by the CNRP. The situation is moving us closer to
mass demonstrations. The discussion of the deterrence effect of the International Criminal Court is hitting the airwaves.
Here
are some comments and a commentary I wrote in my last year of law
school, 1999, about the need to establish the International Criminal
Court.
- Theary, Phnom Penh, 20 Aug. 2013
. . .
I
just returned from Sando (an hour plane ride from Stockholm north to
Sundsvall airport, then another one hour drive to the island where the
Folke Bernadotte Academy conducts its courses) where I was one of
several "resource persons" (facilitators/trainers) along with the
visionary Sierra Leonean John Caulker, South African transitional
justice expert Graeme Simpson, Holocaust survivors Dr. Ervin Staub and
Dr. Laurie Anne Pearlman and the visionary, dynamic FBA team of
Ambassador Ragnar Angeby and Therese Jonsson for participants from all
over the world who are commissioners and chiefs of their various
peace-building institutions.
One
of the sessions I was responsible for leading/facilitating with Graeme
Simpson was on "Justice in the Reconciliation Process". The following
article frames our discussions in Sando.
- Theary C. Seng, Oct. 2011
First published in October 2007 in The Phnom Penh Post as part of the Voice of Justice columns,
but first written during my 3rd year of law school after having spent a
semester studying and working in Pietermaritzburg, South Africa
(June-Dec. 1999), a country I love deeply (for its natural beauty and
its long-suffering, resilient, forgiving people) and was fortunate to
visit again ten years later in December 2009 as part of a group of
experts and practitioners on reconciliation (funded by the Swedish
government - in the exquisite wine country of Stellenbosch, staying in
the oldest hotel of all of South Africa, in a suite the size of my
current apartment - a very difficult life, I know :) !!). Despite the
cultural, political and historical differences, we, Cambodians, have
much to learn from South Africans and their ubuntu spirit.
A good place to start (for us proficient in English) would be the
contemplative reading of Nelson Mandela's inspirational Long Walk to Freedom and Desmond Tutu's No Future Without Forgiveness which
I just finished for the first time. For those of us genuinely
interested the concept of forgiveness, I have found both of Lewis B.
Smedes' books on forgiveness (Forgive & Forget, 1984 and The Art of Forgiving,
1996) incredibly enlightening and helpful in understanding the
universal contours of this concept; unfortunately again, not available
in Khmer but English.
ABOVE NATIONS, HUMANITY:
Universal Jurisdiction and International Criminal Justice
The second half of the 20th century has witnessed unprecedented
advancement of human rights, from Haiti to the former Yugoslavia to
Rwanda to Sierra Leone to East Timor; human values are piercing the veil
of the
monolithic state and challenging the foundation of its values. Adolf
Hitler was the first to give the cause of action for this penetration
into state sovereignty. The atrocities of World War II aroused the ire
of the Western world which viewed the mass extermination of Jews as an
affront to the collective dignity of mankind. This moral outrage
expressed itself in the Nuremberg Trials, which in turn formed the
impetus for the founding of the International Human Rights Movement. For
the first time in history, a state and individuals were held
internationally responsible for crimes committed inside its territory
and on a mass systematic scale. Spain's unilateral arrest of Chile's
General Augusto Pinochet a few years back highlighted but one example of
how content-rich yet ever contentious the human rights culture has
become since its inception.
State Values
Despite immense progress in the internationalization of human rights, some as jus cogens - peremptory norms having the character of supreme law which cannot be modified by treaty or by ordinary customary law - all is not well. The transition from a bi-polar to a multi-polar world ended the Cold War but resulted in the proliferation of many "hot spots" around the world. The modern world knows many Hitlers and many killing fields, people and places brought out from their obscurity by national, ethnic, racial and religious "cleansing" that resulted in the eradication of huge sections of the population. However, because states continue to be the constitutive actor of the international system, the perpetrators of these atrocious crimes are more likely than not to roam freely under the protective guise of stale values.
Human Values
Despite the morass, international criminal justice and universal jurisdiction increasingly are championing human values over state values - humanity over nations - whereby crimes whose commission offend the moral intuition of the international community, specifically that of genocide, war crimes and crimes against humanity are being brought to mixed or international tribunals.
The gross violations of these crimes are impelling, as a moral imperative, the global community towards increasing criminal sanctions against such actions. Because for us to remain silent and inactive in the presence of such evils strike at who we are as moral beings; these transgressions are a violent assault on human dignity. Thus, the apprehension and trial of these perpetrators lend expression to the moral outrage and revulsion felt by humanity. Only by voicing our disgust and thus publicly repudiating such conduct do we begin to restore the moral order within the system and within ourselves.
State Values
Despite immense progress in the internationalization of human rights, some as jus cogens - peremptory norms having the character of supreme law which cannot be modified by treaty or by ordinary customary law - all is not well. The transition from a bi-polar to a multi-polar world ended the Cold War but resulted in the proliferation of many "hot spots" around the world. The modern world knows many Hitlers and many killing fields, people and places brought out from their obscurity by national, ethnic, racial and religious "cleansing" that resulted in the eradication of huge sections of the population. However, because states continue to be the constitutive actor of the international system, the perpetrators of these atrocious crimes are more likely than not to roam freely under the protective guise of stale values.
Human Values
Despite the morass, international criminal justice and universal jurisdiction increasingly are championing human values over state values - humanity over nations - whereby crimes whose commission offend the moral intuition of the international community, specifically that of genocide, war crimes and crimes against humanity are being brought to mixed or international tribunals.
The gross violations of these crimes are impelling, as a moral imperative, the global community towards increasing criminal sanctions against such actions. Because for us to remain silent and inactive in the presence of such evils strike at who we are as moral beings; these transgressions are a violent assault on human dignity. Thus, the apprehension and trial of these perpetrators lend expression to the moral outrage and revulsion felt by humanity. Only by voicing our disgust and thus publicly repudiating such conduct do we begin to restore the moral order within the system and within ourselves.
Privy to the moral philosophy of punishment is the concept of justice.
Justice demands retribution. In apportioning just deserts to the
perpetrators, certain desirable values inevitably flow to the respective
actors involved.
First, punishment administers accountability and responsibility on the
perpetrators. Even if the perpetrators escape arrest the warrant for
their arrest stigmatizes them as pariahs. The values of stigmatization
and shame, although intangible, should not be underestimated.
Second, the community is restored when justice is meted out.
Third, the issuance of justice redresses the survivors' rights as legal
citizens. Personal autonomy presumes every individual a 'legal person',
that is, a carrier of formal rights and obligations. Notably, the
criminal process lends legal recognition that justice is not a privilege
but a right that is redressable for all citizens.
The provision for a civil party to join in the criminal proceeding (of
which I am the first, not only for this Extraordinary Chambers but for
all mixed/internationalized tribunals) is only one of the most
mind-boggling developments (particularly to someone brought up in the
common law tradition) to give further credence to this idea of
individuals as "legal person".
Finally, respect is bestowed upon the victims when a concerned
community takes concrete steps on their behalf and in their memory.
Therefore, a legitimate trial allows for individual and collective
closure, the sense of finality that all that could have been done has
been done. This closure in turn provides a necessary precondition for
meaningful growth and development.
Another aspect of justice reasons that punishment contributes to the
general deterrence of future crimes. The Preamble to the Rome Statute
(establishing the International Criminal Court) succinctly states that
the ICC "determine[s] to put an end to impunity for the perpetrators
of these crimes and thus contribute to the prevention of such crimes..."
Implicit in the argument is that potential violators are put on notice.
Absent notice and punishment, a moral hazard exists, and thus in effect
creating a de facto license to kill at will and with impunity.
It would be good if the international community could re-remind General Than Shwe and his Burmese military junta that they are no longer living within the context of 1988 where they could get away with the violent crackdown on peaceful demonstrators because of weak implementation of universal jurisdiction and non-existence of the ICC. The warlords in Darfur can also use this reminder, as well as other rogues of this world.
In sum, the violent assault on human dignity triggers our moral obligation and sense of justice and impels us into action.
Rule of law
The moral imperative to action, i.e. court proceeding, is twinned to the legal obligation, opinion juris,
which is rooted in history. Hence, the second rationale for
international/mixed criminal proceedings finds justification in law and
history. Any legal system, albeit domestic or international, rests on
the concept of the rule of law. Meaning results when concepts are
translated into function. Currently, we have a rich compendium of
concepts; however, we are still wanting to actualize them into a
functioning reality.
Democratic Governance
Another reason for criminal sanctions against mass crimes is the
development and promotion of the human rights culture and democratic
governance.
On a pragmatic level, the judgments of these cases would produce a
rich, contextual corpus of human rights scholarship, generate
discussions, and stimulate public awareness of justice issues. We are
more and more seeing this happening now in our Khmer society. Of course,
more can be and should be had.
On a philosophical level, the adjudication of mass crimes would build
on the achievements of the human rights culture in its fortification of
the rule of laws — essentially democratic governance.
A democratic government guarantees the law to be the equalizer in
content and application among its citizens. However, when the law
punishes petty and common crimes but allows mass murderers to
circulate freely and comfortably among its citizens, democratic peace
and stability are undermined and the law is relegated to
meaninglessness. Unfortunately, as is the case: "For my friends, whatever they want; for my enemies the law."
Garnering support for reform under such a mentality will be next to
impossible. A failure to punish is then a clear abdication of democratic
authority.
Criminal Responsibility
Here, it should be reminded that a person is criminally responsible when two conditions are met: actus reus (a wrongful act, deed) coupled with mens rea (guilty
mind, criminal intention or recklessness). Simply put, you cannot be culpable if there's only the wrongful act without any intention; you
cannot be culpable if you intended for the wrongful act, but did not carry
out this act.
St. Augustine helps us to further understand the underlying rationale when he writes:
"A fault cannot exist in the Highest Good, but it cannot exist except
in some kind of good. Therefore good may exist on its own, but evil
cannot... It is just, in that no one is punished for faults of nature
but for faults of will; and even the wickedness which has became
habitual, and has developed and hardened into 'second nature', had its
origin in an act of choice... To try to discover the causes of such
defection — deficient, not efficient causes — is like trying to see
darkness or to hear silence. Yet we are familiar with darkness and
silence, and we can only be aware of them by means of eyes and ears, but
this is not by perception but by absence of perception... the failure
is voluntary, not necessary" (The City of God, Book Xll, Chapters 3,7and 8).
We, the people, are living in an exciting international legal context
that is more and more embracing human values over stale values; we, the
Khmer people, are living in one rich example of the excitement and
messiness of what all this means. At the end of the day, what we want to
say through all these courts — national, international or however
special, extraordinary or mixed it is — every person must be responsible
for his/her action.
. . . . .
This
article is an updated excerpt from a paper I wrote in May 2000
advocating for the establishment of the International Criminal Court,
which since has come into existence with Cambodia as one of its first
signatories.
Theary C. SENG
Founding President of CIVICUS: Center for Cambodian Civic Education
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