ABOVE NATIONS, HUMANITY: Universal Jurisdiction and International Criminal Justice

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 this past 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 star (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

Beginning with Hitler

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. Adolph Hitler was the first to give the cause of action for this penetration into stale sovereignty. The atrocities of World War II aroused the ire of the Western world who viewed the mass extermination of Jews as an affront to the collective dignity of mankind. This moral outrage expressed itself in the Nuremburg 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 stale 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 and /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.

Justice demands retribution

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 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.

Deterrence: potential killers given notice

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, ie 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 the 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 liable if there's only the wrongful act without any intention; you cannot be liable 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, a member of the New York Bar Association, former director of Center for Social Development (March 2006—July 2009), founder and Board of the Center for Justice & Reconciliation (www.cjr-cambodia.org), founding adviser of the Association of Khmer Rouge Victims (www.akrvc.org), is currently writing her second book, under a grant, amidst her speaking engagements.