Wednesday, August 21, 2013
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 who 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 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.
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.
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.
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.
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