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 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 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.
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 state 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 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
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
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.
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
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.
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
XII, Chapters 3, 7 and 8).
We, the people, are living in an exciting international legal context that is more
and more embracing human values over state 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