Thailand Law Journal 2011 Fall Issue 2 Volume 14

2. Justice for Victims? Focus for Emerging International Criminal Justice

Fur those victims who do testify as victim witnesses at international criminal tribunals, what is the impact of having their stories selectively constructed, destroyed, and reconstructed in examination and cross-examination? Not only are their experiences distorted, but they are taken out of their hands completely and retold through the voice of professionals. This loss of ownership, along with the procedurally ­enforced restraints preventing the accurate telling of their stories, will more likely lead to increased frustration and dissatisfaction for victims than it will to catharsis. They will not feel, as Colson argues they will, that their status as victims is 'being taken seriously by the international community through one of its institutions'.⁴² When notions of individualised criminal liability are employed in contexts where the collective rights of victims have little actionable purchase, the outcomes can be a process of further victimisation through justice interventions and its consequences. As the experiences of the truth and reconciliation commissions reveal⁴³ the compromise of the individual rights of the 'storyteller' for the greater good of story telling requires a wider recognition of the legitimate interests of victim communities. Through an emphasis on community wellbeing as an objective for criminal justice, the hybrid justice traditions such as China hold out in principle at least a model for alternative justice strategies not to ride rough shod over victims' rights in the pursuit of reconciliation and state reconstruction.

Despite the recognition that alternative paradigms representing international criminal justice are very significant when conceptualising its scope, it is the form and jurisdiction of the international justice institutions and the ICC in particular which has divided many of the super powers such as China, from the body of UN states working towards a powerful and pervasive international criminal court.

 IV. China and the ICC⁴⁴

Placing aside Japan, of the global powers the three states currently refusing to cooperate with the ICC (Russia, the USA and China) have the largest military capacity in their regions. Burns does not see this as a coincidence. Despite the domestic legal obligations required by the Rome Statute and concerns over the loss of autonomy which these may suggest:

As an emerging military 'superpower', China has much in common with the United States in its wariness towards the ICC. In both cases these states have powerful military establishments that have developed their own military judicial systems that they will not easily give up any part of.⁴⁵

However, Lu and Wang⁴⁶ observe that unlike the USA, China does not have extensive overseas military commitments and therefore it is not so concerned (as is the US) that its troops may one day come under the ICC jurisdiction. Also, China is not in the same international position as is the USA to pressure through economic sanction, for the creation of bilateral agreements indemnifying troops against local prosecution.

When the Rome Statute was signed by an overwhelming number of UN member states, China was unexpectedly one of the seven countries to vote against it. China remains among the very few states not to sign, ratify or accede to the treaty.⁴⁷ What makes this all the more curious is that China was active in the plenary sessions of the Rome Conference and adopts a watching brief on the progress of the courts development, from the perspective of an observer state.

The reasons set out by the Chinese government for not joining the ICC are:

1. The Rome Statute is not a voluntary acceptance instrument and imposes obligations on nation states and non-state parties without their consent, which violates the Vienna Convention on the Law on Treaties. Furthermore, the complementary jurisdiction principle gives the ICC the power to judge whether a state is willing or able to conduct proper trials of its own nationals.
2. War crimes committed in internal armed conflicts fall under the jurisdiction of the ICC. The definition of war crimes goes beyond that accepted under customary international law.
3. Contrary to the existing norms of customary international law, the definition of 'crimes against humanity' does not require that the state in which they are committed be at war. Many of the actions listed under that heading should covered by international human rights law and not criminal law.
4. The inclusion of the crime of aggression within the jurisdiction of the ICC weakens the power of the UN Security Council; and
5. The power under art 15 for the Prosecutor to initiate action (proprio motu) might make it difficult for the ICC to deal with the most serious crimes, and may tend open up the court to political influence.
 
These arguments are the subject of wide-ranging and sometimes critical discussion among Chinese jurists and legal scholars.⁴⁸ Lu and Wang have presented detailed argument challenging the currency and cogency of each. They conclude that. '[i]nstead of opposing the ICC, China should participate in order to protect its national interests'.⁴⁹

Rather than deal with each of the arguments against China's reasons, it might therefore be useful to focus on those where its national self-interest is a clear motivation:

- The purpose of the ICC is to punish 'crimes against humanity'. There is no reason beyond the political why such a motive should be limited in its impact and direction to situations of war. 'Crimes against humanity' do not take on their abhorrent characteristics from the theatre of war alone. The definition of war in international law may not cover those contexts of armed conflict internal to state sovereignty and transition, where in many of these atrocities are committed which are exactly what the ICC was set up to prosecute.

- The doctrine of complementarity protects those states with the capacity properly to investigate and prosecute crimes that otherwise come to the attention of the ICC. This is the challenge. Judicial sovereignty is not an essential casualty of the limited submission of autonomy required by ICC membership: only where the states concerned have inadequate domestic criminal justice responses.

- It is only state parties to the Rome Statute that will be involved in the discussions determining the definition of crimes of aggression. a Candidates for positions of judges and prosecutors with the court can only be drawn from state parties.

V. Procedural Traditions for International
Criminal Law----China's Place?

 In discussing the influences behind the development of international criminal law Martinez identifies:

 (1)     International humanitarian law and the laws of war
 (2)     International human rights law
 (3)     Domestic (national) criminal law and procedural traditions; and
 (4)     Trans-national and regional justice.

In her own words:

What we have ended up with are people coming from these different backgrounds, bringing with them different ideas about the role of law in protecting human rights. For example, criminal law is concerned with protecting the defendant's rights and with individual guilt. International human rights law, on the other­ hand, is very victim focused ... in contrast to the rule of lenity of criminal law, where you're going to construe prohibitions narrowly so that you're not catching people unawares as defendants, in human rights law the corresponding interpretative canon is to interpret human rights more expansively to protect the rights of individuals. In international criminal law you can see the confluence of these two strands. Sometimes they move together in a positive direction, and other times there is tension.⁵⁰

The development of international criminal law and the procedural jurisprudence on which it relies is steeped in the compromise of the major legal traditions. None of le criminal procedural traditions remains 'pure' as a consequence of modernisation nd colonialism. Hybridity is the catchword for procedural development in domestic criminal justice. As such, hybrid traditions should be the drivers of institutional and procedural international criminal justice. As such, international criminal law and its procedures, if they are truly to reflect a mix of major national traditions, must exhibit le tensions inherent in the hybridisation phenomenon.

On tensions in procedural foundations, Zhang observes:

The Chinese Crirninal justice system is very different from western justice systems. Influenced by   Confucian communitarian⁵¹ ideology and communist philosophy, mass organisations at the grassroots level play a very important role in crime control.⁵² Mediation committees and bang jiao groups exist in nearly every local community to deal with minor deviancies, resolve conflicts, and rehabilitate juvenile delinquents and released offenders. While the formal criminal justice system is used for more serious offenders, mass participation in conflict resolution and crime prevention is an integral part of the Chinese criminal justice system.⁵³