Thailand Law Journal 2011 Fall Issue 2 Volume 14

VI. Alternative International Criminal
Justice⁶⁸-----the Way Forward for China?

Some might say that to suggest China's traditional (normative) communitarian system of social order provides an alternative criminal justice paradigm of restorative justice through mediation that could be usefully applied in international criminal justice involves a categorical misunderstanding. First, traditional communitarianism has changed through single party communism, then to a greater extent in modern urban China and is now even under threat in China's modernist/materialist self perception.

Second, even the traditional communitarian system privileged social order over the individual, in a way that enhanced the interests of the state, rather than, as we understand it, as a way of meeting needs of a society.

In the contemporary Chinese justice system, whether retributive or restorative, the, state is even more dominant. This means that, rather than just considering the needs of victim and perpetrator, in China their needs are always subordinate to that higher authority. Therefore, how in such a state dominated justice system it is possible to see the genuine development of an 'alternative' system of international criminal justice, remains problematic. It is analytically dangerous simply to conflate the Chinese system, where the state is pre-eminent, with the essential elements of 'restorative justice through mediation' as we know it in the West and in international law, where the individual is preeminent.

As mentioned earlier, the alternative or non-formal justice paradigms are developing a significant dimension of international criminal justice. China claims a reliance on mediation-based communitarian criminal justice delivery at a local level. Despite the fact that this mode of criminal justice usually is applied to less serious offending, it offers possible processes of participation and of judicial creativity, on which both the formal and less formal international justice paradigms could at least critically reflect.
 The restorative justice paradigm is where unique Chinese socio-legal traditions, can be accountably displayed. On this perspective and its relevance to the Chinese culture, Braithwaite laments:

What a pity that so few Western intellectuals are engaged with the possibilities for recovering, understanding, and preserving the virtues of Chinese restorative justice while studying how to check its abuses with a liberalising rule of law.⁶⁹

There have been, and still are powerful communitarian resolution practices avail able across the vast communitarian societies of China before and after the creation of the Communist Republic. These in essence represent the Confucian and communist ascription to social order above the individual and in this regard may be both critically evaluated as restorative, and yet criticised as outside the individualised rights environment of international human rights law, as well as conventional due process criminal procedure. Braithwaite notes that while the traditions of mediation have survived translation into the 'mass line' strategies of Maoist communism, the dangerous patriarchal and hierarchic communitarianism of Confucian social order also has prevailed. Does this have to be so? Is it not possible to maximise the humanitarian and harmonising potentials of bang-jiao where real reintegration replaces stigmatizing shaming, as mass mediation takes the place of formal punishment?

Another important consequence of critically interrogating Chinese communitarian traditions in contemporary criminal justice is the consequent reconfiguration of the rights debate. As noticed earlier, Chinese criminal justice has been long denigrated for failing to protect the individual rights of offenders in particular. As with international criminal justice, however, this concentration on the individual tends to diminish the other significant rights consideration in criminal justice, which restorative models re-emphasise. Collective or communitarian rights considerations, important in Chinese mediation environments are also essential (if undervalued) in the confirmation of criminal justice internationally. The Chinese experience in valuing to even a diminishing degree the rights of the community might add important understandings to victim interests in international criminal justice.
Zhong and Broadhurst argue that Chinese communitarian crime prevention has a rich tradition.⁷⁰In many respects it is the safety and social harmony of the neighbourhood which has motivated successful community crime prevention and social order programmes along with any consideration of victim protection or offender punishment. The crucial features of these programmes are their community organizational dimensions, the safety measures they incorporate (in collaboration with state organs), and their tendency to 'civilise' communities through moral education, the promotion of harmonious relationships, building community culture, and the purification of the environment.

Yet as is the case with so many societies experiencing rapid and radical socioe-conomic change, the nature of Chinese urban communities is fast changing. The traditional bonds which join community sentiment around the household and the family are strained through the itinerant migration which rages as a consequence of economic transition. Crime and the fear of crime accompany these changes. The conventional communitarian controls which were once sufficient to ensure social harmony and keep crime in check are as much at risk as are the communities they support, and the positive social consequences which they could claim. In this respect, the potential for the Chinese experience to inform the communitarian dimensions of international criminal justice goes beyond modelling or cultural convergence. The threats 3 communitarian control at work in China today, their consequences for the transformation of community crime control, and the effective measures to minimise their negative intrusion gives a critical case study from which much can be drawn. Criminal justice procedures in all contemporary traditions are a progress to statist control, in that regard even hybrid procedures in transition stand opposed to communitarian alternatives. The re-introduction of a communitarian commitment into criminal justice local or global must be mindful of the subversion it will face from more formalist institutional and process forms. This is particularly so, when the legal profession as a unique investment in, and management of more formalist criminal justice.

For cornmunitarianism to offer more than a didactic possibility from the critical experience of Chinese justice and social order (traditional or current) the Chinese need to rediscover, re-invigorate and institutionalise communitarian practice. In the face of a more individualised constitutionalised legality, and traditional social and community bonds under threat, this is a challenge for China as much as it is for international criminal justice. To take 'Chinese cornrnunitarianism', once institutionalised and tested, beyond a fine ideal for international criminal justice requires a critical re-evaluation of indigenous justice removed to the urban China of today.⁷¹ With the Chinese involvement in international criminal justice being passive, reactive and regressive, there may be potentials to influence procedural development bat the nature of that influence beyond a declaratory frame, remains moot.
 
VII. Integrating Hybrid Traditions⁷²

The eventual and inescapable influence of Asian jurisdictions and their interpretations of social order and communitarian rights will draw the examination of developing international criminal justice into a wider cultural and political perspective. A consequence will be the invigoration of compatible aspirations for international criminal law and its development.

It is the argument of this paper that unique procedural, and rights-based opportunities (and reflective challenges) appear in some of the hybrid criminal justice traditions of Asia. However, this influence has been largely lost to date by the reluctance of some of those traditions to engage with the ICC and thereby the development of a global criminal jurisprudence.⁷³ To swing this around, politics in Asia will need to address:

 -  the political and economic value in engaging with the ICC;
 - the opportunity to assert influence while world superpowers are ambivalent about ICC;
 - the importance of a richer mix of criminal justice procedural traditions in international criminal justice
 - the significance for the development of domestic criminal justice through engagement with international criminal justice; and thereby
 - the involvement in global governance through new conceptions of 'global community".
 
Such engagement is pursued radically by Asian states when it comes to regional politics and international economic order. China is playing a powerful role in regional and international relations. As with China's eventual entry into GATT and the WTO, it is argued that a closer involvement in international criminal justice is matter of advancing rather than risking national interest through more influential positioning within global governance trends. Such a move would benefit China on a number of levels:

 - An important role for the ICC is to promote the improvement of domestic judicial systems. As a consequence of the new constitutional legality and its ascription to the rule of law voiced through China's present Constitution, recent legislative developments in China have indicated a genuine commitment to raise the domestic institutions of justice to prominence within China's national governance framework. For instance the Organic Law of the Peoples' Courts in China is an attempt to confront the paradox of judicial independence in a one party state.⁷⁴ The new Criminal code and Criminal Procedure code, and their particular influence over the development of the legal profession in China, and the rights and responsibilities of trial participants can be nurtured through a closer association with the development of international criminal justice process.

- The ICC should not run counter to UN rights charters to which China is a signatory. Particularly with the developing jurisdiction over crimes of aggression China would be wise to take a prominent role in this emerging jurisprudence. However, beyond domestic concerns;

- China, as a developed exponent of restorative justice through mediation, and an exponent of transformed trial adjudication, can critically inform similar developmental trends in international criminal justice; and

- As a dynamic hybrid criminal procedural tradition, the Chinese experience of', criminal law and process can assist in the formulation of a truly international and responsive criminal jurisprudence. This can be achieved, without the distraction of an over-emphasis on the challenges to individual human rights in the Chinese delivery of domestic criminal justice.