Thailand Law Journal 2011 Fall Issue 2 Volume 14

The Challenge for Asian Jurisdictions in the Development
of International Criminal Justice¹

By Mark Findlay ²

The paper reviews the different frameworks for international criminal justice in which China's influence can be measured, or should be present, looking specifically at procedural traditions on which international criminal law and its jurisprudence are said to be based. Understanding China as a transitional hybrid criminal justice model undergoing radical transformation in its justice delivery and discourse, it is argued, assists significantly in forecasting where the synthesis of international criminal procedure may be heading. Attached to a re-interpretation and critique of individualized liability is the unpacking of China's in principle commitment to communitarian rights and social protection as a foundation for its criminal justice model. How might a similar normative direction influence the diversification and 'rights' perceptions of international criminal justice? In particular, in today's China, which is experiencing a rapid and relentless reconfiguration of communitarian, identity and obligation, will collective rights commitments survive to influence the development of domestic criminal justice?

From a more formalist consideration of international criminal justice, the paper explores what 'alternative' global justice paradigms offer China, and vice versa. Speculation on the opportunities available to China in regional and international governance, through more constructive involvement with international criminal justice-is proposed against a call for a wider consideration of rights paradigms in so far as they recognise community interests as well as individual integrity. The strain between these priorities reveals how Asian states could find it more difficult to administer domestic criminal justice in accordance with the rightful demands of international conventions.

I. Introduction

International criminal justice is at a cross-roads.

With the first indictments before the International Criminal Court, the challenge is now whether the court will follow simply the legality determined through the international criminal tribunals, or develop a new jurisprudence to promote world order and a peaceful global community.

The differential emergence of international criminal justice has seen preferred and hegemonic procedural traditions exert disproportionate influence over the institutional development of formal global justice processes. Competing explanations for the origins of trial-based international criminal justice selectively emphasise either trial-based or alternative justice paradigms. Even so, it is increasingly becoming recognised that the new and legitimate constituency for international criminal justice are 'victim communities'.³ As such there is a need to transform international trial processes better to reflect legitimate victim interests.⁴ Along the way to achieving this there will be necessarily an expanded role for judicial and prosecutorial discretion to manage the greater range of non-adversarial outcomes that will characterise the transformed trial.⁵ This paper discusses briefly the procedural opportunities offered by Asian hybrid criminal justice traditions such as China and Japan where some of the central elements for the transformed international trial already have purchase. In addition, the paper reflects on the reconsideration of rights at the heart of due process in a more procedurally rich fair global trial.

The paper commences by summarising the different frameworks for international criminal justice in which China's influence can be measured, or should be present. The analysis looks specifically at procedural traditions on which inter national criminal law and its jurisprudence are said to be based. Understanding China as a transitional hybrid criminal justice model undergoing radical transformation in its justice delivery and discourse may assist significantly in forecasting where the synthesis of international criminal procedure may be heading. Attached to a re-interpretation and critique of individualised liability is the unpacking of China's in principle commitment to communitarian rights and social protection is a foundation for its criminal justice model. How might a similar normative direction influence the diversification and 'rights' perceptions of international crim­inal justice? In particular, in today's China, which is experiencing a rapid and relentless reconfiguration of communitarian identity and obligation, will collec­tive rights commitments survive to influence the development of domestic criminal justice?'

From a more formalist consideration of international criminal justice, the paper loves out to examine what the 'alternative' global justice paradigms offer China, and vice versa. This is a platform from which to speculate on the opportunities avail­able to China in regional and international governance, through more constructive involvement with international criminal justice. As with China's active role in inter­national commercial arbitration, there is potential for it to influence the development of international criminal justice beyond a formal institutional base. In some respects this perspective allows engagement with themes like adversarial justice and human rights, beyond rather narrow and irredentist normative debates around individuality, and enables some progress from constitutional legality to progressive communitarian practice.

Where the analysis moves to an examination of rights and international criminal justice we call for a wider consideration of rights paradigm1; in so far as they recognise community interests as well as individual integrity. The strain between these priorities provides insight into why certain nation states such as China find it more difficult to administer domestic criminal justice in accordance with the rightful demands of international conventions.⁶

II. Why a 'China Focus' for Developing International
Criminal Justice?

That China remains outside the constitution of the International Criminal Court (ICC) and is not yet a State Party to the Rome Statute,⁷ might challenge even the relevance of this question. The purpose of this paper is not only to argue that China is importantly positioned to influence international criminal justice in the future, but also that there are many aspects of international criminal justice (properly interpreted) where China can already have sway. To make this case it is crucial to unpack the essentials of international criminal justice in order that possible theatres of influence are more obvious. The first part of this paper is concerned with this challenge.

What remains of communitarian control frameworks still influential locally in China today,¹¹ and the normative emphasis on 'social harmony' as a primary motivator for Chinese criminal justice they could be said to complement, suggest important potential cohesions with the development of restorative and less formal international criminal justice. The possibilities presented for China to influence the development of international criminal justice from this platform, are critically evaluated.  

Intel national criminal justice is employed increasingly, often following armed struggle, as a supplementary governance strategy for state reconstruction. Central to global governance in its current configuration is the nexus between crime and risk control and security.¹² Regional and international concerns over risk and security where dominant global alliances now determine to control international terrorism are features of international criminal justice from which China, and indeed the tiger Asian economies, cannot exclude themselves.

1. This article is jointly published with Sydney Law Review (2010, vol. 32, no. 2).

2. Professor of Criminal Justice, Faculty of Law, University of Sydney; Professor of Law, Law School, Singapore Management University. The article addresses challenges both to Asian jurisdictions in a global context, and for Asian jurisdictions in influencing the development of international criminal justice. While the principal central and east Asian jurisdictions of China and Japan are the empirical locus of the paper, they represent common challenges for hybrid procedural traditions outside the European mainstream and in essential transition in the context of modernisation.