International Criminal Law with Asian Characteristics?
[Columbia Journal of Asian Law]
The history of international criminal law has been, for the most part, a European tale. Though it was American insistence that prevented the summary execution of hundreds or thousands of German officers after the Second World War — an approach favoured by Churchill and seriously contemplated by Stalin — the United States subsequently backed away from serious engagement in international criminal law. Auschwitz and Nuremberg are the touchstones, with modern counterparts in Bosnia and The Hague. In the official record, the non-European experiences of international criminal law have tended to be in the form of poorer and more troubled siblings. Lack of resources has bedevilled African tribunals in Rwanda and their hybrid counterparts in Sierra Leone and elsewhere. In Asia, political tensions have been far more of a feature — whether one is considering the International Military Tribunal for the Far East or the Extraordinary Chambers in the Courts of Cambodia.
Such an account highlights the difficulties facing international tribunals, which are often burdened with unrealistic expectations of punishing the guilty, resolving societal conflicts, deterring future misconduct, and providing an authoritative history of a traumatic period. Yet that account also overlooks some of the important legal developments that have taken place outside
There is, I would submit, much to learn from closer study of the Asian experiences of international criminal law in particular. Not all of it is positive. But as my former colleague Thomas M. Franck used to say: no one is completely useless; one can always be a bad example. International criminal law “with Asian characteristics” is not quite that bad, though it offers a provocative and under-utilised lens through which to view the possibilities and limitations of this relatively new set of laws and institutions.
To that end, I first survey briefly the European history of international criminal law before considering how the notion of prosecution for international crimes developed in Asia in the international tribunals established after the war, the more recent experiments with hybrid institutions, and a few cases of domestic prosecutions.
This paper was presented at the conference “Trials for International Crimes in Asia”, organised by the Centre for Asian Legal Studies at the National University of Singapore Faculty of Law on 17-18 October 2013. The final version was published in the Columbia Journal of Asian Law (2014), vol. 27, pp. 129-164 and is available here.