From a Chinese perspective, a critique of recent international criminal courts

OC.indd“A Point to Meet: Justice and International Criminal Law,” just published by the Asian Journal of International Law, is worth a read, given that its author is Dr. Xue Hanqin, a longtime Chinese diplomat who since 2010 has served as a Judge on the International Court of Justice. (As posted, she and the 2 other women of the ICJ, Judges Joan E. Donoghue and Julia Sebutinde, will headline the American Society of International Law Women in International Law Interest Group luncheon on April 10.)

In the just-published article, based on a 2012 speech, Judge Xue (below right; prior posts) takes on what she calls a “resurgence of legal idealism, in opposition to realism and positivism” – a resurgence evidenced by the growth of international criminal tribunals in the last 2 decades. Toward the end she states:

xue‘Justice should be placed at the centre of international law development, although as with any other topic in the field, the issue of global justice equally involves the politics of international law.’

(Many have made this point, as did I in articles here and here.) The “politics” that Judge Xue’s essay identifies have regional emphases, positioned at some odds with international criminal justice:

► “Asian efforts in socieconomic development” (a phrasing that hearkens to the longstanding “Asian values” debate) are put forward as a “broader” “vision on global justice”; that is, broader than “global justice” defined only to include criminal accountability.

► An “African practice” of ending “bloody conflicts” by means of amnesty, rather than criminal accountability.

The issues are critical, and the references invite scrutiny:

► The former reference describes a vision prevalent not just in Asia, but pretty much anywhere transitional justice is discussed. The identification of this vision with a particular region thus intrigues.

► The latter reference likewise pretermits that the “practice” of amnesty prevailed not just in Africa, but rather worldwide, through to the late-20th-C. revival of international criminal justice mechanisms. Indeed, Article 6(5) of Additional Protocol II (1977) to the 1949 Geneva Conventions specifically contemplates amnesty. Exploration and critique of the history and reasons for movement away from that global practice would have enriched the discussion. The same is true for the essay’s treatment of the International Criminal Court and amnesty: A discussion (like that in this article by my former student, Gwen K. Young) of the potential to consider at least some amnesties, within the framework of the Rome Statute, would have been welcome.

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