Book Review: ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court

ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court, by Emma Palmer, Cambridge University Press, 2020, 325 pages, $85.00

Principles of sovereignty, related fears of international interference or selective prosecutions, a preference for domestic proceedings, the influence of other states such as the United States, and the existence of other priorities – including development and threats to stability arising from armed conflict – are all features of the debate about international criminal justice in Southeast Asia, although they may also be relevant beyond the region. (p. 237)

When I first arrived in Cambodia in 1994 to train human rights advocates to act as public defenders for the Cambodia Defenders Project, followed by a year of training judges and prosecutors (1995-1996), foreigners working at NGOs and international organizations were beating the drums of accountability – raising the prospect of bringing to trial those responsible for the atrocities that had occurred before, during, and after the Democratic Kampuchea (DK) period. The NGO industry was flourishing. It was like the wild West with experts, much like out-of-town hired guns, offering their services – much of which I would say was half-baked at best. I rarely heard local Cambodians calling for trials or justice; the primary, if not exclusive, preoccupation was having a roof over one’s head, food on the table, and schooling for the children.

Back then Cambodia was much different, though some things, as in the rule of law, have remained the same. There were only a handful of Cambodian lawyers (mainly from abroad), no bar association, a medley of applicable criminal codes and procedures, an untrained and unsophisticated judiciary (ditto for prosecutors), ethically challenged police (highly corrupt), and an exhausted yet hopeful population looking to promising days ahead.

Although human rights violations were in full bloom and the atrocities of the DK period a recent memory, international criminal justice (as in dealing with the human rights atrocities of the past) barely registered on Cambodia’s radar. Any efforts being made to bring the DK leadership to account were made almost exclusively by internationals, mainly NGOs, in gathering evidence and lobbying (for an excellent treatment of these efforts leading up to the establishment of the ECCC, see Craig Etcheson’s EXTRAORDINARY JUSTICE – Law, Politics, and the Khmer Rouge Tribunals). For the most part, however, the international community was more focused on transitioning Cambodia to a liberal democracy by holding (in my opinion, prematurely) elections, setting up civil society, and dealing with the myriad of problems that any country would face during the early phases in holistically approaching transitional justice.

Some referred to holding trials for DK atrocities as a luxury that was out of their reach and therefore pointless to demand. Cambodia was still in conflict with the Khmer Rouge during the dry seasons, while pausing during the rainy seasons. It would not be until around June 1997 that the Cambodian Government openly began talking about establishing a UN-backed tribunal to bring justice to the victims of the DK period. It would take nearly a decade before the Extraordinary Chambers in the Courts of Cambodia (ECCC) would come into existence.

Having closely followed the negotiations in establishing the ECCC and having observed the political maneuverings of the Cambodian Government (which, incidentally, remains the same), I was as surprised as many that a deal had been clinched, that the UN had agreed to the terms hammered out by Cambodia, and that Cambodia would actually allow trials to go forward – even though the ECCC would have a circumscribed personal jurisdiction. I had advocated in an article I wrote for the Phnom Penh Post that Cambodia should go the way South Africa went, with a truth and reconciliation commission, not trials. I was not convinced that Cambodia – even with the help of the UN (to which the Government harbored enormous distrust if not outright animus) – would be able or willing to hold fair trials, which, realistically, could implicate high-ranking government officials, including the Prime Minister himself. But as I came to realize years later, a truth and reconciliation process would not work – neither truth nor reconciliation would have been achieved. As for the ECCC, despite its shortcomings, on balance, it has delivered a modicum of justice, and in no small measure, contributed to the development of ICL.

Having worked and lived in Cambodia off and on for nearly three decades, having acted as defence counsel before the ECCC since 2007, having studied Cambodian modern history, having traveled the country, and having witnessed some of the major events there (such as the 1997 events; I am not convinced that it was an outright coup), I think, with some modesty, I have a pretty good handle of modern Cambodia, its political landscape, and its culture. So, when I came across Emma Palmer’s ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court, my interest was piqued. I am also interested in what others write about a country, or a situation, or an international(ized) criminal court or tribunal – of which I am familiar – when, from appearances, they seem to be parachuting into a complex environment and perhaps superficially dabbling into events or concepts that require significant time and effort to study, digest, and consider before opining.

Dr. Palmer, Lecturer at Griffith Law School, Australia, focuses on four Southeast Asian countries – Cambodia, the Philippines, Indonesia, and Myanmar. Her aim was to draw some conclusions on issues of International Criminal Law (ICL) by an “analysis of national international criminal justice laws and mechanisms, and their adoption – with reference to social sciences approaches, especially from the international relations fields.”

Applying qualitative methods and “drawing on interviews and a thematic analysis of legal, government, media, and non-governmental organizations (NGO) documents,” Dr. Palmer attempts to analyze the international criminal justice of these four countries, and in doing so, also informs on other broader questions such as local concepts of justice both in the domestic and international context, and how it is best achieved. As such, Dr. Palmer rubs against notions of “Asian Values,” which is often invoked as a way of explaining (though she does not), among other things, differences in social, political, and human rights between the Western and Eastern cultures – thus giving mainly bogus justification to what many would find as aberrant behavior.

The importance of Dr. Palmer’s study proves that not only there is no one-size-fits-all approach to dealing with impunity in this multicultural region, but there are lessons to be learned and experiences shared that may be useful elsewhere. Two lessons seem to resonate from her impressive field work:

a.  while the International Criminal Court (ICC) is unlikely to have a direct impact in the region, it may have a tempering influence on some of the illiberal and liberal democracies where the rule of law remains a fragile aspiration; and

b.  it is not a given that those seeking justice or ways of dealing with issues of ICL, are necessarily looking to solutions coming from elsewhere, such as the ICC. There may be a host of reasons why a localized approach is likely to be more acceptable and more feasible, and appreciating these reasons is essential if involved in nudging along ICL issues in a positive direction.

Of the four countries, only Cambodia and the Philippines joined the ICC. Unsurprisingly, at the first sign of potential ICC involvement in the Philippines, because of the ongoing extrajudicial killings sanctioned by President Duterte, it withdrew. I suspect Cambodia would follow suit were the ICC Prosecutor to announce that he would proceed with an investigation on the 2016 communication filed by Global Diligence concerning land grabbing and other human rights violations. Joining the ICC may have seemed like a good idea, or, cynically, was useful for continuing international funding and legitimacy, but any formal investigation that is likely to implicate high-ranking members of the Cambodian Government is a game-changer.

Dr. Emma Palmer

Dr. Palmer’s study is both fascinating and informative. It is interesting to see how in this part of the world, these four countries have pursued issues related to ICL / justice in their own way, much of which seems to be dependent on culture and existing realities on the ground. Indonesia, for instance, may have held democratic elections resulting, finally, with a reasonable progressive at the helm, but because of the historical role played by the military, pressing social, economic, and political issues, drafting legislation on dealing with past atrocities and crimes, as well as mustering the requisite political will and capital to follow through with credible trials, is virtually a non-starter. Those alternative mechanisms may still come into play by non-government sources.    

On Cambodia, which I am most familiar with (Indonesia being the least familiar), Dr. Palmer does an admirable job presenting the historical context in which the ECCC was founded. Impressive is also her analysis of the ECCC’s functioning, as well as her observations of other initiatives that have contributed to justice issues in Cambodia and efforts to deal with the atrocities committed during the DK period and beyond. Although, Cambodia’s historical, political, legal, cultural, and factual matrix is a confounding Gordian knot, Dr. Palmer cuts right through it with measured assessments and astute reasoning.

Dr. Palmer’s field work is as impressive as it is comprehensive, resulting in exceptionally interesting information and insightful analysis. While circumstances vary and analogies rarely serve as clear guides to action – especially in post-conflict nation building and transitional justice – architects crafting frameworks for justice-related mechanisms are well served by being cognizant of models that have worked reasonably well elsewhere. Here Dr. Palmer delivers. In presenting a general overview of the methods and strategies of four Southeast Asian countries, she offers not models to be emulated, but experiences based on nuanced variables that serve as exquisite examples in helping us understand the challenges and possibilities in designing justice mechanisms in the national context to deal with issues of international criminal law.

I highly recommend ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court to anyone working on issues of justice in Southeast Asia and elsewhere, and to anyone thinking about justice initiatives such as establishing a domestic international(ized) criminal tribunal or court to deal with past atrocities, such as the ECCC in Cambodia, or anyone who is of the misguided opinion that the ICC is the panacea in dealing with impunity in illiberal democracies.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

One thought on “Book Review: ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court”

  1. Interesting one.

    Unfortunately, no concrete samples or example, presented here in that post, for that baseless notion with all due respect, that there are different models for imposing accountability, outside the Western international conventional ones.

    By the way, speaking of the Philippines and withdrawal from the Rome statute:

    The prosecutor, has submitted yesterday, request for confirmation of pre trial chamber, for opening investigation into the situation in the Philippines.

    And I quote from her statement:

    “Although the withdrawal of the Philippines from the Rome Statute of the ICC took effect on 17 March 2019, as the Court has previously found in the context of the Burundi situation, the Court retains jurisdiction over crimes that are alleged to have occurred on the territory of that State during the period when it was a State Party to the Rome Statute. Moreover, these crimes are not subject to any statute of limitation.”

    Here, and links there:

    https://www.icc-cpi.int/Pages/item.aspx?name=210614-prosecutor-statement-philippines

    Thanks

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