Global Justice and Global Criminal Laws: The Importance of Nyaya in the Quest for Justice after International Crimes
Tilburg Law Review 17(2) 2012
8 Pages Posted: 27 Mar 2014
One of the primary difficulties in discussing the development or emergence of global law is that the construct is used loosely and can mean different things in the eyes of different scholars. In this short contribution we will sidestep this problem by positing that a clearer understanding of global law can be found in the application of this broad idea to relevant areas of law, in which progression – at least rhetorically – towards a global legal order is underway and where the notion of contributing to global justice is explicit.
This applies in particular to our own area of expertise; that of criminal law. The developments in the past decades in the field of international criminal law have been, in many ways, spectacular. There is the definition of a special class of international crimes; genocide, war crimes and crimes against humanity; the installment of ad hoc tribunals – first for Rwanda and the former Yugoslavia (the ICTR and ICTY), followed by judicial bodies for Sierra Leone, East Timor, Lebanon and Cambodia, ultimately culminating in the establishment of the permanent International Criminal Court. The connection of international criminal law to global justice is evident in the stated key aim of holding the ‘hostis sui generis’, the enemies of all mankind, to account for their atrocities. It is also made explicit in the view of the current prosecutor of the ICC, Luis Moreno Ocampo, that the ICC seeks global justice. The latter sentiment is echoed in the work of scholars of globalization who view the materialization of international criminal law as key elements of the development towards global justice (e.g. Held, 2002).
However, the extent to which international criminal law is, in fact, contributing to global justice in the aftermath of international crimes remains to be seen. In our recent work we questioned the smooth connection between international criminal law and the perception of justice, which relies too heavily on the idea that going through the motions of westernized forms of international criminal law will automatically inculcate a sense of justice in victimized populations, while en passant contributing to the resurrection of the rule of law. In this brief contribution to the debate concerning global law we will sketch these problems in greater detail, before connecting this to more abstract notions of justice. The latter will draw heavily on Amartya Sen’s recent critique of John Rawls’ Theory of Justice, in which he employs the ancient Sanskrit notions of niti and nyaya. Finally, in conclusion, the analysis of international criminal law will be used as a base to provide more general notions about global justice and global law.
Keywords: global justice, international criminal justice, victims
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