Drawing the Epistemological Distinction Between Human Rights Law and International Criminal Justice

Thank you so much for that kind introduction, Megan. And may I begin by thanking the organizers, of course, the Cambridge International Law Journal, and of course, Thea and Laura Isvarova for having me here. Organizing conferences is no easy task, more so amidst a international crisis. I'm happy to see that the academic world keeps turning even in times of COVID, thanks to your efforts. Now, to my presentation. It is said that the fairness of any criminal justice system should not be adjudged by convictions, but by acquittals. That apathy, however, seems to be lost to many when it comes to international criminal law. Indeed, one commentator lamented that acquittals of Jean-Pierre Bemba and Backwell effectively adjudge crimes that have committed themselves. A view, which I argue in this presentation, fails to acknowledge the fine distinction between human rights on one hand and international criminal law on the other. Teleologically, the division is clear. As captured by the Nicaragua-Tadich debate, human rights law would deal with state responsibility, states, and international criminal law would deal with individuals and individual criminal liability. Now, that distinction, make no mistake, is real, but that is not to say that it is palpable. As seen in the critique earlier mentioned, it does not quell all queries. Indeed, one may ask, what makes these disciplines so different? If gross human rights violations have already been proven, shouldn't liability, therefore, be but a matter of course? Unfortunately, the answer is no. Human rights and international criminal law may be historically, substantively, and even factually entwined, yet they should not be unduly conflated. It is submitted in this presentation that the frustrations felt by members of the international community, such as that mentioned earlier, though not entirely without basis and at times painful and true, is largely a product of misexpectation. It is the failure to distinguish between criminality and criminal liability that brings heartache. This presentation attempts to draw a finer distinction by looking beyond the ratione personae, the state-individual bifurcate, and drawing what I will call the epistemological distinction of human rights and international criminal law, the standards of knowledge. Now, there's an old adage that goes, we know nothing with certainty, but everything with degree. In legal parlance, the epistemological standard, the knowledge threshold, is not factual certainty or pure truths, but moral certainty, legal truths. And what is morally permissible, well, that depends on the stakes. The higher the stakes, the higher the threshold. So take, for example, the curious Philippine case of Senator Bong Revillia, who was tried by the Sandigan Mayan, the graft court of the Philippines, for plunder. A rather familiar story in Philippine history. Revillia was ultimately acquitted of the criminal charges of plunder, but interestingly, ordered to return the sum of 124 million pesos, that's about 2.5 million dollars, to the Philippine treasurer. Strange, is it not, to hold an individual innocent when it comes to the crime, but recognize the corpus of the crime to be there, in flagrante delito. On its face, the decision seems incongruous, unfair, and perhaps flat-out wrong. But is that truly the case? Let's see what we think after hearing what one justice has to say. And I'll paraphrase here. In her dissent, Justice Estoesta in the Sandigan Mayan argues that Senator Revillia, having been made to answer for the same civil liability over the same funds as the criminal proceedings, should have been held liable, criminally liable likewise. Isn't this even stranger? Initially, one would argue that criminal liability should flow from the responsibility, lest we adjudge these crimes that have committed themselves. But neither can we accept Justice Estoesta's point, can we? Surely, civil liability may flow down from criminal liability, but rarely does the river flow upstream. But if we were to take a step back, what appears as a doctrinal paradox is in truth but a product of doctrinal distinctions. The different results were but the outcome of different rules at play. On one hand, criminal liability, subject to the high threshold of proof beyond reasonable doubt, and on the other, civil responsibility, subject to the lower threshold of substantial evidence. Criminal liability and non-punitive responsibility may be part of the same conversation, but that is not to say that they are not separate and distinct considerations. Why then does the Revillia phenomenon strike us strange? Why do we tend to confuse responsibility with criminal liability? Such is the predicament of the human rights advocate today. While grave atrocities may be proven, individual liability remains uncertain. This is of particular relevance for situations where systematic violations of human rights have been established, yet criminal processes, therefore, have not, or have perhaps only barely, commenced. Myanmar's reported genocide of the raided India, the judicially recognized war crimes in Afghanistan, and the internationally condemned crimes against humanity in the Duterte and Drug War of the Philippines. All these involve mass atrocities, duly established, yet remain pending judicial scrutiny. Certainly, international criminal law is not ignorant to these contexts, but neither can we demote international criminal law as mere human rights rhetoric, one that merely plays lip service to due process, yet has a foregone conclusion. I argue that the paradigmatic paradox can be avoided altogether by not solely relying on descriptive differences between human rights and international criminal law, the Nicaragua-Tadich distinction, but by drawing an epistemological distinction between these disciplines. The difference may begin with a shift in the rational persona from state to individual, but the difference is felt through the concomitant change in rules. We have already alluded to that code switch earlier. Individual criminal liability is subject to the higher standard of proof beyond reasonable doubt, while state responsibility is subject to a range of varying standards of evidence. The ICJ has expressed some 15 different evidentiary thresholds when it comes to states, from balancing tests to probability thresholds, to certainty standards, all depending on what was at stake, a territorial dispute or perhaps state responsibility, and, of course, influenced by the common law or civil law underpinning of the ponente. But suffice it to say, state responsibility is subject to a lower threshold than proof beyond reasonable doubt. There are other distinctions, too, between these two disciplines. We can look at the rules of interpretation. International criminal law adopts nulun cremen stricte, or nubilo prorreo, in favor of the accused, while human rights subscribes to prohominent presumptions. Quite literally in favor of the human rights bearer. However, international criminal tribunals have likewise birthed the distinction between these interpretative rules by incorporating human rights in international criminal proceedings by invoking the Vienna Convention, the law of treaties, as a primus inter baris treaty, customary international law, and through the use of Article 21.3 of the Rome Statute, which provides that the statute must be interpreted in line with human rights. The tribunals, one way or another, stands for both human rights and criminal justice, and this is what Darrell Robertson calls international criminal law's identity crisis. But more importantly, and I think this is the real game changer here, the disciplines vary in institutional bias. Unlike the state, the accused's innocence is not only a possibility, it is a time-honored, though rebuttable, presumption. While pro hominid presumptions place the burden on the state, there is no presumption of liability in international criminal law. On the contrary, the prosecutorial process is far from leveled and leans in favor of the defendant, in favor of innocence, in favor of acquittal. So in conclusion, the disappointment, I think, finds its place within the gray in-betweens of expectation and reality. Equating criminal acquittals with crimes a judge staff committed themselves ignores the legal differences, and at times, the innate disagreements between crime and culpability. The gaps betwixt context of criminality, on one hand, and criminal conduct, and the criminal mind, Actus Reus and Insrea, on the other, must still be bridged. It thus appears that the success and appreciation of international criminal law rests neither on acquittals nor convictions alone, but on the reconceptualization of international criminal tribunals qua criminal courts. The international human rights law, international criminal law divide involves not only teleological differences, but epistemological distinctions. And by shifting the fine line of divergence from the rational personae to the rule, perhaps we will be able to better make sense of this legal system that has crimes without criminals. I thank you for your time and attention, and I look forward to your questions.