Justice is a basic tenet for all legal systems, as the ultimate goals of the rule of law are to uphold and restore justice and to correct and punish injustice. In pursuing justice, however, social specificity and context often prove determinative in defining the notion, which is true at any communal level, either national or international. In the past twenty years, global justice has gradually become the central theme of international legal discourse, from the so-called “human rights revolution”, to global governance, the rule of law, and international criminal justice. The claim that “without justice there is no peace” apparently advocates a shift of legal emphasis. Institutional proliferation of criminal judicial organs since the early 1990s, described by some scholars as “tribunalization of global justice”,Footnote ¹ has taken the centre stage of international law development, focusing primarily on retributive justice.

It may be recalled that the justice theme arose in the wake of the Cold War; a time when the international community was painfully confronted with reoccurrences of the most serious and massive violations of human rights that took place during regional and internal strife and armed conflicts. To hold the perpetrators, especially those in charge of state powers, personally accountable under international law for such crimes received popular support as a way to uphold justice. Creation of ad hoc criminal tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the subsequent adoption of the Roman Statute that set up the International Criminal Court (ICC), gave people the aspiration to put an end to impunity. However, this progression of human rights in many aspects challenges some existing international norms and principles, such as, inter alia, the principle of sovereignty, jurisdictional immunity, state responsibility, and the principle of aut dedere aut judicare. The justice theme reveals the resurgence of legal idealism and naturalism, in opposition to realism and positivism.

It is true that prosecution and punishment of the most serious crimes in international criminal tribunals have played a positive role in the restoration of peace and justice in the relevant regions. More importantly, the development of international criminal law has strengthened international efforts in preventing and punishing international crimes. At the same time, it should also be admitted that such efforts still face great challenge in the politics of international law. The issue is more substantive than institutional. At the heart of this challenge lie several questions related to global justice, including: how to clearly define the concepts “global” and “justice”; what kind of justice can be globally identified; and how justice should be upheld globally.

The year 2012 marked the tenth anniversary of the establishment of the ICC. Noticeably, apart from the Assembly of the State Parties, various review conferences were convened to reflect on the work of the judicial organ.Footnote ² As a significant step in the field of international criminal law for global justice, the ICC's first decade offers much food for thought on the fight against impunity. On this occasion, I wish to single out two regions as a comparison—Africa and Asia, to discuss some aspects relating to global justice.

Currently there are 121 state parties to the Roman Statute, out of which 33 states are from Africa while only 12 are from Asia. As far as Africa is concerned, we must admit that African countries have been the avant-garde in the field of human rights, for historically the continent witnessed the most horrendous, massive, and systematic violations of human rights under the slave trade, colonial rule, and apartheid.Footnote ³ For many parts of the African continent, their people have been victims of war crimes, genocide, and crimes against humanity during the post-Cold War period. Africa's high expectations in the international justice systems did not come as a surprise. It is well known, however, that thus far all the cases currently on the ICC's docket are from Africa.Footnote ⁴ This situation has been examined first of all by African states themselves.

In dealing with armed conflict situations, the issue that states frequently face is the quest for a speedy truce and the restoration of peace for the society, rather than the immediate prosecution of war criminals. In African practice, traditional approaches were often to give amnesties to end, or at the end of, protracted bloody conflicts, such as in Nigeria (after the civil war), Mozambique (in the late 1970s), South Africa (after apartheid), Angola (after the death of Jonas Savimbi in 2002), and Southern Sudan (after the forty-year civil war).Footnote ⁵ These practices did not happen incidentally. The more recent example of the Northern Uganda situation shows once again that its referral to the ICC has created tensions between justice and reconciliation. Reflecting on the aim to end impunity, one African scholar comments that the ICC Statute does not make allowance for repentance and reconciliation as ends, “arguably because a global justice system that aims to try crimes of war and crimes against humanity has its ideas of justice informed by cultures other than our (African) own”.Footnote ⁶ This cultural perception has direct relevance to the notion of “global”.

It is not surprising that African jurists wonder under what circumstances an international criminal court should decline to exercise jurisdiction if doing so would undermine an amnesty that might end a brutal armed conflict. For societies where it is generally accepted that reconciliation and the restoration of social harmony are more important than punishment, how can we accommodate alternative models of justice that are likely to facilitate the restoration of peace while ensuring that grave crimes do not go unpunished? How can we ensure that the international justice system delivers the peace, security, and justice that the populations on the ground yearn for, and that this process not be used by various interests for selfish geopolitical and economic interests?Footnote ⁷ These issues concern both corrective justice and retributive justice.

What I wish to underscore is that culturally the quest for peace is deeply embedded in all civilizations as the primary value, not only in Africa. Practically speaking, it is the basic condition for the guarantee of the fundamental interests and human rights of individuals.

Presumably we all accept that justice is most precious. When justice is placed in a concrete social context, however, the notion does not necessarily just mean prosecution and punishment of those responsible for alleged crimes. From the African perspective, “International justice systems must be sensitive to the needs of the population affected by strife and war and for whose benefit they are working”.Footnote ⁸ What constitutes justice has to be addressed in each specific social and cultural context. In order to enhance the effect of international criminal justice, studies have been carried out to review the practice relating to victims’ participation in criminal trials and prosecution.Footnote ⁹ These efforts, albeit constructive, still primarily focus on retributive justice.

In Africa's view, international justice should not be treated as an event but as a process that ends with the consolidation of peace and the restoration of livelihoods, human rights, and human dignity.Footnote ¹⁰ For Africa, as well as for any other developing country, the fight against impunity cannot be taken out of the context of social development, totally oblivious of the root causes of serious crimes. Such root causes are often associated with colonial history, weak governance, backward economic development, and scarcity of natural resources, which results in “a general sense of despondency among many populations that automatically devalues the dignity of the human being”.Footnote ¹¹

In envisaging its roadmap, Africa looks to the example of the European Union, as is stated:

Africa's experiences with international criminal courts in a way help to explain why most Asian countries take different approaches to global justice. As most of the audience is from the Asia-Pacific, there is no need to recall the economic development and co-operation in the region in the past decades, and the implication of such development for the realization of social justice based on the redistribution of wealth and opportunities in and among Asian countries.

For most Asian countries, their “lukewarm” attitude towards international criminal courts should not be interpreted as parochial or apathetic to the interests of the international community, or attributed to their firm position on state sovereignty.Footnote ¹³ Many of the Asian countries themselves were the victims of aggression and war crimes during World War II; they certainly attach importance to upholding justice and putting an end to impunity. As a matter of fact, the issue of historical justice continues to affect state relations in the region today. The fact that people would prefer sincere remorse and an apology from the responsible state for the crimes committed in the past, rather than bring the matter to judicial recourse for remedies, shows a similar cultural orientation to that mentioned above in Africa. In the Asian perspective, corrective justice primarily aims at the restoration of lasting peace, and at the prevention of such crimes in the future. Retributive justice constitutes only part of the process rather than representing its whole.

It should be admitted that, more than its moral calling, the justice theme has to a large extent dictated the aim, agenda, and legal construct, as well as the institutional set-up of the legal order in recent decades. The resurgence of neonaturalism challenges the established norms and principles of international law in many ways as responses to global geopolitical and socioeconomic changes. At a conference on global justice held recently in The Hague, some observations on the current approach to global justice are worth mentioning. It was stated that:

This remark certainly deserves serious reflection. On the conception of global justice, critical legal studies point out that:

For the Asia-Pacific region, our vision on global justice seems to be broader. The United Nations Charter has set up four objectives for Member States: peace and security, justice, human rights, and development. Asian efforts in socioeconomic development are aimed at the fulfilment of these common goals. Jointly, they form the basis for the promotion of global justice.

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.Footnote ¹⁶ It is absolutely important and necessary for Asian scholars to take part in its narration and conceptualization, to help shape the institutional framework, and to add their own vocabulary to the justice discourse, for the simple reason that what constitutes global justice has to be addressed on a global basis and with global participation.