It’s time to censure ICC on international justice

By Charles Kanjama

In the history of humanity, seldom has there been a thinker as great as Thomas Aquinas (1225–1274). In his turn, Thomas expressed immense admiration for the Greek thinker Aristotle (384BC–322BC), whom he referred to simply as "the Philosopher."

Aristotle wrote on diverse topics, including logic, physics, metaphysics, ethics, and politics. His towering influence earned him the title, ‘the father of western thought’. Aristotle was especially influential in the study of the first causes and principles of things, or metaphysics.

His central idea was developed to resolve Plato’s quagmire on the essence of things. Aristotle spoke of the dual composition of reality from matter (the ultimate stuff of which all substances are made, in Greek ‘hyle’) and form (the ‘essence’ of a thing, in Greek ‘morphe’). Aristotle’s theory of dual composition of all reality is called hylomorphism.

Aristotle’s great truth is that the world mirrors man’s dual body-soul composition. The metaphysical structure of being: matter-form, act of being (‘esse’)-essence, act-potency and substance-accident involves duality. So we can say that the world was made in man’s image and likeness.

This duality is not an opposition, contrary to Manichean good-evil dualism, but a composition. Even the Son-God on becoming man adopted this duality through the mystery of the hypostatic union.

Aristotle’s dual composition is the secret to understand philosophy, and even science. It is the concept of being-becoming that in science appears as force-motion in Newtonian Physics, matter-energy or space-time in relativity, particle-wave in light, potential-current in electricity, and field-motion in electromagnetism. All science shows this duality, including Planck’s formula, string theory, and quantum mechanics.

Aristotle’s hylomorphic composition hints at a startling truth: that the real centre of the universe is man, who orders the universe according to his knowledge and power, and for whose benefit the universe was created and ordered. Justice, the virtue that glues society together, can likewise not be understood without acknowledging its intrinsic duality.

Justice is a state and an act, an individual virtue, and a societal quality. True justice is procedural and substantive; it must equally uphold individual rights and the common good. The two lungs of justice are criminal and civil law, or public and private law. If justice were wholesome, it must be retributive and restorative, personal and societal. Justice must embrace victim and suspect, right and duty.

As with Chinese yin-yang dualism, the two components of justice are inseparable. Justice means the will to give to everyone his or her due. A judicial system that is premised on the will to give only some their due ends up giving justice to none.

English common law is so right precisely because its adversarial system mirrors man’s dual composition. Also, the judge only administers justice in an individual case by applying general principles. A great judgement does not just establish rights and obligations for the litigants; it derives common law for everyone else. And where there is lack of uniformity, where there is selectivity, do not hope to find justice there.

This Aristotle-inspired analysis can help us expose the heart of the debate about the ICC and Africa. Can an ICC that only focuses on Africa really deliver justice in those African cases? Can a top-down focus on retribution deliver restoration? The truth is that the aspiration for international justice must be truly universal, or else it remains a sham.

If former President Charles Taylor can stand trial for war crimes, why can’t a former president of USA, China or Russia? If Congolese warlord Thomas Lubanga can stand trial at the ICC, why can’t Israeli hawks who openly threaten to bomb Iranian nuclear enrichment facilities in violation of the UN Charter?

Kenya’s Vetting Board has censured local appellate judges who failed to hold the powerful to account. The ICC needs similar censure on the world stage.

The writer is an Advocate of the High Court