Author Affiliations: Georgetown University Law Center, JD 2007; Stanford University, BA, Religious Studies, 2001. Associate, Freshfields Bruckhaus Deringer LLP, from October 2007.
目次
I. INTRODUCTION 87 II. BACKGROUND 89 A. THE ECCC 89 B. THERAVADA BUDDHISM 93 C. POPULAR OPINION IN CAMBODIA 96 III. DEFINING THE CRIME 99 A. CUSTOMARY INTERNATIONAL LAW AND THE ICC STATUTE: CRIMES AGAINST HUMANITY 99 B. COMPARISON WITH THERAVADA BUDDHISM 103 IV. THEORIES OF THE CRIME 107 A. THREE THERAVADA BUDDHIST PRINCIPLES OF CRIME 107 1. CRIMINAL ACTS ARE THE RESULT OF IGNORANCE 107 2. CRIMINAL ACTS HARM THE COMMUNITY BY VIOLATING NATURAL AND WORLDLY LAW 111 3. CRIMINAL ACTS SHOULD RESULT IN WORLDLY AND ULTIMATE PUNISHMENT 112 B. UNDERSTANDING CRIMES AGAINST HUMANITY WITHIN A BUDDHIST FRAMEWORK 114 1. RECONCILING THE CONCEPT OF "RIGHTS" WITH BUDDHIST THOUGHT 114 2. CRIMES AGAINST HUMANITY: HARMS AGAINST THE HUMAN INSTITUTION 115 3. "NO-SELF" NEED NOT PRECLUDE A TRIAL 118 V. PUNISHMENT: RATIONALE AND METHODS 119 A. THE ECCC 119 B. THERAVADA BUDDHISM 121 C. RECONCILING PUNISHMENT UNDER CRIMES AGAINST HUMANITY WITH THERAVADA BUDDHIST PRINCIPLES 122 1. THE SUBJECT OF PUNISHMENT: REHABILITATING AND UNDERSTANDING THE INDIVIDUAL CRIMINAL 123 2. THE RATIONALE FOR PUNISHMENT: LIMITING THE PROMOTION OF RETRIBUTION 124 3. THE METHOD OF PUNISHMENT: CREATING ADEQUATE SENTENCING PROCEDURES 126 VI. CONCLUSION 128
