Cheah W.L. (2022), “The Potential and Limits of Peoples’ Tribunals as Legal Actors: Revisiting the Tokyo Women’s Tribunal”, published in Transnational Legal Theory, Volume 13, Issue 1, pp 8-30.
From 8 to 12 December 2000, the Tokyo Women’s Tribunal (‘TWT’) convened to address the sexual enslavement of ‘comfort women’ during the Second World War. As a peoples’ tribunal organised by private citizens, the TWT’s findings are not legally binding or enforceable. Nevertheless, the tribunal’s judgment has been referenced and discussed in numerous official legal spaces. This article argues that the TWT’s conventional approach to law enhanced its legal legitimacy and facilitated its penetration into formal legal spheres. The Tribunal’s legal strategy came with certain limitations. While its proceedings and judgment strove to engage with survivors’ experiences and claims in a holistic manner, the tribunal’s ability to do so was limited by its commitment to positive law and formal procedure. Drawing on transitional and restorative justice scholarship, this article explores the extent to which the TWT addressed survivors’ relational, participatory, and transformative claims.
Cheah W.L. (2021), “CEDAW and Transformative Judicial Obligations: The ‘Vulnerable’ Migrant Domestic Worker and Root Causes of Abuse”, published in Michigan Journal of International Law, Volume 43, Issue 1, pp 129-170.
Abstract:
CEDAW’s transformative provisions, which require states to address root causes of injustice and discrimination, can be made more effective not only through legislation and policy, as commonly argued, but through the judiciary. This article highlights the need to develop the content and implementation of transformative judicial obligations under CEDAW through a comparative study of judicial decisions on the abuse of female MDWs in three key MDW destinations that are party to CEDAW—Hong Kong, Singapore, and Malaysia. By engaging with scholarship on CEDAW’s positive obligations, transformative equality, and theories of adjudication, this article argues that criminal law courts should not only ensure the accountability and punishment of perpetrators of MDW abuse, but should also ascertain and critique the laws, policies, and practices enabling such abuse. Courts in the MDW destination countries studied here have increasingly recognized MDWs’ vulnerabilities by discussing MDWs’ social isolation, financial precariousness, and dependence on employers for their basic needs. However, these judicial discussions generally have not recognized the underlying causes of MDWs’ vulnerabilities. By analyzing positive and negative examples of judicial decisions, this article demonstrates that criminal law courts can and should act as transformative agents by exercising their expressive or statement-making powers to address the causes of MDW vulnerabilities. Importantly, CEDAW requires courts to determine the root causes of MDW abuse, identify the necessary steps forward, target responsible state actors, and counter deep-seated prejudices by representing MDWs as dignified rights-bearing workers.
Cheah W.L. (2020), “Culture and International Criminal Law”, in Kevin Heller, Frédéric Mégret, Sarah Nouwen, Jens Ohlin and Darryl Robinson (eds), Oxford Handbook of International Criminal Law, Oxford University Press, 2020, pp 748-767.
Abstract:
This chapter explores international criminal law (ICL)’s encounter of cultural difference. ICL claims to apply universally applicable laws and champion universal interests. These universality claims come under challenge when ICL is implemented in varied contexts. While broad agreement exists over the general type of atrocities condemned by ICL, there continues to be disagreement or unfamiliarity about ICL’s conceptions of justice, its normative standards, as well as its underlying assumptions about human agency and responsibility. While ground-breaking research on ICL and culture has been published in recent years, there needs to be more research in this area. The overlooking or dismissal of cultural challenges undermines ICL’s operations, such as the trial’s fact-finding capabilities, and, more importantly, its legitimacy.
Cheah W.L. (2019), “Culture-Specific Evidence before Internationalized Criminal Courts: Lessons from Asian Jurisdictions”, published in Journal of International Criminal Justice, Volume 17, 2019, pp 1031-1055.
Abstract:
As commentators press the ICC and other internationalized criminal courts to adopt a more sensitive approach to culture-specific evidence when determining individual criminal responsibility, this article argues that important lessons may be obtained from Asian jurisdictions where courts have discussed and assessed such evidence. The Asian examples studied here highlight the possibilities and challenges of having court consider culture-specific evidence. By comparing judicial experiences, this article also shows that a more sensitive judicial approach to culture-specific evidence may be cultivated if attention is given not only to the cultural knowledge of judges, but also the court’s broader legal architecture, the position of the accused, and judicial identity.
Cheah W.L. (2018), “Culture and understanding in the Singapore war crimes trials (1946-1948): interpreting arguments of the defence“, published in International Journal of Law in Context (Cambridge University Press), Volume 14, Issue 1, 2018, pp 87-109.
Abstract:
After the Second World War, the British military organised 131 war crimes trials in Singapore, which served as the base for British war crimes investigations in Asia. These trials brought together diverse participants-judges and counsel from the UK, India, and other Allied countries; accused persons from Japan, Korea, and Taiwan; defence counsel from Japan; and witnesses from all over Asia. The majority of defendants in these trials did not deny their involvement in the war crimes concerned; instead, these defendants argued that their conduct was consistent with Japanese norms, beliefs and practices. This article explores trial participants’ varied and contested interpretations of the culturally influenced arguments put forward by the defence.
Cheah W.L.(2017), “The Curious Case of Singapore’s BIA Desertion Trials: War Crimes, Projects of Empire, and the Rule of law”, published in European Journal of International Law . Volume 28, Issue 4, 2017, pp 1217-1240.
Abstract:
This article critically analyses a set of war crimes trials that dealt, among others, with the contentious issue of deserting British Indian Army soldiers and were conducted by the British colonial authorities in post-Second World War Singapore. While seemingly obscure, these trials illuminate important lessons about rule of law dynamics in war crimes trials. Though these trials were intended by their organizers to facilitate the return of British colonial rule, they resulted in unexpected acquittals and conviction non-confirmations. On the one hand, by applying British military law as a back-up source of law when prosecuting ‘violations of the laws and usages of war’, the British contravened the rule of law by retrospectively subjecting the Japanese defence to unfamiliar legal standards. On the other hand, by binding themselves to a pre-existing and relatively clear source of law, the British were constrained by the rule of law even as this empowered the Japanese defence. These findings speak to broader debates on the challenges of developing international criminal law, by provocatively suggesting that, from a rule of law perspective, what is most important in a body of law is its clarity, accessibility, and comprehensiveness rather than its source or its purported ‘universality’.
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Cheah W.L.’s publications may also be found at her Academia.edu and SSRN pages.
Dr. Cheah W.L. 