W.L. Cheah | National University of Singapore (original) (raw)

Papers by W.L. Cheah

Leiden Journal of International Law, 2024

This article highlights the cross-disciplinary methodological potential of TWAIL and microhistory... more This article highlights the cross-disciplinary methodological potential of TWAIL and microhistory by studying the active and complex exercise of agency by victims in an understudied historical instance of postwar justice, namely, the Singapore 'Sook Ching' trial or Nishimura trial. This trial dealt with the arbitrary massacre of Chinese residents by the Japanese military during the Second World War. Using TWAIL and microhistory methods, this article analyses trial transcripts and archival material on the Nishimura trial, with a focus on the trial experiences of Richard Lim Chuan Hoe (prosecutor appointed by the Chinese community), Shinozaki Mamoru (former Japanese spy/prosecution witness), and Chua Choon Guan (survivor/prosecution witness). By studying the Nishimura trial as mobilisation and meaning-making opportunity, this microhistory draws attention to the exercise of social and political agency by the Chinese community under difficult postwar conditions and British colonial rule. Chinese community leaders represented the community as collectively victimised and united in the pursuit of postwar justice. However, a close analysis of trial transcripts reveals tensions within the community and the need for a more complex understanding of victimhood.

European Journal of International Law, 2017

This article critically analyses a set of war crimes trials, conducted by the British colonial au... more This article critically analyses a set of war crimes trials, conducted by the British colonial authorities in post-World War II Singapore, which dealt, among others, with the contentious issue of deserting British Indian Army soldiers. While seemingly obscure, these trials illuminate important lessons about rule of law dynamics in war crimes trials. Although 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 sp...

The Oxford Handbook of International Criminal Law

This chapter deals with the tension that exists between international criminal law and ‘culture’.... more This chapter deals with the tension that exists between international criminal law and ‘culture’. Operating in societies where the very meaning of punishment is contested, international criminal justice is often faced with a cultural challenge that endangers its legitimacy. At several levels, it exerts a marginalizing or exclusionary effect on the culturally dissimilar, while constructing certain understandings of cultural difference. The universalism of international criminal justice is hardly ever taken for granted by the actors that confront it, particularly in a context where justice itself appears to be cultural. At the same time, culture is contested, and local forms of justice may be challenged as merely reflecting certain groups’ agendas. Finally, international criminal tribunals’ encounter with audiences coming from a variety of cultures suggests a potential for confusion and misunderstanding.

Transnational Legal Theory, 2022

From 8 to 12 December 2000, the Tokyo Women's Tribunal ('TWT') convened to address the sexual ens... more 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 of 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.

Michigan Journal of International Law , 2022

The Convention for the Elimination of Discrimination Against (CEDAW) requires states to eradicate... more The Convention for the Elimination of Discrimination Against (CEDAW) requires states to eradicate root causes of injustice and will be more effectively implemented not through legislation and policy, as commonly argued, but through the judiciary. This article highlights the need to develop positive judicial obligations under CEDAW based on its comparative study of judicial decisions dealing with the abuse of female migrant domestic workers (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, it argues that criminal law courts should not only ensure the accountability and punishment of perpetrators but also ascertain and critique the laws, policies, and practices enabling MDW abuse. Courts in MDW destinations have increasingly recognized MDW vulnerabilities by discussing their social isolation, financial precarity, and dependence on employers for basic needs. However, these judicial discussions generally do not recognize the underlying causes of MDW vulnerabilities, in effect treating these vulnerabilities as predetermined and fixed rather than as constructed by existing laws, policies, and practices. Through positive and negative examples, this article demonstrates that criminal courts can and should act as transformative agents by exercising their expressive or statement-making powers. Specifically, courts should ascertain the root causes of MDW abuse, identify the necessary steps forward, target state actors responsible, and counter deep-seated prejudices by representing MDWs as dignified rights-bearing workers.

Journal of International Criminal Justice (upcoming), 2021

In my discussion, I highlight torture-related developments in Asia, a region that has received le... more In my discussion, I highlight torture-related developments in Asia, a region that has received less attention in academic discussions about the definition of torture.

Human Rights Quarterly, 2021

Gender stereotypes continue to profoundly impact criminal law adjudication despite CEDAW’s explic... more Gender stereotypes continue to profoundly impact criminal law adjudication despite CEDAW’s explicit requirement that state actors refrain from stereotyping and eradicate gender stereotypes. This comparative study of provocation jurisprudence from three Asian jurisdictions—India, Malaysia, and Singapore—employs a feminist lens to explore the negative and positive obligations of domestic criminal courts when dealing with gender stereotypes pursuant to CEDAW’s transformative commitments. It argues that these courts should not only avoid gender stereotypes but also actively contest such stereotypes in judicial decisions by employing gender-informed explanations of harm, representing women in a dignified and rights-based manner, and adopting interpretations of the law that delegitimize stereotyping.

Journal of International Criminal Justice , 2019

As commentators press the ICC and other internationalized criminal courts to adopt a more sensiti... more 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.

Kevin Heller, Frédéric Mégret, Sarah Nouwen, Jens Ohlin and Darryl Robinson (eds), Oxford Handbook of International Criminal Law, Oxford University Press, 2020. , 2020

This chapter explores international criminal law (ICL)’s encounter of cultural difference. ICL cl... more 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.

European Journal of International Law, 2017

This article critically analyses a set of war crimes trials, conducted by the British colonial au... more This article critically analyses a set of war crimes trials, conducted by the British colonial authorities in post-World War II Singapore, which dealt, among others, with the contentious issue of deserting British Indian Army soldiers. While seemingly obscure, these trials illuminate important lessons about rule of law dynamics in war crimes trials. Although 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 backup 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'.

Leiden Journal of International Law (accepted for publication)

Between 1945 and 1949, the British military conducted a large number of war crimes trials in Euro... more Between 1945 and 1949, the British military conducted a large number of war crimes trials in Europe and Asia. Based on historical archival records, among other sources, this article evaluates and compares the British authorities' implementation of the 1945 Royal Warrant and war crimes trials in Europe and Asia, with a specific focus on trials organized in Germany and Singapore. By examining the British war crimes trial experience in those two jurisdictions, the article analyses factors shaping the evolution of the Royal Warrant's legal framework and trial model in different contexts. It therefore contributes to the growing historical work on post-Second World War trials and current debates among scholars of transitional justice and international criminal law on the contextual factors that impact on war crimes trials.

Asian Journal of International Law

By studying British Indian Army (BIA) desertions during the Second World War and British post-war... more By studying British Indian Army (BIA) desertions during the Second World War and British post-war trial responses, this article explores the complicated dimensions of desertion and draws attention to the need for a more explicit and comprehensive approach to desertion in international humanitarian law. This article focuses on less known British trials dealing with desertion, namely, war crimes trials conducted by the British in Singapore. It examines how these trials dealt with contested interpretations of desertion. Drawing on lessons from these trials, this article then highlights gaps in today’s international humanitarian law framework, specifically, the need to take into account the realities of desertion, its different permutations, and the difficulties of differentiating between POWs and deserters.

Singapore Law Review, 2016

International Journal of Law in Context, 2018

After the Second World War, the British military organised 131 war crimes trials in Singapore, wh... more 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.

A detailed case study of an important post-WWII case conducted by the British in Singapore in the... more A detailed case study of an important post-WWII case conducted by the British in Singapore in the aftermath of WWII, underscoring the communication problems faced and how these call into question the trial's fairness.

This chapter is the introduction chapter of the Historical Origins of International Criminal Law ... more This chapter is the introduction chapter of the Historical Origins of International Criminal Law trilogy. It maps out the state of historical research in international criminal law, highlights new research tools, and sets out important substantive and methodological issues. It also provides summaries of chapters that appear in volume 1 of the trilogy.

Leiden Journal of International Law, 2024

This article highlights the cross-disciplinary methodological potential of TWAIL and microhistory... more This article highlights the cross-disciplinary methodological potential of TWAIL and microhistory by studying the active and complex exercise of agency by victims in an understudied historical instance of postwar justice, namely, the Singapore 'Sook Ching' trial or Nishimura trial. This trial dealt with the arbitrary massacre of Chinese residents by the Japanese military during the Second World War. Using TWAIL and microhistory methods, this article analyses trial transcripts and archival material on the Nishimura trial, with a focus on the trial experiences of Richard Lim Chuan Hoe (prosecutor appointed by the Chinese community), Shinozaki Mamoru (former Japanese spy/prosecution witness), and Chua Choon Guan (survivor/prosecution witness). By studying the Nishimura trial as mobilisation and meaning-making opportunity, this microhistory draws attention to the exercise of social and political agency by the Chinese community under difficult postwar conditions and British colonial rule. Chinese community leaders represented the community as collectively victimised and united in the pursuit of postwar justice. However, a close analysis of trial transcripts reveals tensions within the community and the need for a more complex understanding of victimhood.

European Journal of International Law, 2017

This article critically analyses a set of war crimes trials, conducted by the British colonial au... more This article critically analyses a set of war crimes trials, conducted by the British colonial authorities in post-World War II Singapore, which dealt, among others, with the contentious issue of deserting British Indian Army soldiers. While seemingly obscure, these trials illuminate important lessons about rule of law dynamics in war crimes trials. Although 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 sp...

The Oxford Handbook of International Criminal Law

This chapter deals with the tension that exists between international criminal law and ‘culture’.... more This chapter deals with the tension that exists between international criminal law and ‘culture’. Operating in societies where the very meaning of punishment is contested, international criminal justice is often faced with a cultural challenge that endangers its legitimacy. At several levels, it exerts a marginalizing or exclusionary effect on the culturally dissimilar, while constructing certain understandings of cultural difference. The universalism of international criminal justice is hardly ever taken for granted by the actors that confront it, particularly in a context where justice itself appears to be cultural. At the same time, culture is contested, and local forms of justice may be challenged as merely reflecting certain groups’ agendas. Finally, international criminal tribunals’ encounter with audiences coming from a variety of cultures suggests a potential for confusion and misunderstanding.

Transnational Legal Theory, 2022

From 8 to 12 December 2000, the Tokyo Women's Tribunal ('TWT') convened to address the sexual ens... more 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 of 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.

Michigan Journal of International Law , 2022

The Convention for the Elimination of Discrimination Against (CEDAW) requires states to eradicate... more The Convention for the Elimination of Discrimination Against (CEDAW) requires states to eradicate root causes of injustice and will be more effectively implemented not through legislation and policy, as commonly argued, but through the judiciary. This article highlights the need to develop positive judicial obligations under CEDAW based on its comparative study of judicial decisions dealing with the abuse of female migrant domestic workers (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, it argues that criminal law courts should not only ensure the accountability and punishment of perpetrators but also ascertain and critique the laws, policies, and practices enabling MDW abuse. Courts in MDW destinations have increasingly recognized MDW vulnerabilities by discussing their social isolation, financial precarity, and dependence on employers for basic needs. However, these judicial discussions generally do not recognize the underlying causes of MDW vulnerabilities, in effect treating these vulnerabilities as predetermined and fixed rather than as constructed by existing laws, policies, and practices. Through positive and negative examples, this article demonstrates that criminal courts can and should act as transformative agents by exercising their expressive or statement-making powers. Specifically, courts should ascertain the root causes of MDW abuse, identify the necessary steps forward, target state actors responsible, and counter deep-seated prejudices by representing MDWs as dignified rights-bearing workers.

Journal of International Criminal Justice (upcoming), 2021

In my discussion, I highlight torture-related developments in Asia, a region that has received le... more In my discussion, I highlight torture-related developments in Asia, a region that has received less attention in academic discussions about the definition of torture.

Human Rights Quarterly, 2021

Gender stereotypes continue to profoundly impact criminal law adjudication despite CEDAW’s explic... more Gender stereotypes continue to profoundly impact criminal law adjudication despite CEDAW’s explicit requirement that state actors refrain from stereotyping and eradicate gender stereotypes. This comparative study of provocation jurisprudence from three Asian jurisdictions—India, Malaysia, and Singapore—employs a feminist lens to explore the negative and positive obligations of domestic criminal courts when dealing with gender stereotypes pursuant to CEDAW’s transformative commitments. It argues that these courts should not only avoid gender stereotypes but also actively contest such stereotypes in judicial decisions by employing gender-informed explanations of harm, representing women in a dignified and rights-based manner, and adopting interpretations of the law that delegitimize stereotyping.

Journal of International Criminal Justice , 2019

As commentators press the ICC and other internationalized criminal courts to adopt a more sensiti... more 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.

Kevin Heller, Frédéric Mégret, Sarah Nouwen, Jens Ohlin and Darryl Robinson (eds), Oxford Handbook of International Criminal Law, Oxford University Press, 2020. , 2020

This chapter explores international criminal law (ICL)’s encounter of cultural difference. ICL cl... more 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.

European Journal of International Law, 2017

This article critically analyses a set of war crimes trials, conducted by the British colonial au... more This article critically analyses a set of war crimes trials, conducted by the British colonial authorities in post-World War II Singapore, which dealt, among others, with the contentious issue of deserting British Indian Army soldiers. While seemingly obscure, these trials illuminate important lessons about rule of law dynamics in war crimes trials. Although 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 backup 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'.

Leiden Journal of International Law (accepted for publication)

Between 1945 and 1949, the British military conducted a large number of war crimes trials in Euro... more Between 1945 and 1949, the British military conducted a large number of war crimes trials in Europe and Asia. Based on historical archival records, among other sources, this article evaluates and compares the British authorities' implementation of the 1945 Royal Warrant and war crimes trials in Europe and Asia, with a specific focus on trials organized in Germany and Singapore. By examining the British war crimes trial experience in those two jurisdictions, the article analyses factors shaping the evolution of the Royal Warrant's legal framework and trial model in different contexts. It therefore contributes to the growing historical work on post-Second World War trials and current debates among scholars of transitional justice and international criminal law on the contextual factors that impact on war crimes trials.

Asian Journal of International Law

By studying British Indian Army (BIA) desertions during the Second World War and British post-war... more By studying British Indian Army (BIA) desertions during the Second World War and British post-war trial responses, this article explores the complicated dimensions of desertion and draws attention to the need for a more explicit and comprehensive approach to desertion in international humanitarian law. This article focuses on less known British trials dealing with desertion, namely, war crimes trials conducted by the British in Singapore. It examines how these trials dealt with contested interpretations of desertion. Drawing on lessons from these trials, this article then highlights gaps in today’s international humanitarian law framework, specifically, the need to take into account the realities of desertion, its different permutations, and the difficulties of differentiating between POWs and deserters.

Singapore Law Review, 2016

International Journal of Law in Context, 2018

After the Second World War, the British military organised 131 war crimes trials in Singapore, wh... more 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.

A detailed case study of an important post-WWII case conducted by the British in Singapore in the... more A detailed case study of an important post-WWII case conducted by the British in Singapore in the aftermath of WWII, underscoring the communication problems faced and how these call into question the trial's fairness.

This chapter is the introduction chapter of the Historical Origins of International Criminal Law ... more This chapter is the introduction chapter of the Historical Origins of International Criminal Law trilogy. It maps out the state of historical research in international criminal law, highlights new research tools, and sets out important substantive and methodological issues. It also provides summaries of chapters that appear in volume 1 of the trilogy.