Distinguished scholars in political economy, international economic governance, economics and law, have weighed in on how international economic agreements must be negotiated (or renegotiated). Paris School of Economics’ Thomas Piketty, Harvard Kennedy School’s Dani Rodrik, the EUI’s Marise Cremona, University of Oxford’s Paul Craig, among a whole corps of global experts, have just signed the landmark Namur Declaration of 5 December 2016. (For the full list of signatories, see here.) The Namur Declaration sets forth key propositions for any EU negotiation of trade and economic agreements (particularly those forthcoming with the United States), stating that the EU should ensure that there is mandatory: 1) respect for democratic procedures; 2) compliance with socio-economic, sanitary, and environmental legislation; and 3) guaranteed public interests in any dispute resolution mechanism.
Namur Declaration of 5 December 2016: An EU-Values Driven Path to Negotiating and Concluding Economic and Trade Agreements
The Al Mahdi Judgment and Sentence at the ICC: A Source of Cautious Optimism for International Criminal Justice
On 27 September 2016, Trial Chamber VIII of the International Criminal Court (ICC) rendered its judgment and sentence in Prosecutor vs. Ahmad Al Faqi Al Mahdi. This case deals with the destruction in Timbuktu, Mali of ten sites of historical, religious and cultural significance. Mr. Al Mahdi was charged under Article 8(2)(e)(iv) of the Rome Statute, which criminalizes ‘intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.’
The destruction of mausoleums and other buildings happened during the period of occupation of Timbuktu by the groups Ansar Dine and Al-Qaeda in the Islamic Maghreb between April 2012 and January 2013. These armed forces imposed religious and political edicts on the territory of Timbuktu and its population. They did so in a number of ways including the deployment of the morality brigade called Hesbah. Mr. Al Mahdi was appointed head of this organization due to his reputation as a religious scholar with extensive Koranic education and thorough knowledge of Islam. His task was to provide the administration with guidance on matters of religion. When consulted on the issue of destroying Timbuktu’s mausoleums – UNESCO protected sites of worship and pilgrimage – Mr. Al Mahdi expressed the opinion that most Islamic jurists agree on the prohibition of any construction over a tomb, but recommended not destroying them (para. 36). Nevertheless, after having received the instructions to proceed, he oversaw the demolition of ten sites and personally took part in the destruction of five of them.
The case is innovative and exemplary and a cause for optimism. Some of its unique aspects have been discussed here, here, here, and here. This post summarizes its main points in the light of the recent judgment. Read the rest of this entry…
Book Discussion: Taking Economic, Social and Cultural Rights Seriously in International Criminal Law: A Response to Cryer, Stahn and Van den Herik
I am grateful, first, to Robert Cryer, Carsten Stahn and Larissa Van den Herik for the thoughtfulness with which they have engaged with my book Taking Economic, Social and Cultural Rights Seriously in International Criminal Law. Such constructive engagement is a precious encouragement not only for me as a scholar but for anyone who wishes to see the largely ‘separate epistemic communities’ of international criminal lawyers and human rights lawyers join forces in attempts to explore how each field can contribute to ‘making the world a better place for people’, and where the limitations of their fields lie. Second, my thanks to the EJILTalk! editors for providing the opportunity for a continuation of the discussion beyond the book.
Before turning to individual points, I want to briefly address two key commonalities of the comments. The first one is that all three discussants accept my central contention that existing norms of ICL can de lege lata overlap with violations of ESCR. This, in and of itself, is remarkable given the suspicion with which ESCR have long been met by international lawyers. After all, and as Larissa rightly stresses in her comment and in this book chapter, there are good reasons why ICL emphasises the principle of legality. Any attempt to link ICL with ESCR will only be convincing if it successfully engages with the decade-old (mis)conceptions of ESCR as vague aspirational objectives. Otherwise, it will not overcome what I term ‘the legal impossibility argument’, i.e. the pervasive presumption that the relative lack of attention paid to ESCR in ICL can be explained because existing ICL is inherently closed to considerations of ESCR (chapter 2). All three comments mention how debunking the old myths about the legal nature of ESCR has serious theoretical and practical but yet underexplored consequences for ICL. I am thus particularly pleased – and relieved – that the book is met with comments that enquire about the potential reach and limitations of my findings but not the general idea that it is legitimate and legally possible for international criminal lawyers to consider ESCR violations as part of what ‘their’ body of law – under certain circumstances – can engage with (and has actually done so). If the book convinces readers of the possibility of overlap between international crimes and ESCR violations, and if it succeeds in setting some terms for future debates, it will have done what I wanted it to do.
The second common theme is the idea that the link between ICL and human rights law dealing with ESCR is complex. I couldn’t agree more. As all three comments observe, the book does not wish to suggest that there is a convergence between human rights law and ICL (see also Robert Cryer’s recent post here). Indeed, the book cautions against ideas of direct ‘transplantations’ and emphasises the real differences between the two bodies of law. Read the rest of this entry…
Book Discussion: Part of the Solution or Part of the Problem? International Criminal Justice and the Fragile Divide between Civil/Political and Economic, Social and Cultural Rights
Scholarship on International Criminal Justice and Economic, Social and Cultural Rights (ESCR) has moved in cycles. Over past decades, it has become topical to criticize International Criminal Law (ICL) for its alleged neglect of economic, social and cultural abuses (see e.g., Arbour’s critique). There is increasing unease with the fact that international criminal proceedings are strongly perpetrator-centred, crisis-focused and geared at symptoms, rather than treatment of root causes of conflict (e.g., poverty, land attribution, unemployment, ownership over resources etc.). International Criminal Justice has been blamed for a neglect of social justice or the creation of new injustices. These critiques have been articulated through the lens of the alleged dichotomy between civil and political rights and ESCR violations. The alleged focus on civil political rights has been seen as a weakness, if not contradiction, while increased focus on economic, social and cultural rights was branded as progress.
As Evelyne Schmid’s excellent work shows that reality is far more complex. The very claim to what extent there is a ‘bias’ towards civil and political rights deserves critical scrutiny (see also Van den Herik). Schmid’s starting point is somewhat paradoxical. She constructs major parts of the book based on ESCR violations, although the very distinction from civil and political rights remains fragile and subject to critique. Her treatment confirms the position that the differences between the two categories may ultimately lie in ‘degree’, rather than ‘in kind. Overall, she views international criminal law as part of the solution, rather than part of the problem in relation to ESCR violations. Her study shows that substantial aspects of economic, social and cultural rights (e.g., housing, food, health, water. work, education) are not only aspirational goals or ‘luxury goods’, but relevant to both context (contextual elements of crimes) and existing crime definitions, and thus open to criminal sanction.
Her findings are uplifting and challenging at the same time. While statutory law and international norms offer many possibility for interpretation and creativity to bridge alleged legal discrepancies or gaps, some of the prospects and effects of ICL engagement remain contested. I will engage with two macro issues here, namely the way in which ICL engages with ESCR violations, and some of its contradictions. Read the rest of this entry…
Evelyne Schmid’s Taking Economic, Social and Cultural Rights Seriously in International Criminal Law offers an engaging, meticulous, systematic, and comprehensive treatment of an underexplored terrain. With its revealing accounts of the socio-economic dimensions of ongoing and past conflict situations and its incisive explorations of how international criminal law (ICL) can address those, the book is responsive to calls for a vision on global justice that is more inclusive of social justice. Published in the Cambridge Studies in International and Comparative Law, the monograph sets out to correct the current neglect of socio-economic considerations by mainstream international criminal justice mechanisms. It poses pertinent questions flowing from factual situations as well as from hypothetical scenarios which are all illustrative of the actual socio-economic facets of conflict and international crime, and it weaves those real-life questions together with in-depth legal analyses making altogether a truly compelling argument. Beyond its immediate focus on socio-economic rights, this work also paves the way for the inclusion of important gender perspectives in international criminal law (as indicated on p. 34). Indeed, a greater integration of socio-economic notions in international criminal justice processes may help to transcend a too singular focus on sexual violence which, as has been argued, may obfuscate the totality of harm suffered by women in conflict situations and which may emphasize vulnerability rather than agency. The merit of Evelyne’s impressive book thus radiates beyond academia. Nonetheless, my comments are predominantly of a methodological character. They should however not be read in any way as tempering my great appreciation of the work and its author.
My essential critique concerns the book’s central hypothesis that “current definitions of international crimes (leading to criminal responsibility) can overlap with violations of ESCR (giving rise to state responsibility for internationally wrongful acts).” (p.5). According to this hypothesis, a situation of overlap is said to exist if the same factual background can at the same time be described as a violation of ESCR and as an international crime (p. 41). In my view, this hypothesis and the proposed working method may risk leading to a somewhat strabismic exercise as the reader is forced to look at one scenario through two different lenses at the same time. Moreover, I am not sure it is entirely adequate, since – even within one situation – different facts are pertinent for establishing an ESCR violation on the one hand and for proving the commission of an international crime on the other. Hence, this simultaneous focus on different facts seems to muddle the concept of “same factual background” right from the start. In addition, the chosen method straightjackets the research unnecessarily as it requires state attribution so as to construe an ESCR violation which is not always obvious in situations where armed opposition groups engage in socio-economic misbehavior (see e.g. the example given on p. 4). As I have argued elsewhere, the import of socio-economic notions in international criminal justice processes does not have to lead per se to a greater convergence between human rights law and international criminal law. In fact, structural differences between the two areas even impede direct transplantations and rather than looking for instances of direct overlap the quest should be to examine how factual socio-economic misconduct and abuses can be captured by the existing international crime repertoire and how socio-economic human rights provisions can be utilized as a source of inspiration and guidance in this exercise. And ultimately, this is indeed what Evelyne offers us in her rich and persuasive work.
The normative separation between human rights law and ICL as two distinct areas of international law is also reflected in the existence of separate epistemic communities. Relatively few scholars are bilingual in the sense that they feel at home in both communities and that they incorporate the ethos of both those areas of law in an equal manner. Similar to dynamics in debates on the IHL/HR interplay, most scholars discuss such encounters between two areas of law from the perspective or starting point of one of the respective areas. In the case of Evelyne, the human rights ethos seems to be her principal source of inspiration as attested by her multi-dimensional and mostly functional or teleological conceptualization of international criminal law which emphasizes its expressive function and more concretely by her relatively short consideration of the legality principle. Read the rest of this entry…
Book Discussion: Economic, Social, and Cultural Rights and Criminal Law, What Is, and What Should Be
It is probably the case (or perhaps I just hope that it is) that most international lawyers get into the area as they have some sense of justice, and also that those that became human rights lawyers did so on the basis that it is the role of such lawyering that it is to improve the lives of human beings. Where there are perhaps differences though, even amongst human rights lawyers, is about the best way to go about making the world a better place for people. It is probably fair to say that, at least in the West, the majority of human rights advocates focus on the Civil and Political Rights (CPR) angles on point. (p.10). As such, at least in legal scholarship on human rights, Economic, Social and Cultural Rights (ESCR) tend to be seen as the somewhat unloved step child of the ‘real’ (CPR) rights.
It is Dr Schmid’s goal to challenge this, through the specific lens of the extent to which international criminal law (ICL) already covers violations of ESCR (p.22). As such, the book deals with an area which has, at least in the West, received a level of attention that has been, historically, low (the two International Covenants of 1966 (on CPR and ESCRs) were the brainchildren of the West and the socialist/non-aligned States respectively, so perhaps there was more scholarship on ESCR in socialist States, there is certainly more attention given to them in Africa. Neither Convention would probably have gone through without the other, and as the Vienna Declaration (noted by Schmid e.g. at p.14, & 25) made clear, the generations of human rights (1999) need to be treated as indivisible and given the same level of focus.
Hence, I am automatically predisposed as a lawyer and person to this project, and the work. It should be said, at the (almost) outset that Dr Schmid has, in my view, written an excellent piece of scholarship, and one that is well researched, well written, and well thought through. Technically, it is refreshingly clear about its research questions and central contention (pp.1-2, 22)).
The book is broadly split into three parts. The first is largely conceptual, and is designed to refute what Dr Schmid terms (with great accuracy) the ‘legal impossibility’ argument, i.e. that ESCR are non-justiciable political aspirations. Indeed, the way in which the work proceeds is very well conceived on point. After all, if the contention to be responded to is that ESCR are merely aspirational, unlike the ‘hard’ CPRs that are the business of ICL, then proof that ICL covers ESCR is a strong counterargument. If decisions on criminal liability that relate to ESCR, with ICL’s strictures that come from the nullum crimen principle (noted at pp.71-3) that add to general concerns of legal certainty to which critics of ESCR make (or made)), then criminal liability is the a fortiori case against the legal impossibility argument. This is, to me, what Dr Schmid is arguing. If so, I agree. Read the rest of this entry…
Book Discussion: Introducing Taking Economic, Social and Cultural Rights Seriously in International Criminal Law
I begin with warm thanks to the editors of the blog and to the three discussants who have agreed to comment on my book.
‘Taking Economic, Social and Cultural Rights Seriously in International Criminal Law’ shows that the same factual situation can sometimes be described simultaneously as a violation of an economic, social or cultural right and as an international crime. Whilst acknowledging the limits of this overlap, I challenge the widespread belief that economic, social and cultural rights (ESCR) are not and cannot be dealt with by existing international criminal law. I argue that international crimes overlapping with violations of economic, social and cultural rights deserve to be taken seriously, for much the same reasons as other international crimes.
In 2006, Louise Arbour, then-UN High Commissioner for Human Rights, delivered an important speech and asserted that efforts to address past atrocities display a bias towards civil and political rights. She criticised the way these efforts exclude considerations of ESCR and are ‘predicated on accountability for a small set of past abuses of civil and political rights’. Arbour argued that this neglect was symptomatic of the fact that ESCR continue to be mistakenly seen ‘not as entitlements but merely as aspirational goals whose achievement no one can be held accountable for’. In response to this situation, Arbour issued a call for action, including a specific call for further research to explore ‘the use of statutes of existing international and national courts to adjudicate economic, social, and cultural violations as international crimes’. Almost ten years later, the debate on questions of economic and social (and sometimes cultural) dimensions of what is often referred to as ‘transitional justice’ has clearly grown in size and in contestation (as outlined here with Aoife Nolan or by Barrie Sander here). As part of this evolution and in recognition of the fact that egregious violations of economic, social and cultural rights do occur, the Secretary-General of the United Nations emphasises that ‘[i]nvestigating and prosecuting crimes under national or international law where the conduct involves violations of economic, social and cultural rights as well as civil and political rights’ is supported by the UN. Moreover, there is a fairly broad consensus today that many aspects of ESCR do not differ from civil and political rights as much as may traditionally have been assumed.
Yet, despite increasing calls for more attention to socioeconomic and cultural abuses, international criminal lawyers have generally not (yet) responded. Most contemporary international criminal lawyers dismiss the legal feasibility of addressing ESCR violations within the framework of existing international criminal law. They instead relegate ESCR abuses to the background, as if they were significant only for the context they provide to other serious crimes. It is in this context that I present a systematic assessment of the relevance of ESCR in relation to the legal elements of existing definitions of international crimes. Read the rest of this entry…
Discussion of Evelyne Schmid’s Taking Economic, Social and Cultural Rights Seriously in International Criminal Law
This week we will be hosting a discussion of Evelyne Schmid‘s book Taking Economic, Social and Cultural Rights Seriously in International Criminal Law. Schmid is a post-doctoral researcher and lecturer at the University of Basel. She was previously a lecturer for international and European law at Bangor University (Wales, UK) and acted as the project coordinator for the International Criminal Court’s Legal Tools Project at TRIAL in Geneva. She holds degrees from the Graduate Institute of International and Development Studies (IHEID) in Geneva and from the Fletcher School of Law and Diplomacy. Her book, to be issued in paperback later this year, was awarded the Christiane-Rajewsky award of the German German Association for Peace and Conflict Studies. The book will be subjected to careful scrutiny this week by Robert Cryer, Carsten Stahn and Larissa Van den Herik. We are grateful to all of the participants for agreeing to have this discussion here.
The Danish Parliament recently passed a controversial amendment to the Aliens Act (Bill no. 87) giving police the power to search and confiscate the property of asylum seekers to contribute to expenses associated with their stay in Denmark (BBC). First proposed on 10 December 2015, the bill quickly made international headlines (BBC, Washington Post).
Although the confiscation of asylum seekers’ assets probably violates several human rights, so far the implementation of similar laws in other countries does not seem to have lead to complaints before the European Court of Human Rights (ECtHR). This post provides a short analysis of the recent amendment to the Danish Aliens Act, focusing on its implications under the European Convention on Human Rights (ECHR).
Bill No. 87
Bill no. 87 had its first reading in the Danish Parliament on 13 January 2016. It was rapidly passed into law with a sizable majority (81/27) on 26 January 2016. The bill amends the Danish Aliens Act (Udlændingeloven), bestowing new powers upon the police concerning the seizing of assets of asylum seekers. Even before the amendment, the Aliens Act already stated that asylum seekers could be required to contribute to expenses associated with their stay. The law, however, only allowed asylum seekers to be charged for 90 days and, to our knowledge, it was never enforced. Danish police also had the power to search asylum seekers, in order to find items or documents that could be of importance when processing asylum claims. But Danish police were not allowed to confiscate valuables during such searches. The recent amendment to the law has bestowed this power upon the police and removed existing time limitations.
The past five years have shown a categorical disregard for the human rights of the people of Greece by international creditors. We have witnessed a disregard by states, including notably eurozone states, as well as by European institutions and the IMF, of their human rights obligations when crafting conditionalities. There is a long list of deplorable developments that this European catastrophe has exposed (the catastrophe is Europe’s even if the resulting harms at this point impact Greece) including coercion in the negotiation and conclusion of agreements, ongoing attempts at regime change, and the hollowing out of national democracy (among other examples, the statement of the Euro Summit of 12 July requires Greece ‘to consult and agree with the Institutions on all draft legislation in relevant areas … before submitting it … to Parliament ’). There are many other indefensible developments, including the enactment of extreme neoliberal policies relentlessly challenged by economists on their own terms, for taking the wrong approach to promoting growth and investment. Under the conditionalities set out in the Memorandum of Understanding (MoU) of 11 August 2015 for receipt of the third bailout, court rulings that may require the reversal of spending cuts – for example where social rights violations are found – are framed as ‘fiscal risks’, and the MoU requires a commitment from the Greek government ‘to take offsetting measures as needed to meet the fiscal targets’. Greece has suffered years of recession under the Troika’s austerity plans of 2010 and 2012 accompanied by widespread social malaise. In this new phase, we are also seeing all branches of government that might interfere with the creditors plans rendered ineffectual in breach of the most fundamental requirements of democracy and the rule of law.
In the past five years – the Troika years – Greece has seen budget cuts that have been followed by a 200% rise in the incidence of HIV/AIDS, the return of mother-to-child transmission of HIV (health cuts have meant routine screens are no longer conducted on pregnant women), the return of malaria, drastic labour market reforms, a rise in unemployment, especially among the young and women, and violations of the right to social security. Even an IMF Research Paper of 2013 challenged austerity in finding that ‘fiscal consolidation [austerity] typically raises income inequality, raises long-term unemployment and lowers the share of wage income’. It is thus deeply disingenuous to see in the latest MoU the statement that ‘The economic crisis has had an unprecedented impact on social welfare’. It is the response to the economic crisis that has crushed the people of Greece and brought the new government – elected on an anti-austerity platform – to its knees. What we are seeing is a total disregard for the political rights of the people of Greece not to mention their right to any reasonable form of economic self-determination.
For today I put many of these issues aside to focus on one matter in particular: the failures of the international creditors to undertake human rights impact assessments in the area of socio-economic rights. Read the rest of this entry…