EJIL: Talk!

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…

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…