Book Discussion: Introducing Taking Economic, Social and Cultural Rights Seriously in International Criminal Law

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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.

The expectation is widespread that dealing with economic, cultural or social issues in processes aimed at addressing past abuses is a departure from the original conceptions of international criminal law (and of transitional justice more broadly). I call this the ‘legal impossibility argument’: Several authors explicitly state that existing international criminal law prescribes an exclusive or at least a primary focus on civil and political rights and that this is obvious from the provisions containing the contemporary definitions of international crimes. Hence, it is often taken for granted that the international crimes set out in these key articles of the Rome Statute apply to civil and political rights violations and exclude ESCR. Such statements suggest that the hierarchical treatment of human rights in international criminal law is attributable to positive international law rather than to the interpretation and application of the law.

Yet a closer look at the potential area of overlap between ESCR violations and international crimes reveals that all four groups of war crimes, at least eight of the crimes against humanity, genocide and many offences in suppression treaties can overlap with ESCR violations.

Here are some examples of my conclusions:

Some of the very early material on international criminal law seems to indicate that abuses of socio-economic and cultural rights have always been part and parcel of the thinking on international criminal law. For instance, to Raphaël Lemkin, the driving force behind the Genocide Convention, there is a central relationship between abusive socio-economic and cultural policies and the definition of genocide and he succeeded in convincing states to include many economic, social and cultural aspects into the accepted legal definition of the crime. Arthur Greiser, a ‘model Nazi’, was convicted of crimes against humanity and war crime based on his dreadful policies against the Polish population. If we study his trial from a contemporary human rights perspective, the documents read like a primer of how international crimes can be committed by way of very seriously violating victims’ ESCR – including the right to education, food, health, housing and work and the right to take part in cultural life. Unfortunately, his trial is almost completely forgotten despite the fact that Greiser was the very first individual ever convicted in accordance with the Nuremberg Charter.

Turning to just some of the more recent examples, the Trial Chamber II of the International Criminal Court, for instance, recently recognised that the theft of household items, food or livestock can have extremely serious consequences for the daily life of survivors and can be captured by the war crime of pillage (Katanga Trial Judgment, para. 953). In situations in which the pillage is committed by individuals acting on behalf of a state, such scenarios can give rise to a war crime as well as to a violation of socio-economic rights, such as the right to food. The hindrance of humanitarian assistance, contaminating water sources and withholding essential (and available) medicine, food or water to individuals under one’s control are other very straightforward examples of conduct that can potentially constitute both ESCR violations and international crimes. The destruction of livelihoods, such as by burning victims’ homes or by ‘singling out inmates in political prisons for starvation and forced labour’ can constitute a serious deprivation of fundamental rights for the purpose of a persecution charge. Forcible population movements also frequently go hand in hand with ESCR violations, particularly forced evictions or deliberately imposed discriminatory measures in the realm of people’s access to jobs and livelihoods. In addition, many international crimes not included in the ICC Statute can also have close relationships with socioeconomic and cultural abuses – slavery-related practices or transboundary movements of hazardous waste being just two examples. In sum, the evidence shows that there is no legal justification for claiming that ESCR violations cannot be addressed by the existing mechanisms that rely on international criminal law.

The argument has important technical as well as expressive consequences not just for lawyers at criminal tribunals, but also for those working for (or with) truth commissions, commissions of inquiry, reparations programmes, NGOs, human rights institutions or others relying on frameworks related to international criminal law. The main policy recommendation based on the analysis in the book is not that ESCR-related issues should unconditionally be a focus in all situations; rather, readers are invited to consider the full extent of international criminal law and reflect on the principles and assumptions we employ when we decide which facts deserve how much attention from international criminal lawyers.

At the same time, the argument that violations of ESCR can overlap with definitions of international crimes is, of course, not without important limitations. In particular, there is a risk of raising unrealistic expectations. Many, if not most, deserving claims related to economic, social and cultural rights violations do not constitute international crimes. And even when they (arguably) do, all the limitations of international criminal law apply and the question whether courtrooms are a suitable place to grapple with past abuses should always be raised.

However, international criminal law currently occupies a central place in discussions around what should or could be done in the wake of serious human rights abuses. As long as international criminal law continues to be employed as a principal normative framework and as long as the international community adheres to the idea of the indivisibility and interdependence of human rights, it seems crucial to ensure that the potential of existing law is explored equally for civil, economic, cultural, political and social rights.

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Miroslav Baros says

March 14, 2016

This is an interesting and pretty ambitious idea: to include the so-called "second generation" human rights (with full respect to the author's suggestion that the indivisibility is harmful!) into international criminal law when their domestic protection and promotion is pretty bad and it is getting worse since 2008. Being "aspirational and progressive" in terms of acquiring a higher legal status makes it very difficult in my mind to make this argument; but good luck!

Evelyne Schmid says

March 15, 2016

Miroslav, your reaction illustrates that some of the long-refuted assumptions about economic, social and cultural rights (ESCR) continue to be made. One of these assumptions is the idea that all aspects of ESCR are inherently and always 'aspirational and progressive' (while civil and political rights would somehow have no aspirational dimensions?). In the words of Louise Arbour, this idea is really ‘an old misconception that dies hard’. I deal with this and similar assumptions in quite some detail esp. in chapter 2 and 3 of the book (or in this article if you are interested: http://ijtj.oxfordjournals.org/content/8/3/362). Also, I would respectfully caution against the use of the vocabulary of ‘generations’ of human rights (thanks for the qualifier – so-called generations!). The generational analogy simply makes no sense. The rights in both Covenants (and elsewhere) have common origins and the term ‘generation’ seems to presume the prioritisation of civil and political rights. Also, would the right to self-determination belong to ‘generation zero’ as it is contained in the first article of both Covenants?
In any event, if you don’t mind, I should thank you for providing a spontaneous illustration of an important starting point of my book, i.e. what I term the ‘legal impossibility argument’ and the corresponding and (in my view: unfortunately) far too widespread assumptions about hierarchies of human rights.

Sunčana Roksandić Vidlička says

March 16, 2016

The "legal impossibility" of adjudicating ESC rights in the international criminal law arena is a clear misconception (see e.g. Nuremberg economic trials). Unfortunately, serious economic crimes and violations of economic, social and cultural rights have often been neglected in criminal proceedings and/or reports of truth commissions that have followed economic transitions or conflicts. It is a matter of time when this will change (in the TJ filed it did already). Obviously, post-conflict state building based primarily on enhancing civil and politic rights did not prove itself to be a total success story. Moreover, in my opinion, the ICC should engage in prosecuting serious economic crimes that violate economic, social and cultural rights, especially since it was proven many times that committing those crimes perpetuates and facilitates armed conflicts.
I must add that my research also focused on the concepts of criminal responsibility for severe economic offences committed in the transitional period, as well as on establishing serious economic criminal offence as crime under international law (forthcoming 2016). Evelyn's excellent research gave me more arguments to emphasize legal and social preconditions under which serious economic offences in general may be characterized as crimes under international criminal law.
To underline, the scholarship in this filed is and should be rising. Talking about peace and security, TJ and ICJ without mentioning ESC rights and serious economic crimes just makes no sense. Even ICC’s former prosecutor called for such prosecutions to be conducted before the ICC. Addressing seriously ESCR should be "The topic" for international criminal justice arena (including ICC). It is not more a question of being aspirational or progressive, it is a necessity.

Miroslav Baros says

March 16, 2016

Evelyne
I was simply referring to the fact that social, economic and cultural rights are different in substance and their implementation and not only in the intensity of violations as somebody also noted. I also wanted to suggest that there is an incongruity in argument that, in spite of this group of rights not being equally protected even in Europe (for example in the UK there is simply no "legal" protection for "most economic, social and cultural rights" (please see: Joint Committee on Human Rights, 21st Report: http://www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/183/18305.htm) they should be included in international criminal law. So I do not have choice but to respectfully disagree that the distinction illustrates a "long-refuted assumption" as you state; you state Ms Louise Arbour in support of the claim. Conceptually speaking I agree that the generational analogy makes no sense and that any divisibility is rather harmful. But don't forget that the classification was first suggested by a politician in 1979. But it also reflected the Western states' approach to human rights with the implicit prioritisation. More recently, in its Report on Austerity Measures and Economic and Social Rights in 2013 the UN HRHC assessed the impact of austerity on those rights only; so to suggest that the issue had authoritatively been settled and the distinction "refuted" I have to reject.
As far as the "right to self-determination" is concerned (I don't really see the relevance of making reference to this right in your response, apart from probably intending to expose my misunderstanding by asking if I would categorise this right as "generation zero"!? - surely would not) that particular right would, according to the generational analogy belong to the "third generation" or "groups" rights because of which many, as you know deny the category the status of human rights. And finally, I do not use the generational analogy; as you noted I qualify it with "so-called" descriptor, but thank you for the warning!

Evelyne Schmid says

March 16, 2016

Thanks for engaging with the topic. Miroslav, my argument is not that ESCR 'should be included in international criminal law' - as Larissa van den Herik cautions, there cannot be any direct 'transplants' given that the two bodies of law are very distinct. Rather, my argument is that de lege lata, international criminal law can already engage (and has engaged) with many claims that factually relate to violations of economic, social and cultural rights.
On the other points of disagreement: In his post, Carsten Stahn makes an important point about the difficulty of the idea of dividing rights into 'groups' or categories in the first place - I will elaborate on this tomorrow in my response. happy reading!

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5 comments

Miroslav Baros says

March 14, 2016

This is an interesting and pretty ambitious idea: to include the so-called "second generation" human rights (with full respect to the author's suggestion that the indivisibility is harmful!) into international criminal law when their domestic protection and promotion is pretty bad and it is getting worse since 2008. Being "aspirational and progressive" in terms of acquiring a higher legal status makes it very difficult in my mind to make this argument; but good luck!

Evelyne Schmid says

March 15, 2016

Miroslav, your reaction illustrates that some of the long-refuted assumptions about economic, social and cultural rights (ESCR) continue to be made. One of these assumptions is the idea that all aspects of ESCR are inherently and always 'aspirational and progressive' (while civil and political rights would somehow have no aspirational dimensions?). In the words of Louise Arbour, this idea is really ‘an old misconception that dies hard’. I deal with this and similar assumptions in quite some detail esp. in chapter 2 and 3 of the book (or in this article if you are interested: http://ijtj.oxfordjournals.org/content/8/3/362). Also, I would respectfully caution against the use of the vocabulary of ‘generations’ of human rights (thanks for the qualifier – so-called generations!). The generational analogy simply makes no sense. The rights in both Covenants (and elsewhere) have common origins and the term ‘generation’ seems to presume the prioritisation of civil and political rights. Also, would the right to self-determination belong to ‘generation zero’ as it is contained in the first article of both Covenants?
In any event, if you don’t mind, I should thank you for providing a spontaneous illustration of an important starting point of my book, i.e. what I term the ‘legal impossibility argument’ and the corresponding and (in my view: unfortunately) far too widespread assumptions about hierarchies of human rights.

Sunčana Roksandić Vidlička says

March 16, 2016

The "legal impossibility" of adjudicating ESC rights in the international criminal law arena is a clear misconception (see e.g. Nuremberg economic trials). Unfortunately, serious economic crimes and violations of economic, social and cultural rights have often been neglected in criminal proceedings and/or reports of truth commissions that have followed economic transitions or conflicts. It is a matter of time when this will change (in the TJ filed it did already). Obviously, post-conflict state building based primarily on enhancing civil and politic rights did not prove itself to be a total success story. Moreover, in my opinion, the ICC should engage in prosecuting serious economic crimes that violate economic, social and cultural rights, especially since it was proven many times that committing those crimes perpetuates and facilitates armed conflicts.
I must add that my research also focused on the concepts of criminal responsibility for severe economic offences committed in the transitional period, as well as on establishing serious economic criminal offence as crime under international law (forthcoming 2016). Evelyn's excellent research gave me more arguments to emphasize legal and social preconditions under which serious economic offences in general may be characterized as crimes under international criminal law.
To underline, the scholarship in this filed is and should be rising. Talking about peace and security, TJ and ICJ without mentioning ESC rights and serious economic crimes just makes no sense. Even ICC’s former prosecutor called for such prosecutions to be conducted before the ICC. Addressing seriously ESCR should be "The topic" for international criminal justice arena (including ICC). It is not more a question of being aspirational or progressive, it is a necessity.

Miroslav Baros says

March 16, 2016

Evelyne
I was simply referring to the fact that social, economic and cultural rights are different in substance and their implementation and not only in the intensity of violations as somebody also noted. I also wanted to suggest that there is an incongruity in argument that, in spite of this group of rights not being equally protected even in Europe (for example in the UK there is simply no "legal" protection for "most economic, social and cultural rights" (please see: Joint Committee on Human Rights, 21st Report: http://www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/183/18305.htm) they should be included in international criminal law. So I do not have choice but to respectfully disagree that the distinction illustrates a "long-refuted assumption" as you state; you state Ms Louise Arbour in support of the claim. Conceptually speaking I agree that the generational analogy makes no sense and that any divisibility is rather harmful. But don't forget that the classification was first suggested by a politician in 1979. But it also reflected the Western states' approach to human rights with the implicit prioritisation. More recently, in its Report on Austerity Measures and Economic and Social Rights in 2013 the UN HRHC assessed the impact of austerity on those rights only; so to suggest that the issue had authoritatively been settled and the distinction "refuted" I have to reject.
As far as the "right to self-determination" is concerned (I don't really see the relevance of making reference to this right in your response, apart from probably intending to expose my misunderstanding by asking if I would categorise this right as "generation zero"!? - surely would not) that particular right would, according to the generational analogy belong to the "third generation" or "groups" rights because of which many, as you know deny the category the status of human rights. And finally, I do not use the generational analogy; as you noted I qualify it with "so-called" descriptor, but thank you for the warning!

Evelyne Schmid says

March 16, 2016

Thanks for engaging with the topic. Miroslav, my argument is not that ESCR 'should be included in international criminal law' - as Larissa van den Herik cautions, there cannot be any direct 'transplants' given that the two bodies of law are very distinct. Rather, my argument is that de lege lata, international criminal law can already engage (and has engaged) with many claims that factually relate to violations of economic, social and cultural rights.
On the other points of disagreement: In his post, Carsten Stahn makes an important point about the difficulty of the idea of dividing rights into 'groups' or categories in the first place - I will elaborate on this tomorrow in my response. happy reading!