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.

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.