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

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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.

The claim that ICL offers means and methodologies to address ESCR violations, and that it has actually done so at Nuremberg, and later in the case law of the ad hoc tribunals, the SCSL or even ICC practice, is well supported through analysis. As this, and other studies have shown, many types of ESCR violations have been addressed indirectly in charges and judgments, in particular in relation to property-related crimes (e.g., pillaging, attacks on cultural property), discrimination-based offences (e.g., persecution, genocide) or prohibited movements of persons. The more difficult question is to what extent ICL should play a greater role in relation to ESCR violations. This question requires further critical reflection. One might be tempted to conclude that part the modernity of ICL lies in the fact that it blends out artificial differences between political and civil rights and ESCR violations.

Schmid defends ICL engagement with ESCR violations based on theories of expressivism, i.e. its capacity to highlight socio-economic and cultural harm, and the idea that ICL may render the protection of ESCR more effective. This proposition contrasts with the comparatively modest number of domestic cases that engage with ESCR violations as international crimes. The picture appears to be more nuanced. In practice, the distinction between categories of violations may play a lesser role than assumed. Cynically ICL engagement is often driven by drama (i.e. the visible, dramatic or spectacular character of the violation) and the role of agents. The extent to which ICL engages with the specificity of ESCR violations varies according to different stages of the justice process. ICL pursues multiple objectives, including de-legitimizing the context of violations, enabling fair and effective investigations and prosecutions, bestowing a certain faith in the application of the law, and providing some form of redress to victims. Discourse on the protection of different types of violations is fluid and shifts over time. The interrelationship of the different types of violations (i.e.. the interdependence of infringements and their nature as a continuum) is typically stressed in the contexts, such as prevention, complementarity, treatment of contextual elements of crimes or reparative policies. Their differences may become more nuanced in crime adjudication.

Schmid argues convincingly that investigation and prosecution of ESCR violations is subject to many of the same challenges as other violations, such as such as selectivity (p. 322) and evidentiary problems (p. 327). But there may be a number of additional factors that deserve attention. The first one concerns the relationship between ESCR violations and accountability of non-state actors (p. 306).

Many contemporary conflicts or situations of atrocity violence are internal or transnational in nature and involve non-state actors. As shown (and defended by Schmid in the book, pp 86-88), ICL has continuously extended the scope of accountability of non-state actors, through its interpretation of war crimes (e.g., conflicts between armed groups). or crimes against humanity (‘capacity-based test’). This jurisprudence faces particular challenges from the perspective of ESCR violations. In human rights instruments, these violations are typically tied to obligations (‘respect’, ‘protect’ and ‘fulfill’) of the state. The Maastricht Guidelines stipulate that ‘

States are responsible for violations of economic, social and cultural rights that result from their failure to exercise due diligence in controlling the behaviour of … non-state actors’.

ICL may in some respects be more ‘progressive’ than classical human rights law. A non-state armed group might, for instance, face accountability for action, such as destruction of cultural heritage or omissions (e.g., denial of access to humanitarian assistance). Members of organized groups may be held accountable for violations of labour conditions (e.g. slavery and forced labor). But there is a deeper question how far responsibility for specific types ESCR violations (e.g. access to health, education, welfare, ‘progressive realization’) can be extended to non-state actors, based on their authority and control over persons, in the absence of the state. This is partly new territory. It poses novel normative challenges, including certain fears of normative overreach.

Additional problems arise in relation to linkage and attribution. This aspect is not treated in any great detail in the book. ICL has developed a complex set of modes of liability (e.g. Article 25 ICC Statute). In some cases, such as breach of minimum standards or obligations, responsibility may be easy to establish and individualize. But the causes of many ESCR violations (e.g., regulatory failure) are complex and linked to multiple factors. ICL is focused on the contributions of individuals to the crime. The collective dimensions of ESCR violations are difficult to capture through this individual-based framework.

More fundamentally, ICL engagement with ESCR violations may have certain distorting effects. Where ICL deals with ESCR violations specifically, it does so through the prism of certain interests (e.g., universalism, protection of ‘common’ values), labels (e.g., international crime definitions), narratives and filters (i.e., judicial processes of deconstruction and abstraction). As highlighted in certain strands of scholarship (e.g., Clarke, Mutua), these lenses do not necessarily correlate with local understandings or truths about violations. The very process of adjudicating violations as international crimes may simplify the role of communities, blend out local visions of culture or history that are key from a human rights perspective or produce internationally constructed representations of violations. For instance, attacks on cultural objects, such as in Mali (Tumbuku), may be investigated and prosecuted as a crime under ICL because of the alleged international interests, rather than their importance in the eyes of local or domestic communities. Justice intervention may thus alter the meaning of the violation, or even have certain counter-productive effects. Effective protection requires better contextualization and better strategies to ‘translate’ ESCR violations into crimes.

This leads to a second critique, namely the claim that ICL may not only be part of the solution, but part of the problem. The book is mainly centred on analysis of the normative framework. It engages less with actual practices and their paradoxes.

Over past decades, it has become evident that the exercise of international criminal justice can entail frictions or even facilitate potential violations of socio-economic rights. Courts are not only legal entities, but also social actors. They have certain behavioural (i.e. ‘do no harm’) and protective duties which are grounded in exercise of authority over persons and duties of care. In that capacity, they may actually become complicit in ESCR obligations. As Christine Chinkin has highlighted, there are deep structural inequalities, since criminal processes may offer more to ‘those who have been arrested and charged with crimes than to their victims’ (e.g.in terms of food and access to health care). Particular problems have arisen in relation to witnesses. They are often left aside after testimony. As shown in studies, ICTY witnesses faced risks of retaliation or eviction from their home community upon return. In the Rwandan context, victims and survivors of the genocide were ‘ipso facto left destitute’ and lacked adequate health support (e.g., HIV). Demand clearly exceeded the capacities for counseling and support provided by the Victims and Witnesses Unit under Rule 34. The ICC faced protection dilemmas in relation to detained witnesses from the DRC. The Trial Chamber acknowledged expressly that it is barred by Article 21 (3) to Article 21(3) of the Statute to prolong ‘custody indefinitely’.

A second concern relates to the actual engagement with ESC rights as a form of redress. Reparation to victims is an important new area where protection of social, economic and cultural rights has gained increased attention (e.g. ICC, ECCC). ICL is still in a pioneering phase. The activities of the ICC Trust Fund (under its assistance and its reparation mandate) and emerging judicial practices (see my earlier EJIL Talk post) clearly indicate greater engagement with ESCR violations (e.g., health, access to education), both in the context of individual and collective reparation. Existing practice is replete with references to needs of protection for vulnerable groups of persons. This raises new epistemic and conceptual problems. Can the ICC reliably carry out needs assessment and assess harm? Is it equipped to make choices of prioritization, and does it have adequate expertise? Does the label of victim or the focus on vulnerability not entail certain patronizing or disempowering features? As noted in research (e.g., Fletcher, Kendall and Nouwen), there is a tendency to treat victims as apolitical subjects. This contrasts with Arendt’s famous claim that ‘without membership in a political community’, those ‘to be protected by human rights are placed in a position of radical inequality’. An obsessive focus on ESCR in reparation practices may thus cause problems of its own.

These are some of the weak sides of protection. They mirror challenges that other protective agents have encountered with the increasing turn to rights in humanitarian action. They deserve further attention in future works on the relationship between ICL and ESCR violations, building on the some of the important footprints that Schmid has set.

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