Book Discussion: Taking Economic, Social and Cultural Rights Seriously in International Criminal Law: A Response to Cryer, Stahn and Van den Herik

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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.

Where the conclusions of my book raise most concern is in relation to: (1) the limitations of relying on ICL for purposes of redressing ESCR violations; and (2) some methodological paradoxes that I will describe further below.

Carsten makes a well-placed point when he writes that ICL may not only be part of the solution, but part of the problem. He cautions that ICL engagement with ESCR may have counter-productive effects that I do not engage with in great detail in the book (such as the possibility that reliance on ICL might distort the meaning of abuses in the eyes of local communities). Moreover, approaches based on ICL have opportunity costs – relying on truth commissions or domestic tribunals may be one thing, but consider the costs of international criminal proceedings and calculate, e.g., the number of meals or anthelmintic treatments that could be provided instead. As Robert Cryer and Carsten Stahn both point out, however, these limitations are not unique to attempts to relate ICL with ESCR (and I would add that Carsten’s remark on ‘the collective dimensions of ESCR violations’ should not be understood to mean that ESCR abuses are necessarily more collective or ‘structural’ than other abuses, see here).

However, as Robert Cryer notes, the book could have taken a more explicit stance on where I stand in relation to drawing the line between a useful reliance on ICL and one that potentially does more harm than good. Needless to say, this is a challenging question. My hesitation to answer it in the book is grounded, perhaps, in a belief that this is a question I cannot and should not attempt to answer as a privileged author based in Western Europe. As I accept in the book, there can be ‘good reasons to advocate against a focus on ESCR abuses in addressing legacies of massive human rights abuse in a specific situation’ (p. 323). I tend to believe that the thorny questions of when to employ approaches based on ICL and how to set priorities should ideally be answered by those more directly concerned by the abuses (although public consultations on such matters are, sadly, equally fraught with complications). I don’t think the question can be answered in the abstract and I honestly don’t have a better answer. But what I think I can contribute with the book is laying the normative groundwork to avoid any sweeping and a priori conclusions about the presumed irrelevance of ESCR considerations for criminal law approaches in situations where decisions have to (or can) be made about how to address past human rights abuses.

Andrew Clapham – to whom I am very much indebted for his advice on this project throughout the years – appropriately cautions that relating ICL and human rights violations can be problematic, as applying an ICL lens to human rights may downgrade other serious human rights violations. To my mind, this danger is real. At the same time, I believe that the recognition that ESCR violations can sometimes overlap with international crimes does not necessarily need to draw attention away from the full range of changes that need to take place in order to avoid all types of human rights violations. There doesn’t seem to be much daylight between Andrew’s words of caution, my own opposition towards presenting ICL as a panacea (e.g. p. 328-331) and the concerns raised by the three discussants. If used with caution and in complement with other – much broader – approaches, paying attention to ESCR violations in the context of ICL can send a strong signal that abuses pertaining to people’s access to food, shelter or health care are sometimes the result of unacceptable adverse human agency and issues that deserve to be put on the official transitional justice agenda. Larissa adequately characterises my approach as a case of ‘testing ICL’s expressive capacity’.

The second thematic group of comments refers to methodological considerations. All three comments in one way or another enquire about the reasons for choosing an approach that seems to ‘straightjacket the research’. Larissa points out that my methodological framework requires state attribution (to identify ESCR violations), and Carsten is, of course, correct to flag that this approach means that I am excluding much of the conduct stemming from non-state actors. Indeed, my methodological framework to demonstrate overlap between ICL and ESCR relies on the somewhat artificial fiction that a criminal lawyer and a human rights lawyer analyse the same facts (or, more precisely, the same factual background; given the non-conterminous nature of the two bodies of law, each lawyer actually looks at slightly different facts relating to the same scenario): If the criminal lawyer finds an international crime and the human rights lawyer identifies a violation of ESCR, we are in the area of overlap that the book is interested in (p. 41-45). The drawback is, as Larissa points out, ‘a somewhat strabismic exercise’ – a witty characterisation that succeeds in framing the complexity of the interaction between the two branches of law in relation to the research question.

In addition, I rely on ESCR as a category of human rights while ‘the very distinction from civil and political rights remains fragile and subject to critique’. Carsten clearly has a point in finding this starting point paradoxical. Robert Cryer adds to this that my jurisprudential approach is essentially positivist in Bentham’s descriptive sense and I moreover abstain from any considerations de lege ferenda – apart from a few cursory thoughts on p. 331. All these characterisations seem very fair, so why would I opt for methodological straightjackets and (largely) steer away from meta-juridical considerations?

The best way to explain these choices is, perhaps, by beginning to say that Robert Cryer is entirely right to point out that ‘the justiciability (in the more general sense) issue was settled some time ago, insofar as Hart identified the core and periphery exists in pretty much every law, and the same applies here’. Yet, when it comes to ESCR, unfortunately, this idea still does not seem to be fully recognised, let alone deploy what would seem to be its logical consequences for the field of ICL. When I started this project a few years ago, my impression was that even mentioning ICL and ESCR in one and the same sentence seemed at the very least somewhat extravagant to most. My starting point was the observation that the (scarce) literature on the relationship between ICL and ESCR almost unanimously assumed that ICL was simply and clearly focused on civil and political rights (22-26). To refrain from exploring, e.g., how ICL could be expanded or whether additional abuses by non-state actors could be covered by the legal meaning of ‘ESCR violations’ was thus deliberate. My primary concern was to explore my hypothesis that current definitions of international crimes already provide the scope for addressing at least some considerations of abuses of ESCR. In light of the dominant perceptions of the relationship between ICL and ESCR, I strongly felt that the research question would best be tackled with a systematic exercise using the methods of traditional positivistic legal interpretation. I also wanted to make the work equally accessible to both international criminal lawyers and international human rights lawyers. The price to pay was to work within the confines of traditional conceptualisations of ICL and human rights violations as well as the vocabulary of ESCR. The chosen route promised (somewhat bulky but powerful) tools to carve out a solid rebuttal of ‘the legal impossibility argument’. In short, placing the argument within ‘the mainstream’, as Robert Cryer characterises the approach, seemed advantageous and appropriate as a first step of a much longer journey to overcome the alleged dichotomy between civil and political rights as well as ESCR in the field of ICL and post-conflict justice more broadly. That said, I do hope that the book prepares the ground for further research on the roads I have not travelled, and I do not for a moment wish to suggest that the findings gained through my approach will be the only, or even the most important, thing needed to improve people’s socioeconomic or cultural well-being.

Lastly, as a side note, it is an oversimplification to view the Covenant on Civil and Political Rights as a brainchild of the West and the Covenant on ESCR as one of the socialist/non-aligned States. The historical reality is far more complex (see e.g. here, here and further references here). The erroneous idea of a primarily socialist origin of the Covenant on ESCR has unfortunately further harmed the perception of ESCR as ‘normal’ human rights on an equal footing with what we commonly term civil and political rights.

Maybe time will do its work and the application of the approach presented in the book will serve towards a more nuanced approach to considerations of ESCR in international law. If Larissa is right that the book ‘will serve as a great source of inspiration for the ICC Prosecutor and beyond’, it will have achieved a good deal. In any event, the evidence is there to abandon the tendency to conceptualise abuses primarily affecting survivors’ socioeconomic well-being merely as the landscape against which abuses of civil and political rights are committed.

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