Book Discussion: Testing ICL’s Expressive Capacity

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Evelyne Schmid’s Taking Economic, Social and Cultural Rights Seriously in International Criminal Law offers an engaging, meticulous, systematic, and comprehensive treatment of an underexplored terrain. With its revealing accounts of the socio-economic dimensions of ongoing and past conflict situations and its incisive explorations of how international criminal law (ICL) can address those, the book is responsive to calls for a vision on global justice that is more inclusive of social justice. Published in the Cambridge Studies in International and Comparative Law, the monograph sets out to correct the current neglect of socio-economic considerations by mainstream international criminal justice mechanisms. It poses pertinent questions flowing from factual situations as well as from hypothetical scenarios which are all illustrative of the actual socio-economic facets of conflict and international crime, and it weaves those real-life questions together with in-depth legal analyses making altogether a truly compelling argument. Beyond its immediate focus on socio-economic rights, this work also paves the way for the inclusion of important gender perspectives in international criminal law (as indicated on p. 34). Indeed, a greater integration of socio-economic notions in international criminal justice processes may help to transcend a too singular focus on sexual violence which, as has been argued, may obfuscate the totality of harm suffered by women in conflict situations and which may emphasize vulnerability rather than agency. The merit of Evelyne’s impressive book thus radiates beyond academia. Nonetheless, my comments are predominantly of a methodological character. They should however not be read in any way as tempering my great appreciation of the work and its author.

My essential critique concerns the book’s central hypothesis that “current definitions of international crimes (leading to criminal responsibility) can overlap with violations of ESCR (giving rise to state responsibility for internationally wrongful acts).” (p.5). According to this hypothesis, a situation of overlap is said to exist if the same factual background can at the same time be described as a violation of ESCR and as an international crime (p. 41). In my view, this hypothesis and the proposed working method may risk leading to a somewhat strabismic exercise as the reader is forced to look at one scenario through two different lenses at the same time. Moreover, I am not sure it is entirely adequate, since – even within one situation – different facts are pertinent for establishing an ESCR violation on the one hand and for proving the commission of an international crime on the other. Hence, this simultaneous focus on different facts seems to muddle the concept of “same factual background” right from the start. In addition, the chosen method straightjackets the research unnecessarily as it requires state attribution so as to construe an ESCR violation which is not always obvious in situations where armed opposition groups engage in socio-economic misbehavior (see e.g. the example given on p. 4). As I have argued elsewhere, the import of socio-economic notions in international criminal justice processes does not have to lead per se to a greater convergence between human rights law and international criminal law. In fact, structural differences between the two areas even impede direct transplantations and rather than looking for instances of direct overlap the quest should be to examine how factual socio-economic misconduct and abuses can be captured by the existing international crime repertoire and how socio-economic human rights provisions can be utilized as a source of inspiration and guidance in this exercise. And ultimately, this is indeed what Evelyne offers us in her rich and persuasive work.

The normative separation between human rights law and ICL as two distinct areas of international law is also reflected in the existence of separate epistemic communities. Relatively few scholars are bilingual in the sense that they feel at home in both communities and that they incorporate the ethos of both those areas of law in an equal manner. Similar to dynamics in debates on the IHL/HR interplay, most scholars discuss such encounters between two areas of law from the perspective or starting point of one of the respective areas. In the case of Evelyne, the human rights ethos seems to be her principal source of inspiration as attested by her multi-dimensional and mostly functional or teleological conceptualization of international criminal law which emphasizes its expressive function and more concretely by her relatively short consideration of the legality principle.

It has often been observed that international criminal law is a pluralist area of law, an amalgam of rules and interpretations exposing different identities and enthused by different aspirations. Such ruminations generally concern the modern or vertical ICL and they leave out transnational ICL. Evelyne engages with both types of ICL, which is indicative of her multi-dimensional approach, albeit that she addresses transnational ICL in a much more cursory fashion. In relation to the modern ICL, the law of the three (or four) core crimes, Evelyne seems to understand this area of law mainly as a universal language expressing condemnation rather than as a structure guiding international judicial intervention or an area of law inspired by fundamental principles of criminal law protecting accused persons. This is not to say that she proposes sweeping interpretations, in fact as already indicated her account is truly meticulous, but her focus is very much on the technicalities of substantive interpretation. Yet, in the context of gross socio-economic abuses outside a situation of armed conflict, like the situations in Zimbabwe and Birma which she presents most cogently, some overarching observations about the adequateness and feasibility of international judicial intervention, going beyond the substantive and the technical, could have reinforced the overall argument.

Within ICL, different understandings and interpretations can be discerned, and accordingly in her exposé Evelyne oscillates between the ICTY and ICC as well as other bodies. Differences between ICTY approaches and ICC dynamics can partly be explained by the fundamentally different role which the legality principle played in the ICTY context as compared to the ICC. When the ICTY was established, the UN Secretary-General gave the express instruction that all findings had to be grounded in customary international law and in that setting observing the legality principle thus boiled down to a law-ascertainment exercise. The reference to custom obviously left much room for creativity and this human rights-friendly environment was conducive to greater insertion of socio-economic notions. At the ICC, ICL is being applied in the context of a full-fledged and very detailed treaty which marginalizes custom, and here the legality principle, as codified in Article 22 of the ICC Statute, explicitly prescribes strict construction. In this setting the legality principle regards the interpretation of treaty rules and is thus concerned with content-determination, a fundamentally different exercise, which possibly leaves less room for exercises such as Evelyne’s. In such a pluralistic environment, a discourse on ICL interpretation can perhaps not be entirely detached from the jurisdictional designs in which the law is to be applied and some insights as regards the main targeted audience could have been useful in this regard. Apparently, Evelyne spreads the net of her audience widely so as to also include commissions of inquiry and other non-judicial bodies. Yet, as I have argued with Catherine Harwood elsewhere, there may be merit in differentiating how this variety of bodies engages with ICL norms in their respective settings.

Nonetheless and overall, I fully agree with Evelyn that, in a generic sense, we must test and exploit the expressive capacity of international criminal law to capture and address grave and widespread socio-economic abuses. I believe this can indeed be done, even in ICC context, without flagrant disregard of the legality principle and I am confident therefore that Evelyn’s book will serve as a great source of inspiration for the ICC Prosecutor and beyond.

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