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. Read the rest of this entry…