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Overlooked in Plain Sight: Economic, Social and Cultural Abuses as Crimes
against Humanity

 

            Introduction

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International criminal law denotes
acts that are outlawed by the established principles of international law and entails
individual criminal responsibility to conduct that sovereign nations recognize
as breaches of peremptory norms. Taking into account the ultima ratio character of the field as well as the severity of
crimes that come under its purview, the central question raised by this study
is whether the developing field is able to accommodate claims arising from acts
of social, economic and cultural rights abuses.

 This study aims to prove two claims in
justifying an affirmative answer: (1) the current framework of crimes against
humanity are equipped to address violations of socioeconomic and cultural
rights (2) the neglect of second and third generation rights violations in
international criminal law stems from the ideological, political and economic prejudices
that have marginalized socioeconomic and cultural rights while hindering their progressive
realization. These arguments will lead the study to the conclusions that the disregard
of socioeconomic and cultural deprivations within international criminal law is
legally arbitrary and this practice perpetuates the ‘selectivity criticism’
targeting the international criminal justice system.1
The study will conclude with remarks on international criminal law’s potential
as a tool for the protection and promotion of social, economic and cultural
rights and highlight its current significance regarding the ongoing violations
in jurisdictions ranging from Sudan and Myanmar to Yemen and Turkey.

 

Context and Justification

 The core argument of this research is that the
international criminal justice system accommodates certain systematic and
discriminatory deprivations of socioeconomic and cultural rights. An overwhelming
majority of scholars and practitioners question whether the existing framework
recognizes an overlap between severe infringement of socioeconomic rights and
prohibited conduct that amount to international crimes. The existing literature
confirms this uncertainty by making the claim that modifications need to be
made within international criminal law to allow for the prosecution and
punishment of socioeconomic and cultural abuses.2
Referred to as the ‘legal impossibility’ argument, this position suggests that
the neglect of second and third generation rights within international criminal
law arises from the legality principle. According to proponents of this view, international
criminal law’s subject matter is limited only to the most severe violations of
certain civil and political rights.3

In this context, Hunt
claims that socio-economic and cultural rights have been deliberately ignored
or marginalized4
whereas a number of scholars continue to argue that socio-economic rights are
‘aspirations’ that states shall recognize rather than justiciable rights under
international law.5  According to Leckie, the presumed hierarchy
between the first and second generation rights has a direct effect on both
procedural and substantive responses to socioeconomic and cultural abuses.6 Similarly, Arbour asserts
that even the most horrendous socioeconomic and cultural abuses ‘do not lend
themselves judicial or quasi-judicial action.’7

This study aims to refute the impossibility
argument by pointing to past and ongoing deprivations that amount to crimes
against humanity as currently codified. It will argue
that the current framework of international crimes overlap with fundamental
rights abuses such as the violations of the rights to education, food, water, shelter,
health, non-discrimination and cultural development that traditionally entail sole
state responsibility. A nuanced examination of the elements of crimes against
humanity will demonstrate that a vast array of past and ongoing deprivations are
considered to be within the purview of international criminal law. This
analysis will highlight that limiting international criminal prosecutions to
certain civil and political rights violations is both an arbitrary distinction
for the victims of abuses and legally indefensible.8 The study also argues that
the devaluation of socioeconomic and cultural rights within international
criminal law can be remedied through the implementation of relevant human
rights norms as the current framework’s clarity is in sufficient compliance
with the legality principle.     

An interrelated argument
the study will contradict is the presumption that international criminal
justice system is unable to address ‘structural violence’ stemming from root
problems as opposed to conduct that entails individual liability. This research
will point to Ocheje and Waldorf’s differing perspectives to address this
issue: Paul Ocheje deplores that international crimes are designed to prevent
and punish solely civil and political rights violations.9 According to the author, the
non-criminalization of socio-economic
and cultural abuses within the field ‘casts an unseemly blight on the otherwise
impressive progress of human civilization advanced by the establishment of the
ICC.’10In contrast, Lars Waldorf
argues that international criminal law should not engage with socioeconomic and
cultural rights violations as these proceedings focus on individual
responsibility as a means to guarantee the transition of abusive regimes.11

This study will
reject the arguments that socioeconomic and cultural abuses are outside the
scope of international criminal law due to the predisposition to frame
socioeconomic rights as ‘imprecise aspirations’ or ‘positive obligations’. It
will also contradict the argument that such abuses amount to ‘structural
violence’12
as opposed to punishable acts of ‘direct violence’. Caranza points to this
claim as the central contradiction between the first and second generation
rights violations by highlighting their alleged manifestation.13 This research argues that
the supposed character of certain rights or the historical neglect easing their
deprivation cannot determine whether an offense has been committed. In this
regard, the only appropriate analysis is to examine the deprivations in
question within the context of the elements of crimes against humanity. It is
significant to point out that the author of this study is aware that the mechanisms
of criminal justice are not applicable to each circumstance and will make no
claim that international criminalization is always the best possible policy to
address socioeconomic and cultural abuses. Throughout the study, the author
will proceed with the utmost respect for the legality principle while interpreting
elements of international crimes in the context of human rights interests.  

 

            Research Goals and the
Current Significance of the Study

My ultimate goals in conducting this
research are to highlight the limitations of the current  framework of international criminal law in
redressing socioeconomic and cultural violations, underline the selectivity
criticism as a threat to the legitimacy of the developing field and underline its
potential for the protection and progressive realization of socioeconomic and
cultural rights.

            This
study is particularly relevant

Methodology

In an effort to conceptualize the
interplay between violations of socioeconomic rights and crimes against
humanity, the study will conduct a comparative examination of the treaty
practice as well as the case law of international and regional courts,
tribunals and organizations.  In order to
demonstrate the link between the atrocities, the study will first provide a
legal basis for determining that a particular act or omission amounts to a
socioeconomic or cultural rights violation. This research will mainly turn to
the rights recognized in the ICESCR for this purpose while frequently
referencing pertinent provisions codified by other regional or international
treaties.14

In order to determine that the same
set of facts simultaneously amount to international crimes, the study will
examine the violations in relation to the material and mental elements of
crimes against humanity. This research will rely on the ICC Statute as well as
the ICC Elements of Crimes while conducting this analysis. To make a successful
claim that certain acts amount to crimes against humanity as well as violations
of second or third generation rights, the acts in question must be attributable
to the State, carried out in the absence of just cause or consent and committed
as part of a widespread or systematic attack with the mental element required
for the commission of crimes against humanity. The study will examine past and
ongoing conduct within the designed context to prove the overlap between crimes
against humanity and socioeconomic and cultural violence.

While applying the abovementioned
test, the study will use the Statutes and the case law of International
Military Tribunal at Nuremberg, ICTY, ICTR and internationalized tribunals as
well as the regional human rights courts and organizations such as the European
Court of Human Rights, African Commission on Human and People’s Rights and
European Committee of Social Rights. This study will take on a descriptive
method to provide the reader with an outline of the probative discourse
concerning the negotiation routes for the draft of the new Convention on Crimes
against Humanity as well as the ICC Statute, the Elements of Crimes, ICCPR and
ICESCR. To conduct the empirical research, the study will draw on the fieldwork
of reputable international and non-governmental organizations such as the Human
Rights Watch, International Crimes Database, Amnesty International and Hafiza
Merkezi as well as the reports, resolutions and the decisions issued by the
United Nations Economic and Social Council and the U.S. Department of State. The
study will also extensively engage with scholarly literature on the development
of crimes against humanity, the evolution and classification of the first,
second and the third generation rights, the effect of globalization on the
progressive realization of socioeconomic and cultural rights, international
legal theory as well as the kinship between human rights law and international
criminal justice.

 

Sample Bibliography

Books

Eibe Riedel, Gilles Giacca and
Christophe Golay (eds.), Economic, Social
and Cultural Rights in International Law: Contemporary Issues and Challenges,
Oxford, 2014

 

Evelyne
Schmid, Taking Economic, Social and
Cultural Rights Seriously in International Criminal Law, Cambridge, 2015

 

Hüseyin Günal, Hannah
Arendt ve ?nsanl??a Kar?? Suçlar, ?stanbul, Dost, 2015

 

Roy S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of
Procedure and Evidence,
Transnational Publishers Inc, 2001

M. Cherif
Bassiouni (ed.), Globalization and Its
Impact on the Future of Human Rights and International Criminal Justice,
Cambridge, Intersentia, 2015

Max
Weber, Essays in Sociology, Hans
Heinrich Gerth and Charles Mills (trans.), Routledge, 1991

Philip Alston and Ryan Goodman, International Human Rights, Oxford University Press, 2013

John Rawls, A
Theory of Justice, revised edn., Harvard University Press, Massachusetts,
1999

 

Scott Leckie and Christopher Huggins, Conflict and Housing, Land and Property Rights:
A Handbook on Issues, Frameworks and Solutions, Cambridge University Press,
2011

 

 

Chapters in Books

Kirsten Ainley,
‘Individual Agency and Responsibility for Atrocity’, Confronting Evil in International Relations: Ethical Responses to
Problems of Moral Agency, Renée Jeffery (ed.), Palgrave, 2008

 

Larissa van den
Herik, ‘ESCR –’International Criminal Law’s Blind Spot?’, Economic, Social and Cultural Rights in International Law: Contemporary
Issues and Challenges, Eibe Riedel, Gilles Giacca and Christophe Golay,
(eds.), Oxford University Press, 2014

 

Martin Scheinin,
‘Economic and Social Rights as Legal Rights’, Economic, Social and Cultural Rights: A Texbook, 2nd
edn., Asbjørn Eide, Catarina Krause and Allan
Rosas (eds.), Leiden, Martinus Nijhoff Publishers, 2001

 

Articles

Antonio Cassese, ‘Can
the Notion of Inhuman and Degrading Treatment Be Applied to Socio-Economic
Conditions?’, 2 European Journal of
International Law 1, 1991, 141-45

 

G.P. Fletcher and
J.D. Ohlin, ‘Reclaiming Fundamental Principles of Criminal Law in the
Darfur Case’, 3 Journal of International
Criminal Justice, 2005, 539-61

 

Lars Waldorf, ‘Antipicating the Past: Transitional Justice and
Socio-Economic Wrongs’, 21, Social and
Legal Studies 2, 2012, 171-86

 

Lisa Laplante, ‘Transitional Justice and Peace
Building: Diagnosing and Addressing the Socioeconomic Roots of Violence through
a Human Rights Framework’, 2 International
Journal of Transitional Justice 3, 2008, 331-55

 

                Michael Dennis and David
Stewart, ‘Justiciability of ESCR: Should There Be an International Complaints
Mechanism to Adjudicate the Rights to Food, Water, Housing and Health’, 98 American Journal of International Law 3,
2004, 462-515.

 

            Louise Arbour, ‘Economic
and Social Justice for Societies in Transition’, 40 New York University Journal of International Law and Politics
1,  2007, 1-27

 

Scott Leckie, ‘Another Step Towards
Indivisibility: Identifying the Key Features of Violations of Economic, Social
and Cultural Rights’, 20 Human Rights
Quarterly, 1, 1998, 81-124

Sigrun I. Skogly, ‘Crimes Against
Humanity – Revisited: Is There a Role for Economic and Social Rights?’, 5 The International Journal of Human Rights
1, 2001, 58-80

 

 

Notable International
Criminal Court Cases

 Decision on the
Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, Pre Trial Chamber I,
ICC-02/05-01/09

 Decision Pursuant to Article
61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, 15 June 2009,
Pre Trial Chamber II, ICC-01/05-01/08 – 424

Decision on the
Confirmation of Charges, Prosecutor v. Germain Katanga, 14 October 2008, Pre Trial Chamber I, ICC
01/04-01/07-717

Judgment Pursuant to Article 74 of the Statute, Prosecutor v. Thomas Lubanga Dyilo, 14 March 2012, Trial Chamber I, ICC-01/04-01/06 – 2842

 

Notable Cases of the ad hoc Tribunals

Prosecutor v. Akayesu, ICTR-96-4-T, 2 September 1998

Prosecutor v. Brdjanin, ICTY-IT-99-36-T, 1 September 2004

Prosecutor v. Erdemovic, ICTY-IT-96-22-A, 7 October 1997

Prosecutor v. Kayishema and
Ruzindana, ICTR-95-1-T, 21 May 1999

Prosecutor v. Kordi? and ?erkez, ICTY-95-14/2-T,
14 January 2000

            Prosecutor v. Krsti?, ICTY-IT-98-33-T,
2 August 2001

Prosecutor v. Kunarac, Kovak
and Vukovic, ICTY-IT-96-23-T, 22
February 2001

Prosecutor v. Kupreški? and others, ICTY-IT-95-16-T, 14 January 2000

Prosecutor v. Simi? and others, ICTY-95-9-T,
17 October 2003

           

1VAN DEN HERIK, Larissa, “Economic, Social
an d Cultural Rights: International Criminal Law’s Blind Spot?” in Economic, Social, Cultural Rights in
International Law: Comtemporary Issues and Challenges, Oxford, 2014, p.
344.

2 OCHEJE, Paul, ‘Refocusing International
Law on the Quest for Accountability in Africa: The Case against the “Other”
Impunity’, 15 Leiden Journal of
International Law, 2002, p. 712.

3 AINLEY, Kirsten, ‘Individual Agency and
Responsibility for Atrocity’, Confronting
Evil in International Relations: Ethical Responses to Problems of Moral Agency,
edt. JEFFERY, Renée, Palgrave, 2008, p.55.

4 HUNT, Paul, Social Rights are Human Rights, Centre for Welfare Reform,
September 2017, pp. 11-14.  https://www.centreforwelfarereform.org/uploads/attachment/584/social-rights-are-human-rights.pdf
 (Accessed on October 14, 2017)

5 DENNIS Michael, STEWART, David, ‘Justiciability
of ESCR’, 98 American Journal of
International Law, 3, p. 477.

6 LECKIE, Scott, ‘Violations of ESCR’, 20 Human Rights Quarterly, 1, 1998, p. 82.

7 ARBOUR, Louise, ‘Economic and Social
Justice for Societies in Transition’, 40 New
York University Journal of International Lawand Politics, 1,  2007, pp. 10-11.

8SKOGLY, Sigrun, “Crimes Against Humanity – Revisited:
Is There a Role for Economic and Social Rights?”, 5(1) The International Journal of Human Rights 58, 2001

9 OCHEJE, Paul, ‘Refocusing International
Law’: 772.

10 Ibid.,
p. 779.

11 WALDORF, Lars, ‘Antipicating the Past:
Transitional Justice and Socio-Economic Wrongs’, 21, Social and Legal Studies, 2, 2012, p. 178.

12LAPLANTE,
Lisa, ‘Transitional
Justice and Peace Building’, 2 International Journal of Transitional Justice 3, 2008, p. 333. The ‘structural violence’ claim
points to an atmosphere of deep-rooted poverty, totalitarian rule and
systematic disregard of fundamental rights as culprits of deprivations, thus
asserting that the violations are not attributable to individuals.  

13
CARRANZA, Ruben, ‘Plunder and Pain’, 2 International
Journal of Transitional Justice 3, 2008, pp.313-15.

14 Relevant
treaties include Convention on the Elimination of Racial Discrimination, Rights
of the Child, ILO Conventions No. 111, 155, 169, Migrant Workers Convention,
UNESCO Convention against Discrimination in Education, Charter of Fundamental
Rights of the European Union, European Convention for the Protection of Human
Rights and Fundamental Freedoms, European Social Charter of the Council of
Europe.

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