Taking Economic, Social and Cultural Rights Seriously in International Criminal Law

Abstract

Is the neglect of economic, social and cultural abuses in international criminal law a problem of positive international law or the result of choices made by lawyers involved in mechanisms such as criminal prosecutions or truth commissions? Evelyne Schmid explores this question via an assessment of the relationship between violations of economic, social and cultural rights and international crimes. Based on a thorough examination of the elements of international crimes, she demonstrates how a situation can simultaneously be described as a violation of economic, social and cultural rights and as an international crime. Against the background of the emerging debates on selectivity in international criminal law and the role of socio-economic and cultural abuses in transitional justice, she argues 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.

Neglecting Social and Economic Rights Violations in Transitional Justice: Long-Term Effects on Accountability: Empirical Findings from the Extraordinary Chambers in the Courts of Cambodia

“…While not every ESCR violation gives rise to criminal responsibility per se and while not all conduct amounting to an international crime is also a violation of ESCR, the same facts that constitute a violation of international criminal law might also constitute a violation of ESCR. As such, conduct that violates ESCR can, de lege lata, be addressed in processes dealing with international crimes (Schmid 2015;Drumbl 2009; van den Herik 2014). Nevertheless, an industry of praxis has emerged in which the conventional position has been to assume that violations of ESCR are beyond the scope of international criminal law, despite a considerable number of precedents to the contrary: they are seen as aspirational goals to be realised progressively, 8 as the backdrop against which CPR violations take place, 9 as too vague to lend themselves to (quasi-)judicial action, 10 as issues unrelated to life and integrity, 11 or as issues for which no 7…”

“…In her recent work on economic, social, and cultural rights (ESCR) in international criminal law, Evelyne Schmid opens with a reference to leading Nazi lawyer Hans Frank, who wrote in one of his diaries that the annihilation of Jews should not take place by shooting or poisoning them, but rather through more "indirect" means such as starvation, the withholding of medical care, or relocation to ghettos with poor health infrastructure (Schmid 2015). This strategy, Schmid argues, is indicative of an awareness on the side of the Nazi leadership that deliberately starving people would receive only marginal attention as compared to other types of atrocities.…”

“…Moreover, the debate about the justiciability of ESCR (i.e. the capacity for adjudicating such cases in court) has to some extent become a self-fulfilling prophecy: a widespread assumption about their vagueness (and thus injusticiability) has led to disengagement by academics and practitioners and has largely deterred courts from using the means at their disposal to remedy violations and from developing the kind of jurisprudence that would facilitate further judicial consideration (Schmid 2015; also see Schmid and Nolan 2014).…”

Cultural Rights and Cultural Policy: identifying the cultural policy implications of culture as a human right

“…It is difficult to argue that UN member states are less prone to human rights abuses because of the work of, for example, the UNHRC; but, what is certain is that the wide range of human rights 'instruments' -mainly the nine conventions but also the declarations and 'optional protocols' (treaty additions, largely for procedures of inclusion or exemption) -provide an effective and reflexive sphere to develop international consensus (Lee and Lee, 2010). The condition of consensus can be understood as discourse, for UN treatises function as semantic authorities (establish the definition of terms), epistemic frameworks (facilitate the process of making a situation intelligible to a rights-based judgement, or a rights-based analysis), an appending mechanism for cognate legal terms (such as selfdetermination, discrimination, freedom and enjoyment) and further provide fields of eligible scrutiny (from practices of slavery, servitude, forced labour, to press or media communications, marriage, family and youth, to statelessness, asylum and refugees) (Ghai, and Cottrell, 2004;Leckie, Gallagher, 2006;Senyonjo, 2009;Riedel, Giacca, and Golay, 2014;Schmid, 2015 ).…”

Distinguishing Types of ‘Economic Abuses’: A Three-Dimensional Model

“…As discussed in much more detail elsewhere, the criminalisation of a range of other international crimes is capable of protecting people's access and enjoyment of some of their economic rights and underlying economic interests. 44 The adequacy of existing international law for constellation no. 2 is arguably better than what is commonly assumed.…”