Overlooked Atrocities of the New World: Economic, Social and Cultural Abusesas Crimes against Humanity”We do not want freedomwithout bread, nor do we want bread without freedom.
” -Nelson MandelaIntroductionThis research will inquire whetherwidespread and systematic deprivation of social, economic and cultural rights canamount to crimes against humanity under the Rome Statute of the InternationalCriminal Court, the Elements of Crimes as well as customary international lawand the newly developing framework of the Convention on Crimes againstHumanity. In justifying an affirmative answer to this question, the study willpoint to circumstances under which social, economic and cultural rights abusesoverlap with breaches of international criminal law. This study will thenanalyze the legal, ideological, political and economic causes of the neglect ofthe second and third generation rights in the international criminal justiceproceedings and underline how the disregard of these violations perpetuates the’selectivity criticism’ targeting the field of international criminal law. Thisresearch will conclude with remarks on international criminal law’s potentialas a tool for the protection and progressive realization of social, economicand cultural rights.
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International criminal law denotesacts that are outlawed by established principles of international law andcriminalizes conduct that sovereign nations recognize as breaches of peremptorynorms. Taking into account the ‘ultima ratio’ character and the gravity of questionraised by this study is whether international criminal law is able to accommodateclaims arising from acts human rights advocates The study will address past and ongoing socio-economic andcultural rights violations in jurisdictions ranging from the Former Republic ofYugoslavia and Myanmar to Sudan and Turkey that constitute crimes against humanityand underscore the failure of international criminal law’s current framework to address such abuses. The framework for examining thisquestion will begin by engaging the doctrine surrounding the so-calledhierarchical relationship between the first, second and the third generationsof human rights. The research will then inquire whether serious humanitariancrises emanatingS1 froma given country’s political climate not amounting to armed conflict present a challengeto the investigation, prosecution and the punishment of such conductS2 .Through consideration of the applied casesS3 ,the paper will identify the extent to which the existing and newly developingframework provides effective response to serious deprivations, while examiningthe efficacy of the international criminal justice mechanisms in tacklingissues of legality, state sovereignty and the right of peoples to freely pursue their economic, social and culturaldevelopment.
Context and Justification The core argument of this research is that thesystem of international criminal justice accommodates certain systematic deprivationsof socioeconomic and cultural rights. Distinguished authors, legal practitionersand policy-makers have varying perspectives on this argument. However, anoverwhelming majority of scholars and practitioners question whether the existingframework recognizes an overlap between severe infringement of socio-economicrights and prohibited conduct that amount to international crimes. The existingliterature confirms this uncertainty by making the claim that modificationsneed to be made within international criminal law to allow for the prosecutionand punishment of socio-economic and cultural abuses.
Referred to as the ‘legalimpossibility’ argument, this position suggests that the neglect of second andthird generation rights within international criminal justice arises from the legalityprinciple. According to proponents of this view, international criminal law’ssubject matter is limited only to the most severe violations of certain civiland political rights.1Hence, the disregard of second and third generation rights violations withinthe field could not be avoided without the expansion of the punishable actsrecognized as international crimes. This study aims to refute the impossibilityargument by analyzing the legal, ideological, political and economic origins ofthe deeply-rooted prejudice against socio-economic and cultural rights.2It rejects the claimthat the existing framework needs to be altered and identifies the situationsunder which second and third generation rights violations amount to crimesagainst humanity as currently codified.
The study will argue that international crimesentailing individual liability overlay with abuses such as the violation of therights to education, food, shelter, health and non-discrimination that traditionallyonly lead to state responsibility. A nuanced examination of the elements ofcrimes against humanity will demonstrate that a variety of abusive actsinfringing the rights to heath, water, cultural development and othersocioeconomic rights are considered to be within the purview of internationalcriminal law. This analysis will highlight that limiting international criminalprosecutions to certain civil and political rights violations is both anarbitrary distinction for the victims of abuses and is legally indefensible3. This section will argue thatthe abovementioned bias ultimately resulted in the arbitrary exclusion ofsocio-economic and cultural rights violations from the field of internationalcriminal law and led to the characterization of socio-economic and culturalrights as “programmatic aspirations” rather than fundamental rights safeguardedby the law of nations.4 Following the adoption of the UniversalDeclaration of Human Rights (UNDHR) in 1948, an overwhelming majority ofsovereign nations concurrently adopted the International Covenant on Civil andPolitical Rights (ICCPR) and the International Covenant on Economic, Social andCultural Rights (ICESCR) in 1966. Although the documents showed no evidence ofa hierarchy between these groups, scholars and governments kept distinguishingbetween the two by claiming a presumed lack of legal enforceability with regardto social, economic and cultural rights. Even though the state parties haveexplicitly recognized in the 1993 Vienna Conference that both civil andsocio-economic rights were to be regarded as equals and all generations of fundamentalrights needed to be perceived as an indivisible body of norms5, no consensus has beenreached as to the proper strategy to safeguard the second and third generation rightsto this day. In fact, scholars like Hunt go so far as to claim thatsocio-economic and cultural rights have been deliberately ignored ormarginalized6whereas a small number of scholars continue to argue that socio-economic rightsare ‘aspirations’ that states shall recognize rather than justiciable rightssafeguarded by international law.
7 According to Leckie, the presumed hierarchybetween the first and second generation rights has a direct effect on bothprocedural and substantive responses to socio-economic and cultural abuses.8 Similarly, Arbour contendsthat even the most horrendous socio-economic and cultural abuses ‘do not lendthemselves judicial or quasi-judicial action.’9An interrelatedargument the study will contradict is the presumption that internationalcriminal justice is unable to address ‘structural violence’ that is associatedwith root problems rather than individual liability. This research will pointto Ocheje and Waldorf’s differing perspectives to address this issue: Paul Ochejedeplores that the international crimes of genocide, crimes against humanity andwar crimes are designed to prevent and punish solely civil and political rightsviolations.10According to Ocheje, socio-economic and cultural abuses do not capture the attentionof the practitioners or scholars of international criminal law. The authorfurther claims that the neglect of socio-economic and cultural abuses withinthe field ‘casts an unseemly blight on the otherwise impressive progress ofhuman civilization advanced by the establishment of the International CriminalCourt.’11 In contrast, LarsWaldorf argues that international criminal law should not engage withsocio-economic and cultural rights violations while dealing with authoritativeand abusive regimes.
However, his position on international criminal law’s mainfocus is consistent with Ocheje’s. He claims that transitional justiceproceedings focuses on criminal responsibility rather than structural issueswhich he argues, undeniably bars prosecutions of severe socio-economic andcultural abuses.12Waldorf ultimately claims that socio-economic and cultural rights violationsresult from structural issues that fall outside the purview of internationalcriminal law. This study will also address Waldorf’s claim by highlighting pastand ongoing socio-economic and cultural deprivations, which this study claims,amount to severe breaches of international criminal law. The traditionalposition has long been to presume that socio-economic and cultural abuses falllargely outside the purview of international criminal law.
The demolition ofhouses, preventing individuals from accessing water sources, excluding certaingroups from education and depriving them of their right to cultural developmentor forcing individuals to work under atrocious conditions are some of thesocio-economic and cultural abuses individuals have suffered throughouthistory. However, these abuses have rarely been addressed by means ofinternational criminal justice.13 Indeed, internationalcriminal proceedings that dealt with abusive and authoritative regimes havelargely concentrated on certain civil and political violations ranging fromsummary executions and forced disappearances to arbitrary detention and lately,sexual abuses. The developing case law and literature on international criminaljustice have also been disengaged from socio-economic and cultural violations.Transitional justice mechanisms such as truth commissions continue to ignoresocio-economic and cultural abuses and proceed with the presumption that secondand third generation rights do not come in the scope of international criminaljustice.14 As the first international document toever define the act of persecution, Article 7 of the Rome Statute for the InternationalCriminal Court (hereinafter referred to as the ICC Statute) lists the crime of’persecution’ as a crime against humanity. Crimes against humanity are definedby the ICC Statute as: “any of the following acts when committed as part of awidespread or systematic attack directed against any civilian population, withknowledge of the attack.”15Article 7 then lists the enumerated prohibited conduct which, in the rightcontext, constitutes crimes against humanity.
Pursuant to Article 7(1)(h) theseinclude: “persecution against anyidentifiable group or collectivity on political, racial, national, ethnic,cultural, religious, gender…, or other grounds that are universally recognizedas impermissible under international law, in connection with any act referredto in this paragraph (Article 7) or any crime within the jurisdiction of theCourt.” Furthermore, Article 7(2)(g) of the Statute defines persecution as:”the intentional and severe deprivationof fundamental rights contrary tointernational law by reason of the identity of the group or collectivity.”Element 1 of Article 7(1)(h) of the Elementsof Crimes, which complies with the phrasing of Article 7(2)(g) states: “theperpetrator severely deprived, contrary to international law… persons offundamental rights.” Neither The ICC Statute nor the Elements of Crimeselaborates on the scope of ‘fundamental rights’. The intense debate of the delegates atthe Preparatory Commission of the Elements of Crimes regarding the definitionand the scope of “fundamental rights” was not able to produce consensus on thematter. Even though the delegates concluded the debate by highlighting thephrase of “universal recognition” mentioned in the first paragraph of theIntroduction to the Elements of Crimes, the states overwhelmingly refused toinclude this term as a specific requisite within the wording of Element 1 ofArticle 7(1)(h).16The failure of the Commission to clearly define the term “fundamental rights”within the context of the Elements of Crimes continues to create ambiguity andaids governments in differentiating between safeguarding the so-called firstand second generation rights.17This vague approach adopted by the state parties brings me to the questions Iaim to raise and answer within the contexts of both customary international andtreaty law.
Research Questions and GoalsMy ultimate goals in conducting thisresearch are to highlight the limitations of the existing framework inredressing socio-economic and cultural violations as well underscoring thepotential of the developing system of international criminal justice as astrong means to safeguard socio-economic and cultural rights. This research aims to offer compellingevidence that the ‘legal impossibility’ narrative inextricably intertwined withthe prosecution of socio-economic abuses as international crimes isindefensible from a legal perspective. I will also argue that the establishedbias against the structural nature of socio-economic and cultural rightsviolations is rectifiable through a detailed analysis of the past and ongoingcases of serious deprivations of second and third generation rights.
To this end, this research will mainlyfocus on the following questions while providing a detailed understanding ofthe structure of crimes against humanity: 1. Does the predisposition to readsocio-economic and cultural rights as positive obligations render them incompatiblewith the subject matter of international criminal law? 2. Does the inclination to equatesocio-economic and cultural abuses with ‘structural dysfunction’ exclude severedeprivations from the scope of international criminal law? 3.
How does the neglect of socio-economicand cultural abuses in international criminal law relate to the ‘selectivitycriticism’ targeting the field?4. How should the term “severedeprivation” be understood within the context of persecution? Could theseverity requirement be met by intellectual, economic or emotional means ofinfringement?5. How should the impermissible groundslisted in the Article 7(1)(h) be interpreted in connection with socio-economicand cultural rights today?6.
Does the infringement of collectivecultural rights meet the discriminatory intent requirement of the crime ofpersecution?7. How does the existing framework definea ‘widespread or systematic attack on civilians’?8. Can the deprivation of socio-economicand cultural rights alone constitute a ‘systematic attack’ as understood by theexisting framework regarding the crime of persecution? 9. How are “fundamental rights” definedunder the existing and developing framework pertaining to the internationalcrime of persecution?10. Does the ICC Statute set a mens reabar different from the ones established by the ad hoc tribunals, ultimatelyleading to the non-criminalization of socio-economic abuses? Methodology This study will rely on the analysisof primary sources of both domestic and international law. In an effort toconceptualize the interplay between socioecomic and cultural rights violationsand crimes against humanity, the study will turn to the comparative examinationof existing treaty practice. This approach will allow identification of thehighest protection standards for socio-economic and cultural rights.
Theanalysis of the case law of the ICC, ICTY, ECtHR, European Commission of HumanRights and other regional or domestic human rights will address the scholarly position claimingthat international criminal law is reserved only for the most heinous firstgeneration rights violations. This study will take on a descriptive method toprovide the reader with an outline of the probative discourse concerning thenegotiation route for the draft of the new Convention on the Crimes againstHumanity as well as the ICC Statute, the Elements of Crimes, UNDHR, ICCPR andICESCR. In addition, I will turn to customary international law concerning thecrimes against humanity which stemmed from the case law of the ad hoc tribunals.To conduct the empirical research, I will draw on the fieldwork of reputableinternational and non-governmental organizations such as Human Rights Watch,International Crimes Database, Amnesty International and Hafiza Merkezi as wellas the reports issued by the United Nations and the U.S. Department of State.
Iwill also extensively engage with the scholarly literature on the internationalcrime of persecution, the evolution and classification of the first, second andthe third generations of human rights, international legal theory as well asthe kinship between the fields of human rights law and international criminaljustice. Sample Bibliography BooksEibe Riedel & Gilles Giacca &Christophe Golay (eds.), Economic, Socialand Cultural Rights in International Law: Contemporary Issues and Challenges,Oxford, 2014EvelyneSchmid, Taking Economic, Social andCultural Rights Seriously in International Criminal Law, Cambridge, 2015Hüseyin Günal, Hannah Arendt ve?nsanl??a Kar?? Suçlar, ?stanbul, Dost, 2015Roy S. Lee(ed.), The International Criminal Court: Elements of Crimes andRules of Procedure and Evidence, Transnational Publishers Inc, 2001M. Cherif Bassiouni (ed.), Globalizationand Its Impact on the Future of Human Rights and International Criminal Justice,Cambridge, Intersentia, 2015Philip Alston & Ryan Goodman, InternationalHuman Rights, Oxford University Press, 2013 Chapters in BooksKirsten Ainley, ‘Individual Agency and Responsibility for Atrocity’, Confronting Evil in International Relations:Ethical Responses to Problems of Moral Agency, (ed.
), Renée Jeffery,Palgrave, 2008Larissa van den Herik, ‘ESCR –’International Criminal Law’s Blind Spot?’,Economic, Social and Cultural Rights inInternational Law: Contemporary Issues and Challenges, (eds.), Eibe Riedel& Gilles Giacca & Christophe Golay, Oxford University Press, 2014 ArticlesSigrun I. Skogly, “Crimes AgainstHumanity – Revisited: Is There a Role for Economic and Social Rights?”, 5(1) The International Journal of Human Rights58, 2001Lars Waldorf, ‘Antipicating thePast: Transitional Justice and Socio-Economic Wrongs’, 21, Social and Legal Studies, 2Lisa Laplante, ‘Adressing the Socioeconomic Rootsof Violence’, 2 International Journal ofTransitional Justice, 3 Notable InternationalCriminal Court Cases Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4March 2009, Pre Trial Chamber I, ICC-02/05-01/09 Decision Pursuant to Article61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, 15 June2009, Pre Trial Chamber II, ICC-01/05-01/08 – 424 Decision on theConfirmation of Charges, The Prosecutor v.
Germain Katanga, 14 October 2008, Pre Trial Chamber I, ICC 01/04-01/07-717Judgment Pursuant to Article 74 of the Statute, The Prosecutor v. Thomas Lubanga Dyilo, 14 March 2012, Trial Chamber I, ICC-01/04-01/06 – 2842 1 AINLEY, Kirsten, ‘Individual Agency andResponsibility for Atrocity’, ConfrontingEvil in International Relations: Ethical Responses to Problems of Moral Agency,edt. JEFFERY, Renée, Palgrave, 2008, p.55. 2Déclaration des Droits de l’Homme et du Citoyen de1789 https://www.legifrance.gouv.
fr/Droit-francais/Constitution/Declaration-des-Droits-de-l-Homme-et-du-Citoyen-de-1789 (Accessed on November 1, 2017) 3SKOGLY, Sigrun, “Crimes Against Humanity – Revisited:Is There a Role for Economic and Social Rights?”, 5(1) The International Journal of Human Rights 58, 2001 4 VAN DEN HERIK, Larissa, “Economic, Socialan d Cultural Rights: International Criminal Law’s Blind Spot?” in Economic, Social, Cultural Rights inInternational Law: Comtemporary Issues and Challenges, Oxford, 2014, p.344. 5 UN WorldConference on Human Rights, 14-25 June 1993, Vienna, Austria. UN Doc.A/CONF.157/23, Vienna Declarations 1993, Part1, para.5.
6 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)7 DENNIS Michael, STEWART, David,’Justiciability of ESCR’, 98 AmericanJournal of International Law, 3, p. 477.8 LECKIE, Scott, ‘Violations of ESCR’, 20 Human Rights Quarterly, 1, 1998, p. 82.
9 ARBOUR, Louise, ‘Economic and SocialJustice for Societies in Transition’, 40 NewYork University Journal of International Lawand Politics, 1, 2007, pp. 10-11. 10 OCHEJE, Paul, ‘Refocusing InternationalLaw on the Quest for Accountability in Africa: The Case against the “Other”Impunity’, 15 Leiden Journal ofInternational Law, 2002, p. 772.11 Ibid.,p. 779.
12 WALDORF, Lars, ‘Antipicating the Past:Transitional Justice and Socio-Economic Wrongs’, 21, Social and Legal Studies, 2, 2012, p. 178. 13SCHMID, Evelyne, Taking Economic, Social and Cultural Rights Seriously in InternationalCriminal Law, Cambridge: Cambridge University Press, 2016, p. 8.14 LAPLANTE, Lisa, ‘Adressing theSocioeconomic Roots of Violence’, 2 InternationalJournal of Transitional Justice, 3, pp.
331-355.15 Article7 of the Rome Statute for the International Criminal Court https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf(Accessed on October 14, 2017)16WITSCHEL Georg/ RÜCKHERT Weibke, “Article 7(1)(h) – Crime Against Humanity ofPersecution” in LEE Roy S.
(ed), TheInternational Criminal Court: Elements of Crimes and Rules of Procedure andEvidence, Ardsley: Transnational Publishers Inc, 2001, p. 96. For furtherinformation, see the summary of the Preparatory Commission discussion atPCNICC/2000/L.
1/Rev.1/Add.2. 17 Reportof the Working Group on the Rules of Procedure and Evidence and the Report ofthe Working Group on Elements of Crimes, Preparatory Commission doc.PCNICC/2000/INF/4, dated 13 July 2000, p.
3. S1Maybe’resulting’ here rather than ’emanating’ S2Theconduct you’re referring to might be a little too far away from this sentencefor you to say ‘such conduct’ S3I wouldtake out ‘the’ before ‘applied cases’ because you haven’t mentioned any yet