Human Rights and International Criminal Law: Challenging Traditional Assumptions

Evelyne Schmid, your book covers an area where human rights and international criminal law overlap. What does this mean?
My book demonstrates that violations of economic, social and cultural rights, so-called esc-rights, can overlap with international crimes.

What are esc-rights?
Economic, social and cultural rights belong to the “International Bill of Rights” and are protected by international law as well as through municipal law. Examples of esc-rights are the right to food, work, health or education. Esc-rights are often contrasted with civil and political rights, such as freedom of speech or the right to a fair trial. The international community has pledged to treat all human rights on the same footing and with the same emphasis. In reality, however, lawyers and courts often neglect esc-rights and underestimate the legal similarities between the different human rights. This tendency is of particular relevance in the aftermath of armed conflicts as most conflicts have significant socio-economic and cultural dimensions. There are often more victims killed by hunger, cold or preventable diseases than from direct physical violence. So far, the vast majority of international lawyers have been assuming that only the second group of victims could potentially be qualified as victims of war crimes, crimes against humanity or genocide. That, in fact, is not the case though.

Why did you choose this particular research topic?
Shortly before I started planning my dissertation in 2008, Louise Arbour, the former UN High Commissioner for Human Rights, delivered a much-noted speech in New York. She talked about “transitional justice”, i.e. the range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses. She strongly criticized that past approaches had so far concentrated almost exclusively on civil and political human rights violations, while neglecting the esc-rights. Inspired by her talk, I decided to choose an aspect of this topic for my dissertation, which I then completed at the Graduate Institute of International and Development Studies in Geneva.

Your book discusses scenarios that are covered both by international human rights law and international criminal law. How do these two legal fields differ from each other?

What would be an example for such a situation?
I often use the following illustration to explain it: Two lawyers are looking at the same factual scenario; one is a human rights lawyer and one an international criminal lawyer. A very straightforward example is the poisoning of water sources - a method of war that has been used for centuries. If the human rights lawyer identifies a violation of the right to water, for instance, and the international criminal lawyer concludes that the situation can be qualified as a war crime, we are faced with an example of the type of situations the book is interested in. One of the difficulties lies in the fact that we are dealing with two very different bodies of law. This complicates the research. A further example is a large-scale Zimbabwean government campaign to forcibly clear slum areas. In a matter of days, bulldozers tore down informal settlements around the city of Harare, effectively depriving roughly 700,000 people of their livelihoods. This is a rather clear and well-documented case of a violation of the right to housing, which I used to demonstrate under what circumstances such a scenario can simultaneously meet the different legal elements of a crime against humanity.

What does this mean for lawyers and courts?
International criminal lawyers have the possibility to consider esc-rights much more often than they previously assumed. Such a finding affects courts, such as the International Criminal Court in Den Haag but, maybe even more importantly, it also affect the work of other mechanisms for which international criminal law is relevant, such as truth commissions. My research shows that they can often legitimately apply their mandates to a broader range of violations. I am not saying that we should necessarily expand the concept of transitional justice, but we should take better advantage of its full range of possibilities. My point of view is not that all courts should focus all their attention on esc-rights unconditionally and I also do not think international criminal law should be seen as the solution to all problems; however, since international tribunals or truth commissions can’t avoid selectivity due to the sheer number of abuses, I believe it is well worth reflecting carefully how and where to use the available resources – I hope my book can contribute to this.