Taking Economic, Social and Cultural Rights Seriously in International Criminal Law (Cambridge Studies in International and Comparative Law, Series Number 117)

"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"-- Résumé de l'éditeur Cover 1 Half-title page 3 Series page 4 Title page 5 Copyright page 6 Contents 7 Figures and Table 11 Acknowledgements 12 Table of cases and authorities 14 Table of selected treaties and other international instruments 26 Abbreviations 29 1 Introduction 33 1.1 The research problem and why it needs to be solved 37 1.2 Conceptual underpinnings and organisation of the study 48 2 Rethinking hierarchies of human rights in international criminal law 54 2.1 Presumed hierarchies of human rights in international criminallaw 55 2.2 The belief that international criminal law is restricted tociviland political rights abuses 56 2.3 The shadow of the law and the risks of failing to reconsider thelegal impossibility argument 65 2.4 Conclusion 70 3 Relating international crimes to ESCR violations 73 3.1 Methodology 73 3.2 Key concepts 77 3.3 The relationship between international criminal law, human rights law and international humanitarian law 99 3.4 Conclusion 105 4 Crimes against humanity revisited 106 4.1 Threshold requirements 108 4.2 A methodological note: separating threshold elements from the elements of underlying offences 124 4.3 Deportation or forcible transfer of population 126 4.4 Enslavement 142 4.5 Persecution 156 4.6 Apartheid 171 4.7 Murder 181 4.8 Extermination 184 4.9 Torture 188 4.10 Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental orphysical health 190 4.11 Conclusion 196 5 Four groups of war crimes and the forgotten trial of Gauleiter Greiser 198 5.1 Preliminary steps: human rights law on ESCR and war crimes 202 5.2 Particular war crimes offences and ESCR violations 207 5.3 Conclusion 237 6 Genocide and the battles Raphael Lemkin did not lose 239 6.1 The mens rea of genocide 244 6.2 Actus reus 261 6.3 Conclusion 269 7 Torture, slavery and other crimes overlapping with ESCR violations 271 7.1 Slavery-related practices 272 7.2 Torture 278 7.3 Apartheid 284 7.4 Aggression 285 7.5 Terrorist offences 288 7.6 Unlawful use and emplacement of certain weapons 291 7.7 Laundering proceeds of crime 292 7.8 Corruption 294 7.9 Destruction or theft of national treasures 297 7.10 Unlawful movements of hazardous waste and the use, import and export of persistent organic pollutants 298 7.11 Unlawful acts against internationally protected elements of the environment 301 7.12 Conclusion 302 8 Corollaries of qualifying ESCR violations as international crimes 304 8.1 Jurisdiction and reparation before the International Criminal Court 304 8.2 Jurisdiction in national courts and state obligations to take action against international crimes 308 8.3 Legal corollaries for truth commissions, national human rights institutions and institutional vetting processes 336 8.4 Liability of non-state actors 338 8.5 Security Council action and the responsibility to protect 340 8.6 Conclusion 341 9 Conclusions 343 9.1 The research, its objectives and main findings 343 9.2 Argued concerns and reflections on the contribution of the research findings 348 9.3 The limits of the main finding 358 9.4 Whether international criminal law should be revised 363 9.5 Further research 363 9.6 Final remarks 366 Select bibliography 369 Index 384 "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"-- Résumé de l'éditeur "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"-- Provided by publisher Based on an examination of the elements of international crimes, Evelyne Schmid 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 such rights deserve to be taken seriously, for much the same reasons as other international crimes Since 2006, scholars and practitioners have debated whether transitional justice and international criminal law could and/or should engage with economic, social and cultural abuses. Evelyne Schmid's systematic examination of the question will appeal to those working in international criminal law, human rights law, international humanitarian law and post-conflict justice reform.