War Crimes Related to Violations of Economic, Social and Cultural Rights

Abstract

Armed conflicts severely affect the enjoyment and realisation of economic, social and cultural rights (ESCR). Considerations on ESCR are, however, largely absent in strategies to deal with the legacy of armed conflicts, be it in criminal prosecutions, truth-seeking exercises or other measures of post-conflict justice. This lack of attention not only fails many victims of armed conflict, but is also legally unwarranted. The definitions of many war crimes, de lege lata , include violations of ESCR within their underlying constitutive elements. I analyse four groups of war crimes – war crimes against persons, war crimes against property, war crimes consisting in the use of prohibited methods, and war crimes consisting in the use of prohibited weapons – and find that the same facts can sometimes simultaneously constitute a violation of the right to food, housing, education or health under human rights law, and give rise to individual criminal responsibility under the accepted definitions of war crimes. There are therefore no legal reasons to conclude a priori that ESCR violations should not or cannot be addressed by attempts to deal with the legacy of war crimes