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

Is international criminal law adequate in respect of ‘economic abuses’ such as corporate complicity in human rights abuses or harm arising through the exploitation of resources from conflict-affected areas? Attempts to assess the adequacy of international criminal law to deal with ‘economic abuses’ have given rise to a complex and multi-layered debate. Authors have analysed a range of different phenomena, making it challenging to generalise conclusions on the suitability of existing international criminal law. Against this background, it is crucial to distinguish different types of ‘economic abuses’ if we are to assess the adequacy of international criminal law to address them. To do so, I propose a three-dimensional model to disentangle the various categories of ‘economic abuses’. Depending on whether the actor, the harmful activity, and the affected legal interests are economic or non-economic, legally distinct types of ‘economic abuses’ can be discerned. Through exploring three specific constellations, the article demonstrates that the adequacy of international criminal law varies significantly for the various types of ‘economic abuses’. The model aims to serve as an analytical entry point to distinguish the nature and extent of the legal challenges in a factual scenario and contributes to the elaboration of nuanced and meaningful conclusions on the relative adequacy of international criminal law in relation to ‘economic abuses’

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

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

Liberia’s Truth Commission Report: Economic, Social and Cultural Rights in Transitional Justice

In early 2009, the Truth and Reconciliation Commission of Liberia (TRC) released the first volume of its final report. The report claims that the root causes of the civil war that devastated Liberia between 1989 and 2003 were poverty, corruption, and inequality. Despite this diagnosis, the Commission’s legal analysis of past abuses barely touches upon violations of economic, social, and cultural rights (ESCR). Likewise, many transitional justice processes around the world sideline considerations of ESCR. This article, based on an analysis of the first volume of the final report of the TRC of Liberia, outlines why violations of ESCR should be addressed by transitional justice processes. This paper also provides recommendations for the final two volumes of the report, to be issued in June 2009

Transitional Justice Information Handbook

The tasks of promoting justice, compensation, and reconciliation after conflict are challenging and can take many years to achieve. This handbook briefly illustrates approaches that have been employed in numerous countries to promote post-conflict transitional justice. Past experience demonstrates that transitional justice mechanisms work best if they are combined in a comprehensive strategy: Judicial measures like trials and legal reforms, and non-judicial measures like truth commissions and compensation schemes can and should complement each other. This guide also identifies some of the difficult choices that societies must make in their struggle to rebuild their society and their state while confronting the legacy of the past: whom to hold accountable, how victims may be satisfied, and how security and justice sector institutions can be reformed

Thickening the Rule of Law in Transition: The Constitutional Entrenchment of Economic and Social Rights in South Africa

This chapter examines the ability of the South African Constitutional Court to apply economic and social rights (ESR) and whether the constitutionalization of ESR represents a mechanism capable of entrenching a substantive or ‘thick’ conception of the rule of law. The chapter considers ‘transformative constitutionalism’ and its ability to fulfil the ambitions of setting out to establish a society based on social justice and fundamental human rights. The South African jurisprudence after the constitutionalization of human rights, in particular ESR, has been praised by the international community. Nevertheless, the central tenets of the chapter are two cautionary findings. First, the analysis cautions against using constitutional change alone to enhance the rule of law after conflict or oppressive rule. Although constitutional adjudication in South Africa has had positive outcomes, modifying the place accorded to international law in the domestic legal system is largely insufficient for the realization of ESR and the ‘thick’ conception of the rule of law envisioned by the drafters of the 1996 Constitution. Second, the chapter finds that a domestic belief in the relevance of international and national legal norms was decisive in the South African experience. The constitutional empowerment of domestic courts to apply international legal principles would not, by itself, explain the practice of national courts insisting on the implementation of rights recognized in international law. Moreover, a number of unique factors related to the actors and process leading to the constitutional transformation in South Africa contribute to explain the remarkable transition towards an international law-friendly constitution. While the empowerment of domestic courts in South Africa provides lessons for other states, those lessons are primarily ones regarding limitations, complexities, and context-specific issues that arise in the empowerment of domestic courts to apply international legal principles in situations of transition

Neue Kriegsmaterialverordnung verbietet Schweizer Rüstungsexporte in Konfliktstaaten

Am 27. August 2008 änderte der Bundesrat die Verordnung über das Kriegsmaterial (KMV). Die neue Verordnung sieht unter anderem vor, dass die Schweiz keine Exporte mehr an Staaten bewilligt, «welche in einen internen oder internationalen bewaffneten Konflikt verwickelt sind». Der Beitrag diskutiert die Auslegung der Kriegsmaterialverordnung

Umsetzungskriterien bei Volksinitiativen in Form einer allgemeinen Anregung: ‘Nume nid gschprängt’ oder das Beispiel einer lange vergessenen Stadt-Berner Volksinitiative

Wie lässt sich abstecken, ob bzw. wann eine Volksinitiative in der Form der allgemeinen Anregung als angemessen umgesetzt betrachtet werden kann? Der vorliegende Beitrag diskutiert diese Frage anhand eines aktuellen, aber kaum bekannten Beispiels einer allgemeinen Anregung in der Gemeinde Bern, welcheganze 27 Jahre nach der Volksabstimmung nun doch noch umgesetzt werden soll. What minimum criteria exist to evaluate whether a popular initiative in the form of a general proposal has been adequately implemented? This essay discusses this difficult question with the use of a case-study based on the example of a little known general proposal in the municipality of Berne. 27 years after its adoption, this long-forgotten initiative is finally in the process of being turned into practice

Re-Focusing on Protecting Civilians' Basic Safety and Why We Need to Know Why People Kill: On the Latest Reports of the Secretary-General on the Protection of Civilians in Armed Conflict

The concept of protection of civilians in armed conflict and the respective roles of peace operations and other actors have not been conclusively defined. This article considers the Secretary-General’s latest reports on protection, in particular the two most recent ones (29 May 2009 and 28 October 2007). The author argues that the understanding of effective protection strategies should be informed by a diagnosis of the warring parties’ motivations to use deliberate violence against civilians. Analyzing why humanitarian law, human rights law and refugee law are disregarded in many conflicts can help to improve protection strategies. An analysis of the warring parties’ motivations may also caution against the belief that there is a system out there that can always protect people in ongoing conflict if only humanitarian actors would improve their modus operandi. Consequently, this article suggests that the notion of protection should remain in close touch with the idea of immediate basic safety. The author recommends that the Secretary-General should insist in future statements and reports that a sound approach to protection requires a diagnosis of why fighting parties chose to attack and threaten civilians. If the diagnosis shows that the armed parties have incentives to disregard basic legal norms and morals; the SC needs to demonstrate real political will to give the concept of protection the meaning it has in conventional language or in the alternative, honestly avoid using it

Book Reviews: Methods of Human Rights Research , eds. Fons Coomans, Fred Grünfeld and Menno T. Kamminga. Transitional Justice in Balance: Comparing Processes, Weighing Efficacy , Tricia D. Olsen, Leigh A. Payne and Andrew G. Reiter

One of the biggest challenges facing researchers and practitioners working in transitional justice is the urgent need to create an evidentiary foundation that justifies and facilitates decision making in policy and practice. The two books reviewed here provide methodological tools and a groundbreaking empirical analysis of multiple combinations of transitional justice mechanisms across regions, countries and time periods

Women's Freedom from Want After Armed Conflicts. Does the Inclusion of Economic, Social and Cultural Rights in Transitional Justice Help Women?

This article deals with gender in transitional justice from the lens of women’s “freedom from want”, that is women’s enjoyment of basic economic, social and cultural human rights (ESCR), such as the right to freedom from hunger, the right to non-discriminatory access to health-care, housing or work. Women and girls have often been disproportionally affected by the effects and consequences of violent conflict. Some progress has been made in including gender considerations in approaches dealing with a violent past. However, the current approaches to deal with gender issues in transitional justice suffer important limitations. This paper focuses on one of them. It outlines the consequences of limiting transitional justice strategies to civil and political rights in so far as gender dimensions of the conflict are concerned. The article argues that by narrowly focusing on violations of civil and political rights, transitional justice mechanisms gloss over important gender dimensions of the past conflict