“…Those who use weapons and resources and violate human rights are as guilty as those who collaborate in business with them. Both groups should face tangible sanctions, investigations and criminal trials.”(1)
Whether in times of peace or during armed conflict, trade occurs, which sometimes leads to serious, systematic and widespread economic crimes. As with other core crimes, national states are often unwilling or unable to prosecute such large-scale crimes by themselves. (Core) international criminal law remains the most effective tool to “stop the culture of impunity” for serious economic criminal offences. Then, if the detrimental consequences of national wrongdoing can no longer be confined to the place of perpetration, the International Criminal Court’s (ICC) principle of complementarity might be needed to incentivize national states in prosecuting relevant offences. These aspects imply two things for international justice. First, the culture of impunity for serious economic criminal offences increases and second, an adequate response from international and national criminal law is expected. By connecting international criminal law with international human rights law, serious economic violence does find its place within the jurisdiction of the ICC, without the need of amending its Statute (ICCSt). The same could be true for national provisions on crimes against humanity and its understanding.
As stated in the Preamble of ICCSt, the jurisdiction of the ICC is limited to the most serious crimes of concern to the international community as a whole that threaten “security, peace, and the well-being of the world.” In my opinion, serious (transitional) economic offences undoubtedly belong to this narrative and while some of these crimes are already listed as war crimes under the ICCSt (i.e. pillage), they should also find their place in the Statute during peacetime as crimes against humanity. Ignoring that serious economic crimes, often represent economic violence(2) characteristic of transitional and post-conflict countries, can lead to another cycle of armed conflict and/or physical violence as well as to internal and external insecurity. As reaffirmed in many UN and regional documents, sustainable peace requires an integrated approach, which is based on the development of security policies that are consistent with human rights, and includes gender equality, the rule of law and justice activities. For example, the UN resolution 2122 (2013) recognized the need to address the gaps and strengthen the links between UN peace and security in the field, as well as human rights and development work as a means of addressing the root causes of armed conflicts and security threats to women and girls in the pursuit of international peace and security. As recognized by the European Union and the United Nations, stable economies represent a fundamental prerequisite for peace.
The factual interrelationship between serious economic offences, especially large-scale corruption, and violent offences may mean that efforts to prosecute war criminals are undermined by the failure to address economic violence. This statement is in line with the transitional justice discourse on the need to address the root causes of conflict, and thereby tackles violations of economic, social and cultural rights.(3) The same discourse is present in the narratives of human security, as visible in the Global Strategy for the European Union´s Foreign and Security Policy from 2016.
The inseparability between economic crimes and human rights is not to be doubted. Serious economic crimes infringe on economic, social and cultural rights, but they also violate civil and political rights (which are often perceived as the protected interests of existing core crimes). Economic, social and cultural rights are also breached by physically violent crimes. Schmid’s study from 2012 already provided examples for the prosecution of gross violations of economic, social and cultural rights through existing core crimes by international tribunals.(4)
By ignoring these crimes and violations – unlike what international human rights law and transitional justice do – core international criminal law no longer responds to the needs of societies and individuals. Of course, where there is enough evidence, the prosecution of businesspersons as perpetrators, accomplices and abettors of core crimes remains a possibility. Nevertheless, the question is whether it should remain the only option. In order to respond to today’s challenges and to address the root causes of conflict, prosecuting serious economic crimes as crimes against humanity is, in my opinion, long overdue. Although crimes against humanity have emerged from international humanitarian law as an extension of the category of war crimes, they are understood today to be “closely linked to the gradual expansion of international human rights law.” Therefore, it is important to connect the international criminal law with international human rights law based on Art. 21 (3) of the ICCSt. According to this provision, the application and interpretation of law pursuant to Art. 21 must be consistent with internationally recognized human rights.
Crimes against humanity fall under the ICC jurisdiction if some of the acts enlisted in article 7 of the ICCSt(5) are committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Besides the defining acts, there also lies a possibility that crimes against humanity are committed as “other inhumane acts of similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”, as described in article 7(1) (k) of the ICCSt. The phrase “intentionally causing great suffering or serious injury to body or to mental or physical health” is an effort to define this paragraph in a way which will be consistent with the cardinal principle nullum crimen sine lege.(6) The Rechtsgut in need of protection by prosecuting serious economic crimes that fall within the category of core crimes on an international level is comprised by the “security, peace and well-being of the world. In turn, the ICC’s possible engagement with economic violence has a legal basis without the need of amending the ICC Statute.
However, one should be cautious about an overly broad inclusion of economic crimes under the ICCSt, especially since there is no common agreement on precisely which offences do fall under the notion of economic crimes. In light of Art. 21 para. 1 (b) of the ICCSt,(7) offences under the UN Convention Against Corruption seem to be plausible candidates if they meet the criteria for being categorized crimes against humanity.
The arguments proposed do not fall short from the Office of the Prosecutor’s (OTP) Policy Paper on Case Selection and Prioritization from 2016. According to this Policy, the Office of the Prosecutor of the ICC will select cases for investigation and prosecution in light of the gravity of the crimes, the degree of responsibility of the alleged perpetrators and the potential charges. The impact of crimes may be assessed in light of, inter alia, the suffering endured by the victims and their increased vulnerability, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities. Moreover, in the same Policy Paper on case selection and prioritization, it is added that the Office will give particular consideration to prosecuting ICCSt’s crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.
To this end, “two paths lie open: strengthening the inadequate norms and mechanisms that currently exist, and beginning to contemplate the creation of a new legal regime better adapted to tackle this problem.”(8) If the ICC proves to be an inadequate body to tackle root causes of conflicts by prosecuting serious economic crimes as crimes against humanity, international justice might require new institutions. In any case, if one wants to respond to today´s realities, serious economic crimes should be placed at the core of international criminal law.
Assist. Prof. Dr. Sunčana Roksandić Vidlička was a doctorate candidate of the Criminology Department at Max Planck Institute of Foreign and International Criminal Law (MPI), writing her dissertation as Cotutelle de thèse between the University of Zagreb´s Faculty of Law and Freiburg University’s Faculty of Law. She teaches at the Zagreb Faculty of Law and is a member of the Max Planck Partner Group for Balkan Criminology (MPPG BC). She is the Head of the Croatian Unit for the International Network of the UNESCO Chair in Bioethics and a member of UNODC Anti-Corruption Academic Initiative. In 2017 she was a (co-) rapporteur for AIDP on the topic individual criminal responsibility for businessman on international crimes. She is the head of Jean Monnet Project Advanced Seminar in EU Criminal Law and Policy. In 2011 she received the Annual Award for the best young scientist in social sciences by the Society of University Professors and other Scientists of the University of Zagreb. She has published in English, Croatian and German on issues which concern breaching and strengthening international human rights, primarily economic and social ones, by mechanisms of national and international criminal law. In 2017 she published a book Prosecuting Serious Economic Crimes as International Crimes, A New Mandate for the ICC (Duncker &Humblot, Berlin, reseach series of MPI, MPPG BC).
*Sunčana Roksandić Vidlička (PhD Freiburg/Zagreb). Findings in this article represent the main conclusions from her forthcomming book; Prosecuting Serious Economic Crimes as international Crimes, A New Mandate for the ICC?, Duckner&Humblot 2017. In this respect, also see: Filling the void: the case for international economic criminal law, ZStW, Germany, 2017: 129(3)1-34.
- Smith, C. J., UN Interregional Crime and Justice Research Institute, director, UNICRI, MPI, Freedom from fear Magazine, A call for new heroes (July 2015), pp. 9-11, p. 11.
- Economic violence’ in various forms, including widespread corruption, theft and looting from civilians, plunder of natural resources to fuel wartime economies and fill warlords’ pockets, and other violations of economic and social rights, is also deeply woven into the narrative of many modern conflicts, as both driver and sustainer (Sharp, D.N.., Economic Violence in the Practice of the African Truth Commissions and Beyond, in: D. Sharp (ed.), Justice and Economic Violence in Transition. Springer (2014), p. 79.).
- See UN Human Rights Office of the High Commissioner Publication on Transitional Justice and Economic, Social and Cultural Rights (2014), available online at: www.ohchr.org/Documents/Publications/HR-PUB-13-05.pdf.
- Published as Schmid, E., Taking Economic, Social and Cultural Rights Seriously in International Criminal Law, London, Cambridge University Press (2016).
- Murder, extermination, deportation, or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; Torture; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in para 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; Enforced disappearance of persons; The crime of apartheid (article 7 ICCSt).
- See e.g. Boot, M. revised by Hall, C. K.: Article 7, para 1(k) in: Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court, Second Edition. Hart, Nomos, C.H. Beck (2008), p. 233.
- According to this provision, the ICC will apply, in second place, where appropriate, applicable treaties and the principles and rules of interantional law, including the established principles of the international law of armed conflict.
- Schabas, W. A., War economies, Economic Actors and International Criminal Law in: Ballentine, K. & Nitzschke, H. (eds.), Profiting from Peace: Making the Resource Dimensions of Civil War, Lynne Rienner, Boulder (2005), pg. 26.