One Justice Project
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  • Date submitted: 1 Nov 2011
  • Stakeholder type: Major Group
  • Name: One Justice Project
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St r e n g t h e n i n g I n s t i t u t i o n a l Fr a m e w o r ks f o r

Su s t a i n a b l e D e ve l o p m e n t : En d i n g Im p u n it y f o r

Ec o n o m i c , So c i a l , a n d En vi r o n m e n t a l C r i m e s

Submission to the UN Conference on Sustainable Development

1 November 2011

The One Justice Project supports new thinking and measures dedicated to ending impunity for serious violations of international economic, social, and cultural rights and international environmental law at the 2012 United Nations Conference on Sustainable Development.

To this end, the One Justice Project makes the following four recommendations to States in the context of general debates, negotiations, and commitments on institutional frameworks for sustainable development.

Recommendation No 1: States should recognise t he critical importance of i ndividual criminal a ccountability in developing and strengthening institutional frameworks for sustainable development .

Over the past 25 years, States have adopted commitments, principles, and initiatives aimed at advancing and strengthening the interdependent and mutually reinforcing pillars of sustainable development ? economic development, social development and environmental protection ? at the local, national, regional and global levels.?1

However, States have failed to take steps to address serious violations of international economic, social, and cultural rights and international environmental law that undermine the very foundations of the economic, social, and environmental pillars of human development. Corruption, forced labour, pillage, large-scale environmental pollution and destruction, harmful medical experiments, and the deliberate and discriminatory denial of access to food, shelter, medical care, education, and culture remain common throughout much of the world.

1 Johannesburg Declaration on Sustainable Development, in Report of the World Summit on Sustainable Development, Johannesburg, South Africa, August 26 to Sept. 4, 2002, A/CONF.199/20 (New York, United Nations, 2002).


These serious violations of international law have severe and long-term consequences on the well- being of present and future generations and weaken the very conditions that make sustainable human development possible. Most importantly, they are not the product of a lack of resources or of structural factors beyond human control, but result from the deliberate and morally blameworthy acts and conduct of individuals that should be recognised as criminal in appropriate circumstances.

Mechanisms of criminal accountability for serious violations of international economic, social, and cultural rights and international environmental law can promote progress toward sustainable development by instituting the basic conditions of good governance, ensuring that laws are properly enforced and that individuals are held accountable for their violation, and providing marginalised communities with the rights and protections afforded by law, including recognition and redress to victims of crime. In these ways, the establishment of individual criminal accountability for acts and conduct that undermine the pillars of sustainable development finds support in an emerging international policy agenda that views the rule of law and legal empowerment as integral to

economic and social development, poverty eradication, and environmental protection.2

The One Justice Project recommends that States recognise that institutional frameworks for sustainable development must include fair and effective legal mechanisms for investigating and prosecuting all serious violations of international law that undermine the foundations of the economic, social, and environmental pillars of sustainable development.

Recommendation No 2: States should condemn the impunity that remains for serious violations of internat ional economic, social, and cultural rights and international environmental law .

The international community has made significant strides in ending impunity for serious violations of international law amounting to war crimes, crimes against humanity, and genocide ? the core international crimes that have been prosecuted and tried by both domestic and international criminal courts in the second half of the twentieth century. This current system of international criminal justice is founded on the principle that individuals should be held criminally accountable for the most serious violations of international law ? what the Rome Statute of the International Criminal Court defines as ?grave crimes that threaten the peace, security and well-being of the world? and

?atrocities that deeply shock the conscience of humanity.?3

But with few exceptions, international crimes focus on serious violations of civil and political rights and do not cover the serious violations of international economic, social, and cultural rights and international environmental law that are of direct relevance to sustainable development.4 Moreover,

2 World Summit on Sustainable Development, ?Johannesburg Principles on the Role of Law and Sustainable Development,? adopted at the Global Judges Symposium, August 2002; Commission on Legal Empowerment of the Poor and United Nations Development Programme, ?Making the Law Work for Everyone,? (2008) Report of Commission on Legal Empowerment of the Poor, Volume I.

3 Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the

Establishment of an International Criminal Court, U.N. Doc. A/CONF.183/9, (1998), Preamble.

4 Exceptions include the crimes against humanity of persecution (Rome Statute, Article 7(1)(h)) and other inhumane acts

(Rome Statute, Article 7(1)(k)) and the crime of genocide of deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part (Rome Statute, Article 2(c)), although there is little

authority in support of their expansion to economic, social, and cultural rights. Relevant war crimes include starving civilians as a method of warfare (Rome Statute, art. 8(2)(v)(xxv)), subjecting individuals to harmful medical or scientific


the scope of application of international crimes, especially in cases before existing domestic and international courts, has focused on behaviour that is essentially limited to situations involving physical violence on a large scale.5 Although there are understandable historical and political factors that explain this focus on armed conflicts and physical violence, the exclusion of other serious

violations of international law with equally grave consequences for human populations from the scope of international criminal law has troubling implications for the integrity of international law and the access to justice that it provides for victims of morally opprobrious acts.

The problematic limited focus of international criminal law is all the more striking when one considers the few existing international crimes that engage with economic, social, and environmental harm. For instance, while subjecting individuals to harmful medical or scientific experiments or causing widespread, long-term and severe damage to the natural environment are war crimes when committed in the context of an armed conflict, equivalent behaviour, with equivalent consequences, of the sort that frequently takes place in the context of peace is simply not a crime under international law.

Despite the critical importance of repressing these serious violations of international law for securing the peace, security and well-being of the world, they remain outside the scope of existing treaties and institutions in the field of international criminal law. This is yet another way in which the international community has failed to abide by the principle of international human rights law that all

human rights are equal, interrelated and indivisible.6 As noted by the U.N. Committee on Economic, Social and Cultural Rights in other context, ?despite the rhetoric, violations of civil and political rights continue to be treated as though they were far more serious, and more patently intolerable, than

massive and direct denials of economic, social and cultural rights.?7

The One Justice Project recommends that States condemn the impunity that remains throughout the world for a whole range of serious violations of international law, namely international economic, social, and cultural rights and international environmental law, and should recognise that these violations are the product of behaviour by individuals that is sufficiently deliberate and morally opprobrious to be recognised and treated as criminal in both domestic and international law.

experiments (Rome Statute, art. 8(2)(b)(x)), and causing widespread, long-term and severe damage to the natural environment (Rome Statute, art. 8(2)(b)(iv)).

5 War crimes are committed in the context of an armed conflict, crimes against humanity are committed as part of a

widespread or systematic attack against any civilian population, genocide involves the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, and aggression involves the use of armed force against a State or other acts that threaten international peace and security.

6 The equality of rights vision has been reaffirmed repeatedly by the international community in instruments including

the Proclamation of Teheran (1968) Art. 13 (?Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights, is impossible??);

U.N. General Assembly Resolution 32/310 (1977) Art. 1(a) (?All human rights and fundamental freedoms are indivisible and interdependent, equal attention and urgent consideration should be given to the implementation, promotion and protection of both civil and political, and economic, social and cultural rights. and the Vienna Declaration and Programme of Action, as adopted by the World Conference on Human Rights on 25 June 1993, U.N. Doc. A/CONF.157/23, para. 5 (?All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis??).

7 CESCR, Statement to the World Conference on Human Rights, U.N. Doc. E/1993/22, para. 5.


Recommendation no 3: States should commit to taking all appropriate steps for investigating and prosecuting serious violations of international economic, social, and cultural rights and international environmental law that amount to existing domestic or international crimes.

The impunity that subsists for serious violations of international economic, social, and cultural rights and international environmental law is all the more problematic given the overall, well-recognised weakness of enforcement mechanisms in these fields. More often than not, serious violations of international economic, social, and cultural rights and international environmental law are not recognised as crimes or are not treated as such by legal authorities. As a result, civil society actors in developing and developed countries have had to resort to civil liability to obtain a measure of justice and compensation for serious violations of international economic, social, and cultural rights and international environmental law. However, civil liability remains a costly, time-consuming, and ultimately unsatisfying alternative to mechanisms of criminal investigation and prosecution. Civil liability does not capture the gravity, morally blameworthiness, and the harmful consequences that can characterise conduct amounting to serious violations of international economic, social, and cultural rights and international environmental law. Indeed, the notion that such behaviour should merely give rise to civil liability, rather than criminal liability, feeds the perception that it is not especially morally opprobrious and that it falls within the range of acceptable human conduct.

The deliberate nature, grave consequences, and frequency of serious violations of international economic, social, and cultural rights and international environmental law requires that they be recognised and treated as crimes by all States. To some extent, this can be achieved through the enforcement and extension of existing domestic and international crimes that encompass acts and conduct amounting to serious violations of international economic, social, and cultural rights and international environmental law.

The One Justice Project recommends that States take all appropriate measures at the domestic and international levels to ensure that serious violations of international economic, social, and cultural rights and international environmental law that amount to existing crimes are investigated and prosecuted as such.

Recomm endation no 4: States should commit to negotiating an international convention for the prevention and repression of economic, social, and environmental crimes.

Ending impunity for serious violations of international economic, social, and cultural rights and international environmental law requires more than changes in the enforcement of existing domestic and international crimes however.

Serious violations of international economic, social, and cultural rights and international environmental law frequently result from governance gaps arising from the activities of transnational corporations. A patchwork of weak, non-existent, or inadequately enforced laws across borders has resulted in gaps in the governance of transnational corporations operating in developing countries, providing a ?permissive environment for wrongful acts by companies of all


kinds without adequate sanctioning or reparation.?8 While criminal law at the domestic level may offer opportunities to take action against individuals responsible for corporate abuses, governments in developed and developing States have generally been unwilling or unable to investigate and prosecute the acts and conduct of corporate directors and officers.

Any serious effort aimed at addressing these governance gaps must provide consensus definitions of criminal violations of international economic, social, and cultural rights and international environmental law, ensuring consistency and coherence between judicial systems across the world. Rule of law assistance will be required to enable developing States to strengthen their existing enforcement mechanisms and ensure that they can consistently enforce relevant domestic criminal provisions covering these serious violations of international law. The establishment of forms of extra-territorial liability will also be critical, enabling States to take jurisdiction over crimes allegedly committed abroad by their nationals or directors or officers of nationally incorporated corporations. Finally, obligations and mechanisms for international judicial cooperation between States will be required to coordinate the efforts of States in the fight against impunity for these crimes.

In sum, what is needed is a stand-alone international convention that would require state parties to exercise criminal jurisdiction over serious violations of international economic, social, and cultural rights and international environmental law. Following the model employed for crimes of international concern, such as the theft of nuclear materials, terrorist bombings, or torture,9 such a

convention could define relevant economic, social, and environmental crimes, commit state parties to enacting these crimes in their national legislation, investigating and prosecuting cases falling within their jurisdiction, and cooperating with other States in investigations and prosecutions.

The One Justice Project recommends that States commit to initiating negotiations aimed at elaborating and adopting an international convention that identifies and defines the most serious violations of international economic, social and cultural rights and international environmental law as crimes of international concern; creates grounds of jurisdiction for their effective investigation and prosecution by states; obliges states to initiate investigate and prosecute alleged crimes falling within their jurisdiction; and provides mechanisms for international judicial cooperation, support, and capacity-building.

8 Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, Protect, Respect and Remedy: a Framework for Business and Human Rights, U.N. Doc. A/HRC/8/5, para. 3.

9 See, e.g., Convention on the Physical Protection of Nuclear Material, 3 Mar. 1980, 1987 U.N.T.S. 125; International

Convention for the Suppression of Terrorist Bombings, 15 Dec. 1997, 2149 U.N.T.S. 256; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 Dec. 1984, 1465 UNTS 85.


Overview: The One Justice Project Conception of Economic, Social, and Environmental Crimes

Each of the crimes listed below is a serious violation of existing obligation of international law and draws on wording from international treaties, declarations, cases, and reports. For specific references on sources and wording, see: www.onejusticeproject.org.

Economic Crimes

? the appropriation of private or public property without lawful basis or legal justification;

? the embezzlement, misappropriation or other diversion of public resources or property by a public official; and

? the exaction of work or service from any person under the menace of any penalty and for which the said person has not offered himself or herself voluntarily.

Social Crimes

? the discriminatory denial of access to primary, secondary, technical, vocational and higher education;

? the discriminatory denial of access to minimal levels of water and food sources;

? forced evictions;

? the discriminatory denial of access to minimal level of medical services, facilities and treatments;

? the subjection of persons to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; and

? the discriminatory systematic destruction, prohibition or diversion of books, religious works, historical or religious monuments, or documents and objects of historical, artistic, cultural or religious value.

Environmental Crimes

? the causing of widespread, long-term and severe damage to the natural environment; and

? the unlawful pollution of air, water or soil through the release of harmful substances or organisms which cause death to or seriously endanger the health of affected persons.

The One Justice Project (1JP) seeks to end impunity for serious violations of international economic, social, cultural, and environmental rights, wherever they are committed. Through innovative and collaborative research, advocacy, litigation, and capacity-building activities, 1JP works for the recognition, investigation, and prosecution of these violations as crimes under national and international law.

For further Information on 1JP, visit www.onejusticeproject.org or contact Sébastien Jodoin (sebastien.jodoin@onejusticeproject.org), Katherine Lofts (katherine.lofts@onejusticeproject.org), or Yolanda Saito (yolanda.saito@onejusticeproject.org).

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