Transnational Holocaust Litigation and Corporate Accountability for Atrocities Beyond Nuremberg

Annika van Baar is a criminologist and historian, currently working as a post-doc researcher at Resilient Societies, Faculty of Law, Economics and Governance, Utrecht University, the Netherlands. She wrote het PhD research on corporate involvement in international crimes in Nazi Germany, Apartheid South African and the Democratic Republic of the Congo. 


Discussions on corporate accountability for genocide, crimes against humanity, war crimes and human rights violations almost invariably start with a reference to the Industrialist Trials at Nuremberg (1945-1949). These trials are usually invoked as the starting point and background of corporate accountability for involvement in atrocities. In her book ‘The Holocaust, Corporations and the Law’, Leora Bilsky approaches the discussion on corporate accountability using a different set of trials: the transnational civil litigation trials of the 1990s and 2000s. In these trials, victims sought redress from corporations that had been involved in the crimes committed by the Nazi regime during the Second world war. In her fascinating book, Bilsky argues that Transnational Holocaust Litigation (THL) was capable of assigning corporate accountability in ways that criminal law or other types of transitional justice mechanisms could not. She specifically points at the value of the historical corporate data that was opened up by these trials and the resulting historical research. 

Bilsky gives a clear and important account of how the structure and customs of a certain legal approach, such as (international) criminal law or private law, shape the lens through which the corporate wrongdoing is addressed. ICL tends to be seen as the preferred legal approach for crimes as heinous as the Holocaust and, by some, for corporate involvement in atrocities. The ICL approach, however, makes it difficult to effectively deal with collective, structural and mutually reinforcing patterns that underlie atrocities because it tends to deal with the exceptional and individual. 

In this contribution, I would like to consider two often-made distinctions, criticized by Bilsky, that distort common conceptions on corporate involvement in atrocity crimes. The first is the distinction between the public and the private sphere during the commission of atrocities. The second is the distinction between economically and ideologically driven crimes. I end by raising some questions on the likely success of THL-type processes – and the histories they can produce – for transitional and international justice. 

Bilsky shows that a distinction between private actors on the one hand and public actors on the other hand is not clear in the context of the Holocaust. Critical criminologists, such as those who have coined the concept of state-corporate crime [1], argue that ‘what is economic is always political and what is political is always economic’: the private and the public sphere, at the state level, are not easily disentangled. This is especially true for totalitarian and authoritarian states as they tend to align the business sector with their political goals. Governments such as the Nazi regime are able to exercise considerable legal and institutional control over economic actors and restrict the market conditions in which economic actors operate. At the same time, they are dependent on corporate capital, productivity, technology and expertise to pursue their ideological goals.  

This brings us to the strong distinction made at Nuremberg between ideologically motivated crimes, on the one hand, and economically motivated crimes on the other. Historical research has since shown that precisely the interaction between economic and ideological motives is important in understanding corporate involvement in the Holocaust. I would like to add to this referring to two insights from my own (criminological) research on corporate involvement in international crimes.[2]  

First, even when corporations contribute to ideologically driven (and economically senseless) crimes, their corporate activity tends to be motivated by economic considerations: corporations are hard-wired to seek minimization of losses and maximization of profits within the circumstances in which they operate. This is one interaction between the ideological and the economic: the latter tends to be employed to achieve the goals of the former. Cooperation between (ideological) state actors and (economic) corporate actors towards atrocities can benefit both the public and the private actor. In fact, such state-corporate cooperation tends to be presented as mutually beneficial. During the Holocaust, however, as historical research shows, state-corporate cooperation towards atrocities mostly benefitted the state. That business profited greatly from the Holocaust, as Bilsky appropriately underlines, is a persuasive historical falsehood.  

A second reason ideology cannot be fully separated from economic considerations is that ideology can be an important aspect of the social context in which corporations operate. In Nazi Germany, corporate cultures were intentionally nazified and corporations operated under close government control. Therefore, anti-Semitic, anti-communist and pro-Germanic notions were part of everyday life. In Nazi Germany, ideological notions, socially shared, enabled corporations to conduct and continue corporate activity that led to involvement in the Holocaust. These notions contributed to their relative conformity to Nazi policies and enabled them, inter alia, to ‘Aryanize’ their workforces and employ slave laborers to keep up war production while still perceiving their corporate activity to be ‘business as usual’. In other words, as part of societal and corporate culture, ideology can enable corporations to perceive their (profit-seeking) corporate activity as appropriate and desirable even when it violates moral and social (or even legal) norms.  

The interplay between profit-seeking and ideology is not unique to the context of Nazi Germany. In Apartheid South Africa (1948-1994), white South African owners, managers and employees profited from apartheid and never actively opposed its practices even when the South African economy stagnated in the late 1970s. In the face of world-wide anti-apartheid and a common recognition that apartheid economics was irrational, corporations continued to justify their business activities by ideological notions of white superiority and entitlement and through their fear of (black) communism amongst South Africans. They did so even as their profits suffered because their economic considerations and ideological notions had become intertwined.  

Bilsky impressively shows that the model of the THL, as a hybrid legal mechanism, benefits the law-history relationship by spurring history-making that can properly cope with interactions between the private and the public and between the ideological and the economic. For me, however, the question arises what these histories mean to corporations: To what extent can more nuanced and more accurate histories of corporate involvement in the Holocaust contribute to, for example, a change in business culture, looking forward? To my knowledge, there are no indications that the well-researched monographs on German business under the Nazi Regime had any impact on the human rights records of those companies after the 1990s. While value of these histories for understanding corporate involvement in the Holocaust cannot be overstated, their broader relevance might be limited.   

Finally, the status of the Holocaust and the particularities of its aftermath may render the THL model less promising in other contexts. The Holocaust may not be wholly unique as an atrocity but its aftermath and its status, at least in Europe and North America, is exceptional. This raises the question how the model would translate for more contemporary cases such as the involvement of corporations in atrocities in Argentina, the Democratic Republic of the Congo or Syria.  Nevertheless, Bilsky’s book leaves us with the important realization that the search for more adequate accountability for corporate involvement in atrocity crimes should not be fixated on (international) criminal law but should keep an open mind to the value of innovative forms of civil litigation.


[1]  See Kramer and Michalowski, State-Corporate Crime: Wrongdoing at the Intersection of Business and Government (2006).  

[2]  Van Baar (forthcoming) Corporate involvement in international crimes in Nazi Germany, Apartheid South Africa and the Democratic Republic of Congo. (PhD dissertation).  

Transnational Holocaust Litigation and Corporate Accountability for Atrocity

Joanna Kyriakakis is a Senior Lecturer at the Monash University Law Faculty and a Deputy Director of the Castan Centre for Human Rights Law. Much of Joanna’s scholarship has focused upon the applicability of international criminal law to corporations involved in atrocity. 


The legacy of Nuremberg looms large within contemporary debates about corporate accountability for atrocity. Legal historians and human rights lawyers alike are divided as to what that history teaches (if anything) about the norms of international law that apply to corporations, and whether and how justice might be achieved where corporate bureaucracies are vehicles for atrocity.  

In her excellent work, The Holocaust, Corporations, and the Law: Unfinished Business, Leora Bilsky challenges those concerned with corporate accountability today to discard our tendency towards narrow legalism in interpreting the history of Nuremberg.  Moreover, she challenges what she sees as our ongoing fixation upon the criminal law as the pre-eminent modality for seeking justice in cases of atrocity.  Both of these predilections, she argues, limit our legal imaginations about ways in which justice can be achieved in cases where corporations are involved in atrocity.  

More particularly, Bilsky sets out to disrupt the prevailing narrative that the transnational holocaust litigations of the 1990s (THL), brought in the United States against corporations that collaborated with the Nazi regime, were largely failures.  Many have criticised THL as a lesser form of justice, on the basis that they resulted in settlements negotiated in the absence of judicial merit determinations and thus failed to advance the legal norms regulating corporate behaviour.  By contrast, Bilsky elegantly and systematically demonstrates how, in the case of THL, ‘a legal settlement was transformed from a barrier to justice into a key mechanism that can enable belated justice to take place’ (at 2).  

She demonstrates this in a variety of ways, but in particular by showing how certain procedural innovations adopted in the litigations resulted in meaningful justice outcomes.  This included their prompting extra judicial processes that were valuable to victims, such as deep historical research.  This historical example thus invites us to place more emphasis in our thinking upon both the procedural and the extra-judicial when exploring possibilities for corporate accountability today. 

As someone whose work has focused upon the potential of international criminal law (including its domestic application) to pursue corporate accountability for atrocity, I was both enlightened by Bilsky’s historical analysis and largely in agreement with the central arguments she develops.  This includes the importance of pursuing creative transnational civil litigation opportunities, the potential of settlements to advance justice goals, the value of bringing a transitional justice framework to the question of corporate atrocity, and the ways in which extra-judicial processes are important when we assess justice outcomes. 

There are, however, some lesser claims in the book of which I am somewhat critical.  Perhaps unsurprisingly, given my own research focus, they are those claims related to continued attention to the potential of the criminal law.  I summarise briefly below. 

In the first parts of the book, Bilsky casts the value of a close re-examination of THL in terms of the claims that ‘criminal trials are poorly suited to addressing corporate accountability’ and given the distorting effects of ‘the continuing privilege enjoyed by the criminal law over the legal imagination’ (at 15).  The Nuremberg example, it is argued, demonstrates the former.  Yet, normative developments in the criminal law continue to be overvalued relative to civil processes and their potential.  However, I am not sure such claims are really demonstrated in the work, nor are they needed.  

To begin, at various points in the book it is implied that the Nuremberg era criminal jurisprudence is bereft of norms relevant to business involvement in international crimes.  I am not convinced this is true.  There are numerous works on the substantive normative principles of direct and indirect liability adopted at Nuremberg that are relevant to corporate atrocity crime, even if they demonstrate the narrowness of cases that are likely to succeed.[1]

Further, the so-called failure of the legal doctrines used at Nuremberg to tie crimes to corporate activity as evidence of the inability of criminal law to deal with collectives (on the basis that this results in collective punishment which is anathema to liberal criminal law)[2] is not entirely compelling.  This is because corporations were never charged at Nuremberg and so the question of corporate rather than individual criminal liability in corporate contexts was never directly addressed. 

Moreover, it may be true that Nuremberg demonstrates the significant limits of liberal criminal law in linking those motivated by profit to international crimes (with the crime of aggression particularly circumscribed) and that on many measures the industrialist trials were failures.  Both judicial and extra-judicial outcomes in the industrialist cases were influenced by particular ideologies of state/ industry power relations in Nazi Germany and by the politics of the era.[3]  Nonetheless, again neither of these facts leads to the conclusion that international criminal law is categorically ill-suited to corporate atrocity prosecutions nor that efforts towards its reform are ill-founded.  

Undoubtedly, liberal criminal law struggles with crime committed via complex bureaucratic structures, a challenge constituted in particular by the struggle between criminal law’s individualism and the plurality of actors and structures involved in bureaucratic crimes.  However, this is a challenge international criminal law is uniquely directed towards, making it arguably a more filial field to address corporate crime than, at least, its domestic counterparts.  It thus confuses me whenever this quality of corporate crime is described as uniquely distinct to the kinds of crime international criminal law is otherwise concerned with, thus warranting an entirely different approach. 

I am also not sure that criminal law is so greatly preferred in the scholarship on transnational corporate human rights accountability, at least if we look beyond the contemporary debates raging around the US Alien Tort Statute (ATS).[4]  Certainly, international criminal law is given a particular pride of place in international justice efforts related to atrocity, a fact of which we may generally be critical,[5] but its shadow is far smaller in the broader business and human rights dialogues and movements.  Indeed, an alternative critique might be levelled in terms of an over-emphasis in corporate human rights scholarship upon uniquely US procedural mechanisms versus exploring the potential of legal cultures, norms, and procedures in other parts of the world. 

Having said this, the emphasis on the US is understandable when we consider the unique potential that had been offered up by the ATS, which leads to my next observation.  The ATS operates at the intersection of substantive international criminal norms and US procedure.  Thus, even if creatively constituted THL-style litigation processes become an increasing site of scholarship, there remains related value in ongoing work aimed at clarifying the substantive international norms relevant to corporate behaviour.  With the exception of claims based entirely in domestic law, international norms are often needed to ground or at least support domestic redress processes for transnational corporate harms.  The recent existential crisis that faced the ATS at least in part hinged upon questions of normative international criminal law.  This observation is not limited to the ATS, as the potential applicability of victim redress mechanisms in other countries, through which creative justice outcomes might be forged, may likewise be linked to the scope of international criminal norms.  In other words, normative developments in international criminal law may still matter even in the context of exploring creative alternative remedies. 

There also remain, in my view, valid questions as to whether, and to what extent, international criminal law has some (albeit limited) role to play when dealing with accountability for atrocity.  To give but one example: from a victim-centric perspective the resort to garden variety torts or breaches of contract to pursue corporations for international crimes may be inadequate in vindicating victim rights, given the label of the wrong understates the precise harms suffered.[6] 

The point here is simply to say that the discussion around achieving corporate accountability today may be best advanced by exploring the multiplicity of justice modalities that, in different circumstances, may have more or less purchase.  In that respect, Bilsky’s work is an important addition to thinking around what and where the emphasis of some future scholarship might lie. 

One final observation relates to the production of independent documentary histories prompted by legal procedure.  In The Holocaust, Corporations, and the Law, Bilsky persuasively demonstrates how the deep documentary histories generated in part by the specific settlement procedures in the THL cases constitute a meaningful component of the justice achieved by those processes.  An interesting area for further study is how these might be replicated in other victim accountability strategies/ procedural innovations in the future.  It strikes me, also, that documentary histories of historical corporate collaborations with human rights abusing regimes have been generated even in cases where the potential of a legal judgment has remained on the table.[7]  The nature and depth of such histories may thus likewise warrant analysis, as pointed to by Bilsky’s work.  

The comments above are not intended to detract from the value of the work, which rests neither upon one’s assessment of the capacity of international criminal law as a vehicle for corporate atrocity accountability nor on an ideological position as to the value of efforts towards its reform.  The insights set out in The Holocaust, Corporations, and the Law’s should enrich our efforts into the future.


[1] See e.g. Sabine Michalowski, ‘No Complicity Liability for Funding Gross Human Rights Violations?’ (2012) 30(2) Berkeley Journal of International Law 451; Kyle Rex Jacobson, ‘Doing Business with the Devil: The Challenges of Prosecuting Corporate Officials Whose Business Transactions Facilitate War Crimes and Crimes against Humanity’ (2005) 56 Air Force Law Review 167.

[2] Leora Bilsky, The Holocaust, Corporations, and the Law: Unfinished Business (2017), Chapter 1.

[3] See e.g. Doreen Lustig, ‘The Nature of the Nazi State and the Question of International Criminal Responsibility of Corporate Officials at Nuremberg: Revisiting Franz Neumann’s Concept of Behemoth at the Industrialist Trials’ (2011) 43 New York University Journal of Law of International Law and Politics 965; Grietje Baars, ‘Capitalism’s Victor’s Justice? The Hidden Stories behind the Prosecution of Industrialists Post-WWII’, in Kevin Jon Heller and Gerry Simpson (eds), The Hidden Histories of War Crimes Trials (2013) 163.

[4] 28 USC §1350.

[5] See e.g. Mark Drumbl, Atrocity, Punishment and International Law (2007).

[6] This was the argument of certain victims against ATS claims against corporations being precluded and thus victims of corporate atrocity forced to litigate harms as ‘garden variety torts’: ‘Brief of Amici Curiae Dr. Juan Romagoza Arce, Cecilia Santos Moran, and Ken Wiwa in Support of Petitioners’, Submission in Kiobel v Royal Dutch Petroleum, No. 10-1491 (21 December 2011) 17-19.

[7] See e.g. Christopher Kopper, VW do Brasil in the Brazilian Military Dictatorship 1964 – 1985: A Historical Study (1 September 2017). This report was commissioned by Volkswagen following findings in 2014 of the Brazilian Truth Commission and after former employees filed a civil lawsuit against VW in Brazil in 2015.

How Private Law Could Help with “Unfinished Business”: A Comment on Leora Bilsky’s The Holocaust, Corporations and the Law

Mayo Moran is Provost and Vice-Chancellor of Trinity College, University of Toronto.  She previously served as Dean and James M Tory Professor of Law at the University of Toronto Law School.  Provost Moran has assisted with the implementation of the Indian Residential Schools Agreement, chairing a committee that oversees the tribunal that awards compensation for physical and sexual abuse.  She has written on the reasonable personlegal theory and the Chinese Canadian Head Tax case.  Her current research focuses on the role of law in redressing historic injustice.  Her new book, The Problem of the Past and How to Fix It, is forthcoming from Oxford University Press in 2020.  In addition to private law and legal theory, she currently teaches a course called “Ten Cases that Changed the World”. 


One of the central ambitions of Leora Bilsky’s excellent new book Unfinished Business is to cast new light on what the Nuremberg model obscures–the complicity, particularly economic complicity, of the private sector in enabling the mass atrocity of the Holocaust.  The Nuremberg model, Bilsky points out, “failed to comprehensively address the responsibility of economic ‘enablers’”  (1).  In the 1990s as Holocaust victims and former slave labourers filed class actions in US courts against Swiss banks and German companies, the law inched closer to addressing this larger and more diffuse responsibility for atrocity.  But as Bilsky notes, while the settlement of these claims may have been an unprecedented win in financial terms (1.25B by the Swiss banks and 5B by German corporations), for many commentators, it came at too high a cost.  The fact of settlement and its nature have tended to be seen as a missed opportunity to elucidate the nature of corporate responsibility for massive human rights violations.  But Bilsky’s reconceptualization of the significance of Transnational Holocaust Litigation (THL) challenges this conventional reading, arguing instead that it actually holds powerful lessons. THL, she points out, was one of the only instances in which “victims succeeded in making corporations pay huge amounts to compensate victims and acknowledge responsibility by opening their internal archives to research and publishing the findings” (3).   And with the growth of transnational corporate influence, such accountability is increasingly important.  So one particular promise of THL may accordingly be found in its ability to serve as a model for holding large transnational corporations liable for human rights abuses (2). 

Bilsky’s illuminating reconceptualization of THL is powerful and potentially extends well beyond the immediate lessons she focuses on in the book.  Making good on this possibility, however, may require some refinements in the conception of responsibility that she articulates. One of Bilsky’s overarching goals is to challenge the critiques that suggest that civil litigation and settlement are inapt ways to respond to grave human rights abuses.  For Bilsky the strength of THL is found in its “hybridity”—particularly of collective and individual responsibility.  Though made up of many elements, she identifies the two main strands of this hybrid form as international criminal law and American structural reform litigation.   It is here I would like to pause to suggest that this approach might benefit from some rethinking.  International criminal law is intensely individualized and morally laden.  Its contribution to THL is found in its normative power, which enables it to overcome problems of time and space—thus neutralizing obstacles such as limitations periods and immunities.   Complementing this is structural reform litigation.  It holds out the promise of responsiveness to bureaucratic violations of human rights, but only if it abandons the cornerstone of civil litigation—the principle of individual liability.  Bilsky does draw important features of her rereading of THL from this structural reform strand including the aggregated nature of both plaintiffs and defendants and perhaps more importantly, the managerial proactive role of the court.  However, structural reform litigation, with its roots in US constitutional law, also creates many other challenges for Bilsky’s account of responsibility.  This leads me to wonder whether it wouldn’t have been preferable for her hybrid model to draw more of its strength and normative content from the private law underpinnings that are so crucial to THL.  

This is not easy however.  The role that private law’s distinctive conception of responsibility could play in Bilsky’s hybrid approach is limited by her view that adopting the structural reform model requires giving up on individual liability.   This is a large concession and one that seems shaped by the sense that individual responsibility closely resembles criminal responsibility despite Bilsky’s obvious determination to distance her account from that paradigm.   ‘Individual’ liability in private law has from the beginning of course encompassed the liability of collective entities—from corporations to other institutions with legal personality to public authorities and indeed the state itself.   It is certainly true today that collective entities are far more likely to be defendants in private law actions than individuals.   However, and much more importantly for Bilsky’s account, since the development of the ‘general duty’ of care in negligence, private law responsibility has been in the process of a transition away from the ‘single wrongdoer’ conception of responsibility.  This shift is the result of an effort to capture the more complex, overlapping and attenuated forms of culpability that characterize modern life—the very kind of institutionalized responsibility that THL engaged and that Bilsky seeks to defend.  In fact, this more complex diffuse understanding of responsibility is now absolutely central to civil liability.  This is especially salient for Bilsky’s retelling of THL: from the private law perspective there is nothing inherently problematic about imposing such liability on a collective entity and it is not conventionally thought of as raising difficult questions of collective responsibility.  

 With this understanding of ‘individual responsibility’ in hand, it is possible to see how it could play a more constitutive role in Bilsky’s hybrid account—a role that would enrich the theory and assist with a number of features of THL that seem challenging for the structural reform model.  The most striking example relates to remedy.  Under the structural reform model that Bilsky borrows from Fiss, the remedy is not about the past but about the future.  It aims at preventing future violations of constitutional values and hence the injunction is the standard remedy.  Yet monetary compensation was a major part of THL remedies.   Such remedies were also overwhelmingly about the past, not the future.  Because this backward-looking orientation and its related compensation model are at odds with the structural reform class action, Bilsky considers it one of the most challenging aspects of her account of THL.  And indeed, while compensation to individuals is sometimes described by Bilsky using the language of justice, it also figures as an incentive to lawyers to enforce public goals (54) or to encourage corporations to internalize norms (73).  And although both of these effects may well be true, they miss, in my view, an opportunity to harness the normative power of private law responsibility to provide a substantive account of why reparations—or at least an effort at repair—matter intrinsically to THL and not just pragmatically.   Indeed, later in her excellent account of the claims process, Bilsky re-infuses her analysis with some of the private law content that she appeared to reject earlier.  For example, she challenges the efforts of defendants to characterize their payments as ‘humanitarian’ and notes, rightly I would suggest, that “private law’s conceptualization of responsibility as relational can be approximated through a class action settlement and does not require a full trial” (124).  But this sits awkwardly with the earlier commitment to the idea of giving up on individual responsibility.  It could be of course that such responsibility matters at the claims process level but not at the class action level, but this renders compensation conceptually confusing and problematic.   

Her analysis of claims processes also gestures towards the important idea that in the private law of responsibility, damages express the demand that the wrongdoer attempt to make the victim whole by compensating her for violations of her physical integrity, autonomy or property interests, for example.  Understood in this way, monetary payments from the wrongdoer to the victim are grounded in private law’s respect for personhood–compensation is the mechanism by which the law insists that wrongful injuries be repaired by those who inflicted them.  Here, however, it must be acknowledged that money is inevitably inadequate as a means of making a victim whole.   Moreover, the graver the injustice, the more pronounced that inadequacy will be.  Thus it is not surprising that the more that private law is called upon to address especially grievous violations of personhood, the more common it will be for other measures to accompany the demand for compensation. Bilsky does a brilliant job of elucidating the salience of these dimensions of THL—in particular with her discussion of the historical studies.  But the strength of this account would be greatly fortified by calling upon the normative power of private law’s reparative justice impulse rather than giving up on the contribution that the civil conception of individual liability could make.  

Recognizing the constitutive role of private law and the reparative justice impulse in THL itself would also extend the reach of Bilsky’s reading in important ways.  One important critique of THL is that is was ‘all about the money’.   The horrific scale of the wrongs addressed by THL make some version of this worry virtually inevitable, and perhaps that is a good thing.  Commodifying and thereby risking trivializing profound suffering is a concern we must remain alive to.   The overall trajectory of Bilsky’s argument makes a strong case for why this concern may not be as central as some critics might suggest.  However, the hybrid account of responsibility with its indebtedness to the structural reform model risks making compensation look like an incentive regime that has little to do with recognition of the personhood of the victims.   There certainly were some flaws in how THL addressed the compensation questions.  But as Bilsky often obliquely suggests, the most important of these were failures of justice, not of incentive structures.   Only an account that gives fuller play to a robust understanding of private law’s distinctive conception of responsibility can grapple with such failures of justice and the lessons they hold .   

Let me close with some related thoughts about the reach of Bilsky’s re-reading of THL.  She gestures towards transnational corporate accountability as one potential sphere of THL influence and I would like to suggest that in fact THL has already served as a powerful source of inspiration.   In the interests of brevity let me give just two examples.  First, in Canada, the massive litigation (some individual, some class actions) that focused on the legacy of Indian residential schools has significant resonance with Bilsky’s account of THL.  In 2007, it too resulted in a massive settlement—now approaching 6B CAD—and gave rise to a complex compensation regime that includes nearly 38,000 adjudicated claims, as well as an important Truth Commission among other features.   The second example is the effort to litigate reparations for slavery in the US.  Clearly inspired by the THL slave labour cases, the litigation itself largely failed and did not generate significant settlements.  Nonetheless, the pressures generated by the articulation of the reparations claims—particularly the most powerful slave labour ones—gave rise to a range of institutional responses that also have a strong affinity with Bilsky’s account of THL.  Ordinances designed to force disclosure of links to slavery were passed in several jurisdictions, economists have begun to attempt to quantify the profits of slavery and many truth-seeking projects and commemorative projects have been undertaken at an institutional level.  One striking example is found at Georgetown University.  After studying its links to slavery and in particular to a significant slave sale in 1838, the university offered preferential admissions to descendants of those who were sold as slaves.  It did so specifically on the ground of reparative justice.  

In these and many other examples of hybrid claims that seek to redress grievous large-scale wrongs, Bilsky’s reconceptualization provides rich material for thinking through the complex questions of responsibility, redress, and history at the heart of THL.   Infusing her account with richer content from private law would only assist in illuminating the important lessons of THL that she so expertly draws out. 

Corporate Responsibility for International Crimes: Problems of Civil Procedure and Collective Guilt

Chimène Keitner is Alfred and Hanna Fromm Professor of International Law at UC Hastings Law, San Francisco.  Professor Keitner’s experience includes serving as Counselor on International Law in the U.S. Department of State. She is a founding co-chair of the International Law Association’s Study Group on Individual Responsibility in International Law.  Her areas of expertise include issues of jurisdiction, extraterritoriality, foreign sovereign immunity, and foreign official immunity. 


Leora Bilsky’s The Holocaust, Corporations, and the Law: Unfinished Business seeks to rehabilitate the class actions brought against German and Swiss corporations in U.S. courts, and the legal settlements they produced, from the sting of criticisms levied by their (mostly) European detractors. As part of this endeavor, Bilsky levels criticism against criminal law’s excessive focus on individual culpability at the expense of organizational wrongdoing. Given this critique, one might expect to find greater attention to issues surrounding corporate criminal liability in Bilsky’s capable analysis. Instead, she focuses on the promise of civil litigation as a means of creating a “legal bridge in time” to redress corporate immunity. She argues that, although settlements might not articulate binding norms of behavior or confirm a defendants’ legal liability, they have value in providing compensation to victims and enabling the creation of historical narratives that might not otherwise exist.   

Few in the transnational human rights litigation community would take issue with Bilsky’s central thesis: 

[Transnational Holocaust litigation’s] most important jurisprudential contribution resides not in the norms produced but in the innovative ways the peculiar North American institution of the civil class action was harnessed to create a transnational forum where, on the one hand, groups of victims could demand accountability from giant private corporations and, on the other, the corporations were made to respond and begin a self-critical process of reflection about their involvement in the crimes of the Third Reich. 

 The interesting work done in this area by Bilsky and by her colleagues Natalie Davidson and Doreen Lustig at Tel Aviv University focuses on claims brought in U.S. courts for human rights abuses in other countries. These claims proliferated in the decades following the Second Circuit Court of Appeals’ 1980 decision in Filártiga v. Peña-Irala, which interpreted the Alien Tort Statute (ATS), 28 U.S.C. § 1350, as providing subject-matter jurisdiction in U.S. federal court for a civil suit for damages brought by two Paraguayan citizens for the torture and extrajudicial killing of a Paraguayan citizen by a Paraguayan citizen in Paraguay. That said, the alignment of class action lawyers and human rights advocates who pursued ATS claims during this period was perhaps more contingent than Bilsky appears to suggest. Moreover, although there is some truth in her observation that “[u]niversal civil jurisdiction and class action procedure both reflect a preference in American legal culture for civil litigation over criminal law and administrative regulation in addressing mass wrongdoing,” the book does not engage with the significant jurisprudential unravelling of the idea of universal civil jurisdiction, and of the ability to bring claims as class actions, since the Holocaust cases were filed in the 1990’s—in both instances, for reasons largely unrelated to the critique of settlement whose rebuttal animates the book.  

The three pivotal Supreme Court cases on the ATS to date are Sosa v. Alvarez-Machain (2004), Kiobel v. Royal Dutch Petroleum (2013), and Jesner v. Arab Bank (2018). The holdings of the latter two cases, which restricted the scope of extraterritorial jurisdiction under the ATS and found no basis for ATS jurisdiction over claims against foreign companies, respectively, turned on the “swing” vote of Justice Anthony Kennedy, who has expressed concerns about offending other countries through perceived U.S. judicial overreach. Combined with cases such as Wal-Mart v. Dukes (2011), which has made it more difficult to meet the requirements for class certification under Federal Rule of Civil Procedure 23, and Daimler AG v. Bauman (2014), which has curtailed the exercise of personal jurisdiction over nonresident corporations on due process grounds, one could justifiably wonder whether the model of transnational Holocaust litigation could ever be replicated to enable wide-scale corporate accountability for participation in mass atrocities outside of the forum state.       

The ATS, or what is left of it, provides jurisdiction to adjudicate alleged violations of certain conduct-regulating norms that are rooted in customary international law and applied in U.S. courts as federal common law. Unresolved issues include the standard for aiding and abetting liability: namely, whether a defendant can incur liability for knowingly providing assistance that had a substantial effect on the commission of an international law violation, or whether the claimant must prove that the defendant intended to facilitate the underlying violation (a much higher bar, especially in the corporate context). This issue looms large in corporate cases as a doctrinal matter, and also has important implications for our understandings of agency, culpability, and the obligation to provide redress.  

The broader issue of entity liability, which Bilsky considers under the heading of “collective guilt,” also merits further investigation. I was particularly eager to read these parts of her analysis, as I have been working for a number of years on questions related to attribution under the international law of state responsibility, and the (in my view oversimplified) link between attribution and the availability of conduct-based immunity for foreign officials who violate international law. Many of the conceptual and doctrinal questions flowing from the fact that legal persons can only act through natural persons arise in the context of both state and corporate responsibility. However, Bilsky does not dwell on these issues, and instead appears to accept the anthropomorphization of corporations as a necessary, if conceptually imperfect, mechanism for assigning responsibility to organizational actors under tort law and based on equitable principles such as unjust enrichment.  

As unimaginable as the Holocaust was, certain Nazi-era policies represent an extreme manifestation of the collective, state-sanctioned mobilization of violence seen in other examples, both historical and contemporary. Increased attention to calls for accountability for historical injustices raises persistent questions about the temporal, spatial, and genealogical boundaries of collective responsibility, and collective entitlement to redress. Tel Aviv University, where I have taught as a visitor, has been called upon to acknowledge that is was built on the Palestinian village of Sheikh Muwanis; UC Hastings College of the Law in San Francisco, where I have taught for over a decade, has been faulted for bearing the name of its founder, California Supreme Court Chief Justice Serranus Clinton Hastings, who, like California Governor Leland Stanford, profited from his ability to acquire land titles by promoting the massacre of Native Americans. In the United States, debates persist about reparations for slavery and other domestic atrocities; meanwhile, Palestinian victims of Israeli policies have sought redress in U.S. courts, including under the ATS.  

Bilsky observes: 

In [the traditional criminal law] model, the culprit characteristically is an individual, and the state intervenes as the accuser and the agent for enforcing and defending violated norms of community order. The jurisprudence of atrocity begins with the opposite assumption. Here the state is no longer the locus of legality, but rather the source of illegality.   

Identifying the state as the source of illegality also casts “ordinary” citizens—not just government officials—in the light of potential accomplices. The Nuremberg trials deliberately singled out those deemed most culpable in the name of post-war reconstruction of German society; some degree of national amnesia was seen as a prerequisite for national healing. 

In the United States and in Israel today, government policies protect some and inflict violence on others. Bilsky urges us to “direct our attention to designing mechanisms that are fair, participative, and apt to fulfill important public functions such as deliberation, fact finding, and the production of public narratives.” These are worthy goals, and ones that will continue to prove salient as long as bureaucratic institutions—both public and private—engage in acts that cause pervasive human suffering.

New Symposium: Leora Bilsky’s, The Holocaust, Corporations and the Law: Unfinished Business

I’m very excited to host a discussion of Leora Bilsky’s outstanding book entitled The Holocaust, Corporations, and the Law: Unfinished Business (Michigan, 2017). As per usual, I will avoid an extensive introduction to the book, especially because the text contains a very helpful synopsis that I paste below. I’m also thrilled to host an excellent array of scholars (see a list here), who all work on these issues from different vantage points, in the hope of stimulating helpful creative reflections on this important new text.  

Here then, is the publisher’s summation of Bilsky’s argument:  

The Holocaust, Corporations, and the Law explores the challenge posed by the Holocaust to legal and political thought by examining the multiple issues raised by the restitution class actions brought against Swiss banks and German corporations before American federal courts in the 1990s. Prior to these lawsuits, the legal treatment of the Holocaust had been dominated by criminal law and its individualistic assumptions and had consistently failed to relate to the structural aspects of Nazi crimes, which relied on a modern bureaucratic apparatus and the cooperation of the private sector. Although the class action suits of the 1990s were settled for unprecedented amounts of money, the defendants did not formally assume any legal responsibility. Thus the lawsuits were bitterly criticized by lawyers for betraying justice and by historians for distorting history. 

Leora Bilsky argues that class action litigation and settlement offer a mode of accountability that is well-suited to addressing the bureaucratic nature of business involvement in atrocities. Engaging critically with contemporary debates about corporate responsibility for human rights violations and assumptions about what constitutes “law,” she argues for the need to design processes that would make multinational corporations accountable in the era of globalization. She examines the implications of this new legal constellation for transitional justice and the relationship between law and history, as well as for community and representation in a postnational world. In this way, her novel interpretation of the restitution lawsuits not only adds an important dimension to the study of Holocaust trials, but also makes an innovative contribution to broader and pressing contemporary legal and political debates. In an era when corporations are ever more powerful (and international in their reach), Bilsky’s arguments will attract attention beyond those interested in the Holocaust and its long shadow. 


Leora Bilsky is professor of law and director of the Minerva Center for Human Rights at Tel Aviv University. 

Part 2 – Rohingya Deportation: Deportation is a Distinct Crime in the ICC Statute

Saif Ansari is a recent graduate of New York University, School of Law. He has previously served under Judge Nonkosi Mhlantla at the Constitutional Court of South Africa and Judge Nicola Lettieri at the Special Tribunal for Lebanon.


1. Introduction

In April 2018, the Prosecutor at the International Criminal Court filed a motion seeking guidance from the Pre-Trial Chamber about whether the court had jurisdiction over the deportation of Rohingya Muslims from Myanmar, a non-state party, to Bangladesh, a state party. In earlier discussions, commentators argued that deportation and forcible transfer are combined into a unified offense in the Rome Statute, and because crossing an international border is an element of deportation but not forcible transfer, the unified crime was complete in Myanmar. Consequently, no essential element of the crime occurred in Bangladesh, depriving the ICC of jurisdiction over the acts of deportation.

In our first post, we showed how the International Criminal Court has jurisdiction over these acts of deportation, regardless of whether or not deportation and forcible transfer are a single crime. To do this, we contested whether an “essential” element is the requisite standard. We used the crime of torture as an analogy, showing how the essential element requirement used in these discussions is of mysterious origins, poorly defined and overly demanding. Applying what we believe are more defensible tests for jurisdiction, we concluded that even if deportation and forcible transfer are a single offense, their unification does not deprive the ICC of jurisdiction over acts of deportation to Myanmar.

In this second post, we argue that deportation and forcible transfer are distinct offenses, even though they are listed in a single provision in the Rome Statute and Elements of Crimes. In effect, deportation and forcible transfer are more akin to Article 8(2)(a)(vii) of the Rome Statute (which prohibits the distinct offences of “[u]nlawful deportation or transfer or unlawful confinement”), than torture (which prohibits the infliction of physical or mental suffering as alternate means of perpetrating the same offense of torture).

On one level, our argument offers an alternate basis for the court to find that the acts of deportation in question took place in Myanmar if it disagrees with our first post. If deportation is a distinct, separate offense, the distinction turns on victims being expelled across a border “to another State,” which is highly germane to the Rohingya situation. On another level, we believe that there are important reasons to preserve the continued existence of deportation quite apart from the issue of jurisdiction in this case. In particular, we are concerned about the interpretative coherence of the Rome Statute, the distinct expressive value of deportation as a separate crime, and for sentencing.

In what follows, we propose five mutually reinforcing arguments as to why deportation remains a single, distinct offense in the Rome Statute and Elements of Crimes, despite the fact that it is listed under the same heading as forcible transfer. First, we show how a literal reading of the Rome Statute and the Elements of Crimes preserve the historical distinction between deportation and forcible transfer. We accept that the interpretation we offer is not the only interpretation available, but we believe it is analytically preferable as a matter of pure hermeneutics, and the only interpretation that squares with the other material we review. Second, we show how the drafters clearly intended for there to be a distinction between deportation and forcible transfer based on whether the displacement was within a state or across an international border. Third, we demonstrate how the ICC itself has consistently retained the distinction in its own practice to date, notwithstanding some curious language in one decision. Fourth, we marshal evidence of state practice to argue that the distinction is also firmly entrenched in customary international law. Fifth, we show why there is a distinction in the first place: because deportation and forcible transfer protect similar but different interests. We conclude that conflating deportation and forcible transfer would be a mistake in law and principle.

2. Article 7(1)(d) preserves the distinction between deportation and forcible transfer

“Deportation or forcible transfer of population” is a crime against humanity under Article 7(1)(d) of the Rome Statute. According to Article 7(2)(d), for purposes of Article 7(1)(d), “‘[d]eportation or forcible transfer of population’ means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.” Article 7(1)(d) of the Elements of Crimes lists the elements of the crime as follows.

Article 7(1)(d)

Crime against humanity of deportation or forcible transfer of population

 Elements

  1. The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts.
  2. Such person or persons were lawfully present in the area from which they were so deported or transferred.
  3. The perpetrator was aware of the factual circumstances that established the lawfulness of such presence.
  4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
  5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

Footnote 12 of the Elements of Crimes says

[t]he term forcibly is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.

Likewise, footnote 13 says

deported or forcibly transferred is interchangeable with forcibly displaced.

There is some basis to conclude that this definition combines the crimes, but overall, we find these bases unpersuasive. First, if the two offenses were distinct, one might anticipate that they merited separate definitions in the Statute itself, especially if deportation has a cross-border element that marks its particularity. This, we argue, is answered by the terms of the Elements of Crimes we discuss below. Second, the Ruto decision refers to deportation and forcible transfer as “labels” for a single “unique crime.” Nevertheless, we show below how the same paragraph in Ruto also indicates that “[t]he factor of where they have finally relocated as a result of these acts (i.e. within the State or outside the State) in order to draw the distinction between deportation and forcible transfer is thus to be decided by the Trial Chamber.”[1] We come to each of these issues momentarily, but for now, it is sufficient to observe that a coherent literal interpretation of deportation and forcible transfer support the ongoing distinction between the two normatively overlapping offenses.

To begin, just because they are grouped under the same heading, does not mean deportation and forcible transfer are the same crime. Article 7(1)(d) is an example of a disjunctive crime, or a crime that can be committed in more than one way. Disjunctive crimes are usually denoted by the insertion of the word “or” in the name of the crime and/or an element of the offense. But as the OTP shows, the Elements of Crimes lists disjunctive crimes in different ways. For example, sexual offenses under Article 7(1)(g) are listed under different headings, but “using, conscripting and enlisting children” under Article 8(2)(e)(vii) are listed under one heading. In terms of substance, the Pre-Trial Chamber in Lubanga held that the very use of “or” in the first element shows that “conscripting or enlisting” child soldiers “or using them to participate actively in hostilities” are “separate offenses” under Article 8(2)(e)(vii).[2] We believe the same is true of deportation and forcible transfer.

A systematic interpretation of the definition of deportation or forcible transfer in the Elements of Crimes supports this view. The reference to “deportation or forcible transfer” in the headings of the Elements arguably initiates a sequencing that the entire structure of the definition subsequently follows. The word “deportation” comes first in the heading, then “deported” precedes “forcibly transferred” in Element 1. “[T]o another State” is also the first location listed by Element 1. Pursuant to the same logic, “forcible transfer” follows “deportation” in the heading, marking a sequence that is matched by the words “forcibly transferred” following “deported,” and “location” coming after “to another State.” Through this sequence, “deportation” corresponds to “deported…to another State” and “forcibly transfers” corresponds to “another… location.” Systematic structure is, of course, only one attribute of good drafting, but we argue that it weighs in favor of treating deportation and forcible transfer as distinct crimes, especially when other material we review unequivocally support this reading.

Despite some lamentable ambiguity in drafting, it is clear here that footnote 13 of the Elements of Crimes does not conflict with the systematic reading we offer here. According to footnote 13, “‘[d]eported or forcibly transferred’ is interchangeable with ‘forcibly displaced.’” Some believe this language suggests that deportation and forcible transfer, taken separately, are identical. We are not persuaded by this view and believe that much discredits it. Footnote 13 says that the terms “deported and forcibly transferred” and “forcibly displaced” are “interchangeable,” not that deportation and forcible transfer are the same crime. The difference is important. In effect, footnote 13 implies that forced displacement is another description for “deported or forcibly displaced,” which is not to say that “deported,” “forcibly transferred,” and “forced displacement” are legally synonyms. Mathematically, the interpretation we offer based on the positioning of the quotation marks around “deported or forcibly transferred” as a pair is the difference between (A + B) = C and A = B = C. Put another way, it would not be safe to deduce from the fact that, because apples and oranges are fruit, apples are oranges. So, we favor the view that footnote 13 indicates that “forcibly displaced” is a term of convenience that can be used to refer to both crimes together.

Whether by coincidence or design, courts have used the closely related term “forced displacement” in precisely this fashion, especially in circumstances where the distinction between the two offenses is of no factual significance.  Although the negotiating history of the Rome Statute is silent as to the intended meaning of footnote 13, it was likely inserted in light of the ICTY’s jurisprudence, which had employed the term “forcible displacement” as an umbrella in these circumstances. In 2000, two years before the ICC Elements of Crimes were first drafted, the trial judgment in Blaškić used “forced displacement” as a synonym for “deportation or forcible transfer of civilians” when assessing acts that could constitute persecution as a crime against humanity.[3] This use of “forced displacement” as a means of referring to both crimes together instigated a major trend, even as the same courts decided that deportation was distinguishable from forcible transfer based on whether the victim was displaced across established borders. We come to the caselaw about cross-border transfers momentarily, but for now, we pause to provide slightly more evidence of the popularity of “forced displacement” as an umbrella term.

The habit of using “forcible displacement” in this manner has spanned the better part of two decades. In the appeal judgment in Krnojelać, for instance, the ICTY held that for purposes of the crime against humanity of persecution, it does not matter whether a given act of “forcible displacement” constituted deportation or forcible transfer.[4] As the ICTY subsequently held in the appeal judgment in Simić, what matters is whether the act of “forcible displacement” was carried out with the requisite discriminatory intent.[5] Most recently, the trial judgment in Milutinović held that “[a] number of elements of these offences are the same and are discussed herein under the heading ‘forcible displacement.’”[6] Therefore, a long line of cases at the ICTY refer to deportation and forcible transfer together as “forcible displacement,” usually for the purpose of proving the distinct crime of persecution. As we will see below, this caselaw also insists that there is a formal legal difference between deportation and forcible transfer. Thus, this body of jurisprudence reinforces our view that footnote 13 of the Elements of Crimes merely creates a linguistic label for the two crimes, without altering their separate legal meaning.

Finally, the ICC has also referred to “forcibly displaced” as a generic label that serves as a placeholder until such time as the distinction between deportation and forcible transfer is established at trial. In Ruto, the Pre-Trial Chamber said that it is not necessary to distinguish between the two “labels” at the pre-trial stage, not because the distinction is irrelevant, but because it is not yet apparent which of the two was committed. The Pre-Trial Chamber delegated the task of determining whether acts of forcible displacement constituted deportation or forcible transfer to the Trial Chamber based on where victims were finally relocated to—“i.e. within the State or outside the State.”[7] But in Ruto, it was apparent even at the pre-trial stage that people were “forcibly displaced” somewhere, wherever they ended up.[8] Therefore, in spite of the seemingly contradictory reference to “labels” of a “unique crime,” Ruto shows that the ICC itself has referred to deportation and forcible transfer together as “forcible displacement,” in line with the meaning we ascribe to footnote 13. For all these reasons, a literal interpretation of the provision suggests that the offenses remain distinct.

3. The drafters intended for there to be a distinction between deportation and forcible transfer

The literal interpretation we offer is, to our minds, the only interpretation that can be squared with the negotiating history of the Rome Statute and Elements of Crime. Most importantly, numerous sources indicate that the drafters of the Rome Statute intended for there to be a legal distinction between deportation and forcible transfer, and we have unearthed no evidence that suggests otherwise. We set out some of these sources here in chronological order:

  • The International Law Commission’s commentary on the predecessor to the Rome Statute explicitly references the distinction between deportation and forcible transfer as well as the fact that transfer across a border demarcates the two crimes. According to the ILC, “[w]hereas deportation implies expulsion from the national territory, the forcible transfer of population could occur wholly within the frontiers of one and the same State.”[9] Of course, the drafters could have written Article 7(1)(d) in generic terms so as to encompass both, but they did not. They retained the distinction between deportation and forcible transfer out of a desire to ensure that the two remained separate crimes.
  • At the Preparatory Committee in 1996, there were three drafts of the relevant provision prepared, all of which mentioned deportation but only one of which mentioned forcible transfer in brackets.[10] Again, this suggests that the drafters considered whether there should be a distinction between forcible displacement within a state and across an international border. As the Members of the Canadian Partnership for International Justice argue in an amicus brief submitted to the ICC in support of the OTP’s request in the present case, “[t]his reflects the drafters’ awareness that they were dealing with separate crimes.”
  • Several authors who were present at the negotiating of this provision argue that states intended to maintain the distinction. According to Hebel and Robinson, “‘forcible transfer of population’ was added as an alternative to ‘deportation’ so as to encompass large-scale movements within a country’s borders.”[11] This addition and the basis for it, suggest that the language of the Rome Statute and Elements of Crimes we review above sought to create an additional complementary offense, not deliberately collapse deportation into a broader joint crime.
  • Similarly, Hall and Stahn report that that early versions of the section show that the drafters distinguished between “mass deportations or forced transfer of persons from the territory of a State [or from an area within a State].”[12] Apparently, the drafters were also given a paper by Amnesty International indicating that “forcible transfer” was inserted in order to create a distinction between forcible displacement within a state and across an international border. According to Hall and Stahn, no one objected to the distinction.[13]

All in all, we believe that these sources support the literal interpretation we offer. They provide this support by reinforcing the co-existence of two separate crimes and by providing no indication that States intended the fairly radical step of unifying two offenses into one such that deportation’s unique character disappeared.

4. The ICC usually treats deportation and forcible transfer as separate crimes

The ICC itself has distinguished deportation and forcible transfer on a number of occasions. As we have shown, in Ruto, the ICC says that “deportation” and “forcible transfer” are different “labels” for what is a “unique crime” based on the final destination of the victim.[14] But as we have also noted, the same paragraph in Ruto goes on to distinguish between deportation and forcible transfer precisely on the basis of a cross-border element by stating that “[t]he factor of where they have finally relocated as a result of these acts (i.e. within the State or outside the State) in order to draw the distinction between deportation and forcible transfer is thus to be decided by the Trial Chamber.”[15]

From this language, we deduce that “deportation” and “forcible transfer” are not merely descriptions of the underlying conduct. Indeed, it would be curious for the Pre-Trial Chamber to delegate the task of distinguishing between deportation and forcible transfer to the Trial Chamber unless there was a legal distinction between the two concepts that required consideration. Thus, despite the reference to a “unique crime,” the Court actually treats deportation and forcible transfer as separate crimes based on whether the victim crossed an international border. Importantly, a large number of cases before the ICC are consistent with this reading even though the rationale for their approach is not articulated explicitly.

In a host of other cases, the Pre-Trial Chamber has referenced either deportation or forcible transfer separately, undermining the notion that “deportation or forcible transfer” is a single offense. More precisely, in a range of arrest warrants and confirmations of charges, the ICC has described the conduct in question as “forcible transfer” only, without even mentioning deportation. The failure to reference the entire unified offense of “deportation or forcible transfer” suggests that, as we suspected, the two elements come apart and can stand alone. These cases are not rare—there appear to be at least nine such decisions.[16] For example, in the court’s arrest warrant for Omar Al Bashir, only forcible transfer is alleged.[17] There is no deportation charge because it was clear even at the pre-trial stage that any forcible displacement occurred “throughout the Darfur region” only.[18] If there was no difference between the two, or Article 7(1)(d) referred only to a joint crime, the ICC would have referenced deportation and forcible transfer together.

So in cases in which there is no allegation of a border-crossing, or it is apparent at the pre-trial stage that any forcible displacement must have taken place within national borders, the ICC confines itself to an analysis as to whether there are substantial grounds to believe that only forcible transfer was committed. But as decisions like Ruto show, to the extent to there is an allegation that deportation was committed or it is uncertain whether there was a border-crossing, the ICC references both deportation and forcible transfer. In this light, the ICC clearly treats deportation and forcible transfer as separate crimes in practice. This corroborates a literal interpretation of the elements of Article 7(1)(d), our analysis of footnote 13, and the intent of the drafters we have discussed.

5. Customary international law establishes that deportation is a distinct offense

To the extent that Article 7(1)(d) is ambiguous, Article 21 of the ICC Statute provides for the application of “applicable treaties and the principles and rules of international law.” These rules of international law are clear: deportation is a long-standing offense in its own right. The crime predates WWII, having been a war crime long before the Allies created the corresponding crime against humanity. In the wake of the war, the crime against humanity of deportation was codified in Article 6(c) of the Nuremberg Charter, Article 5(c) of the Tokyo Charter, and Article II(1)(c) of Control Council Law No. 10. As a result, deportation came to protect German nationals, stateless people and other people not previously protected by the war crime of deportation.

Decisions like the trial judgment in Krnojelac[19] and the decision on motion for judgement of acquittal in Milošević[20] at the ICTY draw on WWII caselaw to show that deportation is established as a separate, standalone offense in customary international law. For example, in Baldur Von Schirach, the Nuremberg Tribunal convicted the Nazi politician of deportation for the forcible displacement of 60,000 Jews from Vienna to concentration camps in occupied Poland.[21] And in Milch, the tribunal convicted a member of the German forces of deportation for purposes of slave labour both as a war crime and a crime against humanity.[22] In a concurring opinion, Judge Philip argued “[d]isplacement of groups of persons from one country to another is the proper concern of international law in as far as it affects the community of nations.”[23]

Moreover, deportation is clearly distinguished from forcible transfer, which is treated as an “other inhumane act.” The trial chamber in Krstić held that “[b]oth deportation and forcible transfer relate to the involuntary and unlawful evacuation of individuals from the territory in which they reside. Yet, the two are not synonymous in customary international law. Deportation presumes transfer beyond State borders, whereas forcible transfer relates to displacements within a State.”[24] The trial chamber drew the same distinction in Krnojelac, holding that deportation required forcible displacement across a national border, whereas forcible transfer required forcible displacement within national borders.[25] As a result, the trial chamber in Naletilić held that the jurisprudence of the court had established that deportation and forcible transfer were different crimes based on whether the victim had been forcibly displaced within a state or across the border.[26]

Admittedly, there was one rogue decision that dispensed with the cross-border element of deportation as a way of collapsing the distinction between forcible transfer and deportation, but this reasoning was quickly overturned then consistently rejected ever since. In an outlier judgment, the trial chamber in Stakić declared that crossing a border was not an element of deportation after all. Disregarding precedent, the trial chamber also held that deportation protects “the right and expectation of individuals to be able to remain in their homes and communities without interference by an aggressor.”[27] Thus, according to this judgement, the final destination of the victim was of no relevance. The novel interpretation of deportation in Stakić was born of Judge Schomburg’s distaste for the open-ended scope of “other inhumane acts” as a residual category of crimes against humanity. However, his attempt to remove forcible transfer from “other inhumane acts” then force it into deportation was quickly rejected.

In the Stakić appeal, the ICTY clarified that deportation is forcible displacement “across a de jure state border or, in certain circumstances, a de facto border.”[28] According to the appeals chamber, crossing an international border became an element of deportation with the adoption of the Geneva Conventions and Additional Protocols after WWII.[29] Every decision since that time has cited the appeals judgment in Stakić as establishing once and for all the requirement that deportation be across a border of some kind. As a result, the appeal judgment in Stakić reflects the current consensus that deportation is a distinct offense in its own right, that deportation and forcible transfer are separate offenses, and that deportation is forcible displacement across an established border. Thus, customary international law seems to provide yet another basis for treating the two offenses as distinct.

6. Deportation and forcible transfer protect different legal interests

Deportation and forcible transfer as crimes against humanity protect an interest in peaceful residence or the rights and expectations that ordinarily inhere in a person’s abode or home. In the appeal judgment in Stakić, the ICTY holds that “[t]he protected interests underlying the prohibition against deportation include the right of the victim to stay in his or her home and community and the right not to be deprived of his or her property by being forcibly displaced to another location.”[30] This is reflected in the very definition of “displacement.” In the trial judgment in Prlić, the ICTY holds that displacement or “removal” for purposes of deportation occurs when a person travels so far away from home that they are no longer able to effectively enjoy these rights.[31] But as the OTP shows, it is one thing to be expelled from one’s home, and forced to flee to another part of the same country, but it is quite another to be forced to flee across the border to another country altogether. According to the OTP, “deportation also protects a further set of important rights: the right of individuals to live in the particular State in which they were lawfully present—which means living within a particular culture, society, language, set of values, and legal protections.”[32]

In other words, a person forced to flee a country incurs an additional harm—the violence of being thrown into a completely new socio-cultural milieu in which he or she has a radically different legal and political status. Of course, there are any number of ways a court might characterize the interests that underlie deportation and forcible transfer. Reasonable people will differ about what these interests are, but this disagreement around the fringes does not camouflage the widely held view that there is an important normative difference here—the difference between being forced to flee from London to Manchester, and being forced to flee from London to Moscow. Obviously, in any one case, the harm incurred by the victim might vary. Say a person lives near the border, and is forcibly displaced far away to the other side of the same country, depriving them of their culture and familial connections. In certain circumstances, this may be more serious than the harm they would have incurred were they forcibly displaced just across the border. This exception to the rule, however, does not mean that the interests that underlie deportation and forcible transfer are the same, or that deportation is not worse than forcible transfer in the majority of cases. We believe that the Rome Statute as well as the ICC itself appreciate this important difference.

7. Conclusion

Although the definition of deportation and forcible transfer in the Rome Statute and the Elements of Crimes cannot be held up as an exemplar of legislative clarity, the factors we have reviewed suggest that deportation and forcible transfer remain distinct offenses. This view is supported by a systematic interpretation of the Elements of Crimes, by evidence that the drafters clearly intended this result, and by customary international law. What is more, notwithstanding the Ruto decision which appears to have attempted to have things both ways, the ICC itself has consistently treated deportation and forcible transfer as separate crimes in its decisions thus far. Of course, there may be factual scenarios in which treating these two crimes as if they were the same is legally innocuous and practically helpful, as the ICTY cases on “forced displacement” show. In the case of the Rohingya Muslims, however, it matters a great deal whether they were forcibly displaced within Myanmar or across the border to Bangladesh, so one cannot brush aside legal formalities. Ultimately, whether or not the Court intervenes in Myanmar and Bangladesh is a difficult moral, political and practical question, but we do not believe the law we have addressed here precludes it.

 

_______________________

[1] The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, para. 268.

[2] Lubanga Trial Judgment, para. 609.

[3] Blaškić trial judgment, para. 234.

[4] Krnojelac appeal judgment, para. 224.

[5] Simic appeal judgment, para. 172 (“The Appeals Chamber recalls that for the purposes of a persecutions conviction, it is not necessary to distinguish between the underlying acts of “deportation” and “forcible transfer” because the criminal responsibility of the accused is sufficiently captured by the general concept of forcible displacement.”). Early cases at the ICTY also distinguished between “forcible displacement” within or across national borders. In Krstić, the trial chamber held that “[s]ince the Srebrenica civilians were displaced within the borders of Bosnia-Herzegovina, the forcible displacement may not be characterised as deportation in customary international law.” See Krstić trial judgment, para. 531. The trial chamber also cited Kupreškić, in which it held that “forcible displacement” was another inhumane act for purposes of article 5(i) of the ICTY statute, whether it took place within a state or across an international border. See Kupreškić trial judgment, para. 523.

[6] Milutinovic trial judgment, para. 163.

[7] Ruto, supra fn. 1, para. 268.

[8] Id.

[9]  Draft Code of Crimes Against the Peace and Security of Mankind with Commentaries, 1996, Article 18(g), commentary, p. 49. See also footnote 27 of the OTP brief, which makes the same reference.

[10] Christopher K. Hall and Carsten Stahn, The Rome Statute of the International Criminal Court: A Commentary, 3rd ed (Oxford: Hart, 2016), “Article 7: Jurisdiction, Admissibility and Applicable Law,” p. 194, fn. 293.

[11] H von Hebel and D Robinson, The International Criminal Court: the making of the Rome Statute: Issues, Negotiations, Results, Crimes Within the Jurisdiction of the Court,” p. 99.

[12] [12] Christopher K. Hall and Carsten Stahn, The Rome Statute of the International Criminal Court: A Commentary, 3rd ed (Oxford: Hart, 2016), “Article 7: Jurisdiction, Admissibility and Applicable Law,” p. 96, fn. 300.

[13] Id.

[14] Ruto, supra fn. 1, para. 268.

[15] Id.

[16] See, (1), Prosecutor v Harun and Kushayb, ICC PT. Ch. I, Decision on the Prosecution Application under Article 58(7) of the Statute, ICC-02/05-01/07-1.Corr, 27 April 2007, pp. 45, 48, 56 (Deportation is not discussed at all. There is only a forcible transfer charge, discussed in paras. 69 and 74, under counts 9, 20 and 51, for forcible displacements throughout Sudan.); (2), Prosecutor v Harun and Kushayb, ICC PT. Ch. I, Warrant of Arrest for Ahmad Harun, ICC-02/05-01/07-2, 27 April 2007, pp. 7, 10, 15-16 (There is no discussion of deportation. There are only forcible transfer charges for forcible displacements throughout Sudan, under counts 9, 20 and 51.); (3), Prosecutor v Harun and Kushayb, ICC PT. Ch. I, Warrant of Arrest for Ali Kushayb, ICC-02/05- 01/07-3-Corr, 27 April 2007, pp. 8, 10, 16-17 (Counts 9, 10, 20, and 51 discuss forcible transfer only. There is no discussion of deportation, the warrant being only for forcible transfers in Sudan.), (4), Prosecutor v Al Bashir, ICC PT. Ch. I, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009, p. 92 (There is only a forcible transfer charge—no deportation charge. The pre-trial chamber concludes that there are reasonable grounds to conclude that people were merely displaced “throughout the Darfur region.” See para. 100.); (5), Prosecutor v Al Bashir, ICC PT. Ch. I, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-1, 4 March 2009, pp. 7-8 (The arrest is issued for forcible transfer, among other things. Deportation is not included and not mentioned in the warrant. See pp. 6-7.); (6), Prosecutor v Al Bashir, ICC PT. Ch. I, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-95, 12 July 2010, p. 6 (There is only a forcible transfer charge. There is no discussion of deportation. See pp. 6-7.); (7), Prosecutor v Hussein, ICC PT. Ch. I, Public redacted version of “Decision on the Prosecutor’s application under Article 58 relating to Abdel Raheem Muhammad Hussein”, ICC-02/05-01/12-1-Red, 1 March 2012, pp. 29-30 (Counts 8, 18 and 41 concern forcible transfer. The allegation made by the prosecution is that people were forced from their homes in the Wali Salih locality in West Darfur, to other places in the same locality. Deportation is not mentioned at all.; (8), Prosecutor v Hussein, ICC PT. Ch. I, Warrant of Arrest for Abdel Raheem Muhammad Hussein, ICC-02/05-01/12-2, 1 March 2012, pp. 8, 11 (There is a forcible transfer charge, but no deportation charge. Deportation is not even mentioned.); and, (9), Prosecutor v Ntaganda, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06-309, 9 June 2014, paras. 36, 64-68, p. 63 (Counts 12 and 13 concern forcible transfer of population and displacement of civilians as a crime against humanity and as a war crime. There is no charge or mention of deportation.).

[17] Prosecutor v Al Bashir, ICC PT. Ch. I, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-1, 4 March 2009.

[18] Id., p. 6.

[19] Krnojelac trial judgment, paras. 472-5. See also fn. 1429.

[20] Prosecutor v Milošević, Decision on Motion for Judgement of Acquittal, paras. 49-52.

[21] International Military Tribunal Judgment, Vol I, p. 319.

[22] Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No.

10, Vol. II, pp. 773-879.

[23] Id., p. 865.

[24] Krstić trial judgment, paras. 521

[25] Krnojelac trial judgment, para. 474;

[26] Naletilić trial judgment, para. 670.

[27] Stakić trial judgment, para. 677

[28] Stakić appeal judgment, para. 278

[29] Id., paras. 292-4.

[30] Stakić appeal judgment, para. 277.

[31] Prlić trial judgment, para. 49.

[32] OTP request, para. 17.

Part 1 – Rohingya Deportation: Whether Deportation and Forcible Transfer are a Single Crime is Irrelevant to ICC Jurisdiction

Saif Ansari is a recent graduate of New York University, School of Law. He has previously served under Judge Nonkosi Mhlantla at the Constitutional Court of South Africa and Judge Nicola Lettieri at the Special Tribunal for Lebanon.


Introduction

In April this year, the Office of the Prosecutor at the International Criminal Court filed a motion seeking something akin to an advisory opinion from the Pre-Trial Chamber on whether the Court enjoys jurisdiction over the deportation of Rohingya Muslims from Myanmar to Bangladesh. The issue has given rise to significant debate and inspired no less than eight excellent amicus briefs, as well as a consolidated response by the OTP, largely because it raises important principles for the Rohingya crisis as well as for the functioning of the Court more generally.

According to the OTP, the ICC may assert jurisdiction over the deportation of Rohingya Muslims from Myanmar to Bangladesh despite the fact that Myanmar is not a party to the Rome Statute, “because an essential legal element of the crime—crossing an international border—occurred on the territory of a State which is a party to the Rome Statute (Bangladesh).”[1] In contrast, critics have argued that deportation and forcible transfer are fused into a single crime in the Rome Statute, such that crossing an international border is not an essential element of the offense, depriving the Court of jurisdiction.

In this, our first of two posts on the topic, we wonder whether an “essential” element that all sides adopt in this discussion sets too high a standard for determining jurisdiction. We argue that an element need not be essential to a crime in order to ground the Court’s jurisdiction over an offense. Not only does Article 12(2)(a) not require that an essential element of an offense take place on the territory of a state party, adopting this standard would deprive the Court of the ability to prosecute what we call disjunctive crimes in many very ordinary situations.

By “disjunctive crimes,” we mean offenses, like deportation and forcible transfer, that are either included as alternate ways of perpetrating a single offense, or multiple, distinct offenses contained in one and the same provision of the Rome Statute. Torture, for instance, offers an example of a single offense that can be perpetrated in more than one way, since it criminalizes the infliction of mental or physical pain. The prohibition on “[u]nlawful deportation or transfer or unlawful confinement”[2] provides an illustration of multiple crimes in a single provision. We call these crimes disjunctive because their use of “or” creates alternatives as to how they can be perpetrated.

In a subsequent post, we argue that deportation and forcible transfer remain distinct and separate crimes within the Rome Statute. We will not rehearse the various arguments for that view presently, principally because we believe that the issue may be irrelevant for the purposes of jurisdiction in the Rohingya case. To our minds, far better substitutes for the “essential” element test employed throughout these discussions include: (a) whether any element of the offense was perpetrated within a state party; or, (b) whether a particular manifestation of a crime was completed within a state party. Said differently, if the “essential” element requirement leads to plainly perverse outcomes for disjunctive crimes in the Rome Statute, we should adopt a standard focused on any element of the crime or the element that completes a particular manifestation of the offense. As we will see, if we adopt either of these alternative tests, debates about whether deportation and forcible transfer are one offense or two fall away in significance.

Several caveats are necessary before we begin our discussion. First, we have not addressed the term “conduct” in Article 12 of the Rome Statute, partly because discussions about essential elements have focused on the deportation/forcible transfer dyad exclusively, but mainly because we profess to have no real expertise on questions of jurisdiction. By contrast, we are now completing a multi-year project on deportation and forcible transfer, so thought to offer these thoughts on that aspect of the wider legal issue. Second, we take no position here on whether deportation and/or forcible transfer might be ongoing crimes as advanced in several amici briefs.[3] Although we do not explore this argument here, we note that it would also transcend much of the debate. Finally, we remain agnostic about whether the ICC should intervene in Myanmar/Bangladesh. That decision raises complex moral and political issues, which extend well beyond our expertise.

Deconstructing the Essential Element Standard

We begin by noting our lack of certainty about the origins of the essential element standard. The Rome Statute does not require that an “essential” element of an offense take place on the territory of a state party in order to establish jurisdiction. Article 12, which defines jurisdiction, is silent on the issue. Of course, the Statute does not indicate that an essential element is not necessary or that a lesser standard, including those we posit as more coherent here, would be sufficient. Nevertheless, one might anticipate that a requirement that would restrict the court’s jurisdiction over and above the terms already set out in the Statute would require explicit legal authority.

As we say, we are far from expert in questions of jurisdiction in public international law or before the ICC, but from our preliminary inquiries, we have found no basis in statute, custom or caselaw for this added “essential element” requirement. On its face, then, there is real ground for skepticism that an element of an offense must be “essential” to the commission of the crime in order for the ICC to acquire jurisdictional authority over the crime. Moreover, as we argue below, we are concerned that the requirement would have a major and unjustifiable impact on the Court’s ability to try disjunctive crimes.

Before we engage with that concern more squarely, we should also point out our uncertainty about what an essential element is. Up until this point, the term has served as fulcrum for much of the debate about jurisdiction in this case, although it has escaped explicit definition throughout. From these discussions, we take it to mean that an element must be necessary to the commission of the crime for the ICC to enjoy jurisdiction over that offense. According to this argument, in the case of deportation/forcible transfer of the Rohingya Muslims to Bangladesh, crossing a border is not necessary because the offense could be legally and was factually completed at the point the victims were forced from their homes in Myanmar, well before they reached Bangladesh.

Thus, given that crossing a border is a contingent and not necessary element of what some view as a fused crime of “deportation and forcible transfer,” the essential element standard arguably operates to preclude jurisdiction when Myanmar is not a state party. So, because of this essential element requirement, whether deportation and forcible transfer really are a single unified offense or two separate crimes, and whether a cross-border element is required for one or both has real world implications for both the Rohingya Muslims and the Court.

We contest the salience of those questions by doubting that the essential element requirement can bear the weight placed upon it. To illustrate our thinking, we use the first disjunctive offense we pointed out by way of introduction, namely, torture. We employ torture because it is clearly a single offense, so by selecting it as an analogy we isolate the debate about whether deportation and forcible transfer are separate or unified crimes. As mentioned, our subsequent post argues that forcible transfer and deportation are separate offenses as a matter of law, but for argument’s sake, we assume the contrary here. The torture analogy is also useful because, to reiterate, torture is made disjunctive by the possibility of perpetrating the offense by inflicting only mental or only physical pain (for analytical purposes, we leave aside the truism that in real life, neither disjunct in torture can likely be perpetrated without impacting the other).

If the essential element standard deprives the ICC of jurisdiction where only a contingent element of a crime is satisfied, the standard would preclude the prosecution of just mental torture in a state party. This is true even if one strips the Myanmar/Bangladesh example of the controversial non-state party/state party aspect—the essential requirement standard would have this effect if all of the acts constituting mental torture occurred in a single state party, say New Zealand. Analytically, because mental suffering is not a necessary element of torture (physical suffering will suffice), the Court could not have jurisdiction over the offense because the case of purely mental suffering involves a contingent, not essential, element of the crime. Consequently, if there was widespread mental torture constituting a crime against humanity in New Zealand, the ICC would not have jurisdiction because mental suffering is not essential.

This position is both absurd and far reaching. It would preclude jurisdiction over disjunctive crimes in many far simpler scenarios. This is because even in instances where all elements are satisfied in a single state party (i.e. physical and mental suffering was inflicted in New Zealand), the disjunction makes each of the disjuncts unnecessary for the commission of the crime.

We return to Myanmar/Bangladesh to observe different illustrations of the absurdity an essential element requirement brings about. Employing the torture analogy in the Myanmar/Bangladesh situation, if a group of victims were physically tortured in Myanmar, then mentally tortured in Bangladesh, one could hardly argue that the ICC’s jurisdiction over the mental torture in Bangladesh is precluded because these victims suffered a different manifestation of the same crime in Myanmar. The mental torture in Bangladesh may not be legally essential to the commission of the crime, but it is likely sufficient to ground jurisdiction over a distinct manifestation of the crime that takes place there.

Or, to explore a different variant by employing the crimes(s) deportation/forcible transfer, if an essential element of the crime(s) were the standard in a situation where Myanmar was a state-party to the Rome Statute, the ICC might still not be able to prosecute acts of forcible transfer in Myanmar because even forcible transfer is not a necessary element of the crime(s) of “deportation or forcible transfer”—the Elements of the Crimes indicate that “deported…to another State” is an alternative means of establishing the same offenses.

We believe that the foregoing shows how all sides should dispense with the essential element standard. In its place, we posit that any element of the offense should be sufficient for purposes of jurisdiction, or alternatively, an element that completes a particular manifestation of the offense. For reasons that follow, we think it clear that the deportation of the Rohingya Muslims from Myanmar to Bangladesh satisfied either of these two alternative standards.

The Rohingya Muslims were Unequivocally “Deported…to Another State”

Having dispensed with the essential element requirement, it remains to be determined if and how deportation to Bangladesh satisfied: (a) any element of the crime(s); or (b) whether it completed a particular manifestation of an offense in Bangladesh. Here, we begin by noting that much of the argument thus far has referred to the “cross-border” element of deportation, “crossing a border” and “crossing an international border.” This language may be implicit from wording in the relevant aspect of the Elements of Crimes, but it is not a verbatim replication of the provision that is binding on the Court in this case, so we set out then analyze the literal language in the Elements of Crimes that define deportation and forcible transfer. These Elements of Crimes read as follows:

Article 7(1)(d)

Crime against humanity of deportation or forcible transfer of population

Elements

  1. The perpetrator deported or forcibly [footnote 12] transferred, [footnote 13] without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts.
  2. Such person or persons were lawfully present in the area from which they were so deported or transferred.
  3. The perpetrator was aware of the factual circumstances that established the lawfulness of such presence.
  4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
  5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

[footnote 12]  The term “forcibly” is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.

[footnote 13]  “Deported or forcibly transferred” is interchangeable with “forcibly displaced”.

If we focus on Element 1 above, we notice immediately that the structure of the offense is divided into multiple disjuncts. We also know from our previous discussion that requiring an essential element of an offense as a prerequisite to jurisdiction will defeat disjunctive offenses like this, because none of “deported”, “forcibly transferred,” “to another State”, “location”, “expulsion” or “other coercive acts” are necessary for the realization of the crime. In other words, there are multiple combinations of these contingent elements that are sufficient to establish the offense(s), even though none of them by themselves are essential for the commission of the crime.

Thus, if we back away from the essential element standard, we soon see that any element, or perhaps the element sufficient to complete a particular manifestation of the crime, are far more compelling bases for thinking about jurisdiction where there are multiple disjunctions within an offense.

This brings us to the permutation of deportation/forcible transfer whereby a perpetrator “deported” victims “to another State.” Even if we concede that deportation/forcible transfer is one unified crime (again, we contest this in our next post), one sufficient means of perpetrating this arguably unified crime would involve  a perpetrator who has “deported” victims “to another State.” Clearly, in the Rohingya situation, these phenomena take place in Bangladesh. The Elements of the Crimes mention “deported” in the past tense. This implies having crossed a border already. Plus, the element explicitly states that one of the contingent ways of committing deportation/forcible transfer involves rendering victims “deported…to another State.” Given that this crime is not inchoate, the Rohingya are only “deported…to another State” once they enter Bangladesh. Thus, it seems fairly uncontroversial that one of the ways of perpetrating deportation/forcible transfer occurs in Bangladesh.

And, recalling our earlier torture discussion, we know that this logic holds regardless of whether the disjunctions in the Elements above come together to form a single unified offense (like mental or physical suffering in torture) or whether they constitute separate, distinct crimes housed within one and the same provision of the Statute and Elements (like “[u]nlawful deportation or transfer or unlawful confinement”). We surmise, therefore, that whether deportation and forcible transfer are unified or distinct is irrelevant for purposes of jurisdiction.

This reasoning holds regardless of how we interpret footnote 13 of the Elements of Crimes. In our next post, we explain how equating “deported and forcibly transferred” with “forcibly displaced” in footnote 13 likely borrowed from a habit of using the umbrella term “forced displacement” as a catchall when the distinction between deportation and forcible transfer was factually immaterial. The practice developed first in the Blaškić trial, prior to the drafting of the Elements of Crimes, where the court used “forced displacement” as a term of convenience for deportation and forcible transfer in assessing allegations of persecution. For better or worse, that practice caught on. As we will show in our next post, there is much supporting this view and nothing in the history of the provision suggesting a contrary interpretation. But even if others disagree with this reading of footnote 13, it does not eviscerate the element “deported…to another State,” which is not essential for the commission of the offense(s), but likely adequate to ground jurisdiction.

Conclusion

This initial post acts as a precursor to and qualification of our next post. Momentarily, we will argue that deportation and forcible transfer are separate crimes, more akin to the provision in the Rome Statute that criminalizes “[u]nlawful deportation or transfer or unlawful confinement” than to torture, a single unified offense with disjunctive parts. Nevertheless, this initial post has queried whether the distinction matters for the purposes of jurisdiction, largely by assuming the single unified crime thesis we disagree with, then by critiquing the essential element standard it relies on.

From this analysis, we believe that being “deported…to another State” is an element of a crime against humanity that very clearly takes place in Bangladesh. Likewise, being “deported…to another State” completes a particular manifestation of the deportation/forcible transfer crime in Bangladesh. To our minds, the argument that the crime was complete in Myanmar beforehand misses that many international crimes have different disjunctive elements, and that a particular campaign of terror can and will often involve multiple variations of one and the same offense.

 

[1] Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, 9 April 2018, para 2.

[2] Art. 8(2)(a)(vii) ICC Statute.

[3] For a helpful summary, see Prosecution Response to Observations by Intervening Participants, paras. 27-31.

Working on the Core: A Response to Commentators


John Tasioulas the Director of the Yeoh Tiong Lay Centre for Politics, Philosophy and Law at The Dickson Poon School of Law, King’s College London. He has held visiting appointments at the Australian National University, the University of Chicago, Harvard University, and the University of Melbourne, and has acted as a consultant on human rights to the World Bank.  He is the author of two recent reports for the World Bank: Minimum Core Obligations: Human Rights in the Here and Now and The Minimum Core of the Human Right to Health, which are the subjects of this symposium.


Overview

I am indebted to the commentators for their insightful responses to my work on minimum core obligations (MCOs). I am also very grateful to James Stewart for assembling commentators who, as a group, reflect the dauntingly multi-disciplinary character of the topic. In the course of writing the two reports, it became increasingly clear to me that a major obstacle to progress is the lack of genuine communication across disciplinary boundaries, a problem in no way confined to the academy. I hope that this symposium contributes in some small way to overcoming this obstacle.

It will be useful to begin with a brief summary of the two reports. [1] The aim of the first report was to explore the concept of MCOs, as it has emerged in contemporary human rights law and practice, with a view to identifying (a) whether it can be given a clear and coherent articulation, (b) whether this concept adds significant value to human rights discourse, (c) how minimum core obligations should be identified and their content specified, and (d) whether compelling responses could be given to some of the leading objections to the doctrine of MCOs. My answers to these questions were, in brief, as follows: (a) that there is a clear and coherent idea of MCOs, centred on the sub-set of obligations of economic, social and cultural rights that are to be immediately complied with in full by all states irrespective of resource variations among them. To this extent, MCOs impose a limit to the operation of the doctrine of progressive realisation in relation to such rights. Contrary to the views of some commentators, MCOs do not of their very nature possess the additional features of non-derogability, a special grounding, or justiciability. Whether any given MCO possesses any of these further features is a matter to be determined on the individual merits, case-by-case; (b) that the value of MCOs resides in the way that they help address the problem of prioritising compliance with human rights obligations when it is not feasible to comply immediately with all such obligations; (c) that MCOs are to be identified by a process that involves (i) attention to the proper scope of a given right, (ii) due regard for considerations of feasibility – in particular, possibility and burdensomeness – in shaping MCOs, (iii) the holistic character of specifying MCOs, so that they are jointly feasible as obligations of immediate effect when taken as a totality, and (iv) the need for a specification of MCO that is invariant in content across different societies; and (d) that two leading objections to MCOs – that they impose an unduly restrictive strait-jacket on human rights thinking, and that they are potentially counter-productive in effect – can be answered.

The second report, on the right to health, was rather more descriptive in character. It offers an inevitably limited overview of how the notion of MCOs has played out in international, regional and domestic legal contexts. However, there is an important link between the two reports, because I use the concept of MCOs developed in the first report as a basis for both interpreting and evaluating certain legal and other developments in this domain. So, for example, one of my chief interpretative claims is to cast doubt on the sweeping assertion that the important South African jurisprudence has jettisoned the doctrine of minimum core in favour of an overall assessment of reasonableness. [2] This mistaken view stems from the failure to distinguish the question whether a given minimum core obligation exists as a matter of law from whether the question that obligation is justiciable, in the sense of effectively enforceable by individual litigants through judicial orders granting them their entitlements under MCOs. The clarification of the concept of MCOs offered in the first report enables us to see that the South African jurisprudence can be interpreted as rejecting the justiciability of minimum core obligations while nonetheless embracing both their existence and their relevance within a broader reasonableness test. On the more critical front, the report argued that General Comment 14 offers an unduly broad and lavish specification of MCOs under the right to health and, more positively, sketched the role that MCOs in relation to the human right to health can play in advancing key aspects of the health-related SDGs, especially universal health care.

Law and Morality

My investigation of MCOs, especially in the first report is not, primarily, a legal project, but rather a moral-political enterprise, one with potentially important implications for law. These implications arise in virtue of the background theoretical stance I set out at the start of the report. According to this, the formative aim of international human rights law is to give effect, insofar as it is appropriate for it to do so, to a background morality of human rights. Given that connection, three legal consequences follow from the vindication of a clear, coherent and morally compelling conception of MCOs: (a) it bolsters the case for enshrining MCOs in law; (b) insofar as the best interpretation of the International Convenant on Economic, Social and Cultural Rights (ICESCR) turns on the ability of that Covenant to fulfil its aims – which is the implementation of a certain aspect of human rights morality – to that extent there is a pro tanto case for regarding the MCO doctrine as part of the best interpretation of that Covenant; and (c) on a non-positivistic interpretation of customary international law, of the kind I have developed in other writings, the moral attractiveness of the MCO doctrine has a positive but non-conclusive bearing on its legal status.

However, I refrained from definitively claiming that MCOs are part of the best interpretation of the ICESCR, let alone that they are norms of customary international law. In the latter context, I was content to suggest that it is at least ‘nascent’ law or what might otherwise be called ‘soft law’. I did not take this further step because I felt that the moral question is logically prior and more pressing, but also because I did not wish to get embroiled in debates about the sources of law or treaty interpretation, such as the status to be accorded to General Comments produced by treaty bodies in either of these contexts. I welcome Michael Kirby’s insightful commentary as nudging me further on the legal side – in a direction I am not unhappy to be nudged – by mobilizing considerations of text, context, history and legal policy to affirm the legal status of minimum core obligations, at least with respect to the correct interpretation of the ICESCR.

We can now also see how Martha Nussbaum’s marvellously provocative and wide-ranging comment misinterprets the aim of the first report. Nussbaum appears to believe that I sought to establish that MCOs already exist as a matter of international law and that, in virtue of this, states have a moral obligation (perhaps enforceable erga omnes) to comply with them. In light of her generally dismissive attitude towards the legitimacy of international law, where it has not been endorsed by democratic processes within states, she is accordingly sceptical of the normative upshot of my imagined argument. But what I was concerned to argue is that there is a good reason for believing in MCOs as part of human rights morality and, to the extent appropriate, enshrining them in international law (as Nussbaum also appears to recognise in observing that “Tasioulas always emphasizes that the norms in question are moral norms” and in saying I provide good moral arguments for them). The argument was made against the background assumption that there is a defensible human rights morality and that the ICESCR broadly reflects the content of many such human rights. Nothing in Nussbaum’s comment, therefore, directly touches the main line of argument deployed in either report.

Nevertheless, both of my reports can fairly be seen as receptive to the idea that if MCOs were embodied in international law, this would count in favour of a further, legally-based moral obligation of compliance with them. It is this assumption that Nussbaum challenges on the basis of the need to probe more deeply into the legitimacy of international law. In particular, the need to address how the claims of international law (whether treaty-based or customary international law) to obedience by states can be reconciled with the sovereignty enjoyed by those very same states. Why should states be bound by such norms if they have not endorsed them through their internal democratic political processes?

Faced with this question, I must confess, I feel a little like a plumber who has been called in to fix a leaky tap being asked to give a theory of the universe as a proper intellectual underpinning for his repair work. The reason that I did not directly address Nussbaum’s big theoretical question in either report was that, following the lead of authors like John Rawls, Cass Sunstein, and indeed Nussbaum herself, I believe that my analysis of MCOs has a self-standing quality, enabling it to be endorsed by those with widely divergent answers to that question. I did not want to prevent readers from coming to such an ‘overlapping consensus’ on MCOs by unnecessarily dragging in my views on contentious philosophical questions about how state sovereignty, democracy and the legitimacy of international law should be knitted together. Nevertheless, Nussbaum is entirely correct to suggest that some kind of answer to her question is required in a fuller philosophical theory in which MCOs are a small but important fragment.

Although this is not the place to sketch the overarching theoretical structure that Nussbaum demands, even if I could do so, it is worth pointing out that I would reject both of the two alternatives that she postulates. These alternatives are world government and (her democratic version of) the Grotian approach. The first alternative I would reject for reasons made familiar by Kant and, more recently, endorsed by Rawls. A unitary global state would provoke such massive resistance that it would lapse into widespread anarchy. Or else, assuming it could quell such resistance, this would be at the cost of tyrannical oppression. But the second, Grotian alternative is also unacceptable. This is because it makes the bindingness of international law in general conditional on its acceptance by the citizenry of a democratic polity. On this view, as Nussbaum puts it, international legal norms will “actually count as [morally binding] law when nations have [accepted them] through their internal, democratically accountable procedures”. The unsatisfactoriness of this alternative is most evident in the case of non-democratic states. Was apartheid era South Africa, for example, not bound by the jus cogens norms prohibiting racial discrimination and apartheid, given that it not only did not accept any such norms but vociferously protested against them? [3] But even democratic states, such as America, may be bound by norms of international law, such as norms outlawing military intervention and torture, irrespective of whether those norms have been domestically validated. Of course, it is a further question whether, and if so how, morally binding legal norms should be enforced against states the violate them. In other words, although international law must be respectful of the sovereignty of individual states (hence, a thumbs down to world government), it does not follow that it only binds if its norms are validated by the internal processes of democratic polities (hence, a thumbs down to Nussbaum’s take on Grotianism).

Nussbaum’s formulation of the Grotian view, which she favours, has surprising affinities with the profound scepticism towards international law propounded in recent decades by American neo-conservatives. [4] And this general impression of affinity is reinforced by the vehemence of her condemnation of the UN system as “grotesquely flawed and corrupt, totally lacking in democratic accountability, and therefore devoid of any procedural legitimacy when it comes to imposing law on people”. Nevertheless, such views, I believe, go overboard in their wholesale denial of any source of legitimate authority beyond the democratic nation state. In other writings, I have sought to sketch some of the contours of a more pluralistic conception of the global legal order, one which enables international (human rights) law to have binding authority over states that does not stem from the democratic validation of its norms, but rather from its satisfaction of the classical requirement that it enhances the conformity of states and other actors with the demands of an objective order of reason. [5] However, a condition of international law’s ability to enjoy such legitimacy is a proper respect for the (limited) claims of state sovereignty of both democratic and non-democratic states. These claims include, I believe, a limited leeway to depart from human rights demands in certain respects. There doubtless remains a lot more work to be done on these topics, especially that of elaborating on the requirement of properly respecting state sovereignty, and I hope I will have the good fortune to contribute to it with the continuing benefit of Martha Nussbaum as a main interlocutor.

Human Rights, Obligations and Feasibility

As can be seen from the responses of my commentators, the topic of MCOs polarizes informed opinion. Michael Kirby forcefully concludes that a “necessary” part of the analysis of the right to health is the inclusion of MCOs and suggests that in their absence that right would be “meaningless and devoid of real content”. In diametric opposition, Max Harris contends that the doctrine of MCOs “hollows out the potential of fully realised economic, social, and cultural rights”. It is important to register that many of these differences of opinion trace back to deeper divisions about the nature of both human rights morality and international human rights law in general, including how these two bodies of norms are related. It is therefore worth going back to these fundamentals before broaching the more specific questions regarding MCOs.

On the view adopted in my reports, international human rights law (IHRL) has as its formative aim the giving effect to a background set of moral human rights, insofar as it is appropriate to do so, by means of conferring international legal rights on all individual human beings. [6] It is this formative aim that distinguishes IHRL from other departments of international law, such as the law on the use of force or trade law. These other departments may also be vitally concerned with human rights – indeed, one of the major sources of human rights disasters in our world is illegal military interventions. But they are not concerned with human rights in the same way as IHRL is supposed to be: they are not centrally focussed on moral human rights nor on the furtherance of such rights through the specific legal technique of conferring legal rights on all individual human beings.

Given that IHRL should be, in this way, responsive to a background morality of human rights, it is important to be clear about the latter’s nature. In the first report, I emphasized the fact that human rights differ from interests in that they necessarily have obligations associated with them. Moreover, the process of identifying and specifying the content of these obligations must take into account a number of key considerations: (a) the scope of the relevant right – so, for example, I claimed that the scope of the right to health includes obligations pertaining to medical treatment, public health measures, and certain social determinants of health. Hence, obligations not to torture or to provide adequate food do not come under the right to health, even though they serve our interest in health, but rather are associated with other rights (i.e. the rights not to be tortured, and to food / an adequate standard of living); (b) the possibility of those who are subject to the obligations generally being able to comply with them, since ‘ought implies can’ rules out the existence of obligations that cannot, as a general matter, be complied with; (c) that the putative obligations associated with a given right are not excessively burdensome in terms of the costs they impose of those who bear the obligations, which explains why there cannot be a right to the ‘highest attainable’ standard of health on any strictly literal construal; and (d) the holism constraint that requires that the whole set of human rights we wish to recognise must be feasible – generally possible, and not excessively burdensome, to comply with – as a group, and not simply taken one-by-one. On my view, conceiving of human rights as involving obligations is essential to grasping their moral importance: obligations are moral reasons it is blameworthy to violate and which are in general strongly, but not absolutely, resistant to being overridden by competing considerations.

Sakiko Fukada-Parr’s thoughtful response shows that I needed to be clearer in the reports about what I meant in saying that human rights obligations, including obligations that belong to the sub-set of minimum core obligations, must comply with a requirement of not being unduly or excessively burdensome. Fukuda-Parr seems to believe I embrace the following two propositions about MCOs: (a) that they impose immediate obligations only regarding the provision of ‘low cost’ goods and services, and (b) that cost is a function of their market price. Having interpreted my views in this way, she understandably draws the conclusion that they lead to an ‘unnecessarily restrictive’ interpretation of MCOs. Fukuda-Parr’s critique would indeed be on target if I were committed to propositions (a) and (b). However, I reject both propositions, and explicitly so in other writings. Hence, for example, the following claim about the relevant sense of ‘cost’ or ‘burden’ in shaping obligations associated with rights:

“It is important to keep in mind, however, that ‘cost’ here is not a simple function of the real world market price of various medical services and public health measures. So, for example, one cannot simply take as given the market price that pharmaceutical companies, exploiting their market position and the rights afforded to them by intellectual property law, actually charge for their products.” [7]

Fukuda-Parr’s misreading of my feasibility criterion suggests that I should have explicitly reiterated that rejection in the first report. However, even in that report I nowhere state that MCOs must be ‘low cost’, only that they must not be ‘unduly burdensome’ to be imposed as obligations of immediate effect upon all states. The repeated qualifier ‘unduly’ is meant to allow for the possibility that burdensome demands may well be minimum core obligations. Just as a parent may have an obligation of immediate effect to risk their life in order to save their child’s life (but not to save the child’s finger from being scratched), so too a state may have an obligation of immediate effect to roll out a very costly vaccination program. The issue is always a matter of whether serving individual right-holders’ interests in a certain manner is something that it is not unduly burdensome to impose as an obligation. This will depend on the weight of the interest, the cost of fulfilling it via compliance with the supposed duty, and whether that cost is not an excessive demand on the putative duty-bearer given the benefit to the putative right-holder. Second, the ‘cost’ in question cannot simply be the price as determined by any existing institutional structure, such as the existing legal and economic arrangements regarding intellectual property rights. This would make the existence and content of human rights a function of arrangements that may themselves be deeply morally flawed because they embody certain forms of unfairness or enable relations of exploitation. Instead, cost essentially involves the burdens on resources that imposing an obligation would create given other potential ways of using the same resources. In this connection, the question arises whether it would be ‘unduly burdensome’ on pharmaceutical companies, say, to reduce significantly the unprecedented levels of intellectual property rights they currently enjoy in order better to serve the interests of those in need of access to various medicines. One way of expressing my sympathy with Fukuda-Parr’s powerful call to rebalance the right to health and intellectual property rights in favour of the former is to say that it would not be.

The issue of feasibility also crops up in Max Harris’ lively comment. Although Harris may allow that human rights (in morality or law), involve what might loosely be called ‘obligations’, he seems ambivalent about allowing considerations of feasibility ((c) and (d) above) to determine their content. Of course, I agree with him that judgments about feasibility are ‘value-laden’, but so is the judgment that feasibility should not be taken into account. The real task that confronts us is to make correct judgments about feasibility in shaping human rights norms. In this regard, I wondered who he was disagreeing with in observing that “Statements by present-day governments of what is feasible should not necessarily be accepted at face value. It might be that with significant rearrangements of those governments’ activities, enforcements of economic, social, and cultural rights would be eminently feasible”. Just as nothing in my reports endorsed market price as the ultimate determinant of burdensomeness, nothing I said endorsed taking governments’ statements about feasibility (or indeed anything else) at face value. Questions about the feasibility of human rights – about whether it is possible, or not unduly burdensome, to comply with their associated obligations – are often complex and difficult and not to be settled either by a brute appeal to price or to the (often) self-serving or obtuse say-so of governments. [8]

I will return to some of Harris’ specific criticisms of the doctrine of MCOs in the next section. But it is worth mentioning here one of the two pathways he endorses as alternatives to MCOs, which is a test of ‘proportionality’ that has become widely popular among constitutional lawyers. This is because it brings out deeper divergences in how we understand human rights and their relation to obligations. The proportionality approach casts the net extremely widely in identifying human rights, which basically consist in any legally cognizable interest. It then asks whether the measures complained of as infringing that human right might nonetheless be justified on a proportionality analysis that takes into account valid purposes served by the infringement. This proportionality approach may well avoid a role for minimum core obligations, as Harris suggests, but perhaps only at the drastic cost of failing to engage with anything recognisable as obligations at all. The upshot, as one of the leading exponents of the proportionality approach makes clear, is that to assert the existence of a human right is not to assert very much at all: “a rights-holder does not have very much in virtue of having a right… An infringement of the scope of a right merely serves as a trigger to initiate an assessment of whether the infringement is justified”. [9] Harris’ fears about ‘hollowing out’ human rights seems to return here, and with a vengeance, threatening to defeat pretty much any aspect of the supposed right possessed by the right holder.

Obviously, it is a live question which approach takes human rights more seriously: the view that says the obligations associated by human rights are not readily justifiably defeated versus a proportionality approach which does not confer on rights this general, but not absolute, resistance to being overridden. My own view, however, is that preserving the link with obligations that are generally resistant to defeat is crucial to the significance of human rights. [10] In this sense, one is asserting quite a lot in claiming that there is a human right not to be tortured or a human right to health. But, on a more purely political note, I also believe that the ‘proportionality’ approach, which recognises human rights to a lavish array of goods, yet is simultaneously ready to countenance extensive justified infringements of any such right, exemplifies the kind of ‘giving with one hand and taking away with the other’ that has brought the idea of human rights into disrepute in many societies.

In addition to the doctrine of proportionality, Harris concludes by mentioning another alternative to MCOs: “developing a more refined account of what is contained in individual economic, social and cultural rights”. But who could possibly object to giving such an account? But can this be done without taking very seriously the idea that such rights “contain” obligations that are not readily overridden, partly because they are shaped ab initio by considerations of feasibility? I doubt it. And, as I explain in the next section, the rights will also include MCOs, once we have dispelled Harris’ misconceptions about them. So, the second alternative to MCOs is, I believe, no real alternative at all.

I turn now to Sarah Hawkes’ comments, which make two vital observations that bear on an approach to global health policy that draws on human rights, including MCOs. The first observation is the importance of measures for maintaining the health of populations, including the prevention of illness and disease, alongside measures for treating people once they have become sick. Second, we need to consider how the determinants of health and illness have changed over time, with the rise in the 21st Century in the importance of factors such as over-consumption, corporate behaviour and lack of effective state governance.

I think both of these observations are entirely correct and that they have numerous significant implications for global health policy and human rights which are reflected in various ways in both of my reports and other of my writings. First, and most obviously, they help shape the obligations associated with the human right to health, including its MCOs. These will not only include obligations concerned with the treatment of the sick, such as obligations to afford them access to essential medicines, but also obligations pertaining to public health measures, such as vaccination, and to certain social determinants of health. It is important to observe here that the content of human rights will evolve over time in line with new challenges and opportunities for fulfilling our interests and variations in the cost of meeting the challenges and exploiting the opportunities. Secondly, when it comes to human rights, global health policy will need to rely on more than just the right to health, contrary to a thesis promoted by Lawrence Gostin and his associates. The right to health is, I have argued, limited in scope to obligations concerning the delivery of medical treatment, public health measures, and some but not all social determinants of health. But there are other human rights that play an important role in maintaining health or preventing its deterioration, such as the rights to political participation, non-discrimination, access to food and water, and to education. The latter is especially salient in view of the powerful role that the increase in women’s education has played in reducing mortality. Third, global health policy cannot take the measure of Hawkes’ observations without going beyond a normative framework focussed exclusively on human rights. A sound global health policy must also take on board non-human rights considerations, such as duties to preserve one’s own health or duties to foster the common good that are not owed to anyone as of right. Finally, Hawkes’ emphasis on the changing profile of determinants of health over time, and the increasing impact of corporate behaviour on health, necessitate a recognition that, in addition to strengthening state governance, we must embrace a plurality of agents and duty-bearers in relation to human rights (and other global health considerations). As the UN Guiding Principles on Business and Human Rights make clear, this must include human obligations imposed directly on corporations. [11]

The Distinctiveness of Minimum Core Obligations

In the first report I analysed minimum core obligations as that sub-set of obligations associated with social, economic and cultural rights that are of immediate effect. In other words, all states are obligated to comply with them in full immediately. The MCOs, so understood, set a limit to the doctrine of progressive realisation, as Gorik Ooms also points out in his helpful comment. The latter doctrine, which appears in Article 2(1) of the ICESCR, enjoins states “to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means”. MCOs are a sub-set of obligations to which the progressive realization is inapplicable. I further claimed that although additional features, apart from immediacy, were commonly associated with MCOs – such as non-derogability, protecting special values, and justiciability – we should not interpret MCOs as necessarily possessing these other features. Instead, it should be left as a matter of substantive, case-by-case investigation whether a given MCO should be seen (as a matter of morality or law) as possessing any of these extra features. It is the idea of obligations of ‘immediate effect’ that is the core of the minimum core doctrine.

Now, the idea of an obligation of immediate effect, although apparently rather elementary and historically traceable back to Kant and beyond, can nonetheless be misunderstood. Unfortunately, it seems to me that both Max Harris and Katherine Young have misinterpreted the idea.

The most straightforward misunderstanding is Harris’. He takes the doctrine of MCOs to assume that “economic, social, and cultural rights cannot be secured in full”, and that therefore we should aim at the second-best solution of securing the sub-set of obligations associated with these rights that are “minimum core”. But this is a serious misconstrual of the idea of MCOs. It should go without saying that all properly justified human rights – including economic, social and cultural rights – should be fully secured. This is because securing them is a matter of obligation, and obligations are non-optional. There is no question of dividing up human rights obligations into a compulsory core component and an optional non-core component. Rather, the doctrine of MCOs tackles the question of what to do when, because of resource constraints, it is genuinely not feasible to secure all human rights immediately. Contrary to the impression conveyed by Harris, that is a question that is addressed in the ICESCR, in the first instance, not by the doctrine of MCOs but rather by the doctrine of progressive realization. The doctrine permits states to take steps to realise economic, social and cultural rights progressively over time where resource constraints preclude securing them immediately. MCOs set a limit to the operation of the doctrine of progressive realisation by specifying a sub-set of obligations that must be immediately satisfied in full by all states. Perhaps Harris is hostile to MCOs because he rejects the doctrine of progressive realisation, which sets up a contrast between economic, social, and cultural rights, on the one hand, and civil and political rights, on the other, as well as opening up the possibility of a sub-set of obligations associated with economic, social and cultural rights that must be immediately complied with. On this view, all human rights obligations are of immediate effect, with no leeway for progressive realization. Quite apart from the fact that such a view is heterodox as a matter of legal doctrine, I doubt that a cogent moral case exists for it.

A more sophisticated confusion about MCOs is to be found in the commentary by Katherine Young. She conflates minimum core obligations – obligations of immediate effect – with a very different idea, i.e. that of obligations that enjoy an absolute sequential priority in relation to their compliance. Hence, she seems to believe that I am committed to the idea that states are “require[d] [to] discharge core obligations towards primary education before other levels [of education] are addressed”. But this form of absolute sequential priority forms no part of the idea of minimum core obligations, as I explained them. The minimum core doctrine does not say that MCOs must always be fully complied with before a state embarks on any steps towards complying with non-core obligations; instead, it makes the far more moderate claim that, in a context where resource limitations preclude a state from complying with both core and non-core obligations, other things being equal it must prioritize the core obligations, leaving the non-core obligation to be progressively realized over time. [12]

An example from private life may serve to clarify the distinction between immediacy and absolute sequential priority that I have in mind. A parent, Brian, has an obligation to feed his child which is immediate – it must be realised here and now. Brian also has, let us say, a parental obligation to build up a fund for the future tertiary education of their child, an obligation that is to be progressively realised over time. May Brian undertake work during the day towards building up his child’s education fund before he cooks his child dinner that evening? Of course he may. Brian’s immediate obligation to provide dinner for the child is perfectly complied with, even if its fulfilment was preceded by a day’s work aimed at progressively realising the obligation to build up an education fund. If, however, Brian were going out to work in the evening in order to build up the education fund, leaving his child hungry at home, then he would be violating the immediate obligation. To call an obligation an obligation of immediate effect is not to say that non-immediate obligations may never be engaged with before the immediate obligation is complied with. Rather, it is to say that, in a situation of resource constraints that prevent both obligations being complied with, other things being equal the compliance with the immediate (core) obligation must not be sacrificed in favour of compliance with the non-core obligation.

So, let us shift now to an international illustration. If Bill Gates offers to pay the full costs of establishing and maintaining a tertiary education system in a less developed country, the government of that country is not required to turn away the gift on the basis that it must first fully comply with minimum core obligations. If the gift is expressly tied to this purpose, and its acceptance entails no further costs for the receiving state, then the state can accept it as part of the progressive realisation of its non-core obligations regarding education. This is because the non-core obligations are not being complied with by the state at the expense of the core obligations. If, instead, Gates had simply gifted the country a large sum of money, and the state chose to spend it on tertiary education, while leaving obligations to provide primary education unmet, then it would be contravening a minimum core obligation.

So, with this confusion between minimum core obligations and obligations that enjoy absolute sequential priority out of the way, it seems to me that there is no obstacle to Young embracing minimum core obligations. Indeed, she herself explicitly acknowledges the need for prioritization in the fulfilment of human rights obligations. Once freed of misinterpretation, minimum core obligations – or whatever else we choose to call obligations of immediate effect – are a key way of articulating these priorities.

Young also makes two somewhat cryptic remarks worth addressing. The first is that the Committee and other regional bodies have made “efforts” to “demarcate” minimum core obligations and obligations of immediate effect as “separate categories”. To this extent, she regards my interpretation of MCOs as departing from existing human rights law and practice. As Young recognises, even if this were true, it would not touch the main substance of my thesis, which is a moral case for recognising MCOs understood as immediate obligations. But even leaving this point aside, I find it difficult to respond to Young’s claim because she does not document any examples of where such a clear demarcation is made to set against my case for interpreting references to MCOs by the Committee as essentially obligations of immediate effect. Perhaps she means that the Committee has associated MCOs not just with the feature of immediacy, but also with features such as non-derogability and justiciability. This is something I repeatedly acknowledge in my first report, but there I also gave reasons for favouring a disaggregated conception of MCOs: making immediacy the core feature of MCOs, with the presence of other features to be determined on a case-by-case basis. I think this is the most attractive interpretation of MCOs that also fits the often unclear and inconsistent claims made on the topic by the Committee.

Young’s other remark is that my analysis of MCOs helps foster the unhealthy tendency to downgrade economic, social and cultural rights as compared with civil and political rights. Here I would make two points in reply. Insofar as we are talking about the two Covenants, it is clear that the doctrine of progressive realisation explicitly applies only to economic, social, and cultural rights. This ‘downgrading’ of socio-economic rights is a matter of law, not an artefact of my own theory. Second, in my report, I stated that once we have vindicated a role for MCOs in relation to socio-economic rights, we might logically be led to extend their application to civil and political rights, since resource constraints of the kind that arise in the case of the former also crop up in relation to the latter. Contrary to a formerly widespread mythology, civil and political rights cannot be contrasted with socio-economic rights on the basis that they are systematically non-burdensome or entail only ‘negative’ obligations. In my view, the moral force of MCOs, along with the idea of progressive realisation, is not confined to economic, social and cultural rights but applies to civil and political rights as well, whatever the existing legal situation may be. But this is a discussion for another occasion.

Gorik Ooms’ comment reminds us that although MCOs impose primary obligations on states in relation to their own people, they also impose secondary obligations on other states and international agents in the event, or likelihood, of non-compliance with those primary obligations. In my reports, I briefly addressed secondary obligations to assist states that are unable to comply with their MCOs. In addition, I also mentioned a secondary obligation not to impose conditions on states that will foreseeably lead to their inability to meet their MCOs, referencing the important work of Margot Salomon on the imposition of austerity measures on debtor countries. [13] Ooms’ comment goes further and, drawing on my analogy with parental obligations, contemplates an obligation to treat those governments that are able, but unwilling, to meet their MCOs in the way that we treat perpetrators of ‘crimes against humanity’. What is immediately in the offing here, presumably, is some form of intervention against the state in question or punishment of officials responsible for the MCO-violating policies.

If, as Ooms anticipates, my response to this bold proposal is somewhat guarded, this is for two reasons. First, I would be loath to build into the very concept of MCOs that they are triggers of intervention or punishment in the event of their extensive violation. And this for reasons similar to my resistance to interpreting MCOs as inherently non-derogable or justiciable. Building in this feature threatens to obscure the fundamental point of MCOs, which is to identify obligations of immediate effect associated with economic, social and cultural rights. There is no reason, a priori, to suppose that this concern maps neatly onto a norm relating to intervention or punishment. The result is that the fundamental point of MCOs risks being distorted. A more practical concern, which is a corollary of this one, is that linking MCOs in a wholesale way with intervention or punishment risks generating pressure to interpret them as more minimal demands than would otherwise be the case, given the severity of the consequences of breaching them. The second reason for my cautious reception of Ooms’ proposal is more general and relates to my scepticism about the tendency to move easily from normative claims about human rights to enforcement claims about intervention or punishment. I have outlined some of my misgivings on this front in criticising those trends in recent philosophy that essentially construe human rights as triggers for intervention. [14] But I think similar concerns extend to the tendency to perceive human rights through the lens of criminal law. These concerns are amplified in the case of violations of socio-economic rights which often concern structural matters for which a finding of criminal responsibility can be problematic. [15] None of this is to say that I reject Ooms’ intriguing proposal, but rather that I would like to see it fleshed out more fully. Any version of his proposal that is liable to be persuasive, I believe, will be more complex than a norm that simply appeals to the fact that some MCO has been extensively violated in a situation in which this could have been avoided.

Human rights today, as leading authorities have warned, are under pressure. [16] Some of these pressures are exogenous. They include rampant economic globalization, the rise of political authoritarianism, and a spreading ‘populist’ backlash. The external character of these pressures can foster the illusion that all human rights morality and law really needs is a combination of better PR and more effective enforcement mechanisms. But this would be an overly optimistic assessment, overlooking the extent to which human rights thought and practice has been undermined from within. These internal pressures often stem from a failure to grasp the proper, and limited, scope of human rights morality and, by extension, of international human rights law. The process of internal renewal that is needed is one that takes the philosophical underpinnings of human rights more seriously, including their nature as sources of obligation that do not exhaust the entire field of moral concern, as well as addressing questions of prioritization in the face of resource constraints. In this process of renewal, we will need to draw on a repertoire of concepts that we can articulate clearly and distinctly. MCOs are, I believe, an important component of this conceptual repertoire. As the insightful reflections of the contributors to this symposium show, their nature and potential warrant greater study by lawyers, philosophers, economists, ordinary citizens and others who are genuinely committed to the cause of human rights.

 

[1] The first report, which sets out a general framework for understanding the idea of minimum core obligations, is J. Tasioulas, Minimum Core Obligations: Human Rights in the Here and Now (Nordic Trust Fund / World Bank, 2017). The second report, which addresses minimum core obligations in relation to the human right to health, is J. Tasioulas, The Minimum Core of the Human Right to Health (Nordic Trust Fund / World Bank, 2017).

[2] J. Tasioulas, The Minimum Core of the Human Right to Health (Nordic Trust Fund / World Bank, 2017), pp.15-19.

[3] J. Tasioulas, ‘Custom, Jus Cogens and Human Rights’, in C. Bradley (ed.), Custom’s Future: International Law in a Changing World (CUP, 2016), pp.95-216.

[4] J. Kyl, D.J. Feith, and J. Fonte, ‘The War of Law: How New International Law Undermines Democratic Sovereignty’, Foreign Affairs July/August 2013.

[5] J. Tasioulas, ‘The Legitimacy of International Law’, in S. Besson and J. Tasioulas (eds), The Philosophy of International Law (Oxford University Press, 2010) and J. Tasioulas, ‘Human Rights, Legitimacy, and International Law’, American Journal of Jurisprudence (2013) 58: 1-25.

[6] For a fuller account, see J. Tasioulas, ‘Exiting the Hall of Mirrors: Morality and Law in Human Rights’, in T. Campbell and K. Bourne (eds), Political and Legal Approaches to Human Rights (Routledge, 2017).

[7] J. Tasioulas and E. Vayena, ‘The place of human rights and the common good in global health policy’, Theoretical Medicine and Bioethics (2016): 365-382, p.374 https://link.springer.com/content/pdf/10.1007%2Fs11017-016-9372-x.pdf

[8] A fuller discussion of considerations (b), (c) and (d) can be found in J. Tasioulas, ‘On the Foundations of Human Rights’, in R. Cruft, M. Liao, and M. Renzo (eds), Philosophical Foundations of Human Rights (Oxford University Press, 2015).

[9] M. Kumm, ‘Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement’, in G. Pavlakos (ed.), Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (Hart Publications, 2007), p.139.

[10] For powerful criticisms of the proportionality doctrine from this sort of perspective, see G. Verdirame, ‘Rescuing Human Rights from Proportionality’, in R. Cruft, M. Liao, and M. Renzo (eds), Philosophical Foundations of Human Rights (Oxford University Press, 2015) and F.J. Urbina, A Critique of Proportionality and Balancing (Cambridge University Press, 2017).

[11] Many of these points are developed further in J. Tasioulas and E. Vayena, ‘The place of human rights and the common good in global health policy’, Theoretical Medicine and Bioethics (2016): 365-382 https://link.springer.com/content/pdf/10.1007%2Fs11017-016-9372-x.pdf

[12] A similar confusion may also be at work in Harris’ claim that MCOs entail a ‘short-term’ outlook that leads to the neglect of ‘long-term investment or institution-building’. We can see that Harris’ conflation of MCOs with a policy of short-termism is mistaken from the fact that it makes perfect sense to engage in long-term investment and institution-building to secure MCOs in the future when they arise, e.g. the prevention of famine or the provision of primary education in years to come. Similarly, a parent may need to adopt long-term policies, e.g. maintaining a healthy lifestyle and diet, in order to be able to comply with their immediate obligations to their child now and in the future.

[13] J. Tasioulas, Minimum Core Obligations: Human Rights in the Here and Now (Nordic Trust Fund / World Bank, 2017), p.21

[14] J. Tasioulas, ‘Towards a Philosophy of Human Rights’, Current Legal Problems 65 (2012) pp.1-30.

[15] For a powerful antidote to a fixation on criminal law in relation to human rights, see the chapter entitled ‘The Awkwardness of the Criminal Law’ in O. Fiss, The Dictates of Justice: Essays on Law and Human Rights (Republic of Letters, 2011).

[16] P. Alston, ‘The Populist Challenge to Human Rights’, Journal of Human Rights Practice 9 (2017), pp.1-15.

Doctrinal Weaknesses, Faulty Assumptions, and Short-Termism: Problems with the Minimum Core


Max Harris is an Examination Fellow in Law at All Souls College, Oxford. He is currently completing a DPhil in constitutional law and has worked as a consultant for the United Nations Development Programme.


The words ‘minimum core’ do not appear in the International Covenant on Economic, Social and Cultural Rights – or in the major regional human rights treaties. The idea of the minimum core of economic, social, and cultural rights is a gloss on what is in international human rights law, first introduced by the Committee on Economic, Social, and Cultural Rights in 1990 in a General Comment written by the Committee. That General Comment is not binding. It is therefore open to human rights lawyers, academics, and activists to choose to adopt or reject the doctrine of the minimum core; it is not inevitable that the doctrine is taken up. John Tasioulas, in two characteristically thoughtful papers for the World Bank (one on the minimum core doctrine in general, the other on the minimum core of the right to health), endorses the doctrine.

Tasioulas defines the minimum core – quite reasonably – as a “sub-set of obligations” associated with an economic, social, and cultural right, such as the right to housing or the right to education. For Tasioulas, we find the minimum core in obligations that must be complied with immediately. They must be “feasible” and “not unduly burdensome”.

In my view Tasioulas is too quick to accept the doctrine. He sees practical value in the minimum core: it helps, Tasioulas thinks, with “priority setting” where “resource implications” make it “inappropriate” to require full enforcement of economic, social, and cultural rights. But Tasioulas does not supply a positive argument for why it is inappropriate or impossible to enforce economic, social, and cultural rights in full. Political and cultural theorists, such as Mark Fisher, have argued that judgments of what is ‘possible’ or ‘realistic’ in politics are value-laden; they reflect assumptions about what governments can and should do. Legal theorists, including in international human rights law, ought to learn these same lessons and apply them to judgments of what is “feasible” or “unduly burdensome”. (Tasioulas does not define these terms, and in particular does not say when an obligation would be “unduly” burdensome.) Statements by present-day governments of what is feasible should not necessarily be accepted at face value. It might be that with significant rearrangement of those governments’ activities, enforcement of economic, social, and cultural rights would be eminently feasible.

As I have argued elsewhere, the privileging of core over non-core obligations therefore hollows out the potential of fully realised economic, social, and cultural rights. Tasioulas’ defence of the minimum core relies on the assumption that economic, social, and cultural rights cannot be secured in full; the minimum core is then presented as a second-best solution – the best that can be done in an imperfect world. Tasioulas considers the possibility that the minimum core doctrine might be “misunderstood” or “hi-jacked” in a way that sidelines parts of economic, social, and cultural rights. But the minimum core would not be “hi-jacked” if it involved the privileging of core over non-core obligations; indeed, prioritisation is meant to be one of the principal virtues of the doctrine.

Tasioulas also encourages the collection of empirical evidence to test whether the minimum core doctrine could result in sidelining of non-core obligations, and suggests an educative process could be conducted – along with other strategies being developed – if there was such sidelining. However, this is to mistake a conceptual problem for an empirical challenge to be managed. It is inherent in the concept of the minimum core that some normative hierarchy is created between core and non-core obligations. Empirical evidence can help to determine the effects of this hierarchy, but it cannot deny the existence of that hierarchy.

A further problem with Tasioulas’ account is what he says is prioritised through the minimum core doctrine: namely, obligations that can be immediately complied with. To prioritise these obligations is worrying from a development perspective. ‘Immediate compliance’ could conceivably mean one of two things. It could refer to obligations that a government can begin to take steps to comply with immediately. Or it could mean obligations that a government can completely comply with immediately. Because Tasioulas suggests that non-core obligations are subject to progressive realisation, he must understand ‘immediate compliance’ to mean the second of these options. The upshot of this is that the ‘immediate compliance’ account favours the sub-set of obligations that is short-term in outlook. Aspects of economic, social, and cultural rights that require long-term investment or institution-building cannot be protected by the minimum core. It is thus no surprise that Tasioulas concludes, in his paper on the right to health, that the minimum core of the right to health can include only “selective primary healthcare” as well as only partial delivery of Universal Health Coverage. This commitment to a short-term tilt, an approach grounded in the “here and now”, is unfortunate given that United Nations and NGO leaders have lamented the lack of long-term investment and institution-building in the world of development.

Overall, Tasioulas has drawn some helpful distinctions in these papers, in particular in sketching the difficult possible senses of ‘minimum core’, and has offered a useful review of the case law. But in resiling from the full enforcement of economic, social, and cultural rights he has been insufficiently ambitious. No minimum core exists for civil and political rights; to accept such a minimum core for economic, social, and cultural rights is to capitulate to a two-tier system of human rights protection that many human rights activists and academics have long resisted. Instead of the minimum core doctrine, judges might consider whether limits on economic, social, and cultural rights satisfy a test of proportionality (in jurisdictions where that is a usual part of judges’ human rights toolkit), or they might simply develop a more refined account of what is contained in individual economic, social, and cultural rights. Both alternative pathways would better realise the promise in the Vienna Declaration that human rights are “universal, indivisible, interdependent and interrelated.”

Conceptualizing Minimum Core Beyond Affordable Goods and Services – Trade for Human Rights as a Minimum Core Obligation


Sakiko Fukuda-Parr is a Professor of International Affairs at The New School. She is a development economist interested in human development and capabilities and the broad question of national and international policy strategies. Her current research includes projects on public policies and economic and social rights, and the impact of global goal setting on international development agendas.  Professor Fukuda-Parr serves on the UN Committee on Development Policy as Vice Chair, The Lancet-University of Oslo Commission on Global Governance for Health, and the boards of the International Association for Feminist Economics, the Center for Economic and Social Rights, and Knowledge Ecology International.


Minimum Core – translation of obligation of immediate effect as minimum level of rights enjoyment

In his report on the Minimum Core Doctrine (MCD) Tasioulas states: “the essence of the concept will be taken to be the sub-set of obligations associated with socio-economic rights that must be immediately complied with in full (obligations of immediate effect)” (p. 3). He contrasts these against those obligations that require significant resources and are therefore subject to ‘progressive realization’. Thus, the defining characteristic of MCD is that it differentiates obligations between those of immediate effect and those of progressive realization. And the focus is on the nature of the obligations (what the state must do when) rather than the nature of substantive rights (the condition of people’s lives).

However, the discussion about what constitutes minimum core obligations in substance focuses on the nature of rights enjoyment and a package of minimum goods and services that would be required rather than the nature of obligations. This starts with General Comment 3 that refers to ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights’, and to the provision of ‘essential primary health care’ (ICESCR quoted in Tasioulas p. 5). Further, human rights-based practice begins to specify specific types of diseases to be treated and goods and services that would be included in the minimum, as under the ‘selective primary health care model’ adopted by UNICEF (Tasioulas p. 5).

Thus, the concept of minimum core obligations has become translated as a right to a minimum set of goods and services, specifically identified with the provision of primary health care, including specific services such as oral rehydration therapy, immunization against six childhood diseases, and access to essential medicines on the WHO list. A key criterion in developing this list is affordability which makes immediate provisioning possible. Ironically – as I will discuss below – prevailing prices of such goods are therefore important to defining minimum core obligations rather than their importance for people in leading healthy lives.

This conception of MCD around low cost goods and services is unnecessarily restrictive. It is also out of line with concerns to meet pressing and priority health needs of the population. It departs from the original concept of obligations of immediate effect. It limits the consideration of the wide range of measures that national governments should take to expand the enjoyment of the right to health such as by reversing damaging policies or setting new ones. A salient example is policy choices governments might make in the area of intellectual protection provisions in free trade and investment agreements.

Intellectual property, trade agreements, and access to medicines

One of the pressing threats to the human right to health is the trend to include stronger intellectual protection in bilateral and plurilateral trade agreements. Since the introduction of the WTO TRIPS agreement that made strong intellectual property (IP) protection a requirement for all signatory countries, health and human rights activists have protested their effects on public health priorities, particularly in restricting access to life saving medicines[1]. More than two decades on, even stronger IP provisions – ‘TRIPS Plus’ – have proliferated in new bilateral and plurilateral agreements, such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP), that was agreed in January 2018 by 11 countries[2]. These provisions strengthen patents held by pharmaceutical corporations by making patentability easier, and delaying the introduction of generic competition that would lead to lower prices and wider diffusion. Moreover, the new ‘trade agreements’ increasingly incorporate wide ranging provisions for investment – such as provisions for investor/state dispute settlement, public procurement, state owned enterprises and more – that strengthen investor rights and impose limitations on policy options for national governments in pursuing public health[3]. These agreements are being negotiated with little consideration of their effects on the government obligation to fulfill the right to health; rarely are public health impact assessments made.

IP and trade policies for human right to health as a Minimum Core Obligation

There is much that countries can do to make IP-related trade agreements less damaging to public health priorities if not promote them[4]. To start with, governments can make more proactive use of the flexibilities incorporated in the TRIPS agreement to make life saving medicines available at affordable prices. Countries can reject TRIPS plus provisions. Or they can also reject free trade agreements. These are all approaches that some countries – such as Thailand, Colombia, and Brazil have adopted. Even more important, countries that are defending IP holders interests, should refrain from joining corporations in taking retaliatory action against those countries that do use the flexibilities[5]. For example, US government places countries that use TRIPS flexibilities on the Special 301 watch list that monitors IP enforcement and lists countries where enforcement is inadequate or weakening. One of the concerns is with “troubling indigenous innovation policies that may unfairly disadvantage U.S. rights holders in foreign markets.” (USTR 2018)[6].

Though much has happened to expand access to life saving, high cost, patented drugs, and to invest in innovations for public health priorities, many gaps remain. Millions of people around the world lack access to medicines, and these include new branded medicines that carry very high prices – for example latest cancer drugs approved generally cost over US$100,000 for a year’s course of treatment, the new hepatitis C drug costs $1000 per pill or $84,000 for a course of treatment[7]. Access to such drugs is critical to life and is surely a priority for the fulfillment of the human right to health and the human right to life. Yet latest lifesaving drugs are not on the WHO essential medicines list as they are too expensive and cannot be provided universally. But this is because of the IP driven medical research and development system, enforced through trade agreements, that governments are obliged to comply with. At the same time, research and development (R&D) lag for high priority challenges because they do not offer attractive investment potential. This includes not only tropical diseases that afflict poor people and poor countries, but priorities for people of all levels of income, such as new antibiotics to combat growing antimicrobial resistance (AMR). Proactive government action, to coordinate internationally and promote priority investment in medical R&D by mobilizing public, private, and philanthropic resources would go a long way to fill these innovation gaps. Numerous initiatives have been taken in this direction but much more can be done.

Taking a proactive approach to designing trade and investment policies that align with public health priorities and that do not undermine the right to health is therefore an important human rights obligation of governments. I would argue that this is an important minimum core obligation because it is one that can be implemented with immediate effect, without large investment of resources. But many countries – particularly small developing countries – that have little economic or political clout in trade negotiations are faced with difficult trade-offs between joining trade and investment agreements to benefit from the global economy, and the need to protect policy space for pursuing their public health priorities. It is incumbent on all countries therefore to work collectively to promote systemic change and develop global principles and mechanisms for a more equitable policy framework for financing medical innovation. Many proposals have been made, not least by the series of global commissions that have addressed the contradictions between trade and health over the years. Pursuing these measures that would work towards greater equity in access to medicines – particularly all lifesaving medicines, and not just the inexpensive ones that are on the WHO essential medicines list – is surely a minimum core obligation of states necessary for the fulfillment of the human right to health.

[1] While intellectual property protection rewards investors, it creates barriers for diffusion. It also hinders innovation for social priorities such as diseases of the poor that do not create a market demand. The tension is recognized in the TRIPS agreement itself that includes measures – commonly referred to as “TRIPS flexibilities” – that can be taken when the IP provisions get in the way of public health priorities.

[2] Without the US that withdrew from the original 2016 agreement.

[3] For summary discussion of these issues, see McNeil et al 2017.

[4] For overview see report of the UN High Level Panel on Access to Medicines and Innovation 2017

[5] Several cases have been documented since the early 2000s, such as the case of Thailand that has used a compulsory license for HIV/AIDS drug in 2006, to more recent case of Colombia’s effort to issue a compulsory license for a cancer drug. Such efforts have met with retaliatory actions such as corporations threatening to withdraw their products from the market, or with being put on US government’s Special 301 watch list of countries where IP enforcement is weakening.

http://www.ip-watch.org/2018/04/27/ustr-annual-special-301-report-seeks-intensify-action-china-colombia-canada/

https://www.ictsd.org/bridges-news/bridges/news/thailand-issues-compulsory-licence-for-patented-aids-drug

[6] Office of the US Trade Representative, 2018 Special 301 Report.

https://ustr.gov/sites/default/files/files/Press/Reports/2018%20Special%20301.pdf

[7] http://www.pharmacytimes.com/resource-centers/hepatitisc/will-hepatitis-c-virus-medicaton-costs-drop-in-the-years-ahead