Around the world, migrants are locked up in camps, abused and often driven to the brink of starvation. Many die as a result. These crimes should finally be punished, by the International Criminal Court.
Agnes Callamard, UN Special Rapporteur on Extrajudicial, Summary, and Arbitrary Executions, presented animportant new report to the UN General Assembly on Friday. The report is on “Unlawful Death of Refugees and Migrants” — already an unordinary focus for her mandate. In recent years, her office has focused nearly exclusively on counter-terrorism, particularly on deaths by drone attacks.
As she explains, the report concerns “an international crime whose very banality in the eyes of so many makes its tragedy particularly grave and disturbing.” The contention is rather dramatic, and we believe that it is indeed historic, at least as far as reports by UN bodies are concerned.
Callamard spells out the practical implications: “The International Criminal Court should consider preliminary investigation into atrocity crimes against refugees and migrants where there are reasonable grounds that such crimes have taken place and the jurisdictional requirements of the court have been met.” It is particularly out of the ordinary for a UN body to recommend to the International Criminal Court what cases it should consider, but that is exactly what Callamard has chosen to do.
Against the backdrop of constant militarization of borders, her recommendation is urgent; yet without some contextualization, it can be easily misunderstood. The discipline of international criminal law emerged in aggression and atrocity. The paradigm, still capturing popular imagination, is of course the catastrophe of World War II. Aggressive war was at the center of the jurisdiction of the international military tribunal created by the allied victors. The existence of war was necessary in order to pass judgement on the perpetrators of collective violence.
Only gradually has the practice of international criminal law moved away from the fixation on war as the necessary trigger for international accountability. International criminal prosecution diversified its focus. The legal concept of crimes against humanity, linked to war at Nuremberg, is no longer tied to it. For example, the indictment of General Augusto Pinochet in 1998 had associated criminal prosecution with a society’s attempt to reckon with past tyranny.
At the same time, the creation of the International Criminal Court (ICC) was brimming with potential. The support it enjoyed was not only associated with mass atrocities but also with an aim to achieve global justice. Crimes Against Humanity, not necessarily linked to war, feature in the ICC’s jurisdiction. They include crimes like apartheid, which is a system of government rather than a method of war. Prohibited acts when committed as a “widespread or systematic attack against a civilian population” encompass an array of practices that may occur in times of peace: torture, which is often practiced in law enforcement contexts; imprisonment without procedural safeguards or in abhorrent conditions; persecution, which is the severe deprivation of fundamental rights through discrimination; and unlawful deportation.
Ioannis Kalpouzos is a lecturer for international law at City University London. He is a founder of the Global Legal Action Network.
Itamar Mann teaches international law at the University of Haifa. In 2016, his book “Humanity at Sea: Maritime Migration and the Foundations of International Law” was published.