International human rights law, humanitarian law, and criminal law are all undergoing a highly significant but largely unacknowledged transformation. They are increasingly prioritizing a narrow range of “atrocity crimes” at the expense of much of the vastly broader agenda that they should also be addressing.
This process of criminalization has been gathering speed for two decades and is now beginning to transform the main priorities at both the national and international levels. While prosecuting heinous criminals must be a part of the overall response to violations of human rights and humanitarian law, a disproportionate emphasis on criminalization poses major risks. Only a very small number of individuals will ever be prosecuted, but non-criminal violations are being marginalized, and structural remedies continue to be ignored. In addition, criminalization empowers judges and criminal lawyers at the expense of social movements, moves the focus to individual rather than collective responsibility, reinforces problematic North–South dynamics, and distorts resource allocations.
Trends
A preoccupation with criminalization reflects a particular philosophy of how societies’ principal pathologies can best be addressed. It gives center stage to law enforcement officers and investigators, prosecutors, and judges. While in theory, it should be only one part of the response, it risks becoming dominant in practice.
Examples (explored in depth in my recent article in the Journal of Human Rights Practice) include the prioritization of the prosecution of sexual violence rather than more broadly focused efforts to uphold women’s rights in conflict; the International Criminal Court’s overwhelming focus on “atrocity crimes” at the expense of prosecuting many other crimes; the insistent emphasis in recent UN Human Rights Council commission of inquiry mandates on individual criminal accountability; the setting up of hugely expensive investigative mechanisms (for Myanmar, Syria, and ISIS in Iraq) almost entirely oriented towards future prosecutions; and the pressure to allege genocide in a great many situations in order to show that the “worst” atrocity crime is involved. At the same time, funding cuts are undermining the potential effectiveness of core UN human rights activities such as treaty body monitoring and the accountability roles of Special Procedures mandate-holders.
The focus on “atrocity crimes” inevitably prioritizes evidence-gathering and activities aimed at meeting the very high standards required for criminal prosecution. Governments have reinforced this emphasis by imposing criminal sanctions in response to an ever-increasing range of violations, and civil society actors are following suit by seeking to expand the range of crimes to include ecocide, domicide, and omnicide. The logic seems to be that if the problem is not classified as a crime, it’s not going to be taken seriously.
In areas such as counter-terrorism and transitional justice, there is often an undue emphasis on criminalizing certain forms of behavior so that individuals can be prosecuted rather than grappling with the broader context in which solutions need to be sought.
Another manifestation of the perceived magical power of civil and criminal sanctions is the rush by Western governments to demonstrate their human rights credentials by imposing sanctions against individuals accused of corruption or human rights abuses. These targeted sanctions, now mimicked by China and Russia, can be seen as a form of criminal punishment in which named individuals are accused of crimes and punished through the imposition of sanctions. Such measures are often tokenistic—they enable governments to score points while evading the tougher questions that need to be addressed.
Consequences
Few human rights proponents oppose any of these developments on their own merits. Who would contest the propositions that accountability is crucial, impunity must be countered, and the guilty must be prosecuted and punished?
But when they assume center stage, these processes come at a considerable price. They emphasize individual perpetrators’ responsibility, often leading to a few evildoers shouldering all the blame while the broader society remains unaccountable. The distribution of resources and power is left untouched. They also reinforce a problematic geopolitical distortion, where Global North countries are determined to prosecute atrocity crimes, which are much more likely to take place in the Global South. In contrast, pressing Global South concerns are generally not treated as atrocities, and their pursuit is radically underfunded.
In the international humanitarian and international criminal law fields, these issues have been canvassed in instructive debates over the cost of focusing unduly on atrocity crimes. Prominent commentators in each field have warned of the negative consequences. An appropriate equilibrium must be established before it is too late.
The way forward
The biggest challenge is how to achieve balance. The prosecution of atrocity crimes is important, but so, too, is the need to adequately address other violations of human rights and humanitarian law. Perhaps even more important is the need to move beyond an obsession with narrowly defined violations and also engage with structural issues such as extreme poverty, massive inequality, and entrenched racially and sexually discriminatory frameworks.
Detailed studies have shown the urgent need to address the economic discontent and exclusion that fuels the rise of authoritarianism, illiberalism, and populism. Ignoring the underlying social and economic causes and instead relying excessively on a handful of criminal prosecutions is a recipe for failure.
The question remains of how best to address the growing mismatch between the most pressing human rights challenges and the institutional responses being prioritized by the international community.
The first step is to acknowledge that there is a problem. Not just governments but the human rights community as a whole—in consultation with victims of human rights violations broadly defined rather than survivors of dramatic atrocities—need to pause the rush to embrace criminal law–based solutions and instead identify a more balanced and effective set of priorities. International criminal law must be a part of that vision, but it should not be the tail that wags the dog.
