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Thursday, June 05, 2014

'Bring Back Our Girls' - Failure to Enforce the Rule of Law as a Crime Against Humanity

The media has been saturated with stories of violence against children and women in developing countries and the lack of meaningful action by government officials.  As a recent example, hundreds of girls in Nigeria were kidnapped from a boarding school and Nigerians have criticized the government for failure to sufficiently act.  In India, two girls were raped and hung from a mango tree while, villagers allege, the police stood by.  In Pakistan, a pregnant woman, while literally standing on the courthouse steps of a high court, was stoned to death by relatives even though such "honor killings" are illegal. 

Many developing countries have well-written laws dealing with such issues as violence against women and children, bonded labor, property grabbing, and the general administration of justice, but a large swath of the most vulnerable part of the population (the poorest, the women, and the children) fail to receive protection or justice.  No doubt, there is a rule of law problem.

Rule of law issues are complex.  Developing countries do not have the funds to enforce laws.  Citizens of developing countries are often unaware of their rights and protection under the law.  Corruption is a problem throughout law enforcement agencies and the justice system, from the police to the prosecutors and the judges.  The international community needs to do more to help battle this corruption (of course, this is not to say that we don't have our own major corruption problems on the domestic front).  The rule of law problem is so pervasive in some of these countries that all the good NGOs do by providing food, education and health care is overshadowed by the violence that the most vulnerable populations face daily.  Focus (and funds) should be shifted away from simply providing material aid, and instead more attention should be given to establishing the rule of law. 

It doesn't matter how healthy or educated a young girl is if she is raped without any recourse or murdered without any justice.  This is the subject of my current research project where I argue that the failure by high ranking government officials to enforce their countries' laws could establish a crime against humanity under the Rome Statute.  A systematic failure to protect a large portion of the population (i.e., women and children) from murder, rape and other inhumane acts fits the definition of a crime against humanity.  There are some potential problems with this analysis, though. 

Even if the failure to enforce laws (an act of omission) could constitute a crime against humanity, could anyone really be charged?  Many developing nations (including India and Pakistan) have not ratified the Rome Statute.  However, the U.N. Security Council has referred a few matters (Sudan and Libya) to the International Criminal Court.  In the Sudan matter, the ICC issued an arrest warrant for the leader of Sudan under the Rome Statute even though Sudan is not a party member.  With enough international pressure, perhaps the Security Council would act again.  Even if it did not, some of the countries where gender and children violence is pervasive are parties to the Rome Statute (like Nigeria).

Second, and perhaps more important, even if a government official is charged with a crime against humanity, so what?  The ICC is struggling with number of issues, including the problem of enforcement.  Despite the issues surrounding the ICC, however, the shame brought upon an individual with a crime against humanity charge (or investigation) might send a strong message that the international community believes in the rule of law.

Posted by Naomi Goodno on June 5, 2014 at 03:39 PM in Criminal Law, Current Affairs, Gender, International Law, Law and Politics | Permalink


Thanks for the helpful comment. The literature on post-disaster government responses and CAH seems right on point and will help with my research project. I too think this is somewhat of an academic argument at this point given ICC's troubles and the lack of the rule of law in some of these countries. Perhaps with enough international pressure, even the discussion of a CAH charge might cause some action, no matter how incremental. International attention can cause some movement, as what seems to have occurred in the response to the December 2012 New Delhi bus gang rape where the perpetrators were tried and sentenced in less than a year from the date of the crime.

Posted by: Naomi Goodno | Jun 10, 2014 11:30:21 AM

Hi. Sorry I have taken so long to post a response, but grading has been tough. As I am sure you are aware, even though CAHs have usually not been charged outside of armed conflicts, there is no theoretical reason why they can't be, as there is no longer a requirement of a nexus with armed conflict.

There is some literature now about whether government officials should be liable for CAHs for failing to provide basic services outside of armed conflicts. Most of this literature has to do with the response to natural disasters.

Even though a number of academics have argued that CAHs do cover omissions by government officials in non-conflict situations, it seems unlikely that we will see any active prosecutions in the short to medium term. As you note, the ICC is unlikely to take up such prosecutions because of its own troubles, and the states themselves are unlikely to do such prosecutions either. After all, if they won't enforce their laws on human rights to begin with that implies a lack of political will that makes a CAH prosecution unlikely too.

I guess I see the best path forward as laying the intellectual groundwork for the practical expansion of CAH beyond armed conflicts. It may be years or decades before such prosecutions occur, but it doesn't hurt to lay the foundations for those prosecutions now.

Posted by: Stuart Ford | Jun 9, 2014 12:18:50 PM

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