Criminal law has important, if limited, relevance for the enforcement and protection of ESC rights. The limitations derive from the consideration that only a small number of violations of ESC rights or elements of such violations are considered as crimes under national or international law. In addition criminal justice typically does not address all the elements of a victim’s right to remedy and reparation, focused as it is on the State’s interest in holding accountable and punishing the authors of criminal acts.
Nonetheless, practitioners at domestic level involved or interested in ESC rights litigation should, in appropriate instances, take criminal law and criminal justice systems into due consideration.
The punishment of authors of rights violations can in specific instances contribute to the provision of adequate reparation as part of the right to an effective remedy for violations of human rights as understood in international law. The deterrent effect of criminal justice prevents future violations and contributes to the guarantee of non-repetition. It can sometimes, therefore, constitute an element of the satisfaction of the victims.
At the international level, violations of ESC rights that also violate the right to life or the right to be free from torture and cruel, inhuman and degrading treatment, among other rights, may amount to crimes under international law and thus be subject to criminal prosecution. For example, under international humanitarian law, a number of offences that constitute war crimes and grave breaches of the 1949 Geneva Convention or 1977 Additional Protocol I, as well as certain war crimes and crimes against humanity under the ICC Statute, may also constitute ESC rights violations.
In the same vein, some violations of ESC rights or of elements of their normative content may constitute a crime or a punishable offence under domestic law. Examples include breaches of legal provisions that are punishable such as breaches of labour codes in cases related to safety and protection of workers or to sexual harassment at work; breaches of statutory provisions on education in cases related to sexual harassment, health codes, or to failure to assist persons in danger or negligence in the area of health care.
- 213. See Chapter 2, section II.1; Part IX, “Reparation for harm suffered”, of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Resolution A/RES/60/147 (2005); and the ICJ Practitioners Guide No.2 on the right to a remedy and to reparation for gross human rights violations, pp. 46-49, accessible (in English, French, Spanish, Arabic, Thai) at: https://www.icj.org/the-right-to-a-remedy-and-to-reparation-for-gross-human-rights-violations/↵
- 214. On the relevance of international criminal law for ESC rights, see Chapter 2, section III.2, p. 49.↵