In “Banal Crimes Against Humanity: The Case of Asylum Seekers in Greece,” Ioannis Kapouzos and Itamar Mann argue that the International Criminal Court (ICC) Prosecutor should prosecute not only radically evil crimes but also more commonplace crimes such as inhuman and degrading treatment against refugees. The authors argue that the ICC Prosecutor’s prioritization of prosecuting radically evil crimes over banal crimes, which lack the element of sadistic violence of radically evil crimes, allows powerful governments to avoid being held accountable for their systematic human rights violations and to use the ICC as a political tool against weaker states.
The authors analyze Greece’s handling of the surge in migration in the past 15 years from Africa and the Middle East as an example of how the ICC could more effectively address banal, systematic human rights violations by stronger states. Greece’s response to the recent migration increase has received repeated criticism for violating the human rights of these migrants by detaining them in unsanitary conditions in crowded cells without access to medical services or means to claim asylum. As a result, the European Court of Human Rights has found against the government of Greece on several occasions for inhuman and degrading treatment, violating migrants’ rights to effective remedies, and violating the migrants’ right to non-refoulement. Under a judgment of the European Court of Human Rights, the violating government is typically required to financially remunerate its victims, but individual agents of the government are not held criminally liable as they could be in a criminal court such as the ICC.
The authors argue that banal crimes such as mistreatment of refugees not only violates human rights law but also constitutes crimes against humanity under international criminal law, specifically Article 7 of the International Criminal Court’s Rome Statute. The authors assert that the ICC Prosecutor should seek criminal action against individual agents of the Greek government as well as agents of the European Union border agency Frontex who have worked in coordination with the Greek government since 2010 in handling the surge in migration at the Greek border.
The authors point to the provisions of Article 7(1)(e), (h), and (k) of the Rome Statuteto argue that the inhuman and degrading treatment of migrants by agents of Greece and Frontex amount to crimes against humanity by meeting the article’s threshold requirement that the acts are part of a widespread attack on a civilian population and that the action amounts to unlawful imprisonment under (e), persecution of a protected group under (h), and inhumane acts intended to cause great suffering under (k).
In arguing that banal crimes are of significant gravity to warrant prosecution, the authors state that the ICC Prosecutor should consider the ICC’s political role and utilize her prosecutorial discretion to protect vulnerable populations who otherwise have no recourse against powerful states. While acknowledging that the Prosecutor’s approach of prosecuting mass atrocities is supported by sound reasoning and that the detention of asylum seekers in Greece pales in comparison to cases the Prosecutor has chosen to prosecute involving mass killings in countries such as Darfur, Congo, and Uganda, the authors argue that the gravity of a case does not have to rise to that of a mass atrocity to deserve prosecution by the ICC. Rather, the authors argue, cases such as the one in Greece would help the ICC combat both the “by-products of global social and economic process” and the ICC’s reputation for inappropriately targeting African countries for prosecution.
Given the recent global increase in migration, the authors raise concern that unauthorized immigration will generate continued inhuman and degrading treatment of migrants under the guise of national security by receiving countries. The authors conclude by noting banal crimes against migrants far outnumber mass atrocities and that prosecution of these banal crimes would address a global imbalance in which the systematic inhuman and degrading treatment of migrants by powerful states is not adequately addressed even though they are “of concern to the international community as a whole” as required by the Rome Statute for prosecution.
NOTE: This summary is produced by the Rule of Law Collaborative, not by the original author(s).