International Economic Law and Policy Blog
In the latest episode of infliction of suffering on Greece, its Eurozone creditors have halted the recently agreed debt relief plan because the Tsipras government has decided to provide emergency payments to the country’s most vulnerable pensioners. The widespread and severe suffering imposed on the Greek people by the Eurozone as a condition for stabilizing Greece’s external debt have been well-documented,including by the United Nations. As has been explained by Joseph Stiglitz in his recent book The Euro and as is evident even from an internal investigation conducted by the IMF’s own watchdog, the imposition of austerity on Greece was economically irrational. Instead it was a product of crude power politics within Europe-above all, in Germany.
But where is the accountability, in an era where international law purports to take humanity seriously, for such inhumane behavior?
The Statute of the International Criminal Court may on first impression seem an odd place to look. Yet the drafters of the Rome Statute took the remarkable step of intentionally not limiting the crimes within its jurisdiction to those that take place in the context of either international or internal armed conflict. One of the offenses in question is “Crimes Against Humanity.” The crimes include not only the wrongful deprivation of life (“murder”) but notably “Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” (emphasis added).
It would not, in my view, be difficult, based on evidence already mentioned, as collected by the United Nations, to establish that “great suffering” occurred from the austerity policies of the Eurozone, has forced on Greece. The negative consequences for mental and physical health have been thoroughly documented.
But was the infliction of such suffering intentional, and are the elements of mens rea as required by international criminal law present in this situation? Intent basically means that the individual engaged in a purposive act. The requisite element of knowledge is established by Art. 30 of the Rome Statute as “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.” I doubt it would be too difficult to establish that the key actors in the Eurozone who have been imposing austerity on Greece did not at some point have knowledge of the suffering in question; they were surely confronted with the reports of the United Nations for example.
In terms of whom to investigate, I would imagine that the prime suspect would be Germany’s Finance Minister, Wolfgang Schaeuble. Schaueble has personally identified himself with the view that there should be no relenting on austerity for Greece, regardless of the human consequences. He has presented himself as Greece’s punisher for domestic political advantage, playing on the notion that the Greeks need to be taught a lesson or to pay for past sins. Intention and knowledge might well be demonstrable from Schaeuble’s public utterances alone. However, it may well be worth extending the net wider, certainly to include Jeroen Dijsselbloem, head of the Eurogroup. (Recall that under the Rome Statute there is no immunity for sitting officials, not even at the highest level.)
One question, on which international criminal law colleagues may well want to opine, is whether the apparent voluntary acceptance by Greece of the austerity program breaks the chain of causality, as it were. The Tsipras government repeated indicated that it accepted the conditions of the program under duress and only to avoid even greater human catastrophe. However, Yanis Varoufakis, among others, made powerful arguments (with which I nevertheless disagreed at the time on this blog) that Greece had a viable alternative of rejecting the Eurogroup deal and taking a unilateral approach to solving its crisis (which might include default on official debt and exit from the Euro).
So the case is far from open and shut. But opening an investigation of Schaeuble and Dijsselbloem would be a powerful response to criticisms that the ICC has a neocolonial agenda to chastise the misbehavior of the South while ignoring the crimes of the North. And human rights advocates, especially those concerned with social and economic rights, have a large stake in a case that illustrates that intentional humanitarian catastrophe and grave human rights violations occur in contexts other than armed conflict or police-state oppression.