‘Complete labelling’ and domestic prosecutions for crimes against humanity
Javier Eskauriatza, University of Birmingham.
Most people know that drug-cartels wreak havoc. For example, in Mexico, some of the most powerful cartels have been responsible for forced disappearances, mass executions, and spectacular acts of terrorism. They have exercised control over vast swathes of territory. Some have captured the legitimate structures of government and exercised a sort of quasi-rule over populations. They have killed thousands with impunity. However, drug-related violence tends to be excluded from the ambit of international criminal law. This may reflect a historical truth: labels like ‘crimes against humanity’ were invented to describe (and to denounce) mass atrocities perpetrated upon European populations by their own State.
Over time, the legal definition of crimes against humanity has moved away from its historical State-centric origins. It is now accepted (by most States) that crimes against humanity are also perpetrated by organizations (i.e., non-State armed groups, such as the Colombian FARC-EP). As a matter of general international law, a crime against humanity occurs when an individual committed a prohibited act (‘murder’, ‘torture’, ‘enforced disappearance of persons’, ‘rape’) as part of a widespread or systematic attack directed against any civilian population (with knowledge of the attack).
There is ample evidence that some drug-cartels in Mexico are responsible for these kinds of attacks on civilians. Even so, when captured and prosecuted, the leaders tend not to be considered as that kind of international criminal. Instead, successive administrations in Mexico and the U.S. have tended to charge cartel leaders (and/or their political supporters) with so-called “transnational crimes” (for example, drug-trafficking, money-laundering, bribery/corruption). It is undeniable that these criminal labels represent accurately some of the wrongdoing involved. However, there is some discomfort caused by the fact that the more serious crimes, for example, attacks on entire towns, and mass forced disappearances, have remained unaddressed by the official prosecutorial response. How should we understand this prosecutorial selectivity in domestic prosecutions of international crimes?
The principle of ‘complete labelling’ urges prosecutors to consider the impact of their selective approach from the perspective of victims, survivors and the wider community affected by the relevant conduct. The principle helps to explain and justify the criminal trial as a “public forum” where the defendant, the State, and the victims, are engaged in a communicative process; a process that involves establishing the wrongs done to the community and denouncing them. A failure to acknowledge the most significant aspect of the defendant’s conduct sends a message that the State is indifferent about that behaviour – or even worse, the official silence may be interpreted as connivance.
For sure, the prosecution of cartel leaders for crimes against humanity may not always be appropriate. There is also the question of whether the individualisation of guilt sits comfortably with the collective nature of widespread violence in Mexico and elsewhere. These important countervailing considerations must be factored in, but if the project of (international) criminal justice is to have any legitimacy, it must play a constructive role in helping societies to tell more complete and accurate stories about mass suffering in the hope that stronger communities will emerge. Hope, in this sense, is about commitment. Sometimes, that commitment must be expressed via domestic prosecutions of crimes against humanity.
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The article can be read in the context of proposals for a new Transnational Criminal Court for Latin America and the Caribbean
- 1 December 2021 – 24-hour Conference on Global Organized Crime #OC24 2021
The article can be read in the context of proposals for a new Transnational Criminal Court for Latin America and the Caribbean