International criminal law and human rights might, at one level, seem to be antipathetic. Not least, because, at the domestic level, most international human rights lawyers tend (and very frequently rightly) to decry the excesses of domestic criminal justice systems both at the procedural and substantive level.
It might be thought, therefore, that it is a little ironic that many human rights NGOs speak in stern terms of the necessity of the prosecution of international criminals, whilst excoriating the treatment of defendants in domestic law. The claims of irony are misplaced. The issue that most NGOs on point are raising is the abuse of authority by the powerful, and the appropriate responses to it. Hence, domestically, their focus tends to be on the treatment of often vulnerable, defendants, whereas when it comes to international crimes, the focus tends to fall on ensuring the accountability of usually powerful, perpetrators. I see no fundamental inconsistency in this. Nonetheless, the relationship between international criminal law and human rights is not simple.
For the purposes of this post, I will pass aside certain issues, such as the relationship between human rights law and the procedure of international and internationalised criminal tribunals, and the extent to which human rights are lived up to at the post-conviction (or acquittal) stage of international proceedings. There are others who are far better placed than I to discuss those issues. Here I will reflect briefly on three things: first, the substantive coverage of international criminal law; second, the relationship of international criminal law and international human rights law; and third, the extent to which they ought to overlap. These thoughts are preliminary, and intended to provoke debate rather than pre-empt it, still less foreclose it.
For the first part I will take as read that what we mean by international crimes as being the ‘big four’: aggression, crimes against humanity, genocide, and war crimes. Second, I will consider human rights law as being reflected in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. There is more to be said about treaties at the liminal point between international human rights law and international criminal law, such as the Torture Convention, and the Convention on Enforced Disappearances, but here is not necessarily the place to engage in that debate. Third, I will look at the extent to which international criminal law and international human rights law jurisprudence (which is itself not a unified system of law) ought to influence one another. Read the rest of this entry…