ESIL-International Human Rights Law Symposium: International Criminal Law and International Human Rights Law

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.

In some ways, the substantive content of international criminal law and human rights overlap. This is not (and should not be) any surprise. They arose as different responses to essentially the same set of factual backdrop: Nazism. And, in no little part, international criminal law developed in its early days through the prosecution of those involved in Axis crimes, and international human rights law (especially the European Convention on Human Rights and the Universal Declaration of Human Rights) came from the same moral groundswell, the idea of ensuring that conduct must never occur again.

It is also the case that international criminal law, at least in its core sense, relates to things that in other contexts would amount to serious human rights violations. I have traced the overlaps elsewhere and will not bore readers with repetition. Suffice it to say that, for the most part, international criminal law currently deals with violence as traditionally conceived. Indeed, the overlaps with Hart’s minimum content of natural law, could be a fruitful seam of enquiry to mine (although this has not, as yet, been looked into in great depth).

In spite of the pleas of some, only recently has the concept of economic, social and cultural rights really entered the agenda of international criminal lawyers (although as Evelyne Schmid has shown such concerns are within the compass of the traditional core crimes). Even further, in spite of figures like Bert Röling being (at least after the Tokyo Trial) heavily influenced by Johan Galtung’s idea of structural violence, that has not translated into criminalisation of such issues. Perhaps though, not all such issues are part of the appropriate purview of international criminal law. Criminal law is not always the answer.

When it comes to the relationship between international criminal law, as it is currently conceived, and international human rights law, the fact that they have overlaps, and that various international criminal tribunals have drawn upon the work of human rights bodies, might lead to an easy assumption that the two areas of law are consonant. After all, in the Kunarac case, the ICTY asserted that owing to the absence of jurisprudence on point (in international criminal law on the definition of torture) they would look to the human rights bodies’ work (para. 467).

However, the ad hoc Tribunals quickly realised that there are limits to the links between these areas of law, given the different focus of international criminal law and international human rights law. Hence, to take one example, in spite of the reliance of the ICTR on the jurisprudence on hate speech of human rights bodies in the RTLM case (paras. 983–1010), the Appeals Chamber in that case was careful to separate off human rights law and international criminal law, as the two are not identical (paras. 692–6, 972–88). Holding a State responsible for a violation of international human rights law and putting someone in prison are not the same thing.

In the RTLM case, the Appeals Chamber was right to draw this distinction. As Darryl Robinson has said, the various areas of law involved are not the same, and do not entail identical commitments. In short, human rights law has a basis in State responsibility, and, as such has been be the subject of broad interpretation, but where we are speaking of individual criminal responsibility, the interests of the defendant, in particular the nullum crimen sine lege principle speak the other way. Therefore, in the views of the criminal law scholars in international criminal law a narrower, in dubio pro reo, approach ought to be adopted, as the ICTY itself accepted some time ago (Prosecutor v Krnojelać, Judgment,IT-97-5-A, 15 March 2002 para 181).

That said, the development of the law cannot be entirely stymied on this basis, there is no getting around the fact that international criminal lawyers, of many different sympathies, still look back with fondness on the Tadić Appeal (IT-94-1-AR72, 2 October 1995), in spite of the fact that it used a controversial, (at least at the time) approach to custom to develop the law (albeit, as it ought to be made clear in a manner which was, in spite of its critics, obiter). This is because in many (but not all) cases, the conduct covered would be considered by many as being mala in se, or at the least criminal at the domestic level. This is not a complete answer, but it suffices for many. In spite of the critiques, there is some truth that can be found in it. Not least that the conflation of law and (assumed) morality is a frequently made criticism of natural law, and one that has particular relevance to criminal law.

Hence, when it comes to the overlap between international criminal law and international human rights law, it must be said that not every response to a violation of human rights ought to be a criminal one. The idea that the response to every perceived wrong ought to be criminal is redolent of the mentality of editorials in papers such as the Daily Mail, rather than a modern liberal approach to the way in which law (both civil and criminal) ought to work in society. Criminalisation has a role, but only a subsidiary one (or, as our civilian lawyer friends might put it, it ought to be the ultimo ratio).

Criminal law ought not to be a first resort, but nor should the powerful consider themselves above the law, and the scope of international law, and its implementation, ought to reflect this. International criminal law has a role to play in responding to human rights violations, but only a partial one.