Awakening the Leviathan through Human Rights Law - How Human Rights Bodies Trigger the Application of Criminal Law

• Author: Mattia Pinto
• Position: PhD Candidate in Law at the London School of Economics and Political Science (LSE), UK
• Pages: 161-184

Mattia Pinto, ‘Awakening the Leviathan through Human Rights

Law – How Human Rights Bodies Trigger the Application of

Criminal Law’ (2018) 34(2) Utrecht Journal of International and

European Law pp. 161–184. DOI: https://doi.org/10.5334/ujiel.462

UTRECHT JOURNAL OF

INTERNATIONAL AND EUROPEAN LAW

RESEARCH ARTICLE

Awakening the Leviathan through Human Rights

Law – How Human Rights Bodies Trigger the

Application of Criminal Law

Mattia Pinto*

This article analyses the role that human rights bodies play in triggering the application of

criminal law. By examining the jurisprudence of the Inter-American Court of Human Rights, the

European Court of Human Rights, the UN Human Rights Committee, as well as other human

rights bodies, the article discusses how these institutions have started imposing on states

positive obligations to criminalise, prosecute and punish serious human rights violations. While

criminal law has traditionally been seen as a threat to fundamental rights, human rights bodies

have contributed to presenting criminal law in a positive vein, as an essential instrument of

human rights protection. The mainstream of the human rights movement has largely lauded the

trend. This article challenges this view, by presenting the pitfalls of using human rights law to

extend the reach of criminal justice in order to ensure that perpetrators are held accountable.

Not only the imposition of duties to criminalise and punish ends up restricting the accused’s

fundamental rights and neglecting the conceptualisation of criminal law as

ultima ratio

, but the

invocation of criminal-law enforcement might also contribute to enhancing the coercive power

of the state and, therefore, make state abuses more likely.

Keywords: Human Rights Law; Criminal Law; Positive Obligations; European Court of Human

Rights; Inter-American Court of Human Rights; United Nation Human Rights Committee

I. Introduction

‘The objective of international human rights law is not to punish those individuals who are guilty of

violations, but rather to protect the victims and to provide for the reparation of damages resulting from the

acts of States responsible’.1 These lines, pronounced by the Inter-American Court of Human Rights (IACtHR)

in Velàsquez Rodríguez, distinguish the role of international human rights law (IHRL) from that of criminal

law. The former is designed to protect individuals from state abuse, whilst the latter has the antithetical aim

of employing state power to punish those who commit a crime. Yet, it is somehow ironic that these words

were pronounced in the judgment considered as the precursor to a trend that has made criminal punish-

ment one of the main objectives of IHRL.

Velàsquez Rodríguez is at the crossroads of a paradigmatic change in the relationship between human

rights and criminal law. Until the mid-1980s, the large majority of human rights lawyers did not favour using

criminal law for fear that employing penal powers might lead to abuses.2 However, in the years immediately

following, the end of the Cold-War inaugurated a period of democratic transitions and attempts to advance

accountability for serious human rights violations.3 In this context, criminal punishment gradually started

being considered as the decisive instrument for banning practices of oppression and violence, as well as for

promoting justice and peace.4 Today, criminalisation, prosecution and punishment have assumed a central

* PhD Candidate in Law at the London School of Economics and Political Science (LSE), UK. Contact: M.Pinto@lse.ac.uk.

1 Velásquez Rodríguez v Honduras, IACtHR Ser.C No.4 (29 July 1988) para 34.

2 Karen Engle, ‘A Genealogy of the Criminal Turn in Human Rights’ in Karen Engle, Zinaida Miller, D. M. Davis (eds), Anti-Impunity

and the Human Rights Agenda (CUP 2016) 18.

3 Ruti Teitel, ‘Transitional Justice Genealogy’ (2003) 16 Harvard Human Rights Journal 69, 75–76.

4 Karen Engle, Zinaida Miller, D. M. Davis, ‘Introduction’ in Karen Engle, Zinaida Miller, D. M. Davis (eds), Anti-Impunity and the

Human Rights Agenda (CUP 2016) 1.

Awakening the Leviathan through Human Rights Law – How Human Rights Bodies

Trigger the Application of Criminal Law

162

role in IHRL. This article moves from this development to analyse the role human rights bodies5 play in

triggering the application of criminal law. In particular, it discusses the implications of using IHRL to extend

the reach of criminal justice.

A. Literature Review

The shift in the role of IHRL in criminal justice has been noted.6 The new trend has generally been welcomed

in the belief that the best way to deal with perpetrators of human rights abuses is to prosecute and punish

them.7 Scholars ascribe several positive effects to the employment of criminal law within human rights. Kim

and Sikking, for example, argue that human rights prosecutions ‘are necessary to deter future violations’ and

‘have a deterrence impact beyond the confines of the single country’.8 Safferling suggests that prosecution

contributes ‘to the finding of the truth’, while punishment enhances ‘the sense of reliability of the system’

and improves ‘the feeling of security under the law’.9 Similarly, Landsman claims that prosecution ‘can sub-

stantially enhance the prospects for the establishment of the rule of law’, as well as ‘function as a means of

educating the citizenry to the nature and extent of prior wrongdoing’.10

Nevertheless, there are also those who have expressed perplexity at this new development.11 Engle, in

particular, has criticised the turn to criminal law within human rights movements. According to her, reli-

ance on criminal law reinforces ‘an individualized and decontextualized understanding of the harms [human

rights movements] aim to address’.12 Similarly, Sorochinsky has shown disapproval for the tendency of IHRL

to mandate ‘the use of the most intrusive forms of government intervention into the private sphere without

giving governments the authority to devise other, less intrusive legal measures’.13

With respect to human rights bodies, a handful of authors have noted the growing case-law of these

institutions regarding state obligations to criminalise, prosecute and punish serious human rights

violations.14 While for some scholars the invocation of criminal law by human rights bodies is highly

desirable,15 other authors have highlighted the risks of an increased criminalisation to the rights of the

defendant and to other fundamental principles of criminal law.16 Pastor, for instance, contends that the

5 Throughout the text, the term “human rights bodies” encompasses both regional human rights courts and international human

rights monitoring bodies.

6 E.g. Kathryn Sikkink, The Justice Cascade (WW Norton & Company 2011); Mykola Sorochinsky, ‘Prosecuting Torturers, Protecting

“Child Molesters”: Toward a Power Balance Model of Criminal Process for International Human Rights Law’ (2009) 31(1) Michigan

Journal of International Law 157; Karen Engle, ‘Anti-Impunity and the Turn to Criminal Law’ (2015) 100 Cornell Law Review 1069.

7 Diane F. Orentlicher, ‘Addressing Gross Human Rights Abuses: Punishment and Victim Compensation’ (1994) 26 Studies in

Transnational Legal Policy 425, 426.

8 Hunjoon Kim and Kathryn Sikkink, ‘Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries’

(2010) 54 International Studies Quarterly 939, 939.

9 Christoph J.M. Safferling, ‘Can Criminal Prosecution be the Answer to massive Human Rights Violations?’ (2004) 5(12) German Law

Journal 1469, 1482.

10 Stephan Landsman, ‘Alternative Responses to Serious Human Rights Abuses: Of Prosecution and Truth Commissions’ (1996) 59

Law & Contemporary Problems 81, 83.

11 E.g. Françoise Tulkens, ‘The Paradoxical Relationship between Criminal Law and Human Rights’ (2011) 9 Jurnal of International

Criminal Justice 577; Fernando Felipe Basch, ‘The Doctrine of the IACtHR regarding States’ Duty to Punish Human Rights Violations

and Its Dangers’ (2007) 23 American University International Law Review 195; Frédéric Mégret and Jean-Paul S. Calderón, ‘The

Move Towards a Victim-Centred Concept of Criminal Law and the “Criminalization” of IAHR Law’ in Haec and others (eds), The

IACtHR: Theory and Practice, Present and Future (Intersentia 2015); Daniel Pastor, ‘La deriva neopunitivista y el desprestigio actual

de los derechos humanos’ (Jura Gentium, 2006) accessed 14 July

2018.

12 Engle (n 6) 1071. In her article, Engle shows and questions the human rights movement’s increased attention to the fight against

impunity and its uses of criminal law in the process. She takes a position against a strong anti-impunity focus, with a critical look

at the implications of connecting human rights remedies to criminal law.

13 Sorochinsky (n 9) 210–211. In his article, Sorochinsky maintains that the increasing recognition of victims’ rights by interna-

tional human rights courts has led the latter to downplay their traditional commitment to due process for criminal defendants

in favour of supporting increasingly punitive practices based on the assumption that criminal law can help solve social problems.

Sorochinsky calls attention to this trend and tries to outline a new path for protecting victims’ rights while remaining faithful to

due process values.

14 E.g. Anja Seibert-Fohr, Prosecuting Serious Human Rights Violations (OUP 2009); Andrew Ashworth, Ben Emmerson, Alison

Macdonald, Human Rights and Criminal Justice (3rd edn, Sweet & Maxwell 2012).

15 Keir Starmer, ‘Human Rights, Victims and the Prosecution of Crime in the 21st Century’ (2014) 11 Criminal Law Review 777;

Sebastian Răduleţu, ‘National Prosecutions as the Main Remedy in Cases of Massive Human Rights Violations’ (2015) 9 International

Journal of Transitional Justice 449, 457; Christina Binder, ‘The Prohibition of Amnesties by the IACtHR’ (2011) 12 German Law

Journal 1203, 1208.

16 Tulkens (n 11); Basch (n 11); Paolo Caroli, ‘Behind the Rhetoric: The Implications of Prohibiting Amnesties’ (2018) 13(1) Journal of

Comparative Law 95, 105; Natasa Mavronicola, ‘Taking Life and Liberty Seriously: Reconsidering Criminal Liability Under Article 2

of the ECHR’ (2017) 80(6) Modern Law Review 1026, 1026.