The Common Core between Human Rights Law and International Criminal Law: A Structural Account

• Author: Alain Zysset
• DOI: http://doi.org/10.1111/raju.12254
• Published date: 01 September 2019
• Date: 01 September 2019

2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

Ratio Juris. Vol. 32 No. 3 September 2019 (278–300)

The Common Core between Human

Rights Law and International Criminal

Law: A Structural Account

ALAIN ZYSSET*

Abstract. Legal schola rs and theorists have recently drawn a more sust ained attention to the

link betwe en international human r ights law (hereafter IHRL) and intern ational crimina l law

(hereafter ICL). This concer ns both positive and more normative accou nts of the link. Whethe r

positive or normative, the predomin ant approach to constructing the l ink is substantive. This

overlap is normatively justified i n similar ter ms by reference to a subset of moral hu man rights.

In this paper, I offer an alter native to the substantive approach. After identifying two flaws

in the substantive approach (the problem of threshold and the problem of ethical neutrality), I

defend what I call a structural account by focusing on duty-holders. I sta rt by reconstructing

two structural characteristics common to IHRL and ICL qua international legal regimes:

who has the authority to address violations of I HRL and ICL, and who can be liable for those

violations. I then in fer that public authority (functionally construed) constitutes the common

structura l core of IHRL and ICL. I rely on the extraterritorial applic ation of IHRL and on the

collective dimension of ICL violations to further support the argument. I finally offer an

argument explai ning the normative point of those struc tural features. I hold that IHRL and

ICL (their adjudicative and liabilit y regimes) are both necessary ( but clearly not sufficient) to

render this exerci se of public authority legitimate to its subje cts.

1. Introduction

Legal scholars have recently drawn a more susta ined attention to the link between

international human rights law (hereafter, IHRL) and international criminal law

(hereafter, ICL). One predominant approach to this lin k is to identify the overlap that

may exist be tween international crimes a nd human rights violations—in partic ular,

when and why certain human r ights violations may constitute international cri mes.

This is the case, for instance, with crimes against humanity; Andrew Clapham

(2016, 17) argue s that “systematic violations of human r ights are associated with the

* I am very grateful to the participants in the workshop Answering for International Crimes:

Perspectives from Moral, Political and Legal T heory (July 2017) at PluriCourts, University of Oslo,

and to an anonymous rev iewer of Ratio Juris for very constr uctive and insightful com ments. I

am particul arly indebted to Alejandro Chehtm an, Andreas Follesdal, and Malcol m Thorburn

for continuously discu ssing of the topic in recent years.

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Ratio Juris, Vol. 32, No. 32019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

The Common Core

prospect of prosecuting the perpetrators for crimes against humanity.” In the case

of genocide, Robert Cryer (2010, 499) holds that “these types of acts can amou nt to a

violation of civil and political rig hts.”

A similar tre nd can be found in the normative theory of IHRL and ICL. I n this lit-

erature, Massimo Renzo, for insta nce, identifies “dignity” as the com mon core pro-

tected by both IHRL and ICL (with specific reference to crimes against humanity):

“crimes against humanity are those which deny their victims the status of human

being, i.e., those crimes that violate basic huma n rights of their victims” (Renzo 2012,

453). Numerous contributions to the normative theory of ICL more implicitly rely

on a notion of IHRL when they explain, for instance, in what sense crimes against

humanity concern hum anity at large. David Luban (2004, 44), for instance, contends

that the “claim that all humankind has an interest in repressing crimes against

human ity presupposes at the very least a universal human right not to be subj ected

to these crimes.” This u nifying approach is substantive in postu lating a substantive

and universal status or value —one that justifies the extraterritorial reg imes associ-

ated with IHRL and ICL.

In this paper, I offer an alternative to the substantive approach. I defend what I

call a “structural” account of the li nk between IHRL and ICL. Instead of focusi ng on

the limited overlap between the t wo types of violations, I start by reconstr ucting two

structural c haracteristics that are intrigu ingly common to the international regi mes

of IHRL and ICL: who has the authority to adjudicate violations of IHRL and ICL,

and who can be liable for these violations. In other words, I suggest concentrating

on duty-holders u nder IHRL and ICL to build their com mon core. The conventional

notion used to address those quest ions is jurisdiction (to legislate, to adjudicate, and

to enforce). But jurisdiction in this context is simply another word to signify that

some legal official is con ferred authority over the creation, adjudication, and/or the

enforcement of international lega l norms, as I shall explain.

More importantly, opting for the structural approach supposes that the substan-

tive approach is deficient. First, the substantive approach faces a threshold problem.

Once one postulates that IHRL and ICL protect a substantive moral status or value

(such as “dignity”), it quickly appears that a vast range of rights and crim inal prohibi-

tions may also protect th at status without forming part of the conventional corpus of

IHRL and ICL. The criterion for dist inguishing ICL and IHRL f rom their domestic an-

alogues (constitutional law and cri minal law, respectively) thereby collapses. Second,

adopting the substantive approach risks conveying a comprehensive moral view of

what the violations of norms indeed attack—call it the problem of ethical neutrality.

This problem is even more acute in the context of inter national law, since imposing a

comprehensive moral view would ultimately conflict w ith the state’s basic moral right

to self-determination (and its legal counter part in Article 1(2) of the UN Charter). This

in no way diminishe s the idea that ICL violations “shock the conscience of humanity”

(Preamble to the Rome Statute of the International Criminal Court). It rather places

a normative constraint on the spec ification of what exactly those violations attack.

Once the limits of the sub stantive approach are established, it remains to be seen

what the structural approach can deliver. This approach asks two questions: Who

is entitled to adjudicate IHRL and ICL violations? And who is liable for those vio-

lations? I suggest that these criteria should i nform the normative elucidation of the

common core between IHRL and ICL. The fact that they are struct ural—they form

part of the basic legal architecture of these regimes—further invites us to explore