Abstract
International criminal tribunals have often resorted to human rights law in order to ground their rulings. Acknowledging that international criminal law results from the combination of human rights law, international humanitarian law and national criminal laws, this article reviews selected case-law and argues that an emotionally driven application of human rights law has been deployed in respect of domains exclusively pertaining to criminal law. While a comprehensive approach to law is to be praised, it is submitted that international criminal law has undergone controversial developments due to resorting to human rights law in a somewhat erratic manner which overlooks the differences, and sometimes the opposition, between the telos of both legal areas, often imperilling the principles of legality and individual culpability as unique foundational rationales of international criminal law. Challenging the methodology adopted by international tribunals and its consequences on substantive international criminal law, the article attempts to set forth the theoretical framework that should underpin the appeal to human rights law in international criminal judgments. It further proposes “analogy” and “complementarity” as analytical devices able to guide an interaction between international criminal law and human rights law that assists international criminal law in moving towards rationalized hybridity as opposed to “wild” fragmentation, political manipulation, selectivity and the discreditation of international criminal justice. Concluding, the practice of the International Criminal Court (ICC) will be briefly assessed through the lens of the theoretical framework proposed.
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PhD, European University Institute (EUI), Florence, Italy. Lecturer in Introduction to Human Rights at Univrsité Jean Moulin Lyon 3, Lyon, France. A sincere acknowledgment is due to the Grotius Centre for International Legal Studies for the support given to this work, and very particularly to Larissa van den Herik and Carsten Stahn for the valuable comments to this article.
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Soares*, P.P. Tangling Human Rights and International Criminal Law: The Practice of International Tribunals and the Call for Rationalized Legal Pluralism. Crim Law Forum 23, 161–191 (2012). https://doi.org/10.1007/s10609-012-9177-1
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DOI: https://doi.org/10.1007/s10609-012-9177-1