Table of Contents

Research Handbook on the International Penal System

Research Handbook on the International Penal System

Research Handbooks in International Law series

Edited by Róisín Mulgrew and Denis Abels

Drawing on the expertise and experience of contributors from a wide range of academic, professional and judicial backgrounds, this handbook critically analyses the laws, policies and practices that govern detention, punishment and the enforcement of sentences in the international criminal justice context. Comprehensive and innovative, it also explores broader normative questions related to international punishment and makes recommendations for the international penal system’s development.

Chapter 13: International penal law: aligned with or autonomous from international human rights law?

Lorna McGregor

Subjects: law - academic, criminal law and justice, human rights, public international law

Extract

International criminal law (ICL) and international human rights law (IHRL) are closely connected. The two sub-branches of public international law overlap in substance as international crimes can also be characterised as serious human rights violations. They can therefore work in parallel to provide a more complete system of accountability with ICL addressing individual responsibilityand IHRL addressing the responsibility of the State over the same set of crimes. Treaties such as the Rome Statute (ICCSt) establishing the ICC explicitly acknowledge the relationship between ICL and IHRL in requiring that the ‘application and interpretation’ of the ICCSt, Elements of Crime and RPE are ‘consistent with internationally recognized human rights’. The establishment of ad hoc international criminal tribunals such as the ICTY and the ICTR, the permanent ICC and increased accountability at the national level have enabled a richer development of ICL. When the ad hoc international criminal tribunals were first established, it was inevitable that they would be influenced by IHRL in areas such as the definition of crimes given the close relationship between the two sub-branches and the experience of IHRL in defining crimes such as torture. However, as the ad hoc international criminal tribunals handled more cases, they increasingly asserted autonomy from IHRL and preferenced self-citation due to what Frouville characterises as a ‘phenomenon of institutional dynamics’. Frouville provides two further explanations for this shift towards autonomy.

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