Human Rights

One of the three main challenges concerning the commission and repression of core international crimes, transboundary crimes, and transnational organized crimes are human rights, now enshrined in every national constitution and almost all states are party to the most important international human rights treaties. Even today, many human rights violations are committed all over the world and man-made humanitarian disasters (e.g., wars and gross human rights violations) occur on a regular basis. At the same time, many international crimes are committed daily.

International criminal law and international human rights law are distinct but related branches of law. As the International Law Commission’s noted, international human rights law aims to “protect the interests of individuals”, while international criminal law “gives legal expression to the fight against impunity”. Serious human rights violations may constitute crimes against humanity under international criminal law. As such, interactions between these two fields of law occur.

International criminal law is aimed also at punishing acts which affect fundamental human rights, namely: life, liberty, and security. The growth of international and European influence on national criminal justice is due to the increasing relevance of human rights, although it can also be explained by the changing nature and magnitude of transnational and cross-border crime.

As underlined by relevant scholars, International criminal law can be seen as covering both crimes under treaties, which usually take effect through national legal orders, as well as what are increasingly called “atrocity crimes” or “core crimes”, which may exist independently of national law and can be prosecuted in international courts. Such atrocity crimes can of course also be prosecuted at the national level, where the national courts enjoy such jurisdiction.

At the International Criminal Court (ICC), the relationship between the two fields is given effect under Article 21(3) of the Rome Statute, which allows the ICC to consider “internationally recognised human rights”. Article 21(3) is considered a welcome provision that formally allows the interaction of these two regimes. 

International human rights law also insists on the protection for the rights of the accused, which helps to promote the “institutional legitimacy” of courts and tribunals and the rule of law internationally (see Article 69(7) of the Rome Statute).

The proliferation of the normative framework to prevent and punish transnational crimes has also highlighted the importance of an adequate protection of human rights and the State’s compliance with its international obligations to respect, protect, and fulfil individual guarantees.

The human rights-based approach (HRBA) can be read as a complementary mechanism to the traditional criminal system to counteract cross-border crimes, transnational criminal law as the legal framework to foster the rule of law, and several shortcomings of the HRBA (above all within the EU legal framework, mainly based on the criminal or repressive approach to the fight against multinational violations). In the absence of normative intervention, the creative action of international courts in extending HRBA to the counter-crime regime, can contribute to produce a uniform background of definitions, redresses, and remedies concerning violations of individual guarantees linked to cross-border offences.

As it developed into an international actor, also the European Union (EU) tended to invest its external action pursuing values, enshrining in Article 2 of the Treaty on European Union, and seeking to promote corresponding normative preferences to the development and consolidation of democracy, the rule of law, human rights and fundamental freedoms. This is notably the case with human rights and the rule of law whose promotion and defence have become distinctive hallmarks of EU foreign policy. This is conspicuously so in the fight against impunity for the most horrendous international offences (genocide, crimes against humanity, war crimes and torture).

Anyway, European criminal law is not confined to the EU, but it extends to all forty-seven States of the Council of Europe. Institutionally speaking, European criminal law is driven by both the EU and the Council of Europe under the supervision and influence of the Court of Justice of the EU so far as the EU is concerned and by the European Court of Human Rights as regards the Council of Europe, where the European Convention on Human Rights has long been the most relevant source of influence for Member States’ criminal justice systems.

To this end, the Observatory adopts both an integrated (combining research initiatives, teaching/training projects, and community engagement) and a future-oriented approach (anticipating solutions rather than problems, using law and jurisprudence to achieve the goal of ending the culture of impunity for international crimes), through its three-sides mission: Education, Research and Communication (Third Mission).