The common core between human rights law and international criminal law: A structural account

Zysset, A. (2019) The common core between human rights law and international criminal law: A structural account. Ratio Juris, 32(3), pp. 278-300. (doi: 10.1111/raju.12254)

Abstract

Legal scholars and theorists have recently drawn a more sustained attention to the link between international human rights law (hereafter, IRHL) and international criminal law (hereafter, ICL). This concerns both positive and more normative accounts of the link. Whether positive or normative, however, the predominant approach to constructing the link is substantive. This approach identifies some human rights violations as constituting potential international crimes. This overlap is normatively justified in similar terms by reference to a sub-set of moral human rights. As such, the substantive approach concentrates on the right-holders and the harm committed to the victims of the violations to build the common core between IRHL and ICL. In this paper, I offer an alternative to the substantive approach. After having identified 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 the duty-holders of IHRL and ICL. Instead of focusing on the limited overlap between ICL and IRHL provisions (as positive legal scholars tend to), and instead of using substantive moral reasoning to specify this overlap (as normative theorists tend to), I start by reconstructing two structural characteristics that are common to IRHL and ICL qua international legal regimes: who has the authority to address violations of IRHL and ICL, and who can be liable for those violations. I then infer that public authority (functionally construed) constitutes the common core of IRHL and ICL. I rely on the extra-territorial application of IRHL and on the collective dimension of ICL violations to further support the argument. I finally offer an argument explaining the normative point of those structural features. I hold that IRHL and ICL (their adjudicative and liability regimes) are both necessary (but clearly not sufficient) to render this exercise of public authority legitimate to its subjects.

• Item Type: Articles
• Status: Published
• Refereed: Yes
• Glasgow Author(s) Enlighten ID: Zysset, Dr Alain
• Authors: Zysset, A.
• College/School: College of Social Sciences > School of Law
• Journal Name: Ratio Juris
• Publisher: Wiley
• ISSN: 0952-1917
• ISSN (Online): 1467-9337
• Published Online: 29 August 2019
• Copyright Holders: Copyright © 2019 John Wiley and Sons Ltd.
• First Published: First published in Ratio Juris 32(3): 278-300
• Publisher Policy: Reproduced in accordance with the publisher copyright policy