Human Dignity at Trial: Hard Cases and Broad Concepts in International Criminal Law
J. Benton Heath
Government of the United States of America - Department of State
November 28, 2012
44(2) George Washington International Law Review, 317 (2012)
Broad and indeterminate invocations of human dignity play a sporadic but powerful role in the adjudication of international criminal law (ICL). Drawing on detailed case studies, I argue that the concept of dignity enables courts to fill gaps in the substantive criminal law, justify expansive interpretations, resolve conflicts between competing rights and values, and potentially overcome the requirements of strict legality. These features enable judges to reach important and sometimes morally compelling conclusions. But, drawing on earlier work on the ‘ethicalization’ of law, I argue that expansive uses of human dignity come into tension with rule-of-law principles, and they challenge the self-understanding of ICL as a regime of limited subject-matter jurisdiction.
In addition, I lay the groundwork for a more robust and well-defined conception of human dignity by connecting recent case law to older notions of dignity as a kind of rank or status. I connect this conception to contemporary work in legal philosophy, and argue that the concept of dignity as rank helps explain and harmonize some of the relevant case law on dignity and hate speech. This paper ends on a note of caution, emphasizing the fact that even a more developed concept of dignity will continue to encounter the frictions identified above.
Number of Pages in PDF File: 52
Keywords: Human dignity, hate speech, international criminal law, crimes against humanity, persecution, theories of human rights
Date posted: April 18, 2012 ; Last revised: November 28, 2012