Historical Trends of Human Rights Gone Criminal

Abstract

While the traditional understanding of human rights is to restrain state authority to prevent abuses against the individual, in the last few decades human rights have been recast in a way that has made criminal law one of the main instruments for their promotion. The article explores how, since the 1970s, human rights have allowed penal power to move and expand around the globe. Five trends are explored: i) the rise of victims’ rights in criminal proceedings; ii) the emergence of UN instruments focusing on human rights enforcements by means of criminal law; iii) the development of transitional justice; iv) the promotion of human rights in international criminal law; and v) the imposition of positive duties in criminal matters by human rights bodies. The article argues that the universality of human rights has enabled criminal justice projects to spread and expand over time and space, mixing domestic and international elements. Victims’ rights advocates, NGOs, practitioners, academics, judges and policy-makers have been involved in this process. Yet, the expansion of penality by means of human rights has generally appeared as uncontroversial and important questions have been left unanswered. In particular, the assumptions underlying the idea that human rights require criminal accountability remain unexplored and unchallenged.

Keywords: human rights, criminal law, victims’ rights, United Nations, transitional justice, international criminal law, human rights bodies