Oldal 107 [107]
CRIMINAL LAW, HUMAN RIGHTS AND A PARADOX
However, partisans of widening and strengthening criminal law to protect
human rights do not seem to be impressed by the evidence of failure of punitive
approaches. An explanation can certainly be found in new (or rightly deserving)
targets of criminal law. The sword is now drawn to protect the weak, the oppressed
and the “structurally” disadvantaged and to punish powerful perpetrators (persons
wielding political power and large corporations). In particular the Rome Statute
has been hailed as an effective instrument to put an end to impunity of powerful
perpetrators of atrocities and to respond effectively to crimes against humanity.
While evidence of successful prevention and containment of large-scale atrocities
through international criminal law and justice is still lacking, the appetite for
unleashing criminal law and punishment in fact is growing.
DRAWING THE SWORD
The emergence of such a paradox or paradigmatic change overlaps with the spread
of what has been called the new punitiveness located also in the 1980s. ° And,
these changes parallel a significant trend of creating on supranational levels (and
below the level of genuine international criminal law) obligations to introduce
criminal law to control and contain new (or newly problematized) international
and organized criminal activities which are considered as serious threats on the
one hand to the social fabric at large and on the other hand to human rights. These
obligations go beyond those established by the jurisprudence of the European
Court of Human Rights on the basis of Art. 2, 3 and 4 ECHR.’ The 1988 United
Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, the Palermo Convention on Transnational Organized Crime 2000
(and its additional protocols against trafficking of women and children), the
UN Convention against Corruption as well as the UN Anti-Torture Convention
(and corresponding conventions concluded within the framework of the Council
of Europe) bear witness to a changed perspective on the role of criminal law
and punishment. However, already the Convention on the Elimination of All
Forms of Racial Discrimination 1965 carries in Art. 4 the obligation to penalize
dissemination of ideas based on racial superiority or hatred as well as incitement
to racial discrimination and Art. 20 of the International Covenant on Civil and
Political Rights introduced the obligation to prohibit any advocacy of national,
° John Pratt — David Brown — Mark Brown — Simon Hallsworth — Wayne Morrison (eds.),
The New Punitiveness: Trends, Theories, Perspectives, Cullompton, Willan Publishing, 2005.
See for example European Court of Human Rights, Rantsev v. Cyprus and Russia,
(Application no. 25965/04), Judgment, 7 January 2010.
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