The Paradoxical Relationship between Criminal Law and Human Rights

Bibliographic Data

ID12735476
AuthorsFrançoise Tulkens (corresponding author)
Year2011
Volume9
Issue3
Pages577-595
Publication date2011-07-01
Open AccessNo
TypeARTICLE
VenueJournal of International Criminal Justice (JOURNAL)
Journal identifiersISSN: 1478-1395 • E-ISSN: 1478-1387
PublisherOxford University Press (OUP) (PUBLISHER)
DOI10.1093/jicj/mqr028
OpenAlexW2332169456
LanguageEN
Citations received18

Christine Van den Wyngaert, currently a judge at the International Criminal Court, is widely credited with the eloquent reference to an opposition between the ‘shield’ function and the ‘sword’ function of human rights in the application of criminal law. In short, human rights have both a defensive and an offensive role, a role of both neutralizing and triggering the application of criminal law. If this is indeed a paradox and not just a contradiction, an attempt must be made not to resolve it but to come to terms with it, while being aware of the complexity of the ensuing consequences, and to clarify it in the light of the requisite balance between its component parts. In this contribution, we will examine the way in which the case law of the European Court of Human Rights, in its function of applying and interpreting the rights and freedoms guaranteed by the European Convention on Human Rights, in turn confers on them a role of protecting from and giving rise to criminal law enforcement

Criminal court · Criminal justice · Criminal law · Criminal procedure · Human rights · International law · Political science · Sociology · Criminal Law and Evidence · International Law and Human Rights · Judicial and Constitutional Studies · Law

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