The international system of human rights treaties and the associated language and politics of human rights provide an important normative framework for evaluating the conduct of criminal justice. The goal of achieving human rights compliance does not necessarily displace other ways of thinking ethically about criminal justice. Human rights perspectives have some particular strengths, however, that explain their increasing relevance within academic criminology and the administration of criminal justice. These strengths relate to the relationship between human rights and governance, the status of human rights as a system of international law, and the transnational scope of human rights as both a legal system and an arena for political discourse.
Why Human Rights Are Relevant to Criminal Justice
First, human rights apply to relations between individuals (or collectives) and the state and are therefore highly relevant in the sphere of criminal law and justice, where democratic governments are expected to use their powers and resources to protect their populations both individually and collectively. Within liberal political theory human rights are considered to be safeguards operating within the notional social contract between the individual and the state. Viewed negatively, human rights can be seen as “bulwarks against the state” specifying the limits of the power that states can legitimately apply against individuals or groups in pursuing collective security. Viewed more positively, human rights identify the obligations of states to meet the fundamental needs of their citizens (and arguably others), although they generally articulate minimum standards rather than the more expansive objectives of social justice. Applied within the administration of criminal justice, human rights claims translate broadly into requirements for due process safeguards, demands for proportionality and accountability, and obligations on state officials and systems to demonstrate a duty of care where individuals are dependent on them to meet their basic human needs.
Second, human rights norms and standards have been codified into a system of law through international conventions to which governments have formally agreed. While it might be argued that the enforcement of these agreements by United Nations (UN) bodies is at present rather weak, this framework does provide a clear set of normative standards that can then be incorporated into law and practice at state and local levels, and against which the performance of state agencies can be assessed. At the broadest level, fundamental human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR) set out important principles, including the right to liberty and personal security, equality before the law, and the right to a fair trial, which impact directly on the administration of criminal justice.
Other more specific legal instruments deal with the rights of women, children, and indigenous people, and with prohibitions against torture and racial discrimination, all of which address fundamental questions of fair and equal treatment within the criminal justice system. At an even more detailed level, specific standards to guide law enforcement and criminal justice officials are agreed upon and promulgated, including the UN Minimum Standards for the Treatment of Prisoners, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), and the Declaration of Basic Principles of Justice for Victims of Crime and Abuses of Power. Regional human rights bodies for Europe, Africa, the Americas, but notably not Asia, help translate and apply international human rights norms at local levels.
Finally, human rights principles are increasingly relevant to crime and criminal justice because of their transnational scope. While there may be substantial difficulties translating human rights agreements into practice at state and local levels, the status of human rights norms within international law and diplomacy as a source of authority, which operates to some extent above the state, is increasingly significant in a rapidly globalizing world. The transnational focus of human rights thinking facilitates the reconception of crime as something more than an offense against the state, supporting an expanded perspective on harm that includes environmental crime, cross-border crime, crimes against humanity, and other crimes committed by states. Moreover, the emphasis on human beings rather than citizens as the bearer of rights directs attention to human rights breaches affecting noncitizens through punitive border control or security practices, and against other groups who may not enjoy the protections of full citizenship. Examples include the over-imprisonment of colonized peoples and failure to prevent systemic violence against women.
Although human rights standards are not always observed, the influence of human rights law, philosophy, and politics can readily be seen in the day-to-day operation of criminal justice systems. Human rights principles may be invoked in understanding what behaviors are criminalized, how compliance with the law is enforced, how breaches of the law are responded to, and the manner in which convicted persons are treated.
Criminal Law and Human Rights
International human rights safeguards of individual rights are the benchmark against which existing and new domestic criminal laws are discussed and evaluated. The influence of international human rights frameworks on national legislation is evident in several ways, from questioning the existence of the death penalty for criminal offenses to discrimination against homosexual relationships; from fighting for freedom of association and freedom of peaceful assembly to challenging the legitimacy of antiterrorism legislation, to mention a few. The incorporation into domestic legislation of human rights bills, such as the 1985 Canadian Human Rights Act and the 1998 Human Rights Act in the United Kingdom, facilitate the national interpretation of human rights principles.
The influence of human rights on domestic criminal law is a process encouraged by a top-down vertical approach at the international level, and by state peer pressure operating at a horizontal level. An example of this dual influential movement is the development of the 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which operates through a top-down approach and which has been complemented by the U.S. Department of Justice Trafficking in Persons (TIP) reports. These TIP reports categorize nation-states into groups based on legislative and other initiatives in the area of trafficking in human beings, thereby applying horizontal peer pressure.
More and more nongovernmental organizations (NGOs), such as the Red Cross, Amnesty International, and the International Commission of Jurists, have captured the attention of the public, shaped bottom-up changes, and assisted national legal personnel in incorporating human rights norms domestically. Campaigns to invite governments to reconsider legislation on violence against women and sexual assault and on the protection of minority groups are examples of the leading work of NGOs.
Human rights philosophy and mechanisms can influence national legal personnel such as lawyers and judges, but ultimately (with relatively few exceptions in the European Union), legislation has to be incorporated into the set of domestic laws by a government to be applied within its own territory. It is here that the tension between the speed in which international human rights would aspire to operate, and the slow pace in which nation-states absorb such changes, is apparent. This tension allows for individuals and bodies such as transnational corporations and governments to exploit grey areas of territorially bound criminal laws. Examples of these are environmental harms, such as the industrial disaster in Bhopal, India, in 1984, that caused the death of thousands of people, or forms of genocide perpetrated by the state against its people.
Policing and Human Rights
Police play a pivotal role in the protection of human rights. On the one hand, they are relied upon to uphold fundamental rights by protecting individuals from victimization by others. On the other hand, police are frequently the perpetrators of human rights abuses ranging from the use of excessive force, invasion of privacy, torture, disproportionate targeting of ethnic and religious minorities and denial of due process rights to extrajudicial killings. Police can also commit human rights violations through omission, for example, by failing to take appropriate action in response to the victimization of subordinate groups. ICCPR rights of particular relevance to policing include the right to life; the right to be free from torture and cruel, inhuman, or degrading treatment or punishment; the right to liberty and security of person; the right to a fair trial; the right to peaceful assembly; and the right to equal protection before the law. The adoption of the Human Rights Act in 1998 required British police to thoroughly assess their human rights compliance. Key principles identified as relevant to policing were the proportionate and nondiscriminatory use of police powers, the “absolute necessity” criterion for the use of force, reasonable and lawful decision making; the duty of care toward people in custody, and openness and accountability.
Independent complaint procedures and public inquiries may contribute to police accountability without specific reference to human rights principles. The incorporation of human rights standards into domestic law, however, can strengthen protection against misuse of police power by providing remedies for individuals who have suffered at the hands of the police. Regular reports on compliance with human rights treaties at a whole-country level can also exert political pressure on governments in relation to systematic human rights violations. Aspects of Australian policing that have attracted criticism from human rights monitoring bodies in recent years include the use of “move-on powers” in relation to young people, which was noted by the committee monitoring the Convention on the Rights of the Child, and the overuse by police of TASER weapons and failure to prevent violence against indigenous women, which were condemned by the Human Rights Committee that monitors compliance with the ICCPR.
Courts and Punishment
The fine-tuning of the different human rights and their practical application are often left to the judiciary. This balancing exercise is challenging in that civil, economic, cultural, and political rights have blurred boundaries, and that very few human rights are absolute, including fundamental rights such as the right to life. Determining punishment is a compromise between the right of freedom, right to privacy, certainty of penalty, and other rights through the application of the test of proportionality. Judges have to guarantee an objective and impartial review of cases, paying attention to the fair application of due process, in line with article 14 (right to a fair trial) and article 15 (retroactive punishment) of the ICCPR. International human rights frameworks also provide a benchmark for assessing ethical judicial conduct, for example the 2002 Bangalore Principles of Judicial Conduct. Also, international courts, such as the International Criminal Court, exercise a powerful influence on national courts in managing the conduct of criminal justice according to human rights principles by establishing a dialogue with lower courts, bypassing, directly and indirectly, national governments.
Since the 1970s, growing concerns that victims’ rights were overlooked in traditional court procedure led to the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuses of Power, which recognized victims’ rights, such as the right to counsel, right to compensation, and right to be informed. In line with the first clause of the UN Declaration of Human Rights (UDHR) preamble, the philosophy of restorative justice is an advancement in the way courts function, and aims to offer a holistic approach that considers the right to respect and ethical treatment of both offender and victim. The diversification of specialized courts, such as family courts, drug courts, indigenous courts, and youth courts, offers venues to apply a more humane approach to criminal justice, and human rights principles have been one of the influences in these developments.
Domestic courts are often asked to compromise between fairness to individuals and the demands for collective security. An example of this is the right not to be arbitrarily detained and the expectations of the community to live free from fear and violence. Recent neoliberal stands on popular punitivism have been placing more and more pressure and limitations on judges to perform their duties with this collectivity in mind.
Deprivation of Liberty
Deprivation of liberty, the inherent human rights of detainees to be treated with humanity and respect, and protections against torture, cruel and other degrading treatment and punishment are foundational concerns of human rights as laid out in the UDHR, ICCPR, and the Convention Against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment (CAT).
The ICCPR also states in article 10 that the principal aim of the penitentiary system should be the reformation and social rehabilitation of prisoners, calls for the segregation and separate treatment of convicted and unconvicted offenders, and requires that juveniles under the age of 18 be held separately and treated differently from adults. Minimum standards and rules relating to the treatment of prisoners and the administration of juvenile justice have provided internationally agreed upon guidelines for the development of law, policies, and practices relating to detainees and have been adopted and incorporated by state parties. International conferences of prison and juvenile justice administrators have been convened to regularly review guidelines and any issues arising from their implementation. The Optional Protocol attached to the Convention Against Torture also requires its signatories to develop independent inspection mechanisms to ensure that places of detention including public and private custodial settings are open to regular visits and review.
Despite all of the above protections and commitments by many professionals in justice administration to the human rights and the ethical treatment of detainees, there continue to be widespread violations, including extended periods of solitary confinement; random and disruptive inspections; overcrowding; the use of restraints for punishment; lack of review procedures for detainees serving death sentences and life sentences without parole, especially for juveniles under 18; lack of contact with family; lack of access to health care; lack of appropriate services for detainees with cognitive impairment; the confinement of prisoners under the age of 18 in adult institutions; disproportionate numbers of indigenous people and other racial and cultural groups held in custody, in breach of nondiscrimination treaties; and the list continues.
The day-to-day operational culture of custodial institutions can either support or undermine the policy and procedural safeguards of human rights. In some settings such as an open prison, with consultative decision making, prioritization of rehabilitation, treatment and prerelease programs, and staff committed to a more progressive ethos, there is a greater likelihood of compliance with human rights standards than in a high-security or overcrowded prison with an emphasis on security, containment, and control. There has been a significant shift toward punitivism in political discourse and policy statements in most liberal democracies, expressed in a desire to appear to be tough on offenders and prisoners, which detracts from the promotion of human rights within prisons. Economic constraints and trends in prison privatization add to the difficulties of protecting the human rights of this politically marginalized group.
Conclusion
In some cases human rights frameworks merely reinforce norms that are already widely agreed upon in principle, if not always observed in practice, such as the fundamental principle of nondiscrimination. In other cases, human rights are subject to seemingly intractable dispute, often where claims to universality are met with arguments based on cultural specificity that may arise in relation to traditional punishments, varying conceptions of justice, and sociopolitical trends that are antithetical to the observance of human rights. But human rights philosophy also provides some principles that are crucial to the equitable operation of the criminal justice system but are not widely promulgated in other normative systems. Foremost among these is the principle of inalienability, that is, the assertion that human rights cannot be lost or taken away since they are not contingent on good behavior but are inherent in the human person. To comprehensively deny an individual the “right to have rights,” to use Hannah Arendt’s famous phrase, because he or she is believed to be a terrorist, a dangerous criminal, or an illegal immigrant is tantamount to denying his or her humanity. In these times of popular punitivism, securitization, and obsession with the avoidance of risk, the inalienability of human rights emerges as an important check against criminal justice excess.
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