The Case Against Human Rights Penality

Abstract

This article seeks to make the human rights case against human rights penality—that is, against the reliance upon and foregrounding of penal mechanisms in the protection of (certain) human rights. The rationale for the alliance between human rights and state penality has at least three central dimensions: effectiveness, accountability and equal protection. In particular, the mobilisation of criminal law (enforcement) and punishment is often treated as the most effective means of preventing and/or redressing human rights violations. Moreover, the criminal process and sanction are often understood as the pinnacle of accountability for serious human rights violations. Finally, the egalitarian rationale for human rights penality views it as redistributing protection to under-protected persons. While remaining committed to human rights, I unpack (some of) the ways in which human rights penality ultimately fails to uphold and even undermines the principles that it has been promoted as fulfilling within the human rights frame.