Human Rights Law

This volume aims to provoke reflection on the English conception and treatment of prisoners' rights, through juxtaposition with the conception of prisoners' rights in Germany. First, the German and English understandings of prisoners' legal status are examined; secondly these understandings are placed against the background of broader social, political, and legal factors; and thirdly, the methodological problems of comparative law are addressed. English and German approaches to prisoners' rights present illuminating contrasts. In England, despite significant judicial activity in the development of a jurisprudence of prisoners' rights, protection of prisoners' rights remains partial and equivocal. Many aspects of prison life are left within the realm of executive discretion. This equivocal commitment to rights in England is juxtaposed with Germany's highly articulated rights culture and its ambitious system of prisoners' rights protection under the Prison Act 1976. The German Prison Act sets out foundational principles of prison administration, affords prisoners positive rights, defines the limitations of prisoners' constitutional rights, and provides prisoners with recourse to a Prison Court. Moreover, these rights and principles have been developed and refined in a substantial body of prison law jurisprudence over the last thirty years.

The 4th edition of this study of the death penalty brings up-to-date developments in the movement to abolish the practice worldwide. It draws on personal experience as consultant to the United Nations for the UN Secretary General's five-yearly surveys of capital punishment and on the latest information from non-governmental organisations and the academic literature. Not only have many more countries abolished capital punishment but, even amongst those that retain it, the majority have been carrying out fewer executions. Legal challenges to mandatory capital punishment have been successful, as has the pressure to abolish the death penalty for those who commit a capital crime when under the age of 18. This edition has more to say about the prospects that China will restrict and control the number of executions ‘on the road to abolition’. Yet, despite such advances, this book reveals many human rights abuses where the death penalty still exists. In some countries a wide range of crimes are still subject to capital punishment, and the authorities too often fail to meet the safeguards embodied in international human rights treaties to safeguard those facing the death penalty. There is evidence of police abuse, unfair trials, lack of access to competent defence counsel, excessive periods of time spent in horrible conditions on ‘death row’, and public, painful forms of execution. The book engages with the latest debates on the realities of capital punishment, especially its justification as a uniquely effective deterrent.

During the last 50 years, interest in human rights has grown dramatically. While newspapers focus mainly on dramatic issues such as unlawful killing, torture, disappearances, or violations of freedom of speech, institutions charged with the implementation of human rights (as set out in international conventions and covenants) most frequently deal with allegations of human rights violations during criminal proceedings. The increasing internationalisation of the administration of criminal law means that such cases are likely to become ever more important. This book examines the case-law of the international bodies dealing with such cases. The European Commission and the European Court of Human Rights, in particular, have accumulated a considerable quantity of case-law, which is particularly interesting because it is intended to be valid in both Anglo-Saxon and Continental systems of criminal procedure. The law of the European Convention on Human Rights is emphasised because of its advanced procedures and the quality and quantity of its case-law.

Criminal punishment is increasingly regarded as a necessary element of human rights protection. There is a growing conviction at the international level that those responsible for the most serious crimes should not go unpunished. Though there is a wealth of legal writing on international criminal law, the question why and to what extent criminal prosecution is a necessary means of human rights protection has hardly been addressed comprehensively. This book examines the duty to prosecute serious human rights violations. It does so by exploring the concepts of impunity and amnesties, and by exposing flaws in criminal proceedings. With its survey of the relevant human rights instruments and jurisprudence, the subject of this book is placed at the interface of international criminal law and international human rights. The book analyses the rapidly growing body of human rights case law, dealing with criminalization, prosecution, and punishment of serious human rights violations. It identifies and critically examines the standards for the conduct of criminal proceedings developed by the European and Inter-American Courts of Human Rights and the UN Human Rights Committee. As the analysis reveals shortcomings in the current conceptualization of the prosecution of human rights violations, the book develops a solid theoretical framework for future jurisprudence. By evaluating the relationship between criminal law and the protection of human rights, the book elucidates not only the potential but also the limits of the role human rights law can play in the emerging concept of international criminal justice. The underlying rationale for prosecuting serious human rights violations is also relevant for post-conflict situations, in which it is often argued that criminal punishment threatens peace and reconciliation. The question how to deal with post-conflict justice under international law is a continuing theme throughout the book.