The Common Core Between Human Rights Law and International Criminal Law: A Structural Account

Legal scholars and theorists have recently drawn a more sustained attention to the link between human rights law (hereafter, HRL) and international criminal law (hereafter, ICL). This concerns both positive and more normative accounts of the link. Whether positive or normative, however, the predominant approach to constructing the link has been substantive. This approach usually leads to identifying ICL violations as involving massive violations of basic HRL provisions (at the positive level) and to positing a distinctive and fundamental moral status as the overlapping core protected by HRL and ICL (at the normative level). In so doing, the substantive approach exclusively concentrates on the right-holders to build the common core, and as such suffers from two flaws, I shall argue: the problem of threshold and the problem of ethical neutrality. In this paper, I offer an alternative to the substantive approach. I defend what I call a structural account of the common core by focusing on the duty-holders. Instead of focusing on the substantive overlap between ICL and HRL provisions (as positive legal scholars tend to), and instead of using substantive moral reasoning to specify this overlap (as normative theorists tend to), I start by reconstructing two structural characteristics that are common to HRL and ICL qua international legal regimes: who has the authority to address violations of HRL and ICL, and who can be liable for those violations. I then infer that public authority (functionally construed) constitutes the common structural core of HRL and ICL. I rely on the extra-territorial application of HRL and on the collective dimension of ICL violations to support this claim. I finally offer an argument explaining the normative point of those structural features. I hold that HRL and ICL (their adjudicative and liability regimes) are both necessary (but clearly not sufficient) to render this exercise of public authority legitimate to its subjects.