Mattia Pinto is a Lecturer in law at York Law School and at the Centre for Applied Human Rights, University of York (UK). He holds a PhD in law from the London School of Economics and Political Science. His doctoral research analyses the role that human rights play in fostering and legitimising penal expansion.
What if the European Court of Human Rights (ECtHR), instead of developing a 'coercive human right... more What if the European Court of Human Rights (ECtHR), instead of developing a 'coercive human rights doctrine' concerning state duties to criminalise serious human rights violations, had focused on decriminalisation? Although the ECtHR has censured the criminalisation of homosexuality and a handful of other behaviours, it has never developed a coherent case law on protecting human rights by removing, rather than adding, criminal regulation. This article imagines what it would entail for the ECtHR to re-focus on decriminalisation. To this end, it returns to a largely forgotten moment in 1980, when the Council of Europe adopted a Report on Decriminalisation. This report analysed the costs of criminal justice and made suggestions as to how to overcome any dysfunctions that would arise from curtailing criminal regulation. Through an engagement with the recommendations and limitations of the reports, this article sheds light on a framework whereby the ECtHR could have approached criminalisation cases differently and more coherently. By showing that today's 'coercive human rights doctrine' is not as obvious as we may believe, the article advances decriminalisation as an alternative that is not just theoretical but grounded in human rights history.
In the last three decades, wartime sexual violence has become one of the main concerns for femini... more In the last three decades, wartime sexual violence has become one of the main concerns for feminists engaged with international law. This essay reviews Karen Engle’s monograph on the causes and implications of today’s common-sense narrative about sexual violence in conflict. It shows how Engle’s powerful critique of ‘carceral feminism’ may represent a starting point for a new discussion of sex and war in international law.
While the traditional understanding of human rights is to restrain state authority to prevent abu... more While the traditional understanding of human rights is to restrain state authority to prevent abuses against the individual, in the last few decades human rights have been recast in a way that has made criminal law one of the main instruments for their promotion. The article explores how, since the 1970s, human rights have allowed penal power to move and expand around the globe. Five trends are explored: i) the rise of victims' rights in criminal proceedings; ii) the emergence of United Nations instruments focusing on human rights enforcements by means of criminal law; iii) the development of transitional justice; iv) the promotion of human rights in international criminal law; and v) the imposition of positive duties in criminal matters by human rights bodies. The article argues that the universality of human rights has enabled criminal justice projects to spread and expand over time and space, mixing domestic and international elements. Victims' rights advocates, NGOs, practitioners, academics, judges, and policymakers have been involved in this process. Yet, the expansion of penality by means of human rights has generally appeared as uncontroversial and important questions have been left unanswered. In particular, the assumptions underlying the idea that human rights require criminal accountability remain unexplored and unchallenged.
Utrecht Journal of International and European Law, 2018
This article analyses the role that human rights bodies play in triggering the application of cri... more This article analyses the role that human rights bodies play in triggering the application of criminal law. By examining the jurisprudence of the Inter-American Court of Human Rights, the European Court of Human Rights, the UN Human Rights Committee, as well as other human rights bodies, the article discusses how these institutions have started imposing on states positive obligations to criminalise, prosecute and punish serious human rights violations. While criminal law has traditionally been seen as a threat to fundamental rights, human rights bodies have contributed to presenting criminal law in a positive vein, as an essential instrument of human rights protection. The mainstream of the human rights movement has largely lauded the trend. This article challenges this view, by presenting the pitfalls of using human rights law to extend the reach of criminal justice in order to ensure that perpetrators are held accountable. Not only the imposition of duties to criminalise and punish ends up restricting the accused’s fundamental rights and neglecting the conceptualisation of criminal law as ultima ratio, but the invocation of criminal-law enforcement might also contribute to enhancing the coercive power of the state and, therefore, make state abuses more likely.
The article argues for the illegality, under international law, of the deprivation of citizenship... more The article argues for the illegality, under international law, of the deprivation of citizenship from suspected terrorists whereby the main purpose of the measure is expulsion. Although denationalisation is not a practice that is contrary to international law per se, for denationalisation to be legitimate, it must not be arbitrary. However, the revocation of citizenship for the purpose of circumventing the prohibition on the expulsion of nationals is in fact arbitrary, since this is aimed at doing something that is prevented by international law. This paper will be limited to providing an analysis of cases within Western European states. The overall structure of the study may be divided into three parts. The first part will consider whether citizenship is an individual right as well as the main differences between denationalisation resulting in statelessness and the same measure against dual nationals. In particular, it will be claimed that, despite its inherent limits, nationality is to be considered an individual right, both for dual and mono-nationals. This section serves to reject the thesis that citizenship, intended as a privilege and not as an individual right, can be discretionally removed. In the second part, the legislation and practice of European countries will be analysed in order to understand what concrete purpose denationalisation aims to achieve. It will be concluded that states generally see this measure as a way to expel an unwanted citizen from their territory or to prevent him or her from returning. The third part of the article will focus on the legality of denationalisation under international law and, especially, whether expulsion can be considered a legitimate aim.
What if the European Court of Human Rights (ECtHR), instead of developing a 'coercive human right... more What if the European Court of Human Rights (ECtHR), instead of developing a 'coercive human rights doctrine' concerning state duties to criminalise serious human rights violations, had focused on decriminalisation? Although the ECtHR has censured the criminalisation of homosexuality and a handful of other behaviours, it has never developed a coherent case law on protecting human rights by removing, rather than adding, criminal regulation. This article imagines what it would entail for the ECtHR to re-focus on decriminalisation. To this end, it returns to a largely forgotten moment in 1980, when the Council of Europe adopted a Report on Decriminalisation. This report analysed the costs of criminal justice and made suggestions as to how to overcome any dysfunctions that would arise from curtailing criminal regulation. Through an engagement with the recommendations and limitations of the reports, this article sheds light on a framework whereby the ECtHR could have approached criminalisation cases differently and more coherently. By showing that today's 'coercive human rights doctrine' is not as obvious as we may believe, the article advances decriminalisation as an alternative that is not just theoretical but grounded in human rights history.
In the last three decades, wartime sexual violence has become one of the main concerns for femini... more In the last three decades, wartime sexual violence has become one of the main concerns for feminists engaged with international law. This essay reviews Karen Engle’s monograph on the causes and implications of today’s common-sense narrative about sexual violence in conflict. It shows how Engle’s powerful critique of ‘carceral feminism’ may represent a starting point for a new discussion of sex and war in international law.
While the traditional understanding of human rights is to restrain state authority to prevent abu... more While the traditional understanding of human rights is to restrain state authority to prevent abuses against the individual, in the last few decades human rights have been recast in a way that has made criminal law one of the main instruments for their promotion. The article explores how, since the 1970s, human rights have allowed penal power to move and expand around the globe. Five trends are explored: i) the rise of victims' rights in criminal proceedings; ii) the emergence of United Nations instruments focusing on human rights enforcements by means of criminal law; iii) the development of transitional justice; iv) the promotion of human rights in international criminal law; and v) the imposition of positive duties in criminal matters by human rights bodies. The article argues that the universality of human rights has enabled criminal justice projects to spread and expand over time and space, mixing domestic and international elements. Victims' rights advocates, NGOs, practitioners, academics, judges, and policymakers have been involved in this process. Yet, the expansion of penality by means of human rights has generally appeared as uncontroversial and important questions have been left unanswered. In particular, the assumptions underlying the idea that human rights require criminal accountability remain unexplored and unchallenged.
Utrecht Journal of International and European Law, 2018
This article analyses the role that human rights bodies play in triggering the application of cri... more This article analyses the role that human rights bodies play in triggering the application of criminal law. By examining the jurisprudence of the Inter-American Court of Human Rights, the European Court of Human Rights, the UN Human Rights Committee, as well as other human rights bodies, the article discusses how these institutions have started imposing on states positive obligations to criminalise, prosecute and punish serious human rights violations. While criminal law has traditionally been seen as a threat to fundamental rights, human rights bodies have contributed to presenting criminal law in a positive vein, as an essential instrument of human rights protection. The mainstream of the human rights movement has largely lauded the trend. This article challenges this view, by presenting the pitfalls of using human rights law to extend the reach of criminal justice in order to ensure that perpetrators are held accountable. Not only the imposition of duties to criminalise and punish ends up restricting the accused’s fundamental rights and neglecting the conceptualisation of criminal law as ultima ratio, but the invocation of criminal-law enforcement might also contribute to enhancing the coercive power of the state and, therefore, make state abuses more likely.
The article argues for the illegality, under international law, of the deprivation of citizenship... more The article argues for the illegality, under international law, of the deprivation of citizenship from suspected terrorists whereby the main purpose of the measure is expulsion. Although denationalisation is not a practice that is contrary to international law per se, for denationalisation to be legitimate, it must not be arbitrary. However, the revocation of citizenship for the purpose of circumventing the prohibition on the expulsion of nationals is in fact arbitrary, since this is aimed at doing something that is prevented by international law. This paper will be limited to providing an analysis of cases within Western European states. The overall structure of the study may be divided into three parts. The first part will consider whether citizenship is an individual right as well as the main differences between denationalisation resulting in statelessness and the same measure against dual nationals. In particular, it will be claimed that, despite its inherent limits, nationality is to be considered an individual right, both for dual and mono-nationals. This section serves to reject the thesis that citizenship, intended as a privilege and not as an individual right, can be discretionally removed. In the second part, the legislation and practice of European countries will be analysed in order to understand what concrete purpose denationalisation aims to achieve. It will be concluded that states generally see this measure as a way to expel an unwanted citizen from their territory or to prevent him or her from returning. The third part of the article will focus on the legality of denationalisation under international law and, especially, whether expulsion can be considered a legitimate aim.
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