Human rights as sources of penality

This thesis examines the role that human rights play in fostering and justifying penality. The more human rights have become the global language of justice, the more they have lent themselves to, and ‘accelerated’, the use of penal solutions around the world. This phenomenon has entailed the creation of international criminal tribunals, the institution of criminal proceedings against hum an rights violators and the introduction of new human rights based offences. The embrace of penality by human rights has also occurred at the level of discourse. In particular, the twin assumptions that effective human rights protection requires criminal accountability and that impunity causes further human rights violations have become essential parts of the ways we generally think and speak about human rights. The thesis investigates whether, how and why human rights have become triggers of expanded penality. It not only considers changes in legislation and judgments but focuses especially on its legal and political discursive formations. To this end, it adopts a socio legal perspective that gives priority to discourse analysis, a method inspired by the work of Michel Foucault. The research draws upon a transnational approach to legal problems and takes human trafficking and torture as its case studies. In this context, it recovers the contemporary and historical assumptions that sustain, and lie behind, the deployment of penal means to protect and promote human rights. The central argument is that, within dominant human rights discourses, penality assumes a necessary function in preserving the moral authority of human rights. However, in recruiting penality in their moral crusade against ab uses, dominant human rights discourses make the confirmation and reinforcement of human rights norms dependent on penality and, I would argue, also on the inequality, prejudice and violence that penality inevitably produces. Dominant human rights discourse s may try to humanise the state’s penal powers, but the practice of penality, made a moral obligation, ultimately represents impulses and drives that outrun their humanisation.