Human Rights as Penal Drivers Across the World

This chapter chronicles and critiques the ways in which human rights have contributed to penal extraterritoriality. Human rights are at the basis of the growing importance of universal jurisdiction and the passive and active personality principles. Human rights considerations have also underpinned the creation of international criminal tribunals and the ‘quasi-criminal jurisdiction’ of human rights bodies. The chapter argues that human rights have affected the issue of jurisdiction without this development being accompanied by an adequate reflection on its normative foundations and adverse implications. Human rights discursively produce the idea of global crime which requires a decentralised system of global justice to address it. Within this discursive schema, criminal jurisdiction no longer appears to emanate from national sovereignty, but from the values of the international community; it is also primarily decentralised or extraterritorial rather than territorial. Yet, as it is argued, when penality operates extraterritorially in the name of human rights, it may run free of legal and political constraints that are present when jurisdiction is primarily territorial. It may also become an instrument used by certain powerful countries to act coercively outside their territorial boundaries.