The Paradoxical Relationship between Criminal Law and Human Rights

Christine Van den Wyngaert, currently a judge at the International Criminal Court, is widely credited with the eloquent reference to an opposition between the ‘shield’ function and the ‘sword’ function of human rights in the application of criminal law. In short, human rights have both a defensive and an offensive role, a role of both neutralizing and triggering the application of criminal law. If this is indeed a paradox and not just a contradiction, an attempt must be made not to resolve it but to come to terms with it, while being aware of the complexity of the ensuing consequences, and to clarify it in the light of the requisite balance between its component parts. In this contribution, we will examine the way in which the case law of the European Court of Human Rights, in its function of applying and interpreting the rights and freedoms guaranteed by the European Convention on Human Rights, in turn confers on them a role of protecting from and giving rise to criminal law enforcement.