Abstract
A theory of crimes against humanity needs to consist of both conceptual and normative foundations as argued in the preceding chapter. This chapter deals with the normative part of the theory of humanness . It considers the major relevant aspects and consequences flowing out of the application of the doctrine of Rechtsgutstheorie including its functions in the law. It further contains a consideration of the past and ongoing criticism of the Rechtsgutstheorie in legal literature as well. Then, the abovesaid elements of the doctrine, namely, its relevant aspects, functions and consequences are reviewed on the matter of whether the definitional scope of the doctrine allows for the inclusion of “humanity” in the normative list of Rechtsgüter (i.e., legal interests). The reasons why the answer here would be “yes” are explained within the analytical exercise in the last section of the chapter. That exercise consists of two main parts: the analysis of humanity as a Rechtsgut and review of legal consequences of Rechtsgutstheorie in terms of the theory of humanness . Finally, the chapter is not limited to the argumentation in support of normatively justifying the criminalization of the gravest attacks against humanity as crimes against humanity at the domestic state level; it also contains the initial reasoning on such justification at the international level using the fundamental premise of the Rechtsgutstheorie as a social contract doctrine.
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Notes
- 1.
- 2.
Included among the theoretical accounts which were dealt with in the preceding Chap. 4.
- 3.
Cryer et al. 2010, pp. 16–17 (footnotes and emphasis omitted in the quoted passage).
- 4.
Throughout the chapter, the preferred – and more contemporary interpretation of the doctrine is “protected legal interest ”. However, the term “legal good” is used as well, interchangeably with “legal interest”. Also, in the description and analysis of classical, liberal or other schools of thought, definition of Rechtsgut proper as well as during the analytical application of the doctrine towards the concept of humanity the “legal good(-s)” is often employed for reasons of better correspondence to the interpretation of the work of leading jurists in criminal law. In all cases, “legal goods” are to be understood as “legal interests”; for the purposes of this book the two connote the same meaning.
- 5.
- 6.
Dubber 2005, p. 687.
- 7.
Birnbaum 1834, p. 178.
- 8.
Feuerbach 1801, para 21.
- 9.
We will briefly return to the theory of crime as a violation of individual, or subjective, right(s) when considering the main approaches in the treatment of the doctrine in the next subsection.
- 10.
Birnbaum 1834, p. 179 (definition transl. by Dubber ).
- 11.
- 12.
- 13.
- 14.
Dubber 2005, p. 688.
- 15.
Lauterwein 2010, pp. 8–9. The abusive exploitation of the concept notwithstanding, the methodological function of Rechtsgut continues to serve and influence the contemporary law. In what ways it does so will be discussed in the subsequent subsections.
- 16.
Ibid., p. 8.
- 17.
Ibid., p. 6.
- 18.
Roxin 2006, pp. 14–15.
- 19.
- 20.
- 21.
Jescheck and Weigend 1996, p. 7.
- 22.
Ibid.
- 23.
Ibid.; see also Dubber 2005, pp. 684–685.
- 24.
- 25.
Roxin 1997, p. 15; Dubber 2005, p. 685 (transl. by Dubber ); an alternative translation is proposed in Lauterwein 2010, p. 10: “All facts or established goals that are necessary for the free personality development of the individual, the realization of his or her civil rights and the functioning of a political system which is based on these objectives.” This alternative contains more exact interpretations than found in Dubber’s (for example, the correct use of “necessary” instead of “useful” as concerns the functional relationship of the goals, or ends, to the free development of the individuals – which is a more accurate interpretation) and it seems to be better corresponding to the liberal/social contract-based normative vision of criminal law and its main functions favored by Roxin. This author will propose his own translation in the subsequent subsections.
- 26.
See in general Andrei Marmor, The Pure Theory of Law (2016), The Stanford Encyclopedia of Philosophy (Spring Edition), available at https://plato.stanford.edu/entries/lawphil-theory/. Accessed 26 November 2018.
- 27.
- 28.
It has been argued that the said tension between the two approaches is as old as the concept itself. Dubber 2005, p. 686–687.
- 29.
Ibid., pp. 685–686, n. 29. Indeed, for a legalistic and strictly positivistic mind, it is difficult to relate a moral notion with the legal theory. Moreover, Dubber argues, even those branches of humanities that deal with “good”, or “goods”, have had a hard time in trying to define it. Ibid. In this particular monograph we have already seen this difficulty in the multiple efforts to define “humanity” in various civilizations, societies and philosophies, not to speak in the area of ICL. I will later argue for the inclusion of “humanity” (humanness) into the concept of Rechtsgut as a full-fledged legal interest.
- 30.
Ibid., p. 688.
- 31.
For a short overview of the critical aspects of those alternative accounts, see Lauterwein 2010, pp. 24–26.
- 32.
Roxin describes and reviews those consequences in his famous textbook. See Roxin 2006, pp. 18–29.
- 33.
See for the analysis of this relationship Ibid., pp. 40–43.
- 34.
For a short but informative practical overview of those positions see the compilation by Brodowski 2015, pp. 709–716, discussing the relevance of the Rechtsgutstheorie in the modern constitutional state.
- 35.
For an important analytical overview of various undertakings trying to ground the concept of Rechtsgut in the principles enshrined in the Basic Law, see Appel 1998, pp. 372–379.
- 36.
- 37.
Dubber also notes: “…Roxin explains that the inclusion of “chosen ends”, in addition to preexisting “conditions” (presumably including individual rights), was meant to “express” a prior, unexplored, judgment that his view of legal good does not exclude by definition any crimes that Anglo-American lawyers might call mala prohibita, and that he calls “duties to obey norms generated by law itself.””, citing Roxin 1997, p. 15, see Dubber 2005, p. 689.
- 38.
Roxin 1997, p. 16.
- 39.
- 40.
German Federal Constitutional Court , Abortion Case , Decision of 25 February 1975, BverfGE 39, 1.
- 41.
German Federal Constitutional Court , Incest Case , 26 February 2008, BverfGE 120, 224.
- 42.
Dubber and Hörnle 2014, pp. 113, 120–123.
- 43.
Ibid., p. 122. According to Lauterwein , the principle of proportionality consists of three elements: suitability, necessity and adequacy. As the Court’s breadth of interpretation of these criteria is very wide, accordingly, the legislature’s discretion is almost without limitation. Lauterwein 2010, p. 21. This argumentation has been laid out in relation to the Court’s famous decision in the Incest Case , see below in the main text.
- 44.
Unlike Roxin and some other scholars, there are many German criminal law jurists who insist that criminal law does not need constitutional law to generate fundamental principles (such as, for example, the principle of culpability – or Schuldgrundsatz, or nulla poena sine lege). See Dubber and Hörnle 2014, p. 108. Although in this book I do not delve into this particular matter, I do find this position appealing: not being a naturalist lawyer as such does not prevent one from believing that, to an extent, some basic and fundamental principles which transcend national legal systems can and should inform the law’s material content. That is a position close to the idea of the so-called “soft positivism”.
- 45.
Ibid., pp. 102–103.
- 46.
Lauterwein 2010, p. 21.
- 47.
Dubber and Hörnle 2014, p. 125 (transl. provided by the authors).
- 48.
- 49.
Lauterwein 2010, p. 22.
- 50.
Dubber and Hörnle 2014, pp. 128–130.
- 51.
Ibid., p. 128 (transl. by Dubber and Hörnle).
- 52.
For a useful short overview of the major differences between the two main legal systems in the modern world, see Werle and Jessberger 2014, p. 167, para 434.
- 53.
- 54.
Ibid., p. 113.
- 55.
Ibid.
- 56.
Engländer 2015.
- 57.
Ibid., p. 633.
- 58.
Ibid., pp. 633–634.
- 59.
Ibid., pp. 622–633.
- 60.
- 61.
Brodowski 2015, p. 711.
- 62.
Ibid.
- 63.
For a basic and short first description of the various functions fulfilled by the Rechtsgutstheorie, see Jescheck and Kluge 1985, para 13(B)(3). This description is very concise, though, and appears to represent a rather positivistic understanding of the main tasks fulfilled by the doctrine of Rechtsgut .
- 64.
- 65.
- 66.
Roxin 2006, p. 18, n. 27.
- 67.
See Lauterwein 2010, p. 9.
- 68.
Roxin 2006, p. 16: “Die Aufgabe des Strafrechts liegt darin, seinen Bürgern ein freies und friedliches Zusammenleben unter Gewährleistung aller verfassungsrechtlich garantierten Grundrechte zu sichern.”
- 69.
As it is known, there are different directions of thought in modern political philosophy which have their basis essentially in the social contract model, i.e., a theory according to which individuals consent, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority of the ruler or magistrate (or to the decision of a majority), in exchange for the protection of their remaining rights by such an authority. Those variations may be roughly divided into two main lines of thought: contractarianism (which stems mostly from the Hobbesian school and is based on individuals’ self-interest view) and contractualism (which derives mainly from Rousseau and Kant and is based predominantly on an equal moral status of persons). While Roxin does not, indeed, indicate specifically in which precise social contract school he belongs, he does leave a statement which generally allows one to deduce where his legal political belief lies: “…That at the same time the human dignity, equality and other fundamental rights must be respected is also a result of the Enlightenment thought according to which these guarantees are the essential conditions of human freedom.” (This translation differs from Lauterwein’s and is mine). Roxin, Grundlagen, pp. 16–17. Such a pronouncement allows us to suggest that his rationale is closer to the second school of social contract theory, namely, the contractualism school, today represented by Rawls and Scanlon . For a detailed discussion on the different variations of social contract theory, see Cudd and Eftekhari 2017, available at https://plato.stanford.edu/archives/spr2017/entries/contractarianism/. Accessed 26 November 2018; Ashford and Mulgan 2012, available at http://plato.stanford.edu/archives/fall2012/entries/contractualism/. Accessed 26 November 2018.
- 70.
Lauterwein 2010, p. 9.
- 71.
But I will pick it up again at the end of the chapter as this foundational aspect is important for a part of the argument in favor of “humanness” as a Rechtsgut , from the point of view of Roxin’s definition, see Sect. 5.5.1.
- 72.
Lauterwein 2010, p. 10. The original of the last sentence in the passage goes as follows: “Da das Strafgesetz den einzelnen in seiner Handlungsfreiheit beschränkt, darf aber nicht mehr verboten werden, als zur Ereichnung friedlicher und freiheitlicher Koexistenz erforderlich ist.” Roxin 2006, p. 16.
- 73.
Brodowski 2015, p. 711.
- 74.
Lauterwein 2010, p. 9.
- 75.
Roxin 2006, p. 16. Here is the definition in the original language: “Bezeichnet man diese Aufgabe zusammenfassend als Rechtsgüterschutz, sind unter Rechtsgütern alle Gegebenheiten oder Zwecksetzungen zu verstehen, die für die freie Entfaltung des Einzelnen, die Verwirklichung seiner Grundrechte und das Funktionieren eines auf dieser Zielvorstellung aufbauenden staatlichen Systems notwendig sind.” (transl. by this author).
- 76.
Lauterwein also offers elsewhere an alternative definition of Rechtsgüter which is, in his view, more closely linked to the Constitution than Roxin’s: “Rechtsgüter are functional units, which are guaranteed by the constitutional order to enable the individual’s free personality development.” Lauterwein 2006, p. 25; also Lauterwein 2010, p. 10, n. 31. By limiting the unclear notion of “functional units” to the constitutional order, it seems Lauterwein has made his proposed description less comprehensive and more constrained to the constitutional law. But his effort may be lauded as well since he apparently tries thereby to redress the omission left by Roxin, namely, the latter’s failure to ground the concept of Rechtsgut in constitutional principles.
- 77.
See the discussion at above n. 69, in the context of the social contract theories.
- 78.
Ashford and Mulgan 2012, pp. 3–6.
- 79.
- 80.
- 81.
Lauterwein 2010, p. 31 (original emphasis maintained).
- 82.
According to Lauterwein , necessity can be either a justification or an excuse in German criminal law. Both are regulated in the German Criminal Code, and both have differing requirements and consequences. Ibid., p. 35, n. 151.
- 83.
That is not a logical speculation or deduction but an explicitly written requirement of the German Criminal Code. It reads: “Whoever, faced with an imminent danger to life, limb, freedom, honor, property or another Rechtsgut which cannot otherwise be averted, commits an act to avert the danger from himself or another, does not act unlawfully, if, upon weighing the conflicting interests, in particular the affected Rechtsgüter and the degree of danger threatening them, the protected interest substantially outweighs the one interfered with.” Lauterwein 2010, p. 35, n. 152.
- 84.
For a more detailed overview, see Ibid., pp. 35–36.
- 85.
- 86.
Roxin apparently did not see any added value in such a firmly set typology although in some places of his work references to such categorizations as the one above may be found, even if not in a systematical manner. See, e.g., Roxin 1997, pp. 550, 621–622.
- 87.
Dubber 2005, p. 693.
- 88.
Ibid.
- 89.
For more on the latter see Ibid., p. 694.
- 90.
- 91.
Lauterwein arrives at the same conclusion in Lauterwein 2010, p. 37.
- 92.
For a more specific analysis on this point, see Roxin 1972, p. 32.
- 93.
Lauterwein 2010, p. 38 (original emphasis maintained).
- 94.
Dubber 2005, p. 695. He then makes a curious comparison with the principle of harm in American criminal law, assigning to it the same functions which are carried out by the Rechtsgut doctrine but also claiming the former has a more solid grounding in the constitutional principles than the latter. Ibid.
- 95.
Ibid., p. 694.
- 96.
See also Lauterwein 2010, p. 38.
- 97.
The examples of issues that challenge the Rechtsgutstheorie’s ability to provide clear-cut answers include the protection of embryos, offences of abstract endangerment, protection of animals and of the environment, legitimacy of the so-called “collective legal goods”, etc. See Ibid.
- 98.
Dubber 2005, p. 695 (original emphasis maintained).
- 99.
Lauterwein 2010, p. 39.
- 100.
See more on how these two could be used simultaneously in Ibid., p. 39, n. 164.
- 101.
Ibid., p. 38.
- 102.
For a listing of those different purposes and objects see Dubber 2005, pp. 695–696, ns. 78–91.
- 103.
See Dripps 1998, p. 3.
- 104.
Mill 1948, p. 73.
- 105.
Ambos 2015, p. 309.
- 106.
- 107.
Ambos 2015, p. 311.
- 108.
Ibid., p. 312. Although many other authors have subsequently tried to further explain and clarify the critical aspects of the harm principle, the overview of those explanations is not encompassed by this section. To gain a more comprehensive picture in this regard, see Ambos 2015, pp. 309–318; in general, Stewart 2010; Dripps 1998; Stanton-Ife 2016.
- 109.
For a helpful comparative critical analysis between the two concepts, see Hefendehl et al. 2003, pp. 13–25, 26–38, 239–243, 261–290, also for additional discussion see pp. 291–296.
- 110.
Ambos 2015, p. 315 (original emphasis maintained).
- 111.
Ibid., p. 317.
- 112.
We have earlier analyzed the differences between the consequentialist and non-consequentialist interpretations of the sub-sister concept of the harm principle “applied” to crimes against humanity in order to justify their penal prohibition, i.e., international harm principle. The problems flowing from both interpretations have been considered in the context of the group-based nature of the crimes and from the point of view of describing one particular normative theory of crimes against humanity, namely, the theory offered by Larry May. See Chap. 4.
- 113.
Authors like Ambos prefer to view the second interpretation of the harm principle as being somehow closer to the deontological foundations of the Rechtsgutstheorie and therefore casting some light on the observed similarities between the two doctrines. See Ambos 2015, p. 315. He also argues that “[b]y contrast, a preventive harm principle is perhaps too broad since ‘almost any potential rule of criminal law will inevitably prevent some harmful conduct occurring’ … or avoid some broader harmful consequence.” Ambos 2015, p. 315.
- 114.
Ibid., p. 316; see also Harcourt 1999, pp. 183, 187. Even Feinberg’s attempted concretizations of “harm” and “wrongfulness” did not help solve the problem of vagueness or normativity. Ambos explains why: see Ambos 2015, p. 311 (arguing that no exact normativizing criteria have been provided by Feinberg to accompany his otherwise quite helpful and theoretically important work).
- 115.
Ambos refers here to one particular explanation of the harm principle brought by Joseph Raz, who interprets it by reference to the concepts of autonomy and freedom; it is described this way: “…if autonomy consists of having certain options, opportunities and the ability to use them, any action which deprives a person of these opportunities or of the ability to use them is a way of harming this person. Thus, harm consists of the reduction of opportunities and therefore of the reduction of autonomy and the ensuing freedom.” Ambos 2015, p. 312; Raz 1986–1989, p. 413.
- 116.
See Stanton-Ife 2016, pp. 346–347.
- 117.
In the context of somewhat complicated and philosophical analysis, Dripps describes, based on Feinberg, at what exact levels the vagueness of the term ‘harm’ is presenting itself. He identifies, according to Feinberg, three basic levels: (1) the level of interests; (2) the level of mediating maxims, and (3) the level of excluding non-wrongful injuries. See for more details Dripps 1998, pp. 8–9.
- 118.
- 119.
Ibid.
- 120.
Ambos 2015, p. 301.
- 121.
Ibid., pp. 315–316 (original emphasis maintained, notes omitted).
- 122.
Ibid., pp. 319–320.
- 123.
Ibid.
- 124.
Ibid.
- 125.
Ibid., p. 321.
- 126.
Ibid.
- 127.
Ibid., pp. 321–324.
- 128.
Ibid., p. 315
- 129.
Brodowski 2015, p. 711.
- 130.
Dubber argues in this respect: “[The] tenets of German criminal law theory are of particular interest to Anglo-American criminal lawyers because they address issues that so far have escaped a satisfactory treatment in Anglo-American criminal law, for different reasons. Anglo-American theories of punishment have been stuck in a conceptual rut for quite some time, with battle-weary consequentialists (who advocate punishment for the sake of some beneficial consequence, such as crime reduction) and retributivists (who prefer punishment for its own sake, as a matter of “just deserts”) continuously reenacting a conflict that has advanced little since the days of Beccaria and Bentham. Anglo-American theories of crime are not so much tired as they are nonexistent.” Dubber 2005, p. 681.
- 131.
Ambos 2015, p. 323.
- 132.
Ibid. As shown in the preceding subsections, several concepts relevant to humanness are already covered by the list of legal goods proposed by positivist lawyers, or are included within the scope of legal goods considered by normativist jurists who dealt with Rechtsgutstheorie: freedom (Jescheck and Weigend), honor – which could be seen as a variant of dignity, by common sense (Roxin). It also needs to be noted here that human dignity in its narrow and strict sense is identified by the German Basic Law as an absolute value. Ibid., p. 323.
- 133.
Duff 2007, p. 23. Duff develops his description of responsibility as a relational concept in Duff 2007, pp. 23–30. It is neatly summarized by Renzo: “We all occupy different roles and share different affiliations. In virtue of our occupying these roles and sharing these affiliations we are responsible (i.e. answerable) to certain groups for certain specific matters, and it is the roles we occupy that determine both the content of our responsibilities and who we are answerable to. For example, as a teacher, I am responsible to my colleagues for complying with the rules of my department; as a son I am responsible to the members of my family for looking after my parents when they are sick. These responsibilities correlate to a right that the members of my family and the members of my department have to call me to account for my failing to discharge my duties as a colleague and as a son respectively. This is why my colleagues have no right to call me to account for not spending more time with my parents when they are sick. I am answerable to them only for those responsibilities that I have as a member of the department. Similarly, I am not accountable to my parents for not showing up at departmental meetings. In virtue of being a member of my family I have certain responsibilities to the other members of the family, and I am accountable to them only in relation to those responsibilities.” Renzo 2010, p. 279. Also, see in general for arguments in favor of a particular understanding of the notion of responsibility based on accountability, Gardner 2003.
- 134.
Duff 2013, available at https://plato.stanford.edu/entries/criminal-law/. Accessed 26 November 2018.
- 135.
Renzo 2010, p. 279.
- 136.
Ibid., pp. 279–282.
- 137.
See also Ibid., pp. 279–280.
- 138.
- 139.
- 140.
Renzo 2010, p. 280.
- 141.
Ibid.
- 142.
Ibid. Renzo uses “humanity” interchangeably to mean either the commonly shared “humanness” (as implied by this book’s proposed conceptual theory) or the common “mankind”.
- 143.
Ibid.
- 144.
Duff 2013, para 7, p. 42.
- 145.
Ibid., p. 43. He points it out in the context of the need to find answers to the questions which are relevant within the context of important recent developments in the sphere of ICL. In particular, this is relevant when it comes to crimes against humanity: his question is “but why should such a court [i.e., ICC. Duff implies an international court as opposed to domestic courts. R.A.] have jurisdiction over “widespread or systematic attack[s]” committed within a state (very often by or with the connivance of the state’s officials) against its own citizens (Rome Statute Article 7, defining “crimes against humanity”)? What could give such a body the moral authority to hold those who commit such wrongs to account - and just what kinds of wrong can it claim as its business?” Duff then mentions several potential answers one of them being the portrayal of the ICC as acting in the name and on behalf of ‘humanity’ as a collective entity, and notes the problematic character of each of those answers. Ibid., pp. 43–44.
- 146.
But here in no way I mean to try to undermine the logic of the Rome Statute ’s Preamble and the fundamental premise of ICL in general: that crimes under international law are the most serious ones and that they threaten the peace, security and well-being of the world, and hence they are the crimes of the most serious concern to international community as a whole. The point that is made here is that it would be incorrect to use analogies to the existing systems and to take to the extremes in order to accommodate a legal category (crimes against humanity) to a particular legal principle (relative accountability).
- 147.
For a more adequate definition of international community understood as a major group of States bound together by common values, see Ambos 2013, p. 297.
- 148.
Duff 2010, p. 600.
- 149.
Ibid., p. 601.
- 150.
Ibid.
- 151.
Ibid., emphasis added.
- 152.
Rome Statute of the International Criminal Court , opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), Articles 22–33.
- 153.
See Werle and Jessberger 2014, p. 166, para 433. The ICC used this approach in two particular cases: ICC, Prosecutor v Lubanga Diylo, Decision on the Confirmation of Charges, 29 January 2007, ICC-01/04-01/06-803, paras 346 et seq., and ICC, Prosecutor v Katanga and Ngudjolo, Decision of 30 September 2008, ICC-01/04-01/07, paras 480 et seq.
- 154.
ICC, Lubanga Diylo, Judgement of 14 March 2012, ICC-01/04-01/06-2842, para 976.
- 155.
See, for example, Ambos 2015.
- 156.
Cryer et al. 2010, p. 16.
- 157.
See in general Fletcher 2007.
- 158.
Ambos 2013, p. 297.
- 159.
Ambos 2015, p. 301.
- 160.
The factors contributing to this are the four theoretical shortcomings concerning ICL’s concept and meaning, ius puniendi , overall function and purposes of punishment. Ibid.; see further Ambos 2013, where Ambos deals with the question of whether and how the punitive power can exist at the supranational level without a sovereign.
- 161.
Ambos 2015.
- 162.
For example, one of the ICC judges, Fulford, wrote: “While Article 21(1)(c) of the Statute permits the Court to draw upon ‘general principles of law’ derived from national legal systems, in my view before taking this step, a Chamber should undertake a careful assessment as to whether the policy considerations underlying the domestic legal doctrine are applicable at this Court, and it should investigate the doctrine’s compatibility with the Rome Statute framework.” ICC, Prosecutor v. Thomas Lubanga Diylo, Separate Opinion to the Trial Chamber I Judgement pursuant to Article 74, 14 March 2012, ICC-01/04-01/06-2842, para 10.
- 163.
Even if she uses it to prove Judge Fulford’s view: “Considering its universalist mission, the Court should refrain from relying on particular national models, however sophisticated they may be.” ICC, Prosecutor v. Mathleu Ngudjolo Chui, Trial Chamber III Judgement pursuant to Article 74, 18 December 2012, ICC-01/04-02/12, para 5. From this author’s perspective, it is precisely because of its universalist mission that the ICC can and even need to rely on particular domestic concepts if they are capable of responding to or resolving universal issues which are left unanswered in international law. That capability depends on the substantive content and methodological aspects of the doctrine(-s): if it is global enough and aims at dealing with critical values in a systematically developed manner, it may fully be considered as a “candidate” for a conceptual tool or principle to be used by an international tribunal. This is all the more so if there are no alternatives at the international level.
- 164.
Roxin 2006, p. 16; see also Sect. 5.2.4.1. In the same sub-subsection, it is explained why this particular definition of legal good is being used for the normative part of my theory: it is value-based, rather precise, clear, detailed, and progressive. It is also important that Roxin stresses out right after providing his definition: “By referring to “conditions and purposes”, this phrase expresses the fact that the concept of legal rights includes already existing conditions, as well as normative obligations imposed by it, … and thus does not limit itself to the first alternative.” Roxin 2006, p. 16.
- 165.
It appears from the use of the alternative word “or” (“oder”) that establishing as a minimum one of the two denominations for humanity – either a necessary “condition” or a necessary “purpose” will be sufficient to prove the Rechtsgut -status of the concept. I will however aim at establishing both.
- 166.
To be distinguished from the right of publicity which is often referred to as ‘personality rights ‘, and which constitutes the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity. It is considered a property right as opposed to a personal right, and as such is out of the picture of the right to personal identity which is a personal right. The right to personal identity must also be distinguished from another concept, namely, the concept of the right to development which is both individual and collective (group) right.
- 167.
Mănuc 2012, p. 362.
- 168.
Ibid., pp. 362–363; see also in general an exemplary case before the German Constitutional Court where the tort law surrounding privacy was considered, and where the Court ruled that an individual can actively seek and create an intimate sphere so his personality can develop and be protected. German Federal Constitutional Court , Criminal Diary Case, Decision of 1989, 80 B VerfGE 367, p. 381.
- 169.
United Nations General Assembly 1948, Article 22.
- 170.
Ibid., Article 29(1).
- 171.
Marshall 2014, p. 72.
- 172.
Ibid.
- 173.
- 174.
For enriching discussions of the concept of human dignity from different perspectives including legal, philosophical, historical and so on, see Düwell et al. 2014.
- 175.
United Nations General Assembly 1948, Article 22.
- 176.
It is difficult to refrain here from analogizing: the notion of human dignity appears to have served, and still serves, the more or less similar foundational function for the justification and development of (international) HRL as did/does the principle of humanity (humaneness) for the development of IHL.
- 177.
For a sketchy overview of international legal instruments where the term dignity has been included, starting with the Preamble of the Charter of the UN, see Schachter 1983, p. 848. Further, the most famous and often cited example of the entrenchment of the human dignity concept at the domestic legislative level is the Basic Law for the Federal Republic of Germany, i.e., the Constitution which integrates the ideas of human dignity and human rights as its core parts. Its Article 1(1) establishes the inviolability of human dignity: “…Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. …”. Basic Law of the Federal Republic of Germany (Grundgesetz, GG; original: Grundgesetz für die Bundesrepublik Deutschland), approved on 8 May 1949, came into effect on 23 May 1949, available at http://germanlawarchive.iuscomp.org/?p=212. Accessed 26 November 2018. Remarkably, the value of human dignity is affirmed in the Basic Law and placed even before the right to life. Ibid., Article 2(2).
- 178.
For a short survey of some basic definitional difficulties, see Waldron 2015, pp. 121–123.
- 179.
Ibid., p. 122.
- 180.
Renzo 2012, p. 450.
- 181.
See also Schachter 1983, pp. 848–852.
- 182.
Ibid., p. 849.
- 183.
For one, it goes fully in line with the progressive views of some contemporary jurists who invoked Kantian interpretation of human dignity to justify their own doctrinal explanations of ICL, like Kai Ambos.
- 184.
United Nations General Assembly 1948, Article 22.
- 185.
- 186.
- 187.
Ibid., transl. by Lauterwein ; see also the discussion in Sect. 5.2.4.1.
- 188.
See in general http://www.iep.utm.edu/soc-cont/#SH2b. Accessed 26 November 2018; http://www.iep.utm.edu/rousseau/#SH4c. Accessed 26 November 2018.
- 189.
Ibid.
- 190.
- 191.
Ibid.
- 192.
http://www.iep.utm.edu/soc-cont/#SH2b. Accessed 26 November 2018.
- 193.
http://www.iep.utm.edu/soc-cont/#SH2b. Accessed 26 November 2018.
- 194.
See in general for an informative description of the German concept of Rechtsstaat and for its analytical comparison with the Anglo-American principle of rule of law: Silkenat et al. 2014.
- 195.
- 196.
Ibid.
- 197.
Lauterwein 2010, pp. 10–11.
- 198.
Ibid.
- 199.
For a short description of Roxin’s arguments in this regard see Lauterwein 2010, p. 12.
- 200.
Ibid.
- 201.
This point 4 has to be addressed since its description by Roxin could potentially create a confusing image of humanness different from the conceptual explanation described in Chap. 4: as something that would be equaled or confused with notion of collective phenomena that exist only upon there being an established aggregate of natural persons. Humanity is inherent in each and every individual. It is intrinsic and comprehensive at the same time but not comprehensive because of the accumulated number of individuals, it is comprehensive in itself because we are all humans as understood by Kant and other progressive thinkers.
- 202.
Lauterwein 2010, p. 16.
- 203.
Ibid.
- 204.
Ibid.
- 205.
See Werle and Jessberger 2014, p. 333, para 880.
- 206.
Ibid.
- 207.
Masters and Kelly 2005, pp. 48–49.
- 208.
Kant 1999, p. 151.
- 209.
Rawls 1999, p. 4.
- 210.
In general, Grotius 2005.
- 211.
For a useful explanation of the theory of global social contract see Neidleman (2012) The social contract theory in a global context. E-International Relations (E-IR), available at http://www.e-ir.info/2012/10/09/the-social-contract-theory-in-a-global-context/. Accessed 26 November 2018.
- 212.
Ambos 2013, p. 298.
- 213.
See Ambos 2013.
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Atadjanov, R. (2019). “Humanity” as a Valid Protected Interest Under the Rechtsgutstheorie. In: Humanness as a Protected Legal Interest of Crimes Against Humanity. International Criminal Justice Series, vol 22. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-299-6_5
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