Beyond sword and shield: the UN human rights system and criminal law

Growth in the scope and mandate of the United Nations human rights system sees it increasingly wrestle with questions of national criminal law. The UN human rights system today forms part of a wider transnational socio-legal process that shapes decisions on whether to criminalise conduct or not. Issues such as sexual orientation, defamation, hate speech, and homelessness have emerged as key human rights (de)criminalisation debates. The notion of the human rights sword and shield continues to describe the activation or restraint of the criminal law, but human rights is not always able to provide simple criminalisation conclusions and its exact application to the criminal law often remains contested. Meeting future criminalisation challenges will likely require a more nuanced approach, such as human rights guidelines for the criminal law, informed by frameworks and inspiration from fields including criminal theory.