Judicial Definition of Torture as a Paradigm of Cross-fertilisation: Combining Harmonisation and Expansion
In: Nordic Journal of International LawSearch for other papers by Elena Maculan in
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This article analyses how the ad hoc International Criminal Tribunals have implemented European Court of Human Rights case law with regard to the definition of torture as a paradigm of the phenomenon of cross-fertilisation. Reliance on European jurisprudence has fostered a twofold evolution in the concept of torture. This may be described, on the one hand, in terms of overcoming the fragmented normative framework towards harmonisation of the definition of the offence. On the other hand, it has also caused a significant and somewhat problematic broadening of its scope. In addition, the case study offers some insights as to the method applied by Courts in the selection and interpretation of external sources, as well as to some possible misuses of these references. The judicial interpretation of torture provides therefore some relevant suggestions that could both enhance the potentialities of cross-fertilisation and overcome its dangers.
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52
Burchard, supra note 7, p. 164.
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85
Burchard, supra note 7, p. 174.
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87
Schabas, supra note 7, p. 167.
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88
Sivakumaran, supra note 15, p. 553.
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93
Lambert-Abdelgawad, supra note 12, p. 113.
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94
Roth and Tulkens, supra note 90, pp. 571–575.
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99
De Frouville, supra note 3, p. 640.
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103
Lambert-Abdelgawad, supra note 12, p. 98.
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104
Both Raimondo, supra note 102, p. 46, and Lambert-Abdelgawad, supra note 12, p. 98, call it "interpretative function".
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114
Slaughter, supra note 1, p. 118. The same idea that this dynamic of interaction cannot be really described as a "dialogue", but rather as a "one-side engagement" or monologue is also maintained by the interesting study by A. Tzanakopoulos, ʻJudicial Dialogue as a Means of Interpretationʼ, in H.P. Aust and G. Nolte (eds.), Interpretation of International Law by Domestic Courts (Oxford University Press, Oxford, forthcoming), <http://ssrn.com/abstract=2497519>, visited on 29 June 2015.
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115
Cassese, supra note 90, pp. 144–149, who describes it as opposite to the "approche sage".
| All Time | Past 365 days | Past 30 Days | |
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Judicial Definition of Torture as a Paradigm of Cross-fertilisation: Combining Harmonisation and Expansion
In: Nordic Journal of International LawSearch for other papers by Elena Maculan in
Current site
Google Scholar
PubMed
This article analyses how the ad hoc International Criminal Tribunals have implemented European Court of Human Rights case law with regard to the definition of torture as a paradigm of the phenomenon of cross-fertilisation. Reliance on European jurisprudence has fostered a twofold evolution in the concept of torture. This may be described, on the one hand, in terms of overcoming the fragmented normative framework towards harmonisation of the definition of the offence. On the other hand, it has also caused a significant and somewhat problematic broadening of its scope. In addition, the case study offers some insights as to the method applied by Courts in the selection and interpretation of external sources, as well as to some possible misuses of these references. The judicial interpretation of torture provides therefore some relevant suggestions that could both enhance the potentialities of cross-fertilisation and overcome its dangers.
| All Time | Past 365 days | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 365 | 54 | 1 |
| Full Text Views | 278 | 1 | 0 |
| PDF Views & Downloads | 114 | 4 | 0 |
