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Judicial Definition of Torture as a Paradigm of Cross-fertilisation: Combining Harmonisation and Expansion

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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.

Affiliations: 1: Post-doc Research Fellow, Instituto Gutiérrez Mellado (uned), Madrid, Spain


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