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84 Nordic J. Int'l L. 456 (2015)
Judicial Definition of Torture as a Paradigm of Cross-Fertilisation: Combining Harmonisation and Expansion

handle is hein.journals/nordic84 and id is 466 raw text is: *11eo ~NORDIC NORDIC JOURNAL OF INTERNATIONAL LAW JOURAL -OF- NT1NI1ONAL BRILL 84 (2015) 456-481 LAW NIJHOFF brill.com/nord Judicial Definition of Torture as a Paradigm of Cross-fertilisation: Combining Harmonisation and Expansion Elena Maculan Post-doc Research Fellow, Instituto Guti~rrez Mellado (UNED), Madrid, Spain Abstract This article analyses how the adhoc 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 jurispru- dence 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 inter- pretation 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. Keywords torture - inhuman treatment - ad hoc Tribunals - European Court of Human Rights - cross-fertilisation -judicial dialogue - severity threshold - rape I Introduction Judicial dialogue is significantly shaping the relationship between international criminal law (ICL) and international human rights law (IHRL), by creating a * This research has been conducted under the Project DER2013-43760-R (La influencia de las victimas en el tratamiento juridico de la violencia colectiva), which is funded by the Spanish Ministry of Economy and Competitiveness. @ KONINKLIJKE BRILL NV, LEIDEN, 2015 1 DOI 10.1163/15718107-08403005

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