scholarly journals ¿Lucha de soberanías? Dimensiones hegemónica y contrahegemónica de los derechos humanos y jurisdicción complementaria de la Corte Penal Internacional

IUSTA ◽  
2012 ◽  
Vol 2 (37) ◽  
Author(s):  
SANDRA ROCIO GAMBOA RUBIANO

<p>Se ha aludido que la jurisdicción complementaria que define a la Corte Penal Internacional vulnera elejercicio de la soberanía estatal. No obstante, tratándose de crímenes de Estado en tanto crímenes contrala humanidad, bien puede sostenerse que la jurisdicción complementaria podría llegar a constituir unretroceso. Esto, entre otras razones, por no ser coherente con la lógica de protección eficaz de bienesjurídicos de especial valía para la humanidad, en cuya congruencia en el pasado se estableció la jurisdicciónconcurrente que definió los tribunales internacionales de Yugoslavia y Ruanda.</p><p>En dichas condiciones resulta interesante revisar este fenómeno a partir de la constitución contrahegemónicade los derechos humanos, reconociéndose, como lo hace Sousa Santos, la existencia, vinculacionese implicaciones de las formas de poder en las sociedades capitalistas, al igual que sus profundosmensajes en relación con los crímenes de Estado. Ello, con mayor razón, cuando se ha establecido que ladiscusión de la contrahegemonía –que inicia con Gramsci y que en parte desarrolla Sousa Santos desdela perspectiva de la dominación de la globalización neoliberal– propugna, como lo señala Bonet (2010),por un “nuevo contrato social global más solidario e incluyente que el hoy en crisis contrato social de lamodernidad occidental”.</p><p>AbstractIt has been mentioned that the complementary jurisdiction which defines the ICC prevents the exercise ofstate sovereignty. However, for state crimes as crimes against humanity, it can be argued that supplementaljurisdiction could eventually form a setback. This, among other reasons, because it is not consistent withthe logic of effective protection of legal interests of particular value to humanity, whose congruency wasestablished in the past, defining the concurrent jurisdiction of the international tribunals in Yugoslaviaand Rwanda.In these conditions it is interesting to check this phenomenon from the counter-establishment of humanrights, recognizing as Boaventura de Sousa Santos does, existence, linkages and implications of theforms of power in capitalist societies, like their deep messages concerning state crimes. This, even moreso when it has been established that the discussion of counter-hegemony, beginning with Gramsci andpartly developed by Sousa Santos under the perspective of domination of neoliberal globalization, callsfor a “new global social contract more caring and inclusive than today social contract crisis of Westernmodernity “(Bonet, 2010).</p><p>Resumo:Foi mencionado que a jurisdição complementar define o ICC impede o exercício da soberania do Estado.No entanto, para crimes de estado como crimes contra a humanidade, pode-se argumentar que a competênciasuplementar poderia, eventualmente, formar um revés. Isto, entre outras razões, porque não écoerente com a lógica de protecção eficaz dos interesses jurídicos de especial valor para a humanidade,cuja congruência foi estabelecido no passado, que define a competência concorrente dos tribunais internacionaisna Iugoslávia e Ruanda.Nessas condições, é interessante verificar esse fenômeno a partir do contador-estabelecimento dos direitoshumanos, reconhecendo como faz Boaventura de Sousa Santos, a existência, as ligações e as implicaçõesdas formas de poder nas sociedades capitalistas, como suas mensagens profundas sobre crimesde Estado. Isto, ainda mais quando foi estabelecido que a discussão da contra-hegemonia, começando com Gramsci e Boaventura desenvolve em parte sob o domínio da globalização neoliberal, apela para um“contrato social nova crise global de contrato de mais carinho e inclusiva do que hoje social modernidadeocidental “(Bonet, 2010).</p><p> </p>

2021 ◽  
pp. 088832542095080
Author(s):  
Nikolay Koposov

This article belongs to the special cluster “Here to Stay: The Politics of History in Eastern Europe”, guest-edited by Félix Krawatzek & George Soroka. The rise of historical memory, which began in the 1970s and 1980s, has made the past an increasingly important soft-power resource. At its initial stage, the rise of memory contributed to the decay of self-congratulatory national narratives and to the formation of a “cosmopolitan” memory centered on the Holocaust and other crimes against humanity and informed by the notion of state repentance for the wrongdoings of the past. Laws criminalizing the denial of these crimes, which were adopted in “old” continental democracies in the 1980s and 1990s, were a characteristic expression of this democratic culture of memory. However, with the rise of national populism and the formation of the authoritarian or semi-authoritarian regimes in Russia, Turkey, Hungary, and Poland in the 2000s and 2010s, the politics of memory has taken a significantly different turn. National populists are remarkably persistent in whitewashing their countries’ history and using it to promote nationalist mobilization. This process has manifested itself in the formation of new types of memory laws, which shift the blame for historical injustices to other countries (the 1998 Polish, the 2000 Czech, the 2010 Lithuanian, the June 2010 Hungarian, and the 2014 Latvian statutes) and, in some cases, openly protect the memory of the perpetrators of crimes against humanity (the 2005 Turkish, the 2014 Russian, the 2015 Ukrainian, the 2006 and the 2018 Polish enactments). The article examines Russian, Polish, and Ukrainian legislation regarding the past that demonstrates the current linkage between populism and memory.


Author(s):  
Ngozi Sandra Ikenyei

The onset of oil exploration in Warri and its environs accentuated the proliferation of ethnic conflict, militant and activist youth. Conflicts in Warri over the past years, are products of shifting boundaries and agitations for benefits accruing to oil bearing communities. These crises were occasioned by perception of neglect, deprivation, abuse and abandonment. Whenever there is crisis, heinous crimes against humanity were committed against inhabitants. Between 2005–2013, over 35 oil related conflicts have been recorded in Warri. This construal resource (oil) related conflicts are often accompanied with the perpetration of crimes that stamped political and economic activities. This impact on rural livelihoods and it reflects on how oil operations are prioritized over community interest. This leaves bitterness, resentments and grievances amongst the suffering citizens. While many researches focus on environmental impact of oil exploration and neglects from oil companies and government, few studies dwelt on the dynamics and modalities of conflicts resolution. The study revealed that killings, rape and sexual violence, kidnapping, stealing, torture/beating, systemic persecution of agitators and burning down of houses were the most prominent crimes committed against citizens whenever there is crisis.


Author(s):  
V. Popko

The article analyses the development of the concept of international crime in the "Hague" period, which covers the last decades of the last century and is closely related to the establishment of ad hoc international tribunals in the former Yugoslavia and Rwanda. The article reveals the legal grounds for the establishment of these tribunals, the features of their activities, jurisdiction and principles of responsibility of persons who committed crimes in the former Yugoslavia and Rwanda. The establishment of international justice bodies by UN Security Council decisions has provoked a number of debates about their legitimacy, but it is undeniable that the activities of ad hoc international tribunals have contributed to the initiation of a new stage in the development of international criminal justice, further development of international criminal law, in particular in the development of the Rome Statute and the Rules of Procedure and Evidence of the International Criminal Court. All types of tribunal jurisdictions are disclosed, but special attention is paid to the substantive and personal jurisdictions of tribunals, which became the basis for the theoretical justification of the "Hague" modification of international crime, as well as the practical implementation of this concept in tribunal decisions. It is shown that the categories of international crimes that constitute the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia (serious violations of the Geneva Conventions, violations of the laws or customs of war, genocide and crimes against humanity) and the categories of crimes defined in the Statute of the International Tribunal for Rwanda against humanity and violations of the Geneva Conventions) in the documents of the tribunals have been developed in comparison with the Nuremberg and post-Nuremberg periods. ~ 74 ~ ВІСНИК Київського національного університету імені Тараса Шевченка ISSN 1728-3817 It is shown that the substantive jurisdiction of the ICTY and the ICC does not coincide with the provisions of the Nuremberg and Tokyo tribunals. The differences relate to the list of categories of crimes; parallel jurisdiction of international ad hoc tribunals and national courts; extending the competence of ad hoc tribunals to cases of crimes committed both during wars between states and during internal armed conflict, etc. The content of the categories of crimes, their composition, the subjects of responsibility have been clarified. In particular, the characteristic features of the crime of genocide and crimes against humanity are identified; the conditions, elements and subjects for the recognition of their qualifications are indicated. The author pays attention to the principles of personal jurisdiction, shows that in the decisions of international tribunals ad hoc has developed the principle of individual responsibility for international crimes that constitute substantive jurisdiction. The application of the principle of universal jurisdiction in the activity of tribunals is revealed. The author concludes that the establishment of ad hoc international criminal tribunals and their activities has contributed to the development of the concept of international crime and the separation of a special "Hague" modification. Keywords: international crime, tribunal, "Hague" modification, international justice, jurisdiction, criminal liability


2021 ◽  
pp. 19-40
Author(s):  
Charles Devellennes

This chapter proposes a theory of the social contract, in the context of the gilets jaunes. This theory is detailed in the five chapters that follow. The theory proposed here is that the movement itself is best understood as a fundamental challenge to the existing social contract in France — and by extension to other social contracts throughout the world — and its history is not limited to the months of political turmoil it engendered in France or even to the past couple of years of political upheaval in the wider world, but it poses a challenge to the very future of political order. A rethinking of the social contract is necessary given this crisis, and framing the present political turmoil in philosophical terms will help shed some light on the opportunities for change that are arising, in part thanks to the movement.


ICL Journal ◽  
2017 ◽  
Vol 11 (2) ◽  
Author(s):  
Shams Al Din Al Hajjaji

AbstractThe social contract in Egypt has changed dramatically five times in the past decade. Mubarak made substantial amendments in 2005 and 2007, the Supreme Council of the Armed Forces (SCAF) ratified the 2011 Constitutional Declaration, the Muslim Brotherhood adopted the 2012 Constitution and, finally, Al-Sisi/Mansur proclaimed the 2014 Constitution. Currently, Egypt faces social, economic, political and legal problems. The Egyptian judiciary plays a vital role in the inability to respond to these problems. This research argues that the call for judicial reform should be revived to face contemporary challenges. These challenges are the result of the absence of serious judicial reform in the past four decades. The 1973 Judicial Authority Law was a result of the social contract presented in the 1971 Constitution. The research lists the reasons for adopting a new judicial authority law. In the first section, the social aspect is embodied in the protection of freedoms, judicial transparency and judicial legitimacy. The second section dealing with economic reasons for reform is divided into two parts. The first deals with Independent Bodies and Regulatory Agencies. The second issue reveals the role of the judiciary in the successive failures of the IBRA. The third section deals with the role of the judiciary in political life. The fourth section presents the legal reasons for judicial reform.


2004 ◽  
Vol 32 (4) ◽  
pp. 921-938 ◽  
Author(s):  
Maryanne Yerkes

As nations emerge from repressive regimes and societies begin to rebuild following violent intranational conflict, the notion of “facing the past” has become an increasingly important and pressing issue. How should new regimes address the crimes of their predecessors? How should societies deal with individuals who committed grave crimes against humanity? Who should be held responsible for what happened during the dark periods of violence and war?


Author(s):  
Tilman Rodenhäuser

When considering which kinds of armed groups could form the entity behind crimes against humanity, legal debate has turned around the question of whether these groups need to be ‘state-like’ or not. As the law could support different interpretations, this first chapter on crimes against humanity engages with the rich philosophical debate on the crime’s main characteristics. Discussing a variety of philosophical works on this issue, this chapter develops a new approach, arguing that crimes against humanity should be understood as large-scale crimes committed in a context in which victims are deprived of any effective protection. It shows that such situations not only occur if states are involved in the crime, but also if armed groups commit large-scale crimes and the state is either unwilling or unable to halt them.


Author(s):  
David Everatt

Social contracts are concerned with the legitimacy of the state over the individual. The social contract offers mutual benefit and reciprocal obligation and is intrinsic to liberalism’s assertion that freedom is normative and encroaching on freedom requires justification. The social contract is both a philosophical idea and a toolkit for defusing conflict and tying participants to core liberal values. Talk of new social contracts, including intergenerational contracts, focus on maintaining a peaceful status quo, not transcending it. For the Global South in general, and youth in particular, the experience is more contract and less social. There seems little opportunity for southern youth to move from the margins to center stage, mimicking the inability of the Global South to do the same. Southern youth bear the brunt of limited economic opportunities, precarious employment, inequality, racism, and violence, compounding their marginalized place in society. What value can social contracting play beyond a short-term band-aid, unless it incorporates a fundamental rupture with the past?


Author(s):  
Ainhoa Lasa López

El recurso a los principios de la protección efectiva y la interpretación evolutiva ha generado una prominente casuística de reconocimiento accesorio de algunos derechos sociales de prestación por parte del Tribunal Europeo de Derechos Humanos. Paralelamente, el Pilar Europeo de Derechos Sociales, con su objetivo de mejorar la integración positiva del euro sistema, parece ampliar el contenido de algunos derechos sociales contemplados por la Carta de Derechos de la Unión. Siguiendo estas coordenadas, el objetivo del presente artículo es reflexionar sobre el papel del Pilar en la línea argumental de la garantía de la dimensión objetiva de los derechos humanos de la Convención desarrollada por el juez de Estrasburgo.The use of the principles of effective protection and evolutionary interpretation has generated a prominent casuistry of accessory recognition of some social rights by the European Court of Human Rights. On the other hand, the European Pillar of Social Rights, with its objective of improving the positive integration of the euro system, seems to expand the content of some social rights contemplated by the EU Charter of Fundamental Rights. Following these coordinates, the objective of this article is to reflect on the role of Pilar in the line of reasoning of guaranteeing the objective dimension of human rights of the Convention developed by the judge of Strasbourg.


Author(s):  
Muli wa Kyendo

The argument in this Chapter is that the key to bringing about lasting ethnic peace and harmony in Kenya – and in the rest of Africa – lies in understanding the attitudes and values found in community folktales. Folktales reflect a community's attempt to give form and shape to its hopes and fears and answers to its important questions. They touch on the very core of who they are, both personally and corporately. When it comes under threat, a community will return to its traditional stories to look for direction and to regain a sense of what made it great in the past and what will nurture it into the future. The Chapter uses examples from Kenya where a disastrous post-election ethnic violence in 2008 landed several prominent Kenyans at International Criminal Court in The Hague charged with crimes against humanity.


Sign in / Sign up

Export Citation Format

Share Document