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A return to stability? Hegemonic and counter-hegemonic positions in the debate on universal jurisdiction in absentia

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posted on 2023-06-08, 22:48 authored by Aisling O'SullivanAisling O'Sullivan
In this chapter I primarily investigate the separate and dissenting opinions in the Arrest Warrant case on the question of universal jurisdiction in absentia in order to draw out the descending (more normative, less concrete) and ascending (more concrete, less normative) patterns of argument within each opinion and to identify the hegemonic and counter-hegemonic positions in the pre- and post-Arrest Warrant debate. I observe how Van den Wyngaert, Guillaume and the Joint Separate Opinion are archetypal of the competing moralist and formalist approaches and the move to the “middle ground” with recourse to reasonableness. It is evident that this debate on in absentia trials is caught within the tension between the moralist (fighting impunity) and formalist (avoiding abuse) approaches that underpin a broader debate on the principle’s justification and content. As will be observed, this struggle for hegemonic control illustrates how each legal outcome within the debate is not ‘natural’ and ‘inevitable’. Rather it is a series of strategic moves that are historically contingent and accord with structural bias.

History

Publication status

  • Published

Publisher

Cambridge University Press

Page range

163-183

Pages

252.0

Book title

Mobilising international law for 'Global Justice'

ISBN

9781108586665

Department affiliated with

  • Law Publications

Research groups affiliated with

  • Sussex Centre for Human Rights Research Publications
  • Crime Research Centre Publications

Full text available

  • No

Peer reviewed?

  • Yes

Editors

Karin Arts, Jeff Handmaker

Legacy Posted Date

2018-11-13

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