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The Respect for Human Dignity (Inglês) 2015.Indd Antônio Augusto Cançado Trindade and César Barros Leal Coordinators The RespeCT foR humAn DigniTy Fortaleza 2015 TABLe of ConTenTs PREFACE.......................................................................................5 REHABILITATION OF VICTIMS AND THEIR DIGNITY: REFLECTIONS ON SOME ISSUES RAISED IN THE CASE BELGIUM VERSUS SENEGAL (2012) ADJUDICATED BY THE INTERNATIONAL COURT OF JUSTICE Antônio Augusto Cançado Trindade ........................................... 7 HUMAN DIGNITY, BIOETHICS AND HUMAN RIGHTS Audrey R. Chapman ................................................................. 85 HUMAN RIGHTS AND THE RESPECT FOR HUMAN DIGNITY IN THE CONTEXT OF THE RESTORATIVE JUSTICE PRINCIPLES César Barros Leal .................................................................... 101 HUMAN DIGNITY AND THE PRINCIPLE OF HUMANITY IN INTERNATIONAL LAW Diego Valadares Vasconcelos Neto .......................................... 117 HUMAN DIGNITY TRUMPS COMPLIANCE WITH THE ICJ? REFLECTIONS ON JUDGMENT 238/2014 OF THE ITALIAN CONSTITUTIONAL COURT Giulia Pinzauti ....................................................................... 157 HUMAN DIGNITY AND THE JEWISH TRADITION Hershey H. Friedman ............................................................. 181 DIGNITY OF THE PERSON AND THE RIGHTS OF INDIGENOUS PEOPLES Julian Burger .......................................................................... 205 PROTECTING HUMAN DIGNITY IN THE DIGITAL AGE Marc Rotenberg ...................................................................... 227 STRENGTHENING THE PREVENTION OF GENOCIDE IN INTERNATIONAL LAW - THE NEED TO FILL THE NORMATIVE GAPS OF THE U.N. CONVENTION ON GENOCIDE, FOR THE SAKE OF HUMAN DIGNITY Márcia Canário de Oliveira ..................................................... 237 HUMAN DIGNITY AND THE MANIPULATION OF THE SENSE OF HAPPINESS; FROM THE VIEWPOINT OF BIOETHICS AND PHILOSOPHY OF LIFE Masahiro Morioka .................................................................. 255 INTERNATIONAL CRIMINAL JUSTICE AND REPARATIONS FOR VICTIMS IN THE LIGHT OF HUMAN DIGNITY: THE ROLE OF DOMESTIC MECHANISMS Miriam Cohen ........................................................................ 269 HUMAN DIGNITY AND DEPRIVATION OF LIBERTY THROUGH REGIONAL HUMAN RIGHTS COURTS INTERPRETATION Rosmerlin Estupiñan-Silva ..................................................... 285 ANNEX .....................................................................................313 THE UNIVERSAL DECLARATION OF HUMAN RIGHTS... 315 pRefACe Following up an extraordinary cultural project, which is renewed every year, we are launching five books (with articles originally written in Portuguese, Spanish, French, English, and Italian) on “The Respect for Human Dignity”, the central theme of the IV Brazilian Interdisciplinary Course on Human Rights, organized by the Brazilian Institute of Human Rights, and the Inter-American Institute of Human Rights in Fortaleza, Ceará, Brazil, from August 3 to 14, 2015. The tomes, for free distribution, gather a group of scholars from several fields of expertise and nationalities, who deal with the issue proposed under the most different perspectives, many of them subject of conferences, panels, and workshops that comprise this event, Certainly one of the most prestigious aCademiC aCtivities in the field of human rights, carried out in Latin America, with the participation of students and observers from different states of Brazil, and other countries in the region. The choice of the theme has taken into account the topicality, relevance, and extent of the human dignity principle, truly universal (and with many implications), considered a fundament of the Republic under Brazil’s 1988 Constitution, the Citizen-Constitution, and present in unCountable debates and studies – like these – on topiCs such as the promotion and protection of fundamental rights, the existential minimum, bioethics, non-discrimination, the Democratic Constitutional State, as well as the application of justice and the ComplianCe of laws with the international proteCtion rules, whiCh leads us to the jurisprudence of the Inter-American Court of Human Rights. The reader, before the plurality of texts, will have the opportunity not only to Confirm the dimension of the singular and unConditioned values that settle the dignity of every human being (which differentiates him from other beings, according to Emanuel Kant, being worth to distinguish here, in our opinion, the dignity of the moral behavior of a person from the dignity of the own person), and the wealth of ideas and reflections of those who, in view of our call, have written with CompetenCe, objeCtivity, and Commitment. That makes the reading of those five books a fabulous trip through the recognition of the human condition and the respect that, for Christian theology, should be The RespecT foR human DigniTy 5 granted without distinction of any species, since, created in the image and likeness of God, we are all – according to Kant himself, – endowed with the utmost dignity among all the beings on earth. Perception joins this line of reasoning, nurtured by the transparenCy of the faCts, that dignity is continuously violated in today’s world, widening the huge gap between the ideal plan – of the golden letters of deontology - and the perverse reality of everyday life. Adopted and proclaimed by the United Nations General Assembly on December 10, 1948, the Universal Declaration of Human Rights, included in the tomes as an attachment due its importance, points out in its Preamble, that the recognition of the dignity inherent to all members of the human family, and their equal and inalienable rights is the foundation of freedom, justice, and peace in the world. It adds that the peoples of the United Nations have reaffirmed, in the Charter, their faith in fundamental human rights, in the dignity and worth of the human person, as well as in the equal rights of men and women. Never shall we forget its 1st Article: All human beings are born free and equal in dignity and rights. Being entitled to rights, man must be respected in his essence and dignity, either by his community group, or by the State, while his intrinsic condition as a human person is teleologically preserved, which is enhanced with due emphasis on the doctrine, constitutional texts, conventions, treaties, and sentences (accompanied by votes) issued by courts, and international and regional organs for the protection of human rights. The reader, especially the one who will have the opportunity to attend the IV Brazilian Interdisciplinary Course on Human Rights, is imposed, in conclusion, the inalienable duty to reflect on the topics addressed in this collection, and stimulate their discussion in multiple instances, by disseminating this collective message, as vigorous as instigating, of faith in the respect to the human person dignity, the same faith that also makes us fight for the affirmation of our beliefs and making our dreams come true. Special thanks to Juana María Ibáñez Rivas, illustrious Peruvian lawyer, for the priceless support she has given us. Antônio Augusto CANÇADO TRINDADE and César BARROS LEAL The Hague / Fortaleza, June 13, 2015 RehABiLiTATion of ViCTims AnD TheiR DigniTy: RefLeCTions on some issues RAiseD in The CAse BELGIUM VERSUS SENEGAL (2012) ADJuDiCATeD By The inTeRnATionAL CouRT of JusTiCe (1*) Antônio Augusto Cançado Trindade Judge of the International Court of Justice; Former President of the Inter-American Court of Human Rights; Emeritus Professor of International Law of the University of Brasilia, Brazil; Full Member of the Curatorium of The Hague Academy of International Law, and of the Institut de Droit International; Former President of the Latin American Society of International Law. i. inTRoDuCTion The topic which I shall here examine, on the Rehabilitation of Victims (in the context of a recent case resolved by the International Court of Justice), is of great importance and has been attracting much attention in contemporary international legal doctrine. In its recent Judgment, of 20 July 2012, in the case concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium versus Senegal), the International Court of Justice (ICJ) has established violations of Articles 6(2) and 7(1) of the 1984 United Nations Convention against Torture2, has asserted the need to take immediately measures to comply with the duty of prosecution under that Convention3, and has rightly acknowledged that the absolute prohibition of torture is one of jus cogens4. 1 (*) The present study served as basis for the two lectures delivered by the Author in the XL Course of International Law organized by the OAS Inter-American Juridical Committee (2013), in Rio de Janeiro; originally published in: XL Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano - 2013, Washington D.C., OAS General Secretariat, 2014, pp. 85-151. 2 Judgment´s dispositif, paras. 4 and 5. 3 Judgment´s dispositif, para. 6. 4 Court´s reasoning, para. 99. The RespecT foR human DigniTy 7 The Court’s Judgment paves the way for considerations pertaining to restorative justice, in particular on the relevance of the realization of justice for the rehabilitation of the victims. I have sought to stress this point in my Separate Opinion appended to the Court’s Judgment, whereby I stated the reasons which led me to support most of the findings of the Court, though advancing a distinct reasoning on two particular points, namely, the Court’s
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