FSP - Human Rights

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Clauza culturală în jurisprudenţa penală din România : cazul mariajelor timpurii în comunităţile rome tradiţionale
(Centrul de Studii Internationale, 2011) Constantin, Măriuca Oana
The study raises the question of whether the cultural clause is applied in Romania despite the absence of a legal framework and shows that it operates de facto in criminal jurisprudence, being invoked before the courts and influencing verdicts and individualized sentencing. The research focused on 'early marriages' practiced by some traditional Roma communities, with criminal consequences. We developed an outline of the ethical-legal reasoning of judges in solving this problem and related it to the ethical criteria of admissibility of cultural derogations established by the theories that have tried to decipher the conflict between norms and customs. We have shown that in Romania an illiberal multiculturalism operates in relation to some cultural practices of certain traditional Roma minorities, customs that affect the freedoms and rights of some of their members. Through the conclusions of the study, signals are given to raise awareness of the profound and less visible effects of these patterns of verdicts, in the socio-political field.
Doctrina internationala a tratarii trecutului comunist
(C.H. Beck, 2016) Andreescu, Gabriel; Botău, Diana; Constantin, Măriuca Oana
Twenty-five years after the collapse of European communism, attitudes towards the former criminal system remain divergent. It is the wish of a doctrine of dealing with the communist past to support the creation of a current of authority, based on an ethic of memory, which refuses to dilute and trivialize what happened. The present volume is intended to contribute to the promotion of such a current of authority, by identifying the standards of the current international doctrine on the subject.
Identitatea culturală : o posibilă circumstanţă atenuantă? : Admisibilitatea clauzei culturale în procesele penale din România
(Centrul de Studii Internationale, 2015) Constantin, Măriuca Oana
The paper defines the concept of cultural defense and identifies the challenges of its use in practice. Cultural defense means that the judge considers arguments related to cultural identity, in both criminal and civil trials, when either the parties or the facts are directly connected to a cultural background. The study only focuses on the cultural defense in the context of Romanian criminal law, where, despite the absence of a formal cultural defense, it might arise de facto as a request to mitigate or even to exonerate the lawbreaker from punishment. The paper examines the consequences of the indirect use of this defense and whether its formal regulation is ethically justifiable. Taking into account the fact that cultural identity is often used as an excuse for oppressive traditions against the most vulnerable members of certain communities, the study argues that the use of cultural defense in criminal law implicitly legitimizes the abusive practices and the proliferation of internal vulnerabilities.
Justice and memory after dictatorship : Latin America, Central Eastern Europe, and the fragmentation of international criminal law
(Oxford University Press, 2024) Grosescu, Raluca
After the fall of military and communist dictatorships at the end of the 1980s, Latin American and Eastern European countries had to reckon with atrocities perpetrated by these Cold War regimes. Judges, prosecutors, and human rights campaigners across the two regions constructed novel readings of international criminal law to fight impunity and realize justice for gross human rights violations. Justice and Memory after Dictatorship: Latin America, Central Eastern Europe and the Fragmentation of International Criminal Law provides a groundbreaking socio-historical account of the global transformation of international criminal law from these two semi-peripheries of the world system. Based on ethnographic observation and analyses of jurisprudence, Raluca Grosescu dissects the narratives that were fundamentally shaped by the relationship of law and politics. Using paradigmatic cases and personal interviews with lawyers and judicial officials from Latin America and Eastern Europe, Grosescu uncovers how legal actors and organizations were instrumental in questioning an international order that marginalized the political violence that had unfolded in the two regions during the Cold War. Justice and Memory after Dictatorship is a significant volume in modern international criminal and human rights law and an important read for scholars, students, and legal practitioners alike.
Minori şi minorităţi : religie şi tratament medical
(Centrul de Studii Internationale, 2013) Constantin, Măriuca Oana
The study looks at religiously motivated refusals of medical treatment by parents in the name of their underage children, starting from an individual case. The internal restrictions of a cultural-religious minority come into conflict with an external, superior restriction – to not violate a non-derogable fundamental right. The hypothesis that the cultural exception clause operates in a Romania was only partially confirmed. The legislation doesn’t create mechanisms for turning such medical and moral situations into cases before a court. Hence, there is no jurisprudence of refusal of medical treatment by parents in the name of underage children under their guardianship. Potential cases disappear before getting to the courts, either because the parents are persuaded to consent to medical treatment, or the child dies and those responsible are not prosecuted when there is a link between this death and the refusal. Public authorities have a difficult time identifying cultural customs and hence can respond only to a limited extent. Only an extensive quantitative study can provide a global image of the situation in Romania, an image needed as a basis for the elaboration and promotion of a draft law that addresses the issue of cultural customs with negative consequences on the integrity of children.
Revisiting state socialist approaches to international criminal and humanitarian law : an introduction
(Brill, 2019) Grosescu, Raluca; Richardson-Little Ned
More than twenty years after Augusto Pinochet’s arrest in London, this special issue examines the globalization of post-dictatorial and post-conflict justice and memory processes through the lens of interconnections and mutual influences between Europe and South America. The collection challenges the currently domi- nant literature on reckoning with violent pasts. It does so by moving beyond both analyses confined within specific national borders and diffusionist accounts of so- called “universalised” justice and mnemonic paradigms purportedly embraced worldwide. The Trans-Atlantic perspective provides scholars with an ideal oppor- tunity to analyse empirically the nexus between global and local scales of action, and to highlight agency in transnational mnemopolitics. Through case studies of trans-regional entanglements, we contend that the globalization of memory and justice paradigms goes hand in hand with a fragmentation of, and on occasion com- petition between different narratives concerning dictatorial pasts, between inter- national, regional and local understandings of “best practices” of dealing with political violence, and between various professional groups engaged in account- ability and remembrance processes. The collection shows the multi-faceted nature of transnational transfers and collaborations, some of which reflect concepts that have become significant in the international arena, while others mirror ideas and practices with limited global impact that circulate only between “semi-periph- eries” or between less influential networks of activists.
State socialist endeavours for the non-applicability of statutory limitations to international crimes : historical roots and current implications
(BrBrill | Nijhoff, 2019) Grosescu, Raluca
This article analyses the role of Eastern European socialist governments and legal ex- perts in encoding the non-applicability of statutory limitations to international crimes. It argues that socialist elites put this topic on the agenda of the international commu- nity in the 1960s through two interrelated processes. On the one hand, legal scholars cooperated with Western European lawyers in order to enforce the idea that the in- ternational crimes codified by the Nuremberg Charter should not be subject to pre- scription. On the other hand, Eastern European governments proposed and enabled – through their cooperation with African and Asian states – the adoption of the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. In the first decade of the twenty-first century, this instru- ment became an important tool for advancing prosecutions of international crimes committed under dictatorships and violent conflicts, particularly in Central Eastern Europe and Latin America.
State socialist experts in transnational perspective : East European circulation of knowledge during the Cold War (1950s–1980s) : introduction to the thematic Issue
(Brill | Schöningh, 2018) Iacob, Bogdan; Dobos, Corina; Grosescu, Raluca; Iacob, Viviana; Pașca, Vlad
State socialist experts were at the center of Eastern Europe’s internationalization from the mid-1950s until 1989. They acted as intermediaries between their states and other national, regional, and international environments. The contributions integrate national milieus within broader frameworks mostly circumscribed by inter- and nongovernmental specialized organizations (the United Nations Economic Commission for Europe; the United Nations Educational, Scientific and Cultural Organization; International Theater Institute, or the un Commission on Population and Development). The issue is an innovative initiative to identify within four fields (economy, demography, theatre, and historical studies) state socialist experts’ contributions to international debates and institution building. We argue that these groups were fundamentally characterized by their transnational dynamism. The resultant forms of mobility and transfer resituate specific systems of knowledge production from Eastern Europe within the larger story of postwar globalization. The collection also includes an anthropological study about the internationalization trajectories of lower-ranked professionals and the resilience of their expertise ethics after 1989. Socialist experts’ mobilities can be circumscribed at the intersection of multiple phenomena that defined the postwar: national settings’ impact on inter- and supra-state interactions; Cold War politics; the tribulations of international organizations; and global trends determined by the accelerating interconnectedness of the world and decolonization. Our findings de-center established narratives about the Cold War and they show how representatives from the East participated in and sometimes determined the conditions of Europeanizing and globalizing trends in their respective fields within particular organizations.
Tipare de aplicare a legii penale în jurisprudența din România conexă cutumei mariajelor timpurii
(Centrul de Studii Internationale, 2016) Constantin, Măriuca Oana
The study focuses on the relationship between justice and diversity in Romania. More specifically, I investigate the recent criminal jurisprudence derived from the custom of child marriage practiced by some Roma communities. The purpose of the analysis is to discover potential patterns in how the judges deal with cultural identity when a tradition appears to be relevant for the case prima facie, but at the same time it represents a violation of children's rights, personal autonomy and gender equality. In an interdisciplinary approach, I determine if the verdicts are in favor or against the tradition, and if they lead to a de facto use of the cultural defense. I explore the Romanian case-law on child marriage, through the lenses of liberal multiculturalism and liberal feminism, focusing on the consequences of applying the cultural defense in this specific controversial situation. As a conclusion, I attempt to find and propose a solution de lege ferenda with the potential of clarifying priorities when there is tension between the legal system, the preservation of cultural identity and the rights of the most vulnerable members of traditional communities.
Transnational advocacy networks and corporate accountability for gross human rights violations in Argentina and Colombia. DOI:10.1080/13600826.2019.1598947
(Routledge, 2019) Grosescu, Raluca
More than twenty years after Augusto Pinochet’s arrest in London, this special issue examines the globalization of post-dictatorial and post-conflict justice and memory processes through the lens of interconnections and mutual influences between Europe and South America. The collection challenges the currently domi- nant literature on reckoning with violent pasts. It does so by moving beyond both analyses confined within specific national borders and diffusionist accounts of so- called “universalised” justice and mnemonic paradigms purportedly embraced worldwide. The Trans-Atlantic perspective provides scholars with an ideal oppor- tunity to analyse empirically the nexus between global and local scales of action, and to highlight agency in transnational mnemopolitics. Through case studies of trans-regional entanglements, we contend that the globalization of memory and justice paradigms goes hand in hand with a fragmentation of, and on occasion com- petition between different narratives concerning dictatorial pasts, between inter- national, regional and local understandings of “best practices” of dealing with political violence, and between various professional groups engaged in account- ability and remembrance processes. The collection shows the multi-faceted nature of transnational transfers and collaborations, some of which reflect concepts that have become significant in the international arena, while others mirror ideas and practices with limited global impact that circulate only between “semi-periph- eries” or between less influential networks of activists.

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