Identifying the Prohibition of Torture as Jus Cogens of International Law

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‘Identifying the prohibition of torture as jus cogens of international law’

Artan Sadiki

Introduction

The time when states could completely rely on their national sovereignty without being bounded erga omnes by any rule of a higher instance marked the period of classical international law. Since that time there have been a lot of progressive developments followed by the evolution of the international community that contributed to the shift from the individualistic approach towards the international law by the states, to an increased awareness for protection of the general interest of the whole community. To ensure this protection, the international community recognized the existence of jus cogens, peremptory norms of general international law, which bind all the countries without their separate consent . Even there is a debate on the issue of the lack of criteria to identify when a general rule of international law has reached the status of jus cogens , it is very well established under international law that the prohibition of torture is clearly one of those norms. While there is a low opposition to this idea by the states, some authors argue on the practice of torture by some of them that could contest the jus cogens status of the prohibition of torture. The legal arguments below will provide that the recognition of the prohibition of torture as a jus cogens is strongly supported by the states practice, treaty law, doctrine and judicial decisions. This recognition based on the legal conscience and moral values creates a more aware and responsive international community that reinforces the respect of human rights worldwide.

Background

Many European countries abolished torture in the late 1700s or early 1800s. Even after they abolished torture in the 1700s and 1800s, European countries returned to its use in the 1900s, often claiming 'state security' reasons. Examples of states that used torture as a part of their state security are Nazi Germany and Stalinist Russia, after that the military dictatorship in Greece after World War II, France turned to torture in Algeria in the 1950s, and the United Kingdom used it at various points in Ireland. Being widely practiced throughout history, torture was one of the main characteristics of the awful abuses of the Second World War. After the war, in 1948, the General Assembly of the United Nations included the prohibition against torture in the milestone Universal Declaration of Human Rights. This declaration was followed by many international conventions prohibiting official use of torture in war and peace as the four Geneva Conventions, UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, International Covenant on Civil and Political Rights, European Convention for the Protection of Human Rights and Fundamental Freedoms, the African Charter on Human and Peoples' Rights, and the American Convention on Human Rights. All of these international and regional conventions raised the prohibition of torture in a universally respected treaty norm of international law. During the 80s there was substantial evidence that the prohibition of torture also constituted a norm of international customary law . Nowadays, torture is absolutely prohibited under international law and is qualified as obligation erga omnes from which no derogation is allowed.

How to determine jus cogens status of prohibition of torture

The doctrine acknowledges that sufficient legal basis exists to identify which norms are jus cogens. This legal basis consists of the following: (1) opinio juris, the recognition that these crimes are assumed part of general customary law; (2) language in preambles or other provisions of treaties applicable to these crimes which indicates these crimes’ higher status in international law; (3) the large number of states which have ratified treaties related to these crimes; and (4) the ad hoc international...
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