That order did not come from God. Justice,
That dwells with the gods below, knows no such law.
I did not think your edicts strong enough
To overrule the unwritten unalterable laws
Of God and heaven, you being only a man.
They are not of yesterday or today, but everlasting,
Though where they came from, none of us can tell.
Guilty of their transgression before God,
I cannot be, for any man on earth.
The passage has often been cited as an early understanding of natural law, apparently going back as far as Aristotle’s Rhetoric.
Friday’s judgment of the International Court of Justice says:
99. In the Court’s opinion, the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens).
That prohibition is grounded in a widespread international practice and on the opinio juris of States. It appears in numerous international instruments of universal application (in particular the Universal Declaration of Human Rights of 1948, the 1949 Geneva Conventions for the protection of war victims; the International Covenant on Civil and Political Rights of 1966; General Assembly resolution 3452/30 of 9 December 1975 on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), and it has been introduced into the domestic law of almost all States; finally, acts of torture are regularly denounced within national and international fora.
This is not the first reference to jus cogens in the case law of the Court. The first, I believe, was in the Democratic Republic of the Congo v. Rwanda decision (para. 64), with respect to the prohibition of genocide. Ad hoc Judge John Dugard wrote a separate opinion about how the concept might be developed. A reference to the pronouncement on jus cogens in the DRC decision was made in the Genocide case (Bosnia and Herzegovina v. Serbia) (para. 161) but without further comment. In this year’s ruling on State immunity, in Germany v. Italy, there is a discussion of jus cogens that dismisses its significance in the debate in that case (see paras. 95-96).
The reference to jus cogens in Friday’s judgment is of interest because it provokes comments by several of the judges in their individual opinions.
Judge Abraham describes the comment on jus cogens in para. 99 as an obiter dictum, in other words, as a statement that is not decisive in reaching the Court’s conclusion. He says that the reference might well have been omitted.
27. … A propos de l’interdiction de la torture, l’arrêt affirme (paragraphe 99) qu’elle relève du droit coutumier et qu’elle a même acquis le caractère d’une norme de jus cogens, mais c’est à l’évidence un simple obiter dictum, dont la Cour aurait pu se passer sans priver son raisonnement d’aucun élément indispensable.
There is a similar remark by ad hoc judge Sur.
Judge Xue also discusses the issue:
17. Secondly, the Court’s conclusion on obligations erga omnes partes in this case is not in conformity with the rules of State responsibility. Even though prohibition of torture has become part of jus cogens in international law, such obligations as to make immediately a preliminary inquiry and the obligation to prosecute or extradite are treaty rules, subject to the terms of the Convention. Notwithstanding the fact that the State parties have a common interest in their observance, by virtue of treaty law, the mere fact that a State is a party to the Convention does not, in and by itself, give that State standing to bring a case in the Court. Under international law, it is one thing that each State party has an interest in the compliance with these obligations, and it is another that every State party has standing to bring a claim against another State for the breach of such obligations in the Court. A State party must show what obligations that another State party owes to it under the Convention have been breached. Such “injury”, to use the language in Article 42 of the International Law Commission’s Articles on State Responsibility, distinguishes the State from other State parties as it is “specially affected” by the breach. These procedural rules in no way diminish the importance of prohibition of torture as jus cogens. Jus cogens, likewise, by its very nature, does not automatically trump the applicability of these procedural rules (Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of 3 February 2012, paras. 93-95).
The most elaborate comments are by Judge Cançado, who describes the reference in paragraph 99 as ‘one of the most significant passages of the present Judgment’. Judge Cançado had also considered the subject in his separate opinion in the Immunities decision of 3 February. Some of the relevant passages are cited here (references omitted), but they do not do justice to the separate opinion, to which readers of the blog are referred.
44. In my understanding, the State obligations, - under Conventions for the protection of the human person, - of prevention, investigation and sanction of grave violations of human rights and of International Humanitarian Law, are not simple obligations of conduct, but rather obligations of result. It cannot be otherwise, when we are in face of peremptory norms of international law, safeguarding the fundamental rights of the human person. Obligations of simple conduct may prove insufficient; they may exhaust themselves, for example, in unsatisfactory legislative measures. In the domain of jus cogens, such as the absolute prohibition of torture, the State obligations are of due diligence and of result. The examination of the proposed distinction between obligations of conduct and obligations of result has tended to take place at a purely theoretical level, assuming variations in the conduct of the State, and even a succession of acts on the part of this latter, and without taking sufficient and due account of a situation which causes irreparable harm to the fundamental rights of the human person.
158. Paragraph 99 of the present Judgment, wherein the ICJ expressly acknowledges that “the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens)”, is in my view one of the most significant passages of the present Judgment. My satisfaction would have been greater if the Court dwelt further upon it, and developed its reasoning on this particular issue, as it could and should, thus fostering the progressive development of international law. The Court, however, promptly turned around in the following paragraph, and started treading on troubled waters, embarking - to my regret - on a regressive interpretation of the relevant provision (Article 7(1)) of the CAT Convention.
159. In any case, up to now, the Court has not shown much familiarity with, nor strong disposition to, elaborate on jus cogens; it has taken more than six decades for it to acknowledge its existence tout court, in spite of its being one of the central features of contemporary international law. In effect, immediately after identifying the manifestation of jus cogens in the customary international law prohibition of torture (para. 99), the Court has indulged into a consideration, sponte sua, of non-retroactivity of treaty provisions. The Court has done so (paras. 100 to 104) adding an unnecessary - if not contradictory - element of confusion to its own reasoning.
168. Accordingly, it would seem inconsistent with the object and purpose of the CAT Convention if alleged perpetrators of torture could escape its application when found in a State in respect of which the Convention entered into force only after the alleged criminal acts occurred (as a result of the temporal limitation which the Court regrettably beheld in Article 7(1)). Worse still, although the present Judgment rightly recognizes that the prohibition of torture has attained the status of jus cogens norm (para.99), it promptly afterwards fails to draw the necessary consequences of its own finding, in unduly limiting the temporal scope of application of the CAT Convention. The Court has insisted on overlooking or ignoring the persistence of a continuing situation in breach of jus cogens.
182. Identified with general principles of law enshrining common and superior values shared by the international community as a whole, jus cogens ascribes an ethical content to the new jus gentium, the International Law for humankind. In prohibiting torture in any circumstances whatsoever, jus cogens exists indeed to the benefit of human beings, and ultimately of humankind. Torture is absolutely prohibited in all its forms, whichever misleading and deleterious neologisms are invented and resorted to, to attempt to circumvent this prohibition.
183.In the aforementioned move from jus dispositivum to jus cogens, this absolute prohibition knows no limits in time or space: it contains no temporal limitations (being a prohibition also of customary international law), and it ensues from a peremptory norm of a universalist international law. Jus cogens flourished and asserted itself, and has had its material content expanded, due to the awakening of the universal juridical conscience, and the firm support it has received from a lucid trend of international legal thinking. This latter has promptly discarded the limitations and shortsightedness (in space and time) of legal positivism, and has further dismissed the myopia and fallacy of so-called “realism”.
Paragraph 99 of Friday’s ruling clearly associates jus cogens with customary international law. Several international instruments are cited, including the Universal Declaration of Human Rights. Importantly, it appears to explain the source of the jus cogens norm: ‘That prohibition is grounded in a widespread international practice and on the opinio juris of States.’ Of course, the same sources are invoked as a basis for customary norms. It seems to make jus cogens into a kind of super-custom.
Usually, there is little real point to elevating a norm into the category of jus cogens. It is a bit like putting what is already a clear statement in bold face and italics. As a general principle, customary norms are on the same level as treaty or conventional norms, and just as binding. The Vienna Convention on the Law of Treaties gives jus cogens norms the ability to override incompatible treaty norms, which is why they have a superior status. The debate rages, as we can see in the two decisions this year where jus cogens has been an issue, about the legal consequences of determining that a norm belongs in the category.
My reflections are not focused on the legal significance of jus cogens but rather about the origin of such norms. The Court’s decision suggests they are the same as those of customary international law. If that is the case, how can we ever identify them? What makes them distinct from custom generally? If the prohibition of torture is a norm of jus cogens because it is affirmed in various international treaties and declarations, why don’t we say the same thing about imprisonment for debt, or the prohibition (or lack of it) of pornography?
Judge Cançado’s separate opinion seems to find jus cogens elsewhere. In para. 182, he speaks of ‘general principles of law enshrining common and superior values shared by the international community as a whole’. The terminology is not quite identical to that of article 38(1)c of the Statute of the International Court of Justice (‘the general principles of law recognized by civilized nations’) but it is close enough and we can understand why Judge Cançado is probably uncomfortable with that archaic formulation.
He goes on to discuss how ‘jus cogens ascribes an ethical content to the new jus gentium, the International Law for humankind. In prohibiting torture in any circumstances whatsoever, jus cogens exists indeed to the benefit of human beings, and ultimately of humankind.’ Its development results from 'the awakening of the universal juridical conscience'.
And that brings us back to Antigone.
Critics will object that using ethics and similar notions to identify norms of international law is fraught with uncertainly. Perhaps. But no more so than with a concept of jus cogens that is apparently rooted in the practice and in the opinio juris of States, where the more we explore the sources the darker and gloomier the terrain becomes. Looking for ethical content in State behaviour is a terrifying prospect. Far better to search for jus cogens in the 'unwritten unalterable laws / Of God and heaven', just like Antigone. 'They are not of yesterday or today, but everlasting, / Though where they came from, none of us can tell.'