Identifying the Prohibition of Torture as Jus Cogens of International Law free essay sample

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 investigations and prosecutions of perpetrators of these crimes. Analyzing the prohibition of torture under these legal bases brings to the inevitable conclusion that it is one of the crimes that has gained the status of jus cogens. Acknowledgement of the jus cogens status of the prohibition of torture is universal. States have made great efforts to articulate their categorical rejection of practice of torture by official authorities. According to the 1999 Initial Report of the United States to the U. N. Committee against Torture, in the United States, the use of torture is categorically denounced as a matter of policy and as a tool of state authority†¦No official of the government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form†¦Every act of torture within the meaning of the [Convention against Torture] is illegal under existing federal and state law, and any individual who commits such an act is subject to penal sanctions as specified in criminal statutes. A strong convincement can also be read in the words of the Special Rapporteur on Torture on his first report to UNHCR in 1986 â€Å"Torture is now absolutely and without any reservation prohibited under international law whether in time of peace or of war. In all human rights instruments the prohibition of torture belongs to the group of rights from which no derogation can be made†. T he amount of international and regional conventions prohibiting torture is extensive, but yet another aspect important for the universality of the recognition of this prohibition is the number of states that have ratified them. Apart from the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) is ratified by 153 countries, including the United States in 1992 and the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment is ratified by 136 countries, including the United States in 1994. The language used in the conventions prohibiting torture indicates the high status of this norm in the international law. The preamble of the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment recalls on the principles proclaimed in the Charter of the United Nations. This reference to the Charter of the most universal international organization implies a high responsibility of the international community regarding the prohibition of torture. Further more the Convention not only that requests restrain from the countries regarding the practice of torture but also sets up obligation for them to take legislative, administrative, judicial or other measures to prevent acts of torture in their territory. The case law confirming the jus cogens status of the prohibition of torture is very rich in these days. One of those first cases was Siderman de Blake v Republic of Argentina where the court referring to jurisprudence and treaty law ruled that the prohibition of torture, different from the Filartiga v. Pena-Irala case confirming that torture was prohibited under customary international law, has already gained the jus cogens status. Later the International Criminal Tribunal for former Yugoslavia stated in the case Prosecutor v. Furundzija that the prohibition of torture is a jus cogens. The court stated that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, whowhich are present in a territory under its jurisdiction. The rationing for this is that the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind. Similarly in the court held in Prosecutor v Kunarac that: â€Å"Torture is prohibited both in times of peace and during an armed conflict. The prohibition can be said to constitute a norm of jus cogens†. The same status of the prohibition of torture was also recognised by Your Lordships’ House in R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte where Chile acknowledged that the prohibition of torture had jus cogens status. Similar opinion was expressed in Jones v Ministry of Interior of Saudi Arabia by The Lords of the Appeal, giving an extensive evidence of the widespread acceptance of jus cogens status of the prohibition of torture in treaty law, customary international law and case law, confirm the same status of the prohibition of torture. Another approach to determining the jus cogens status of the norms of general international law is the one that the International Law Commission held it is not the form of a general rule of international law but the particular nature of the subject-matter with which it deals that may, in the opinion of the Commission, give it the character of jus cogens. Even this approach grants the prohibition of torture a jus cogens status when we take into consideration factors that determine the nature of this subject–matter that derives from the importance and attention that the international community dedicates to it. As mentioned above the number of the conventions and instruments, universality of recognition and case law prove the crucial importance of this matter of general interest for the international community. The prohibition of torture should be considered having a wide scope All the relevant sources of the international law and the approaches for determining the jus cogens are very explicit in pointing towards the prohibition of torture as having the status of one of those norms. Having that clear, there is another dilemma that nowadays the international community faces, and that is the scope of acts the prohibition of torture covers. Weather coercive interrogation, apart from the one that is inhuman and degrading, a distinction from torture that can be made in theory but almost impossible to be made in practice, falls into the scope of jus cogens prohibition of torture. One great example of that is weather sleep deprivation is torture. While, there are authors that would even argue that in exceptional cases of immanent risk for lives of citizens, application of some form of physical methods that amount to torture should be allowed. Responding to that, the prohibition of torture as a jus cogens has not only a actual effect, it rather has a long-term preventive goal too, and in that sense when there is not any clear way to manage coercive interrogation institutionally so that it does not degenerate into torture , it becomes more than clear that the ban expands to a wide scope of practices that can always pose a risk to the human rights protected by this prohibition. While theoretically it may be still argued otherwise and different conclusions can be made, the prohibition of torture remains a practical universal ban on any attack or risk to human rights protected. Conclusion The prohibition of torture incorporates two important dimensions, the physical and psychological protection of every human being that relates this norm with the very fundamental right to life. This fundamental nature of the prohibition of torture raises it to very top of the interests of the international community which has made a lot of efforts for universalization of this norm. Giving it the status of jus cogens, the international community has ensured that the law that governs it provides for a lot of support through the treaties, customary law, cases and doctrine for this status of it. Having that sufficient support by the international law, the jus cogens status of the prohibition of torture will ensure that the acts of torture, wherever they occur, will not go unpunished.