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Published: Fri, 02 Feb 2018

Torture as a jus cogens norm

Everybody Is Doing It! Torture As A Jus Cogens Norm Following The September 11 Attacks

Introduction

“If ever a phenomenon was outlawed unreservedly and unequivocally it is torture”; a statement that should have no trouble gaining wide support on an international plain. Yet following the tragedies of September 11 there has been a marked increase in the number of states prepared to use instruments of interrogation that would, in the eyes of the innocent bystander, amount to torture, in order to gather information that allows them to prevent acts of terrorism and save lives. Indeed, Jeremy Waldron notes how Unites Sates Justice Department lawyers have advocated such acts of torture and how “at least one scholar has suggested that the United States might institute a system of judicial torture warrants, to permit coercive interrogation in cases where it might yield information that will save lives” However, a myriad of provisions exist within international law, all of which predate the aforementioned events of September 11, which prohibit the use of such methods. These include the International Covenant on Civil and Political Rights and the Convention Against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment both of which allow for no qualifications or limiting factors. These provisions prohibiting torture are seen as non-derogable rights. Furthermore, there exists argument that the prohibition of torture forms a peremptory norm making it jus cogens and bestowing upon the entire international community an obligatio erga omnes to refrain from such acts.

This essay will examine the claims, prior to September 11, that torture prohibition is a jus cogens norm and whether or not the actions of the international community after this date can justifiably support such a contention. Part I of the essay will critically evaluate the sources of international law, specifically demonstrating how the law relating to the prohibition of torture applies to the international community. Part II of the essay will focus on the concept of jus cogens, in particular the requirements for such norms and obligations, which will then be evaluated against the international instruments prohibiting the use of torture, demonstrating a strong argument in favour of the norm. Finally, the Part III of the essay will turn to the reaction of the international community, particularly allegations that the United States under the Bush administration have engaged in acts of torture and other coercive interrogation techniques, and will examine such practises vis-à-vis their public security justifications. This section will draw on specific examples, for instance the treatment of the Guantánamo Bay and Abu Ghraib detainees as well as other reported acts of torture worldwide, so as to assess whether or not it can still be argued that the instruments in place for the prohibition of torture still satisfy the criteria of a jus cogens norm. It is the belief that, if the international sources of law prohibiting the use of torture and cruel, inhuman or degrading treatment or punishment amount to being a peremptory norm binding on the entire international community, then the actions of states in response to the September 11 attacks will be rendered a breach of an international law that amounts to a norm of jus cogens, rather than removing the laws from the scope of such norms.

Sources Of International Law

One can not just proclaim that torture is a form of jus cogens and be done with the matter. The means by which a norm or law becomes jus cogens, will be examined in Part II of this essay, but the existence of international law and the debate around how to determine such laws precludes any such debate on jus cogens. Indeed, the Latin translation of the phrase is ‘compelling law’, thus it must be agreed that before such a norm can be created, it must first be recognised as a law. Article 38(1) of the Statute of the International Court of Justice is widely regarded as the accepted statement of the sources in international law:

“the Court, whose function it is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognised by the contracting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognised by civilised nations; (d) subject to the provisions of Article 59, judicial decision and the teachings of the most highly qualified publicists of the various nations, as a subsidiary means for the determination of rules of law.”

As such, Part I of this essay will begin by giving a brief explanation of how each source of law operates before explaining how each source relates to torture. While only descriptive in nature at this stage, such understanding is necessary to grasp the debate that follows regarding jus cogens and the prohibition of torture. Moreover, while, it will be shown, judicial decisions and scholarly writings form merely law determining – rather than law creating – instruments, specific note should be paid to this branch if international law as it is in this arena that, following the attacks, scholars and academics are shaping the way in which the international community view acts of torture. Thus, discussion in Part I of the essay on judicial decisions and academic writings will be limited to decisions and writings that pre date the Attacks.

As it stands, all treaty laws relating to torture predate the September 11 attacks and have been accepted, ratified and entered into force. There is no question as to the validity of these treaties and there is, therefore, no need for comment on the creation and manifestation of binding treaties, save for mention of their definition and reference to reservations.

Treaties

The Vienna Convention on the Law of Treaties (VCLT) defines a treaty in Article 2 as:

“…an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”

Article 26 VCLT further sets out the principle of pacta sunt servanda. That is “[e]very treaty in force is binding on the parties to it and must be performed in good faith”.

A number of international instruments exist with the aim of prohibiting and eradicating acts of torture and cruel, inhuman or degrading treatment or punishment. This essay will first pay note to the international treaties that provide general provision for the prohibition of torture. Firstly, the Universal Declaration of Human Rights (UDHR) was drafted by the Commission on Human Rights and was accepted by the General Assembly in Resolution 217 A (III). It was the first document to cover human rights in such a vast scope and Article 5 of the Declaration provided that “no on shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” As a declaration, its provisions were not binding on States, but the passing of time, and the status of the Declaration as forming the constitution of the human rights movement, has seen many of its provisions being accepted as customary international law. Two treaties stemmed from the Declaration which developed the protection of human rights, enshrining them in a legally binding set of international documents which have now been accepted and ratified by the entire international community. These are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) which came into force in 1976. Article 7 of the ICCPR uses the very same language as the UDHR to prohibit acts of torture. However, Article 4 provides a general derogation clause relating to the provision of the Covenant allowing States parties to the Covenant to suspend their obligations in times of public emergency:

“in times of public emergency which threatens the life of the nation and which is officially proclaimed, states party to the present covenant may take measures derogating from their obligations under the present covenant, to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the grounds of race, colour, sex, language, religion or social origin.”

Article 4(2), however, provides a list of non derogable provisions within the Covenant and included here is Article 7, the prohibition of torture.

The discussion in Part III will look in at the use of international humanitarian law – the laws of armed conflict or war – as a lex specialis rule in order to avoid obligations under human rights laws. However, it is worth noting here the references to torture within this arena. The Four Geneva Conventions of 1949 regulate the treatment of wounded and sick (First Convention); shipwrecked (Second Convention); prisoners of war (Third Convention); and civilians (Fourth Convention). Common Article 3 of all four Conventions relates to the treatment of all peoples not taking an active part in the hostilities and prohibits “…in particular murder of all kinds, mutilation, cruel treatment and torture;…” further reference can be found to torture in all four Conventions when referring to the consequences of grave breaches.

The prohibition of torture exists not only on an international plane but also regionally. The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) prohibits torture, or inhuman or degrading treatment or punishment in Article 3. Further more, while the instruments discussed thus far contain general provisions for the prohibition of torture, a number of instruments exist with the intention of defining the act and further securing its prohibition. The 1987 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) defines torture in Article 1(1) as:

“…any act by which sever pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the legislation of or with the consent or acquiescence of a public official or other person acting in a lawful capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

Further provisions of the CAT provide that absolutely no derogation from the Convention is permitted, including during times of war; that states must make the act of torture an offence in their domestic systems; and that each State Party shall undertake to prevent such acts of torture. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which entered into force in March 2002, set up a Committee for the prevention of torture with the aim of investigating allegations of torture and other inhuman or degrading treatment or punishment within Member States.

The explanation of international and regional torture prevention discussed here represents just a few examples of how the international community view and define such acts. Further investigation would highlight a number of other instruments that are designed to prevent and prohibit torture, but the aim here is to give an insight into how such instruments operate and to illustrate the intentions of the States Parties, at least at the time of the creation the instruments, was that the freedom from torture would be an absolute right. It is also worth noting here how reservations to treaties operate. Before a state ratifies, or even upon ratification, a state may put forward a reservation to any of the provisions detailed within the instrument, which may limit its obligations within the scope of that provision. However, a state may, under no circumstances enter a reservation to a treaty that conflicts with the main objective or purpose of the treaty. For example, a state could not enter a reservation that it does not consider itself bound by the definition of Torture detailed in Article 1 of the CAT.

Customary International Law

Customary international law, unlike treaties, takes an unwritten form and, therefore, involves further investigation to ascertain exactly how it is created. The principles of customary law can be found primarily in international case law, but as Article 38 of the Statute of the ICJ states, it is a general practice that is accepted as law. This brings two factors into play. First that there must be a general practice by States (the State practice element); second, practice must be accepted as law. This latter element has been described as a belief on the part of the State, that the practice is prescribed by law; otherwise known as opinio juris.

A number of cases have suggested varying opinions on what amounts to a general practice. In the Asylum case the International Court of Justice (ICJ) regarded general practise as “…a constant and uniform usage practised by the states in question.” This opinion received support in both the Anglo-Norwegian Fisheries case and the North Sea Continental Shelf cases. However, clarification on this matter was given in the contentious case of Nicaragua v United States in which the court opined that the practice need not be in absolute conformity with the rule, but rather that it is, in general, consistent with the rule, and any deviation denotes a breach of the rule, not the creation of a new one. For the purpose of the current debate relating to torture, it is also worth noting how a domestic law may give rise to customary international law. In the Scotia case it was agreed that, where the majority of other States had legislated the same provision in the same manner, this could give rise to a customary international law.

Opinio juris: the action of a state, in the belief that there is a rule of law that makes such actions obligatory. In the Lotus case a collision between two ships on the high seas – one French the other Turkish – led to the death of several people aboard the Turkish ship. The French officer of the watch was arrested by the Turkish authorities and charged with manslaughter. The French government argued that only the French State had jurisdiction to try the officer and used past case law, in which other States (in similar circumstances) had refrained from prosecution, thus demonstrating evidence of a general practice and customary law. The Permanent Court of International Justice (PCIJ) disagreed; stating that in conjunction with a general practice there must be a belief that it is regarded as obligatory. Finally, it is worth noting briefly that a state may demonstrate opinio juris through a tacit acquiescence with a rule. Moreover, for a state not to be bound by a customary law, it must demonstrate evidence of a continued protest to the rule from the point of its creation.

So, how has the law prohibiting the use of torture become customary? It has been stated that the UDHR, although not legally binding, is the backbone of the constitution of the human rights movement and much of its content has become legally binding through customary international law. The reality that all countries are party to the Declaration and the subsequent Covenants; almost three quarters of the Worlds’ nations are party to the CAT; and all Members of the Council of Europe recognise and accept the ECHR, ipso facto suggests that they believe the prohibition of torture is a legal obligation. Moreover, Article 4 of the CAT compels states to make torture a criminal offence under its domestic legal system and, while some states may have found opportunity to offer the definition of torture a wide interpretation, it has been legislated in much the same way in many states, with similar definitions and punishment for such acts.

General Principles Of International Law

Where the court faces a problem for which there is no law dealing with the exact facts of the case it may, in such events, resort to analysis of other existing rules or general principles that guide the legal system (be they from justice, equity or considerations of public policy) in order to make a ruling, thus creating new law. There are various recognised general principles including Reparation, good faith, estoppel, pacta sund servanda, equity, principles of humanity, procedure and evidence.

Judicial Decisions

Judicial decisions and the academic writings of the most eminent scholars, as noted above, are intended only to be a means of determining the law and not creating new law. Notwithstanding the fact that the system of international courts such as the ICJ do not incorporate a doctrine of precedent – as is found in most domestic legal systems – it is still common practice for judges to follow closely, previous decisions of the [ICJ] Court. It may be the case that, in practise, a court’s attempt to interpret an international law may, indirectly, give rise to a new law with the possibility that this may be recognised at a later date in the creation, for example, of new treaties. Of course, it may also be the case that such judicial interpretations are discarded as incorrect. However, it must be noted that the principle role of the Court is to assess its previous case law and its relevance vis-à-vis the facts of the case before it.

In terms of scholarly writings, Shaw notes that the rise in positivism has confined the use of the textbook or article to statements of the law rather than the source. Nonetheless, jus cogens is rooted largely within the ambit of natural law, the birth of which is found in the writings of philosophers such as Vattel and Kolb. Thus, this branch of international law will contribute substantially to the discussion in Part II on the concept of jus cogens and its place within international law.

Before departing from this discussion, however, it is necessary to provide some illustrative case examples that have come before international courts relating to the use of torture. In Ireland v UK the European Court of Justice (ECtHR) examined the use of five techniques of ‘interrogation in depth’ within the scope of Article 3 of the ECHR prohibiting the use of torture or inhuman or degrading treatment or punishment. The Court investigated the five techniques and found that, while they could be reconciled with the law prohibiting inhuman and degrading treatment, it could not amount to the definition of torture. The Court did find the techniques to violate Article 3 of the Convention, but it is interesting to note that, while the Convention permits no derogation for torture or inhuman or degrading treatment or punishment, the two categories still amount to different practices; that is, at least in the eyes of the judiciary. Moreover, in Soering v UK the ECtHR determined whether or not, in extraditing the applicant to the United States to face the death penalty for murder, the time spent on death row and the subsequent onset of death row phenomenon could breach Article 3 of the Convention, but never differentiated between the treatment as torture or inhuman or degrading treatment or punishment.

While the aforementioned cases deal with accusations of torture and demonstrate the European approach to its prohibition, at the International Criminal Tribunal for the Former Yugoslavia (ICTY), in the case of Prosecutor v Anto Furundzija, the Tribunal said of the prohibition of torture:

“Because of the importance of the values it [prohibition of torture] protects, this principle has evolved in to a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even “ordinary” customary rules.”

Conclusions

What has become evident from the investigation of the sources of international law is that the principle of the prohibition of torture is much more than a written provision of the treaties of international law. The provisions of said treaties that make the prohibition absolute and non derogable; its further manifestation in international customary law; and its recognition in international cases (specifically that of Furundzija) all stand as testament to the notion that the prohibition of torture is a higher norm of jus cogens and States must strive to uphold the principle. However, State practice and the approach of courts to the international provisions illustrates an inclination to avoid the use of the term ‘torture’ and assert, albeit implicitly, that the acts fall within the realms of ‘inhuman or degrading treatment or punishment’. This fact will become ever clearer in Part III of the essay.

Jus Cogens

It is believed that within international law two types of rules exist – jus dispositivum and jus cogens. The former allows international rules and provisions to be excluded or modified at the will of contracting States, while the former allows for absolutely no derogation whatsoever. This section of the essay will look specifically at the existence and role of jus cogens in international law; firstly, taking into consideration how laws of jus cogens have came to being through exponents of the system of natural law. This will also look at the interrelationship between natural law, jus cogens and legal positivism. Second, discussion will turn to the role of jus cogens in modern international law and the means of identifying them. Finally, the essay will look at the characteristics of the prohibition torture vis-à-vis the criteria for identifying peremptory norms, with the aim of showing that the prohibition of torture, at least prior to September 11, is a jus cogens norm.

Natural Law Origins And Development

Partisans of the school of natural law argue that it exists in nature and therefore applies in the same way everywhere: “[Natural law is]an order or a disposition which human reason can discover and according to which the human will must act in order to attune itself to the necessary ends of the human being”. In the 19th and 20th centuries, secular natural law became predominant over religious and cultural natural law marking the birth of the universality of natural law. Christian Wolff introduced the theory of a “necessary law of nations which consists of the law of nature applied to nations” and the belief that States cannot alter or free themselves from the law of nations at will. Vattel also used the law of nations to identify valid and invalid treaties and customs expressing that where they are ‘indifferent’ – that is to say not within the scope – of the law of nations, then they can be concluded at the discretion of the contacting States, but any treaty or custom in contradiction with the law of nations is null and void. Moreover, the same principle would stand even in relation to laws that are lex specialis, where a special rule of law is said to prevail over general rules. Jus dispositivum or legal positivism requires that all law be written or enacted. Hence, it will not recognise the unwritten, universally applying rules of natural law. In that sense one finds it difficult to see how the principle of jus cogens, also of an unwritten nature, would reconcile itself against the principle of legal positivism. Indeed, Orakhelashivili notes the need to investigate whether such principles can prevail. The belief that legal positivism will not recognise unwritten rules ipso facto asserts the notion that just cogens norms can not exist unless expressly provided for in written laws and treaties. However, Parker and Neylon point out that the development of positivism has led to its weakening in the sense that it “necessarily requires using moral considerations or value judgements as to which is the better theory about the nature of the law”. As such, it is their assertion that the two theories are complementary, with increasing evidence being show that positive law prevails until confronted with an unjust law, at which point natural law and, possibly, jus cogens provide definitive answers, rendering the positive law void.

Prior to the investigations of the aforementioned scholars, Alfred Verdross had attempted to address the issue. He illustrated the views of eminent scholars and judges prior to the Second World War, particularly the belief held by Guggenheim who rejected arguments that all treaties contra bonos mores (against the public order) are void. He then demonstrated how, following WWII, a shift occurred in the approach to peremptory norms through reference by the International Law Commission (ILC) in the Draft Articles on the Law of Treaties, which was also subsequently accepted by Guggenheim:

“A treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

What is clear from this debate is that while jus cogens does not mimic natural law per se, it does exist in similar states and the universality of such norms – that is, they are necessary in the public order – has led to a complementary interrelationship with legal positivism. States are indeed free to regulate their relations through the creation of treaties and legislation, provided that they are not unjust. However, what amounts to an unjust law prohibited by a jus cogens norm has caused considerable debate. The differentiation between a general norm of international law and a general norm of international law that exists as jus cogens appears quite unclear and this issue must be addressed.

Jus Cogens In Modern International Law

Keeping ‘a foot in the door’ of natural law, it has been suggested that jus cogens norms are created on a non consensual basis, so as to bind the international community regardless of their acceptance of the norm. However, Article 53 of the 1969 Vienna Convention on the Law of Treaties refers to treaties conflicting with a peremptory norm of general international law:

“A treaty is void if at the time of its conclusion it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

Danilenko examined the theories behind the creation of jus cogens norms and suggested two dominant arguments. First that the concept of jus cogens introduces an entirely new source of international law; and, second, the theory that existing sources are modified to allow the adoption of absolute rules by majority consensus for the purposes of jus cogens. The former argument was based on the wording of Article 53. In suggesting that a peremptory norm has to be accepted and recognised by the international community as a whole, a new category was created and that Article 38 of the Statute of the ICJ did not represent the international community as a whole. Danilenko’s reasoning in dispelling this theory was twofold. First, there was a tendency for representatives at the Vienna Conference on the Law of Treaties to speak in terms of established sources – treaties and custom – and regarding jus cogens as a product of existing sources. Second, in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua the court regarded the recognition of the prohibition on the use of force as peremptory, not as recognition of a new source but as creation on the basis of existing treaty and customary law.

The latter argument, again based on the wording ‘the international community as a whole’, purported that “the community as a whole may create rules which will bind all its members notwithstanding their possible individual dissent,” This theory has had strong support both in the field – used in the South West Africa Cases to demonstrate that prohibition of Apartheid, like genocide, had become a peremptory norm through the collective will of the international community as a whole and verging on unanimity and that the dissenting few can not escape its binding authority – as well as in academic circles. Scholars maintain two theories to the non-consensual wording of Article 53. Firstly, that the essence of jus cogens is that it must operate as regards all states without exception. This theory was flawed on the basis that it assumes that by accepting jus cogens States have reached agreement on a constitutional principle that peremptory norms bind the international community notwithstanding the possibility of dissent. Secondly, it is argued that the wording of Article 53 supports a non-consensual nature of peremptory norms. The Chairman of the Draft Committee stated that acceptance and recognition of a very large majority of States would be enough to enforce a peremptory norm. However, Danilenko notes that the authority of the statement does not mean that legal obligations can simply be forced upon all members of the international community without consent. Indeed, he emphasises a number of points that support the consensual nature of jus cogens. Firstly, jus cogens is a type of general international law and as no source exists for creating general international law in the form of jus cogens the it must be done within the framework of the existing sources which essentially require consent. Second, the inclusion of both “accepted” and “recognised” in Article 53 enforces the need for consent by States. Finally, this is further supported in the ILC’s reference to international crimes which require the recognition of all States. It must be noted, however, that a small number of dissenting states does not mean that they will evade the authority of the norm. Hence, Danilenko’s model of jus cogens suggests that to become a peremptory norm the rule must first pass the normative tests for rules of general international law followed by its acceptance and recognition by the international community as a whole. This, he notes, provides the dissenting minority the chance to disassociate itself from the binding character of the peremptory norm. However, one must argue, in line with the natural law theories, that if a dissenting minority exists and that minority is therefore not bound, then the norm can not be peremptory. Moreover, he suggests that if it is the case that acceptance and recognition of the norm must be by all essential components of the international community, then this acceptance is verging on unanimity. While it was expressed that an individual state could not amount to an essential component, the criteria would still set a very high threshold. One must argue here that the non-consensual nature of jus cogens falls closest to the reality in that acceptance by the large majority can bind the dissenting minority.

In light of the difficult nature of determining the characteristics of a peremptory norm, Janis attempts to give an example of an existing norm that is the definitive embodiment of a peremptory norm. That is the principle of pacta sunt servanda. He argues that the principle is nether a customary nor a treaty norm but rather a norm of the fundamental legal system from which the two derive. It is jus cogens in the natural law sense that it “is natural to the international community of states because there would be no such community without such a rule.” In light of the complex nature of jus cogens it would be prudent for this essay to examine the nature of torture as a possible peremptory norm. Such discussion is pertinent to the debate in Part III regarding the alleged uses of torture by States as a m


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