Classifying norms as ‘Jus cogens’: Mere rhetoric? Or actually useful?

Posted on Actualizado enn

Over the past three months, I’ve been working with a friend to develop prosecution strategies for sexual violence in wartime, by drawing upon jurisprudence from the ICTY, the ICTR and the ICC. We’ve been surveying extracts from case laws, scholarly articles and books. There is copious material through written judgments and statutory provision that speaks tremendously of how sexual violence falls on the wrong side of law as being a constituent crime of ‘war crimes’, ‘genocide’, ‘crimes against humanity’ and ‘torture’. But what caught my eye was an interesting theory I chanced upon: on how the prohibition on sexual violence could be bracketed under the ambit of jus cogens.

Jus cogens norms are those from which no derogation shall be permitted, much less tolerated. There is no clear agreement as regards precisely which norms are jus cogens, nor how a norm reaches that status, but it is a generally accepted notion that jus cogens includes the prohibition of genocide, maritime piracy, slavery, torture, the prohibition of the use of force and the threat to use force, and wars of aggression and territorial aggrandizement. The most famous jus cogens norm is the prohibition of the use of force, and the threat to use force in international relations, a rule that is both crystallized in treaty law and in Judicial opinion.

For a jus cogens norm to be created, the principle must first be established as a rule of international law and then recognized by the international community as a peremptory rule of law from which no derogation is permitted. The number of peremptory norms though generally considered limited have at no point been exclusively catalogued. They are not listed or defined by any authoritative body, but arise out of case law and changing social and political attitudes. Generally included are prohibitions on waging aggressive war, crimes against humanity, war crimes, maritime piracy, genocide, apartheid, slavery, and torture.

As much as there is information on what norms fall under the ambit of jus cogens, there is very little literature (at least where I looked!) on what happens if these norms are derogated from. There are still states that use torture as a matter of policy. There are still states that dwell on war-mongering tactics and remain steadfast in their campaigns of violating territorial integrity. There are still states that have orchestrated or sponsored genocide without anyone taking them to task. Some states face the wrath of sanctions and embargoes, but for the majority, many states seem to continue unhindered. This is often attributed to the heady mix of two things: the dynamic vagaries of politics, and the lack of enforcement machinery in international law. One will naturally, therefore, be given to wonder why there is segregation at all between the two kinds of customary norms if one is not treated differently from the other when the norms are observed in the breach. And yet, there are some interesting views that a few people shared with me, to the effect that simply because murders continue to happen does not mean that criminal law has egregiously failed.

I’d like to hear some views on what you think on this: does the inclusion of the prohibition of sexual violence in wartime (on the lines of prohibitions of genocide et. al.) under the ambit of jus cogens actually make a difference? Or is it just another way for the world community to reiterate its commitment to fighting sexual violence in war, on paper?

Source: Global Ethics Network

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