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The Prohibition of Torture: Legal Certainty and Interpretation of Peremptory Norms in International Law

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The Prohibition of Torture: Legal Certainty and Interpretation of Peremptory Norms in International Law THE PROHIBITION OF TORTURE: LEGAL CERTAINTY AND INTERPRETATION OF PEREMPTORY NORMS IN INTERNATIONAL LAW. Massimo Fattori ANR – 966813 / SNR – 2023523 June, 2019 Tilburg University Faculty of Law Department of European and International Public Law 1 TABLE OF CONTENTS: Ch. 1 – INTRODUCTION................................................................................................3 1.1 – The Legal Background of this Research...........................................................................3 1.2 – Relevant Scholarly Insights...............................................................................................4 1.3 – Outline of the Thesis.......................................................................................................10 Ch. 2 – EXISTENCE OF PEREMPTORY NORMS IN INTERNATIONAL LAW….13 2.1 – The Development of International Peremptory Norms...................................................13 2.1.2 – Universality of Norms..................................................................................................14 2.1.3 – The Prohibition of Derogation.....................................................................................15 2.1.4 – the Invalidity of Treaties..............................................................................................16 2.1.5 – Similarities with Natural Law and Customary International Law...............................17 Ch. 3 – THE UNCERTAINTY OF IUS COGENS........................................................18 3.1 – Overview.........................................................................................................................18 3.2 – The Question of Universality..........................................................................................19 3.3 – The Question of Consent.................................................................................................21 3.4 – The Question of Identification of Norms........................................................................23 3.5 – The Question of Content.................................................................................................26 3.6 – The Ius Cogens Prohibition Against Torture..................................................................28 Ch. 4 – THE CASE LAW..............................................................................................32 4.1 – Overview.........................................................................................................................32 4.1.1 – The Gäfgen Case Facts.................................................................................................32 4.1.2 – The Legal Analysis.......................................................................................................34 4.1.3 – Relevant Scholarly Insights..........................................................................................36 4.1.4 – Conclusions: How the Gäfgen Case Relates to this Research.....................................38 4.2 – Overview of the Second Case.........................................................................................39 4.2.1 – The Torture Memos Case Study...................................................................................40 4.2.2 – The Legal Analysis.......................................................................................................41 4.2.3 – Relevant Scholarly Insights..........................................................................................48 4.2.4 – Conclusions: How the Memos Case Study Relates to this Research...........................51 4.3 – Final Considerations........................................................................................................52 Ch. 5 – CONCLUSION................................................................................................54 Bibliography.............................................................................................................................57 2 Ch. 1 – INTRODUCTION 1.1 – The legal background of this research. Rules of ius cogens are peremptory rules of international law. These embody what could be regarded as ‘uncompromisable moral principles’.1 As Lowe points out, these norms are morally or logically necessary in the international order. Thus, they do not ‘arise’. They are implicit in the legal system.2 For instance, the prohibition on genocide amounts to ius cogens. As an example, we can think of a new-born treaty between States where they agree to commit genocide. Whether there exists a legal document prohibiting genocide or not, the sitting tribunal deciding upon its applicability would nevertheless reject that treaty. This would happen regardless of any specific legal rule requiring the tribunal to do so. Thus, ius cogens norms rely upon morality and necessity. It is precisely this peculiar nature of ius cogens norms that may generate significant issues with respect to their applicability and enforceability. On the other hand, this extra-ordinary nature of ius cogens does not imply that a legal vacuum surrounds this body of law. Instead, they are incorporated in several international agreements and treaties. Courts are found to generally respect and enforce these norms. In addition, no State could, or should, have the chance to object to them. Since these norms find their origins in moral principles, they are strong and clear-cut.3 This means no exceptions are allowed. Deviances shall not be tolerated within the international legal system. It is against this premise that ius cogens peremptory norms are considered inderogable. There is no possibility to derogate – to justify any deviations from the norms.4 If a norm acquires the status of ius cogens 1 Vaughan Lowe, International Law (Oxford University Press, 2007) 58. 2 Ibid. 3 Ibid. p. 59. 4 See Ch. 2. 3 rule, then it achieves a ‘super-normativity’ that distinguishes it from ordinary rules of public international law.5 1.2 – Relevant scholarly insights. For the purpose of this research, this thesis will now turn to describe a thorough analysis of four relevant corners of scholarship. In fact, many are the authors who delved deeply into the facades of ius cogens norms and fruitfully contributed to their legal understanding. Besides, peremptory norms can be understood under several perspectives. Each viewpoint adds up to the whole picture by building, brick by brick, the structure of this sui generis body of law. Cassese can be considered as one of the most relevant scholars who tried to unravel and clarify controversial aspects of ius cogens. Cassese acknowledges the challenges of ius cogens. He highlights the disagreement among States on how to establish birth and enforceability of a peremptory norm. He stresses the extent of the domestic impact of such norms and discusses the existing judicial remedies for any eventual dispute.6 Cassese’s main contribution is found in the framework of domestic impact of peremptory norms. In his work he stresses that ius cogens rules may play a true role only if they have effective and real bearing on the national legal orders of States.7 In 1969, The Vienna Convention on the Law of Treaties (heretofore, the Vienna Convention) disregarded this aspect. Nevertheless, it is crucial for depicting a clear picture of ius cogens. Cassese analyses the Furundzija case and concludes that the resulting jurisprudence is paramount for understanding the domestic perspective of ius cogens. First, the Trial Chamber at the International Criminal Tribunal for the Former Yugoslavia (ICTY) 5 Lowe (n 1), p. 60. 6 Antonio Cassese, Realizing Utopia: The Future of International Law (Oxford Scholarship Online, 2012) 158. 7 Ibid. p. 167. 4 established certain legal consequences at the national level:8 States are obliged to pass domestic legislation outlawing illegal behavior and prosecuting perpetrators, they are obliged to not pass amnesty laws with respect to crimes prohibited by ius cogens and they have to reject extradition or expulsion of individuals towards States that act contrary to ius cogens.9 Cassese emphasizes that the role of the ICTY Trial Chamber was significant in recognizing the domestic impact of peremptory norms. However, the Chamber did not go so far as to posit that ius cogens rules have immediate and direct bearing on national legal systems in the sense of invalidating any law, act or decision taken at national level and clashing with ius cogens norms.10 The leading question for Cassese is then, how to make ius cogens operational at the national level. In this regard, he recommends States to pass legislation that might incorporate peremptory legal norms. In doing so, ius cogens norms may automatically be binding in municipal orders, and are then capable of overriding any arising domestic legislation that can be contrary to ius cogens.11 In this perspective, Cassese refers to domestic hierarchy of laws: ius cogens norms now incorporated in national legal systems hold a constitutional rank – the highest achievable. This aspect of peremptory norms elucidated by Cassese is indeed of massive importance within the opaque picture of ius cogens rules. The domestic element is to be considered relevant for the understanding of the whole body of ius cogens norms. Not only do they bear a peculiar role at the international level but also might imply serious legal consequences at domestic level. If Cassese sheds a light on the domestic perspective of ius cogens norms, other authors are concerned with the overlapping of peremptory norms
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