The concepts of jus cogens and erga omnes norms and their legal consequences

When discussing crimes subject to universal jurisdiction, another question that arises is whether there exists a link between universal jurisdiction and jus cogens.

Some scholars even argue that “an independent theory of universal jurisdiction exists with respect to jus cogens international crimes”.⁴⁰⁸ It is generally accepted that some international crimes, namely core crimes and torture, are violations

404 Aust, Handbook of International Law (2^nd ed., Cambridge: Cambridge University Press, 2010), at 250 (emphasis added).

405 See the Convention on the protection of the environment through criminal law, adopted by the Council of Europe on 4 November 1998.

406 See Naqvi, supra note 402, at 31-32.

407 Cryer et al., An Introduction to International Criminal Law and Procedure (Cambridge: Cambridge University Press, 2010), at 4-5.

408 See Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’, 42 Virginia Journal of International Law (2001) 81-162, at 104.

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of peremptory norms of international law (jus cogens).⁴⁰⁹ There is some controversy however on the consequences of the qualification of a crime as a jus cogens crime, and in particular on its connection with universal jurisdiction.

Indeed, Article 53 of the Vienna Convention on the Law of Treaties merely states that “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. […] A peremptory norm of international law is a norm accepted and recognized by the international community of states from which no derogation is permitted and which can be modified only by a subsequent norm of general law having the same character.”

In other words, states cannot derogate from peremptory norms.

Jus cogens or peremptory norms of general international law may result in obligations erga omnes.⁴¹⁰ The notion of obligations erga omnes was introduced by the International Court of Justice in the 1970 Barcelona Traction case.⁴¹¹ The Court operated on a distinction between the obligations of a state toward the international community as a whole, and those arising vis-à-vis another state.

The Court then held:

By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.

Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law . . . others are conferred by international instruments of a universal or quasi-universal character.

Although this case was in fact not related to international crimes or to the jurisdiction of states,⁴¹² some scholars inferred the universality principle from it.

409 See Naqvi, supra note 402, at 26. See also ICTY, Appeals Chamber, Delalić and others, § 172, footnote 225, in which the Court noted that “in human rights law the violation of rights which have reached the level of jus cogens, such as torture, may constitute international crimes”.

410 M. Boot, Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court (Antwerpen: Intersentia, 2002), at 55.

411 It should be noted that the erga omnes obligations and jus cogens norms do not necessarily correspond. Violations of jus cogens norms do not necessarily imply a responsibility of states vis-à-vis the international community. However, “the primary rules which belong to jus cogens and erga omnes” are basically the same. See S. Kadelbach, ‘The Identification of Fundamental Norms’, in Tomuschat and Thouvenin (eds), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Leiden: Martinus Nijhoff Publishers, 2006) 21-40, at 25-27.

412 See Henzelin, Le principe de l’universalité en droit pénal international : Droit et obligation pour les Etats de poursuivre et juger selon le principe de l’universalité (Geneva, Brussels : Helbing and

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Randall, for instance, suggests a link between the universality principle and the jus cogens and erga omnes doctrines. He argues that:

violations of fundamental obligations offend all other states.

Violations of obligations erga omnes and jus cogens norms affect all states, whether committed by state actors or individuals. Indeed, domestic jurisdiction over those violations may draw support from the Barcelona Traction case dictum, which, though not without ambiguity, may support a type of action popularis, enabling any state to vindicate rights common to all. If that dictum supports judicial remedies against state offenders, it logically also supports judicial remedies against individual offenders, thus complementing the universality principle. In this way, the erga omnes and jus cogens doctrines may buttress the universal jurisdiction of all states.⁴¹³

The idea that the erga omnes or jus cogens character of a crime has, as consequence, “an entitlement to prosecute”,⁴¹⁴ was confirmed in several other ICJ judgments. In the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case, the Court held that “the rights and obligations enshrined by the [Genocide] Convention are rights and obligations erga omnes. The Court notes that the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention”.⁴¹⁵

In 1998, the ICTY was the first international criminal court to consider that there was a clear connection between a jus cogens norm and the exercise of universal jurisdiction. In the Furundžija judgment, the ICTY Trial Chamber held that:

one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction. Indeed, it would be inconsistent on the one hand to prohibit torture to such an extent as to restrict the normally unfettered treaty making power of sovereign States, and on the other hand bar States from prosecuting and punishing those torturers who have engaged in this odious practice abroad. This legal basis for

Kichtenhahn/Bruylant, 2000), at 396-397 and R. Higgins, Problems and Process : International Law and How We Use It (Oxford : Calrendon Press, 1994), at 62.

413 K. C. Randall, ‘Universal Jurisdiction under International Law’, 66 Texas Law Review (1988) 785-851.

414 See Naqvi, supra note 402, at 29.

415 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), at 616,

§ 31.

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States’ universal jurisdiction over torture bears out and strengthens the legal foundation for such jurisdiction found by other courts in the inherently universal character of the crime. It has been held that international crimes being universally condemned wherever they occur, every State has the right to prosecute and punish the authors of such crimes.⁴¹⁶

This position is supported by a number of scholars.⁴¹⁷ Cassese, for instance, defended the idea that one of the legal effects of jus cogens is to grant to national courts universal criminal jurisdiction over the alleged authors of acts whose prohibition have this peremptory character.⁴¹⁸ A few scholars go even further and consider that jus cogens norms involve erga omnes obligations which entail obligations on states to prosecute these jus cogens crimes at the national level, namely to establish and exercise universal jurisdiction.⁴¹⁹ Bassiouni argues that the “implications of jus cogens are those of a duty and not of optional rights”.⁴²⁰ He considers that the international crimes that rise to the level of jus cogens constitute obligatio erga omnes, which are inderogable and include inter alia the obligation to exercise universal jurisdiction over perpetrators of such crimes.⁴²¹ He thus defends the position that one of the legal consequences of the jus cogens nature of these norms is not only the right of states to exercise universal jurisdiction but the duty for any and all national systems to resort to universal jurisdiction when necessary.⁴²²

This position also finds some support in national jurisprudence. In the 1999 Pinochet III case, for instance, the judges ruled that the violation of a jus cogens norm would result in the exercise of universal jurisdiction. Lord Browne-Wilkinson held that “The jus cogens nature of the international crime of torture

416 ICTY, Trial Chamber, Furundžija, Judgement, IT-95-17/1-T, 10 December 1998, § 156. Similar findings can be found in the ICTY judgments Mucić and Others (16 November 1998, IT-96-21-T, § 454) and Kunarac (22 February 2001, IT-96-23-T and IT-96-23/1, § 466).

417 See A. Orakhelashvili, Peremptory Norms and the Allocation of Jurisdiction to States (Oxford: OUP, 2008); C. Bassiouni, ‘International Crimes, Jus Cogens and Obligatio Erga Omnes’, 59 Law and Contemporary Problems (1996), at 63 ff; Randall, supra note 412, at 830; See Naqvi, supra note 402, at 29.

418 A. Cassese, International Law (2^nd ed., Oxford: Oxford University Press, 2005), at 208.

419 See Naqyi, supra note 402, at 29; M. Garrod, ‘The Protective Principle of Jurisdiction over War Crimes and the Hollow Concept of Universal Jurisdiction’, 12 International Criminal Law Review (2012) 763–

826, at 815 ff.

420 Bassiouni, Introduction to International Criminal Law (2^nd ed., Leiden, Boston: Martinus Nijhoff Publishers, 2013), at 237.

421 Bassiouni, ‘International Crimes, Jus Cogens and Obligatio Erga Omnes’, 59 Law and Contemporary Problems (1996) 63-74; Bassiouni, supra note 419, at 237; See also Randall, supra note 411, at 785-851.

422 Bassiouni, supra note 419, at 935.

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justifies states in taking universal jurisdiction over torture wherever committed”.⁴²³ Referring to the Demjanjuk v. Petrovsky case⁴²⁴, he went on to say that “International law provides that offences jus cogens may be punished by any state because the offenders are common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution”. In the same vein, Lord Hope held that the status of a norm of jus cogens “compels all states to refrain from such conduct under any circumstances and imposes an obligation erga omnes to punish such conduct”.⁴²⁵ In the 2005 Scilingo case, a Spanish court held that crimes against humanity constituted a violation of jus cogens norms that injure the international community as a whole, with the consequence that there arises a universal claim to the repression of such violations.⁴²⁶ Finally, in a Belgian decision, a judge held that:

The prohibition on crimes against humanity was part of customary international law and of international jus cogens, and this norm imposes itself imperatively and erga omnes in our domestic order.

[…] Even in the absence of treaty, national authorities have the right – and in some circumstances the obligation – to prosecute the perpetrators independently of the place where they hide. […] we find that, as a matter of customary international law, or even more strongly as a matter of jus cogens, universal jurisdiction over crimes against humanity exists, authorizing judicial authorities to prosecute and punish the perpetrators in all circumstances.⁴²⁷

423 Lord Browne-Wilkinson, ‘United Kingdom House of Lords: Regina v. Bartle and The Commissioner of Police for The Metropolis and Others Ex Parte Pinochet’, in International Law Materials (24 March 1999) 581-663, at 589; See also Lord Hope of Craighead, ibid., which held that “there was already [in 1992] widespread agreement that the prohibition against official torture had achieved the status of a jus cogens norm”.

424 United States, Demjanjuk v. Petrovsky (1985) 603 F. Supp. 1468, 776 F. 2d. 571.

425 Judgment, Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet; Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet. On Appeal from the Divisional Court of the Queen's Bench Division, Lord Hope.

426 G. Pinzauti, ‘An Instance of Reasonable Universality: The Scilingo Case’, 3 Journal of International Criminal Justice (2005) 1092-1105.

427 Translation in L. Reydams, ‘Universal Criminal Jurisdiction: The Belgian State ofAffairs’, 11 Criminal Law Forum (2000) 183–216, at 208. According to the original French version “le crime contre l’humanité est consacré par la coutume internationale et fait partie, à ce titre, du jus cogens international qui s’impose dans l’ordre juridique interne avec effet contraignant « erga omnes” […]

Même en dehors de tout lien conventionnel, les autorités nationales ont le droit, et même, dans certaines circonstances, l’obligation de poursuivre les auteurs de tels crimes indépendamment du lieu où ils se trouvent […] nous considérons qu’il existe une règle coutumière du droit des gens, voire de jus cogens, reconnaissant la compétence universelle et autorisant les autorités étatiques nationales à

It should be noted that there is nevertheless some controversy as to whether violations of jus cogens norms automatically confer the right to exercise universal jurisdiction.⁴²⁸ Some legal scholars reject the link between universal jurisdiction and the concept of erga omnes.⁴²⁹ In particular, it is argued that violations of erga omnes obligations presuppose that a state has violated a rule of international law;

yet, acts of genocide, crimes against humanity and war crimes may be committed by persons whose acts are not attributable to any state.⁴³⁰