Jus Cogens Under International Humanitarian Law


International humanitarian law is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States – treaties or conventions –in customary rules, which consist of State practice considered by them as legally binding, and in general principles. Four Geneva Conventions of 1949, which are supplemented by two further agreements: the Additional Protocols of 1977 relating to the protection of victims of armed conflicts, cover major part of international humanitarian law.International humanitarian law is applicable in the cases of armed conflict. It does not cover internal disputes, such as domestic disturbance or internal acts of violence. The law is applicable as soon as the conflict has started and then, cover every aspect of the war.

International humanitarian law is further divided into international and non-international armed conflict. International armed conflicts include disputes in which at least two states are involved.  They are governed by rules set out in the four Geneva conventions and Additional Protocol I. Whereas, non-international armed conflicts are confined to a single state territory, which involves either regular armed forces fighting groups of armed dissidents, or armed groups fighting each other. Such conflicts are governed by Article3 common to the four Geneva Conventions as well as in Additional Protocol II.Most of the provisions have achieved the level of customary norms, which are binding upon states.


A norm gains the status of customary international law when it has been widely accepted and practiced by States (State practice) and the following act must occur out of a sense of obligation (opinio juris). A norm achieves the status of a peremeptory norm (“jus cogens”) when international community accept it as a norm from which no derogationis permitted.Those peremptory norm which are accepted and recognized include the prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination. Article 53 of the Vienna Convention on Law of Treaties, 1969 defines jus cogens as: peremptory norm of general international law is a norm accepted and recognized 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. Treaties conflicting with a peremptory norm of general international law is void. In addition to it, Article 64 of VCLT states that Article 64 of VCLT: If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates. Therefore, it is very evident that any norm which is not in consonance with jus cogens is void, without any doubt.


Every human being has the inherent right to life. Law shall protect this right. No one shall be arbitrarily deprived of his life’. The right to life is a norm of jus cogens, as are the prohibitions against torture. Jus cogens refer to certain fundamental, overriding principles of international law, from which no derogation is ever permitted. Prohibition on torture is part of customary international law and has become a peremptory norm. In case of the Prosecutor v. Anto Furundzija, the International Criminal Tribunal for the former Yugoslavia (ICTY) suggested obiter dictum that the violation of jus cogens norm, such as the prohibition against torture, had direct legal consequences for the legal character of all official domestic actions relating to the violation. Attacking persons who are recognized as hors de combat is prohibited. A person hors de combat is who is in the power of an adverse party. Persons hors de combat must be treated humanely. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely. Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture shall remain prohibited. Any kind of cruel treatment is against the principle of Jus cogens. Also, Delalic:, Furundzija: and Kunarac case have also recognized that severe physical or mental harm cannot be inflicted on Prisoner of war because it is a violation of Customary International Humanitarian Law.


Peremptory norms were the impression of the values within the international community, picking the highest notewrothiness for international relations. Conventional jus cogens norms include the prohibition of slavery, piracy, and genocide. Every one of these standards are plainly associated with the intrigue and arrangement of estimations of the international community during the time. ‘After World War II, jus cogens extended to include crimes against humanity, murder, torture, and use of force or aggression.’ Jus cogens consists of both rights and responsibilities, depending on the norm typified. In the case of self-determination it is promoting a right, in the case of genocide for example it is prohibition actions taken by individuals or legal persons. In that sense jus cogens is like human rights standards, which likewise contain certain rights yet additionally particular duties regarding people and states.


Jus cogens standards mirror the creating interests of the international community all in all, not the thin interests of a specific state.Peremptory norms protect the fundamental values universally. The prohibition of genocide, torture, slavery, crimes against humanity cannot be limited only to the domestic affairs of a certain state since they reflect the core values of international society. States and peoples are not segregated, they convey, coordinate and trade among one another. That is the reason demonstrate that specific human rights do speak to jus cogens, since it conveys lawful obligations of the state to the community overall and gives authenticity for the legitimate enthusiasm of the community, which was explained above in the idea of erga omnes. It is clear that jus cogens norms, due to the supreme legal character and high normative threshold, cannot cover each individual human right. Although hypothetically and by the rationale of same reason these rights ought to be legitimately regarded as peremptory norms in the world we live in, it remains an inquiry to be settled by future legitimate and political battles for ‘non‐political’ human rights.


You can contact Astha Singh at asthathelawyer@gmail.com.

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