19 |
P age b
Neither International Customary Laws (ICL) nor the Vienna Convention on the Law of Treaties (VCLT) provides an accepted list of jus cogens. During the discussions by the International law Commission (ILC) on the topic some examples of just cogens have been given, and they include unlawful use of force, piracy, slave trading and, and recently torture.
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The inclusion of torture as norm of jus cogens also confirmed in the international jurisprudences.
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From the reading of the provision under Article 53 of the VCLT it is evident that state agreement to expose individual to torture would be void.
2.3.
Obligation of State to Criminalize and Prosecute Torture
ICCPR simply provided a prohibition of torture and other ill-treatments under article 7 without clearly providing obligation to criminalize such prohibition under national legal system. However, the HRC under its GC interpreted this article as incorporating a requirement to bring perpetrators to justice.
79
Accordingly, article 2 of ICCPR obliged state to make effort for the implementation of the provisions of the covenant, particularly in their national legal system. The
HRC in its GC No stressed that states have obligations to investigate and bring to justice perpetrators of violations including torture and similar cruel, inhuman and degrading
treatment
80
In contrary to ICCPR, UNCAT provide obligation to prevent, criminalize, and prosecute torture explicitly.
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UNCAT, under its article 2 and 12, provides that state party to the convention should take legal measures and investigate and prosecute crime of torture. The CAT under its GC No. 2, ensure this legal obligation by extending the obligation to prevent and eradicate torture by taking appropriate measures and obliged to investigate and prosecute (exercise due diligence to JD. Mujuzi ,
„An analysis of the approach to the right to freedom from torture adopted by the African Commission on Human and Peoples Rights (2006) 6(2) AHRJ 423.
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Furundzija
, note 19, Paras 150-155, ICTY held that the prohibition of torture has acquired the status of jus cogens; and see also Human Rights Committee, CCPR General Comment No. 29: Article 4: Derogation during a State of Emergency, UN doc. CCPR/C/21/Rev.1/Add.11 (2001), Para 10-12. Human Rights Committee, General Comment no. 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) (Hereinafter HRC GC No. 31) Para 18.
80
HRC, GC No. 31, Para 8 (Emphasis added.
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UNCAT, Art. 2, 4(1) and 14; The jurisprudences of CAT is also similar, see for instance CAT, Concluding Observation on Cambodia, UN doc. CAT/C/CR/31/7, 2004, Para d.
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