Natural Law and Jus Cogens

Case: Prosecutor v. Furundzija (2002, International Criminal Tribunal for the

former Yugoslavia)

Summary:
• The prohibition of torture is imposed upon all states, by a peremptory norm
○ Prohibition designed to produce a deterrent effect - tells all states that
this is an absolute value from which no state can deviate
○ Also serves to de-legitimize any type of state legislation that authorizes
torture
• Individuals that commit torture on behalf of their nation, can be held
criminally responsible for torture, either in a foreign state, or in their own (if
under a subsequent regime).
• Any state is entitled to "investigate, prosecute, and punish or extradite
individuals accused of torture, who are present in a territory under their
jurisdiction."
• There is a universal jurisdiction over torture. Rationale for this:
○ b/c the character of the crime is so universally condemned, every state
has a right to prosecute and punish those who participated in their commission

Notes

• Torture has risen to level of jus cogens

• Since it is so universal, jurisdiction should also be universal
○ Very controversial proposition, which is being debated
• Erga omnes - the obligation associated with that norm