10
encompasses likewise general international law39. Moreover, the jus cogens, in my
understanding, is an open category, which expands itself to the extent that the universal
juridical conscience (material source of all law) awakens for the necessity to protect the
rights inherent to each human being in every and any situation” (para. 68).
30.
Thus, nowadays, prohibition of the practices of torture and inhuman
treatment, forced disappearance of persons, summary and extrajudicial executions,
and failure to respect personal honor and beliefs (including those related to the
relations between the living and the dead), is absolute and universal, because it
belongs to the domain of international jus cogens. This prohibition is affirmed in
these terms today, owing to the awakening of the universal juridical conscience,
which, I repeat, constitutes the material source of all law. The violation of this
general prohibition gives rise to the aggravated international responsibility of the
State and the international criminal responsibility of those responsible for the
violations (both masterminds and perpetrators).
31.
As I also indicated in my abovementioned concurring opinion in this Court’s
Advisory Opinion No 18 on The Juridical Status and Rights of Undocumented
Migrants (2003):
"To the international objective responsibility of the States corresponds
necessarily the notion of objective illegality (one of the elements underlying the concept
of jus cogens). In our days, no one would dare to deny the objective illegality of acts of
genocide, of systematic practices of torture, of summary and extra-legal executions, and
of forced disappearance of persons (...), condemned by the universal juridical
conscience, parallel to the application of treaties.
(...) The emergence and assertion of jus cogens evoke the notions of
international public order and of a hierarchy of legal norms, as well as the prevalence of
the jus necessarium over the jus voluntarium; jus cogens presents itself as the juridical
expression of the very international community as a whole, which, at last, takes
conscience of itself, and of the fundamental principles and values which guide it” (paras.
71 and 73).
32.
The above-mentioned jus cogens prohibitions are categorical nowadays, at
the current stage of the evolution of contemporary international law. In addition,
they reveal the gradual emergence of a universal international law. The purpose of
jus cogens is precisely to ensure the most fundamental interests and values of the
international community as a whole.40 The said prohibitions (of grave human rights
violations) indicate, according to M. Lachs, how:
"mankind, or the international community, on its journey through history, found it
necessary to outlaw once and for all certain actions (...). On this, the deniers and
doubters have to agree, if they accept the basic premises of law and the imperative of
its progress."41
33.
There are international obligations relating to the safeguard of fundamental
values of the international community that differ from other international obligations;
this has given rise to the emergence in contemporary international law of concepts
39
For the extension of jus cogens to all possible juridical acts, cf., e.g., E. Suy, «The Concept of Jus
Cogens in Public International Law», in Papers and Proceedings of the Conference on International Law
(Langonissi, Greece, April 3 to 8, 1966), Geneva, C.E.I.P., 1967, pp. 17-77.
40
B. Simma, "From Bilateralism to Community Interest in International Law," 250 Recueil des Cours
de l'Académie de Droit International de La Haye (1994) p. 289.
41
M. Lachs, "The Development and General Trends of International Law in Our Time," 169 Recueil
des Cours de l'Académie de Droit International de La Haye (1976) pp. 272-273.
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