10
and any juridical act. Recent developments point in the same direction, that is, that the
domain of the jus cogens, beyond the law of treaties, encompasses likewise general
international law. Moreover, the jus cogens, in my understanding, is an open category,
which expands to the extent that the universal juridical conscience (the material source
of all Law) awakens to the necessity to protect the rights inherent to each human being
in every and any situation.
Evolution of International Human Rights Law has emphasized the absolute character of
the non-derogable fundamental rights. The absolute prohibition of the practices of
torture, of forced disappearance of persons, and of summary and extra-legal executions,
leads us decidedly into the terra nova of the international jus cogens. (...)” (paras. 6869).
32.
And I concluded, in this regard, in that same Concurring Opinion to Advisory
Opinion n. 18:
“The concept of jus cogens in fact is not limited to the law of treaties, and it likewise
pertains to the law of the international responsibility of the States. The Articles on the
Responsibility of the States, adopted by the International Law Commission of the United
Nations in 2001, bear witness of this fact. (...) In my understanding, it is in this central
chapter of International Law, that of international responsibility (perhaps more than in
the chapter on the law of treaties), that jus cogens reveals its real, wide and profound
dimension, encompassing all juridical acts (including the unilateral ones), and having an
incidence (even beyond the domain of State responsibility) on the very foundations of a
truly universal international law.” (para. 70)
In addition to this horizontal expansion, jus cogens also expands on a vertical
dimension, that of the interaction between the international and national legal
systems in the current domain of protection. The effect of jus cogens, on this second
(vertical) dimension, is to invalidate any and all legislative, administrative or judicial
measures that, under the States’ domestic law, attempt to authorize or tolerate
torture.26
33.
The absolute prohibition of torture as a reaction of ratione materiae Law that
we are addressing here, in both the horizontal and the vertical dimensions, has
implications regarding reparations due to the victims. It is in no way surprising that
reparations in cases of torture have revealed a dimension that is both individual and
collective or social. Impunity worsens the psychological suffering inflicted both on
the direct victim and on his or her next of kin and other persons with whom he or
she lived.
Actually, it causes new psychosocial damage.
Covering up what
happened, or indifference regarding the criminal acts, constitutes a new aggression
against the victim and his or her next of kin, disqualifying their suffering. The
realization of justice is, therefore, extremely important for the rehabilitation of the
victims of torture (as a form of reparation), since it attenuates their suffering, and
that of their beloved ones, by recognizing what they have suffered.
34.
This is still an evolving matter, but the right of those victims to fair and
adequate reparation is addressed today on the basis of recognition of the central role
of the integrity of said victims.27 The instant Judgment of the Inter-American Court in
the Case of Tibi versus Ecuador is an example of the reaction of the Law to the
26
.
See E. de Wet, "The Prohibition of Torture as an International Norm of Jus Cogens and Its
Implications for National and Customary Law", 15 European Journal of International Law (2004) pp. 9899.
27
.
See I. Bottigliero, Redress for Victims of Crimes under International Law, Leiden, Nijhoff, 2004,
pp. 13-38, 111-191 and 249-253.
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