Why jus cogens still matters
In Russian media there appear to have been discussions on the intentional use of torture against Ukrainian prisoners of war and civilians detained by Russia as a method of war. It appears that there are some in Russia who want to normalize the idea of torture. Torture is completely outlawed in international law. The prohibition of torture is a so-called peremptory norm of international law, jus cogens in Latin, meaning that there are no exceptions possible. Not even under the most severe circumstances can torture be permitted. This has led to serious debates in recent years, for example during the global war on terror in the wake of the 9/11 terrorist attacks. Torture is always prohibited.
In addition to fueling hate and violations of human rights by Russian forces engaged in Russia’s illegal war of aggression against Ukraine, these debates can contribute to a normalization of the very idea of torture.
Normalizing torture is a way to ensure that the international legal protection against it, which is absolute, is being eroded. The international community has to take a clear stand in the defense of international law and human rights, including the jus cogens prohibition of torture, even in times of war.
The notion of jus cogens has long been discussed by international lawyers, including by the International Law Commission (ILC) and there is a large body of academic literature on the topic of jus cogens.
What is clear is that jus cogens is a category of international law that does exist. In addition to the prohibition of torture, jus cogens also outlaws genocide and piracy. This short list of examples already highlights the potential connections to war crimes and crimes against humanity. In the current war between Russia and Ukraine, Russia has committed not only war crimes and crimes against humanity but also genocide, for example by systematically transferring Ukrainian children to Russia.
The violation of a jus cogens norm does not put the existence of the norm in doubt. In the daily practice of international law, compliance is the standard and violations are exceptions that often gain public attention. The fact that torture and other violations of jus cogens prohibitions are systematically undertaken by Russian forces in Ukraine does not weaken their legal value. While there is a risk that these criminal acts are normalized within Russia, they do not become legal. Jus cogens is not at risk. Violations of jus cogens norms by Russia actually have the potential to increase political pressure on foreign leaders to take a clearer stance against Russia’s war.