international treaties or local or special customs or even
general customary rules not endowed with the same
normative force.
154. Clearly, the jus cogens nature of the prohibition
against torture articulates the notion that the prohibition
has now become one of the most fundamental standards of
the international community.
Furthermore, this
prohibition is designed to produce a deterrent effect, in
that it signals to all members of the international
community and the individuals over whom they wield
authority that the prohibition of torture is an absolute value
from which nobody must deviate.
155. The fact that torture is prohibited by a peremptory
norm of international law has other effects at the interstate and individual levels. At the inter-state level, it
serves to internationally de-legitimise any legislative,
administrative or judicial act authorising torture. It would
be senseless to argue, on the one hand, that on account of
the jus cogens value of the prohibition against torture,
treaties or customary rules providing for torture would be
null and void ab initio, and then be unmindful of a State
say, taking national measures authorising or condoning
torture or absolving its perpetrators through an amnesty
law. If such a situation were to arise, the national
measures, violating the general principle and any relevant
treaty provision, would produce the legal effects discussed
above and in addition would not be accorded international
legal recognition. Proceedings could be initiated by
potential victims if they had locus standi before a
competent international or national judicial body with a
view to asking it to hold the national measure to be
internationally unlawful; or the victim could bring a civil
suit for damage in a foreign court, which would therefore
be asked inter alia to disregard the legal value of the
national authorising act. What is even more important is
that perpetrators of torture acting upon or benefiting from
those national measures may nevertheless be held
criminally responsible for torture, whether in a foreign
State, or in their own State under a subsequent regime. In
short, in spite of possible national authorisation by
legislative or judicial bodies to violate the principle
banning torture, individuals remain bound to comply with
that principle. As the International Military Tribunal at
Nuremberg put it: ‘individuals have international duties
which transcend the national obligations of obedience
imposed by the individual State’.
-27-
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