PART 1: Overview of the Human Rights Committee and the Committee Against Torture may appear to be. In particular, the treaty provisions discussed above make clear that it is not permissible, under international law, to balance national security interests against the right to be free from torture and other ill-treatment.11 The absolute nature of the prohibition of torture under treaty law is reinforced by its jus cogens status under customary international law. Jus cogens status connotes the fundamental, peremptory character of the obligation, which is, in the words of the International Court of Justice, “intransgressible”.12 There is ample international authority recognizing the prohibition of torture as having jus cogens status.13 The prohibition of torture also imposes obligations erga omnes, and every State has a legal interest in the fulfilment of such obligations which are owed to the international community as a whole.14 11 12 13 14 The HRC, the CAT Committee, the European Court of Human Rights, the Special Rapporteur on Torture, the UN Security Council and General Assembly, and the Committee of Ministers of the Council of Europe, among others, have all recognized the undoubted difficulties States face in countering terrorism, yet made clear that all anti-terrorism measures must be implemented in accordance with international human rights and humanitarian law, including the prohibition of torture and other ill-treatment. See, e.g., ECtHR cases: Klass and Others v. Germany, No. 5029/71, (6 September 1978); Leander v. Sweden¸ No. 9248/81, (26 March 1987); and Rotaru v. Romania, No. 28341/95, (4 May 2000); General Comment No. 29, para. 7, and Concluding Observations on Egypt’s Report, (2002) UN Doc. CAT/C/CR/29/4, para. 4; CAT’s Concluding Observations on Israel’s Report, (1998) UN Doc. CAT/C/33/Add.2/Rev.1, paras. 2–3 and 24; Report to the General Assembly by the Special Rapporteur on Torture, (Mr T. Van Boven), (2004) UN Doc. A/59/324, para. 17, and Statement in connection with the events of 11 September 2001, (2001) UN Doc. A/57/44, para. 17; General Assembly Resolutions 57/27 (2002), 57/219 (2002) and 59/191 (2004); Security Council Resolution 1456 (2003) Annex, para. 6; Council of Europe Guidelines on Human Rights and the Fight Against Terrorism (2002); Special Rapporteur on Torture, Statement to the Third Committee of the GA, (2001) UN Doc. A/RES/55/89. Other bodies pronouncing on the issue include, for example, Human Rights Chamber for Bosnia and Herzegovina (see, e.g., Boudellaa and others v. Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, nos. CH/02/8679, CH/02/8689, CH/02/8690 and CH/02/8691 (11 October 2002), paras. 264 to 267. Advisory Opinion of the ICJ on the Legal Consequences of the Constructions of a Wall in the Occupied Palestinian Territory, General List No. 131, ICJ (9 July 2004), para. 157. See also Article 5.3 Vienna Convention on the Law of Treaties (1969) which introduces and defines the concept of “peremptory norm”. See, e.g., the fi rst report of the Special Rapporteur on Torture, (Mr P. Kooijmans), (1986) UN Doc. E/ CN.4/1986/15, para. 3; ICTY judgments Prosecutor v. Delalic and others, ICTY Trial Chamber, IT-96-21 (16 November 1998), Prosecutor v. Kunarac, ICTY Trial Chamber, IT-96-23 and 23/1 (22 February 2001), para. 466, and Prosecutor v. Furundzija, ICTY Trial Chamber, IT-95-171/1-T (10 December 1998); and Al-Adsani v. the United Kingdom, No. 35763/97, ECtHR (21 November 2001). See also De Wet, E., ‘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). See ICJ Reports: Barcelona Traction, Light and Power Company Limited, Second Phase (1970, para. 33); Case Concerning East Timor (1995, para. 29); Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (1996, para. 31). See also Articles 40–41 of the International Law Commission’s Draft Articles on State Responsibility (“ILC Draft Articles”) and the commentary to the Draft Articles. See ICTY case Prosecutor v. Furundzija, ICTY Trial Chamber, IT-95-171/1-T (10 December 1998), para. 151; Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, (2000), para. 155; and General Comment No. 31 on the Nature of the General Legal Obligation on States Parties to the Covenant, (2004) UN Doc. CCPR/C/21/Rev.1/Add.13, para. 2 (hereinafter, General Comment No. 31). 27