Seeking Remedies for Torture Victims: A Handbook on the Individual Complaints Procedures of the UN Tready Bodies The principal consequence of its rank as a jus cogens norm is that the principle or rule cannot be derogated from by States through any laws or agreements not endowed with the same normative force.15 Thus, no treaty can be made nor law enacted that conflicts with a jus cogens norm, and no practice or act committed in contravention of a jus cogens norm may be “legitimated by means of consent, acquiescence or recognition”. Any norm conflicting with such a provision is therefore void.16 It follows that no interpretation of treaty obligations that is inconsistent with the absolute prohibition of torture is valid in international law. The fact that the prohibition of torture is jus cogens and gives rise to obligations erga omnes also has important consequences under the basic principles of State responsibility, which provide for the interest, and in certain circumstances the obligation, of all States to prevent torture and other forms of ill-treatment, to bring it to an end, and not to endorse, adopt or recognize acts that breach the prohibition.16 Any interpretation of the ICCPR or the CAT must be consistent with these obligations under broader international law. There are two corollaries that flow from the absolute nature of the prohibition: the non-refoulement rule, which prohibits States from returning individuals to places where they would be subjected to torture, and the exclusionary rule, which prohibits the use of evidence extracted under torture in any kind of judicial, administrative or other formal proceedings. The expulsion (or refoulement) of an individual, where there is a real risk of torture or other ill-treatment in the State to which they will be returned, is prohibited under both international treaty and customary law.18 It is explicitly prohibited under Article 3 of CAT which provides: 15 16 17 18 28 See Article 53 of the Vienna Convention on the Law of Treaties 1969; also ICTY Trial Chamber, Prosecutor v. Furundzija, IT-95-17/1-T (10 December 1998), paras. 153–54. Jennings, R. and Watts, A., Oppenheim’s International Law (Vol. 1, 9th edition) 8, Longman (1996). See also Article 53, Vienna Convention. See ILC Draft Articles (40 and 41 on jus cogens; and Articles 42 and 48 on erga omnes); see also 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. 159. In respect of the erga omnes character of the obligations arising under the ICCPR thereof, see General Comment No. 31, para. 2. For a detailed discussion of the sources, scope and application of the non-refoulement principle, see Appendix11, Joint Third Party intervention of AI, APT, HRW, INTERIGHTS, ICJ, OSI and REDRESS in Ramzy v. The Netherlands, 22 November 2005. On non-refoulement as a fundamental norm of international refugee law: UNHCR, “Advisory Opinion on the Extraterritorial Application of NonRefoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol” (2007); see also Farmer, A., Non-Refoulement and Jus Cogens: Limiting Anti-Terror Measures that Threaten Refugee Protection (2008), available at: http://www.hrw.org/node/108468.