Quick answer
No. The prohibition of torture is a rule of jus cogens (a peremptory norm of general international law from which no derogation is permitted). Under Article 53 of the Vienna Convention on the Law of Treaties, 1969 (VCLT), a treaty is void if, at the time of its conclusion, it conflicts with such a norm. The ICTY in Prosecutor v. Furundžija (1998) and the ICJ in Belgium v. Senegal (2012) have both recognised the prohibition of torture as jus cogens, and the Convention against Torture adds that no emergency or superior order can justify torture. So no agreement or emergency can make torture lawful.
The law
- VCLT, Article 53: a peremptory norm is one "accepted and recognized by the international community of States as a whole" as a norm from which no derogation is permitted and which can be modified only by a later norm of the same character. A treaty conflicting with it is void.
- VCLT, Article 64: if a new peremptory norm emerges, any existing treaty in conflict with it becomes void and terminates.
- Convention against Torture, 1984 (CAT), Article 2(2): no exceptional circumstances whatsoever, whether war, threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
- CAT, Article 2(3): an order from a superior officer or a public authority may not be invoked as a justification of torture.
- ICCPR, Article 4(2): even in a public emergency, no derogation (suspension) is allowed from Article 7, which prohibits torture.
Cases
Prosecutor v. Anto Furundžija, International Criminal Tribunal for the former Yugoslavia (ICTY), Trial Chamber, Judgement of 10 December 1998 (Case No. IT-95-17/1-T). In paragraphs 153 to 156 the Chamber held that the prohibition of torture has evolved into jus cogens, a norm ranking higher than treaty law and even ordinary customary rules. It cannot be derogated from by treaty or custom, national measures authorising torture would not be recognised internationally, and every State is entitled to investigate, prosecute and punish or extradite persons accused of torture who are present in its territory.
Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), International Court of Justice (ICJ), Judgment of 20 July 2012. The Court stated that the prohibition of torture is part of customary international law and has become a peremptory norm (jus cogens).
Jus cogens is not a guarantee of every remedy
A substantive rule (what conduct is lawful) is different from a procedural rule (which court may hear a claim). In Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of 3 February 2012, which concerned civil claims in Italian courts for violations of international humanitarian law committed by the German Reich between 1943 and 1945, the ICJ assumed that the rules violated were jus cogens and still found no conflict between those rules and the rules of State immunity: the two "address different matters", and immunity rules are "procedural in character". So a jus cogens violation does not by itself strip a foreign State of immunity before another State's courts.
| Question | Answer |
|---|---|
| Can a treaty permit torture? | No. It is void under Article 53 VCLT. |
| Does jus cogens automatically remove State immunity? | No. Germany v. Italy (2012): immunity is procedural and does not conflict with jus cogens. |
Example
Aadil is arrested as a suspected terrorist. Officers want to beat him to obtain information. They cannot defend this by saying the investigation is important, that public safety is under threat, or that a senior officer ordered it. In India, such conduct is also an offence under Section 120 B.N.S. (voluntarily causing hurt to extort a confession or information; old law: Sections 330 and 331 IPC), and a confession caused by coercion from a person in authority is irrelevant under Section 22 B.S.A. (old law: Section 24 of the Indian Evidence Act).
Current-law note
According to the UN Treaty Collection, India signed the Convention against Torture on 14 October 1997 but has not ratified it, and India is not a party to the VCLT. The ICCPR prohibition in Article 7 still binds India, which acceded to the Covenant on 10 April 1979. For more on peremptory norms, see An Analysis of the Principle of Jus Cogens vis-a-vis Treaty Law.
Exam point
The prohibition of torture is jus cogens (Furundžija, 1998; Belgium v. Senegal, 2012), so a treaty allowing torture is void under Article 53 VCLT, and no emergency or superior order can justify it.
Sources and further reading
- Vienna Convention on the Law of Treaties, 1969, United Nations
- Prosecutor v. Anto Furundžija, Trial Chamber Judgement, 10 December 1998, ICTY
- Convention against Torture, 1984 (certified text), UN Treaty Collection
- Summaries of ICJ Judgments 2008 to 2012 (Germany v. Italy; Belgium v. Senegal), United Nations
