PEREMPTORY NORMS: Lebih Superior Dibanding ‘Moralitas Internasional’ atau Perjanjian Internasional’

PEREMPTORY NORMS: Lebih Superior

Dibanding  ‘Moralitas Internasional’ atau Perjanjian Internasional’

Lauterpacht: ‘Peremptory Norms (jus cogens)’ dilahirkan dari otoritas hukum yang unik. Peremptory norms lahir dari interelasi dua sumber yaitu ‘moralitas internasional’ dan ‘prinsip-prinsip umum praktek negara’.[1] Posisi jus cogens menurut Lauterpach dalam praktek atau pelaksanaanya merupakan sebuat konsep yang superior diantara ‘hukum kebiasaan internasional’ dan ‘perjanjian internasional’.[2]

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[1]Evan J. Criddle & Evan Fox Decent, A Fiduciary Theory of Jus Cogens, artikel dimuat dalam Yale Journal of International Law, Vol. 34, 2009, hlm.336

[2] Evan J. Criddle & Evan Fox Decent, A Fiduciary Theory of Jus Cogens, artikel dimuat dalam Yale Journal of International Law, Vol. 34, 2009, hlm.337.

S O V E R E I G N T Y

S O V E R E I G N T Y

Sovereignty can be defined as the quality of having the highest, self‐regulating authority over a certain geographical area, such as a state territory. It represents a power of law making within its scope, which is considered to be legitimate itself, without the need for any other justification.[1] Nihal Jayawickrama, sebagaimana dikutip Predrag Zenović berpendapat  ‘In the context of the doctrine of state sovereignty, it was inconceivable that international law could vest an individual with any rights exercisable against his own state’.[2]

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[1]Predrag Zenovic, 2012, Human Rights Enforcement Via Peremptory Norms – A Challenge To State Sovereignty, RGSL Research Papers, No. 6, Riga Graduate School of Law, hlm.10

[2]Nihal Jayawickrama, 2002, The Judicial Application of Human Rights Law, National, Regional and International Jurisprudence, Cambridge University Press, New York, hlm.17.

HUMAN RIGHTS ENFORCEMENT VIA PEREMPTORY NORMS – A CHALLENGE TO STATE SOVEREIGNTY

Sumber: Predrag Zenovic, 2012, Human Rights Enforcement Via Peremptory Norms – A Challenge To State Sovereignty, RGSL Research Papers, No. 6, Riga Graduate School of Law.

Berikut disajikan Abstrak dari Paper di atas berjudul:

HUMAN RIGHTS ENFORCEMENT VIA 
PEREMPTORY NORMS –

A CHALLENGE TO STATE SOVEREIGNTY

This research paper is focused on the issue of peremptory norms (jus cogens), formulated in the Vienna Convention on the Law of Treaties, and its applicability in human rights implementation. Jus cogens, ʺcompelling law,ʺ is the technical term given to those norms of general international law that are argued to be hierarchically superior. There is an intrinsic correlation between peremptory norms and human rights. Peremptory human rights norms, as projections of individual and collective ethics, being the fundamental principles of the international community, materialize as powerful collective values. This analysis is focused on the legal impact of these norms. If certain human rights can be considered jus cogens it subsequently brings superior procedural effects to their implementation in relation to the principles associated with state sovereignty.

The research examines the nature of jus cogens and its formation vis‐a‐vis human rights and elaborates on the additional value that jus cogens can bring to human rights implementation. The central part of the study is devoted to human rights which are affirmed as jus cogens and the different aptitude of certain rights (social, economic, cultural) to gain peremptory character.

The focal problem that the research addresses is the lack of will or capabilities of certain states to implement human rights, and the barrier to human rights implementation imposed by the doctrine of state sovereignty. This is mainly reflected in jurisdictional issues, immunities of the state and state officials, and extradition. The principle of sovereign immunity, although it remains an inviolable tenet of international law subject to no exceptions for grave international crimes in national case law, has no legal ground to supervene jus cogens. The argumentation clearly stems from the normative hierarchy advocated in international case law and doctrine.

The author firmly believes that the jus cogens concept brings a significant contribution to human rights implementation, putting them at the foundation of the international legal order. This effect is procedural but on the other hand substantial to future human rights development.

GENOCIDE

Genocide is one of the greatest crimes under international law, often called the "crime of crimes" after the Nuremburg Trials.  According to Article 2 of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life, calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; [and] forcibly transferring children of the group to another group."

Under most legal constructions of genocide (e.g., under the statutes for the International Criminal Tribunals for the Former Yugoslavia and for Rwanda), liability for genocide extends to those who “planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution” of one or more of the aforementioned genocial acts [ICTY Art. 7(1)]. In general, both public and private individuals are punishable [ICTY Art. 7(2)]. Leaders can be held accountable for the criminal actions of their subordinates if they knew or should have known about the actions and failed to prevent or punish them [ICTY Art. 7(3); Krstic, ICTY, Appellate Judgment § 140].

Genocidal intent requires that acts must be committed against members of a group specifically because they belong to that group (Akayesu, ICTR, Trial Judgment § 521), but it does not require that the acts be perpetrated solely because they belong to that group (Niyitegeka, ICTR, Trial Judgment §§51-53). Genocidal intent can, “in the absence of direct explicit evidence, be inferred from” circumstantial evidence (Jelisic, ICTY, Trial Judgment § 47). When proving genocidal intent based on an inference, “that inference must be the only reasonable inference available on the evidence” (Krstic, ICTY, Appellate Judgment § 41). 

Incitement to Commit Genocide

Under Art. 25(3)(e) of the Rome Statute of the International Criminal Court, a person who “directly and publicly incites others to commit genocide” has committed a crime against international law. Notably, there is no explicit requirement in this subsection of Art. 25 that genocide actually be committed. Conservative interpreters might be quick to assume such a requirement, but the drafting in Art. 25(3)(b) provides that one who “orders, solicits or induces the commission of such a crime”—in this context war crimes and crimes against humanity—is liable only if that crime “in fact  occurs or is attempted.” In other words, incitement to war crimes and crimes against humanity is punishable only if the crime occurs or attempted, but incitement to genocide is punishable regardless of the crime’s actually occurring or being attempted. The ICTR's Trial Judgment in Nahimana presented historical evidence that the drafters of the U.N. Genocide Convention intended that incitement convictions not require genocidal acts (§ 678). Direct incitement requires “a direct appeal to commit an act referred to in [the Genocide Convention]… it has to be more than a vague or indirect suggestion” (Nahimana, ICTR, Trial Judgment § 692; see also Akayesu, ICTR, Trial Judgment § 556). On the other hand, according to the Akayesu court, the “directness” of incitement must be determined in light of its context and audience; inciting speech can be coded or “implicit” or otherwise not obvious to outside observers but still be “direct” (§ 556).  Akayesu’s directness test, subsequently followed by Nahimana, requires that “persons for whom the message was intended immediately grasped the implication thereof” (Akayesu § 558).  That is, it must be unambiguous in its intended context (Nahimana § 701). Sumber: http://www.law.cornell.edu/wex/Genocide.

JUS COGENS

Jus cogens (from Latin: compelling law; English: peremptory norm) refers to certain fundamental, overriding principles of international law, from which no derogation is ever permitted.  See Ian Brownlie, Principles of Public International Law (5th ed., Oxford, 1998).  In practice, jurists' attempt to classify certain rules, rights and duties as jus cogens or peremptory norms have not met with success: while there is near-universal agreement for the existence of the category of jus cogens norms, there is far less agreement regarding the actual content of this category.  Id. at 517. Examples of jus cogens norms include:  prohibition on the use of force; the law of genocide; principle of racial non-discrimination; crimes against humanity; and the rules prohibiting trade in slaves or human trafficking (sumber: http://www.law.cornell.edu/wex/jus_cogens).