The relationship between 'Jus Cogens' and 'Obligatio Erga Omnes' under international criminal law

Abstract

The study of jus cogens norms and obligatio erga omnes has been at the center of many debates by international lawyers and academics for decades. For a long time, States were the only subjects of International Law and consequently they developed a number of norms and obligations, which must be respected and fulfilled. Some of these norms and obligations have been present in the international legal sphere since time immemorial, mainly due to their moral nature and are thus considered as indispensible for the peaceful functioning of the international community of States. Despite their unwritten status, these norms are seldom referred to in relation to International Criminal Law and within the context of assessing the combined implications brought about by these two doctrines within the field of International Law. Such other key International Law principles, which shall be discussed throughout this research include principles such as universal jurisdiction and aut dedere aut judicare. Part I outlines the development of the doctrines of jus cogens norms and obligatio erga omnes from an International Criminal Law perspective whilst attempting to identify their main elements and shortcomings as well as analyse those elements that distinguish and connect these two principles. Part II provides a study of some of the crimes under International Law which are established or proposed as falling within the ranks of jus cogens norms and/or obligatio erga omnes through an analysis of the workings of the ICJ, other national and international adjudicating bodies and multilateral legal instruments with the aim of establishing whether these crimes have reached the status of jus cogens and/or erga omnes. Part III delves into the study of universal jurisdiction and aut dedere aut judicare, which are also essential to the proper functioning of International Criminal Law and whether they qualify as jus cogens norms and/or erga omnes obligations in themselves or in relation to some of the crimes that are established or proposed as jus cogens norms and obligatio erga omnes.