Crimes against humanity as a peremptory norm of general international law (jus cogens): There really is no doubt? But so what?

• Pages: 1-14
• DOI: https://doi.org/10.47348/AYIH/2020/a1
• Published date: 20 September 2021
• Date: 20 September 2021
• Citation: (2020) African Yearbook on International Humanitarian Law 1
• Author: Tladi, D.

1

Crimes against humanity as a

peremptory norm of general

international law (jus cogens): There

really is no doubt! But so what?

Dire Tladi*

Abstract

In 2019 the International Law Comm ission adopted two texts providi ng

for the peremptory charac ter of the prohibition of crimes aga inst

humanity, namely the draf t articles on the prevention and punishment of

crimes against hu manity and the draft conclusions on peremptor y norms

of general international law. While b oth of these instr uments recognise

the peremptory char acter of the prohibition of crimes aga inst humanity,

neither of them address the conse quences of the peremptory cha racter of

the prohibition of crimes agai nst humanity. This article, on the basis, int er

alia, of the internal proce sses leading to the adoption of these instr uments,

addresses the consequences of t he peremptory character of the prohibition

of crimes against hu manity.

Keywor ds: jus cogens, cr imes against humanity, consequences, im-

munity, International L aw Commission

1 INTRODUCTION

The emergence of jus cogens, and its subsequent establishment within

the mainstream of international law, is nothing short of a revolution.

Prior to the adoption of the Vienna Convention, the concept of

peremptory norms ourished only in scholarly writings. There was

virtually no recognition of the concept, as we currently understand

it,1 in the practice of States. It was the work of the Commission,

* Professor of Internationa l Law, University of Pretoria; Me mber of the UN

International Law Com mission and its Specia l Rapporteur on Pere mptory

Norms of General I nternational Law ( Jus Cogens). Email address:

dire.tladi@up.ac.za.

1 There were, of course, i nvocations of treaty rules which cou ld not be derogated

from by parties to the relevant treat y as a matter of t reaty law. These are no t

the same as peremptor y norms. See Sepa rate Opinion of Judge Schückin g in

The Oscar Chinn case, Judgment of 12 De cember 1934, Permanent Cou rt of

International Justice, S er. A/B No. 63, p 65, at 148. See also Pablo Najera (France) v

United Mexican States, Decision No. 3 0-A of 19 October 1928, Vol V UNRI AA 466

https://doi.org/10.47348/AYIH/2020/a1

(2020) African Yearbook on International Humanitarian Law 1

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