Jus Cogens and the “Classical Structure of International Law”
January 24, 2011
In An Empirical Examination of Universal Jurisdiction for Piracy, Professor Eugene Kontorovich (whose historical claims disputing the connection between piracy and war crimes I have repeatedly debunked) and coauthor Steven Art, allege that:
“The establishment of individual criminal liability, enforceable by any nation, departs from the classical structure of international law, which only regulated relations between states and depended on the consent of nation states.”
Let’s examine this statement to see how thoroughly inaccurate it is.
I happen to be familiar with Professor Kontorovich’s work, so I am aware of the faulty arguments that lead to statements like this. But it can be highly misleading to people who are unfamiliar with the dispute. The application of universal jurisdiction is only highly controversial to Professor Kontorovich and a few others advancing a viewpoint on the fringes of American legal academia.
To the international community there simply is no controversy, nor has their been. The classical structure of international law has recognized the variety of jus cogens crimes since Grotius and Vattel. There has been uninterrupted progress in the expansion of hostes humani generis to include the pirate, the slave trader, the torturer, the war criminal and the genocidaire, well within the classical framework envisioned by the early commentators and borne out by generations of international jurisprudence.