A new ideal has flourished on the world scene: human rights. Ideological controversies of the past have given way to general understanding about the universality of western values and have placed human rights at the essence of international law. There is universal (or near-universal) agreement on the corpus of what constitutes ‘human rights’. Human rights are universal in the dicern that all human beings possess human rights by the mere fact of their human existence. States have ensured well-defined legal obligations to protect those rights. Thus not only are human rights universal, but the responsibility to protect human rights is universal as well (Carey, et al., 2010). Important matters as basic international human rights cannot be secured against the actions of States that claim not to recognize the legitimacy of a given human rights. Therefore, human rights is known as one of the essential principle of jus cogens. In international law, some actions could undoubtedly harm the international community that they must be proscribed in all societies. Jus cogens norms can be seemingly known and understood by all as universally binding (May, 2009). Despite the superior status of jus cogens, but over the years, there still has been significant crimes and violations in relation to human rights. Certain crimes are often said to violate jus cogens norms and even caused a massive humanitarian calamity. One of this example is a notable escalation in Israel’s large-scale violations of international law and Palestinian human rights as well as its sustained occupation of Palestine. In this context, this paper argues that the concept of jus cogens is seen as nothing more than just a paradox.
Jus cogens is a set of rules, which are peremptory in nature and from which no derogation is allowed under any circumstances. States cannot be absolutely free in establishing their contractual relations. States were obliged to respect certain fundamental principles deeply rooted in the international community. The importance of the rules of jus cogens was confirmed by the trend to apply it beyond the law of the treaties, in particular, in the law of state responsibility. These rules are binding regardless of the consent of the parties concerned and regardless of the states’ own individual opinion to be bound since these rules are too fundamental for states to escape responsibility (Hossain, 2005).
The emergence of the peremptory norm prohibiting crimes against humanity closely parallels the prohibition against war crimes, and its formal genesis including crimes against peace is similarly traceable to the IMT at Nuremberg. Certain crimes affect the interests of the world community as a whole because they threaten the peace and security of humankind and because they shock the conscience of humanity. If both elements are present in a given crime, it can be concluded that it is part of jus cogens. (Bassiouni, 1997). The gravity and scale of crimes that “shock the conscience of humanity”, even if committed within the borders of a single state and primarily against nationals of that state, can make these crimes a concern of the whole international community. The characterization by the Security Council of certain crimes as “threat to peace” or “breach of peace”, ipso jure has the effect of making the conflict a concern of the international community (Ahmed & Quayle, 2008). The conflict in Israel and Palestine undeniably shock the conscience of humanity and might threaten the peace and security of humankind in relation to the casualties this conflict had caused since the moment of war between the two parties, blockade imposed by Israel and its allies, also occupation of Palestinians by Israeli Defense Force until now. Bad blood between Israel and Palestine for more than a decade has caused altruistic catastrophe, even for international society as a whole. The existing jus cogens norms seems inefficacious to forestall such fiasco from happening.
Human rights law in the concept of jus cogens embodied the right of self-determination. The significance meaning of the legal right to self-determination centers on the idea of freedom from subjugation. For instance, the UN General Assembly’s Declaration states that ‘the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental rights, is contrary to the Charter of the United Nations. It is now accepted that the legal right to self-determination also applies beyond the colonial context (Saul, 2011). Self-determination struggles can thus be understood as struggles for obtaining access to a full, previously denied condition of humanity recognized by the community of nations, with all of its paradoxical implications. Self-determination transforms the victims of human rights violations into full human beings. The right to self-determination is also relevant to this conflict because it arguably provides a basis for the territorial claims by The Jews to Palestinians. The Holocaust is indeed one of the major triggers propelling the development of the language and political practices that constitute the contemporary human rights regime. In fact, the history of Israel’s creation illustrates very clearly the paradox of the international human rights regime and the constitutive interrelationship between human rights, national statecraft, and domination. It does so because the Allies conceived Israel’s foundation as a type of humanitarian reparation for the crimes committed against Jews in Europe during the Holocaust, while this reparation assumed the form of a settler nation-state in Palestine, whose colonial practices generated new human rights violations (Perugini & Gordon, 2017).
While human rights were announced and enunciated as tools of protection from violent and dispossessive nation-states, dispossessed Jews were entitled to create a nation-state whose foundational form was settler colonialism. The paradox of human rights in Israel is precisely this process through which the crimes against humanity committed in Europe served to rationalize and justify the rights-abusive expansionist process of Israeli national statecraft in the land of Palestinians. This action later marked the beginning of a new cycle of crimes against peace and also crimes against humanity by Israel to the Palestine (Perugini & Gordon, 2017). There has been little tenacious actions from the international community to impose sanctions to Israel. Upheld by the great powers such as The U.S. and its allies, it seems almost impossible for other states to restore basics human rights in Palestine and condemn Israel. Israel has been breaching more than 30 UN resolutions, and yet there is a insufficient respond from the UN in relation to this matter. Israel was elected to head the Sixth Committee at the incoming United Nations General Assembly. Considering Israel’s constant history of breaching international law, the Fourth Geneva Convention and countless UN resolutions, it is exceptionally ironic that it will be chairing a legal committee which aims to uphold international law and protect basic human rights. UN affairs has been further perverted by politicization than have its human rights activities. Instead of serving as the impartial international arbitrator in human rights matters, the UN, with an alarming and growing consistency, plays favorites (Hammond, 2010).
In this grievance, jus cogens norm of self-determination is contradict its own principal norms which is the protection of human rights. Palestine has suffered just such an unlawful use of force, and, according to doctrine, the jus cogens status of the prohibition on aggression is clear. This paradoxical implications might precipitate by the vagueness of the definition of self-determination itself. Clarity on the meaning of self-determination as a legal norm is perhaps hindered more than other norms by the controversial nature of the topic. The meaning of self-determination is as confusing as what constituted the concept of jus cogens altogether.
As a consequence of being the highest hierarchical position among all other norms and principles, jus cogens norms are deemed to be “peremptory” and non-derogable. But, there is no scholarly consensus on the methods by which to ascertain the existence of a peremptory norm, nor to assess its significance or determine its content. Non-derogability of certain rights emphasizes their special importance in that they may not be set aside, even in very specific circumstances in which the setting aside of other rights is justified (Orakhelashvili, 2005). There is a growing danger that in the absence of unambiguous procedures for the creation of peremptory norms, their emergence and subsequent identification may become a matter of conflicting assertions reflecting political preference of different groups of states. It is difficult to accept the proposition that a concept can be seen as a legal rule when its content is so vague as to permit so great a degree of confusion. It is not clear what is meant by characterizing a rule as “peremptory in principle” but functioning at only a limited level in practice. It is certainly possible that several of these norms could point to opposite conclusions in a particular question of international relations (Weisburd, 1995).
It is possible, for instance, that states place some value in the vagueness of the law of self-determination because it permits a broad range of plausible interpretations and is therefore able to accommodate unforeseen circumstances. Political importance could be a reason for states to prefer that the right remains ill-defined. This is because the international community are more likely to respond to the breach of a norm that is perceived as politically significant, but if the norm is kept ill-defined, states will retain a leeway to resist claims that they are not fulfilling obligations to peoples under their authority. It can be argued that uncertainty in the law of self-determination has itself contributed to many human tragedies the world has witnessed in the post-World War II period, it can also help to explain the occurrence of certain armed conflicts. In particular, as a non-absolute human right, the exercise of self-determination must be subject to limitations. These include limitations of the sort indicated by Article 5(1) of the Human Rights Covenants which provides that ‘nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein’. It follows from Article 5 that the exercise of the right of self-determination must be balanced with the other human rights, such as freedom of expression and freedom of religion. Jus cogens has also been contemplated as a possible limitation to national legislative processes, and identified by some as a constraint on the scope of state immunity (Saul, 2011).
The Security Council of the United Nations is legitimize to make decisions binding, as a practical matter, on all states respecting certain aspects of international relations. UNSC and every states need to take compelling actions to make sure that the jus cogens norms is applied universally as it meant to be. Jus cogens should have been used to justify the punishment of the perpetrators of crimes in Israel-Palestine conflict, not as the means to retain the expansionist movement of The Jews in the name of self-determination.