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Article Title

Euphemism and Jus Cogens

Abstract

Jus cogens norms of international law encompass the most stringent prohibitions of the law of nations. They reflect a global—and typically moral—consensus about impermissible conduct so complete and forceful that no derogation is permissible under any circumstances. Yet states derogate nevertheless. Lacking any valid legal justification for violating jus cogens norms, derogating states instead seek to euphemize their unlawful conduct. Doing so appears at a glance to be a calculated choice that allows States to have their cake and eat it too—to acknowledge the peremptory norms that purportedly bind all sovereigns while acting freely in violation of those norms by describing away their own misconduct. Perhaps the most famous recent example of this phenomenon is the United States’ use of the term “enhanced interrogation” to describe its methods for torturing individuals detained in the early years of the War on Terror.

Through a case study of the CIA’s torture program, this essay explores the distinctive and underappreciated link between euphemism and jus cogens. It argues that the special legal-moral character of peremptory norms of international law creates an intrinsic connection between false denials of legal liability and misleading moral descriptions. Thus, far from reflecting an independent messaging decision, the State’s deployment of euphemism to soften perceptions of its conduct flows necessarily from any decision it takes to deny legal liability. Moreover, these euphemisms tend to reverse the moral valence of the conduct at issue, suggesting it is not inexcusable but rather both legal and essential. The consequences of such euphemisms—their influence on public opinion and on lower-level officials empowered to carry out violations—are therefore substantial, and arise independently of any specific incentive to produce such effects. Euphemism thus operates as a powerful and surprisingly sophisticated device to facilitate law-breaking, even as its use is entailed by the State’s legal denials. One primary effect of this dynamic is paradoxical: it tends to strengthen international recognition of relevant peremptory norms while simultaneously undermining the practical effect of those norms.

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