Navigating the Legal Landscape between the General and the Specific: General Concepts as Tools of Legal Reasoning

The common practice of using general concepts as tools in legal reasoning is bound to raise questions concerning the relative importance of the general and the specific for the understanding of international law. To illustrate, this article uses two judgments handed down by the icty Trial Chamber. While for both judgments, the Chamber inferred from human rights instruments an alleged general concept of torture, which it then brought to bear on its understanding of the prohibition of torture contained in the laws and customs of war, it used the concept differently. The question that this article asks is whether this difference of approach can possibly be explained so as to reconcile the two judgments. Two mutually exclusive explanations are suggested. As argued, choosing between them presents a dilemma. The first explanation prompts us to accept the occurrence of irreconcilable conflicts between different jus cogens rules. The second explanation commits us to an unacceptably broad understanding of the jus cogens prohibition of torture.