Harmen van der Wilt

Complementary Jurisdiction (Article 46H)

The jurisdictional relationship between African states and the African Court of Justice and Human and Peoples’ Rights and between the latter Court and the International Criminal Court is not entirely clear. While the Malabo Protocol (Annex) has borrowed the complementarity principle from the Rome Statute, the Protocol does not indicate that states’ investigations or prosecutions should be genuine, in order to render a case inadmissible. Moreover, the Malabo Protocol (Annex) is completely silent on the African Court’s relationship to the International Criminal Court. This chapter first discusses whether the leaving out of the term “genuinely” bears any consequences on the assessment of the quality of the performance of states in respect of investigation and prosecution of international crimes. Next, it considers two alternative scenario’s—one in which the International Criminal Court is hierarchically superior to the African Court of Justice and Human and Peoples’ Rights and one in which both courts cooperate as equal partners. The author concludes that the latter model would be feasible if the International Criminal Court and the African Court of Justice and Human and Peoples’ Rights move towards a “division of labor”.

Jus Cogens and the Humanization and Fragmentation of International Law

This editorial explores how two developments—the humanization and fragmentation of international law—permeate all aspects of jus cogens: its foundations, content and consequences. The authors are particularly intrigued by the question of how the unceasing popularity of jus cogens can be reconciled with its limited role in legal practice. It has often been observed that jus cogens owes its proliferation to the increased focus on human rights. This, in turn, has yielded two effects. First, such focus on human rights has triggered greater attention for the enforcement of peremptory norms. Secondly, it has put the responsibility of non-state actors for violation of jus cogens norms on the agenda. It may not be too far-fetched to understand the reticence of states to accept the expansion of jus cogens and its effects against the background of the fear that this will weaken the power of the state, whereas one might argue that the state is rather in need of reinforcement, in view of the manifold challenges it is confronted with. Next to the process of ‘humanization’ of international law, the appeal of jus cogens can be explained from the international lawyer’s desire for a single and coherent system of law, including a more clearly established hierarchy of norms. This aspiration is primarily infused by the concern for ‘fragmentation’ of international law. However, as in the case of humanization, countervailing factors prevent a further expansion of jus cogens in international law. For one thing, jus cogens, belonging to the realm of general international law, is too coarse and inflexible to be of effective use in special sub-fields of international law. A second explanation for the limited role played by jus cogens is that specialized international or regional courts and tribunals are hesitant or may even lack the competence to pronounce on a conflict between their legal order and other branches of international law.

Après Soering: The Relationship between Extradition and Human Rights in the Legal Practice of Germany, the Netherlands and the United States

On 7 July 1989 the European Court of Human Rights reached a landmark decision in the case of Jens Soering. In the case of a pending extradition, the requested State, a party to the European Convention on Human Rights, violated Article 3 of the Convention if the fugitive, after surrender, faced the real risk of being subjected to ‘inhuman or degrading treatment or punishment’.