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NATIONAL

JUDICIARY & JUS


COGENS
APPLICATION
Analysis of cases: The Swiss Confederation
& Hellenic Republic

Sarajevo School of Science and Technology


Instructor: Damir Arnaut
Student: Nejra Hodi
December, 2014
Word count: 2626

Nejra Hodi
National Judiciary & Jus Cogens

Contents
I.

Introduction..............................................................3

II. The Swiss Confederation example............................4


III. Hellenic Republic example.......................................7
IV. Conclusion................................................................9
V. References.............................................................10

Nejra Hodi
National Judiciary & Jus Cogens

I.

Introduction

When compared to centuries of traditional practice that focused upon


the notion of sovereign nation-state, the modern international law has
developed relatively fast since the World War Two. Its most important
characteristic has irrevocably been the creation of a body of general rules
called peremptory norms (jus cogens). By creating a hierarchy of rules
based on their content and underlying values and not on their source
(custom or treaty), jus cogens became the central notion of the
international legal system (Bianchi, 2008). Bassiouni offers two reasons for
the creation of these norms; he claims that 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 and continues to identify these crimes by including slavery,
piracy, aggression, genocide, racial discrimination, colonialism, apartheid,
war crimes, use or threat of force, torture, prohibition of self-determination
and massive pollution of sea or air (1996). Vienna Convention on the Law
of Treaties also details the cases of peremptory norms violation and
explains the circumstance under which a treaty is invalidated; Article 53
states: A treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law. For the purposes of the
present Convention, a peremptory norm of general international law is a
norm accepted and recognized by the international community of States
as a whole as a norm from which no derogation is permitted and which
can be modified only by a subsequent norm of general international law
having the same character (1969). However, the enforcement and
implementation

of

jus

cogens

has

not

followed

the

normative

development. International courts and tribunals have been reluctant to call


upon the violation of jus cogens by states and rarely based their decisions
on it - probably because this body of law is still evolving. National judicial
bodies, on the other hand, sometimes refer to jus cogens in their decisions

Nejra Hodi
National Judiciary & Jus Cogens

not to invalidate the treaty, but rather to exclude some treaty provisions
from being functional under circumstances of jus cogens violation.In a
purely technical sense, the jus cogens concept provides a technique for
solving conflicts occurring between different rules of international law
(Linderfalk, 2007). A detailed analysis of two such cases in two different
states will be offered in the following sections.

Nejra Hodi
National Judiciary & Jus Cogens

II. The Swiss Confederation example


Switzerland is a particularly interesting case to analyse with regard
to application of jus cogens by national judicial bodies. On April 1999
provisions regarding the peremptory norms were incorporated into the
Swiss Constitution. Cassese summarizes the changes made: Article 139
(2) provides that if a popular initiative for partial revision of the
Constitution does not respect, among other things, the peremptory norms
of international law', the Federal Assembly shall declare the initiative null
and void, in whole or in part. Article 193 (4) provides that, in the case of
the total revision of the Constitution peremptory norms of international
law shall not be violated'. Article 194 (2) stipulates that any partial
revision of the Constitution 'shall not violate the peremptory norms of
international law' (2012). Furthermore, Fassbender names such efforts a
progressive and so far unique eternity clause which protects rules of
international law (2009). The fact that this is a specific example in the
world questions the extent of applicability of jus cogens in the national
systems in general. Nevertheless, ICTY ruling in Furundzija case clearly
states that proceedings may be initiated in front of both national and
international bodies, giving the national courts impetus to call upon jus
cogens in their decisions (Prosecutor v. Anto Furundzija, 1998).1
The clear limitations upon national legislature and judiciary that
were placed with Swiss Constitutional reform of 1999 reflected only Swiss
inclination to the overarching respect for human rights and not the
1 Proceedings could be initiated by potential victims if they had locus standi
before a competent international or national body with a view to asking it to
hold the national measures to be internationally unlawful; or the victim could
bring a civil suit for damages in a foreign court, which would therefore be asked
inter alia to disregard the legal value of the national authorizing act. What is even
more important is that perpetrators of torture who act upon or benefit from those
national measures may nevertheless be held criminally responsible for torture,
whether in a foreign State, or in their own State under a subsequent regime
(Prosecutor v. Anto Furundzija, 1998).
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National Judiciary & Jus Cogens

general, global trend. However, de facto recognition of this limitation was


already recognized in 1996, when both chambers of the Swiss Federal
Parliament refused a Peoples Initiative (Volksinitiative) suggesting a
constitutional amendment which violated the peremptory prohibition of
refoulement2 by determining that asylum seekers who entered the country
illegally would be deported immediately and without the option of plea (De
Wet, 2004). States were bound to eschew the deportation of persons to a
country where they would be treated inhumanly as well as to explore the
possibilities of extradition having such results by this peremptory norm.
Since Switzerland is a country based on Rechtstaat3 principle of law, the
Federal Council proposed to the Parliament to declare the Peoples
Initiative invalid and the decision was made on 14 March 1996 not to hold
a referendum upon this

issue; rather, the explicit constitutional

recognition of jus cogens in 1999 declared that no Peoples Initiative


aimed at constitutional amendment may be in conflict with the norms of
jus cogens (ibid). Any such impetus would consequently be rejected by
the Swiss courts.
Despite the fact that peremptory norms became central orientation
for national judiciary of Switzerland in 1999, there has been a series of
cases in 1980s when the Swiss Supreme Court made a decision calling
upon the possible violation of jus cogens. Although these cases related to
other states, the rulings were made by national court; hence the general
2 Refoulement means the expulsion of persons who have the right to be
recognised as refugees. The principle of non-refoulement has first been laid out in
1954 in the UN-Convention relating to the Status of Refugees, which, in Article
33(1) provides that: "No Contracting State shall expel or return ('refouler') a
refugee in any manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion (UNESCO, 2014)."
3 Rechtsstaat is a form of state which operates on the basis of legal rules configured in a particular way. At the
heart of the theory of the Rechtsstaat is the question of the arbitrariness of power, of the potential violence
inscribed in all relations of domination, whether private or public. Rechtsstaat did not envisage a law superior to
the state, a basis for appeal to some higher notion or other source of law. Law was a characteristic of
the Rechtsstaat, but it was also its product. In this understanding, [t]he Rechtsstaat means that the law is the
structure of the State, not an external limitation to it. Liberty is a con-sequence not truly a premise of the law
(Krygier, 2013).

Nejra Hodi
National Judiciary & Jus Cogens

norms of international legal system have been applied at the national


level. The best-known of these cases referred to a request by Argentinean
government to extradite two Argentinean citizens who committed acts of
torture in the case Bufano et. al. (De Wet, Nollkaemper & Dijkstra, 2003).
According to the Extradition treaty signed on the 21 th November 1906
between Argentine Republic and the Swiss Confederation, the extradition
could be excluded only for political crimes and this particular case did not
constitute any of such elements (American Society of International Law,
1912). The Swiss Supreme Court then turned to international treaties and
looked at Article 3 of the European Convention of Human Rights 4 and
Article 3.2 of the European Convention on Extradition 5 since the indicters
accused their government of possible unfair trial (De Wet, 2004).
Argentina was a military dictatorship at the time and its government was
later prosecuted for gross human rights violations. Nonetheless, the
Argentine Republic was not a party to either of these treaties and the
Swiss Supreme Court ultimately turned to general norms of international
legal system that applied to international community as a whole and
refused the extradition. Argentine Republic was bound by the jus cogens
and since it involves prohibition of torture any treaty enabling the
transfer

of

detainees

from

one

country

to

another

in

order

to

accommodate torture practices during questioning would be null and void


(ibid). Furthermore, where a treaty itself does not violate a jus cogens
norm, but the execution of certain obligations under the treaty would have
such effect, the state is relieved from giving effect to the obligation in
question. The treaty itself would, however, not be null and void (ibid).
Swiss Supreme Courts decision clearly relied on the application of ordre
public international and reflected this notion that although extradition
belongs to the domaine rserv of a state (Linderfalk, 2007), states are
4 No one shall be subjected to torture or to inhuman or degrading treatment or punishment (ECHR, 2010).
5 The same rule shall apply if the requested Party has substantial grounds for believing that a request for
extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person
on account of his race,religion, nationality or political opinion, or that that person's position may be prejudiced
for any of these reasons (ECOE, 1957).

Nejra Hodi
National Judiciary & Jus Cogens

refrained from deporting a person to a country where she could be


exposed to torture due to jus cogens implications.

Nejra Hodi
National Judiciary & Jus Cogens

III. Hellenic Republic example


Jus cogens has also been applied by national judicial bodies to waive
state immunity i.e. enable foreign jurisdiction upon different nationals. A
distinction between functional and personal immunity has been made,
whereby actions arising out of sovereign acts are accorded immunity and
private transactions are not (Knuchel, 2011). The cases when functional
immunity was questioned have traditionally been rare because the
doctrine of par in parem non habet imperium6 has been quite respected by
the international community (ibid). With the more serious development of
the peremptory norms, it became clear that state, even in official capacity,
cannot be entitled to immunity from foreign state jurisdiction for actions
violating the jus cogens immunity did not equate to impunity any more
(Cassese, 2012). Furthermore, Knuchel explains that many human rights
advocates and legal scholars view the granting of immunity to a state or
its representatives from proceedings arising out of serious human rights
violations as artificial, unjust, and archaic, and a number of recent
decisions from domestic courts indicate that this practice might begin to
change (2011). One of these cases includes the decision of the Hellenic
courts in 1997.
On 10 June 1944, SS forces occupied the Greek village of Distomo
killing 218 people, raping women and destroying property (Bartsch &
Elberling, 2003). The indemnity claims were made in front of the Court of
First Instance of Leivadia by the survivors and relatives as well as some
political figures in order to compensate for the damage they suffered. The
Court decided in decided in favour of the claimants on 30 October 1997
ordering Federal Republic of Germany, which claimed continued legal
personality of the German Reich under which the atrocities were
committed, to pay reparations to the claimants of approximately 28 million
Euros (ibid). With a view to declare that the court itself had jurisdiction
6 An equal has no power over an equal (Knuchel, 2011).
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Nejra Hodi
National Judiciary & Jus Cogens

over a foreign sovereign state, Court had to refer to judgment of the


International Military Tribunal at Nuremberg that explicitly noted: He who
violates the laws of war cannot obtain immunity while acting in pursuance
of the authority of the State if the State in authorizing action moves
outside its competence under International Law (1946). Since this trial
was made long before the evolution of peremptory norms, the laws of war 7
became incorporated into jus cogens by the time the decision was made.
For example, these include prohibition of threat or use of force, torture,
aggression and war crimes. Hence, the Court of First Instance Leivadia
considered it to be illogical to uphold sovereign immunity in the face of jus
cogens violations, which are illegal under the laws of every sovereign
nation (de Wet, 2004). Nevertheless, Federal Republic of Germany
appealed to the decision.
In 2000, the Greek Supreme Court, faced with the claim for
compensation of damages produced by crimes committed against the
civilian population of Distomo upheld the decision of the Court of First
Instance (Knuchel, 2011). According to de Wet the Supreme Court
claimed the existence of a new rule of customary international law, in
accordance with which states could not rely on sovereign immunity for
those violations of international law which its organs committed while
present in the territory of the forum state (2004). Furthermore, if this
legal method of compensating the victims of jus cogens violation is
acknowledged, it is only logical to conclude that immunity from execution
may not be valid when confronted to such cases. Thereupon, Germany
waived its immunity by breaking jus cogens (Bartsch & Elberling, 2003).
However, Germany denied the existence of such custom. Consequently,
the case

continued

to

move

through

different

phases

from

civil

enforcement in Greece8 to European Court of Human Rights assessment.


Nevertheless, the application of jus cogens by Hellenic judicial bodies has
7 Under international law, there are certain rules to be respected with regard to
war. Jus ad bellum includes refraining from the threat or use of force in
international realtions whereas jus in bello refers to rules of war conduct such as
treatment of civilians, specific methods of warfare and humanitarian relief
(Crimes of war, 2011).
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Nejra Hodi
National Judiciary & Jus Cogens

mainly revolved around these two decisions that were analysed. The basis
of the argument was the idea that after the collision of peremptory norm
of torture prohibition and customary norm of state immunity occurs, the
former carries precedence over the latter. Such rulings emphasise the
growing tendencies of national courts to employ the peremptory norms
against the claim of state immunity.

8 On 11 July 2000, a bailiff, after gaining access to the German Goethe Institute,
began assessing the German property there although there was no consent from
Greek Minister of Justice for the seizure of foreign country's assets according to to
Art. 923 of the Greek Code of Civil Procedure. Courts dismissed these efforts as
unlawful. (Bartsch & Elberling, 2003).
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National Judiciary & Jus Cogens

IV. Conclusion
The enforcement of international law, and particularly peremptory
norms, remains a challenge for the future of international legal system.
The application of jus cogens by national judicial bodies constitutes an
important step towards this because they generally remain more effective
than international courts reflecting the still prevalent nation-state structure
of the world. Two cases that were analysed demonstrated two jus cogens
references by national judicial bodies in two different states. The first took
place in Switzerland and dealt with the issue of extradition that could have
created a scene for jus cogens violation. The second dealt with the issue of
demanding compensation from Germany based on the Greek courts
decision which violated state immunity; however, the courts referred to
the alleged peremptory norms breach and invalidated immunity claims.
These two cases seem singled out in the batch of opposing cases where
states residue immune or in power, but they nevertheless prove an
important point. Sovereignty no longer grants absolute independence from
the legal order. International law prevails over the State community as a
whole (Tomuschat & Thouvenin, 2006). If the evolution continues in this
direction, there is an open possibility that this claim would become
accurate. The first step along the way is surely the development and valid
enforcement of the jus cogens.

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V. References
BOOKS
Cassese, A., 2012., ed. Realizing Utopia: The Future of International Law.
Oxford: Oxford University Press.
Fassbender, B., 2009. The United Nations Charter as the Constitution of
the International Community. Leiden: Martinus Nijhoff Publishers.
Tomuschat, C. & Thouvenin, J.M. , eds., 2006. The Fundamental Rules of
International Legal Order. Leiden: Brill Academic Publishers.
De Wet, E., Nollkaemper,A. & Dijkstra, P., 2003. Review of the Security
Council by the Member States. Antwerp: Intersentia.

JOURNAL ARTICLES
Bartsch, K. & Elberling, B., 2003. Jus Cogens vs. State Immunity, Round
Two: The Decision of the European Court of Human Rights in the
Kalogeropoulouet al. v. Greece and Germany. German Law Journal, [online]
Vol. 4 (No. 5), p. 478-490. Available at:
http://www.germanlawjournal.com/pdfs/Vol04No05/PDF_vol_04_no_05_477491_european_bartsch_elberling.pdf [Accessed: 15 December 2014].
Bassiouni, M. C., 1996. International Crimes: Jus Cogens and Obligatio Erga
Omnes. Law and Contemporary Problems, [online] Vol. 59 (No. 4), p. 6374. Available at: http://scholarship.law.duke.edu/lcp/vol59/iss4/6
[Accessed: 15 December 2014].
Bianchi, A., 2008. Human Rights and the Magic of Jus Cogens. The
European Journal of International Law, [online] Vol. 19 (No. 3), p. 491-508.
Available at: http://www.ejil.org/pdfs/19/3/1625.pdf [Accessed: 15
December 2014].
De Wet, E., 2004. The Prohibition of Torture as an International Norm of jus
cogens and Its Implications for National and Customary Law. The European
Journal of International Law, [online] Vol. 15 (No. 1), p. 97-121. Available
at: http://ejil.org/pdfs/15/1/349.pdf [Accessed: 17 December 2014].
Linderfalk, U., 2007. The Effect of Jus Cogens Norms: Whoever Opened
Pandoras Box, Did You Ever Think About the Consequences?. The
European Journal of International Law, [online] Vol. 18 (No. 5), p. 853-871.
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Available at: http://www.ejil.org/pdfs/18/5/248.pdf [Accessed: 15


December 2014].
Knuchel, S., 2011. State Immunity And The Promise Of Jus Cogens.
Northwestern Journal of International Human Rights, [online] Vol. 9 (No. 2).
Available at: http://www.globethics.net/gel/5109471 [Accessed: 20
December 2014].
Krygier, M., 2013. Rule of Law (and Rechtsstaat). UNSW Law Research
Paper, [online] (No. 52). Available at: http://ssrn.com/abstract=2311874
[Accessed: 18 December 2014].
American Society of International Law, 1912. The American Journal of
International Law, [online] Vol. 6 (No. 4), p. 219. Available at:
http://www.jstor.org/stable/2212182?seq=1#page_scan_tab_contents
[Accessed: 18 December 2014].

OTHER SOURCES
Crimes of War, 2011. Jus ad bellum, jus in bello. Available at:
http://www.crimesofwar.org/a-z-guide/jus-ad-bellum-jus-in-bello/
[Accessed: 20 December 2014].
Council of Europe, 1957. European Convention on Extradition. Paris.
Available at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/
file/117678/european-convention-extradition.pdf [Accessed: 18 December
2014].
European Court of Human Rights, 2010. European Convention on Human
Rights. Available at:
http://www.echr.coe.int/Documents/Convention_ENG.pdf [Accessed: 18
December 2014].
International Military Tribunal Nuremberg, 1946. Judgement. Available at:
http://crimeofaggression.info/documents/6/1946_Nuremberg_Judgement.p
df [Accessed: 20 December 2014].
International Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law Committed in the
Territory of the Former Yugoslavia since 1991, [1998]. Prosecutor v. Anto
Furundzija, Case No.: IT-95-17/1-T. p. 59. Available at:
http://www.icty.org/x/cases/furundzija/tjug/en/fur-tj981210e.pdf [Accessed:
17 December 2014].
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UNESCO, 2014. Refoulement. Available at:


http://www.unesco.org/new/en/social-and-humansciences/themes/international-migration/glossary/refoulement/
[Accessed: 18 December 2014].
Vienna Convention on the Law of the Treaties, 1969. [pdf] Vienna.
Available at: https://treaties.un.org/doc/Publication/UNTS/Volume
%201155/volume-1155-I-18232-English.pdf
[Accessed: 15 December 2014].

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