7.  Jus Cogens as the ‘Highest Law’? Peremptory Norms and Legal Hierarchies

1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331.

As formulated by the Arbitration Commission on Yugoslavia: ‘subject … to compliance with the imperatives of general international law’. Arbitration Commission on Yugoslavia, Opinion N. 10, 4 July 1992.

North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), ICJ, Judgment of 20 February 1969, Separate Opinion of Judge Padilla Nervo, at 97; ibid., Dissenting Opinion of Judge Tanaka, at 182; ibid., Dissenting Opinion of Judge Sørensen, at 248; Human Rights Committee, General Comment 24, General comment on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under Article 41 of the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.6, 4 November 1994, para 8; Case concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), ICJ, Judgment of 3 February 2006, Joint Separate Opinion of Judges Higgins, Koojimans, Elaraby, Owada and Simma, para 29.

According to Cassese this is implied in the resolution of the Institut de droit international, New Problems of Extradition, 60 Annuaire Part II, at 306. Cassese 2005, at 208.

See Cassese 2012, at 161–162, referring to Wald (Princz v Federal Republic of Germany, 26 F3d 1166 (US DC Circuit Court of Appeals 1994), Dissenting Opinion of Judge Wald, at 1176–1185); Ferrini v. Federal Republic of Germany, Italian Court of Cassation, No. 5044, 11 March 2004, paras 5, 9–10.

For an overview of these and further legal effects of jus cogens, see Cassese 2005, at 205–208.

For an analysis, see Kleinlein 2012, at 361–409.

Cannizzaro 2014, at 261.

For an analysis of the case law, see Kleinlein 2012, at 388–397. One of the rare cases seems to be the Ferrini case. Still, it is not entirely clear whether Ferrini was decided on these grounds. See Bianchi 2008, at 500–501; Milanović 2009, at 71. In Lozano v. Italy, the Italian Court of Cassation only said in obiter dictum that the immunity ratione materiae of a US serviceman could be lifted in the event of an international crime. Lozano v. Italy, Italian Court of Cassation, No. 31171, 24 July 2008. Compare with Webb 2012, at 122–123.

For the fate of jus cogens at the ICJ, see Gaja 2012, at 57–59; Kadelbach 2016.

1945 Charter of the United Nations, 1 UNTS XVI.

This is the overwhelming view, see Paulus and Leiß 2012, paras 75–80.

International Law Commission, Fragmentation of international law: difficulties arising from the diversification and expansion of international law, Report of the Study Group of the International Law Commission, 58th session, UN Doc. A/CN.4/L.682, 13 April 2006, para 365 (Fragmentation of international law); Milanović 2009, at 74 and 77.

Kadelbach 2005, at 34.

For a concise overview, see Guastini 2013, at 47–48. All these hierarchies refer to relations between legal norms and, as such, are not hierarchies in a broader, political or sociological sense. For a ‘sketch’, see Koskenniemi 1997.

See Merkl 1931, at 276; Merkl 1968b, at 1340; Walter 1964, at 60–65. The original formulation was: ‘Stufenbau nach der rechtlichen Bedingtheit’. Suggestions for translation by Jakab 2007, at 48 ff. cf et seq.; and Kammerhofer 2011, at 181.

Walter 1964, at 61. For the translation, I rely on Kammerhofer 2011, at 181.

Kelsen 1991, at 102; for the German text, see Kelsen 1979, at 82–83. Kelsen refers to the empowerment of individuals as law-makers.

Kelsen 1949, at 125.

Merkl 1931, at 276; Merkl 1968b, at 1340.

Kelsen 1949, at 124; Merkl 1931, at 276.

Guastini 2013, at 52.

Merkl 1931, at 258.

Merkl 1968a.

Öhlinger 1975, at 22. See also Walter 1964, at 57–59.

Merkl 1931, at 276. Kelsen never adopted this hierarchy according to derogatory power. For possible reasons, see Behrend 1977, at 42; Jakab 2007, at 56.

Öhlinger 1975, at 18–19.

Kelsen 1991, at 125. For the German text, see Kelsen 1979, at 101.

Kelsen 1991, at 125.

Hart 1961, at 92. The distinction between primary and secondary rules is rather common. However, there are various meanings to the distinction. See Bobbio 1970, at 175–177. In international law, a narrower understanding of secondary rules seems to prevail. It resembles more Alf Ross’s, who distinguishes ‘substantive or primary law’ and ‘a second part, which we may call the law of sanction, or secondary law’. Ross 1959, at 209–210. Since the International Law Commission (ILC) introduced the distinction in the law of state responsibility, the prevailing distinction in international law seems to be a distinction between rules about conduct and rules on sanctions in case of a violation. See Crawford 2002, at 14.

Hart 1961, at 226–231.

For a reassessment, see Payandeh 2011.

Hart 1961, at 89–91.

Ibid., at 92, 147–148.

Prost 2012, at 91–105.

Weil 1983, at 424–429.

Fastenrath 1993.

For natural law approaches to jus cogens, see Janis 1988, at 361; Dubois 2009 (from the perspective of the ‘new natural law’ of Germain Grisez, John Finnis and Robert George); Orakhelashvili 2006, at 8; O’Connell 2012, at 78 (‘category of higher ethical norms’).

Kadelbach 1992, at 130; Kolb 1998, at 77–79.

Christenson 1988, at 594–595, referring to Hart 1961, at 208–231. Hart himself, by contrast, did not believe that international law had yet developed secondary norms.

Linderfalk 2009, at 963–964; Linderfalk 2011b, at 361; Linderfalk 2013, at 375.

Kadelbach 1992, at 176.

On the ‘metamorphosis’ of jus cogens, see Zemanek 2011. For an early analysis of jus cogens ‘beyond the Vienna Convention’, see Gaja 1981.

Kelsen 1949, at 124.

See Gaja 2012, at 46–47.

1945 Statute of the International Court of Justice, 33 UNTS 993.

Kadelbach and Kleinlein 2006, at 253–254.

The phrase ‘becomes void and terminates’ in Article 64 VCLT is somehow inconclusive due to a standoff in the debates of the International Law Commission. The discussions in the ILC concerned the question whether the provision that is now Article 64 VCLT referred to a ground for invalidity and belonged in the section on the invalidity of treaties—like Article 53 VCLT—or whether it was a ground for the termination of a treaty. Article 64 VCLT finally ended up in the section on the termination and suspension of the operation of treaties. Its wording, however, somehow unsatisfactorily tries to fuse the views preferring invalidity and termination. See Lagerwall 2011, at 1477.

Sinclair 1984, at 225.

Kelsen 1962, at 339; Kelsen 1991, at 106; for the German text, see Kelsen 1979, at 85.

Simma 1994, at 285.

Meron 1986, at 14; Frowein 2012, paras 1 and 3. Kolb defines jus cogens as a judicial technique that commands a special effect of certain norms with regard to their derogability. According to him, jus cogens is neither substantive law nor a source of law. Rather, it is an attribute inherent in certain norms which determines their special consequences in certain respect, namely that of derogation. Kolb 2001, at 172–173.

Kelsen 1991, at 257; for the German text, see Kelsen 1979, at 207.

Matz 2005, at 245.

International Law Commission, Summary records of sixteenth session, UN Doc. A/CN.4/SER.A/1964, 1964, at 121.

Pauwelyn 2003, at 279 (italics in original). See also Kelsen 1991, at 225; for the German text, see Kelsen 1979, at 170.

A corresponding distinction refers to divergences, on the one hand, and to conflicts, on the other, see Jenks 1964, at 425–426.

Fragmentation of international law, para 23.

Ibid., para 25.

Wiederin 1990, at 318–325. See already Kelsen 1991, at 123; for the German text, see Kelsen 1979, at 99. For an application of this definition to international law, see Vranes 2006; and Pulkowski 2014, at 149.

Orakhelashvili 2006, at 136–139. He does not rely on legal theory for defining what constitutes a conflict, but on the Oxford English Dictionary.

Cf. Cannizzaro 2011, at 441.

Ibid., at 440; de Wet 2013, at 549.

Linderfalk 2009, at 972.

Vidmar 2013, at 21.

Mik 2013, at 34.

Schröder 2012, para 4.

Kelsen 1991, at 107; for the German text, see Kelsen 1979, at 85.

Rousseau 1944, at 342; Minagawa 1968, at 17. See also Bianchi 2008, at 495–496.

Weil 1983, at 429–430.

For an early statement to that effect, see Suy 1967, at 75. For Cançado Trindade this is even an ‘ineluctable consequence of the affirmation and the very existence of peremptory norms’. Cançado Trindade 2011, at 30. With regard to the effects of jus cogens in domestic law, the judgment of the ICTY in the Furundzija case famously claimed that national law authorising or condoning jus cogens violations such as torture had no legal effect. Prosecutor v. Furundžija, ICTY, Trial Chamber, Judgment, Case No. IT-95-17/1-T, 10 December 1998, para 155. See also the Order of the Criminal Chamber of the Spanish Audiencia Nacional affirming Spain’s jurisdiction, order of 5 November 1998 (Pinochet), legal ground no. 8; Simon, Julio, Del Cerro Juan Antonio, Argentina, Federal Judge Gabriel R. Cavallo, case No. 8686/2000, judgment of 6 March 2001, at 64–104. These statements, however, remained exceptions. On the basis of jus cogens as a structural hierarchy, this argument would depend on the premise that international and domestic law form one system. On the basis of a dualist approach, the argument simply would not work. In terms of a substantial hierarchy, we should look for an international order that demands from states to invalidate conflicting domestic law. This is a special form of derogatory power which depends on involving an authority that decides the issue.

Kawasaki 2006, at 34.

Fragmentation of international law, para 367.

T-306/01, Yusuf and Al Barakaat International Foundation v. Council and Commission, [2005] ECR II-3533, paras 280–281; T-315/01, Kadi v Council and Commission, [2005] ECR II-3649, paras 229–230. See also Fassbender 1998, at 590–591.

Doehring 1997, at 98; Orakhelashvili 2005, at 67; Orakhelashvili 2006, at 429–431.

Nabil Sayadi and Patricia Vinck v. Belgium, Human Rights Committee, Communication No. 1472/2006, U.N. Doc. CCPR/C/94/D/1472/2006, 29 December 2008; Ibid, Individual opinion of Committee member Sir Nigel Rodley (concurring), at 36; Al-Jedda v. The United Kingdom, ECtHR, No. 27021/08, 7 July 2011, paras 101–102.

de Wet 2004, at 195–204.

But see Orakhelashvili 2005, at 69–70; Orakhelashvili 2006, at 437–438. He distinguishes three different ways in which peremptory norms apply to acts of the Security Council without clarifying the relationship between these three modes of interaction: ‘[T]hey are embodied in the UN Charter; they apply to the Council as a treaty-based organ through the law of treaties; and they have a direct, or autonomous, effect on the Council’s decisions.’

Barberis 1970, at 43–44; Kammerhofer 2011, at 187.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), ICJ, Request for the Indication of Provisional Measures, 13 September 1993, Separate Opinion of Judge ad hoc Lauterpacht, para 100; Prosecutor v. Furundžija, ICTY, Trial Chamber, Judgment, Case No. IT-95-17/1-T, 10 December 1998, para 153; Al-Adsani v. The United Kingdom, ECtHR, No. 35763/97, 21 November 2001, Joint Dissenting Opinion of Judges Rozakis et al., para 3; Shelton 2002, at 329; Fragmentation of international law, para 367. See also Restatement (Third) of the Foreign Relations Law of the United States, § 102 Comment k; Zemanek 2011, at 394–396.

Al-Adsani v. The United Kingdom, Joint Dissenting Opinion of Judges Rozakis et al., para 1.

Rozakis 1976, at 22.

Virally 1966, at 18.

Ibid., at 18; Rozakis 1976, at 22.

Cf. Matz 2005, at 245.

For problems ensuing from the uncertain date of the entry into force of customary rules, see Zemanek 2011, at 394–395.

Vidmar 2013, at 15.

See Mik 2013, at 42. But for the problems of a recent norm change with regard to the prohibition on the use of force and the right of self-defence, see Linderfalk 2008, at 859–863.

Kawasaki 2006, at 31.

Kelsen 1962, at 339; Kelsen 1991, at 106. For the German text, see Kelsen 1979, at 85.

See Article 4 of the 1966 International Covenant on Civil and Political Rights (ICCPR), 999 UNTS 171; Article 15(2) of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222; Article 27(2) of the 1969 American Convention on Human Rights, 1144 UNTS 123; Article 2 of the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85; Article 6 of the 1985 Inter-American Convention to Prevent and Punish Torture, OASTS No. 67, 25 ILM 519. For compilations cf. Hannikainen 1988, at 429–434; Kadelbach 1992, at 284–315; and Kadelbach 2005, at 30.

See Common Article 1 of the four 1949 Geneva Conventions (1949 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 75 UNTS 31; 1949 Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 75 UNTS 85; 1949 Convention relative to the Treatment of Prisoners of War (Third Geneva Convention), 75 UNTS 135; 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 75 UNTS 287). Common Article 3 spells out core guarantees which no party may dispense with, such as the obligation to treat persons taking no active part in the hostilities humanely, or the prohibitions against wanton killing, torture, taking of hostages, degrading treatment of all kinds and summary executions without fair trial. See also Article 75(2) of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 UNTS.3; and Article 4(2) of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 UNTS 609. Cf. Kadelbach 2005, at 30–31.

See, e.g. Meron 1986, at 93. Meron criticises the US Third Restatement for identifying the prohibition of prolonged arbitrary detention as a jus cogens rule. His argument is that the prohibition is not mentioned among the non-derogable rights in Article 4 ICCPR.

Michael Domingues v. United States, Inter-American Commission on Human Rights, Case 12.285, Report No. 62/02, 22 October 2002, para 49 (‘reliable starting point’); Shelton 2002; Shelton 2006, at 314; Nada v Staatssekretariat für Wirtschaft, Swiss Federal Tribunal, 14 November 2007, IA 45/2007; DTF 133 II 450, para 7.1 (‘Indizien’).

Hannikainen 1988, at 263–364; Kadelbach 2005, at 30–31.

See, also, Hameed 2014, at 70-72. In his view non-derogability ‘is not sufficiently determinative of jus cogens status per se’.

Human Rights Committee, General Comment No. 29: States of emergency (Article 4), UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001, para 11.

Oeter 2007, at 509–510.

Hameed 2014, at 70.

Kadelbach 2005, at 325. In his view, non-derogability can be seen as the ‘common denominator’ of all jus cogens norms.

See Gaja 2012, at 48.

Simma 1994, passim.

Annacker 1994a, at 324.

Simma 1994, at 233; adopted by Wolfrum 2011, at 1132. See also Annacker 1994b, at 135–137; Seiderman 2001, at 128–129, 276; Crawford 2011, at 229.

Wolfrum 2011, at 1435.

Feichtner 2012, paras 15, 19, 22 and 41.

Wolfrum 2011, at 1436.

International Law Commission, Articles on the Responsibility of States for Internationally Wrongful Acts, 53rd session of the ILC, UNGA Res 56/83, 12 December 2001 (ASR).

Tams 2005, at 134–135 insists that obligations erga omnes only belong to the first category and, for this reason, rejects a structural approach to the identification of obligations erga omnes.

Ago 1989, at 237; Gaja 1989, at 154. See also de Hoogh 1996, at 53 (‘misnomer’); Crawford 2011, at 226–227.

Tams 2005, at 102.

See J Crawford, Special Rapporteur, Third report on state responsibility, U.N. Doc. A/CN.4/507 and Add. 1–4, para 106. See also Byers 1997.

Gaja 2012, at 55–56.

Fragmentation of international law, para 380.

Tzanakopolous 2012, at 49.

Paulus and Leiß 2012, para 68.

International Law Commission, Report of the International Law Commission on the work of the second part of its seventeenth session, 17th session of the ILC, A/6309/Rev.l, 1966, at 248.

Or Common Article 6/6/6/7 of the Geneva Conventions.

This is how discussions of hierarchies in international law very often begin. See, e.g. de Wet and Vidmar 2012, at 1; Mik 2013, at 27–28.

Shelton 2006, at 291; Shelton 2014, at 137.

The exception may be the Security Council’s law-making activity in the field of international peace and security.

Rozakis 1976, at 24.

Walter 1964, at 59.

Janis 1988, at 362; Kammerhofer 2011, at 176–177.

Gaja 2012, at 56 (‘not without ambiguity’).

Czapliński 2005, at 91–92; also, see Kawasaki 2006, at 30; Vidmar 2012, at 25–56.

Paulus 2005, at 302–303.

United Nations Conference on the Law of Treaties, Summary records of meetings of the Committee of the Whole, 1st session, UN Doc. A/CONF.39/11, 1968, at 472, para 12. Also, consider the statement by US delegate Kearney, who referred to the ‘absence of dissent by any important element of the international community’ (United Nations Conference on the Law of Treaties, Summary records of meetings of the Committee of the Whole, 2nd session, UN Doc. A/CONF.39/11/Add.1, at 102, para 22). See Gaja 2012, at 56–57.

Paulus 2005, at 325.

Seiderman 2001, at 53. This is a contested issue. For an overview, see Payandeh 2010, at 345–347.

Vidmar 2012, at 26.

Emphasis added.

Hameed 2014, at 69. Some regard it as an international constitution (Breau 2008, at 550); other authors refer to jus cogens as ‘international ordre public’ (Orakhelashvili 2006, at 7–35). Cf. Linderfalk 2012, at 10.

Kolb 1998, at 76–77 and 80.

International Law Commission, Reports of the International Law Commission on the second part of its seventeenth session and on its eighteenth session, UN Doc. A/6309/Rev.1, 3-28 January 1966, at 261. It can be traced back to the beginning of the International Law Commission’s works on jus cogens and the second rapporteur, Sir Hersch Lauterpacht (Mr. H. Lauterpacht, Special Rapporteur, Report on the law of treaties, UN Doc. A/CN.4/63, 24 March 1953, at 155). Lauterpacht’s successors pursued this approach (for the view of Fitzmaurice, third rapporteur, see G.G. Fitzmaurice, Special Rapporteur, Third report on the law of treaties, UN Doc.A/CN.4/115, 18 March 1958, at 45). While the solution adopted in the end, inspired by Sir Humphrey Waldock (International Law Commission, Reports of the International Law Commission on the second part of its seventeenth session and on its eighteenth session, UN Doc. A/6309/Rev.1, 3-28 January 1966, at 261), leans towards the effects of a peremptory norm, it nevertheless shows no intent to depart from the notion put forward by his predecessors. Kadelbach 1992, at 39 (text and n. 30); Kolb 1998, at 92–93.

Fragmentation of International Law, at 182.

Commentary on Article 26 of International Law Commission, Draft articles on the responsibility of states for internationally wrongful acts, with commentaries, 53rd session of the ILC, UN Doc. A/56/10, 2001, para 5; Crawford 2002, at 188.

Case concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), ICJ, Judgment of 3 February 2006, para 64; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), ICJ Judgment of 3 February 2015, para 87; Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), ICJ, Judgment of 20 July 2012, para 99.

See, e.g. Paulus 2005, at 306. For a table that summarises the proposals of the ILC and determinations of various international bodies, see Mik 2013, at 56–57.

Besson 2010, at 171 and 183.

Hameed 2014, at 94.

Ibid., at 92. See also Thirlway 2014, at 162 (‘the idea of jus cogens contains an ineradicable moral element’).

Ratner 2015, at 21.

Kadelbach 1992, at 167.

Mosler 1968; Mosler 1974, at 35; O’Connell 2012, at 84. Cf. Hoffmeister and Kleinlein 2012.

Gaja 2012, at 54.

Hameed 2014, relying on Raz 1979a; and Raz 1979b.

For this view, see Hameed 2014, at 93. Hameed here also relies on Raz, who, however, simply says that ‘the weight or strength of legal reasons … do for the most part provide enough indications as to how resolve conflicts of legal reasons.’ Raz 1979b, at 74.

Cf. Fragmentation of international law, para 380.

Linderfalk 2011a, at 9.

Tzanakopolous 2012, at 69. For Tzanakopoulos, this is at least a possible argument for the claim that certain human rights guarantees occupy ‘a superior hierarchical level than the rest of international law, whether they can be argued to partake in the status of jus cogens or to establish an immediate hierarchical category between jus cogens and jus dispositivum’.

de Wet and Vidmar 2013, at 202.

Raz 1972, at 833–834. It is possible to say that conflicts between legal principles are decided only on the basis of their abstract weights, whereas in case of conflicting rules we look at the specific circumstances. However, this is not a necessary distinction.

Linderfalk 2012, at 15–18.

For the ‘structural biases’ of international institutions, see Koskenniemi 2009, at 9–12.

Siderman de Blake v. Republic of Argentina, United States Court of Appeals for the Ninth Circuit, 965 F. 2d 699, at 715; Furundžija, para 153.

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), ICJ, Merits, Judgment of 27 June 1986, para 190. In Nicaragua, however, the Court did not embrace the concept of jus cogens. For a different interpretation, see Orakhelashvili 2006, at 41–42.

Cannizzaro 2014, at 268.

See, e.g. de Wet 2006, at 61–62. See also Kirchner 2004.

For the problems of the so-called ‘material approach’ to the identification of obligations erga omnes, see Tams 2005, at 136–157; Linderfalk 2011a, at 9–10.

With regard to obligations erga omnes, see Ragazzi 2001, at 183.

Vidmar 2012, at 26.

Milanović 2009, at 78–79; Chinkin 2006, at 63.

Shelton 2014, at 157.

Hameed 2014, at 68.

Fragmentation of international law, para 178; Tzanakopolous 2012, at 66.

Jakab 2007, at 57–58.

Kadelbach 2005, at 34; Gaja 2012, at 53.

International Law Commission, Draft articles on the responsibility of states for internationally wrongful acts, with commentaries, 53rd session of the ILC, UN Doc. A/56/10, 2001, para 4; Crawford 2002, at 188.

Vidmar 2012, at 31.

Kawasaki 2006, at 41–42. Article 41(2) ASR does not state that the act of recognition would be void but establishes a duty not to recognise.

This is, however, the view of Reuter 1989, at 360. For further references, see Guide to Practice on Reservations to Treaties. International Law Commission, Guide to Practice on Reservations to Treaties, 63rd session of the ILC, UN Doc. A/66/10, 2011, at 374. For problems of a direct application of Article 53 VCLT, see Zemanek 2011, at 392.

A. Pellet, Special Rapporteur, First report on the law and practice relating of reservations to treaties UN Doc. A/CN.4/470, 30 May 1995, paras 100–105.

Gaja 2012, at 50–51.

For the ICCPR: Human Rights Committee, General Comment 24, General comment on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under Article 41 of the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.6, 4 November 1994, para 8.

Zemanek 2011, at 392 (‘stopgap argument’).

Human Rights Committee, General Comment 24, para 8.

Vidmar 2012, at 29. See Case Concerning Armed Activities on the Territory of the Congo (New Application 2002) (Democratic Republic of the Congo v Rwanda), ICJ, Jurisdiction and Admissibility, Judgment of 3 February 2006, para 64; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ, Judgment of 14 February 2002, para 58; Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), ICJ, Judgment of 3 February 2012, para 95; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), ICJ, Judgment of 3 February 2015, paras 87–88; Jones v. Saudi Arabia, House of Lords, (2007) 1 AC 270, ILR, Vol. 129, at 629).

By contrast, Orakhelashvili 2007, at 968–969 assumes that the peremptory prohibition of torture and the existence of jurisdiction in the particular case already imply that there is an obligation incumbent on the forum to enforce that prohibition.

O’Connell 2012, at 80.

Vidmar 2012, at 33.

Kawasaki 2006, at 40.

Vidmar 2012; Hameed 2014; Orakhelashvili 2006; Linderfalk 2012.

Focarelli 2008, at 454.

Pellet 2006, at 83–84.

Linderfalk 2008, at 856.