Bert Swart — An Obituary

With the international criminal tribunals and the International Criminal Court (ICC) constantly in the limelight, one is easily inclined to forget that their legal functioning is heavily indebted to constructs and concepts which were developed for ‘classic’, inter-state international criminal law. The principle of complementarity, entailing a division of labour between the ICC and domestic jurisdictions, reflects the efforts of states to find ‘the best place for prosecution’, governed by the principle of ‘proper administration of justice’. Mutual assistance between international tribunals/courts and states is predicated, with the necessary modifications, upon time-honoured forms of inter-state cooperation in criminal matters, such as extradition and transfer of prisoners.

This ‘classic’ international criminal law was one of the academic realms in which the great Dutch scholar, Bert Swart, excelled. Bert passed away on 17 February 2011 after a long illness. He could look back on an impressive career, both as an academic and as a judge. After completing his studies in law at Nijmegen University (1959–1964) and in Poitiers (1964–1965), Bert became assistant professor at the ‘Van Hamel Seminarium’ of the University of Amsterdam.¹ In 1978, he defended his doctoral thesis on ‘The Admission and Expulsion of Aliens’.² The choice of this topic reflected his life-long concern with the predicament of the individual citizen, especially those who seek to be mobile, in life as over territory. While he fully acknowledged the importance of (criminal) law enforcement and the need for inter-state cooperation to that purpose, he realized that individual human beings could easily be crushed between the vice like grip of sovereign powers, seeking their own interests and single-mindedly focusing on optimal efficiency.

Bert’s humane commitment inspired him to dedicate his attention to extradition law. He wrote seminal essays on disguised extradition,³ the political offence exception in extradition law,^{4 …}