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Aut Dedere, aut Judicare: The Extradite or Prosecute Clause in International Law

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Claire Mitchell

1. Sources of the “aut dedere aut judicare” obligation

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  • 9 In examining Security Council resolutions as a potential source for the obligation to extradite or (...)

1The traditional place to start in ascertaining an international obligation’s sources is article 38(1) of the Statute of the International Court of Justice, which identifies these as international conventions, international custom as evidence of a general practice accepted as law, the general principles of law recognised by civilised nations and as a subsidiary source, the teachings of the most highly qualified publicists of the various nations. To this list could be added Security Council decisions taken under Chapter VII of the Charter of the United Nations, which, although binding on Member States by virtue of a treaty obligation in article 25 of the Charter, shall be considered separately.9 To ascertain the nature and scope of the aut dedere aut judicare obligation in international law, the various sources will be examined in turn.

1.1 Conventions or treaties

Multilateral treaties

  • 10 Several writers have suggested that extradite or prosecute clause appears in at least 70 internati (...)
  • 11 Annex I sets out each treaty containing an aut dedere aut judicare clause, the date opened for sig (...)

2The aut dedere aut judicare clause exists in various forms in 30 multilateral treaties and in 18 regional conventions.10 A table of the obligation as it appears in the various multilateral and regional conventions is attached as Annex I to this paper.11

  • 12 Draft Convention for the Prevention and Punishment of Terrorism, 16 November 1937, 19 League of Na (...)

3The first convention containing an extradite or prosecute clause was the 1929 International Convention for the Suppression of Counterfeiting Currency, which provided, first, that where a State’s domestic law did not allow the extradition of nationals, nationals returning to their State after committing a crime under the Convention “should” be punishable in the same manner as if the crime had been committed in that State. Secondly, foreigners who commit an offence under the Convention abroad and are now in a country whose domestic legislation recognises the extra-territorial application of criminal law “should” be punished as if the crime had occurred within that State, provided that there had been a request made for the offender’s extradition that had been refused for reasons not connected with the offence. This obligation was repeated in the 1936 Convention for the Suppression of the Illicit Traffic in Dangerous Drugs and the 1937draft Convention for the Prevention and Punishment of Terrorism,12 with the exception that the aspirational “should” was replaced with the obligatory “shall”. What is noteworthy about this form of the clause, at least in so far as it concerns foreigners, is that it did not incorporate an obligation to establish jurisdiction: the obligation to extradite or punish applied only if the State’s domestic legislation already recognised the extra-territorial application of criminal law. It therefore would have had little effect in ensuring that all offenders were prosecuted, even if the convention had near universal membership.

  • 13 It should be noted that each of these conventions also expressly covers the situation of an offend (...)
  • 14 In the case of the two latter treaties, the obligation to prosecute a national who is not extradit (...)

4In requiring a State to extradite or prosecute a national who committed a crime elsewhere and has since returned to his or her country,13 the operation of the extradite or prosecute clause in these conventions depended on the State being able to separately establish extra-territorial jurisdiction over its nationals, which is less controversial for States than establishing extra-territorial jurisdiction over the acts over foreigners for their conduct abroad. In this respect, the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others in 1950 repeated the obligation in respect of nationals who committed a crime elsewhere, but contained no obligation for the extradition or prosecution of foreigners. Similarly, several recent treaties, the Optional Protocol to the Convention of the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography in 2000, the UN Convention against Transnational Organised Crime in 2000, and the 2003 UN Convention against Corruption all only require prosecution of a national in the absence of extradition.14

  • 15 The text of these conventions, and others containing an aut dedere aut judicare obligation, are se (...)
  • 16 For a full discussion of the prosecute or extradite clause in the Geneva Conventions, and how it o (...)

5The four Geneva Conventions of 1949 all include an identical form of the extradite or prosecute clause in respect of grave breaches,15 obliging High Contracting Parties to enact legislation necessary to provide effective penal sanctions for those committing grave breaches regardless of nationality, and to search for, and prosecute, offenders. As an alternative, the State may elect to “hand such persons over for trial” to another High Contracting party, provided that the other State has made out a prima facie case.16

6The prosecute or extradite clause was developed further with the Single Convention on Narcotic Drugs in 1961, the wording of which is repeated in the Convention on Psychtropic Substances in February 1971, requiring the territorial State or custodial State to prosecute the alleged offender if extradition is not accepted in conformity with the law of the requested State. Neither of these conventions expressly require States to establish jurisdiction to enable them to prosecute those found on their territory, nor is the clause’s operation conditional upon there already being such legislation in existence. The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances in 1988 also provides an obligation to extradite or prosecute without expressly demanding the establishment of jurisdiction, nor being conditional upon such jurisdiction being already present, although in this case, the obligation is to “submit the case to its competent authorities for the purpose of prosecution”.

7The best known version of the aut dedere aut judicare clause was first drafted for the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, which provides:

A.4(2) Each Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offence in the case where the alleged offender is present in its territory and it does not extradite him pursuant to Article VIII to any of the States mentioned in paragraph 1 of this Article

A.7. The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.

  • 17 These are the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (...)
  • 18 Neither the Convention against Torture nor the Convention against Forced Disappearances contain th (...)
  • 19 White, “The Hague Hi-Jacking Convention”, 6 The Review International Commission of Jurists, 1971, (...)
  • 20 Mankiewicz, “The 1970 Hague Convention”, 37 Journal of Air Law and Commerce, 1971, pp. 195-210 at (...)
  • 21 Lee, “International Suppression of Hijacking”, in Bassiouni, M.C., International Terrorism and Pol (...)
  • 22 Bin Cheng, “Aviation, Criminal Jurisdiction and Terrorism: The Hague Extradition/Prosecution Formu (...)
  • 23 This additional wording is included in some, but not all, of the subsequent conventions using the (...)
  • 24 Mankiewicz seems to consider that there remains an absolute obligation to prosecute alleged hijack (...)

8It has been applied, more or less word for word, in 15 further multilateral conventions.17 In this form, a States is obliged first, to take measures to establish jurisdiction over the offence where the alleged offender is present in its territory and it does not extradite him. Thereafter when the alleged offender is found on a State’s territory and it does not extradite him, the State is obliged “without exception whatsoever”18 and whether or not the offence was committed on its territory, to submit the case to its competent authorities for the purpose of prosecution. At the time of its negotiation, it was very clear to all involved that the Hague Convention must provide a legal framework to ensure that air hijackers would not go unpunished.19 For this reason, the convention made compulsory jurisdiction central, not only for the State of registration of the plane, the State of landing and the State of the lessee of the plane, but also for the State in whose territory an alleged offender was present, should that State elect not to extradite. In the international political climate of 1970, the extradite or prosecute clause was seen as a necessary inclusion in the convention to prevent the possibility of a hijacker simply choosing to disembark in a country that would not prosecute.20 During the discussions prior to the treaty’s adoption, the United States’ request for a mandatory extradition provision was rejected because of the international traditions of asylum.21 Similarly, the suggestion of an absolute obligation to prosecute a hijacker was rejected by a number of States that wished to retain their traditional discretion to decide whether to prosecute in the light of all the facts. The matter was resolved at the very last minute by not obliging the custodial State to prosecute as such but “to submit the case to its competent authorities for the purpose of prosecution”.22 The Hague formula is then further nuanced with the addition of the words: “Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State”.23 This wording retains a State’s discretion to consider whether prosecution is appropriate for legal reasons, but should a decision not to prosecute be made for political rather than legal reasons, the State would be obliged to extradite the alleged offender.24

  • 25 However, such a clause tends not to be included where a convention is not principally criminal in (...)
  • 26 See for example the Council of Europe’s 2001 Convention on Cyber-crime and its 1999 Criminal Law C (...)
  • 27 See for example the Council of Europe’s Convention on the Prevention of Terrorism in 2005, the Afr (...)
  • 28 The Council of Europe’s Convention on Action Against Trafficking in Human Beings in 2005 requires (...)
  • 29 The exceptions to this are the Convention of the Organization of the Islamic Conference on Combati (...)

9Regional criminal conventions began to include an extradite or prosecute clause from the 1970s onward, concomitant with the development of regional criminal conventions. In fact, all regional conventions which are purely criminal nature include a version of the aut dedere aut judicare clause.25 A full list of these treaties is included in Annex I. What is most noteworthy about these treaties is that there is little consistency between the wording of these clauses. Some versions are limited to prosecuting nationals in default of extradition.26 Other conventions include broader extradite or prosecute clauses, not limited to only the non-extradition of nationals.27 Yet others allow the creation of jurisdiction to enable a State to prosecute someone on its territory who it elects not to extradite, although do not then oblige the State to so prosecute.28 Perhaps because all of the regional conventions post-date the development of the “Hague formula”, with its saving of prosecutorial discretion, most contain an obligation to submit the case to prosecutorial authorities, rather than the stricter obligation to prosecute or “to take proceedings against” the alleged offender.29

  • 30 The Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature on (...)
  • 31 Yearbook of the United Nations, 1948-49, New York, Columbia University Press, 1950, pp. 953-962. W (...)
  • 32 26 February 2007, paragraph 442. This decision would seem on first reading to be in contrast to th (...)
  • 33 International Convention for the Suppression and Punishment of the Crime of Apartheid, 1015 UNTS 2 (...)
  • 34 Convention for the Prohibition of the Development, Production, Stockpiling and Use of Chemical Wea (...)
  • 35 Basel Convention on Control of Transboundary Movements of Hazardous Wastes and their Disposal, 167 (...)

10It is interesting to also consider those criminal conventions that do not include an extradite or prosecute clause. The Genocide Convention does not contain such a clause, providing in article VI that persons charged with genocide are to be tried by a competent tribunal of the territorial State, or by such international penal tribunal as may have jurisdiction.30 As regards extradition, in article VII the Contracting Parties pledge merely to grant extradition in accordance with their laws and treaties in force. It is clear from the summaries of the Sixth Committee charged with drafting the convention and the General Assembly in plenary session that an extradite or prosecute obligation extending to a duty to prosecute or extradite non-nationals for acts committed outside the State was not discussed.31 In its recent decision on the merits in the Case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), the International Court of Justice (ICJ) held that as the genocide in Srebrenica had not occurred within the territory of Serbia and Montenegro, this State could not be charged with not having tried before its own courts those accused of involvement in the massacre, thus reinforcing the principle that the obligation to prosecute in the treaty is limited only to acts occurring in the territorial State.32 The Apartheid Convention of 1973 does not include the obligation, despite there having been at least seven prior international criminal law conventions including such a clause and despite the inclusion of a clause granting permissive universal jurisdiction over the international crime of apartheid.33 Despite calls to amend the 1993 Chemical Weapons Convention to include an extradite or prosecute clause that could allow for better enforcement,34 treaties such as the Chemical Weapons Convention and the 1989 Basel Convention35 also do not include an aut dedere aut judicare clause. A possible explanation for this omission may be that, whilst these treaties do require criminalization of certain conduct, this obligation is incidental to their overall purpose, which is to regulate certain activities. By contrast, those treaties that do include the obligation are generally treaties whose primary role is to criminalize specific conduct.

Extradition treaties

  • 36 See the discussion in Shearer, I., Extradition in International Law, Manchester, University of Man (...)
  • 37 Ibid, at 219-223.
  • 38 Examples of some of the bilateral extradition treaties that contain such an obligation in respect (...)

11The extradite or prosecute clause appears in a number of bilateral and multilateral extradition treaties, but usually only in connection with the non-extradition of nationals of the requested state. Many States, but by no means all, have a constitutional restriction on the extradition of their own nationals.36 Consequently, under many extradition treaties where a State is either constitutionally prevented from extraditing or where it exercises a discretion not to do so, it may be required to submit the accused to prosecution. It is beyond the scope of this paper to complete a definitive study on the number of bilateral extradition treaties that include an aut dedere aut judicare obligation, but in 1971 Shearer identified 153 bilateral treaties that either included discretion as to surrender of nationals or banned their surrender absolutely.37 Of these, 47 obliged the requested State to prosecute in their own courts nationals who committed extraditable offences and were not surrendered.38

  • 39 Article 2, 165 LNTS 46. The Convention was opened for signature on 26 December 1933 and entered in (...)
  • 40 159 BFSP 606.  The Convention was opened for signature on 15 September 1952 and entered into force (...)
  • 41 Article 6(2), ETS No. 024. The Convention was opened for signature on 13 December 1957 and entered (...)
  • 42 Articles 2(3) and 8, OAS Treaty Series, No.60. The Convention was opened for signature on 25 Febru (...)

12Some multilateral extradition treaties also include an aut dedere aut judicare clause. For example, the Second Montevideo Convention on Extradition of 1933,39 the Arab League Extradition Agreement of 195240 and the European Convention on Extradition of 195741 oblige a State that chooses not to surrender a national to prosecute the national itself. In the case of the European Convention, this obligation only arises on the demand of the requesting State. The Inter-American Convention on Extradition of 198142 takes a slightly different approach. Article 2(3) allows a State to deny extradition when it is competent under its own legislation to prosecute the accused for the offence for which extradition is sought. If it does deny extradition for this reason, it is obliged to submit the case to its authorities for prosecution. Furthermore, Article 8 provides that if extradition is applicable and is denied for any reason, the State is obliged to prosecute where its laws or treaties permit it to do so.

  • 43 Adopted by the General Assembly in its resolution 45/116 of 14 December 1990 (UN. Doc. A/RES/45/11 (...)

13The United Nations Model Extradition Treaty43 includes amongst the optional grounds for refusal of extradition that the accused is a national of the requested State. In such circumstances, the requested State would be obliged to submit the case to its competent authorities “with a view to taking appropriate action” against the accused. In addition, extradition might be refused where the offence for which extradition is requested was committed wholly or in part in the requested State. In such a circumstance, the requested State would be obliged to submit the case to its appropriate authorities.

1.2 Security Council resolutions

  • 44 In particular, the Security Council has taken on a legislative role in its resolutions 1373 and 15 (...)
  • 45 SC Resolutions 1267 (1999) of 15 October 1999 and 1333 (2000) of 19 December 2000.

14Although the Security Council has in recent years taken a very proactive role in determining States’ obligations in the fight against terrorism,44 it has seldom expressly referred to the obligation to extradite or prosecute. Annex II of this paper sets out the nineoccasions on which the Security Council has directly referred to the extradite or prosecute obligation. Only on three of these occasions has the Council acted under Chapter VII, thus making any obligations mandatory. In two of these three references, the obligation is not referred to in the substantive paragraphs of the resolution, and appears only in the preamble which recalls the international terrorism conventions and the obligations under those conventions to extradite or prosecute.45

  • 46 Legal Consequences for States for the Continued Presence of South Africa in Namibia (South West Af (...)

15The third such resolution, Resolution 1566 of 8 October 2004 “calls upon” States to cooperate in the fight against terrorism in accordance with their obligations under international law on the basis of the principle to extradite or prosecute alleged offenders. Even though the resolution was made under Chapter VII, the “call” is not a “decision” of the Security Council which all Member States are obliged to accept under article 25 of the Charter. The ICJ considered a similar argument in relation to Security Council resolutions in the Namibia Case.46 There the Court held that:

 “[t]he language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council”.

16In the Security Council resolution at issue in that case, the Court held that, although the language was exhortatory rather than mandatory, the reference in the preamble to the Security Council’s responsibility to take necessary action to secure strict compliance of the obligations of the Member States under article 25 of the Charter was sufficient to allow the characterisation of the relevant paragraphs as decisions under article 25 (including those “calling upon” States to take certain steps). Resolution 1566 (2004) is clearly expressed to be under Chapter VII, unlike those relating to Namibia. The preambular paragraphs, whilst reaffirming the imperative to combat terrorism in all its forms by all means in accordance with the Charter of the United Nations and international law, places the Council’s Counter-Terrorism Committee centrally in the Security Council’s actions against terrorism. Within the operative paragraphs, the mandatory language relates to this Committee, directing it to start visits to States, and to the establishment of a working group. The exhortatory language calls on states to deny safe haven and bring terrorists to justice, recalls the definition of terrorism, calls on States to become parties to relevant international conventions and to cooperate fully so as to adopt by consensus a draft comprehensive convention on terrorism, and seeks cooperation with relevant international, regional and subregional organizations so as to fully implement resolution 1373. Most of these paragraphs could not be made mandatory (for example, the Security Council is unlikely to require States to become a party to an international convention). Given the clear distinction between the exhortatory and the mandatory paragraphs, it is this writer’s view that paragraph 2 of SC Resolution 1566 (2004), which calls on States to apply the extradite or prosecute principle, is not a “decision” under Article 25 and so is not binding on Member States. As such, it cannot be considered as a direct source for the obligation to extradite or prosecute those involved in terrorism.

  • 47 Ibid.

17The remaining references to an obligation to extradite or prosecute appear in Security Council resolutions not expressed to be made under Chapter VII. Whilst it is true that binding decisions under article 25 do not need to be expressly stated to be made under Chapter VII,47 it has certainly been the practice of the Security Council since its Resolution 678 to expressly identify those resolutions that are made under Chapter VII.

  • 48 Article 2(c) of SC Res. 1373 states “Decides also that all States shall: … (c) Deny safe haven to (...)
  • 49 Report by the Chair of the Counter-Terrorism Committee on the Problems Encountered in the Implemen (...)

18Elsewhere the Council uses Chapter VII resolutions to require States to deny safe haven to terrorists, for example in Resolution 1373 (2001).48 There is a question as to whether “denial of safe haven” is a term of art that includes the obligation to extradite and prosecute. Certainly this is the view of the Counter Terrorism Committee, which considers that paragraphs 2(c) and 2(e) of Resolution 1373, which require States to deny safe haven for specified offenders, oblige States to “prosecute and try all those responsible for acts of terrorism”.49 But it is probably more correct to say that the term “denial of safe haven” does not necessarily refer to the obligation to extradite or prosecute. There is clearly some overlap between the two concepts, but denial of safe haven is a broader term that can refer to the obligation to either prosecute or extradite, and can also encompass issues such as the denial of refugee status for offenders and excluding or expelling such persons through immigration laws.

  • 50 See Higgins, R., Problems and Process: International Law and How We Use It, Oxford, Clarendon Pres (...)

19Even if no Security Council Resolutions referring to the aut dedere aut judicare obligation specifically require Member States to extradite or prosecute particular offenders, could they otherwise be seen as a source for such an obligation? The resolutions identified in Annex II cover not only terrorist matters, but also the protection of United Nations Personnel and the protection of civilians in armed conflict, subjects of particular interest to the Security Council. Given that the Council is not a representative body of the United Nations, and that its area of competence is limited to matters relating to the maintenance of international peace and security, these resolutions are of only limited assistance in ascertaining State practice or opinio juris, both necessary to determining if an obligation is part of customary international law.50

1.3 Customary international law

  • 51 Larsaeus, “The Relationship between Safeguarding Internal Security and Complying with Internationa (...)

20If an extradite or prosecute obligation can be shown to be part of customary international law, depending on that obligation’s precise content, it could bind States regardless of whether the State in question is a party to the relevant treaty that includes the obligation, whether the relevant treaty includes such an obligation (such as the Genocide Convention) or whether or not there is in fact a relevant treaty (for example, crimes against humanity).  But, as tempting as it may be to find States summarily obliged to enforce international criminal law against heinous offenders present on their territory (and so ensure that there is indeed no safe haven and no impunity), we must first determine if such a customary obligation exists. Unfortunately in this area, as Larsaeus points out, international criminal lawyers often make general references to the customary nature of the aut dedere aut judicare obligation, but thorough analysis to support such a claim is rare.51 This paper will first consider the relevant State practice and opinio juris. Conclusions will then be drawn about the customary nature or otherwise of the aut dedere aut judicare clause. In particular, this paper will attempt to analyse the obligation’s customary nature in several respects: is there a customary rule in respect of specific offences; more broadly, is there a customary obligation to extradite or prosecute for all international crimes; and finally, does a particular prohibition’s jus cogens nature mean that there is a related obligation on all States to extradite or prosecute an alleged offender?

Civitas maxima

  • 52 Bassiouni and Wise, supra note 10, at 24.
  • 53 Steven, supra note 10, at pp. 442-443. For a detailed discussion of this approach, see Bassiouni a (...)
  • 54 This shift away from a State-centric approach to a more global approach can also be seen in a comp (...)

21Although not formally an issue of customary international law, some commentators have argued that a general obligation to extradite or prosecute an alleged offender exists in respect of international crimes because these are “offensesreprehended by the international community as a whole. They are offenses against the world public order. They are of concern to all states and all states ought therefore to cooperate in bringing those who commit such offenses to justice”.52 According to this argument, an obligation to extradite or prosecute follows from the common interest which all States have in the suppression of international offences, and is a duty owing to the international community as a whole, the civitas maxima.53 This approach is consistent with the view that the international community is moving from a system where the nation State is the dominant element to one where the common good of the global community is more central.54

  • 55 Bassiouni and Wise, supra note 10, at 24. See also Bassiouni, “International Crimes: Jus Cogens an (...)
  • 56 Wise, supra note 53, at 123.

22Whilst most, if not all, international lawyers see something intrinsically desirable in an international order in which States take certain actions because they are seen as enhancing the common interest of the international community as a whole, it is equally apparent that this remains an ideal. States very seldom look to the common interest of mankind as a motivation for action. Even proponents of the view of the civitas maxima such as Bassiouni admit that this is still an “‘imperfect obligation’ unless accepted either explicitly in an international agreement or tacitly as a matter of state practice”.55 Wise, who is more critical of the civitas maxima argument, criticises the belief that a State must extradite or prosecute offenders because of the common interest all States have in suppressing international crimes, as it takes as proven that which requires proof; namely, the existence of this civita maxima in which States are willing to conduct themselves fully in conformity with the higher good of the universal community.56

23Thus, as desirable as it may seem to find a general obligation to extradite or prosecute for international crimes based on an idealistic notion of the good of the international community as a whole, it is necessary to look at State practice and opinio juris to determine whether this obligation exists beyond those treaty obligations willingly accepted by States.

State practice and opinio juris

  • 57 Continental Shelf (Libyan Arab Jamahiriya/Malta) ICJ Reports (1985) 13 at 29.
  • 58 See Shaw, M.N., International Law, Cambridge, Cambridge University Press, 2003 at 70-72.
  • 59 The ICJ spoke of the need for “constant and uniform usage practiced by the States in question” in (...)
  • 60 See Meron, T., Human Rights and Humanitarian Norms as Customary Law, Oxford, Clarendon Press, 1989 (...)
  • 61 Cf. Higgins, supra note 50, at 28, who warms that one must take care not to use General Assembly r (...)

24As the ICJ has said, to determine whether a right or an obligation exists at customary international law, it is “axiomatic” that one must look “primarily in the actual practice and opinio juris of States”.57 The relative weight to be given to these two components has long been subject to academic debate.58 Whilst the ICJ has always stressed that the practice must have some form of uniformity and consistency,59 more recently some writers have argued that, especially in relation to humanitarian norms and human rights, normative utterances recognising universal principles as the positive law of the international community should be accepted as such, even in the face of inconclusive or contrary practice.60 However, this latter approach fails to maintain the distinction between lex lata and lex ferenda, and such statements can only become general international law if accepted as binding by States,61 which brings us back to the need for State practice and opinio juris. Consequently, even when dealing with humanitarian norms, such as those relating to individual criminal responsibility, it is still necessary to provide evidence of both practice and opinio juris, and one cannot rely solely on an aspirational sense that such a norm “should be” binding on all States.

Ratification of treaties and conventions

  • 62 Of these 30, 20 have more than 125 State parties (being approximately two-thirds of all States), 1 (...)
  • 63 Enache-Brown and Fried, “Universal Crime, Jurisdiction and Duty: The Obligation of Aut Dedere Aut (...)
  • 64 Enache-Brown and Fried, ibid, at 628-629.
  • 65 Certainly it is Bassiouni’s view that “constant reaffirmation in these treaties of the duty to ext (...)

25One possible source of State practice for the extradite or prosecute obligation is its inclusion in treaties. As discussed above, the clause has been included in 30 multilateral treaties, some of which can be considered among the better-subscribed treaties.62 State practice could be derived from: the number of States which have ratified the various treaties;63 the number of treaties that a particular State has ratified;64 the number of treaties that include such a clause;65 and the importance or centrality of these treaties in the wider area of international criminal law.

  • 66 See further to the text accompanying notes 178 to 181.
  • 67 Baxter, “Multilateral Treaties as Evidence of Customary International Law”, 41 British Yearbook of (...)
  • 68 Enache-Brown and Fried, supra note 63, at 630.

26In discussing whether a particular treaty provision could become customary, thus binding States not a party to the treaty, the ICJ in the North Sea Continental Shelf Cases indicated that very widespread and representative participation in a convention may suffice to establish “the other elements usually regarded as necessary before a conventional rule can be considered to have become a general rule of international law”.66 However, the Court was then discussing whether adherence to a particular treaty could support the passage of a provision of that treaty into customary law. Baxter suggests, “for the contention that a treaty becomes binding upon all nations when a great majority of the world has expressly accepted it would suggest that a certain point is reached at which the will of non-parties to the treaty is overborne by the expression of a standard or an obligation to which the majority of States subscribe”.67 He goes on to distinguish between treaties establishing an international organization’s basic law or establishing detailed rules on matters such as copyright (neither of which he believes could be made binding upon non State parties) and treaties of an essentially humanitarian character, which he believed to be distinguishable by reason of their creation of restraints on conduct that would otherwise be anarchical. In the latter category, he considers that, in so far as they are directed to the protection of human rights rather than to the interests of States, they may have a wider claim to customary status. Whilst Baxter is talking here about prohibitions in such humanitarian treaties, Enache-Brown and Fried argue that this approach must be applied not only to the prohibitions, but also to the mechanisms instituted to address such crimes, such as the aut dedere, aut judicare obligation, as to do otherwise would deny any real impact to the treaties.68

  • 69 Larsaeus, supra note 51, at 85. She points out that, given the relatively small number of cases wh (...)
  • 70 Alternatively, the treaty may be seen as codifying or declaring existing custom; Freestone, supra (...)

27As Larsaeus points out, however, whilst this wide adherence may show that States consider this to be an effective way to prevent certain forms of conduct, it does not necessarily show that such States have bound themselves to this obligation out of a sense that this is an action required by law (opinio juris).69 Indeed, the existence of a treaty (or a number of treaties) laying down general rules such as the obligation to extradite or prosecute may be seen as an explicit understanding that existing customary rules do not already oblige States to act in this way.70

  • 71 Bassiouni and Wise, supra note 10, Bassiouni, M.C., International Extradition: Unites States Law a (...)

28Both the ICJ in the North Sea Continental Shelf Cases and Baxter were concerned with whether a particular treaty’s provisions could become customary international law through a process that recognises widespread participation in that treaty. Whilst it may well be that the provisions of such treaties could become customary international law, some writers take a broader brush approach to the creation of customary international law, considering that support for the customary nature of an obligation to extradite or prosecute in respect of all crimes can be derived from the totality of conventions that include an extradite or prosecute obligation, or from the widespread participation of States in certain conventions relating to specific crimes.71 This goes significantly further than the ICJ and Baxter.

  • 72 Larsaeus, supra note 51, at 86.

29As Larseus points out,72 the fact that a provision is included in a large number of treaties does not mean that it is “generalizable”, citing the example of bilateral extradition treaties. Despite the widespread use of bilateral and multilateral extradition treaties pursuant to which States may bind themselves to extradite offenders to a requesting State, there is no claim there is now a general obligation on States to extradite offenders in the absence of a treaty.

30A broad-brush approach to the creation of customary international law from treaty provisions, such as that advocated above, also fails to take into account those treaties containing an aut dedere aut judicare obligation which do not have a high take-up rate, and indeed those treaties that not include such an obligation.

  • 73 See Annex I.

31There is a further difficulty with the argument that the obligation’s customary nature can be evidenced from the number of treaties that include it. Although many of the treaties containing the aut dedere aut judicare obligation are based on the Hague formula, this is by no means consistent. Of the twenty or so multilateral conventions containing the extradite or prosecute obligation finalised since the Hague Convention in 1970, one quarter do not use the Hague formula. Furthermore, of the five most recently concluded conventions, three limit the obligation to the extradition or prosecution of nationals only and only where the State Party seeking extradition so requests.73 Given the lack of consistency between the various conventions, it would seem difficult to draw from the number of conventions containing such a clause, and States willing to be bound by these conventions, a common obligation that is generalizable to all international crimes. Would the obligation that is said to be part of customary international law be the most commonly found (i.e. the Hague Convention), or the lowest common denominator (i.e. limited only to nationals of the requested State and only at the request of the State seeking extradition)? Would the obligation require States to submit the case to prosecuting authorities, or would it be a more onerous obligation to actually prosecute? And where a particular treaty uses a formula other than that which is seen as customary, which formula is said to apply in that case?

  • 74 While the principle of legality is usually considered in the context of international criminal law (...)

32These textual considerations cannot be simply dismissed. In the field of international criminal law, the principle of legality requires that the law be precise.74 If one cannot state exactly the terms of the customary obligation for which “extradite or prosecute” is shorthand, that of itself should cause international lawyers to hesitate before announcing the birth of a customary norm.

Domestic legislation

  • 75 The Special Rapporteur to the ILC on the Extradite or Prosecute Clause, Mr Zdzislaw Galicki, has r (...)
  • 76 A failure to enact such legislation contrary to the obligation in a convention is seen as a breach (...)
  • 77 It is beyond the scope of this paper to examine in detail whether States have legislation based on (...)
  • 78 In this respect, legislation creating universal jurisdiction would certainly allow a State to perf (...)
  • 79 The information upon which Annex III is prepared has been drawn from a variety of sources, in part (...)

33Another source of State practice relevant to the customary nature of the extradite or prosecute clause is the domestic legislation that would enable the clause to operate.75 The vast majority of recent treaties that include an aut dedere aut judicare clause also oblige States to take such measures as may be necessary to establish jurisdiction over the offences in the circumstances where the alleged offender is present and it does not extradite him or her.76 In any case, in order that a State is able to act upon an obligation to extradite or prosecute, it needs domestic legislation in place that will allow it to prosecute an alleged offender should it not extradite him or her. Where the alleged offender is a national of the custodial State, but the offence occurred elsewhere, there must be legislation in place enabling the prosecution of a national on the basis of active personality.77 Where the alleged offender is a foreigner and the offence occurred elsewhere, there must be legislation allowing for the extra-territorial application of the custodial State’s criminal law. As many States do provide for the application of domestic criminal law to their own nationals for acts committed elsewhere, it is this latter form of legislation which is of more interest.78 Annex III to this paper provides a table indicating whether States have legislation that would allow for the prosecution of grave breaches of the Geneva Conventions, acts of torture under the Convention against Torture, and offences generally characterised as terrorism but more specifically covered by the various terrorism conventions.79 In addition, although not covered by a treaty-based aut dedere aut judicare obligation, Annex III also considers whether States have the necessary legislation to prosecute foreigners for crimes against humanity or acts of genocide that occur outside the State. Generally, States have used one or more of the following methods to allow for the prosecution of foreigners for these crimes:

  • 80 States that use this form of implementation include many Common Law countries such as the United K (...)

(a) Legislation directly implementing particular conventions or treaties. This involves separate legislation for each convention, promulgated in order to comply with the obligation to ensure jurisdiction contained in the particular conventions. Each separate piece of legislation will include the necessary provisions to give it extra-territorial effect.80

  • 81 Van Elst, supra note 8, at 828-830.
  • 82 For example, article 7 of Brazil’s Criminal Code allows universal jurisdiction over crimes committ (...)
  • 83 For example, article 10 of the Italian Penal Code provides jurisdiction over common crimes committ (...)
  • 84 See for example the inclusion of this aut dedere aut judicare blanket norm can be found in section (...)
  • 85 See for example article 6 of the Criminal Code of Lithuania which allows that non-nationals may be (...)
  • 86 This writer has identified 75 States which clearly do not have such a norm, and 43 States where th (...)
  • 87 The danger of relying on existing criminal law in this manner is evident in the example of Norway, (...)

(b) A “blanket” norm81 or provision, often found in the State’s Penal Code, that does not refer to a particular convention or crime but rather establishes universal or extra-territorial jurisdiction over a class of crimes. Many of these “blanket norms” establish extra-territorial jurisdiction over crimes when required to do so by treaty or convention.82 Other States have a general provision allowing them to prosecute a foreigner for offences committed abroad where the offence is subject to a certain minimum penalty.83 Another possibility is where a State claims jurisdiction over any criminal act occurring elsewhere provided that the suspect is not extradited.84 A further variation may allow jurisdiction over the foreign acts of non-nationals where the act is criminally prohibited in both the custodial State and the State in which the crime occurred.85 Of 192 Member States of the United Nations, this writer has been able to identify 74 States that have one or another type of a “blanket” norm, establishing sufficient extra-territorial jurisdiction that allows the State to prosecute should it not extradite, being about 50% of those States for whom sufficient information is available to determine if such a legislative provision exists or not.86 The obvious advantage of such a norm is that the State does not need to adopt a new provision establishing extraterritoriality with every new convention requiring such jurisdiction. But the disadvantage is that the State may not specifically legislate to criminalize the particular conduct the subject of a treaty, relying on existing criminal law provisions. So, for example, with grave breaches of the Geneva Conventions, a number of States do not criminalize war crimes as such, relying instead on existing criminal offences such as murder, rape or assault.87

  • 88 For example, in its third report to the Committee Against Torture, in respect of its obligation to (...)
  • 89 See the views of the Senegalese Cours de Cassation in the Hissène Habré case, where it upheld the (...)
  • 90 See page 3 of chapter 14 of Amnesty International’s Report on Universal Jurisdiction, supra note 3 (...)

(c) Where a State’s constitution allows for direct incorporation of international law, either conventional or customary. A number of States have indicated that they do have jurisdiction to enable prosecution in default of extradition under an aut dedere aut judicare obligation by referring to this method of incorporation.88 This view is certainly not without controversy.89In its detailed report on universal jurisdiction, Amnesty International points out that while this view may on occasion be enough to allow courts to exercise universal jurisdiction over crimes under international law, it is not always clear whether such provisions incorporate only the substantive criminal law provisions of treaties, or also the procedural ones, such as the need for jurisdiction to prosecute an offender for an act that occurred elsewhere.90

  • 91 These include the United States, whose legislation implementing the Geneva Conventions, the War Cr (...)

34Whatever form of incorporation is used by a State, Annex III shows that the implementation of legislation allowing a State jurisdiction to prosecute a foreigner for the various crimes analysed is by no means universal. Of 192 States, 123 are known to have jurisdiction that would allow them to prosecute for grave breaches of the Geneva Conventions should they not extradite (representing 64 percent of all States and 86 percent of those whose jurisdictional abilities are known) and 20 are known to lack this jurisdictional ability.91 In respect of 49 States, it is not known whether they have this ability or not. In respect of torture, 89 States have the jurisdiction that they are obliged to establish by article 5 of the Convention against Torture to establish (representing 46 percent of all States and 82 percent of those whose jurisdictional position is known), 19 States are known not to have established the required jurisdiction and it is not known whether the remaining 84 have jurisdiction or not. In respect of terrorism crimes, despite the obligation on all States to report regularly to the Counter-Terrorism Committee on steps they have taken to respond to international terrorism, establishing extra-territorial jurisdiction, the legislative position is only known for 128 States, 99 of whom have sufficient extra-territorial legislation (representing 52 percent of all States and 77 percent of those whose jurisdictional position is known) and 29 States lack the necessary jurisdiction.

  • 92 There are 94 States for whom the jurisdictional position is known, and 98 States where there is no (...)
  • 93 In respect of genocide, there are many States where the jurisdictional position is unclear as the (...)

35It is also interesting to consider what is known about the jurisdictional ability of States in respect of crimes against humanity generally (excluding those crimes such as torture or forced disappearance which, although characterized as crimes against humanity are subject to specific treaty obligations) and genocide, for which there is no treaty-based obligation to extradite or prosecute. In considering crimes against humanity, as these are not subject of an international convention that establishes criminal responsibility, only 52 percent of the 94 States for whom the jurisdictional position is known have sufficient domestic legislation to allow for the prosecution of a non-national who is alleged to have committed crimes against humanity outside the State.92 Although the Genocide Convention does establish criminal responsibility, it does not include either any permissive or mandatory requirement that States prosecute non-nationals for extra-territorial crimes of genocide. There are 79 States for which their legislative position is known.93 Of those, 57 have sufficient jurisdiction to prosecute non-nationals for the crime of genocide committed outside the State (representing 30 percent of all States and 72 percent of those States for which the jurisdictional position is known.

  • 94 Detailed information about which States require a political decision to be taken or not is availab (...)

36It is also interesting to note the politicisation of both extradition and prosecution of extra-territorial criminal acts not involving nationals of the State. Many of the States that have legislation providing jurisdiction for the prosecution of extra-territorial acts are only able to exercise such jurisdiction following a decision by a member of the executive branch of government, such as an Attorney-General. For example, States as diverse as Australia, Burundi, Canada, Colombia, Democratic Republic of Congo, Ethiopia, Finland, Hungary, India, Israel, Kenya, New Zealand, Seychelles and Singapore require the decision of their respective Attorneys-General or similar executive officer before prosecution of non-nationals for war crimes can be commenced.94

  • 95 In addition, where a “blanket provision” is used to establish the necessary extra-territoriality, (...)

37In respect of grave breaches, torture and terrorism, a clear failure by States to implement the necessary legislation to prosecute in default of extradition could be used to disprove the existence of a customary international law obligation. However, it is difficult to use the fact of such legislation to support the existence of such a customary obligation. Whilst the majority of States may have established the necessary jurisdiction, this is either expressly required by the relevant treaty, as is the case of the Convention Against Torture and the relevant terrorism conventions, or implied by the terms of the Geneva Conventions. Thus it is hard to show the necessary opinio juris; where the action is required by the conventions, can it be said that States have performed this action because they felt that they were bound by general international law to so act? 95

38What might have been more interesting is analysis in respect of crimes against humanity and genocide. States are not obliged expressly or implicitly by treaty to establish jurisdiction. Domestic legislation that allows the prosecution of extraterritorial crimes against humanity or genocide in lieu of extradition could be evidence that supports the existence of a customary obligation to extradite or prosecute. Unfortunately the research is less complete for these crimes, in part because there is no reporting obligation in respect of these crimes as there is for torture or terrorism crimes, meaning that any research is hampered by access to domestic legislation and language difficulties. Perhaps the ILC, in encouraging States to provide information regarding their extra-territorial jurisdiction, may be able to fill in these gaps.

State practice in individual cases

39Another potentially fertile area to determine State practice and opinio juris involves considering how States have reacted in individual cases, both when a custodial State becomes aware that a person accused of an international crime is found on their territory and the reaction of other States to the action or inaction of the custodial State. Unfortunately, it is harder to identify State practice and opinio juris here than may be wished, as actions that may be consistent with an affirmation of a State’s obligation to extradite or prosecute may be equally consistent with the State’s obligations under a bilateral extradition treaty, with a decision to extradite being based on comity, or with an exercise of jurisdiction over the alleged offender (whether this be universal jurisdiction, passive personality or some other head of jurisdiction). And when a State takes action because it considers itself bound to extradite or prosecute, does the State consider itself obliged to take that action because of a treaty obligation or because of customary international law? It is easier to identify State practice inconsistent with a customary obligation, that is, when a State fails to fulfil its obligation and neither extradites nor submits the case to its prosecuting authorities.

40Statements from higher municipal courts regarding the aut dedere aut judicare obligation have not been frequent. However, the following comments have been made:

    • 96 Oberste Gerichtshof, 29 May 1958, reprinted in Oberste Gerischtshof, Serie Strafsachen XXIX, No. 3 (...)
    • 97 Reydams, ibid, at 98.
    • 98 This provision finds its counterpart in article 65 of the current Penal Code of Austria.

    Austria. The 1958 case of Public Prosecutor v. Milan T.96 is perhaps the earliest internationally reported case of universal jurisdiction.97 The accused had fled communist Yugoslavia to escape prosecution for fraud and arrived in Austria. Whilst in Austria, he committed further offences, but then fled to Germany. He was duly arrested in Germany and returned to Austria, which tried and convicted him of the crimes committed there. Whilst still imprisoned, Yugoslavia requested his extradition for the crime of fraud. But, as the Austrian court considered it was unable to return him to Yugoslavia where he might be subject to persecution, it instituted proceedings itself for the crimes committed in Yugoslavia on the basis of a provision in the then Penal Code that provided that when the territorial State refuses to undertake the prosecution of the offender, the punishment of the criminal must take place in accordance with the provisions of Austrian criminal law.98 The Supreme Court of Austria held that:

It is a requirement of the proper administration of justice of a State which, the greater its generosity in granting asylum to political refugees (and not only politically persecuted persons), the less must be its inclination to waive its subsidiary right to institute criminal proceedings in respect of common crimes committed by such refugees in the territory of a foreign State. This subsidiary right to institute criminal proceedings must be exercised in particular where the extradition of an offender might violate the internationally recognized rights of refugees.

    • 99 (1991) 172 CLR 501.
    • 100 As the Australian legislation in question dealt with war crimes committed during World War II, it (...)
    • 101 Per Brennan J at para. 28, where he dismisses the notion that there was any customary obligation o (...)
    • 102 Nulyarimma v. Thompson [1999] FCA 1192; 39 ILM (2000), 20, at paragraph 18: “I accept that the pro (...)

    Australia. In two cases, Australian judges have commented on the status of the extradite or prosecute obligation at customary international law. In the 1991 case of Polyukhovitch v. The Commonwealth,99 both the Australian Government and the High Court of Australia took a position on the issue of permissive or mandatory jurisdiction to try non-nationals for war crimes that were committed elsewhere. In response to a challenge to the constitutionality of Australia’s War Crimes Amendment Act 1988, the Australian Government submitted that Australia has at least a right, if not an obligation, to prosecute and punish those alleged to have committed war crimes and crimes against humanity, irrespective of the place where the crime was committed or the nationality of either the alleged offender or the victim.100 In upholding the Act’s constitutionality, Justices Brennan and Toohey recognised the existence of a right to prosecute an alleged offender for war crimes or crimes against humanity, regardless of the place the offence occurred or the nationality of the accused or victim. However, in an obiter dictum, they both dismissed the notion that customary international law obliges a State to try and punish foreigners accused of war crimes and crimes against humanity.101 Several years later, in a case brought by indigenous Australians accusing the Australian Government of genocide, Justice Wilcox of the Federal Court of Australia, again as obiter dictum, found the prohibition of genocide to be a peremptory norm, from which it followed that customary international law imposes an obligation on each State to extradite or prosecute any person on its territory who is accused of acts of genocide.102 However, he then pointed out that the fact that a State was under an international obligation to prosecute or extradite someone was a different matter to whether the State had legislation providing the jurisdiction to so prosecute.

41There are also examples of State action either acceding to an extradition request (or refusing to do so), or prosecuting an alleged offender in default of extradition. These examples are not as numerous as one might hope and, as discussed above, are difficult to definitively link to a State’s perceived obligation to either extradite or prosecute. However, even if it is difficult to show that the custodial State acted in a particular way because of the aut dedere aut judicare obligation, at least the most recent examples, or those most clearly linked to an extradite or prosecute obligation are discussed below:

    • 103 Military Prosecutor v. Niyonteze, Tribunal militaire, Division 2, Lausanne, 30 April 1999 (trial j (...)
    • 104 Reydams, supra note 96, at 193-195.
    • 105 Although it would seem to be official Swiss policy that the perpetrators of such crimes are to be (...)
    • 106 Reydams, supra note 96.

    Switzerland – Following the Rwanda conflict, Fulgence Niyonteze, who had fled to the country with his family, was convicted in Switzerland for war crimes committed in an internal armed conflict. This resulted in the first conviction by a municipal court exercising universal jurisdiction under Common Article 3 of the Geneva Conventions and Additional Protocol II, (the latter does not include a prosecute and extradite obligation such as is found in the Geneva Conventions and Additional Protocol I).103 The International Criminal Tribunal for Rwanda did not take over the proceedings, and Switzerland declined to extradite the accused to Rwanda. It therefore elected to prosecute the case itself, its military penal code establishing universal jurisdiction over violations of the laws or customs of war, whether committed in an international or a non-international armed conflict.104 It is not clear if the Swiss decision to prosecute this case arose because of a perceived obligation to extradite or prosecute or because of some other motivation. However, given that the offences prosecuted were those arising under Common Article 3 to the Geneva Conventions and Additional Protocol II, neither of which constitute grave breaches giving rise to conventional obligation to prosecute or extradite, it would seem not.105 Further, the Swiss Military Code under which the prosecution was carried out does not expressly provide that jurisdiction arises where extradition does not occur, unlike under the Swiss Penal Code.106

    • 107 Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet [1999] 2 Al (...)
    • 108 See the Letter from the Home Office to the Spanish Ambassador of 2 March 2000, reprinted in Brody, (...)

    United Kingdom General Pinochet Various Judges of the House of Lords in the Pinochet cases recognised that the Torture Convention obliged the United Kingdom to prosecute General Pinochet for torture if it did not extradite him, although none of the Judges indicated that this obligation also existed in customary law.107 Yet, despite a finding by the High Court that the United Kingdom had jurisdiction over incidents or torture that occurred after 29 September 1989, General Pinochet was returned to Chile without extradition, following the decision by the Secretary of State not to extradite him because of his health. In explaining the decision not to extradite Pinochet, the Secretary of State, Jack Straw, indicated that he considered the medical reports showed that Pinochet was unfit to stand trial, and that any trial that might occur in any country would not be fair, violating Article 6 of the European Convention on Human Rights.108 He also pointed out that, as there was ultimately no extradition order made, he had referred the case to the Solicitor General and the Director of Public Prosecutions pursuant to the obligation in Article 7 of the Torture Convention. However, Pinochet was allowed to return immediately to Chile and no prosecution was forthcoming.

    • 109 The factual background to the Hissène Habré case is set out in the Decision of the Committee Again (...)
    • 110 Report of the Committee of Eminent African Jurists on the case of Hissène Habré, African Union, Ju (...)
    • 111 Supra note 76.
    • 112 The facts of this case can be found in Reydams, “A Conundrum Posed by U.S. Anti-Terrorism Policy”, (...)
    • 113 Weaver and Chardy, “Judge drops charges against Posada”, Miami Herald, 8 May 2007.
    • 114 In respect of the airline bombing, the relevant treaty is the Convention for the Suppression of Un (...)
    • 115 President Hugo Chavez of Venezuela referred to the Uniting States as “protecting” Posada Carriles (...)
    • 116 See Process Verbale of 5338th meeting of the Security Council, 28 September 2006, UN Doc. No. S/PV (...)

    Senegal – Hissène Habré.109 The former President of Chad had lived in exile in Senegal since he was ousted from Chad in December 1990. In January 2000, a number of Chadian nationals filed complaints against Habré in Senegal, alleging that agents of the Chadian State directly answerable to Habré tortured them. In February 2000, a Senegalese examining magistrate charged Habré with being an accomplice to acts of torture. However, in July 2000 the Indictment Division of the Dakar Court of Appeal dismissed the charge for lack of jurisdiction over extra-territorial acts. The Senegalese Court of Cassation upheld this on appeal in March 2001. In September 2005, following four years of investigation, a Belgian Judge sought Habré’s extradition on charges of genocide, crimes against humanity, war crimes, torture and other serious violations of international humanitarian law. However, the Indictment Chamber of the Dakar Court of Appeal ruled that it had no jurisdiction to rule on an extradition request concerning a former head of State. Consequently under Senegalese law the decision was to be made by the Senegalese President, who decided to seek the African Union’s views as to whether it should try Habré. Following consideration by a panel of legal experts, the African Union called on Senegal to reverse its previous decisions and try Habré. The Panel of Eminent African Jurists considered that Senegal was bound by its obligations under the Convention Against Torture to either extradite or prosecute Habré.110 Following the African Union summit that discussed the matter, the President of Senegal agreed to take the necessary steps to ensure Habré’s prosecution and, in February 2007, the Senegalese National Assembly adopted a law to give the State the necessary jurisdiction to try Habré. In the interim, the Chadian complainants had taken the matter to the Committee Against Torture under article 22 of the Convention Against Torture, alleging that Senegal was violating its obligations under the Convention to extradite or prosecute Habré. The Committee agreed that Senegal was in violation of its obligation, both in failing to either extradite or prosecute, and in failing to ensure it had jurisdiction to prosecute.111 As regards State practice, this case illustrates both a State’s reluctance to act in accordance with its treaty obligation to extradite or prosecute and, it is to be hoped, the same State’s ultimate acceptance of its oblUnited States of America – Luis Posada Carriles.112 Posada Carriles, a Venezuelan national and former CIA operative was condemned in a Venezuelan court for the 1976 bombing of a Cuban airline that killed 73 people. (He is also suspected of involvement in the bombing of a hotel in Cuba in 1997 which killed one person.) He served some time for the airline bombing crime but twice escaped from custody, finally arriving in the United States in 2005. There he was held on charges of immigration fraud until these charges were dismissed by a federal judge in May 2007.113  Venezuela formally requested his extradition in respect of the airline bombing, and this request was refused by a US federal court judge on the grounds that he would face a threat of torture should he be returned to Venezuela. But, although under an obligation under several of the terrorism conventions to prosecute him should it not extradite him,114 and in spite of calls from both Venezuela and Cuba to either extradite or prosecute him,115 the United States has, as at August 2007, taken no steps to submit the case to its own prosecuting authorities. In addition, in October 2006, the Justice Department declined to classify Posada Carriles as a terrorist. In a presentation to the Security Council on 26 September 2006, the Venezuelan representative referred not only to the US’s failure to extradite or prosecute Posada Carriles, but also to the non-extradition of two other alleged terrorists, who had apparently admitted to terrorist actions.116

    • 117 See McAllister, “Detainee suspected in massacre”, Newsday (New York), 18 December 2006.
    • 118 It is worthwhile noting that that the US legislation dealing with war crimes, the War Crimes Act 1 (...)
    • 119 See Kampschror, B., “Bosnian Serbs deported by US are indicted for war crimes”, Christian Science (...)

    United States of America – Nedjo Ikonic.117 Identified as part of a check amongst Bosnian immigrants of those believed to have been involved in the Srebrenica massacre, Nedjo Ikonic has been held by US authorities for immigration offences, particularly lying about his military background. If found guilty, he is likely to be deported, rather than either extradited or prosecuted.118 Certainly this has been the fate of a number of Bosnian Serbs who were arrested in the United States for immigration offences as part of Operation No Safe Haven, an investigation into Bosnian immigrants and refugees to ascertain whether any suspected war criminals were now living in the United States. At least two of those who were identified by the United States as alleged war criminals were deported back to Bosnia, where they now await trial.119

    • 120 “Denmark frees tops Chechen envoy”, BBC News Website, 3 December 2002, available at http://news.bb (...)
    • 121 Government of The Russian Federation v. Akhmed Zakaev, Bow Street Magistrates Court (Senior Distri (...)

    United Kingdom – Ahmed Zakayev. Mr Zakayev is a Chechen dissident who the Russian Government accuses of war crimes and whose extradition was sought from both Denmark and the United Kingdom. Denmark refused to extradite him to Russia in December 2002, on the grounds that Russia had not provided sufficient evidence to support the extradition request.120 The following year, a British court refused to extradite Mr Zakayev to Russia, on the grounds that he would be likely to be tortured if returned to Russia and that he would be prosecuted on account of his nationality and political opinions.121 Mr Zakayev was subsequently granted asylum in the United Kingdom. Despite continuing pressure from Russia, and despite having refused to extradite him, the United Kingdom has not submitted the case to its prosecuting authorities for investigation for war crimes or terrorist offences.

    • 122 R v. Zardad, London Central Criminal Court (Old Bailey) 18 July 2005 (unreported, although a case (...)

    United Kingdom – Faryadi Sarwar Zardad.122The accused was an Afghan warlord convicted on 18 July 2005 of conspiring to torture and take hostages, the crimes of torture and hostage taking having been criminalized in legislation implementing the aut dedere aut judicare provisions of the Convention against Torture and the Convention against the Taking of Hostages. As the UK’s first prosecution under such provisions, this matter is currently under appeal.

    • 123 See Amnesty International’s comments on Italy in its Report on Concerns in Europe, July to Decembe (...)

    Italy – Abdullah Ocalan.123 After having been asked to leave a number of countries, Ocalan sought asylum in Italy in 1998. The Turkish authorities sought his extradition from Italy for terrorist offences, but Italy refused on the grounds that its Constitution prohibited the extradition of detainees to a State that still implemented the death penalty. Italy apparently considered exploring the possibility of bringing Ocalan to trial before a national or an international court, but ultimately, in the face of strong censure from Turkey for refusing to extradite him, it pressured Ocalan to leave the country, whereupon he travelled briefly to Russia, to Greece and then to Kenya, where he was arrested.

    • 124 Swain, J., “UK genocide suspect face Rwanda trial”, The Sunday Times, 12 November 2006.
    • 125 Jurisdiction under the British domestic legislation criminalizing genocide, the International Crim (...)

    United Kingdom Rwandan genocidaires. The discovery that several Rwandans accused of involvement in the genocide in 1994 were living in the United Kingdom prompted government concerns that the United Kingdom should not be seen to be a haven for those accused of war crimes.124 There is no legislation allowing UK courts to try a non-national for genocide, but should the UK courts decide to accede to Rwanda’s extradition request, this would mean that they would face justice.125

    • 126 The facts of this case are drawn from a Press Release issued by the Palestinian Centre for Human R (...)

    New Zealand Moshe Ya’alon.126 On 27 November 2006, the District Court in Auckland, New Zealand issued warrants for the arrest of Moshe Ya’alon, a former Chief of Staff of the Israeli Defence Force, on the suspicion of grave breaches of the Geneva Conventions, which are criminal offences under New Zealand legislation. However, the following day, on the advice of the Solicitor-General of New Zealand, the Attorney General stayed the prosecutions pursuant to his powers under domestic legislation. General Ya’alon was then able to finish his stay unhindered in New Zealand and ultimately to return to Israel.  

    • 127 See Lelyveld, J., “South Africa to try mercenaries in hijacking”, New York Times, 6 January 1982.
    • 128 The Bonn Declaration is a non-binding agreement between the major industrialised countries of the (...)

    South Africa mercenaries.127Following a bungled coup attempt in Seychelles in 1981 that involved a number of South African mercenaries, the South African government initially decided to release all but five of the mercenaries who had landed in South Africa after the coup attempt. However, this refusal to prosecute prompted intense diplomatic pressure from many States which pointed out that South Africa was not only a party to the Hague Convention, but had also formally associated itself with the Bonn Declaration on International Terrorism of 1978.128 As a result, the South African Government decided to prosecute the 45 mercenaries for the hijacking attempt.

    • 129 For the facts of this case, see Chamberlain, ibid and Busuttil, ibid.

    Afghanistan hijackers of Pakistan International Airlines aircraft.129 Following the hijacking of a Pakistan International Airlines aircraft to Afghanistan in 1981, the Afghan regime gave refuge to the hijackers. This was seen by the heads of State of the parties to the Bonn Declaration as “a flagrant breach” by the State of Afghanistan of its international obligations under the Hague Convention, to which it had been a party since 1979. Consequently, those countries to which the Afghani carrier, Ariana Airlines, flew gave notice of the denunciation of their airline agreements.

42While these individual cases may show States’ willingness or otherwise to extradite or to prosecute an alleged offender of an international crime, a State’s decision may rest on motives other than compliance with a perceived legal obligation to extradite or prosecute, such as comity or ethical rather than legal considerations. Where States act out of a sense of legal obligation, the legal obligation may be pursuant to the relevant treaty rather than a customary obligation. Likewise, there may be political or security considerations that complicate the factual situation, as may well be a factor in the United States’ current dilemma of what to do with Mr Posada Carriles.

  • 130 Cassese, A., International Criminal Law, Oxford, Oxford University Press, 2003, at 298.

43Certainly writers such as Cassese still consider that national courts are loath to bring to justice those accused of international crimes, perhaps partly because of State involvement or acquiescence in the crime, or in cases of foreigners allegedly committing crimes, from a fear of meddling in the domestic affairs of other States.130

General Assembly and other normative statements

  • 131 South West Africa Cases, dissenting opinion of Judge Tanaka, ICJ Reports (1966) 248 at 291.
  • 132 Higgins, supra note 50, at 24.
  • 133 These include General Assembly Resolution 2712 (XXV), (UN.Doc. No. A/8028 (1970)) which “urges all (...)

44States practice and opinio juris is often sought in the text of General Assembly resolutions or other prescriptive statements. As Judge Tanaka suggested in his dissenting opinion in the South West Africa Cases in 1966,131 the practice, repetition and opinio juris necessary for custom may occur at an accelerated pace in the world of an international organization, as the State, “instead of pronouncing its view to a few States directly concerned, has the opportunity, through the medium of the organization, to declare its position to all members of the organization and to know immediately their reaction on the same matter”. In voting on a resolution, a State may be indicating not only its state practice, but also its view as to opinio juris. But while it may be tempting to look to General Assembly resolutions as evidence of custom, we are reminded that resolutions are only part of the picture.132 In any case, General Assembly resolutions referring to an obligation to extradite or prosecute are less frequent than may be imagined. Whilst there have been several seminal resolutions confirming the importance of prosecuting those alleged to have committed war crimes,133 these have not referred to an obligation on States to either extradite or prosecute.

  • 134 This list only includes those resolutions which expressly refer to an aut dedere aut judicare obli (...)

45Annex IV to this paper lists the 13 General Assembly resolutions that include reference to an obligation on States to extradite or prosecute.134 With the exception of two resolutions (numbered 4 and 7 on the table in Annex IV), they all relate to terrorism. The two resolutions not relating to terrorism are a Declaration on Crime and Public Security, which demands that Member States shall, to the fullest extent possible, provide for effective extradition and prosecution of those engaged in serious transnational crimes, and a Declaration on the Protection of All Persons from Enforced Disappearance. The strongest worded resolution is the most recent, resolution 60/288 of 20 December 2006, which sets out the United Nations Global Counter-Terrorism Strategy: Member States resolve to deny safe haven to those who support, facilitate or participate in the financing, planning, preparation or perpetration of terrorism, by applying the extradite or prosecute principle.

  • 135 General Assembly Resolution 60/147, ibid. See also General Assembly Resolution 3074 (XXVIII) (supr (...)
  • 136 See further to the text accompanying notes 166 to 169.

46States have often repeated their views about the need to end impunity and bring offenders to justice. Elsewhere the General Assembly has confirmed a duty to investigate, submit to prosecution and punish those found guilty of gross violations of international humanitarian law or human rights.135 In the preamble to the Rome Statute of the International Criminal Court, States affirm that “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international co-operation”. The preamble also determines “to put an end to impunity for the perpetrators of such crimes” and recalls “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”. At the risk of sounding too positivist, this statement is not enough on its own to establish a customary obligation in specific terms to extradite or prosecute, particularly when the States negotiating the treaty elected not to include a proposed article that contained an express obligation on States to extradite or prosecute.136

  • 137 Keijzer, supra note 2, at 415.
  • 138 Feller, “The Legal Position of Israel as Requested State which Refuses Extradition”, in Goldstein, (...)
  • 139 Supplementary report by Italy to the Counter-Terrorism Committee pursuant to Security Council reso (...)
  • 140 See Addendum 2, supra note 10, where it said “The United States does not believe that there is a g (...)

47There have been few occasions when States have given a clear indication of whether they consider they are bound or not by the aut dedere aut judicare obligation beyond treaties to which they are parties. However, in its submission to the XIth International Congress of Comparative Law in Caracas in 1982, the Netherlands made it very clear that they considered that the aut dedere aut judicare obligation only arises under the relevant treaties.137 Likewise, Israel indicated that it did not consider itself bound by a general obligation to prosecute in lieu of extradition.138 In its third report to the Counter Terrorism Committee under Security Council Resolution 1373 (2001), Italy indicated that it considered that the principle does not exist at customary law, stating that the “aut dedere aut iudicare principle is not recognized as a principle of international law in general, but it is provided (precisely for this reason) by many international extradition conventions”.139 In its submissions to the ILC on the topic of the aut dedere aut judicare obligation, the US made it clear that it considers the obligation not to be found in customary international law, but only in treaty law.140

Judicial decisions and teachings of the most highly qualified publicists

  • 141 Shaw, supra note 58, at 103.

48Although a subsidiary means of determining the law under article 38(1)(d) of the ICJ Statute, it is appropriate to consider judicial decisions and the teachings of most highly qualified publicists before drawing conclusions as to the customary nature of the extradite or prosecute obligation. No analysis of the customary or otherwise nature of a norm is complete without a discussion of how it is characterized by international courts. While article 59 of the ICJ Statute provides that the Court’s decisions have no binding force except as between the parties, it has striven to follow its previous judgements and as a result, its decisions can be very important as a source of international law.141 The ICJ and other international tribunals have discussed the aut dedere aut judicare obligation in obiter dictum, although no case has been directly on point.

International Court of Justice and other international tribunals

Lockerbie case142

  • 142 Although generally referred to in the singular, there were in fact two cases: Case Concerning Ques (...)
  • 143 An obligation to extradite may arise under a Chapter VII Security Council resolution, but the obli (...)

49At its core, the Lockerbie case involved a conflict between the binding nature of Security Council resolutions under article 25 of the UN Charter and Libya’s obligation to either extradite or prosecute the alleged bombers of the PanAm airline who were present on its territory under the Montreal Convention. The Security Council, acting under Chapter VII had demanded that Libya extradite these men,143 whilst the Montreal Convention obliged Libya to extradite or prosecute them, but allowed it to choose which option to take. Although the claim for Provisional Measures, where the Court discussed this conflict of obligations, was ultimately decided on the basis of article 103 of the Charter and its application to resolving conflicts between Charter obligations and other treaty obligations, several of the judges did discuss the nature of the aut dedere aut judicare obligation.

  • 144 Supra note 142, at 25 and 137. (The two sets of page references refer to the judgements in the cas (...)

50In their joint declaration, Judges Evensen, Tarassov, Guillaume and Aguilar Mawdsley recognised that under general international law, the requested State is under no obligation to extradite. Furthermore, they considered that there is no obligation in customary international law to prosecute in default of extradition.144

  • 145 Per Judge Bedjaoui at 38 and 148; and Judge El-Kosheri at 109 and 214, where he recognises a “deep (...)
  • 146 Per Judge Bedjaoui at 38 and 148, where he indicates that the obligation to extradite or prosecute (...)
  • 147 Per Judge Weeramantry at 69 and 179, where he quotes Bassiouni referring to the jus cogens nature (...)

51The dissenting judges either indicated that there was no obligation at customary international law to extradite one’s nationals,145 or that the extradite or prosecute obligation existed at customary international law, requiring States to take an active step, but leaving it to the State to determine which it prefers in the circumstances.146 Two of the dissenting judges also referred to the belief of some writers that the obligation had attained jus cogens status.147

  • 148 Shearer, supra note 36, at 94-131.

52The discussion of the existence or otherwise of an extradite or prosecute clause at customary international law was not restricted to the crimes contained in the Montreal Convention. Rather, the Judges’ consideration of the aut dedere aut judicare obligation was made in the context of a request to a State to extradite its own nationals. Given that many States (including Libya) have constitutional restrictions on the extradition of their nationals,148 the importance of allowing a State the option to prosecute its own nationals in lieu of extradition is perhaps more critical than if the fugitives had little or no connection with the State in which they were present. None of the judges who considered that there was a customary obligation indicated on what basis this view had been arrived at, although it is not clear if this was because this was only a decision as to Provisional Measures, or because the issue of the customary nature of the obligation was not central to the claim. One can only speculate what observations the Court might have made as to the nature of the obligation and its place in international law had the matter proceeded further.

Arrest Warrant case149

  • 149 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium) ICJ (...)
  • 150 Ibid, at 75 to 77.

53In this case, the ICJ considered the legality of an arrest warrant issued by Belgium against the then Minister of Foreign Affairs of the Democratic Republic of Congo for crimes against humanity and grave breaches of the Geneva Conventions and the Additional Protocols. Although the Belgian arrest warrant and prosecution were based on universal jurisdiction, the majority of the Court decided not to consider whether Belgium in fact had the ability to bring such a prosecution, but instead focussed on the question whether the accused was immune from prosecution because of his office. However, in considering in detail whether Belgium was entitled under international law to issue an arrest warrant for someone who was not at that time on its territory and who was not otherwise connected with Belgium, Judges Higgins, Kooijmans and Buergenthal also discussed briefly the aut dedere aut judicare obligation, declining to give a view on whether the aut dedere aut judicare obligation was one of treaty law only or whether it was now, “at least as regards the offences articulated in the treaties”, on obligation of customary international law. They also chose to offer no view on the question of whether any such general obligation applies to crimes against humanity.150 As a result, the ICJ did not illuminate the place of the aut dedere aut judicare obligation in international law.

Bosnian Genocide Case (Merits)151

  • 151 Case concerning the application of the Convention on the Prevention and Punishment of the Crime of (...)
  • 152 Ibid at paragraph 442.

54The ICJ in this case was concerned with the application of the Genocide Convention, which does not include an aut dedere aut judicare obligation. In considering Serbia and Montenegro’s obligations under the Convention, the Court held that Serbia and Montenegro had violated its obligation to prevent genocide but not its obligation to punish, because the Srebrenica massacre had not occurred on its territory.152 Although it did not expressly discuss whether there was an aut dedere aut judicare obligation, the Court implicitly found that the Convention did not include any such obligation because it determined that there was no violation in not punishing or prosecuting those on its territory who were accused of carrying out genocide outside the State. The Court did not consider whether an obligation existed to extradite or prosecute for genocide at customary international law but was limited to considering the application of the Convention itself.

Prosecutor v. Tihomir Blaskic153

  • 153 Prosecutor v. Tihomir Blaskic (Judgement on the Request of the Republic of Croatia for Review of t (...)
  • 154 Ibid, at paragraph 29.
  • 155 The Law of Land Warfare, United States of America Army Field Manual No. 27-10, 1956, paragraph 506 (...)

55While considering its power to address subpoenas to sovereign States and their high government officials and the appropriate remedies for non-compliance, the Appeals Chamber of the International Criminal Court for the Former Yugoslavia (“ICTY”) indicated in this case that States are under a customary law obligation to try or extradite persons who have allegedly committed grave breaches of international humanitarian law.154 It supported this obiter dictum by reference to a 1956 United States military manual which describes the Geneva Conventions’ provisions dealing with grave breaches as declaratory of the obligations of belligerents under customary international law to take measures for the punishment of war crimes committed by all persons, including members of a belligerent’s own armed forces.155

Prosecutor v. Anto Furundzija156

  • 156 Prosecutor v. Anto Furundzija, IT-95-17/-T, 10 December 1998.

56The year after the Appeals Chamber’s decision in Tihomir Blaskic, the Trial Chamber of the ICTY considered the effect of the characterization of the prohibition against torture as jus cogens. In discussing the effect of a violation of a peremptory norm, it stated:

[I]t would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction. Indeed, it would be inconsistent on the one hand to prohibit torture to such an extent as to restrict the normally unfettered treatymaking power of sovereign States, and on the other hand bar States from prosecuting and punishing those torturers who have engaged in this odious practice abroad. This legal basis for States’ universal jurisdiction over torture bears out and strengthens the legal foundation for such jurisdiction found by other courts in the inherently universal character of the crime.

57It should be noted that the Court was discussing an entitlement, as opposed to an obligation, on States to investigate, prosecute and punish or extradite those accused of violating a jus cogens norm.

Teachings of the most highly qualified publicists

  • 157 For more information regarding the traditional views of the principle, see Wise, “The obligation t (...)
  • 158 Wise, supra 53, at 119.
  • 159 Grotius, De Jure Belli ac Pacis, (translation: The Law of War and Peace, Washington, Carnegie Clas (...)
  • 160 Bassiouni, International Extradition, supra note 65, at 38.
  • 161 de Vattel, The Law of Nations, (translation, Fenwick, Classics of International Law, Washington D. (...)

58Like judicial decisions, the teachings of the most highly qualified publicists are given a subsidiary role in the determination of international law. In practice, the ICJ and other adjudicative bodies also often consider their views when examining whether a particular norm has reached customary status. Writers such as Grotius and de Vattel referred to the existence or otherwise of an obligation, then known as the aut dedere aut punire obligation (extradite or punish). Although Grotius most famously discussed the obligation, the principle has been traced back to Jean Bodin and Baldus in the 14th century.157 Grotius did not limit the obligation to international crimes; he saw it as a matter of bilateral obligation, a recognition of the prerogatives of another sovereign.158 Grotius considered that the obligation aut dedere aut punire existed in respect of all crimes and irrespective of the nationality of the offender.159 The injured State was seen as having a right to exact punishment and the custodial State should not interfere with this right. This required that the custodial State either deliver the offender to the requesting State or, should it decide not to, punish the offender itself.160 De Vattel considered the obligation to be limited to the extradition of nationals – a sovereign should not let his nationals injure another State’s subjects, therefore he should either deliver an offender up to the injured State or prosecute him.161

  • 162 Wise, supra note 157, at 278.
  • 163 Shearer, supra note 36, at 23-27. This view is confirmed by several judges at the ICJ; for example (...)

59Whether international law in fact imposed an obligation to extradite was a controversial issue amongst writers until the end of the 19th century, with Grotius on the side of those who did see a legal duty.162 But it is clear today that, absent a treaty obligation, there is no duty to extradite.163 It is therefore difficult under these circumstances to rely on writers such as Grotius to support the contention that there is a general obligation outside treaty law to extradite or prosecute offenders present on a State’s territory.

The work of the International Law Commission

  • 164 Article 1(1) of the ILC’s statute provides that the ILC shall have for its object the promotion of (...)

60The International Law Commission was created to promote the progressive development of international law and its codification.164 Its position as a possible source of international law has been based primarily on its role in codifying existing customary law, or progressively developing an area of law through its detailed consideration of a topic.

  • 165 Supra note 75, at 1. In fact, the topic of “jurisdiction with regard to crimes committed outside n (...)
  • 166 Report of the International Law Commission on the work of its forty-eighth session, 6 May – 26 Jul (...)
  • 167 Ibid, at 28.
  • 168 Although, if the offender escaped prosecution because the State lacked the jurisdiction to try him (...)

61According to the Special Rapporteur on the aut dedere aut judicare obligation, on its creation in 1948, the topic of the extradite or prosecute clause was amongst the ILC’s original planned topics.165 It did not reappear again until its inclusion in the 1996 Draft Code of Crimes against the Peace and Security of Mankind, where it played a role in the ILC’s proposed “combined approach to jurisdiction based on the broadest jurisdiction of national courts together with the possible jurisdiction of an international criminal court”.166 Articles 8 and 9 of the Draft Code anticipated that States would be obliged to extradite or prosecute those accused of committing a crime within the Code. The commentary to the Draft Code indicated that, in the ILC’s view, the obligation is meaningful only to the extent that the custodial State’s courts have jurisdiction over the actions.167 If jurisdiction is lacking, then the custodial State will be unable to avail itself of the alternatives inherent in the obligation and will be obliged to accept any request for extradition. If no extradition request were forthcoming, the alleged offender would then be able to escape prosecution, ultimately defeating the purpose of the aut dedere aut judicare principle.168 Whilst this analysis is undoubtedly true in respect of the obligation, States did not, in any event, accept the Draft Code with its combined jurisdictional approach in its entirety: they did, however, choose to use the Draft Code as the basis for the negotiations that resulted in the Rome Statute of the International Criminal Court.

  • 169 Supra note 75, at 2.

62Although complementarity of jurisdiction between the new international court and domestic jurisdiction remains central to the Rome Statute, there is no attempt to clearly define the basis of the domestic jurisdiction and the treaty does not include an obligation on States to extradite or prosecute. The ILC’s Special Rapporteur on the aut dedere aut judicare obligation has suggested that the Draft Code was “largely a codification exercise of customary international law as it stood in 1996, as confirmed two years later with the adoption of the Rome Statute of the International Criminal Code, rather than a progressive development of international law”.169 But the fact that the Rome Statute does not determine the extent of a State’s domestic jurisdiction suggests the contrary, at least in relation to the obligation to extradite or prosecute.

  • 170 See Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 10, UN Doc. No. (...)
  • 171 See Galicki, Preliminary report, supra note 75.
  • 172 Galickli, Second Report on the obligation to extradite or prosecute (aut dedere aut judicare), 11 (...)
  • 173 Further comments about the role that the ILC might play in determining the scope of the obligation (...)
  • 174 See the Comments and information provided by States to the ILC, supra note 10.

63As mentioned above, the topic of the obligation to extradite or prosecute was included in the ILC’s long-term programme at its fifty-sixth session in 2004 as it was considered to have achieved sufficient maturity for its codification, with the possibility of including some elements of progressive development,170 and Zdzislaw Galicki was appointed Special Rapporteur for this topic. Galicki’s preliminary report which explains the principle, discussing briefly its sources and scope, before setting out the options available to the ILC, was presented to the Commission at its fifty-eighth session.171 His second report discussing the preliminary views of the ILC members and the Sixth Committee was presented to the Commission at its fifty-ninth session.172 It seems from the reports to date that the Special Rapporteur will conduct a thorough examination of the sources, scope and shortcomings of the aut dedere aut judicare obligation, in particular focusing on whether the obligation exists at customary international law. Where the process might be particularly instructive is not only in its analysis of State practice, but also the views it seeks from States on the nature of the obligation outside treaty law, thereby providing a clearer indication of opinio juris than that currently available.173 Unfortunately, in this writer’s view the questions posed to States to date have not been directed to eliciting whether such opinio juris exists.174

Conclusion regarding customary status of the extradite or prosecute obligation

  • 175 See for example the dissenting opinion of Judge Tanaka in the North Sea Continental Shelf case, su (...)
  • 176 Those writers who do consider that there is a general customary obligation to extradite or prosecu (...)

64One of the challenges of international law, as opposed to municipal law, is that of identifying the law involved, particularly whether a right or obligation exists at customary international law. Although the extradite or prosecute obligation plays a central role in the enforcement of international crimes and in ensuring there is no impunity, like all international norms, its customary status depends on sufficient evidence of State practice and opinio juris. If there is insufficient State practice and opinio juris, the norm cannot be said to bind States outside a treaty, no matter how important its role may be considered by scholars and some States. Of course, whether there is adequate practice and opinio juris will always be a matter of judgement. And in trying to determine what is binding on all States as customary law, even the Judges of the ICJ can have very differing views.175 It is therefore not surprising that scholars differ over whether there is a customary obligation to extradite or prosecute those suspected of committing an international crime.176

65In order to understand the different views on the customary nature or otherwise of the obligation, the following analysis will first touch briefly upon whether there is a customary obligation to extradite or prosecute in respect of particular crimes. Thereafter, we will consider the question whether a broader obligation exists in respect of all international crimes. Finally, the issue whether an international crime’s peremptory nature affects the status of a related aut dedere aut judicare obligation will be considered.

Is there a customary obligation to extradite or prosecute in respect of particular crimes?

  • 177 Higgins, supra note 63, at 26.

66In 1997, Higgins expressed the view that the aut dedere aut punire principle remained treaty-based in relation to terrorism crimes, although, as she recognised, the jurisdictional pattern was becoming sufficiently clear and the number of ratifying parties sufficiently substantial for the question soon to be asked; as a matter now reflective of general international law, does the aut dedere aut punire principle apply to terrorist offences?177 The same question needs to be asked in relation to other particular international crimes.

  • 178 Supra note 59, at 41. In that case, the Court considered that the fact that the application of the (...)
  • 179 Ibid.
  • 180 Details of the number of States parties are shown in Annex I. Other treaties with reasonable parti (...)
  • 181 Supra note 59, at 41.
  • 182 It is worth noting at this juncture what has come to be known as the “Baxter paradox”, that is, “A (...)

67The ICJ has recognised that a provision in a particular treaty may form the basis of a rule that, when coupled with opinio juris, may become a customary rule binding all States. In the North Sea Continental Shelf Case, the Court considered that this was possible where the provision was “of a fundamentally norm-creating character”.178 The Court pointed out that, even without the passage of any considerable period of time, a “very widespread and representative participation in the convention may suffice” to show the other elements usually regarded as necessary for a conventional rule to be considered customary, “provided it included that of States whose interests were specially affected”.179 Whilst the aut dedere aut judicare obligations in the various treaties are not necessarily the most substantive obligations in these treaties (which would be reserved for the prohibition and criminalization of the various activities), the obligation is central to the international enforcement of the prohibition and so could be seen as “fundamentally norm-creating” in character. And, in respect of certain of the treaties, such as the Geneva Conventions, participation is universal. For other treaties, such as the Hague Convention, the Montreal Convention and the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, participation is almost universal, with 183, 185 and 183 States parties respectively.180 However, the Court in the North Sea Continental Shelf Cases did not simply require widespread participation and a norm-creating character in order to be recognised as a customary rule binding all States. It went further to require that, within the period since the relevant treaty came into force, State practice, including that of States whose interests are specially affected, has been “both extensive and virtually uniform in the sense of the provision invoked; - and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved”.181 This requirement of practice that is “both extensive and virtually uniform” and the need for a recognition that a legal obligation is involved, brings us back to State practice and opinio juris.182

  • 183 For more information on whether there is a customary obligation for particular crimes, see van Els (...)

68It is beyond the scope of this paper to consider each of the international crimes in detail to ascertain whether there is sufficient State practice and opinio juris to determine whether there is a customary obligation to extradite or prosecute for each of these crimes. It suffices to say that the evidence in respect of particular crimes may well indicate existing or emerging customary obligations specific to those crimes.183 It may also be possible to identify some crimes for which there is insufficient State practice and opinio juris to determine that there is customary obligation.

  • 184 See Annex II.
  • 185 ICJ Reports (1996) 226, at 258.
  • 186 The study did find that there was a customary right to establish universal jurisdiction over war c (...)
  • 187 For a discussion of individual States’ practice in prosecuting war criminals, see Amerasinghe, “Na (...)
  • 188 Consider for example the actions of the New Zealand Government in the case of Moshe Ya’alon. See t (...)
  • 189 Meron, supra, note 60, at 61. See also Rubin, “Actio Popularis, Jus Cogens and Offenses Erga Omnes(...)

69It is seems appropriate to start this discussion with a discussion of the obligation to extradite or prosecute those accused of grave breaches of the Geneva Conventions. These conventions are now considered to have universal membership, which must surely comply with the North Sea Continental Shelf Case requirement of “very widespread and representative participation”.  But, although the majority of States have implemented legislation that gives their domestic criminal law extra-territorial jurisdiction over grave breaches of the Geneva Conventions,184 this is still not universal. Important nations such as the United States still lack the capacity to prosecute alleged war criminals who are not their citizens in respect of crimes where the victim is not a citizen. The ICJ in its advisory opinion on the Legality of the Threat of Use of Nuclear Weapons did indicate that the provisions of the Geneva Conventions are to be considered today as codifying customary international law, without excluding the regime of grave breaches.185 And the Appeals Chamber of the ICTY in Prosecutor v. Tihomir Blaskic considered that there is a customary extradite or prosecute obligation in respect of grave breaches of the Geneva Conventions. In its recent comprehensive review of customary international humanitarian law, the International Committee of the Red Cross did not find there to be a customary obligation on States to extradite or prosecute those present on its territory who are accused of committing war crimes, although it did find that States have an obligation to exercise the criminal jurisdiction that their national legislation confers upon their courts, whether limited to territorial and personal jurisdiction, or including universal jurisdiction.186 While prosecutions of alleged war criminals have increased in frequency in recent years,187 there is enough practice demonstrating that States are still often not willing, whether for political or other reasons, to prosecute all those accused of perpetrating grave breaches of the Conventions who are present on their territory.188 But can one say that the observation of Meron from 1989 still retains its currency?: “the fact that, in most cases, states fail either to prosecute or to extradite perpetrators of grave breaches of the Geneva Conventions weakens the claim of the obligations to prosecute or to extradite perpetrators of grave breaches to customary law status”.189 It is difficult to say definitively that there is a customary obligation to extradite or prosecute those accused of war crimes. Yet it may be best, in the light of the now universal participation in the Geneva Conventions and the recent increases in frequency, particularly in Europe, of prosecutions of those accused of grave breaches, to consider that there is at least an emerging customary obligation operating outside the Conventions themselves to extradite or prosecute.

  • 190 Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled “Human Rights Counc (...)
  • 191 See the text accompanying notes 107 and 108.

70Similarly, the Convention Against Torture is well subscribed, although not universally. Although the majority of States parties to the Torture Convention have legislated to give their domestic courts jurisdiction over torture which is committed by non-citizens outside their territory, this legislation is by no means universal. The ICTY in the case of Furundzija spoke of a customary right, not a customary obligation, of States to extradite or prosecute those accused of committing torture. And within the limits of the Convention Against Torture, the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment, Manfred Nowak, highlighted in his 2007 report to the Human Rights Council that, despite the impressive machinery establishing universal jurisdiction in the convention, States remain extremely reluctant to exercise universal jurisdiction, with only very few States having exercised such jurisdiction over torture in practice.190 Even within the best-known case involving the exercise of extra-territorial jurisdiction over torture, and despite the legal reasoning of the UK’s most learned judges, the ultimate result was that General Pinochet was not prosecuted for torture.191 But there are encouraging signs. The calls by the African Union for Senegal to establish jurisdiction that would allow it to prosecute Hissène Habré for torture indicate a growing willingness by States to recognise an obligation to either extradite or prosecute someone accused of torture that exists independently of the Convention itself.

  • 192 While the ICJ did consider that Serbia and Montenegro were not required to prosecute those on its (...)

71It is more difficult in the case of genocide to find a customary obligation to extradite or prosecute. Although it is possible for an obligation to extradite or prosecute those accused of genocide to exist at customary international law when such an obligation does not exist within the convention, there needs to be clear evidence of other forms of State practice. Unfortunately, not as many States seem to have implemented legislation that would allow them to prosecute those on its territory who it did not extradite. And while there have been reassuring signs of a willingness among some States to prosecute those accused of genocide, this again not universal. It is probably correct at this point to say that there is not yet enough State practice to find that an obligation to extradite or prosecute for the crime of genocide exists at customary law.192

Is there a customary obligation to extradite or prosecute in respect of all international crimes?

  • 193 This would also seem to be the preliminary views of both the members of the ILC and the Sixth Comm (...)

72While it remains possible that there are existing or emerging customary norms to extradite or prosecute those accused of particular crimes, in the writer’s own view and despite a desire to find an effective way to ensure an end to impunity for gross violations of human rights and international humanitarian law, there is simply not enough State practice or opinio juris to support the existence of a general obligation on States to extradite or prosecute anyone found on their territory who is alleged to have committed an international crime.193

  • 194 The inherent difficulty in identifying State practice and opinio juris to support the customary na (...)
  • 195 See for example,Paust, et al, International Criminal Law: Cases and Materials, Durham, N.C., Carol (...)
  • 196 See further to text accompanying notes 261 to 270.

73It is difficult to draw from a State’s ratification of a number of treaties containing an aut dedere aut judicare clause, or indeed the total number of treaties containing such a clause, the inference that the State considers that it is bound by this obligation for all international crimes, including those which do not include such an obligation in their respective treaties. Similarly, the practice of States in implementing their jurisdictional obligations under treaties through domestic legislation establishing extra-territorial jurisdiction would not seem to support the existence of a general obligation. The majority of States either provide for extra-territorial jurisdiction for particular crimes, or allow for such jurisdiction where they are obliged or entitled to so provide under their treaty obligations. There is not sufficient generality of practice to indicate that States consider themselves obliged to implement legislation providing extra-territorial jurisdiction that would allow the operation of the extradite or prosecute obligation for a broader class of international crimes. And State practice in individual cases where an alleged offender is identified on a third State’s territory is, at best, equivocal. With several clear failures of States to submit a case to prosecution where it has decided not to extradite, even those instances where there is either extradition or prosecution may have been motivated by reasons other than a perceived general obligation, such as an obligation under a treaty, moral considerations, or comity.194 Where the General Assembly has discussed an obligation to extradite or prosecute, the vast majority of these occasions relate to only one subject, making it difficult to infer State practice applicable to all international crimes. Although the preamble to the Rome Statute does call for prosecution of international crimes, it stops short of obliging States to exercise extra-territorial jurisdiction over such crimes, should there be no extradition. Some writers have suggested that an aut dedere aut judicare obligation can be inferred from a trend in General Assembly resolutions that refers to States’ obligations to try perpetrators of international crimes.195 But the extradite or prosecute obligation is a specific one; a State must either extradite or, failing extradition, prosecute an offender present on its territory.196 It is stretching the meaning of certain General Assembly resolutions to infer such a specific obligation from resolutions that are framed in broader terms.

  • 197 Bassiouni and Wise, supra note 10, at 43. See also Bassiouni, “Searching for Peace and Achieving J (...)
  • 198 Wise, supra note 53, at 123.
  • 199 Ibid.
  • 200 Gilbert, supra note 176 at 322.

74Even one of the strongest proponents of a customary aut dedere aut judicare obligation, Bassiouni, admits that “if the question is whether state practice in this sense supports the assertion that the principle aut dedere aut judicare has become a customary norm, the answer may well be no”.197 Much of the State practice considered above relates to specific treaties and is not referable to all international crimes. Wise, who is more critical of the existence of a general obligation to extradite or prosecute for all international crimes, recognises what he describes as a “fashionable tendency to jump from the language in existing treaties to the assertion that an obligation to extradite or prosecute presently exists in respect of all … international crimes”.198 It is this “leap of faith”, in jumping from the language used in a particular treaty (or indeed from practice relating to a specific treaty) to an assertion that there is an obligation to extradite or prosecute in respect of all international crimes that Wise correctly describes as “sloppy thinking”; the idea that “whatever holds for one ‘international crime’ necessarily holds for all”.199 As Gilbert suggests:200

“[T]he better view is that the principle aut dedere aut judicare still only applies, at present, when expressly formulated in multilateral conventions on international criminal law. It may be that the provision in a particular treaty has become declaratory of customary international law with regard to the relevant crime, but there is no generic duty in international law, at least so far, of aut dedere aut judicare”.

Is there an obligation to extradite or prosecute in respect of violations of jus cogens prohibitions?

  • 201 Jus cogens refers to the hierarchical status of particular norms considered by the international c (...)
  • 202 Bassiouni, supra note 197, at 17.

75It has been argued that violations of international crimes having a jus cogens character give rise to an obligation erga omnes on States to either extradite or prosecute any alleged offenders present on their territory.201  Bassiouni has argued that:202

Crimes against humanity, genocide, war crimes (under conventional and customary regulation of armed conflicts), and torture are international crimes that have risen to the level of jus cogens. As a consequence, the following duties arise: the obligation to prosecute or extradite; to provide legal assistance; to eliminate statutes of limitations; to eliminate immunities of superiors up to and including heads of states. Under international law, these obligations are to be considered as obligatio ergo omnes, the consequence of which is that impunity cannot be granted. The crimes establish inderogable protections and the mandatory duty to prosecute or to extradite accused perpetrators, and to punish those found guilty, irrespective of locus since universal jurisdiction presumably applies.

  • 203 Bassiouni, supra note 55, at 65. Bantekas and Nash take a slightly different view as to the reason (...)

76In essence, his argument is that, because of the peremptory nature of jus cogens, a violation of such a norm gives rise to a corresponding obligation erga omnes on all States to, amongst other things, extradite or prosecute any alleged offender on their territory.203 If there were no such corresponding obligation erga omnes, the norms could not be considered peremptory. Similarly, Goodwin-Gill considers that the peremptory nature of crimes deriving from the violation of a jus cogens norm gives rise to corresponding obligations on all States:

  • 204 Goodwin-Gill, “Crime in International Law: Obligations Erga Omnes and the Duty to Prosecute”, in G (...)

In the case of international crimes deriving their authority from a rule of jus cogens, the legal implications seem quite peremptory; every state is entitled erga omnes to exercise jurisdiction, and equally obliged erga omnes, either to institute criminal proceedings or to surrender the alleged offender to another state having perhaps a prior or stronger claim. International crimes, “by their very nature”, produce an obligation erga omnes to extradite to another competent state, prosecute locally, or surrender the person concerned to the jurisdiction of a competent international tribunal; it is the jus cogens/erga omnes combination that makes prosecution (somewhere) unavoidable as a matter of duty.204

  • 205 Certainly the discussion of the inter-relationship of peremptory norms and obligations erga omnes (...)

77The argument of Bassiouni and Goodwin-Gill would seem to characterise the violation of a jus cogens norm as giving rise to obligations erga omnes owed by third States to each other, rather than simply entailing the violation of co-existent erga omnes obligations owed by the same offender to all other States. Whilst this is perhaps because the discussion relates to the violation of jus cogens norms by an individual, rather than by a State, it does stretch the usual understanding of the relationship between jus cogens and erga omnes obligations to argue that the violation of a jus cogens norm creates obligations erga omnes for third parties.205

  • 206 Cassese, supra note 130, at 208.
  • 207 Joyner, “Arresting Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to Acco (...)
  • 208 Higgins, supra note 50, at 57.
  • 209 She draws a distinction between the law of diplomatic protection (which was at issue in the Barcel (...)

78The effect of a violation of jus cogens is often debated.206 Traditionally, international law has distinguished the jus cogens and erga omnes doctrines on the one hand from universal jurisdiction on the other; the former pertains to issues of state responsibility, while the latter deals with individual criminal responsibility.207 As Higgins has pointed out, the ICJ obiter dictum discussion of obligations erga omnes in its Barcelona Traction Case was not within the context of an assertion of jurisdiction over criminal acts, but of an examination of the law relating to diplomatic protection.208 In considering scholars’ arguments that the obiter dictum supports the view that universal jurisdiction can apply where an erga omnes obligation has been violated, she considers that the dictum of the Court is often incorrectly used as authority for more than it can sustain.209

  • 210 Joyner, supra note 207, at 170.
  • 211 Supra note 156.
  • 212 In addition, were the dictum of the Court in the Barcelona Traction Case to apply to allow jurisdi (...)

79The line between jus cogens/erga omnes prohibitions as opposed to individual criminal responsibility/universal jurisdiction has become blurred more recently.210 As discussed above, the Trial Chamber of the ICTY in the Furundzija Case indicated that a violation of the jus cogens prohibition against torture would give rise to an entitlement of every State to whom the erga omnes obligation not to torture is owed to investigate, prosecute and punish or extradite alleged offenders, including an assumption of universal jurisdiction where necessary.211 But it should be noted that this decision indicates only an entitlement to exercise universal jurisdiction over and take other measures against those who are alleged to have violated a jus cogens norm; it does not indicate that there is an obligation to do so. Likewise, article 48 of the Draft Articles on State Responsibility is permissive, allowing States owed an erga omnes obligation to take certain action, but by no means obliging them to do so.212

  • 213 Larsaeus, supra note 51, at 91.

80In any case, as appealing as it may be to oblige States to prosecute or extradite those involved in violations of jus cogens norms, the reality is that State practice does not support this approach. States may condemn such actions, but they do not generally act on their own accord to punish them.213This is not surprising given the asymmetrical development in international law of norms on the one hand and enforcement mechanisms on the other. In the absence of clear State practice, it remains merely aspirational to suggest that there is an obligation erga omnes on all States to prosecute or extradite those responsible for violations of jus cogens.

  • 214 Bassiouni and Wise, supra note 10, at 25 and 51-57.
  • 215 Ibid, at 52.
  • 216 Ibid, at 55.
  • 217 Supra note 10, at 447-448.

81Bassiouni has also gone further, arguing that the aut dedere aut judicare obligation itself is jus cogens.214 Bassiouni argues that, particularly where considering offences involving egregious violations of human rights (such as those involving peremptory norms), if a State does not take action to bring the malefactor present on its territory to justice, it is in effect acquiescing in the violation of a peremptory norm. To the extent that an international crime involves a jus cogens norm, the attached obligation to extradite or prosecute should also have a peremptory status.215 Thus, any agreement to allow impunity for serious violations of jus cogens crimes would be void.216 Steven agrees:217

The duty to extradite or prosecute is itself a part of jus cogens, at least as it relates to the enforcement of jus cogens norms, because it is a necessary condition of the underlying jus cogens norm. In other words, the only way the prohibition of genocide can have any concrete meaning as a jus cogens norm … is if this norm is supported by a jus cogens duty to extradite or prosecute.

  • 218 Shaw, supra note 58, at 118.

82Article 53 of the Vienna Convention on the Law of Treaties defines a peremptory norm as one “accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted”. Thus, it is clear that the norm first needs to be universally accepted as a customary rule before the overwhelming majority of States accept its peremptory character.218 Given that the lack of State practice and opinio juris means that there is no customary obligation to extradite or prosecute, it is impossible therefore to argue that the obligation has jus cogens status.

  • 219 Supra note 201.

83This argument also fails to maintain the distinction between primary and secondary rules. Whilst the nature of a primary rule has some effect on the consequences that flow from its breach, this is limited. Under the ILC’s Draft Articles on State Responsibility, the violation of a primary rule of a peremptory nature entails the application of particular secondary rules, such as the obligation on States to co-operate to bring an end to the breach and not to recognize as lawful the resulting situation, nor to render aid or assistance in maintaining that situation.219 But it is not suggested that these secondary obligations on other States are also peremptory, even if they are seen as necessary to ensure the cessation or non-repetition of the peremptory norm. And the notion that ancillary obligations such as enforcement can piggy-back on the peremptory nature of the primary norm is dangerous. At which point does one stop? Can this idea also apply to other incidental obligations such as the obligation to provide assistance in criminal matters, or the obligation to establish jurisdiction over the actions of nationals committed abroad?

  • 220 See the separate opinion of Judge Lauterpacht in Case concerning application of the Convention on (...)
  • 221 UN Doc. No. S/RES/748 (1992).
  • 222 This case is discussed further in the text accompanying notes 142 to 148.
  • 223 UN Doc. No. S/RES/1054 (1996).
  • 224 Un Doc. No. S/RES/1267 (1999).

84In addition, if the obligation to extradite or prosecute were of jus cogens stature, the Security Council would be unable to take any decision that would violate such a norm.220 Yet the Security Council has on three occasions passed resolutions requiring States to extradite alleged offenders of terrorist crimes present on their territory, without allowing the relevant States the option of prosecuting in lieu of extradition. In the case of Libya and the Montreal Convention, following the bombing of a PanAm airliner over Lockerbie, the Security Council, acting under Chapter VII of the Charter, passed resolution 748 (1992)221 which required Libya to extradite the two suspects. Libya’s wish to prosecute its nationals in lieu of extradition was the subject of the ICJ Lockerbie case.222 The Security Council in resolution 1054 (1996)223 required Sudan to extradite those accused of involvement in the assassination attempt of the Egyptian President, despite Sudan being party to the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents, which includes an obligation to extradite or prosecute. Security Council resolution 1267 (1999)224 was expressed in similar terms, requiring Afghanistan to extradite Osama Bin Laden for the bombing of the US embassies in Kenya and Tanzania. In this case, Afghanistan was then also a party to the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents. But in none of these instances were objections raised by either the subject of the resolution or by other States that the Security Council was unable to pass such resolutions as it would be contrary to jus cogens norms.

  • 225 Supra note 149, at paragraph 44.

85In this writer’s view, the commendable desire for an international community that takes seriously gross violations of humanitarian or human rights norms and reacts positively to ensure that offenders are denied impunity has meant that some writers are willing to see customary obligations where State practice and opinio juris are lacking. In their Joint Separate Opinion in the Arrest Warrant Case, Judges Higgins, Kooijmans and Buergenthal addressed a similar question about the customary nature of the assumption of universal jurisdiction. Their views can be applied equally to the question of whether the aut dedere aut judicare obligation exists at customary international law:225

If a dispassionate analysis of State practice and Court decisions suggests that no such jurisdiction is presently being exercised, the writings of eminent jurists are much more mixed. The large literature contains vigorous exchanges of views (which have been duly studied by the Court) suggesting profound differences of opinion. But these writings, important and stimulating as they may be, cannot of themselves and without reference to the other sources of international law, evidence the existence of a jurisdictional norm. The assertion that certain treaties and court decisions rely on universal jurisdiction, which in fact they do not, does not evidence an international practice recognized as custom. And the policy arguments advanced in some of the writings can certainly suggest why a practice or a court decision should be regarded as desirable, or indeed lawful; but contrary arguments are advanced, too, and in any event these also cannot serve to substantiate an international practice where virtually none exists.

1.4 General Principle of Law recognized by civilized nations

  • 226 Malanczuk, supra note 277, at 48.
  • 227 Ibid.
  • 228 See generally the text accompanying notes 75 to 95.
  • 229 See generally note 163.

86So far, we have considered the main potential sources for the aut dedere aut judicare obligation. Before moving to discuss the scope and operation of the obligation, for the sake of completeness, we should also look at the general principles of law recognised by civilised nations. As a source of international law, “general principles of law recognized by civilised nations” was meant to provide a solution in cases where treaties and custom provided no guide as to the appropriate law.226 But whether this phrase is meant to mean the general principles of international law or general principles that are common to all or most national legal systems is unclear.227 In any case, were it to mean the former, it seems clear from the discussion above that there would be no agreement as to what these principles might be; the lack of consistent State practice indicates that there is no generality to the principle to indicate there is a general international law obligation law that a State must prosecute an offender present on its territory should it not extradite him or her. If it were to mean the latter (a general principle that is common to all or most national legal systems), any review of municipal extradition law, to say nothing of jurisdiction under domestic legal systems,228 would show that there is no generality between different systems, other than to say that there is no obligation on a State outside treaty law, to extradite.229 This source of law therefore does not add to this discussion.

Notes

9 In examining Security Council resolutions as a potential source for the obligation to extradite or prosecute, the resolutions are seen as an important sub-set of a treaty obligation, namely article 25 of the UN Charter which makes Security Council decisions made under Chapter VII of the Charter binding on States. As such, these could be included as part of the international conventions as a source under A.38(1)(a) of the ICJ Statute rather than separately. But, as the voluntary assumption of the obligation by States is more indirect than with an obligation found in a treaty which it has signed and ratified, this writer prefers to treat them separately. Considering Security Council resolutions as a potential source for the obligation in this manner should be distinguished from the comments of Higgins and Tunkin at note 50, which are concerned with whether Security Council decisions could be a source of customary international law as showing either State practice or opinio juris.

10 Several writers have suggested that extradite or prosecute clause appears in at least 70 international criminal law conventions (see for example Bassiouni, M.C., and Wise, E., Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law, Dordrecht, Martinus Nijhoff Publishers, 1995 at 73, Kelly, “Cheating Justice by Cheating Death: The Doctrinal Collision for Prosecuting Foreign Terrorists – Passage of Aut Dedere Aut Judicare into Customary Law and Refusal to Extradite Based on the Death Penalty”, 20 Arizona Journal of International and Comparative Law, 2003, pp. 491-532 and Steven, “Genocide and the Duty to Extradite or Prosecute: Why the United States is in Breach of its International Obligations”, 39 Virginia Journal of International Law, 1999, pp. 425-466 at 447.) It is somewhat disingenuous to say that the extradite or prosecute clause appears “in one form or another” in so many multilateral conventions, or indeed that these contain either express or implied obligations to extradite or prosecute. Whilst there may well be over 70 international treaties that require the parties to “proscribe, prosecute or punish” particular conduct (Bassiouni and Wise, at 8), considerably less than 70 of these require States to elect either to extradite or to prosecute offenders present on their territory. For example, the Genocide Convention does contain obligations for States to prosecute (where the genocide occurred on its territory) and to extradite (articles 3–6, and article 7 respectively), but these are not an aut dedere aut judicare obligation, where a State is required to do one or the other. (So, if a person accused of committing genocide elsewhere is present on a State’s territory, that State may be obliged to extradite him or her to a requesting State with whom it has an existing extradition treaty or other extradition arrangements but is not obliged to prosecute, whether or not an extradition request is made.) It is interesting to note that some States, in responding to a request for information regarding their practice in respect of the aut dedere aut judicare principle, list only those treaties to which they are parties that include the actual obligation, whilst others have listed treaties that do not in fact contain an aut dedere aut judicare obligation. See The obligation to extradite or prosecute (aut dedere aut judicare) Comments and information received from Governments, UN Doc. No. A/CN.4/579, 5 March 2007 and the Addendums thereto, UN Doc. No. A/CN.4/579/Add.1, 30 April 2007, A/CN.4/579/Add.2, 5 June 2007, A/CN.4/579/Add.3, 21 July 2007 and A/CN.4/579/Add.4, 11 June 2007.

11 Annex I sets out each treaty containing an aut dedere aut judicare clause, the date opened for signature, the date entered into force and the number of State parties to the treaty, as well as the wording of each clause.

12 Draft Convention for the Prevention and Punishment of Terrorism, 16 November 1937, 19 League of Nations O.J. 23 (1938).

13 It should be noted that each of these conventions also expressly covers the situation of an offender who subsequently becomes a citizen of a State.

14 In the case of the two latter treaties, the obligation to prosecute a national who is not extradited only arises where the extradition is refused solely on the grounds that the offender is a national and only at the request of the State seeking extradition.

15 The text of these conventions, and others containing an aut dedere aut judicare obligation, are set out in Annex I. The First Protocol Additional to the Geneva Conventions extends the operation of the Geneva Conventions’ provisions relating to grave breaches, which includes the prosecute or extradite clause, to grave breaches under that Protocol.

16 For a full discussion of the prosecute or extradite clause in the Geneva Conventions, and how it operates in practice, see van Elst, supra n.8.

17 These are the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention), the Protocol to the Montreal Convention, the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons Including Diplomatic Agents, the International Convention against the Taking of Hostages, the Convention on the Physical Protection of Nuclear Material, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, the Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, the International Convention Against the Recruitment, Use, Financing and Training of Mercenaries, the Convention on the Safety of United Nations and Associated Personnel, the International Convention for the Suppression of Terrorist Bombings, the International Convention on the Suppression of Financing of Terrorism, the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, the International Convention for the Suppression of Acts of Nuclear Terrorism and the International Convention for the Protection of All Persons from Forced Disappearance.

18 Neither the Convention against Torture nor the Convention against Forced Disappearances contain the words “without exception whatsoever”. The latter convention also introduces for the first time the notion that a State who does not extradite an alleged offender can either prosecute or surrender him or her to another State in accordance with its international obligations or surrender him or her to an international criminal tribunal whose jurisdiction it recognises.

19 White, “The Hague Hi-Jacking Convention”, 6 The Review International Commission of Jurists, 1971, pp. 38-45, at 39.

20 Mankiewicz, “The 1970 Hague Convention”, 37 Journal of Air Law and Commerce, 1971, pp. 195-210 at 198-199.

21 Lee, “International Suppression of Hijacking”, in Bassiouni, M.C., International Terrorism and Political Crimes, Springfield, Charles C Thomas, 1975, pp. 248-256, at 250.

22 Bin Cheng, “Aviation, Criminal Jurisdiction and Terrorism: The Hague Extradition/Prosecution Formula and Attacks at Airports”, in Bin Cheng and Brown, (eds), Contemporary Problems of International Law; Essays in Honour of Georg Schwarzenberger on his Eightieth Birthday, London, Stevens and Sons, 1988, pp. 25-53, at 36-37. See also White, supra note 19, at 42.

23 This additional wording is included in some, but not all, of the subsequent conventions using the Hague formula. The reason for its non-inclusion in later treaties may be explained by reference to the ILC’s commentary to article 6 of the Draft Articles on the Prevention and Punishment of Crimes Against Diplomatic Agents and Other Internationally Protected Persons (Yearbook of the International Law Commission, 1972, vol. II, pp.318-319), where it considered that this sentence need not be included as it considered it beyond the scope of the draft to provide specific requirements as to the manner in which States’ authorities should exercise their functions under internal law. In its place, the Convention includes the phrase “through proceedings in accordance with the laws of that State”. Subsequent treaties have used both sets of wording, or neither.

24 Mankiewicz seems to consider that there remains an absolute obligation to prosecute alleged hijackers by the inclusion of the words “shall be obliged without exception whatsoever … to submit the case to its competent authorities …” (supra note 20, at 204). However it seems to be accepted now that whilst there may be an absolute obligation to submit the case to the prosecutorial authorities, these authorities retain their usual discretion whether to proceed with the prosecution in all the circumstances. For further discussion on this aspect, see further to the text accompanying notes 230 to 235.

25 However, such a clause tends not to be included where a convention is not principally criminal in nature but criminalises acts incidental to the main purpose of the treaty: see for example in the Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa.

26 See for example the Council of Europe’s 2001 Convention on Cyber-crime and its 1999 Criminal Law Convention on Corruption, the Convention of the Organization of the Islamic Conference on Combating International Terrorism, the Arab Convention on the Suppression of Terrorism, the Inter-American Convention Against Corruption, the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives and Other Related Materials and the OAS Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of International Significance.

27 See for example the Council of Europe’s Convention on the Prevention of Terrorism in 2005, the African Union Convention on Preventing and Combating Corruption in 2003, the OAU’s 1999 Convention on the Prevention and Combating of Terrorism, the Inter-American Convention on Forced Disappearance of Persons, the SAARC Regional Convention on Suppression of Terrorism, the Inter-American Convention to Prevent and Punish Torture, the Convention of the OAU for the Elimination of Mercenarism in Africa and the 1977 European Convention on the Suppression of Terrorism.

28 The Council of Europe’s Convention on Action Against Trafficking in Human Beings in 2005 requires States to establish jurisdiction where an alleged offender is present on its territory and it does not extradite him or her solely on the grounds of nationality, but the Convention does not then oblige States to prosecute where they in fact refuse to extradite.  Similarly, the Inter-American Convention on International Traffic in Minors provides competence to the State Party in which the alleged offender is located if he or she is not extradited, but does not oblige the custodial State to prosecute where it does not extradite.

29 The exceptions to this are the Convention of the Organization of the Islamic Conference on Combating International Terrorism, the Arab Convention on the Suppression of Terrorism and the Convention of the OAU for the Elimination of Mercenarism in Africa.

30 The Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature on 9 December 1948 and entered into force on 12 January 1951, 78 UNTS 277.

31 Yearbook of the United Nations, 1948-49, New York, Columbia University Press, 1950, pp. 953-962. What was discussed was whether the convention extinguished the right of a State to bring its own nationals to trial for acts committed outside the State. An explanatory statement was included in the Sixth Committee’s report to the General Assembly to confirm that the convention did not affect this right.  See also Universal Jurisdiction: The Duty of States to Enact and Implement Legislation, Amnesty International, September 2001, AI Index No. IOR53/002/2001, Chapter 7. For a comprehensive analysis of the crime of genocide and universal jurisdiction, see Schabas, W.A., Genocide in International Law: The Crime of Crimes, Cambridge, Cambridge University Press, 2000, at 353-368.

32 26 February 2007, paragraph 442. This decision would seem on first reading to be in contrast to the views of the Court in the same case when deciding Preliminary Objections, where it found that the obligation each State has to prevent and punish the crime of genocide is “not territorially limited by the Convention”. (Case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), (Preliminary Objections) ICJ Reports (1996) (II) 616, para. 31.) The Court in its decision on the merits considered the obligation to punish genocide separately from the obligation to prevent genocide. The comment discussed above was made within the context of the obligation to punish under Article VI of the Convention, whilst the Court’s comments in the Preliminary Objections was made within the context of a discussion of the obligation to “prevent and punish” genocide. This is confirmed by the Court in its decision on the merits (paragraphs 153 to 154), where it stated that its earlier comments are to be understood as relating to the obligation in Article 1 of the Convention to “prevent and to punish”. It is interesting to compare this decision with that of the ICTR in Prosecutor v. Michel Bagaragaza (Decision on Prosecutor’s Request for Referral of the Indictment to the Kingdom of The Netherlands – rule 11bis of the Rules of Procedure and Evidence), (ICTR-2005-86-11bis, 19 May 2006). There the Trial Chamber was required to determine if there was a treaty from which the power to prosecute genocide flowed. It held that it was satisfied that the Genocide Convention, as interpreted by the ICJ in 1996 (as creating right and obligations owed to all people) and the UN Charter, when read with the ICTR Statute and relevant Security Council resolutions, are treaties from which the power to prosecute genocide flows for the purposes of the jurisdictional requirements under the Dutch Criminal Code. See Marong, “The ICTR transfer Michel Bagaragaza to the Netherlands for Trial”, ASIL Insights, Volume 12, Issue 5, 18 June 2007.

33 International Convention for the Suppression and Punishment of the Crime of Apartheid, 1015 UNTS 243, opened for signature 10 November 1973, entered into force 18 July 1976. For a discussion of the controversy generated by the inclusion of universal jurisdiction over the crime of apartheid, see Clark, “Apartheid” in Bassiouni, M.C., International Criminal Law (2nd ed.), Vol. I – Crimes, New York, Transnational Publishers Inc., 1999, pp 643-662, at pp. 653-658.

34 Convention for the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 32 ILM 800 (1993), dated 13 January 1993, entered into force 29 April 1997. See Meselson. and Robinson, “A Draft Convention to Prohibit Biological and Chemical Weapons under International Criminal Law”, in Yepes-Enríquez,, R. and Tabassi, L. (eds.), Treaty Enforcement and International Cooperation in Criminal Matters, with special reference to the Chemical Weapons Convention, The Hague, T.M.C. Asser Press, 2002, pp. 457-469.

35 Basel Convention on Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1673 UNTS 126, dated 22 March 1989, entered into force 5 May 1992.

36 See the discussion in Shearer, I., Extradition in International Law, Manchester, University of Manchester Press, 1970, at 94-131. As a rule of thumb, States with a Common Law legal system tend not to exclude extradition of their own nationals. See for example the US-UK Extradition Treaty of 2003, which expressly states that nationality shall not be a bar to extradition. Consequently, the aut dedere aut judicare clause is not present in this treaty. (US-UK Extradition Treaty, signed 31 March 2003, not yet in force.). However, many other States are restricted from extraditing their citizens.

37 Ibid, at 219-223.

38 Examples of some of the bilateral extradition treaties that contain such an obligation in respect of nationals who are not extradited are set out in the comments and information received by the ILC from States, supra note 10.

39 Article 2, 165 LNTS 46. The Convention was opened for signature on 26 December 1933 and entered into force on 25 June 1935.

40 159 BFSP 606.  The Convention was opened for signature on 15 September 1952 and entered into force on 28 August 1954. Although there were six signatories to the Convention, only three States ratified.

41 Article 6(2), ETS No. 024. The Convention was opened for signature on 13 December 1957 and entered into force on 18 April 1960. As between those States Parties that are members of the European Union, the treaty has been largely replaced by the European arrest warrant created pursuant to the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and Surrender Procedures Between Member States, Official Journal of European Communities L. 190/1, 18 July 2002.

42 Articles 2(3) and 8, OAS Treaty Series, No.60. The Convention was opened for signature on 25 February 1981 and entered into force on 28 March 1992.

43 Adopted by the General Assembly in its resolution 45/116 of 14 December 1990 (UN. Doc. A/RES/45/116).

44 In particular, the Security Council has taken on a legislative role in its resolutions 1373 and 1540 (UN Docs. S/RES/1373 (2001) and S/RES/1540 (2004) respectively), requiring States to take particular action to counter terrorism.

45 SC Resolutions 1267 (1999) of 15 October 1999 and 1333 (2000) of 19 December 2000.

46 Legal Consequences for States for the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), ICJ Reports (1971) 16 at 53.

47 Ibid.

48 Article 2(c) of SC Res. 1373 states “Decides also that all States shall: … (c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens” (S/RES/1373 (2001).

49 Report by the Chair of the Counter-Terrorism Committee on the Problems Encountered in the Implementation of Security Council Resolution 1373 (2001), S/2004/70, 26 January 2004, at 6.

50 See Higgins, R., Problems and Process: International Law and How We Use It, Oxford, Clarendon Press, 1994, at 28, concurring with Professor Tunkin’s view that decisions of the Security Council are not really sources of international law, having only ad hoc effect, although they create binding obligations. (In this respect, Higgins is addressing the question of whether Security Council resolutions could be considered as a source for State practice and opinio juris, rather than whether an obligation on States to do or refrain from doing something can be sourced in such a resolution.) Higgins does recognise that there are times when the substance of Security Council work, and the fact that it is repeated every year, may mean that it is involved in the process of customary development, in addition to the mere imposing of the obligation. Although several of the topics the subject of these Security Council resolutions do recur, they are not yet regular, nor is the extradite or prosecute obligation so central to the resolution as to bring it within the level of regularity anticipated by Higgins.

51 Larsaeus, “The Relationship between Safeguarding Internal Security and Complying with International Obligations of Protection: The Unresolved Issue of Excluded Asylum Seekers”, 73 Nordic Journal of International Law, 2004, pp. 69-97, at 85.

52 Bassiouni and Wise, supra note 10, at 24.

53 Steven, supra note 10, at pp. 442-443. For a detailed discussion of this approach, see Bassiouni and Wise, supra note 10, at 26-50, and Wise, Extradition: The Hypothesis of a Civitas Maxima and the Maxim Aut Dedere Aut Judicare”, 62 Revue Internationale de Droit Pénal, 1991, pp. 109-134.

54 This shift away from a State-centric approach to a more global approach can also be seen in a comparison of article 53 of the Vienna Convention on the Law of Treaties (23 May 1969, 1155 UNTS 3314), and the Draft Articles on State Responsibility adopted by the ILC on First Reading in 1996. The Vienna Convention speaks of peremptory norms as those accepted and recognised by the international community of States as a whole and from which no derogation is acceptable, whilst the then article 19 defines an international crime for the purposes of the Draft Articles as the breach by a State of an obligation considered essential for the protection of the fundamental interests of the international community.

55 Bassiouni and Wise, supra note 10, at 24. See also Bassiouni, “International Crimes: Jus Cogens and Obligatio Erga Omnes”, 59 Law and Contemporary Problems, 1996, pp. 63-74, at 66, where he admits that there is a wide gap between legal expectations and legal reality.

56 Wise, supra note 53, at 123.

57 Continental Shelf (Libyan Arab Jamahiriya/Malta) ICJ Reports (1985) 13 at 29.

58 See Shaw, M.N., International Law, Cambridge, Cambridge University Press, 2003 at 70-72.

59 The ICJ spoke of the need for “constant and uniform usage practiced by the States in question” in the Asylum Case (Columbia v. Peru) (Haya de la Torre Case) (Judgement) ICJ Reports (1950) 266. In the North Sea Continental Shelf Cases ICJ Reports (1969) 3, at 43, the Court remarked that state practice had to be “both extensive and virtually uniform in the sense of the provision invoked”. But in the Nicaragua v. United States case (ICJ Reports (1986) 14, at 98), the Court emphasised that the practice in question need not be “in absolutely rigorous conformity” with the purported customary rule, so long as State practice is generally consistent with the rule and any inconsistencies are treated as breaches of that rule, rather than as acts creating a new rule.

60 See Meron, T., Human Rights and Humanitarian Norms as Customary Law, Oxford, Clarendon Press, 1989, at 113-114. Meron points to the ICJ decision in the Nicaragua Case as according limited significance to State practice, particularly inconsistent State practice, and attributing central importance to resolutions of the General Assembly and other international organisations. He argues that this shows that the burden of proof to be discharged in establishing custom in the field of human or humanitarian rights is less onerous than in other fields of international law. Cassese approaches the issue of the relative weight to be given to practice and opinio juris in the development of international humanitarian law slightly differently. (Cassese, A., International Law (2nd ed.), Oxford, Oxford University Press, 2005, at 160-161.) He argues that the Martens Clause allows the inference that State practice need not apply to the formation of a principle or rule based upon the laws of humanity or the dictates of public conscience. He also suggests that the law of warfare, which might otherwise have a potentially devastating impact on civilians or combatants, should be capable of evolving before States have a chance to develop a practice. By way of example, he argues that there can be no purpose in requiring prior State practice for the formation of a general ban on a particular means or method of warfare which would seriously imperil civilians. Although this writer is more convinced by the latter basis for his argument than the former (given that the Martens Clause places equal emphasis on State practice than on the “laws of humanity” and the “dictates of public conscience”), Cassese’s argument is not relevant to the discussion of the aut dedere aut judicare obligation, which may well be included in treaties dealing with international humanitarian law, but remains ancillary to the “laws of war”, dealing rather with the implementation of the related enforcement procedures than with the substantive or core humanitarian laws.

61 Cf. Higgins, supra note 50, at 28, who warms that one must take care not to use General Assembly resolutions as a short cut to ascertaining international practice in its entirety. “Practice in the larger world arena is still the relevant canvas, although UN resolutions are a part of the picture. Resolutions cannot be a substitute for ascertaining custom; this task will continue to require that other evidences of state practice be examined alongside those collective acts evidenced in General Assembly resolutions”. It is noted that Higgins was discussing only the effect of General Assembly resolutions, although her comments would apply equally to other forms of normative utterances.

62 Of these 30, 20 have more than 125 State parties (being approximately two-thirds of all States), 13 are ratified by more than 80 percent of all States, and eight are ratified by more than 90 percent of all States.

63 Enache-Brown and Fried, “Universal Crime, Jurisdiction and Duty: The Obligation of Aut Dedere Aut Judicare in International Law”, 43 McGill Law Journal, 1998, pp. 613-633, at 628-629. See also Freestone, “International Cooperation Against Terrorism and Development of International Law Principles”, in Higgins, R., and Flory, M. (eds), Terrorism and International Law, London, Routeledge, 1997, pp.43-68, at 60: “Indeed, in relation to the core of offences which are covered by those multilateral conventions which have achieved wide adherences – such as hijacking and hostage-taking – it might be argued that this general pattern of treaty practice … suggests that … a wider core of terrorist offences are subject to jurisdiction according to this [aut dedere aut judicare] principle under customary international law”.

64 Enache-Brown and Fried, ibid, at 628-629.

65 Certainly it is Bassiouni’s view that “constant reaffirmation in these treaties of the duty to extradite or prosecute may be taken to confirm that, at least so far as international offenses are concerned, the principle aut dedere aut judicare has been accepted as a positive norm of general international law”, (supra note 10, at 24). See also Bassiouni and Wise, supra note 10 ,at 5, Bassiouni, M.C., International Extradition: United States Law and Practice, New York, Oceana Publications, 2002, at 39, Bassiouni, “Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice”, 42 Virginia Journal of International Law, pp. 81-162.

66 See further to the text accompanying notes 178 to 181.

67 Baxter, “Multilateral Treaties as Evidence of Customary International Law”, 41 British Yearbook of International Law, 1965-1966, pp. 275-300, at 285-286.

68 Enache-Brown and Fried, supra note 63, at 630.

69 Larsaeus, supra note 51, at 85. She points out that, given the relatively small number of cases where prosecutions have in face been initiated for war crimes or wide-spread human rights violations, there is insufficient evidence that States consider themselves to be obliged to extradite or prosecute by international law.

70 Alternatively, the treaty may be seen as codifying or declaring existing custom; Freestone, supra note 63, at 58.

71 Bassiouni and Wise, supra note 10, Bassiouni, M.C., International Extradition: Unites States Law and Practice, New York, Oceana Publications, 2002, at 39; Bassiouni, M.C., “Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice”, 42 Virginia Journal of International Law, pp.81-162; Enache-Brown and Fried, supra note 63, at 628-629; and Steven, supra note 10, at 447.

72 Larsaeus, supra note 51, at 86.

73 See Annex I.

74 While the principle of legality is usually considered in the context of international criminal law as requiring that an individual cannot be convicted (or punished) for a crime that was not criminal at the time of commission (nullem crimen sine lege), it more generally limits criminal law to those interventions clearly prescribed in advance by law. See Broomhall, B., International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law, Oxford, Oxford University Press, 2003, at 26. As such, an argument that there an aut dedere aut judicare obligation on States without being able to succinctly identify the terms and limits of the obligation would fall foul of the requirement of precision inherent in the principle of legality.

75 The Special Rapporteur to the ILC on the Extradite or Prosecute Clause, Mr Zdzislaw Galicki, has recognised that national legislation is a rich source of practice to consider when examining the aut dedere aut judicare clause. See Galicki, Preliminary Report on the Obligation to Extradite or Prosecute (“aut dedere aut judicare”), 7 June 2006, UN Doc. No. A/CN.4/571.

76 A failure to enact such legislation contrary to the obligation in a convention is seen as a breach of a State’s treaty obligation. See the Decision of the Committee Against Torture under Article 22 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment and Punishment, Communication 18/2001, 19 May 2006, UN Doc. No. CAT/C/36/D/181/2001.

77 It is beyond the scope of this paper to examine in detail whether States have legislation based on active personality that would allow prosecution of nationals whose extradition fails or is prohibited. As jurisdiction based on active personality is not contentious, it is more interesting to examine legislation that would allow a State to exercise jurisdiction over an alleged offender whose only connection with the custodial State is based on his or her presence in the State.

78 In this respect, legislation creating universal jurisdiction would certainly allow a State to perform its obligation to prosecute, if it does not extradite. As discussed further at the text accompanying notes 271 to 279), a number of writers prefer not to confuse pure universal jurisdiction with the jurisdiction that must be assumed for the operation of the extradite or prosecute obligation.

79 The information upon which Annex III is prepared has been drawn from a variety of sources, in particular the Amnesty International Report on Universal Jurisdiction, supra note 31; Universal Jurisdiction in Europe: Criminal Prosecutions in Europe since 1990 for war crimes, crimes against humanity, torture and genocide, Redress, 30 June 1999, available at http://www.redress.org/Universal_jurisdiction.html (accessed 5 August 2007); Universal Jurisdiction in Europe: State of the Art, Human Rights Watch, June 2006, available at http://hrw.org/reports/2006/ij0606/index.htm (accessed 5 August 2007); International Committee of the Red Cross, International Humanitarian Law Database of National Implementation, available at http://www.icrc.org/ihl-nat.nsf/WebALL!OpenView, (accessed 5 August 2007); country reports submitted to the Committee against Torture by States parties pursuant to the Convention against Torture, available at http://www.ohchr.org/english/bodies/cat/sessions.htm (accessed 5 August 2007); country reports submitted to the Counter Terrorism Committee pursuant to Security Counsel Resolution 1534, available at http://www.un.org/sc/ctc/ (accessed 5 August 2007); the T.M.C. Asser Institute for International Law, Website of International Humanitarian Law, available at http://www.wihl.nl/, (accessed 5 August 2007); and the Comments and information provided to the ILC by States, supra note 10. Details of the various legislation on which this annex is based is available from the writer.

80 States that use this form of implementation include many Common Law countries such as the United Kingdom, Australia, New Zealand, Canada and the United States.

81 Van Elst, supra note 8, at 828-830.

82 For example, article 7 of Brazil’s Criminal Code allows universal jurisdiction over crimes committed abroad which Brazil is obliged to repress by virtue of its treaty obligations. The accused must be present in Brazil, the offence must be criminalised in the State in which it was committed and extradition for the crime must be authorised under Brazilian law. Amongst those States for which this writer was able to identify the relevant legislation, 43 had such a norm in their domestic criminal law. Of these, 35 provided that extraterritoriality applied when the State was required to do so under treaties or conventions to which it was a party. Only 8 States allowed for extraterritoriality where the State was required to do so by international law generally, and not solely treaties or conventions to which it was a party.

83 For example, article 10 of the Italian Penal Code provides jurisdiction over common crimes committed abroad against foreigners if the crime is one for which the penalty is not less than three years. In addition, extradition must have not been granted or accepted by the State in which the offence occurred nor by the State of the accused’s nationality. This writer has been able to identify nine other States which have such a provision.

84 See for example the inclusion of this aut dedere aut judicare blanket norm can be found in section 20(1) of the Criminal Code of the Czech Republic. This writer has identified a further 17 States with such a provision.

85 See for example article 6 of the Criminal Code of Lithuania which allows that non-nationals may be prosecuted for an offence that occurred elsewhere provided that the act is recognised as a crime and is punishable under the laws of both the place of commission and of Lithuania.

86 This writer has identified 75 States which clearly do not have such a norm, and 43 States where there is insufficient information available to ascertain whether they have such a norm. The legislation of some States provide for extraterritoriality on more than one basis.

87 The danger of relying on existing criminal law in this manner is evident in the example of Norway, the State to which the Appeals Chamber of the International Criminal Tribunal for Rwanda refused to transfer the case of Michel Bagaragaza, as it considered that Norway lacked jurisdiction to try the accused for crimes under international law, in particular genocide. Norway had indicated to the Court that, as genocide was not criminalised, it would rely on ordinary criminal offences of culpable homicide. This was not considered acceptable to the Court. See The Prosecutor v. Michel Bagaragaza Decision on Rule 11bis Appeal, 30 August 2006. A summary of the case is available in Marong, “The ICTR Appeals Chamber Dismissed the Prosecutor’s Appeal to Transfer Michel Bagaragaza for Trial to Norway”, ASIL Insight, Volume 10, Issue 25, 3 October 2006. On the other hand, Norway has recently arrested two Bosnians accused of war crimes, in one instance based on an extradition request from Bosnia. In these cases, Norwegian authorities have indicted the accused under existing Norwegian laws criminalizing gross violence, assault, illegal detention and rape. (“Norwegian police arrest second Bosnian war crimes suspect in two weeks”, International Herald Tribune, 8 May 2007.) Annex III, which shows that States have jurisdiction sufficient to allow them to prosecute in default of extradition, focuses on whether there is sufficient extra-territorality, although reference may be made to the absence of criminalization of the crime itself.

88 For example, in its third report to the Committee Against Torture, in respect of its obligation to extradite or prosecute those accused of torture Egypt said that, as Article 151 of its Constitution provides that treaties “shall have the force of law after their conclusion, ratification and publication according to the established procedure”, its extradite or prosecute obligations are deemed directly enforceable in the State. (See Third periodic report of Egypt to the Committee against Torture,U.N. Doc. CAT/C/34/Add.11, 28 January 1999, para. 82. This contention is repeated in its subsequent reports to the CAT.)

89 See the views of the Senegalese Cours de Cassation in the Hissène Habré case, where it upheld the earlier court’s decision that the Constitutional provision allowing direct applicability of international law into the State’s municipal law did not operate to provide criminal law jurisdiction for extraterritorial crimes in the absence of implementing legislation. Conclusion du Ministère Public, Instance Pénale, Affaire no67/RG/2000, Dakar, 3 janvier 2001 (available at http://www.hrw.org/french/themes/habre-ministere_public.html (accessed 5 August 2007)). The Court’s view is that provisions such as the aut dedere aut judicareobligation in the Convention Against Torture are not self-executing, as the treaty calls on States to implement appropriate legislation. A similar decision was made by the Dutch Supreme Court with regard to acts of torture that predated the Dutch Torture Act; see Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights, Philadelphia, University of Pennsylvania Press, 2006, at 180.

90 See page 3 of chapter 14 of Amnesty International’s Report on Universal Jurisdiction, supra note 31. Amnesty International points out that there is considerable agreement amongst scholars, courts, executive officials and treaty monitoring bodies that such a constitutional provision would not be sufficient in the absence of specific implementing legislation to establish jurisdiction.

91 These include the United States, whose legislation implementing the Geneva Conventions, the War Crimes Act 1996 and the Expanded War Crimes Act 1997, are remiss in establishing only territorial jurisdiction, active nationality and passive nationality over grave breaches. The United States’ legislation does not allow the United States to fulfil its obligation in respect of grave breaches to prosecute any offender found on its territory. See further Zaid, “Will or Should the United States Ever Prosecute War Criminals?: A Need For Greater Expansion in the Areas of Both Criminal and Civil Liability”, 35 New England Law Review, 2001, pp. 447-469.

92 There are 94 States for whom the jurisdictional position is known, and 98 States where there is not enough information available to determine their jurisdiction. Of the 94, 45 lack extra-territorial jurisdiction and 49 have legislation that would allow the prosecution of a non-national for extra-territorial crimes against humanity.

93 In respect of genocide, there are many States where the jurisdictional position is unclear as the State has a provision that allows extra-territorial jurisdiction in cases provided for in international treaties to which it is a party. It is not always apparent whether the State would interpret this to apply to the Genocide Convention which certainly establishes the crime but does not address the extra-territorial nature of any prosecution but only addresses prosecution by the territorial State or an international tribunal.

94 Detailed information about which States require a political decision to be taken or not is available from the author.The Israeli Government has also asked the United Kingdom to amend its law to ensure that no arrest warrant can be issued for extra-territorial crimes such as war crimes without Government approval. See Benn, “PM to UK: Enact law prohibiting IDF officers’ arrest in Britain”, Haaretz, 8 February 2007. An example in which the requirement to obtain the Attorney-General’s consent to institute a prosecution can scupper plans even to investigate if there is a violation can be seen in the case of General Ya’alon’s arrest warrant in New Zealand, further at note 126.

95 In addition, where a “blanket provision” is used to establish the necessary extra-territoriality, for 35 of these States (by far the largest group) the provision is expressed to only provide extra-territoriality where the State is obliged to do so by treaties or conventions that it has ratified. Only in the case of eight States is there provision for extra-territoriality where the State is obliged to establish it by general international law. See the footnote to annex 3.

96 Oberste Gerichtshof, 29 May 1958, reprinted in Oberste Gerischtshof, Serie Strafsachen XXIX, No. 32. An edited version in English is available at (1963) 28 International Legal Review 341. A summary of this case can also be found in Reydams, L., Universal Jurisdiction: International and Municipal Legal Perspectives, Oxford, Oxford University Press, 2003, at 98-99.

97 Reydams, ibid, at 98.

98 This provision finds its counterpart in article 65 of the current Penal Code of Austria.

99 (1991) 172 CLR 501.

100 As the Australian legislation in question dealt with war crimes committed during World War II, it related to war crimes under customary international law rather than under the Geneva Conventions.

101 Per Brennan J at para. 28, where he dismisses the notion that there was any customary obligation on Australia pre-dating the obligation to prosecute or extradite in the Geneva Conventions of 1945 on the basis that there was neither a widespread practice nor opinio juris to support the existence of this rule. It should be noted, that this is a narrow finding which does not address whether there is a customary obligation that may have arisen since 1945.

102 Nulyarimma v. Thompson [1999] FCA 1192; 39 ILM (2000), 20, at paragraph 18: “I accept that the prohibition of genocide is a peremptory norm of customary international law, giving rise to a non-derogable obligation by each nation state to the entire international community. This is an obligation independent of the Convention on the Prevention and Punishment of the Crime of Genocide. It existed before the commencement of that Convention in January 1951, probably at least from the time of the United Nations General Assembly resolution in December 1946. I accept, also, that the obligation imposed by customary law on each nation State is to extradite or prosecute any person, found within its territory, who appears to have committed any of the acts cited in the definition of genocide set out in the Convention.”

103 Military Prosecutor v. Niyonteze, Tribunal militaire, Division 2, Lausanne, 30 April 1999 (trial judgement); Tribunal militaire d’appel 1A, Geneva, 26 May 2000 (appeals judgement); Tribunal militaire de cassation, 27 April 2001 (cassation judgement). An English case note of this decision can be found in 96 American Journal of International Law, (2002), pp.231-6.

104 Reydams, supra note 96, at 193-195.

105 Although it would seem to be official Swiss policy that the perpetrators of such crimes are to be extradited to the territorial State whenever possible. Reydams, supra note 96, at 193.

106 Reydams, supra note 96.

107 Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet [1999] 2 All ER 97.

108 See the Letter from the Home Office to the Spanish Ambassador of 2 March 2000, reprinted in Brody, R., and Ratner, M., The Pinochet Papers: The Case of Augusto Pinochet in Spain and Britain, The Hague, Kluwer Law International, 2000, at 471-472.

109 The factual background to the Hissène Habré case is set out in the Decision of the Committee Against Torture under Article 22 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment and Punishment, supra note 76, as well as in the Human Rights Watch website on the Habré case, http://www.hrw.org/french/themes/habre.htm (accessed 5 August 2007). See also Marks, “The Hissène Habré Case: The Law and Politics of Universal Jurisdiction”, in Macedo,. S., Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law”, Philadelphia, University of Pennsylvania Press, 2006, pp. 131-167.

110 Report of the Committee of Eminent African Jurists on the case of Hissène Habré, African Union, July 2006, available at http://hrw.org/justice/habre/, (accessed 5 August 2007).

111 Supra note 76.

112 The facts of this case can be found in Reydams, “A Conundrum Posed by U.S. Anti-Terrorism Policy”, ASIL Insights, Vol, 10, Issue 26, 16 October 2006. Additional facts can be found in Tayler, “Is he a terrorist or a freedom fighter?; Ex-CIA agent some call anti-Castro hero is about to go free but kin of man killed in bombing demands he be retried”, Newsday (New York), 3 January 2007.

113 Weaver and Chardy, “Judge drops charges against Posada”, Miami Herald, 8 May 2007.

114 In respect of the airline bombing, the relevant treaty is the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation. In respect of the hotel bombing, the relevant convention is the International Convention for the Suppression of Terrorist Bombings.

115 President Hugo Chavez of Venezuela referred to the Uniting States as “protecting” Posada Carriles in failing to extradite or prosecute him in his speech to the General Assembly on 16 September 2006 (available at http://www.un.org/webcast/ga/61/gastatement20.shtml, accessed 5 August 2007).

116 See Process Verbale of 5338th meeting of the Security Council, 28 September 2006, UN Doc. No. S/PV. 5538.

117 See McAllister, “Detainee suspected in massacre”, Newsday (New York), 18 December 2006.

118 It is worthwhile noting that that the US legislation dealing with war crimes, the War Crimes Act 1996 and the Expanded War Crimes Act 1997, lacks the extra-territorial jurisdiction necessary to prosecute an alleged offender who does not fall within territorial jurisdiction, active personality jurisdiction or passive personality jurisdiction.

119 See Kampschror, B., “Bosnian Serbs deported by US are indicted for war crimes”, Christian Science Monitor, 29 December 2006. See also the text accompanying notes 248 to 259.

120 “Denmark frees tops Chechen envoy”, BBC News Website, 3 December 2002, available at http://news.bbc.co.uk/2/hi/europe/2539567.stm (accessed 5 August 2007).

121 Government of The Russian Federation v. Akhmed Zakaev, Bow Street Magistrates Court (Senior District Judge Workman), 13 November 2003 (unreported). See also Sengupta, K., and El-Ali, K., “Russian request to extradite Chechen exile is turned down”, Independent, 14 November 2003.

122 R v. Zardad, London Central Criminal Court (Old Bailey) 18 July 2005 (unreported, although a case comment is available at http://www.redress.org/news/Zardad Case Comment 19 July 2005.pdf (accessed 5 August 2007).

123 See Amnesty International’s comments on Italy in its Report on Concerns in Europe, July to December 1998, 1 April 1999, AI Index: EUR 01/001/1999.

124 Swain, J., “UK genocide suspect face Rwanda trial”, The Sunday Times, 12 November 2006.

125 Jurisdiction under the British domestic legislation criminalizing genocide, the International Criminal Court Act 2001, is limited to territorial or active personality. The Genocide Convention does not contain an extradite or prosecute obligation. In addition, there is no bilateral extradition treaty between the United Kingdom and Rwanda such that might include an obligation to extradite. See “Rwanda genocide accused remanded”, BBC News Website, 29 December 2006, available at http://news.bbc.co.uk/2/hi/uk_news/6215865.stm (accessed 5 August 2007).

126 The facts of this case are drawn from a Press Release issued by the Palestinian Centre for Human Rights, dated 30 November 2006, copy on file with author, and a briefing note prepared by Lee Salmon Long, the solicitors for the complainants on Universal Jurisdiction and the New Zealand Legislation, also on file with the author.

127 See Lelyveld, J., “South Africa to try mercenaries in hijacking”, New York Times, 6 January 1982.

128 The Bonn Declaration is a non-binding agreement between the major industrialised countries of the then western world, which provides that in case where a country refuses extradition or prosecution of those who have hijacked an aircraft and do not return such aircraft, the other parties will denounce their respective air services agreements with the defaulting State. See the Bonn Declaration on International Terrorism, (1978) 17 International Legal Materials 1285. See also Chamberlain, “Collective Suspension of Air Services with States which Harbour Hijackers”, 32 International and Comparative Law Quarterly, 1983, pp. 616-632 and Busuttil, “The Bonn Declaration on International Terrorism: A Non-Binding International Agreement on Aircraft Hijacking”, 31 International and Comparative Law Quarterly, 1982, pp. 474-487.

129 For the facts of this case, see Chamberlain, ibid and Busuttil, ibid.

130 Cassese, A., International Criminal Law, Oxford, Oxford University Press, 2003, at 298.

131 South West Africa Cases, dissenting opinion of Judge Tanaka, ICJ Reports (1966) 248 at 291.

132 Higgins, supra note 50, at 24.

133 These include General Assembly Resolution 2712 (XXV), (UN.Doc. No. A/8028 (1970)) which “urges all States to implement the relevant resolutions of the General Assembly and to take measures in accordance with international law to put an end to and prevent war crimes and crimes against humanity and to ensure the punishment of all persons guilty of such crimes, including their extradition to those countries where they have committed such crimes. General Assembly Resolution 2840(XXVI) (UN Doc. No. A/8429 (1971)) “affirms that the refusal by States to co-operate in the arrest, extradition, trial and punishment of persons guilty of war crimes and crimes against humanity is contrary to the purposes and principles of the Charter of the United Nations and to generally recognized norms of international law”. General Assembly Resolution 3074(XXVIII), (UN Doc. No. A/9030 (1973)) states that “war crimes and crimes against humanity, wherever they are committed, shall be subject to investigation and persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and, if found guilty, punishment”.

134 This list only includes those resolutions which expressly refer to an aut dedere aut judicare obligation. Therefore, resolutions such as GA Resolution 60/147 (UN Doc. No. A/RES/60/147, 21 March 2006) which refers to a duty to investigate, submit to prosecution and punish anyone found guilty of gross violations of international human rights or humanitarian law are not included. This resolution may oblige a State to prosecute any alleged offender, but the obligation is not that of aut dedere aut judicare. The list also excludes those General Assembly resolutions which adopt a convention that includes an extradite or prosecute obligation. Whilst the General Assembly may call upon States to sign and ratify such a convention, it is not possible to draw an inference of support for the existence of a customary obligation from such a resolution. Where the General Assembly has adopted such conventions, the resolution number is referred to on the table at Annex I.

135 General Assembly Resolution 60/147, ibid. See also General Assembly Resolution 3074 (XXVIII) (supra note 133). This resolution anticipates the general rule that those accused be tried in the country in which the crimes were committed, in which connection States are to co-operate on questions of extradition. It does not address the question whether the custodial State is obliged to prosecute should it not extradite. See also General Assembly Resolution 2840 (XXVI) (supra note 133), Again, the tenor of this resolution reflects a desire for States to extradite those accused to the country where the crime was committed.

136 See further to the text accompanying notes 166 to 169.

137 Keijzer, supra note 2, at 415.

138 Feller, “The Legal Position of Israel as Requested State which Refuses Extradition”, in Goldstein, Israeli Reports to the XI International Congress of Comparative Law Jerusalem, The Harry Sacher Institute for Legislative Research and Comparative Law, 1982, at 337.

139 Supplementary report by Italy to the Counter-Terrorism Committee pursuant to Security Council resolution 1373 (2001), S/2003/724, at 9.

140 See Addendum 2, supra note 10, where it said “The United States does not believe that there is a general obligation under customary international law to extradite or prosecute individuals for offences not covered by international agreements containing such an obligation. Rather, the United States believes that States only undertake such obligations by joining binding international legal instruments that contain extradite or prosecute provisions and that those obligation only extend to other States that are parties to such instruments.”

141 Shaw, supra note 58, at 103.

142 Although generally referred to in the singular, there were in fact two cases: Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) ICJ Reports (1992) 3; Case concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) ICJ Reports (1992) 114.

143 An obligation to extradite may arise under a Chapter VII Security Council resolution, but the obligation becomes binding as a result of Article 25 of the UN Charter.

144 Supra note 142, at 25 and 137. (The two sets of page references refer to the judgements in the cases involving the United Kingdom and the United States respectively).

145 Per Judge Bedjaoui at 38 and 148; and Judge El-Kosheri at 109 and 214, where he recognises a “deeply rooted principle of general international law according to which no State can be obliged to extradite any persons, particularly its own citizens, in the absence of a treaty explicitly providing for such extradition”.

146 Per Judge Bedjaoui at 38 and 148, where he indicates that the obligation to extradite or prosecute in the Montreal Convention is “in keeping with the traditional option to which the maxim aut dedere aut judicate refers”, suggesting that all that the regime in the Montreal Convention does is to complement general international by, in part, imposing on State an “obligation to take action”, in accordance with their own internal laws; per Judge Weeramantry at 69 and 179; per Judge Ranjeva at 73; and per Judge Abijola at 82 and 187.

147 Per Judge Weeramantry at 69 and 179, where he quotes Bassiouni referring to the jus cogens nature of the principle and per Judge Abijola at 82 and 187, where he suggests that Libya’s right to prosecute the offenders is a right recognised in international law and “even considered by some jurists as jus cogens”.

148 Shearer, supra note 36, at 94-131.

149 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium) ICJ Reports (2002).

150 Ibid, at 75 to 77.

151 Case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Decision on the Merits), 26 February 2007.

152 Ibid at paragraph 442.

153 Prosecutor v. Tihomir Blaskic (Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997), IT-95-14-AR.

154 Ibid, at paragraph 29.

155 The Law of Land Warfare, United States of America Army Field Manual No. 27-10, 1956, paragraph 506(b).

156 Prosecutor v. Anto Furundzija, IT-95-17/-T, 10 December 1998.

157 For more information regarding the traditional views of the principle, see Wise, “The obligation to extradite or prosecute”, 27 Israel Law Review, 1993, pp. 268-287, at 276-278; Bassiouni and Wise, supra 10, at 38-42.

158 Wise, supra 53, at 119.

159 Grotius, De Jure Belli ac Pacis, (translation: The Law of War and Peace, Washington, Carnegie Classics of International Law, 1925), Book II, chapter XXI, §IV, 527-533.

160 Bassiouni, International Extradition, supra note 65, at 38.

161 de Vattel, The Law of Nations, (translation, Fenwick, Classics of International Law, Washington D.C., Carnegie Institution, 1916), Book II, chapter VI, at 136-137.

162 Wise, supra note 157, at 278.

163 Shearer, supra note 36, at 23-27. This view is confirmed by several judges at the ICJ; for example, the Joint Declaration of Judges Evensen, Tarassov, Guillaume and Aguilar and the dissenting judgements of Judge Bedjaoui and Judge El Kosheri in the Lockerbie Case, supra note 142 at 25 and 137, at 38 and 148 and at 109 and 214 respectively. See also Lauterpacht, H., Oppenheim’s International Law: A Treatise. Vol. II: Disputes, War and Neutrality, (7th ed.), London, Longmans, 1952, at 589, note 4, and Brownlie, I., Principles of Public International Law (6th ed.), Oxford, Oxford University Press, 2003, at 313.

164 Article 1(1) of the ILC’s statute provides that the ILC shall have for its object the promotion of the progressive development of international law and its codification. Statute of the International Law Commission, 1947, adopted by the General Assembly in resolution 174 (II) of 21 November 1947, as amended by resolution 485 (V) of 12 December 1950, 985 (X) of 3 December 1955 and 36/39 of 18 November 1981.

165 Supra note 75, at 1. In fact, the topic of “jurisdiction with regard to crimes committed outside national territory” was chosen for the provisional list of topics selected for codification at the first session of the ILC in 1949, but it was not prioritized for immediate consideration. Yearbook of the International Law Commission, 1949, Vol. I, UN Doc. No. A/CN.4/13 and Corr 1-3.

166 Report of the International Law Commission on the work of its forty-eighth session, 6 May – 26 July 1998, UN Doc. No. A/51/10.

167 Ibid, at 28.

168 Although, if the offender escaped prosecution because the State lacked the jurisdiction to try him or her in the absence of an extradition request, the State itself would still be responsible for its internationally wrongful act in failing to establish jurisdiction.

169 Supra note 75, at 2.

170 See Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 10, UN Doc. No. A/59/10, 16 September 2004.

171 See Galicki, Preliminary report, supra note 75.

172 Galickli, Second Report on the obligation to extradite or prosecute (aut dedere aut judicare), 11 June 2007, UN Doc. No. A/CN.4/585.

173 Further comments about the role that the ILC might play in determining the scope of the obligation are made in the conclusion of this paper.

174 See the Comments and information provided by States to the ILC, supra note 10.

175 See for example the dissenting opinion of Judge Tanaka in the North Sea Continental Shelf case, supra note 59.

176 Those writers who do consider that there is a general customary obligation to extradite or prosecute include: Bassiouni, supra, note 65, at 37; Enache-Brown and Fried, supra note 63, at 628-632; Steven, supra note 10, at 442. Those writers who do not consider that there is sufficient State practice or opinio juris to support such an obligation include: Sunga, L.S., The Emerging System of International Criminal Law, Developments in Codification and Implementation, The Hague, Kluwer Law International, 1997, at 254; Gilbert, G., Transnational Fugitive Offenders in International Law: Extradition and Other Mechanisms, The Hague, Martinus Nijhoff Publishers, 1998, at 322; Larsaeus, supra, note 51, at 87.

177 Higgins, supra note 63, at 26.

178 Supra note 59, at 41. In that case, the Court considered that the fact that the application of the equidistance principle would only operate if there was no agreement between the parties as to delimitation demonstrated that it was not of sufficient norm-creating character. Further, the role that “special circumstances” were to play in applying the equidistance principle also tended to deny such a fundamental nature of the principle.

179 Ibid.

180 Details of the number of States parties are shown in Annex I. Other treaties with reasonable participation include the International Convention on Suppression of Financing of Terrorism (158 parties), the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (144 parties), the International Convention Against the Taking of Hostages (161 parties) and the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons Including Diplomatic Agents (165 parties).

181 Supra note 59, at 41.

182 It is worth noting at this juncture what has come to be known as the “Baxter paradox”, that is, “As the number of parties to a treaty increases, it becomes more difficult to demonstrate what is the state of customary international law dehors the treaty. … As the express acceptance of the treaty increases, the number of States not parties whose practice is relevant diminishes. There will be less scope for the development of international law dehors the treaty …”. Baxter, “Treaties and Custom” 129 Receuil des cours, 1970-I, 27 at 64. This is also alluded to by the ICJ in the North Sea Continental Shelf Cases, supra note 59 at 43, where it referred to the practice in delimiting a continental shelf by States who were already parties to the Geneva Convention on the Continental Shelf or were shortly to become parties.

183 For more information on whether there is a customary obligation for particular crimes, see van Elst, supra note 8, Kelly, supra note 10, Steven, supra note 10 and Zaid, supra note 91.

184 See Annex II.

185 ICJ Reports (1996) 226, at 258.

186 The study did find that there was a customary right to establish universal jurisdiction over war crimes (Rule 157). It also concluded that there was an obligation on States to investigate and prosecute war crimes committed by their nationals or armed forces, or on their territory, as well as an obligation to investigate other war crimes over which they have jurisdiction and, if appropriate, to prosecute the suspects (Rule 158). It was suggested that a reading of these two rules together meant that States are under an obligation to exercise the criminal jurisdiction that their national legislation confers upon their courts, whether limited to territorial and personal jurisdiction, or including universal jurisdiction. Henckaerts, J.-M., and Doswald-Beck, L., Customary International Humanitarian Law, Volume 1: Rules, Cambridge, Cambridge University Press, 2005, at 604-611. Were this correct, it would have the extraordinary effect of making mandatory permissive extra-territorial jurisdiction. This is not likely to encourage States to establish universal jurisdiction except as obliged to do so. The Study’s determination that there is a customary right to establish universal jurisdiction has been questioned by the United States Government in its letter to the International Committee of the Red Cross of 3 November 2006, available at http://www.defenselink.mil/home/pdf/Customary_International_Humanitiarian_Law.pdf (accessed 5 August 2007). The Legal Adviser to the US Department of State and the General Counsel to the US Department of Defence question the ICRC’s determination of the customary nature of this right, considering that: the study fails to take into account that much of the national legislation cited in support of the rule used different definitions of “war crimes”; many of the States whose practice is cited to support a right to universal jurisdiction in fact invoke other heads of jurisdiction; the study cites very few examples of actual prosecutions of war crimes not connected to the forum State; and the study conflates actions taken pursuant to treaty obligations with those taken out of a sense of a customary legal obligation.

187 For a discussion of individual States’ practice in prosecuting war criminals, see Amerasinghe, “National Prosecutions for International Crimes: The Canadian Experience”; Blewitt, “National Prosecutions for International Crimes: The Australian Experience”; Garwood-Cutler, “National Prosecutions for International Crimes: The British Experience”; Sadat Wexler, “National Prosecutions for International Crimes: The French Experience”; Zaid, “National Prosecutions for International Crimes: The U.S. War Crimes Act of 1996”; and Wyngaert, “National Prosecutions for International Crimes: War Crimes, Genocide and Crimes Against Humanity – Are States Taking National Prosecutions Seriously?”, all in Bassiouni, International Criminal Law (2nd ed.), Vol. III – Enforcement, New York, Transnational Publishers Inc., 1999. See also the Amnesty International Report on Universal Jurisdiction, supra note 31.

188 Consider for example the actions of the New Zealand Government in the case of Moshe Ya’alon. See the text accompanying note 126.

189 Meron, supra, note 60, at 61. See also Rubin, “Actio Popularis, Jus Cogens and Offenses Erga Omnes?”, 35 New England Law Review, 2001, pp. 265-280, at 269, where he comments that State’s non-observance of the grave breaches regime has not been for lack of atrocities, but because States clearly do not think the obligations bind them.

190 Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled “Human Rights Council”: Report of the Special Rapporteur on torture and other cruel and inhuman or degrading treatment or punishment, Manfred Nowak, UN Doc. No. A/HRC/33, 15 January 2007, at 11.

191 See the text accompanying notes 107 and 108.

192 While the ICJ did consider that Serbia and Montenegro were not required to prosecute those on its territory accused of the Srebrenica massacre as it had occurred outside the State, the Court was limited to looking at the application of the Convention and not at customary international law, so its reasoning is not of assistance in this instance.

193 This would also seem to be the preliminary views of both the members of the ILC and the Sixth Committee in considering the Special Rapporteur’s second report; supra note 172.

194 The inherent difficulty in identifying State practice and opinio juris to support the customary nature of a treaty provision was identified by the ICJ in the North Sea Continental Shelf Cases where it observed that little support for the customary law nature of the norms under consideration may be found in the conduct of parties that are “acting actually or potentially in the application of [a] Convention”. (Supra note 59, at 43.)

195 See for example,Paust, et al, International Criminal Law: Cases and Materials, Durham, N.C., Carolina Academic Press, 2000, at 138.

196 See further to text accompanying notes 261 to 270.

197 Bassiouni and Wise, supra note 10, at 43. See also Bassiouni, “Searching for Peace and Achieving Justice: The Need for Accountability”, 59 Law and Contemporary Problems, 1996, pp. 9-28, at 15, where he says “there is also a significant weakness in the practice of states with respect to the carrying out of the underpinning of these normative proscriptives, namely the duty to prosecute or extradite and for states to cooperate with each other in the investigation, prosecution, and adjudication of those charged with such crimes and the punishment of those who are convicted of such crimes”.

198 Wise, supra note 53, at 123.

199 Ibid.

200 Gilbert, supra note 176 at 322.

201 Jus cogens refers to the hierarchical status of particular norms considered by the international community as a whole to be non-derogable (Article 53 of the Vienna Convention on the Law of Treaties), whilst obligations erga omnes are those owed to the international community as a whole, the breach of which allows third party States legal standing to take action to enforce the obligation. Jus cogens norms and erga omnes obligations are generally co-existent, although not all obligations erga omnes are jus cogens. In its commentary to the Draft Articles on State Responsibility, the ILC identified as jus cogens, amongst others, norms such as the basic rules of international humanitarian law applicable in armed conflict, torture and genocide. (Crawford, International Law Commission’s Draft Articles on State Responsibility: Introduction, Text and Commentaries, Cambridge, Cambridge University Press, 2002, at 256-247). The characterization of the prohibition against genocide as jus cogens was confirmed by the ICJ in the Armed Activities on the Territory of the Congo (New Application 2002) (Democratic Republic of the Congo v. Rwanda, 3 February 2006, and subsequently in the decision on the merits in Case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 26 February 2007, supra note 32.

202 Bassiouni, supra note 197, at 17.

203 Bassiouni, supra note 55, at 65. Bantekas and Nash take a slightly different view as to the reason for the erga omnes nature of the aut dedere aut judicare principle, seeing it as arising from the status of the offences to which it is applied, as universal crimes. (Bantekas, I., and Nash, S., International Criminal Law (2nd ed.), London, Cavendish Publishing Limited, 2003, at 361.)

204 Goodwin-Gill, “Crime in International Law: Obligations Erga Omnes and the Duty to Prosecute”, in Goodwin-Gill, and Talmon (eds), The Reality of International Law; Essays in Honour of Ian Brownlie, Oxford, Clarendon Press, 1999,p. 198-223, at 220. Steven agrees with this view: “[T]he aut dedere aut judicare principle, at least with respect to genocide, must be a jus cogens norm because of the very nature of the universal prohibition of genocide. As a jus cogens norm, the prohibition of genocide gives rise to an obligation erga omnes – an obligation owed to the international community as a whole. This means that not only do all states have an obligation to refrain from committing genocide, they also have a legal interest, vis-à-vis other states, in the prohibition itself. And an interest in a prohibition means that states have the right and duty to both prevent and punish the violators of the prohibition.” (Steven, supra note 10, at 450).

205 Certainly the discussion of the inter-relationship of peremptory norms and obligations erga omnes before the ICJ and the ILC has focussed on co-existent obligations owed by one State to all others, where a violation of the obligation erga omnes (which may or may not be a peremptory norm) gives rise to rights of those third parties owed the obligation, rather than whether the violation of a jus cogens norm gives rise to obligations on those third parties. See for example the ICJ in Barcelona Traction (Barcelona Traction, Light and Power Company Case (Belgium v. Spain) ICJ Reports (1970) 3, at para 33) and article 48 of the ILC’s Draft Articles on State Responsibility (supra note 201). But it should be noted that the arguments of Goodwin-Gill and Bassiouni pre-date the completion of the ILC’s work on the Draft Articles of State Responsibility, which did much to clarify the inter-relationship of jus cogens norms and obligations erga omnes. This may explain why their arguments go beyond the contemporary understanding of the inter-relationship of peremptory norms and obligations erga omnes.

206 Cassese, supra note 130, at 208.

207 Joyner, “Arresting Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to Accountability”, 59 Law and Contemporary Problems, 1996, pp. 153-172, at 169.

208 Higgins, supra note 50, at 57.

209 She draws a distinction between the law of diplomatic protection (which was at issue in the Barcelona Traction case), which relates to a State’s ability to bring a claim against another State, and the universality principle, which is concerned with the application of domestic criminal jurisdiction.

210 Joyner, supra note 207, at 170.

211 Supra note 156.

212 In addition, were the dictum of the Court in the Barcelona Traction Case to apply to allow jurisdiction over individual criminal acts, it is also expressed in a permissive, rather than a mandatory, form. They are corresponding rights of protection, rather than obligations.

213 Larsaeus, supra note 51, at 91.

214 Bassiouni and Wise, supra note 10, at 25 and 51-57.

215 Ibid, at 52.

216 Ibid, at 55.

217 Supra note 10, at 447-448.

218 Shaw, supra note 58, at 118.

219 Supra note 201.

220 See the separate opinion of Judge Lauterpacht in Case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v. Yugoslavia (Serbia and Montenegro) (Indication of Provisional Measures) ICJ Reports (1993) 325, at paragraph 100, where he indicated that the Security Council could not make a resolution that States were bound to act upon if that resolution involved the violation of a jus cogens norm.

221 UN Doc. No. S/RES/748 (1992).

222 This case is discussed further in the text accompanying notes 142 to 148.

223 UN Doc. No. S/RES/1054 (1996).

224 Un Doc. No. S/RES/1267 (1999).

225 Supra note 149, at paragraph 44.

226 Malanczuk, supra note 277, at 48.

227 Ibid.

228 See generally the text accompanying notes 75 to 95.

229 See generally note 163.

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