Aut Dedere, aut Judicare: The Extradite or Prosecute Clause in International Law
|Introduction
Texte intégral
- 1 European Commission Working Document, The relationship between safeguarding internal security and (...)
- 2 Keijzer, “Aut dedere, aut judicare”, in Ulrich, H. and D’Oliveira, J.(eds.), Netherlands Reports t (...)
- 3 For a full discussion of whether this obligation exists at customary international law, see furthe (...)
- 4 See Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 10, UN Doc.
No. (...) - 5 The topic was considered by the ILC to have achieved sufficient maturity for its codification, wit (...)
1Concerns about terrorism, human rights violations and transnational crime have come to predominate in today’s increasingly globalised international community. Yet parallel human rights concerns prevent a State from exposing those alleged to have been involved in such crimes to torture or other gross violations of human rights, both in the custodial State or elsewhere. The potentially contradicting desires to avoid impunity for offenders and to ensure the individual’s entitlement to protection against refoulement has given a more central role to the aut dedere aut judicare obligation.1 This obligation requires a State either to extradite an accused who is present on its territory or to prosecute him or her. The purpose of this obligation is to ensure that those who are accused of certain international crimes are brought to justice in accordance with internationally accepted standards of criminal procedure by providing for effective prosecution by a court with competent jurisdiction. The obligation appears in various forms in more than 30 multilateral treaties proscribing criminal conduct often seen as a “common threat to mankind”,2 in numerous bilateral and multilateral extradition treaties and, according to some writers, it may exist in customary international law.3 Given its essential position in the emerging legal regime against impunity, and its inclusion in States’ armoury of international criminal law enforcement mechanisms, it is not surprising that the International Law Commission (“ILC”) has found the issue ripe for consideration. The obligation to extradite or prosecute was included in the long-term of programme of the ILC at its fifty-sixth session in 2004,4 and Zdzislaw Galicki was appointed Special Rapporteur for this topic.5 Yet while the obligation in one form or another has become almost compulsory in any treaty criminalizing conduct, there has been less analysis of the topic than may be expected: the aut dedere aut judicare obligation has been the subject of only one monograph published in 1995 and of only a small number of scholarly articles.
- 6 At the outset, the mandatory nature of the obligation should not be confused with a permissive for (...)
- 7 Further discussion of what a State must do in “prosecuting” or “extraditing” an offender is found (...)
2The aut dedere aut judicare, or “extradite or prosecute”obligation is shorthand for a range of clauses that are increasingly common in conventions criminalizing various forms of conduct. It is said to require a State to either extradite or prosecute an accused who is found on its territory. It is mandatory in nature, requiring a State to take one or other step.6 The accused may be a citizen of the custodial State, or may be visiting it temporarily. The custodial State may also be the State in which the offence occurred (the territorial State), or may have had no connection with the offence, other than the fact of the accused’s temporary presence. What the obligation requires is for the custodial State to elect whether to extradite the accused to another State willing to prosecute, or to submit the matter to its own prosecution authorities. But one or the other (extradition or prosecution) must be initiated.7
- 8 van Elst, “Implementing Universal Jurisdiction Over Grave Breaches of the Geneva Conventions”, 13 (...)
3It is at its fullest extension that the principle is most controversial, where the only connection between the custodial State and the offence is the accused’s temporary presence. Here a State would only be able to prosecute the accused if it has jurisdiction under its municipal law for extraterritorial acts. It is for this reason that it is often said that the aut dedere obligation is twofold: first, there is an obligation to establish the appropriate jurisdiction that would allow for any potential prosecution; and secondly, to elect to either extradite or prosecute an accused in a particular situation.8
4There are a number of questions concerning the aut dedere aut judicare obligation which need to be answered. First, what are the sources of the obligation? Clearly it is found within treaty law, but does it also exist as a norm of customary international law? If so, does the obligation apply in respect of all international crimes, or does it apply as a principle of customary international law in respect of only some crimes? And can the peremptory status of a related substantive norm mean that an obligation to extradite or prosecute arises?
5In order to assess the status of the extradite or prosecute clause at international law, there is no substitute for comprehensive empirical research of State practice. Although there has been some useful research, in the view of this writer, there was insufficient up-to-date research to support a dispassionate analysis of the contemporary status of the clause. Although it is hoped that the ILC’s work will ultimately provide much of the needed analysis, the annexes to this paper are a response to this lacuna and are the foundation of this paper. Annex I sets out the terms of the clause as it appears in all multilateral and regional conventions concluded as at 1 August 2007. Annex II lists all Security Council direct references to an obligation to extradite or prosecute as at the same date. Annex III surveys States’ domestic legislation permitting prosecution of a non-national for an international crime committed extraterritorially. Annex IV lists all General Assembly resolutions that refer to an obligation on States to extradite or prosecute.
6Part one of this paper then seeks to answers the outstanding questions, examining in detail the various sources of the obligation, based in part upon the results of the research summarised in the annexes to the paper. Part two considers the scope and operation of the obligation at international law, looking at what is meant by “extradite” and “prosecute”, considering the relationship between the two and examining any implications that the clause has. Finally, suggestions are made as to how the ILC may effectively clarify those issues that remain unclear.
Notes
1 European Commission Working Document, The relationship between safeguarding internal security and complying with international protection obligations and instruments, Brussels, 5 December 2001, COM(2001) 743, at 13.
2 Keijzer, “Aut dedere, aut judicare”, in Ulrich, H. and D’Oliveira, J.(eds.), Netherlands Reports to the XIth International Congress of Comparative Law, Caracas 1982, Deventer, Kluwer Law and Taxation Publishers, 1982, pp.411-417, at 412.
3 For a full discussion of whether this obligation exists at customary international law, see further to text accompanying notes 51to 225.
4 See Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 10, UN Doc.
No. A/59/10, 16 September 2004.
5 The topic was considered by the ILC to have achieved sufficient maturity for its codification, with the possibility of including some elements of progressive development. See further to the text accompanying notes 164 to 173.
6 At the outset, the mandatory nature of the obligation should not be confused with a permissive form of jurisdiction, which allows a State to take certain action but does not oblige it to do so. Whilst it may be that the obligation operates to turn what had been a permissive form of jurisdiction into a mandatory form, care should be taken to maintain the distinction. Contrast Blakesly, “Extraterritorial Jurisdiction”, in Bassiouni, M.C.(ed.), International Criminal Law (2nd ed.), Vol. II – Procedural and Enforcement Mechanisms, New York, Transnational Publishers Inc., 1989, pp. 33-105, at 70: “International law provides that there are certain offences for which any nation obtaining personal jurisdiction over an accused may prosecute. Therefore, any nation that gets hold of an accused has an obligation to extradite or prosecute” (emphasis added).
7 Further discussion of what a State must do in “prosecuting” or “extraditing” an offender is found in Part II of this paper.
8 van Elst, “Implementing Universal Jurisdiction Over Grave Breaches of the Geneva Conventions”, 13 Leiden Journal of International Law, 2000, pp. 815-854, at 820-825. A number of multilateral treaties in fact make this two-fold obligation explicit, requiring States to establish the necessary jurisdiction and then subsequently to either extradite or prosecute an alleged offender who is present in its territory. Other treaties do not expressly require the establishment of the necessary jurisdiction, although it may well be implicit. However, where a State has not established the jurisdiction required in a particular fact situation, that State will be unable to prosecute the offender and so must find a State who is willing to request extradition of the alleged offender.
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