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

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Claire Mitchell

2. The scope and operation of the obligation

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1Although this paper has focused on the source of the obligation to extradite or prosecute, it is also necessary to examine the scope and operation of the obligation. This section will consider how States are required to implement the obligation to extradite or prosecute. It will examine the “prosecute” and the “extradite” limbs separately, before turning to what is meant by an obligation to “prosecute or extradite”; finally it will focus on the other implications of the obligation.

2.1 “Prosecute”

  • 230 The exception to this is the Convention on Psychotropic Substances, which was completed only two m (...)
  • 231 Bin Cheng recounts that this issue was not resolved until the very last minute, having almost caus (...)

2Although until now we have spoken of an obligation to “prosecute”, it must be emphasised that the obligation generally is not to prosecute, as such, but rather to submit the case to a State’s competent authorities for the purpose of prosecution. This nuance appeared first in the Hague Convention and all multilateral conventions (and most regional conventions) subsequent to that treaty retain the same nuance.230 The distinction was inserted into the Hague Convention as it was considered that an absolute obligation to prosecute a hijacker may be repugnant to those States that wanted to preserve the traditional right or discretion of States, there being concern that there may be exceptional instances where humanitarian reasons or lack of evidence would not justify bringing a prosecution.231 Thus, although spoken of as an obligation to prosecute, the duty is in reality to submit the case to the relevant prosecutorial authorities, which are then to consider whether or not to prosecute.

  • 232 White, supra note 19, at 42.
  • 233 Kolb, “The Exercise of Criminal Jurisdiction over International Terrorists”, in Bianchi, A. (ed), (...)
  • 234 Ibid.
  • 235 Ibid.

3Many of the conventions that retain the prosecutorial authority’s discretion then qualify it either by requiring that the authorities take their decision in the same manner as in the case of any ordinary offence of a serious (or grave) nature under the law of that State, or that the proceedings be in accordance with the laws of the prosecuting State. The former set of words, originally included in the Hague Convention, were inserted because some of the South American States wanted to retain their ability to rely on different factors in deciding whether to prosecute for a “political” offence, rather than an “ordinary” offence.232 This clause is said to amount to a type of “national treatment” standard, as opposed to an international minimum standard.233 Kolb considers whether this clause is a major draw-back in the system, hampering the effective application of the treaties in ensuring that prosecution does take place.234 Such a clause might allow a State to decide not to prosecute for political rather than evidential reasons, so long as it can be justified within the terms of the clause. But he ultimately concludes that the renvoi to national law should be construed as a renvoi to the ordinary and reasonable rules governing prosecution, thus installing a good faith element in the prosecuting authority’s discretion.235

  • 236 For more discussion about amnesties and pardons see for example Meintjes, G., and Méndez, J.E., “R (...)
  • 237 Ibid.
  • 238 For a discussion of the Lockerbie Case in its interaction with the extradite or prosecute clause, (...)
  • 239 Kolb, supra, note 233, at 264-265.

4The question of the extent to which amnesties or pardons are compatible with the need to avoid impunity for gross human rights violations is beyond the scope of this paper.236 But, with the aut dedere aut judicare principle reserving to domestic law the conduct of a prosecution, or indeed the decision of the authorities to in fact prosecute, the issue of the interplay of domestic amnesties or pardons with the extradite or prosecute obligation should be addressed. Does an amnesty or pardon excuse or restrict a State from prosecuting? The wording of the obligation in the various conventions does not address this issue and the renvoi to domestic law would seem to leave it within the scope and discretion of the State’s municipal law. But, as many writers have noted, amnesties and pardons may, under certain circumstances, be contrary to the need to avoid impunity, which is itself central to the principle of the extradite or prosecute clause.237 Tied in with this is the question of a prosecution carried out by a State which itself was linked in some way to the commission of the international crime. This was the concern of the United States and the United Kingdom when Libya offered to prosecute two nationals (both of whom were Libyan intelligence agents) under the relevant provisions of the Montreal Convention, who were accused of the Lockerbie bombing.238 Apart from the Lockerbie Case, the merits of which were not finally decided by the ICJ as the parties withdrew the case, there has been little practice on whether a half-hearted prosecution, or the application of an amnesty or a pardon, is sufficient to fulfil a State’s obligation under the aut dedere aut judicare principle if it does not extradite. Kolb has suggested that the application of the good faith principle be used to determine whether or not a State fulfils its obligation or not.239 The requirement that States act in good faith in applying their domestic law, i.e. in a manner that does not frustrate the object and purpose of the Convention, may result in an appropriate balance being struck between the avoidance of impunity and the need for a State to grant amnesties and pardons as part of a reconciliation process.

2.2 “Extradite”

  • 240 Supra note 166.

5Having examined the question of prosecution, we now turn to examine the other half of the obligation. None of the treaties define the word “extradite”. And until recently, the only alternative offered to prosecution was extradition. As at the time of writing, the most recent multilateral convention that includes an aut dedere aut judicare clause is the International Convention for the Protection of All Persons from Enforced Disappearance, which is dated 20 December 2006. This is the first treaty that expresses the obligation as one to prosecute unless the State extradites the alleged offender, or surrenders him to her to another State in accordance with its international obligations, or surrenders him or her to an international criminal tribunal whose jurisdiction it has recognised. The latter reference is clearly to the International Criminal Court (“ICC”), one of the International Criminal Tribunals or to other similar tribunals. None of the other multilateral or regional conventions expressly allows alternatives other than extradition. The ILC, in article 9 of the Draft Code of Crimes against the Peace and Security of Mankind, suggested the “third alternative”, making the obligation to extradite or prosecute “without prejudice to the jurisdiction of an international criminal court”.240 Given that this draft Code was not accepted by the international community, is there an acceptable “third alternative” that would allow a State to hand an alleged offender over to an international tribunal rather than prosecute itself, or could this be seen as “extradition”?

  • 241 Article 9 of the Statute of the International Criminal Tribunal for the Former Yugoslavia, 25 May (...)
  • 242 A similar matter arose in the Lockerbie case, where Libya had conflicting obligations – to prosecu (...)
  • 243 Lockerbie, supra note 142.

6With the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, the issue is easy. Although these two tribunals have concurrent jurisdiction with national courts, the tribunals retain primacy.241 Therefore, the relevant tribunal has priority over States for any prosecution. This could mean a conflict between competing treaty obligations: a State which has custody of an alleged offender is required to prosecute him or her pursuant to an aut dedere aut judicare obligation; and at the same time is obliged to hand him over the tribunal.242 Unlike the ICC, the two international tribunals were created by the Security Council acting under Chapter VII of the UN Charter. Thus the conflicting treaty obligations are to be resolved in favour of the criminal tribunal through the operation of article 103 of the Charter.243

  • 244 Article 17, Rome Statute of the International Criminal Court, UN Doc. No. A/CONF.183/9, 17 July 19 (...)
  • 245 See for example the commentary to article 146: Pictet, J.S., Commentary: IV Geneva Convention Rela (...)

7The Rome Statute establishing the International Criminal Court enshrines the notion of complementarity of jurisdiction between the international court and a domestic court. This means that the ICC is not able to consider a case where it is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.244 When an alleged offender who is to be prosecuted by the ICC is located, the Court does not deliver an extradition request, but rather a request for surrender under article 89, with which a State party to the Rome Statute is required to comply. Should a situation arise where a State has received a request for surrender to the ICC and at the same time is obliged by an aut dedere aut judicare obligation to prosecute as it is not extraditing, the competing treaty obligations are of equal weight, no one obligation has greater priority. And what if the State Party itself referred the matter to the ICC under article 14, having decided that it did not want to prosecute itself? We may well ask whether there really is a conflict between the treaty obligations. The purpose of the extradite or prosecute clause is to ensure prosecution of alleged offenders, so that they do not escape with impunity. A prosecution by the ICC or other international criminal tribunal would be consistent with this object. A teleological interpretation of the extradite or prosecute clause could resolve the apparent conflict. This is certainly consistent with the views of those responsible for the drafting of the Commentaries to the Geneva Conventions, who consider that, although there is no reference to the handing over of an alleged offender to an international criminal tribunal, there is nothing in the paragraph to exclude it.245

  • 246 Final Record, Vol. II-B, at 116-117.
  • 247 See generally Dugard and van den Wyngaert, “Reconciling Extradition with Human Rights”, 92 AJIL 19 (...)

8Exactly what constitutes extradition is not elaborated. Common usage of the word refers to the surrender of a person to another State in order that this State prosecute the accused. This is usually done in accordance with a request made pursuant to a bilateral or multilateral treaty between the two States, regulating the manner in which the surrender is to be carried out. The process usually involves judicial review of the request for extradition and the conditions in which such a surrender is to take place, in order to ensure the human rights of the accused are respected. It is interesting in this respect to compare the wording of the Geneva Conventions with all other treaties. Whilst all the other treaties speak of “extradition”, the Geneva Conventions speak of handing “such persons over for trial to another High Contracting party concerned, provided such other High Contracting party has made out a prima facie case”. Although the provisions of the Geneva Conventions do not use the word “extradition”, the requirement that the requesting State to make out a prima facie case suggests some form of judicial involvement. Yet the Final Record of the Geneva Conventions indicates that “extradition” was deliberately avoided, as it was considered to be “less practicable”.246 It may well be the drafters of the Geneva Conventions considered that a State could provide evidence in its request for surrender that might be sufficient to constitute a “prima facie case” within the terms of the Convention. But, as human rights have taken a much more central role in the whole process of rendition, surrender or extradition in recent years,247 it is unlikely that executive review only of a case to see if it established a prima facie case would be considered acceptable.

  • 248 Fédération Nationale des Déportés et Internés Résistants et Patriotes et al v. Barbie, 78 Internat (...)
  • 249 Amerasinghe supra note 187, at 27. This was in part because of the restrictive interpretation give (...)
  • 250 Kampschror, supra note 119. See also “Bosnian Serbs “lied about past”, BBC Online, 16 December 200 (...)
  • 251 It should be noted that the US legislation implementing the Geneva Conventions only allows for jur (...)
  • 252 See the comments on the application of universal jurisdiction for torture by the US in the Amnesty (...)
  • 253 Statement made in briefing to European Delegation during the visit of the TDIP Temporary Committee (...)
  • 254 Shearer, supra note 36 , at 78.
  • 255 For a discussion on how extraordinary renditions, being the transfer of an individual to a third S (...)

9Can an extradition within the terms of the aut dedere aut judicare clause be something less structured? Where a State deports someone to his or her country of origin, or informally surrenders them to another State, does it fulfil its obligation as custodial State under the aut dedere aut judicare clause? Although there is no treaty obliging a custodial State to extradite or prosecute one accused of crimes against humanity, Klaus Barbie was expelled from Bolivia to France to face prosecution for crimes against humanity in the 1980s. He argued before the French courts that his expulsion amounted to a disguised extradition and that France was in violation of international law in then assuming jurisdiction. The Cours de Cassation rejected this argument, effectively considering that the power to deport or expel is to be treated as coextensive with extradition.248 Certainly there has been a growing number of States that have been willing to use deportation or informal surrender rather than a formal extradition process to remove unwanted persons accused of international crimes from their territory. Canada has used denaturalisation and deportation of suspected war criminals for violations of the Citizenship Act and Immigration Act, rather than prosecuting them.249 The United States is still using this process with suspected war criminals. The United States recently deported over 50 Bosnians for failing to disclose their involvement in militia groups as part of its Operation No Safe Haven.250 Some of those deported were accused of involvement in war crimes such as the Srebrenica massacre. Although a number of them have since been charged with war crimes or crimes against humanity in Bosnia, to the extent to which they are alleged to have committed grave breaches of the Geneva Conventions, the United States is obliged to either prosecute them itself or “hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case”.251 Similarly, in cases involving allegations of torture, the United States would seem to prefer to deport rather than prosecute alleged offenders found on their territory.252 The Legal Adviser to the US State Department, John Bellinger, commented recently that deportation is “what all countries do when they find someone in their country and they don’t want to prosecute them inside their countries”.253 Although often described as “disguised extradition”,254 such deportations or renditions would not be sufficient to relieve a State of its obligation to extradite or prosecute as they may well fail to ensure that an alleged offender is tried for his or her crime.255

  • 256 Dugard and van den Wyngaert, supra note 247, at 188.
  • 257 Bozano v. France, 9 EHRR 297 (1986).
  • 258 Although not directly related to the extradite or prosecute clause, the Parliamentary Assembly of (...)

10Another reason that deportation or informal rendition is not sufficient to relieve a State of its obligation under an aut dedere aut judicare clause is that formal extradition provides important human rights protections that may be absent in other forms of rendition. The requirement of double criminality found in so many extradition treaties helps, among other things, to ensure respect for nullem crimen sine lege; duplication of punishment is avoided through the application of a non bis in idem clause and the principle of speciality means that an accused can only be tried for crimes for which he or she was extradited.256 Certainly the European Court of Human Rights has determined that a deportation carried out as a disguised extradition in order to circumvent the technicalities of extradition is contrary to article 5 of the European Convention on Human Rights.257 The relationship between extradition and human rights is apparent in the various treaties containing an aut dedere aut judicare clause, the more recent of which contain a number of provisions designed to ensure that the human rights of the accused are protected once such a person is taken into custody prior to prosecution or extradition. Any alternative form of rendition that excludes the effect of these provisions and the protections afforded by judicial involvement in an extradition request would not be consistent with the safeguards inherent in the alternative of “extradition” in an aut dedere aut judicare clause.258

  • 259 Report of the intersessional open-ended working group to elaborate a draft legally binding normati (...)

11It is interesting to note that the 2006 International Convention for the Protection of All Persons from Enforced Disappearance allows a State to choose to surrender the alleged offender to another State in accordance with its international obligations, as an alternative to extradition or transfer to an international criminal tribunal whose jurisdiction it has recognised. Whilst this might be seen to condone rendition by means other than extradition, the inclusion of the words “in accordance with its international obligations” would limit the rendition to situations when a State is obliged to do so. The reports of the Intersessional Working Group of the Commission of Human Rights that considered the draft convention indicates that the addition of an alternative of transferral to a State in accordance with international obligations was to better take account of recent developments.259 It is surmised that the “recent developments” refer to the obligation of Libya to surrender the Lockerbie suspects to the United States and the United Kingdom in accordance with the Security Council decision (1992).

2.3 “Prosecute or extradite”

12Now that we have examined each of the limbs, it is necessary to consider what is meant by an obligation to “prosecute or extradite”.

  • 260 Sunga, supra note 176, at 254. Being permissive, universal jurisdiction does not require any State (...)

13The first point is probably trite, but it is worth reiterating it: unlike the permissive nature of universal jurisdiction,260 the extradite or prosecute obligation is mandatory. States are required to either extradite or to “prosecute”, although they can choose between the two options. A failure to either extradite or prosecute will result in an internationally wrongful act by the State, for which it will be responsible to the other State parties to the treaty.

14But when does this obligation arise? Once a State is aware that an alleged offender is present on its territory? Or only once a State receives a request for extradition of an alleged offender? And is there any priority to be given to either dedere or judicare? Is the obligation co-existent or disjunctive?

  • 261 Kolb, supra note 233, at 257.
  • 262 Gilbert, supra note 176, at 322-323.
  • 263 Ibid.
  • 264 Kolb, supra note 233, at 257.
  • 265 Compare van Elst, who seems to consider that the Geneva Conventions can be distinguished from othe (...)

15The answer to these questions will depend upon the wording of the obligation. The Hague formula, which is the most consistent formula used, would seem to give a true alternative on first consideration; either the State extradites or it prosecutes.261 This interpretation would give the custodial State the freedom to choose which option it prefers, leaving the State more discretion on how to treat politically motivated fugitives.262 But a closer reading of the Hague formula suggests that there is more to the obligation than simply a choice. The idea that, should a State not extradite, it is obliged “without exception whatsoever” to submit the case to its competent authorities, means that there is a subsidiary obligation to prosecute. The case must be submitted to prosecution, unless there is an extradition. Gilbert has suggested that this disjunctive approach gives primacy to extradition with a subsidiary duty to prosecute.263 If the primary reaction to the choice between prosecute or extradite is to extradite, this should mean that the prosecution could occur in the more appropriate forum, particularly where the crime occurred (the forum conveniens).264 But having a primary reaction to extradite does not mean that there is an obligation to extradite. States must be able to refuse to refoule or return an individual to a State where he or she may be subject to torture, or his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion. Perhaps the priority in favour of extradition is best explained as a primary response (but not a duty) to extradite to the more appropriate forum, but with a residual obligation to prosecute should there be no request for extradition or should extradition be considered inappropriate in the circumstances. This maintains the emphasis on the prosecution of the alleged offender, with the role of extradition as process to facilitate prosecution in the most appropriate forum. The wording of the Geneva Conventions, which make the obligation of prosecution by the custodial State the priority, allowing only an alternative of extradition in accordance with its own legislation, operates in a similar manner to the Hague formula, despite the clear difference in the wording.265

  • 266 The travaux préparatoires of the UN Convention against Transnational Organised Crime suggest that (...)

16Other variations on the extradite or prosecute clause accord the priority differently. For example, the obligations to prosecute in the recent UN Convention against Corruption, the UN Convention against Transnational Organised Crime, and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography only arise if the alleged offender is not extradited on the basis that he or she is a national of the custodial State, and in the case of the first two conventions, where asked to do so by the requesting State. This would mean that a refusal to extradite on other grounds, such as human rights concerns, would not give rise to the subsidiary obligation to prosecute. This shift of emphasis away from prosecution in all circumstances is interesting. It is noteworthy that the three multilateral conventions that do so all relate to transnational crimes rather than international crimes per se.266

  • 267 For example, the ILC, in its commentary to article 6 of the Draft Articles on the Prevention and P (...)
  • 268 Plachta, supra note 238, at 335.
  • 269 Amongst the multilateral conventions listed in Annex I, the aut dedere aut judicare clause either (...)
  • 270 This only arises where the failure to extradite is on the basis that the alleged offender is a nat (...)

17Where the obligation is to prosecute unless the State extradites, such as is found in the Hague formula, it is clear that the prosecutorial duty is not dependent upon the existence of an extradition request. Thus, a custodial State is obliged to prosecute an alleged offender “without exception whatsoever”, even if no extradition request is ever received. (Of course, if a State does not wish to prosecute the alleged offender itself, it is not precluded from actively seeking another State who is willing to request extradition.) The fact that the obligation to prosecute in the Hague formula is not conditional upon a prior request to extradite is generally supported by the drafters of the various instruments.267 This view is consistent with the belief that there are certain crimes which are so serious or offensive that there should be no impunity. It has been suggested that, “absent treaty stipulation to the contrary”, the aut dedere aut judicare principle should not be understood to mean that the obligation to prosecute is conditional upon there being a prior extradition request that is prohibited on legal grounds.268 Perhaps this is correct; where a treaty does not specify that the obligation to prosecute only arises on a decision not to extradite, it may well be intended that the prosecutorial obligation remains residual.269 But there are still a number of treaties where an ordinary reading of the text indicates that the obligation to prosecute is not residual – it arises only after a refusal to extradite. For example, article 44(11) of the UN Convention against Corruption obliges the custodial State to submit the case to its competent authorities for the purpose of prosecution only where it does not extradite and only after a demand to do so by the requesting State.270 As mentioned above, the dividing line between those treaties that consider the prosecutorial obligation to be residual and those that see it arising only after a prior refusal to extradite seems to fall between those treaties that deal with “international crimes” that “offend mankind” and those that deal with transnational crimes such as corruption, drug trafficking or organised crime.

18Regional conventions vary dramatically on the question of when the obligation to prosecute arises. Although the distinction between treaties concerned with international crimes and those that deal with transnational crime can be carried over, there are more exceptions. The European, Inter-American and OAU conventions on terrorism contain a residual obligation to extradite, whilst conventions on corruption, cyber-crime and arms trafficking only oblige a prosecution where there is a prior refusal to extradite. However, the prosecutorial obligation in the Organization of the Islamic Conference, the Arab League and SAARC’s terrorism conventions is conditional on a prior refusal to extradite; likewise the Inter-American conventions on forced disappearance and torture.

2.4 Other implications of the obligation

Jurisdiction

  • 271 See the text accompanying notes 75 to 95.
  • 272 During the drafting of the Hague Convention, the equivalent clause requiring the establishment of (...)

19Whether the obligation to prosecute an alleged offender present on its territory is a residual one or is conditional on a prior refusal to extradite, it follows that a State must have established jurisdiction to prosecute, whether it is expressly required by the relevant treaty or not.271 Since the Hague treaty, many of the treaties have similar jurisdictional clauses: there is a requirement that States establish jurisdiction in specified cases and a right, but not an obligation, to establish it in other instances. The particular instances vary according to the subject matter. By way of example, the International Convention for the Suppression of Acts of Nuclear Terrorism makes compulsory in article 9(1) that territorial, flag State and active nationality jurisdiction, whilst article 9(2) permits States to establish passive nationality jurisdiction or jurisdiction where the offence is directed at diplomatic premises abroad, the offence is committed to compel the State to do or abstain from doing an act, or it was committed on board an aircraft operated by the Government of that State. The obligation to establish jurisdiction when an alleged offender is present in a State’s territory and it does not extradite him or her appears in its own sub-article (article 9(4)). It is not clear why this obligation is not included within article 9(1), which lists the obligatory jurisdiction.272

  • 273 See, for example, the ILC’s commentary to its draft Code of Crimes against the Peace and Security (...)
  • 274 Arrest Warrant Case, supra note 149, para 42 of their joint separate opinion.

20As the jurisdiction required to be established may relate to an offence that does not occur on the State’s territory (territorial jurisdiction), does not involve a national of the State (active personality or nationality jurisdiction), does not affect the State itself (protective jurisdiction), nor any of its nationals (passive personality), it is often said that a State is required to establish universal jurisdiction, or at least a conventional form of universal jurisdiction over the offence for the purpose of the extradite or prosecute principle.273 But its description as universal jurisdiction has concerned a few writers, who consider that it is not truly universal. For example, Judges Higgins, Kooijmans and Buergenthal, in their joint separate opinion in the Arrest Warrant Case, said: “By the loose use of language the [aut dedere aut judicare obligation in treaties] has come to be referred to as ‘universal jurisdiction’, though this is really an obligatory territorial jurisdiction over persons, albeit in relation to acts committed elsewhere”.274

  • 275 Bin Cheng, supra note 22 at 40.

21Similarly, Bin Cheng considers that the jurisdiction required to be established is one which States already enjoy under general international law as part of their territorial jurisdiction.275

  • 276 Higgins, supra note 50, at 63-64.

22In relation to the Hague formula, Higgins states:276

In so far as this provides for the jurisdiction of all parties to the Convention, it is perhaps understandable that it is spoken of as universal jurisdiction. But it is still not really universal jurisdiction stricto sensu, because in any given case only a small number of contracting states would be able to exercise jurisdiction on the basis of Articles 2, 4 and 7. All that is “universal” is the requirement that all states parties do whatever is necessary to be able to exercise jurisdiction should the relatively limited bases of jurisdiction arise in the circumstances. Contrary to the views sometimes expressed elsewhere, this is not treaty-based universal jurisdiction (and so the question of such a treaty basis “passing into” general international law does not arise).

  • 277 Malanczuk, P., Akehurst’s Modern Introduction to International Law (7th ed.), London, Routledge, 1 (...)
  • 278 Shaw, supra note 58, at 597-598. The Secretary-General of the United Nations has explained the rel (...)
  • 279 Guillaume, “Terrorisme et droit international”, Receuil des Cours, vol. 215, 1989, pp. 287-416, at (...)

23Other writers have asked how, when such treaties are only binding as between the parties, they can be said to create true universal jurisdiction in relation to non-parties?277 For this reason, some writers have referred to this as a “quasi-universal jurisdiction”.278 Yet others have described the jurisdiction required to be established as a system of subsidiary universal jurisdiction, conditioned by the absence of extradition.279

  • 280 Yet while the aut dedere aut judicare principle may not be universal jurisdiction stricto sensu, a (...)

24Whether the jurisdiction required to be established by the aut dedere aut judicare obligation is universal jurisdiction, or merely “quasi” universal, it is clear that where a State has not established universal jurisdiction over a specific offence, it will not be able to elect to prosecute an offender but will be obliged by the operation of the clause to find another State, such as the territorial State or the national State of the offender, to which it can extradite the offender. It is also clear that traditional universal jurisdiction is merely permissive, whilst the aut dedere aut judicare clause calls for mandatory action should an alleged offender not be extradited.280

Its operation vis-à-vis other States

  • 281 Kolb, supra note 233, at 259.
  • 282 Ibid.
  • 283 The exceptions to this are the UN Convention against Corruption and the UN Convention against Tran (...)
  • 284 The older conventions do not refer specifically to “State Parties”, but rather refer to extraditio (...)

25As the jurisdiction required to be established under the aut dedere aut judicare clause may not be “universal jurisdiction”, the question must be asked how the extradite or prosecute clause operates vis-à-vis non-State parties. First, must the extradition be to another State party to the relevant treaty, or would extradition to any other State be sufficient? It has been argued that, as the aim of the conventions is to ensure prosecution and the aim of extradition is to ensure prosecution in the most appropriate forum, extradition need not be limited inter partes.281 Kolb argues that the rules of treaty interpretation suggest that, had there been an intention to so restrict the scope of extradition, it would have been expressed in the text and that such a limitation should not be read into the text in the absence of clear language.282 It is true that the majority of the aut dedere aut judicare clauses in multilateral conventions do not specify that a State must prosecute an alleged offender on its territory unless it extradites him or her to another State party.283 However, many of the clauses requiring a State to establish the necessary jurisdiction to prosecute an alleged offender when it does not extradite him or her are framed by reference to other State Parties. For example, the International Convention for the Suppression of Acts of Nuclear Terrorism requires a State party to establish jurisdiction where an alleged offender is present in its territory and it does not extradite that person to any of the State parties which have established their jurisdiction in accordance with the Convention.284

26Thus, although most of the conventions do not specify in the extradite or prosecute article itself that extradition must be to a State party, the clause requiring the establishment of the jurisdiction on the basis of which any prosecution is to be based refers to extradition to another State party as the alternative. In practice the principle of double criminality may often mean that the requesting State would be a State party who has legislated to implement jurisdiction under the relevant treaty. Still, the question of whether extradition must be to another State party in order to comply with the obligation has yet to be tested. Kolb’s argument that the purpose of the article is to ensure prosecution, preferably in the most appropriate forum, is certainly persuasive, but the question of whether the article requiring prosecution is to be construed as implicitly limited by the condition in the article requiring the establishment of jurisdiction (that is, limiting it to States parties to the treaty) does leave this issue somewhat unclear.

  • 285 Lotuscase (1927) PCIJ, Ser. A, No. 10.
  • 286 Scharf, “Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Party States”, 35 (...)
  • 287 See for example, Mann, “The Doctrine of Jurisdiction in International Law”, Receuil des Cours, 196 (...)
  • 288 Shaw, ibid.

27We must also consider whether the extra-territorial jurisdiction required by the conventions is opposable to non-State parties. Thus, if a State has established extra-territorial jurisdiction in respect of a crime pursuant to an aut dedere aut judicare clause, can it prosecute the national of a non-State party where the only connection between the custodial State and the individual is his or her presence on its territory? The Permanent Court of Justice in The Lotus Case took a very positivist approach to the issue of extraterritorial jurisdiction, suggesting that States have very wide powers of jurisdiction that can only be restricted by prohibitive rules.285 This would suggest that a State that has established extraterritorial jurisdiction in accordance with an aut dedere aut judicare obligation should be capable of exercising it over a national of a non-State party. This is certainly the view of writers such as Scharf, who considers that neither the nullem crimen sine lege rule nor article 34 of the Vienna Convention on the Law of Treaties (which provides that a Treaty does not create either obligation or rights for a third State without its consent) act to prohibit such extraterritorial jurisdiction.286 But the Permanent Court’s judgement has been subject to much criticism on this issue, with many influential writers reluctant to rely on the obiter dictum of the Court.287 Certainly contemporary international law places the onus on the State seeking to extend its jurisdiction to show its entitlement to do so, rather than the other way around.288 It is also true that a non-State party to one of the conventions is unlikely to strongly object to another State exercising jurisdiction over one of its nationals for an international crime. But where a particular crime is not subject to universal jurisdiction at customary international law, a State may have difficulty in relying only on treaty-based jurisdiction in respect of a citizen of a non-State party.

Notes

230 The exception to this is the Convention on Psychotropic Substances, which was completed only two months after the Hague Convention.

231 Bin Cheng recounts that this issue was not resolved until the very last minute, having almost caused the treaty to collapse. The compromise, which requires the State “to submit the case to its competent authorities for the purpose of prosecution” means that the duty is not to prosecute, let alone punish, but retains for the State a prosecutorial discretion. (Bin Cheng, supra note 22, at 36-37.) See also White, supra note 19, at 42. Compare Mankiewicz, supra note 20, at 204, where he suggests that the failure of a proposal to add the words “to submit the case to its competent authorities for their decision whether to prosecute him”, together with the retention of the words “shall be obliged without exception whatsoever” could support the proposition of an absolute obligation to prosecute.

232 White, supra note 19, at 42.

233 Kolb, “The Exercise of Criminal Jurisdiction over International Terrorists”, in Bianchi, A. (ed), Enforcing International Law Norms Against Terrorism, Oxford, Hart Publishing, 2004, pp. 227-281, at 261.

234 Ibid.

235 Ibid.

236 For more discussion about amnesties and pardons see for example Meintjes, G., and Méndez, J.E., “Reconciling Amnesties with Universal Jurisdiction”, 2 International Law Forum, 2000, pp. 76-97; or Naqvi, “Amnesty for War Crimes: Defining the limits of international recognition”, 85 International Review of the Red Cross, 2003, 583-625.

237 Ibid.

238 For a discussion of the Lockerbie Case in its interaction with the extradite or prosecute clause, see Plachta, “The Lockerbie Case: The Role of the Security Council in Enforcing the Principle Aut Dedere Aut Judicare”, 12 European Journal of International Law, 2001, pp. 131-140,

239 Kolb, supra, note 233, at 264-265.

240 Supra note 166.

241 Article 9 of the Statute of the International Criminal Tribunal for the Former Yugoslavia, 25 May 1993, UN Doc. S/RES/827 (1993) and article 8 of the Statute of the International Tribunal for Rwanda, 8 November 1994, UN Doc. No. S/RES/955 (1994).

242 A similar matter arose in the Lockerbie case, where Libya had conflicting obligations – to prosecute the alleged bombers under the aut dedere aut judicare obligation in the Montreal Convention, and to hand them over to the United States and the United Kingdom in accordance with the decision of the Security Council. See the text accompanying notes 142 to 148.

243 Lockerbie, supra note 142.

244 Article 17, Rome Statute of the International Criminal Court, UN Doc. No. A/CONF.183/9, 17 July 1998 as corrected by process-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002.

245 See for example the commentary to article 146: Pictet, J.S., Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Geneva, ICRC, 1958, at 593.

246 Final Record, Vol. II-B, at 116-117.

247 See generally Dugard and van den Wyngaert, “Reconciling Extradition with Human Rights”, 92 AJIL 1998, pp. 187-212.

248 Fédération Nationale des Déportés et Internés Résistants et Patriotes et al v. Barbie, 78 International Law Reports 125 (1985). See also Gilbert, supra note 176, at 399.

249 Amerasinghe supra note 187, at 27. This was in part because of the restrictive interpretation given by the Canadian Supreme Court in R v. Finta (1 S.C.R. 701 (1994)) to the 1987 amendments to the Criminal Code. See also the comment of the Director-General of the Canadian Deportment of Citizenship and Immigration’s statement before a Parliamentary Committee that the primary goal of his Deportment is to remove suspected war criminals from Canada: “we don’t really care about how we go about it. […] if, for example, we can remove somebody because they don’t have a visa, we don’t really care that we don’t class them as a war criminal”. (Quoted in van Elst, supra note 8, at 843.)

250 Kampschror, supra note 119. See also “Bosnian Serbs “lied about past”, BBC Online, 16 December 2006, available at http://news.bbc.co.uk/2/hi/europe/6185309.stm (accessed 5 August 2007), and McAllister, supra note 117.

251 It should be noted that the US legislation implementing the Geneva Conventions only allows for jurisdiction based on territoriality, active personality and passive personality. In the case of the Bosnians, the United States therefore lacks jurisdiction to prosecute them itself, unless they have obtained American citizenship.

252 See the comments on the application of universal jurisdiction for torture by the US in the Amnesty International Report on Universal Jurisdiction, supra note 31, at Chapter 10, p. 86.

253 Statement made in briefing to European Delegation during the visit of the TDIP Temporary Committee of the European Parliament to Washington, DC, 11 May 2006, quoted in Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states, Report of the Council of Europe’s Committee on Legal Affairs and Human Rights, Doc. 10957, 12 June 2006, at 40.

254 Shearer, supra note 36 , at 78.

255 For a discussion on how extraordinary renditions, being the transfer of an individual to a third State for the purpose of indefinite detention or so as to subject the accused to torture or ill-treatment during questioning, see Gilbert, G., Responding to International Crime, Leiden, Martinus Nijhoff Publishers, 2006, at 329 to 331.

256 Dugard and van den Wyngaert, supra note 247, at 188.

257 Bozano v. France, 9 EHRR 297 (1986).

258 Although not directly related to the extradite or prosecute clause, the Parliamentary Assembly of the Council of Europe’s resolution 1507 on Alleged Secret Detentions and Unlawful Inter-state Transfers of Detainees involving Council of Europe Member States condemns the “systematic exclusion of all forms of judicial protection”, including the so-called “unlawful renditions”. (Resolution 1507 (2006), 27 June 2006.)

259 Report of the intersessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance, UN Doc. No. E/CN.4/2004/59, 24 February 2004, at 15.

260 Sunga, supra note 176, at 254. Being permissive, universal jurisdiction does not require any State to take any particular action. It has been seldom used as the only basis for a prosecution for international crimes, despite the numerous instances of violations of such criminal prohibitions since the end of World War Two.

261 Kolb, supra note 233, at 257.

262 Gilbert, supra note 176, at 322-323.

263 Ibid.

264 Kolb, supra note 233, at 257.

265 Compare van Elst, who seems to consider that the Geneva Conventions can be distinguished from other conventions such as the Convention against Torture on the grounds of the priority accorded to prosecution, supra note 8, at 819.

266 The travaux préparatoires of the UN Convention against Transnational Organised Crime suggest that the drafters of the Convention were well aware that the aut dedere aut judicare obligation in the treaty was perhaps limited. The interpretative notes for article 16(10) state “The travaux préparatoires should reflect the general understanding that States Parties should also take into consideration the need to eliminate safe havens for offenders who commit heinous crimes in circumstances not covered by paragraph 10. Several States indicated that such cases should be reduced and several States stated that the principle of aut dedere aut judicare should be followed”. (Report of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime on the work of its first to eleventh sessions: Interpretative notes for the official records (travaux préparatoires) of the negotiation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, UN Doc. No. A/55/383/Add.1, 30 November 2000, paragraph 31).

267 For example, the ILC, in its commentary to article 6 of the Draft Articles on the Prevention and Punishment of Crimes against Diplomatic Agents and other Internationally Protected Persons, made it clear that, should a State not receive an extradition request, the aut dedere aut judicare principle means that the State is obliged to submit the case its competent authorities for the purpose of prosecution. (See the Yearbook of the International Law Commission, 1972, Vol. II, supra, note 23, at 318.) During the drafting of the Convention against Torture, several States sought to make it clear that the obligation to prosecute was dependent upon receipt of a request for extradition. However, during the course of the negotiations, this idea was dropped in favour of a broader prosecutorial obligation that was not dependent upon a pre-existing extradition request. See Burgers, J.H. and Danelius, H., The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dordrecht, Martinus Nijhoff Publishers, 1998, at 60 and 72.

268 Plachta, supra note 238, at 335.

269 Amongst the multilateral conventions listed in Annex I, the aut dedere aut judicare clause either clearly indicates that the obligation to prosecute is dependent upon a prior refusal to extradite, or the Hague formula is used. By contrast, article 9 of the ILC’s Draft Code of Crimes against the Peace and Security of Mankind was less direct: “Without prejudice to the jurisdiction of an international criminal court, the State Party in the territory of which an individual alleged to have committed a crime set out in article 17, 18, 19 or 20 is found shall extradite or prosecute that individual”. However, the ILC’s commentary to draft article 9 indicates that it did intend that the prosecutorial obligation was residual, not being conditional upon a refusal to extradite. (“In the absence of a request for extradition, the custodial State would have no choice but to submit the case to its national authorities for prosecution. This residual obligation is intended to ensure that alleged offenders will be prosecuted by a competent jurisdiction,” supra, note 166.)

270 This only arises where the failure to extradite is on the basis that the alleged offender is a national of the custodial State. Article 16(10) of the UN Convention against Transnational Organised Crime is in the same terms. The Optional Protocol to the Convention of the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography is similar, although it does not also require a demand by the Requesting State to submit the case for prosecution. The UN Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances also does not oblige prosecution unless there is a refusal to extradite; likewise, older conventions such as the Convention on Psychotropic Substances, the Single Convention on Narcotic Drugs, the 1936 Convention for the Suppression of Illicit Traffic in Dangerous Drugs and the International Convention for the Suppression of Counterfeiting Currency.

271 See the text accompanying notes 75 to 95.

272 During the drafting of the Hague Convention, the equivalent clause requiring the establishment of jurisdiction where a State did not extradite an alleged offender present on its territory was not included in the first two drafts of the treaty, prepared by a sub-committee of the Legal Committee of the International Civil Aviation Organisation (Dinstein, “Criminal Jurisdiction over Aircraft Hijackings”, 7 Israel Law Review, 1972, pp. 195-206, at 196).  It is not clear whether this explains why the Hague Convention and all subsequent versions of the Hague formula assign the compulsory jurisdiction for aut dedere aut judicare to its own paragraph and do not include it within the paragraph dealing with other forms of compulsory jurisdiction.

273 See, for example, the ILC’s commentary to its draft Code of Crimes against the Peace and Security of Mankind at its second reading in 1994,which speaks of “a system of universal jurisdiction based on the principle aut dedere aut judicare” in its commentary to the then article 20 (Report of the International Law Commission on the work of its 46th Session, 1 September 1994, UN Doc. No. A/49/10). More recently, the ILC has been careful to maintain a clearer distinction between the obligation to extradite or prosecute and that of universal criminal jurisdiction, even if for some crimes the two concepts exist simultaneously. See Report of the International Law Commission on the work of its 58th session, , UN Doc. No. A/61/10, Chapter XI at 397.See also Feller, “Comment on ‘Criminal Jurisdiction over Aircraft Hijacking’”, 7 Israel Law Review, 1972, pp. 207-213 at 210-211, who considers that the extradite or prosecute clause in effect applies to the relevant offence the principle of universal jurisdiction by sanctioning “the application of the lex loci deprehensionis, which is characteristic only of the universality rule”. The merging of the two principles, that of universal jurisdiction and the extradite or prosecute principle can also be seen in statements such as that of Sadat: “As classically conceived, this universal inter-state jurisdiction may be created by a treaty regime, or it may exist as a matter of customary international law. … Although traditionally considered a permissive basis for the exercise of jurisdiction by states, universal jurisdiction has become increasingly mandated by international treaties, to such a degree that some argue that the aut dedere aut judicare principle is now found in customary international law”, (emphasis in original) (Sadat, “Redefining Universal Jurisdiction”, 35 New England Law Review, 2001, pp. 241-263, at 244.)

274 Arrest Warrant Case, supra note 149, para 42 of their joint separate opinion.

275 Bin Cheng, supra note 22 at 40.

276 Higgins, supra note 50, at 63-64.

277 Malanczuk, P., Akehurst’s Modern Introduction to International Law (7th ed.), London, Routledge, 1997 at 113.

278 Shaw, supra note 58, at 597-598. The Secretary-General of the United Nations has explained the relationship between universal jurisdiction and the extradite or prosecute principle as “related to and sometimes regarded as a facet of universal jurisdiction”. (Note by the Secretary General; Ensuring the accountability of United Nations staff and experts on mission with respect to criminal acts committed in peacekeeping operations, UN Doc.No. A/60/980, 16 August, 2006.)

279 Guillaume, “Terrorisme et droit international”, Receuil des Cours, vol. 215, 1989, pp. 287-416, at 351.

280 Yet while the aut dedere aut judicare principle may not be universal jurisdiction stricto sensu, a State that has established universal jurisdiction over certain crimes will have sufficient jurisdiction to prosecute an alleged offender pursuant to the aut dedere aut judicare obligation and will have fulfilled its obligation to establish the necessary jurisdiction, See further to the text accompanying notes 75 to 95.

281 Kolb, supra note 233, at 259.

282 Ibid.

283 The exceptions to this are the UN Convention against Corruption and the UN Convention against Transnational Crime, where the obligation to prosecute is conditional upon a refusal to extradite on the grounds of nationality and there is a request from the State Party seeking extradition. Similarly the Geneva Conventions allow a State to fulfil its obligations by handing over an alleged offender for trial to another High Contracting Party.

284 The older conventions do not refer specifically to “State Parties”, but rather refer to extradition to any of the States mentioned earlier in the jurisdictional article, which are to the State parties who have established jurisdiction under the compulsory jurisdiction clause. See for example article 5 of the Convention against Torture.

285 Lotuscase (1927) PCIJ, Ser. A, No. 10.

286 Scharf, “Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Party States”, 35 New England Law Review, 2001, pp. 363-382.

287 See for example, Mann, “The Doctrine of Jurisdiction in International Law”, Receuil des Cours, 1964, vol. 111. A.W.Sithoff, Leyde (Pay-Bas), pp. 9-162, at 35; Higgins, supra note 50, at 77; Shaw, supra note 58, Brownlie, supra note 163, at 301; Dixon, M., and McCorquodale, R., Cases and Materials on International Law (4th ed.), Oxford, Oxford University Press, 2003, at 272.

288 Shaw, ibid.