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

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Claire Mitchell

Conclusion

Texte intégral

  • 289 Galicki, supra note 75, at 17.

1The International Law Commission considers that the topic of the aut dedere aut judicare obligation has achieved a sufficient substantial maturity for its codification, with a possibility of including some elements of progressive development.289 Zdzislaw Galicki, the Special Rapporteur, has submitted a preliminary and a second report on the topic. The examination of the topic by the ILC is welcomed: the topic is certainly ripe for a comprehensive study by a respected body of international lawyers. The fact that the obligation is included almost universally in international conventions dealing with international crimes (and many transnational crimes) means that its nature and scope must be clear. And the issue of whether the obligation exists at customary international law needs to be examined in detail. The review of the subject by the ILC should provide the clarifications needed.

  • 290 See comments of the Special Rapporteur on Reservations to Treaties when discussing the form that h (...)

2The Special Rapporteur has indicated a preference for the outcome of the study to be the elaboration of a set of draft articles. It is difficult for this writer to imagine how draft articles might be used. The obligation exists in different forms in a number of treaties and conventions and some argue that it exists at customary international law, either in respect of particular crimes or for all international crimes. What would seem to be needed is not draft articles that apply in respect of the obligation regardless of its wording, but guidelines that may assist States in interpreting the particular version of the obligation that concerns them. These could encourage a more flexible approach, allowing particular features of each treaty to be taken into consideration.290

  • 291 General Assembly Resolution 61/34 (UN Doc. No. A/RES/61/34, 18 December 2006). See also Report of (...)
  • 292 Supra note 10.
  • 293 To date, only the US has taken the opportunity to give general comments on the nature of the oblig (...)

3The General Assembly has already repeated the ILC’s request for States to provide information on their legislation and practice regarding the topic aut dedere au judicare.291 Some States have already provided the ILC with the information requested292 and it is hoped that more States take up this opportunity. Unfortunately, the questions formulated by the ILC did not include one seeking the views of States as to whether they were bound by an aut dedere aut judicare obligation beyond bilateral or multilateral conventions to which it was a party, which might have elicited invaluable indications as to whether opinio juris existed to support any customary obligation.293 Whilst any determination by the ILC as to whether the obligation exists at customary international law would not be binding, it would be highly persuasive.

  • 294 Whilst the ICJ has discussed the effect of a violation of a jus cogens on third States, stressing (...)

4Likewise, any discussion by the Commission as to the whether the obligation arises when a jus cogens norm is involved would play a very important role in determining the limits of the effect of a peremptory norm. However, given the lack of determinative statements as to the limits of the effect of a jus cogens norm,294 it would understandable if the ILC was wary of doing so in this case.

5Whether or not the obligation exists at customary international law, there are a number of questions concerning the scope and application of the obligation that remain unclear. Guidelines agreed upon by the ILC would assist a State in interpreting the obligation’s demands upon it in a given situation.

  • 295 With the exception of the Convention on Psychotropic Substances, which was finalised only two mont (...)

6In relation to the “prosecute” portion of the obligation, guidelines are needed from the ILC to clarify what is required by those treaties that do not specify that a State is to submit the case to its prosecuting authorities. Given that all treaties subsequent to the Hague Convention leave a discretion to the prosecutorial authorities,295 and in the light of the need for States to retain such a discretion to ensure that only those matters for which there is at least a prima facie case are prosecuted, it is hoped that the ILC will recommend interpretation of the earlier treaties to be satisfied by submission to prosecutorial authorities. The ILC may well qualify such a discretion by determining that any decision to prosecute is to be taken in good faith and in accordance with the rules of the prosecuting State. Such a qualification would ensure a balance between the desire to avoid impunity for international crimes and the need to respect the human rights of the accused.

7In the light of the debate between the usefulness of amnesties and pardons in negotiating a peace settlement and the need to avoid impunity for international crimes, there is scope for the ILC to establish guidelines that could help a State determine whether a particular amnesty or pardon excused it from prosecuting an accused who is present on its territory. Likewise, the question of whether State immunity would excuse a State from prosecuting someone remains to be clarified. Of course, this is an area that extends beyond the subject of the aut dedere aut judicare obligation and it may be that the ILC will be reluctant to address these issues in this topic. However, even if it formulates guidelines without prejudice to the interaction of amnesties, pardons and immunities and the extradite or prosecute obligation, it will no doubt be conscious of the greater debate.

8The ILC’s input on whether surrender to an international criminal court or tribunal would comply with the obligation would also be welcome. Although only the Convention for the Protection of All Persons from Enforced Disappearance expressly allows surrender to an international criminal court or tribunal whose jurisdiction the custodial State recognises, it would be entirely consistent with the object and purpose of the extradite or prosecute obligation to allow the “third alternative”. But it is hoped that the ILC would be stricter on the question of whether rendition or deportation rather than extradition fulfils a State’s obligation. Neither deportation, denaturalisation, rendition nor any other type of informal surrender ensures the protection of the accused’s human rights in the way that extradition does.

9Whether the aut dedere aut judicare clause obliges a State to prosecute in all cases unless it extradites, to prosecute only when there is a request to extradite that it has refused, or to prosecute unless it extradites to the forum conveniens will depend on the wording of the particular obligation. But the ILC could play a role in interpreting the main versions of the clause. For example, it should confirm that the Hague formula, which requires States, if they do not extradite, are “without exception whatsoever” to submit the case to their competent authorities for the purpose of prosecution, does in fact require them to prosecute even if there has been no extradition request.

10Finally, guidelines as to the effect of the obligation vis-à-vis non-State parties would be welcome, particularly as several of the treaties containing the clause condition the jurisdictional clause by reference to other State parties.

11It is also hoped that the ILC will take the opportunity to draft a model aut dedere aut judicare clause. The Hague formula would be the appropriate starting place. A model clause should first include an article requiring a State to establish its competence to exercise jurisdiction where the alleged offender is present on its territory and it does not extradite. Thereafter, a second article is needed to oblige a State who does not extradite the person to, “without exception whatsoever and whether or not the offence was committed on its territory”, submit the case to its prosecuting authority. The most recent version of the Hague formula is found in the Convention on Forced Disappearances. This provides a third and a fourth alternative, to surrender the accused to an international criminal tribunal whose jurisdiction it has recognised, or surrender him or her to another State in accordance with its international obligations. If the ILC chooses to include these additional alternatives, it should make it clear that surrender to another State in accordance with its international obligations should only occur where there has been judicial input that will ensure protection of the accused’s human rights.

12Whatever the outcome of the ILC’s work on the topic, it is clear that the aut dedere aut judicare obligation will play an increasingly important role in the fight against impunity for international and transnational crimes. Its inclusion in most recent treaties criminalizing conduct has given it a much more central role in this fight.

Notes

289 Galicki, supra note 75, at 17.

290 See comments of the Special Rapporteur on Reservations to Treaties when discussing the form that his work should take. Ultimately the ILC decided to use guidelines to interpretation as the appropriate format for its work on the topic. Preliminary Report on the Law and Practice Relating to Reservations to Treaties, UN Doc. No. A/C.N.4/470, 30 May 1995.

291 General Assembly Resolution 61/34 (UN Doc. No. A/RES/61/34, 18 December 2006). See also Report of the International Law Commission on the work of its fifty-eighth session (2006), UN Doc No. A/61/10..

292 Supra note 10.

293 To date, only the US has taken the opportunity to give general comments on the nature of the obligation and whether it exists at customary international law.

294 Whilst the ICJ has discussed the effect of a violation of a jus cogens on third States, stressing that they are obliged not to recognise the illegal situation arising from such a violation, are not to render any aid or assistance and are obliged to cooperate to bring an end to the violation through lawful means (Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports (1994) 136, at.200), it has so far only once defined part of the external limits to the effect of such violation. In the case of Armed Activities on the Territory of the Congo, supra note 201, the Court determined that a violation of a jus cogens norm did not of itself establish jurisdiction before the Court.

295 With the exception of the Convention on Psychotropic Substances, which was finalised only two months after the Hague Convention.