ePaper 2 Mitchell

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Aut Dedere, aut Judicare:

The Extradite or Prosecute Clause in International LawClaire Mitchell

20092009 | no 2 | international laW

eCahiers de l’institutGraduate institute ePaPers

The views reflected in this paper are personal and do not necessarily reflect those of the United Nations nor of the Graduate Institute of International and Development Studies.

© INSTITUT De haUTeS éTUDeS INTerNaTIoNaleS eT DU DéveloppemeNTGraDUaTe INSTITUTe of INTerNaTIoNal aND DevelopmeNT STUDIeSp.o. Box 1361211 Geneva 21Switzerland

T +41 22 908 43 60f +41 22 908 62 73 email : [email protected]://graduateinstitute.ch

ISBN 978-2-940415-04-5

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RemeRciements

This paper was the result of my studies with the (then) Institut universitaire de hautes études internationales (HEI) in Geneva (now The Graduate Institute) and was submit-ted as the mémoire for a Diplôme des Etudes Approfondie (D.E.A.) in international law. I would like to thank those at HEI whose enthusiasm and belief in international law as a means to achieve peace and security in this world have provided me with much inspi-ration. In particular, I would like to thank Professor Andrea Bianchi for his support and encouragement, both in researching and writing this paper and generally in my studies. I would also like to thank Michelle Healy who gave much of her own precious time to provide me with invaluable comments on an earlier draft.

Finally, I would like to dedicate this paper to Lance Bartholomeusz, whose belief in my latent abilities in international law have meant that I had the courage to return to study international law and have taken me to where I am now.

Claire Mitchell

Field Legal Officer, Gaza, UNRWA

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| Aut dedere, Aut judicAre: The exTraDITe or proSecUTe claUSe IN INTerNaTIoNal law

contents

Introduction 5

I Sources of the aut dedere aut judicare obligation 8

1) conventions or treaties 9

multilateral treaties 9

extradition treaties 16

2) security council resolutions 18

3) customary international law 20

civitas maxima 21

state practice and opinio juris 22

Judicial decisions and teachings of the most highly qualified publicists 45

conclusion regarding customary status of the extradite or prosecute

obligation 52

4) General Principle of Law recognized by civilized nations 66

II The scope and operation of the obligation 67

1) “Prosecute” 67

2) “extradite” 69

3) “Prosecute or extradite” 74

4) other implications of the obligation 78

Jurisdiction 78

its operation vis-à-vis other states 81

III Conclusion 84

IV Select Bibliography 88

V Annexes 107

Annex 1 – multilateral treaties containing an extradite or prosecute

clause 107

Annex 2 – security council resolutions referring to the extradite or

prosecute clause 139

Annex 3 – states’ implementing legislation 143

Annex 4 – General Assembly Resolutions 150

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intRoduction

Concerns 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 multilat-eral 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 crim-inal law enforcement mechanisms, it is not surprising that the International Law Com-mission (“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 ses-sion 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

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 51 to 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.

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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.

The 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 tempo-rarily. The custodial State may also be the State in which the offence occurred (the ter-ritorial 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 prosecu-tion) must be initiated.7

It is at its fullest extension that the principle is most controversial, where the only con-nection 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

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 pro-vides 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 pros-ecute” (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 situa-

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INTroDUcTIoN

There 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 prin-ciple of customary international law in respect of only some crimes? And can the peremp-tory status of a related substantive norm mean that an obligation to extradite or prosecute arises?

In 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 anal-ysis, 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 ref-erences 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.

Part 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 sum-marised 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.

tion, 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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1. souRces of the “Aut dedeRe Aut JudicARe” obLiGAtion

The 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 inter-national 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.

9 In examining Security Council resolutions as a potential source for the obligation to extradite or pros-ecute, 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 inter-national law as showing either State practice or opinio juris.

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SoUrceS of The Aut dedere Aut judicAre oBlIGaTIoN

1.1 ConVenTIonS or TreATIeS

Multilateral treaties

The 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 multilat-eral and regional conventions is attached as Annex I to this paper. 11

The first convention containing an extradite or prosecute clause was the 1929 Interna-tional Convention for the Suppression of Counterfeiting Currency, which provided, first, that where a State’s domestic law did not allow the extradition of nationals, nation-als 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.

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 Ter-rorists – 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 extra-dite 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 interest-ing 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 informa-tion 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.

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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 crimi-nal 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 rea-sons 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 1937 draft Conven-tion for the Prevention and Punishment of Terrorism,12 with the exception that the aspira-tional “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.

In 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 estab-lishing 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 extradi-tion 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 prosecu-tion of a national in the absence of extradition.14

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.

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The 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 alter-native, the State may elect to “hand such persons over for trial” to another High Contract-ing party, provided that the other State has made out a prima facie case.16

The 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 Psych-tropic 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 demand-ing 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 compe-tent authorities for the purpose of prosecution”.

The 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 estab-

lish its jurisdiction over the offence in the case where the alleged offender is present in its ter-

ritory 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

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.

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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.

It 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 extra-dite 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 jurisdic-tion 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 politi-cal 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,

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 Sup-pression 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.

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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 obliga-tion 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 mat-ter 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

Regional 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

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 For-mula 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 Dip-lomatic Agents and Other Internationally Protected Persons (Yearbook of the International Law Com-mission, 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 dis-cussion 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

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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 lim-ited to only the non-extradition of nationals.27 Yet others allow the creation of jurisdic-tion 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 prose-cutorial discretion, most contain an obligation to submit the case to prosecutorial authori-ties, rather than the stricter obligation to prosecute or “to take proceedings against” the alleged offender.29

It is interesting to also consider those criminal conventions that do not include an extra-dite or prosecute clause. The Genocide Convention does not contain such a clause, pro-viding 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 juris-diction.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

Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Man-agement 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 Combat-ing 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 Extor-tion 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 extra-dite 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 Interna-tional 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.

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summaries of the Sixth Committee charged with drafting the convention and the Gen-eral 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 applica-tion 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 prin-ciple 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 obliga-tion, despite there having been at least seven prior international criminal law conven-tions including such a clause and despite the inclusion of a clause granting permissive

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 nation-als 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 Interna-tional, 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 obli-gation 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.

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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 crimi-nalization 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

The extradite or prosecute clause appears in a number of bilateral and multilateral extradi-tion 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 discre-tion 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

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, Tran-snational Publishers Inc., 1999, pp 643-662, at pp. 653-658.

34 Convention for the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weap-ons 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 Man-chester 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.

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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

Some 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 appli-cable and is denied for any reason, the State is obliged to prosecute where its laws or trea-ties permit it to do so.

The 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 cir-cumstances, 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.

37 Ibid, at 219-223.38 Examples of some of the bilateral extradition treaties that contain such an obligation in respect of nation-

als 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 Coun-cil 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).

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1.2 SeCurITy CounCIl reSoluTIonS

Although the Security Council has in recent years taken a very proactive role in deter-mining 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 nine occa-sions 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

The third such resolution, Resolution 1566 of 8 October 2004 “calls upon” States to coop-erate 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 Arti-

cle 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”.

In 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

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.

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allow the characterisation of the relevant paragraphs as decisions under article 25 (includ-ing 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 com-prehensive 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.

The 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 Resolu-tion 678 to expressly identify those resolutions that are made under Chapter VII.

Elsewhere 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 pros-ecute. 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

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).

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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.

Even if no Security Council Resolutions referring to the aut dedere aut judicare obliga-tion specifically require Member States to extradite or prosecute particular offenders, could they otherwise be seen as a source for such an obligation? The resolutions identi-fied 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

If 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 obliga-tion, whether the relevant treaty includes such an obligation (such as the Genocide Con-vention) 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

49 Report by the Chair of the Counter-Terrorism Committee on the Problems Encountered in the Implemen-tation 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.

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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. Conclu-sions 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 custom-ary 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

Although 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 “offenses reprehended by the interna-tional 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 com-munity 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

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 compari-son 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 Con-vention 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

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Whilst 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 enhanc-ing 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 explic-itly 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 extra-dite 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 confor-mity with the higher good of the universal community.56

Thus, 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 deter-mine whether this obligation exists beyond those treaty obligations willingly accepted by States.

State practice and opinio juris

As 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

international crime for the purposes of the Draft Articles as the breach by a State of an obligation consid-ered 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 70-7259 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 Nica-ragua v. United States case (ICJ Reports (1986) 14, at 98), the Court emphasised that the practice in

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writers have argued that, especially in relation to humanitarian norms and human rights, normative utterances recognising universal principles as the positive law of the interna-tional community should be accepted as such, even in the face of inconclusive or con-trary 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.

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 signifi-cance to State practice, particularly inconsistent State practice, and attributing central importance to reso-lutions 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 dif-ferently. (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 forma-tion 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 civil-ians 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 “dic-tates 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 enforce-ment 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 reso-lutions 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 prac-tice 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.

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Ratification of treaties and conventions

One possible source of State practice for the extradite or prosecute obligation is its inclu-sion 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.

In 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 indi-cated 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

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 Free-stone, “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.

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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 distinguish-able by reason of their creation of restraints on conduct that would otherwise be anarchi-cal. 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

As Larsaeus points out, however, whilst this wide adherence may show that States con-sider this to be an effective way to prevent certain forms of conduct, it does not necessar-ily 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

Both 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 interna-tional law, considering that support for the customary nature of an obligation to extra-dite 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

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 interna-tional law.

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

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States in certain conventions relating to specific crimes. 71 This goes significantly further than the ICJ and Baxter.

As 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 trea-ties. 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.

A broad-brush approach to the creation of customary international law from treaty pro-visions, such as that advocated above, also fails to take into account those treaties con-taining 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.

There 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 extra-dite 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 obli-gation require States to submit the case to prosecuting authorities, or would it be a more

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 Inter-national 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.

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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?

These 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 short-hand, that of itself should cause international lawyers to hesitate before announcing the birth of a customary norm.

Domestic legislation

Another source of State practice relevant to the customary nature of the extradite or pros-ecute 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

74 While the principle of legality is usually considered in the context of international criminal law as requir-ing 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 rec-ognised 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 Con-vention Against Torture and other Cruel, Inhuman or Degrading Treatment and Punishment, Communi-cation 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 juris-diction based on active personality is not contentious, it is more interesting to examine legislation that

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the alleged offender is a foreigner and the offence occurred elsewhere, there must be legisltion 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 Conven-tions, acts of torture under the Convention against Torture, and offences generally charac-terised 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 for-eigners for crimes against humanity or acts of genocide that occur outside the State. Gen-erally, States have used one or more of the following methods to allow for the prosecution of foreigners for these crimes:

(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

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 particu-lar 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); Interna-tional Committee of the Red Cross, International Humanitarian Law Database of National Implemen-tation, 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 Res-olution 1534, available at <http://www.un.org/sc/ctc/> (accessed 5 August 2007); the T.M.C. Asser Insti-tute 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.

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(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 jurisdic-

tion over a class of crimes. Many of these “blanket norms” establish extra-territorial jurisdic-

tion 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 extra-

dited.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-ter-

ritorial 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 crimi-

nalize 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

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 pro-vided 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 addi-tion, 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.

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criminalize war crimes as such, relying instead on existing criminal offences such as murder,

rape or assault.87

(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.89 In

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

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 trans-fer 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 geno-cide 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, Nor-wegian authorities have indicted the accused under existing Norwegian laws criminalizing gross vio-lence, 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 trea-ties “shall have the force of law after their conclusion, ratification and publication according to the estab-lished 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 Janu-ary 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 extraterrito-rial crimes in the absence of implementing legislation. Conclusion du Ministere 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 judicare obligation 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 Pinoc-het Effect: Transnational Justice in the Age of Human Rights, Philadelphia, University of Pennsylvania Press, 2006, at 180.

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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

Whatever form of incorporation is used by a State, Annex III shows that the implementa-tion 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 jurisdic-tion 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 arti-cle 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 legis-lation (representing 52 percent of all States and 77 percent of those whose jurisdictional position is known) and 29 States lack the necessary jurisdiction.

It 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

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, execu-tive 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’ legisla-tion 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.

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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 Conven-tion 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 commit-ted outside the State (representing 30 percent of all States and 72 percent of those States for which the jurisdictional position is known.

It 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 Austra-lia, Burundi, Canada, Colombia, Democratic Republic of Congo, Ethiopia, Finland, Hun-gary, 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

In 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

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 jurisdic-tion 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.

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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 Conven-tions. 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

What 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 juris-diction. Domestic legislation that allows the prosecution of extraterritorial crimes against humanity or genocide in lieu of extradition could be evidence that supports the exis-tence 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

Another potentially fertile area to determine State practice and opinio juris involves con-sidering 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

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.

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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.

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

• Austria. The 1958 case of Public Prosecutor v. Milan T.96 is perhaps the earliest inter-nationally 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 Ger-many and returned to Austria, which tried and convicted him of the crimes commit-ted 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 Yugo-slavia 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 provi-sions 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 gen-

erosity 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.

• Australia. In two cases, Australian judges have commented on the status of the extra-dite or prosecute obligation at customary international law. In the 1991 case of Polyuk-

hovitch v. The Commonwealth,99 both the Australian Government and the High Court

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 Per-spectives, 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.

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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 chal-lenge to the constitutionality of Australia’s War Crimes Amendment Act 1988, the Aus-tralian 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 constitutional-ity, 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 dic-

tum, 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 Sev-eral 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 obli-gation to prosecute or extradite someone was a different matter to whether the State had legislation providing the jurisdiction to so prosecute.

There are also examples of State action either acceding to an extradition request (or refus-ing to do so), or prosecuting an alleged offender in default of extradition. These examples

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 obli-gation 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.”

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are not as numerous as one might hope and, as discussed above, are difficult to defin-itively 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:

• 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 exer-cising 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 Interna-tional Criminal Tribunal for Rwanda did not take over the proceedings, and Switzer-land 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-interna-tional 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 pros-ecution was carried out does not expressly provide that jurisdiction arises where extra-dition does not occur, unlike under the Swiss Penal Code.106

• 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

103 Military Prosecutor v. Niyonteze, Tribunal militaire, Division 2, Lausanne, 30 April 1999 (trial judge-ment); 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 extra-

dited to the territorial State whenever possible. Reydams, supra note 96, at 193.106 Reydams, supra note 96.

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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 extra-dite 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 Prosecu-tions pursuant to the obligation in Article 7 of the Torture Convention. However, Pino-chet was allowed to return immediately to Chile and no prosecution was forthcoming.

• Senegal – Hissene Habré.109 The former President of Chad had lived in exile in Sen-egal 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 Senega-lese 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 seri-ous 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 extradi-tion request concerning a former head of State. Consequently under Senegalese law

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, <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, Univer-sity of Pennsylvania Press, 2006, pp. 131-167.

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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 prosecu-tion 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 complain-ants 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 involve-ment 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 arriv-ing 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 for-mally 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 tor-ture should he be returned to Venezuela. But, although under an obligation under sev-eral of the terrorism conventions to prosecute him should it not extradite him, 114 and

110 Report of the Committee of Eminent African Jurists on the case of Hissene 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 ter-rorist 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.

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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

• United States of America – Nedjo Ikonic.117 Identified as part of a check amongst Bos-nian 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

• 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

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 (avail-able 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).

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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 pros-ecuting authorities for investigation for war crimes or terrorist offences.

• United Kingdom – Faryadi Sarwar Zardad.122 The accused was an Afghan warlord convicted on 18 July 2005 of conspiring to torture and take hostages, the crimes of tor-ture 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.

• 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 pen-alty. 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.

• 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

121 Government of The Russian Federation v. Akhmed Zakaev, Bow Street Magistrates Court (Senior Dis-trict 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%20Case%20Comment%2019%20July%202005.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.

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try a non-national for genocide, but should the UK courts decide to accede to Rwan-da’s extradition request, this would mean that they would face justice.125

• New Zealand – Moshe Ya’alon.126 On 27 November 2006, the District Court in Auck-land, 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 Attor-ney 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 ulti-mately to return to Israel.

• South Africa – mercenaries.127 Following a bungled coup attempt in Seychelles in 1981 that involved a number of South African mercenaries, the South African gov-ernment 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 Afri-can Government decided to prosecute the 45 mercenaries for the hijacking attempt.

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 con-tain 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 respec-tive air services agreements with the defaulting State. See the Bonn Declaration on International Terror-ism, (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 Interna-tional Agreement on Aircraft Hijacking”, 31 International and Comparative Law Quarterly, 1982, pp. 474-487.

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• 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 Air-lines, flew gave notice of the denunciation of their airline agreements.

While 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 pros-ecute, 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.

Certainly 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

States practice and opinio juris is often sought in the text of General Assembly resolu-tions or other prescriptive statements. As Judge Tanaka suggested in his dissenting opin-ion 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 con-cerned, has the opportunity, through the medium of the organization, to declare its posi-tion 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 prac-tice, but also its view as to opinio juris. But while it may be tempting to look to General

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.

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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 obliga-tion 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.

Annex 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 reso-lutions (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 effec-tive extradition and prosecution of those engaged in serious transnational crimes, and a Declaration on the Protection of All Persons from Enforced Disappearance. The stron-gest 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.

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 accord-ance 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 coun-tries 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 pun-ishment 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 extra-dite 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 obliga-tion from such a resolution. Where the General Assembly has adopted such conventions, the resolution number is referred to on the table at Annex I.

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States 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 humani-tarian 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 perpetra-tors 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

There 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 trea-ties.137 Likewise, Israel indicated that it did not consider itself bound by a general obli-gation 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 con-sidered 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

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 coun-try 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.

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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

Although 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 obi-

ter dictum, although no case has been directly on point.

International court of Justice and other international tribunals

Lockerbie case142

At 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

139 Supplementary report by Italy to the Counter-Terrorism Committee pursuant to Security Council resolu-tion 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 gen-eral 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 Ques-tions 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.

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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 appli-cation to resolving conflicts between Charter obligations and other treaty obligations, sev-eral of the judges did discuss the nature of the aut dedere aut judicare obligation.

In 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 inter-national law to prosecute in default of extradition.144

The dissenting judges either indicated that there was no obligation at customary inter-national 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 dissent-ing judges also referred to the belief of some writers that the obligation had attained jus

cogens status.147

The discussion of the existence or otherwise of an extradite or prosecute clause at cus-tomary international law was not restricted to the crimes contained in the Montreal Convention. Rather, the Judges’ consideration of the aut dedere aut judicare obligation

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 judi-cate refers”, suggesting that all that the regime in the Montreal Convention does is to complement gen-eral 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”

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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 con-nection 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

In 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 Pro-tocols. Although the Belgian arrest warrant and prosecution were based on universal juris-diction, 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.

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.

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Bosnian Genocide Case (Merits)151

The 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 Mon-tenegro 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 deter-mined 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 interna-tional law but was limited to considering the application of the Convention itself.

Prosecutor v. Tihomir Blaskic153

While considering its power to address subpoenas to sovereign States and their high gov-ernment 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 obliga-tions of belligerents under customary international law to take measures for the punish-ment of war crimes committed by all persons, including members of a belligerent’s own armed forces.155

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).

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Prosecutor v. Anto Furundzija156

The 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 inves-

tigate, 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 tor-

ture 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.

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

Teachings of the most highly qualified publicists

Like 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 obliga-tion (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 obliga-tion, 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

156 Prosecutor v. Anto Furundzija, IT-95-17/-T, 10 December 1998157 For more information regarding the traditional views of the principle, see Wise, “The obligation to extra-

dite 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.

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nationality of the offender.159 The injured State was seen as having a right to exact pun-ishment 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

Whether 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

The International Law Commission was created to promote the progressive development of international law and its codification.164 Its position as a possible source of interna-tional 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.

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 pro-gressive development of international law and its codification. Statute of the International Law Commis-sion, 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.

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According 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 jurisdic-tion 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 com-mentary 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 alterna-tives 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 prin-ciple.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.

Although 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 exer-cise 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 pro-gressive development of international law”.169 But the fact that the Rome Statute does not

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.

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determine the extent of a State’s domestic jurisdiction suggests the contrary, at least in relation to the obligation to extradite or prosecute.

As 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 Spe-cial 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 dis-cussing the preliminary views of the ILC members and the Sixth Committee was pre-sented 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 particu-larly 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

One of the challenges of international law, as opposed to municipal law, is that of iden-tifying 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 inter-national 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

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

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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

In 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 custom-ary 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?

In 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 inter-national 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.

The 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

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 Mecha-nisms, The Hague, Martinus Nijhoff Publishers, 1998, at 322; Larsaeus, supra, note 51, at 87;

177 Higgins, supra note 63, at 26.

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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 ele-ments 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 Psycho-tropic 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 sim-ply require widespread participation and a norm-creating character in order to be recog-nised 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

178 Supra note 59, at 41. In that case, the Court considered that the fact that the application of the equi-distance 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 cir-cumstances” 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 participa-

tion 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 par-ties), 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

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It 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 suf-fices 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.

It is seems appropriate to start this discussion with a discussion of the obligation to extra-dite or prosecute those accused of grave breaches of the Geneva Conventions. These con-ventions are now considered to have universal membership, which must surely comply with the North Sea Continental Shelf Case requirement of “very widespread and rep-resentative participation”. But, although the majority of States have implemented leg-islation 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 custom-ary 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 custom-ary extradite or prosecute obligation in respect of grave breaches of the Geneva Conven-tions. 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 obli-gation 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

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

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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 politi-cal 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 cus-tomary obligation to extradite or prosecute those accused of war crimes. Yet it may be

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 sus-pects (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 cus-tomary 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 uni-versal 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 pursu-ant 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 Interna-tional 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-observ-ance of the grave breaches regime has not been for lack of atrocities, but because States clearly do not think the obligations bind them.

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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 operat-ing outside the Conventions themselves to extradite or prosecute.

Similarly, 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 out-side 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 extra-dite or prosecute those accused of committing torture. And within the limits of the Con-vention 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 univer-sal jurisdiction in the convention, States remain extremely reluctant to exercise univer-sal 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.

It 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

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 treat-ment or punishment, Manfred Nowak, UN Doc. No. A/HRC/33, 15 January 2007, at 11.

191 See the text accompanying notes 107 and 108.

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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?

While it remains possible that there are existing or emerging customary norms to extra-dite 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 prac-tice 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 interna-tional crime.193

It 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 interna-tional 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 jurisdic-tion 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 oper-ation 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 per-ceived general obligation, such as an obligation under a treaty, moral considerations, or

192 While the ICJ did consider that Serbia and Montenegro were not required to prosecute those on its ter-ritory 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 Commit-tee in considering the Special Rapporteur’s second report; supra note 172.

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comity.194 Where the General Assembly has discussed an obligation to extradite or pros-ecute, 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 oblig-ing 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 resolu-tions to infer such a specific obligation from resolutions that are framed in broader terms.

Even 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 spe-cific 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 spe-cific 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

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 Jus-

tice: 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.

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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?

It 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 regu-

lation 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 extra-

dite; 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

199 Ibid. 200 Gilbert, supra note 176 at 322.201 Jus cogens refers to the hierarchical status of particular norms considered by the international commu-

nity 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, tor-ture 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 appli-cation 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.

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to extradite accused perpetrators, and to punish those found guilty, irrespective of locus since

universal jurisdiction presumably applies.

In essence, his argument is that, because of the peremptory nature of jus cogens, a viola-tion 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 consid-ered 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:

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 jurisdic-

tion, 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 com-

petent state, prosecute locally, or surrender the person concerned to the jurisdiction of a compe-

tent international tribunal; it is the jus cogens/erga omnes combination that makes prosecution

(somewhere) unavoidable as a matter of duty.204

The 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 obliga-tions 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

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 Brown-lie, 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).

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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 obliga-tions erga omnes for third parties.205

The 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 exami-nation 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

The 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 jurisdic-

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 vio-lation 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 argu-ments 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 Account-

ability”, 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 universal-ity principle, which is concerned with the application of domestic criminal jurisdiction

210 Joyner, supra note 207, at 170.

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tion where necessary.211 But it should be noted that this decision indicates only an entitle-ment 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

In 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 sup-port this approach. States may condemn such actions, but they do not generally act on their own accord to punish them.213 This is not surprising given the asymmetrical devel-opment 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 respon-sible for violations of jus cogens.

Bassiouni 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 interna-tional 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 seri-ous 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

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.

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meaning as a jus cogens norm … is if this norm is supported by a jus cogens duty to extradite

or prosecute.

Article 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.

This 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 viola-tion of a primary rule of a peremptory nature entails the application of particular second-ary 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 main-taining 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 estab-lish jurisdiction over the actions of nationals committed abroad?

In addition, if the obligation to extradite or prosecute were of jus cogens stature, the Secu-rity 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 extra-dite 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

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.

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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 Con-vention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents, which includes an obligation to extradite or pros-ecute. Security Council resolution 1267 (1999)224 was expressed in similar terms, requir-ing 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.

In 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 Buergen-thal addressed a similar question about the customary nature of the assumption of uni-versal 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 jurisdic-

tion 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 stimulat-

ing as they may be, cannot of themselves and without reference to the other sources of inter-

national 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

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.

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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

So 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 prin-ciples 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 sys-tems, other than to say that there is no obligation on a State outside treaty law, to extra-dite.229 This source of law therefore does not add to this discussion.

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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2. the scoPe And oPeRAtion of the obLiGAtion

Although 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”

Although until now we have spoken of an obligation to “prosecute”, it must be empha-sised 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 tra-ditional 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 real-ity to submit the case to the relevant prosecutorial authorities, which are then to consider whether or not to prosecute.

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 authori-ties 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.

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Many of the conventions that retain the prosecutorial authority’s discretion then qual-ify 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 fac-tors 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 prosecu-tion, thus installing a good faith element in the prosecuting authority’s discretion.235

The 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 pros-ecuting? 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 discre-tion 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

232 White, supra note 19, at 42.233 Kolb, “The Exercise of Criminal Jurisdiction over International Terrorists”, in Bianchi, A. (ed), Enforc-

ing 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., “Rec-

onciling 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.

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The Scope aND operaTIoN of The oBlIGaTIoN

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 Conven-tion, 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”

Having 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

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.

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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”?

With the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, the issue is easy. Although these two tribunals have con-current jurisdiction with national courts, the tribunals retain primacy.241 Therefore, the rel-evant 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 interna-tional 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

The 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 investi-gated or prosecuted by a State which has jurisdiction over it, unless the State is unwill-ing 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

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.

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the treaty obligations. The purpose of the extradite or prosecute clause is to ensure pros-ecution 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

Exactly 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 multi-lateral 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 word-ing 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 Conven-tions 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, sur-render 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.

Can 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 infor-

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

246 Final Record, Vol. II-B, at 116-117247 See generally Dugard and van den Wyngaert, “Reconciling Extradition with Human Rights”, 92 AJIL

1998, pp. 187-212.

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mally 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 custo-dial State to extradite or prosecute one accused of crimes against humanity, Klaus Bar-bie 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 dis-guised 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 Immi-gration 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 Con-tracting 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

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 jurisdic-tion 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.

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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 “dis-guised 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

Another 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 pro-vides 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 rendi-tion that excludes the effect of these provisions and the protections afforded by judicial

252 See the comments on the application of universal jurisdiction for torture by the US in the Amnesty Inter-national 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 Commit-tee 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 ques-tioning, 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).

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involvement in an extradition request would not be consistent with the safeguards inher-ent in the alternative of “extradition” in an aut dedere aut judicare clause.258

It 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 alterna-tive 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 extradi-tion, 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 Inter-sessional 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 accor-dance 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”

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

The 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

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.

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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.

But 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?

The 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 alterna-tive on first consideration; either the State extradites or it prosecutes.261 This interpreta-tion 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 sub-sidiary 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 par-ticular 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 extradi-tion or should extradition be considered inappropriate in the circumstances. This main-tains 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 legisla-

261 Kolb, supra note 233, at 257. 262 Gilbert, supra note 176, at 322-323.263 Ibid.264 Kolb, supra note 233, at 257.

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tion, operates in a similar manner to the Hague formula, despite the clear difference in the wording.265

Other 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 circum-stances 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

Where 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 exis-tence 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 pre-cluded 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

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 prosecu-tion, 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 elimi-nate 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: Inter-pretative 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 Pun-ishment 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

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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 under-stood 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

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 depend-ent upon a pre-existing extradition request. See Burgers, J.H. and Danelius, H., The United Nations Con-vention 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 condi-tional 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.

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obligation to be residual and those that see it arising only after a prior refusal to extra-dite 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 traffick-ing or organised crime.

Regional conventions vary dramatically on the question of when the obligation to pros-ecute 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. How-ever, 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

Whether the obligation to prosecute an alleged offender present on its territory is a resid-ual 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 Conven-tion 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

271 See the text accompanying notes 75 to 95.

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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

As 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

272 During the drafting of the Hague Convention, the equivalent clause requiring the establishment of juris-diction 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 judi-care to its own paragraph and do not include it within the paragraph dealing with other forms of compul-sory 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 Interna-tional 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 sanc-tioning “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 inter-national 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.)

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as ‘universal jurisdiction’, though this is really an obligatory territorial jurisdiction over persons, albeit in relation to acts committed elsewhere”.274

Similarly, 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

In 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 jurisdic-

tion 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).

Other 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 uni-versal jurisdiction, conditioned by the absence of extradition.279

Whether the jurisdiction required to be established by the aut dedere aut judicare obliga-tion 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

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 rela-

tionship 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.

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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

As 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 pros-ecute 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 How-ever, many of the clauses requiring a State to establish the necessary jurisdiction to pros-ecute 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

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 pros-ecute 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

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Thus, 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 arti-cle requiring the establishment of jurisdiction (that is, limiting it to States parties to the treaty) does leave this issue somewhat unclear.

We must also consider whether the extra-territorial jurisdiction required by the conven-tions 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 custo-dial 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 extraterri-torial 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 estab-lished 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

established jurisdiction under the compulsory jurisdiction clause. See for example article 5 of the Con-vention against Torture.

285 Lotus case (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.

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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 conven-tions 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 univer-sal 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.

288 Shaw, ibid.

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3. concLusion

The 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 pos-sibility 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 com-prehensive study by a respected body of international lawyers. The fact that the obliga-tion 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.

The 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 guide-lines that may assist States in interpreting the particular version of the obligation that con-cerns them. These could encourage a more flexible approach, allowing particular features of each treaty to be taken into consideration.290

The General Assembly has already repeated the ILC’s request for States to provide infor-mation 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

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 for-mat 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.

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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.

Likewise, 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.

Whether 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.

In 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 sub-mit 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 authori-ties. The ILC may well qualify such a discretion by determining that any decision to

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.

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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.

In 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 preju-dice to the interaction of amnesties, pardons and immunities and the extradite or pros-ecute obligation, it will no doubt be conscious of the greater debate.

The 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.

Whether 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 pros-ecute even if there has been no extradition request.

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coNclUSIoN

Finally, 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 juris-dictional clause by reference to other State parties.

It is also hoped that the ILC will take the opportunity to draft a model aut dedere aut judi-

care 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 extra-dite. 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 tribu-nal whose jurisdiction it has recognised, or surrender him or her to another State in accor-dance 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.

Whatever 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 criminaliz-ing conduct has given it a much more central role in this fight.

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4. seLect bibLioGRAPhy

4.1 BookS

Bantekas, I., and Nash, S., International Criminal Law (2nd ed.), London, Cavendish Pub-lishing Limited, 2003.

Bassiouni, M.C., and Wise, E.M., Aut Dedere Aut Judicare: The Duty to Extradite or

Prosecute in International Law, Dordrecht, Martinus Nijhoff Publishers, 1995.Bassiouni, M.C., International Extradition: United States Law and Practice, New York,

Oceana Publications, 2002.Bassiouni, M.C., International Criminal Law Conventions and their Penal Provisions,

New York, Transnational Publishers, Inc., 1997.Brody, R. and Ratner, M., The Pinochet Papers: The Case of Augusto Pinochet in Spain

and Britain, The Hague, Kluwer Law International, 2000.Broomhall, B., International Justice and the International Criminal Court: Between Sov-

ereignty and the Rule of Law, Oxford, Oxford University Press, 2003.Brownlie, I., Principles of Public International Law (6th ed.), Oxford, Oxford University

Press, 2003.Burgers, J.H. and Danelius, H., The United Nations Convention against Torture: A Hand-

book on the Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, Dordrecht, Martinus Nijhoff Publishers, 1998.Cassese, A., International Law (2nd ed.), Oxford, Oxford University Press, 2005.Cassese, A., International Criminal Law, Oxford, Oxford University Press, 2003.Crawford, J., International Law Commission’s Draft Articles on State Responsibility:

Introduction, Text and Commentaries, Cambridge, Cambridge University Press, 2002.Dixon, M., and McCorquodale, R., Cases and Materials on Internaitonal Law (4th ed.),

Oxford, Oxford University Press, 2003.Gilbert, G., Responding to International Crime, Leiden, Koninklijke Brill NV, 2006.Gilbert, G., Transnational Fugitive Offenders in International Law: Extradition and

Other Mechanisms, The Hague, Martinus Nijhoff Publishers, 1998.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.Henckaerts, J.-M., and Doswald-Beck, L., Customary International Humanitarian Law,

Volume 1: Rules, Cambridge, Cambridge University Press, 2005.

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Higgins, R., Problems and Process: International Law and How We Use It, Oxford, Clar-endon Press, 1984.

Holmström, L., Conclusions and Recommendations of the UN Committee Against Tor-

ture; Eleventh to Twenty-second Sessions (1993-1999), The Hague, Martinus Nijhoff Publishers, 2000.

Lauterpacht, H., Oppenheim’s International Law: A Treatise. Vol. II: Disputes, War and

Neutrality, (7th ed.), London, Longmans, 1952.Malanczuk, Peter, Akehurst’s Modern Introduction to International Law (7th ed.), London,

Routledge, 1997Meron, T., Human Rights and Humanitarian Norms as Customary Law, Oxford, Claren-

don Press, 1989.Paust, J. et al, International Criminal Law: Cases and Materials, Durham, N.C., Carolina

Academic Press, 2000.Pictet, J.S., Commentary: IV Geneva Convention Relative to the Protection of Civilian

Persons in Time of War, Geneva, ICRC, 1958,.Quigley, J., The Genocide Convention: An International Law Analysis, Aldershot, Ashgat

, 2006.Reydams, L., Universal Jurisdiction: International and Municipal Legal Perspectives,

Oxford, Oxford University Press, 2003.Roht-Arriaza, N., The Pinochet Effect: Transnational Justice in the Age of Human Rights,

Philadelphia, University of Pennsylvania Press, 2006.Schabas, W.A., Genocide in International Law: The Crime of Crimes, Cambridge, Cam-

bridge University Press, 2000.Shaw, M.N., International Law, Cambridge, Cambridge University Press, 2003.Shearer, I.A., Extradition in International Law, Manchester, University of Manchester

Press, 1970.Sunga, L.S., The Emerging System of International Criminal Law, Developments in Codi-

fication and Implementation, The Hague, Kluwer Law International, 1de Vattel, The

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

Werle, G, Principles of International Criminal Law, The Hague, T.M.C. Asser Press, 2005.

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4.2 ArTICleS And ConTrIBuTIonS To ColleCTIonS

Amerasinghe, C.A., “National Prosecutions for International Crimes: The Canadian Experience”, in Bassiouni, M.C., International Criminal Law (2nd ed.), Vol. III –

Enforcement, New York, Transnational Publishers Inc., 1999, pp 243-272.Bassiouni, M.C., “Searching for Peace and Achieving Justice: The Need for Accountabil-

ity”, 59 Law and Contemporary Problems, 1996, pp. 9-28.Bassiouni, M.C., “International Crimes: Jus Cogens and Obligatio Erga Omnes”, 59 Law

and Contemporary Problems, 1996, pp. 63-74.Bassiouni, M.C., “Universal Jurisdiction for International Crimes: Historical Perspectives

and Contemporary Practice”, 42 Virginia Journal of International Law, pp. 81-162.Baxter, “Multilateral Treaties as Evidence of Customary International Law”, 41 British

Yearbook of International Law, 1965-1966, pp. 275-300.Baxter, “Treaties and Custom” 129 Receuil des cours, 1970-I, 27.Bin Cheng, “Aviation, Criminal Jurisdiction and Terrorism: The Hague Extradition/

Prosecution Formula and Attacks at Airports”, in Bin Cheng and Brown, E.D. (eds), Contemporary Problems of International Law; Essays in Honour of Georg Schwar-

zenberger on his Eightieth Birthday, London, Stevens and Sons, 1988, pp. 25-53.Benavides, L., “The Universal Jurisdiction Principle: Nature and Scope”, 1 Anuario Mex-

icano de Derecho Internacional, 2001, pp.19-96.Blakesly, C., “Extraterritorial Jurisdiction”, in Bassiouni, M.C., International Criminal

Law (2nd ed.), Vol. II – Procedural and Enforcement Mechanisms, New York, Transna-tional Publishers Inc., 1989, pp. 33-105.

Blewitt, G.T., “National Prosecutions for International Crimes: The Australian Experi-ence”, in Bassiouni, M.C., International Criminal Law (2nd ed.), Vol. III – Enforce-

ment, New York, Transnational Publishers Inc., 1999, pp 301-324.Broomhall, B., “Towards the Development of an Effective System of Universal Jurisdic-

tion for Crimes under International Law”, 35 New England Law Review, 2001, pp. 401-420.

Brown, B.S., “The Evolving Concept of Universal Jurisdiction”, 35 New England Law

Review, 2001, pp. 384-397.Busuttil, J.J., “The Bonn Declaration on International Terrorism: A Non-Binding Inter-

national Agreement on Aircraft Hijacking”, 31 International and Comparative Law

Quarterly, 1982, pp. 474-487.Chamberlain, K., “Collective Suspension of Air Services with States which Harbour

Hijackers”, 32 International and Comparative Law Quarterly, 1983, pp. 616-632.

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SelecT BIBlIoGraphy

Clark, R.S., “Apartheid” in Bassiouni, M.C., International Criminal Law (2nd ed.), Vol. I –

Crimes, New York, Transnational Publishers Inc., 1999, pp 643-662.Cosnard, M., “La competence universelle en matière pénale”, in Tomuschat, C., and

Thouvenin, J-M., The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes, Leiden, Martinus Nijhoff Publishers, 2006, pp. 355-372.

Costello, D., “International Terrorism and the Development of the Principle of Aut

Dedere Aut Judicare”, 10 Journal of International Law and Economics, 1975, pp. 483-501.

Dinstein, Y., “Criminal Jurisdiction over Aircraft Hijacking”, 7 Israel Law Review, 1972, pp. 195-206.

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

Enache-Brown, C. and Fried, A., “Universal Crime, Jurisdiction and Duty: The Obliga-tion of Aut Dedere Aut Judicare in International Law”, 43 McGill Law Journal, 1998, p.613-633.

Feller, S.Z., “Comment on ‘Criminal Jurisdiction over Aircraft Hijacking’”, 7 Israel Law

Review, 1972, pp. 207-213.Feller, S.Z., “The Legal Position of Israel as Requested State which Refuses Extradition”,

in Goldstein, S., Israeli Reports to the XI International Congress of Comparative Law Jerusalem, The Harry Sacher Institute for Legislative Research and Comparative Law, 1982, pp. 329-347.

Freestone, D., “International Cooperation Against Terrorism and Development of Interna-tional Law Principles of Jurisdiction”, in Higgins, R., and Flory, M., (eds), Terrorism

and International Law, London, Routeledge, 1997, pp. 50-67.Garwood-Cutler, J.L., “National Prosecutions for International Crimes: The British Expe-

rience”, in Bassiouni, M.C., International Criminal Law (2nd ed.), Vol. III – Enforce-

ment, New York, Transnational Publishers Inc., 1999, pp 325-329.Goodwin-Gill, G.S., “Crime in International Law: Obligations Erga Omnes and the Duty

to Prosecute”, in Goodwin-Gill, G.S. and Talmon, S. (eds), The Reality of Interna-

tional Law; Essays in Honour of Ian Brownlie, Oxford, Clarendon Press, 1999, pp. 198-223.

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

Guillaume, G., “Terrorism and International Law”, 53 International and Comparative

Law Quarterly, 2004, pp. 537-548.

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Higgins, “The General International Law of Terrorism”, in Higgins, R., and Flory, M., (eds), Terrorism and International Law, London, Routeledge, 1997, pp. 13-29.

Jennings, R.Y., “General Course on Principles of International Law”, Receuil des Cours, (1967), vol. 121.

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

Kamminga, M.T., “Lessons Learnt from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses”, 23 Human Rights Quarterly, 2001, pp. 940-974.

Keijzer, N., “Aut dedere, aut judicare”, in Ulrich, H. and D’Oliveira, J. (eds.), Nether-

lands Reports to the XIth International Congress of Comparative Law, Caracas 1982, Deventer, Kluwer Law and Taxation Publishers, 1982, pp. 411-417.

Kelly, M.J., “Cheating Justice by Cheating Death: The Doctrinal Collision for Prosecut-ing Foreign Terrorists – Passage of Aut Dedere Aut Judicare into Customary Law and Refusal to Extradite Based on the Death Penalty”, 20 Arizona Journal of Interna-

tional and Comparative Law, 2003, pp. 491-532.Kolb, R., “The Exercise of Criminal Jurisdiction over International Terrorists”, in Bian-

chi, A. (ed), Enforcing International Law Norms Against Terrorism, Oxford, Hart Publishing, 2004, pp. 227-281.

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

Lee, A., “International Suppression of Hijacking”, in Bassiouni, M.C., International Ter-

rorism and Political Crimes, Springfield, Charles C Thomas, 1975, pp. 248-256.Mankiewicz, R., “The 1970 Hague Convention”, 37 Journal of Air Law and Commerce,

1971, pp. 195-210.Mann, F.A., “The Doctrine of Jurisdiction in International Law”, Receuil des Cours,

1964, vol. 111. A.W.Sithoff, Leyde (Pay-Bas), pp. 9-162.Mann, F.A., “The Doctrine of International Jurisdiction revisited after twenty years”,

Receuil des Cours, 1984, vol. III (tome 186), The Hague, Martinus Nijhoff Publish-ers, 1985, pp. 9-116.

Marks, S., “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.

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Marong, A., “The ICTR Appeals Chamber Dismissed the Prosecutor’s Appeal to Transfer Michel Bagaragaza for Trial to Norway”, ASIL Insight, Volume 10, Issue 25, 3 Octo-ber 2006.

Marong, A., “The ICTR transfer Michel Bagaragaza to the Netherlands for Trial”, ASIL

Insights, Volume 12, Issue 5, 18 June 2007. Meintjes, G., and Méndez, J.E., “Reconciling Amnesties with Universal Jurisdiction”, 2

International Law Forum, 2000, pp. 76-97.Meron, T., “Non-Extradition of Israeli Nationals and Extraterritorial Jurisdiction: Reflec-

tions on Bill No. 1306”, 13 Israeli Law Review, 1978, pp.215-229.Meselson, M. and Robinson, J.P., “A Draft Convention to Prohibit Biological and Chemi-

cal 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.

Morris, M., “International Guidelines Against Impunity: Facilitating Accountability”, 59

Law and Contemporary Problems, 1996, pp. 29-40.Naqvi, Y., “Amnesty for War Crimes: Defining the limits of international recognition”, 85

International Review of the Red Cross, 2003, 583-625.Pisani, M., “Le refus de l’extradition à l’étranger et les activités juridictionnelles qui en

decoulent”, Rapports nationaux italiens au XIeme Congres International de Droit

Comparé, Milano, Guiffrè Editore, 1982, pp. 549-571.Plachta, M., “Extradition and the Principle Aut Dedere Aut Judicare in the New Polish

Legislation”, 6 European Journal of Crime, Criminal Law and Criminal Justice,

1998, pp. 94-105.Plachta, M., “Aut Dedere Aut Judicare: An Overview of Modes of Implementation and

Approaches”, 6 Maastricht Journal of European and Comparative Law, 1999, pp. 332-365.

Plachta, M., “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.

Randall, K.C., “Universal Jurisdiction Under International Law”, 66 Texas Law Review, 1988, pp. 785-841.

Reydams, L., “A Conundrum Posed by U.S. Anti-Terrorism Policy”, ASIL Insights, Vol, 10, Issue 26, 16 October 2006.

Roht-Arrizia, N., “The Pinochet Principle and Universal Jurisdiction”, 35 New England

Law Review, 2001, pp. 311-319.

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Roht-Arriaza, N., “Combating Impunity: Some Thoughts on the Way Forward”, 59 Law

and Contemporary Problems, 1996, pp. 93-102.Rubin, A.P., “Actio Popularis, Jus Cogens and Offenses Erga Omnes?” 35 New England

Law Review, 2001, pp. 265-280.Sadat, L.N., “Redefining Universal Jurisdiction”, 35 New England Law Review, 2001, pp.

241-263.Sadat Wexler, L., “National Prosecutions for International Crimes: The French Experi-

ence”, in Bassiouni, M.C., International Criminal Law (2nd ed.), Vol. III – Enforce-

ment, New York, Transnational Publishers Inc., 1999, pp 273-300.Scharf, M.P., “Application of Treaty-Based Universal Jurisdiction to Nationals of Non-

Party States”, 35 New England Law Review, 2001, pp. 363-382.Schutte, J., “Enforcement Measures in International Criminal Law”, 52 Revue Internatio-

nale de Droit Pénal, 1981, pp. 441-453.Shachor-Landau, C., “Extraterritorial Penal Jurisdiction and Extradition”, 29 Interna-

tional and Comparative Law Quarterly, 1980, pp. 274-295.Steven, L.A., “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.

Tabassi, L., “Legal assistance under the Chemical Weapons Convention: An Optional Protocol to the Convention?”, in Yepes-Enríquez, R. and Tabassi, L. (eds.), Treaty

Enforcement and International Cooperation in Criminal Matters, with special refer-

ence to the Chemical Weapons Convention, The Hague, T.M.C. Asser Press, 2002, pp. 470-475.

Van den Wyngaert, C., “National Prosecutions for International Crimes: War Crimes, Genocide and Crimes Against Humanity – Are States Taking National Prosecutions Seriously?”, in Bassiouni, M.C., International Criminal Law (2nd ed.), Vol. III –

Enforcement, New York, Transnational Publishers Inc., 1999, pp 227-341.van Elst, R., “Implementing Universal Jurisdiction Over Grave Breaches of the Geneva

Conventions”, 13 Leiden Journal of International Law, 2000, pp. 815-854.White, G.M.E., “The Hague Hi-Jacking Convention”, 6 The Review International Com-

mission of Jurists, 1971, pp. 38-45.Wise, E., “The Obligation to Extradite or Prosecute”, 27 Israel Law Review, 1993, pp.

268-287.Wise, E., “Extradition: The Hypothesis of a Civitas Maxima and the Maxim Aut Dedere

Aut Judicare”, 62 Revue Internationale de Droit Pénal, 1991, pp. 109-134.

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Zaid, M.S., “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.Zaid, M.S., “National Prosecutions for International Crimes: The U.S. War Crimes Act of

1996”, in Bassiouni, M.C., International Criminal Law (2nd ed.), Vol. III – Enforce-

ment, New York, Transnational Publishers Inc., 1999, pp 331-341.Zimmermann, A., “Violations of Fundamental Norms of International Law and the Exer-

cise of Universal Jurisdiction in Criminal Matters”, in Tomuschat, C., and Thouvenin, J-M., The Fundamental Rules of the International Legal Order: Jus Cogens and Obli-

gations Erga Omnes, Leiden, Martinus Nijhoff Publishers, 2006, pp. 335-353.

4.3 CASelAw

International jurisdictions

Permanent Court of International Justice:Lotus case (1927) PCIJ, Ser. A, No. 10.

International court of Justice

Asylum Case (Columbia v. Peru) (Haya de la Torre Case) (Judgement) ICJ Reports (1950) 266.

South West Africa Case ICJ Reports (1966) 248.North Sea Continental Shelf Cases (Federal Republic of Germany/Netherlands and Fed-

eral Republic of Germany/Denmark) ICJ Reports (1969) 3.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.

Barcelona Traction, Light and Power Company Case (Belgium v. Spain) ICJ Reports (1970) 3.

Continental Shelf (Libyan Arab Jamahiriya/Malta) ICJ Reports (1985) 13.Nicaragua v. United States, ICJ Reports (1986) 14.Case Concerning Questions of Interpretation and Application of the 1971 Montreal Con-

vention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.

United Kingdom) ICJ Reports (1992) 3.

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Case Concerning Questions of Interpretation and Application of the 1971 Montreal Con-

vention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.

United States of America) ICJ Reports (1992) 114.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.Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996)

226.Case concerning the application of the Convention on the Prevention and Punishment of

the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), (Preliminary Objec-

tions) ICJ Reports (1996) (II) 616.Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo

v. Belgium) ICJ Reports (2002) 3.Armed Activities on the Territory of the Congo (New Application 2002) (Democratic

Republic of the Congo v. Rwanda, judgement on the merits given 3 February 2006. Case concerning the application of the Convention on the Prevention and Punishment of

the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) judge-ment on the merits given 27 February 2007.

International criminal Tribunal for the former yugoslavia

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, 29 Octo-ber 1997.

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

International criminal Tribunal for rwanda

Prosecutor v. Michel Bagaragaza (Decision on Prosecution Motion for Referral to the

Kingdom of Norway, Rule 11bis of The Rules of Procedure and Evidence), ICTR-2005-86-11bis, 13 April 2007.

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.

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SelecT BIBlIoGraphy

european court of human rights

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

Municipal jurisdictions

Public Prosecutor v. Milan T ,Oberste Gerichtshof, 29 May 1958, reprinted in Oberste Gerischtshof, Serie Strafsachen XXIX, No. 32; (1963) 28 International Legal Review 341.

Fédération Nationale des Déportés et Internés Résistants et Patriotes et al v. Barbie, 78 International Law Reports 125 (1985).

Polyukhovitch v. The Commonwealth (1991) 172 C.L.R. 501.R v. Finta 1 S.C.R. 701 (1994).Nulyarimma v. Thompson [1999] FCA 1192; 39 ILM (2000), 20Bartle v. the Commissioner of Police for the Metropolis & Others; ex parte Pinochet

(Pinochet 3) [1999] 2 All E.R. 97.Government of The Russian Federation v. Akhmed Zakaev, Bow Street Magistrates Court

(Senior District Judge Workman), 13 November 2003 (unreported).R v. Zardad, London Central Criminal Court (Old Bailey) 18 July 2005 (unreported),

case comment available at <<http://www.redress.org/news/Zardad%20Case%20Com-ment%2019%20July%202005.pdf>>(accessed 5 August 2007).

Conclusion du Ministere Public, Instance Pénale, Affaire no67/RG/2000, Dakar, 3 janvier

2001, Senegal, Cours de Cassation, (available from <<http://www.hrw.org/french/themes/habre-ministere_public.html>> (accessed 5 August 2007).

4.4 TreATIeS

International Treaties and Conventions

International Convention for the Suppression of Counterfeiting Currency, 20 April 1929, 112 LNTS 371.

Convention for the Suppression of the Illicit Traffic in Dangerous Drugs, 26 June 1936, 198 LNTS 299.

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31.

Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Ship-wrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85.

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Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135.

Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287,

Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 21 March 1950, 96 UNTS 316.

Single Convention on Narcotic Drugs, 30 March 1961, 520 UNTS 20Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 3314. Hague Convention for the Suppression of Unlawful Acts against the Safety of Civil Avia-

tion, 23 September 1971, 974 UNTS, 177.Convention on Psychotropic Substances, 21 February 1971, 1019 UNTS 175.Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 23

September 1971, 974 UNTS 177.International Convention for the Suppression and Punishment of the Crime of Apartheid,

30 November 1973, 1015 UNTS 243.Convention on the Prevention and Punishment of Crimes against Internationally Pro-

tected Persons Including Diplomatic Agents, 14 December 1973, 1035 UNTS 167.Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the

Protection of Victims of International Armed Conflicts (Additional Protocol I), 8 June 1977, 125 UNTS 3.

International Convention Against the Taking of Hostages, 7 December 1979, 1316 UNTS 205.

Convention on the Physical Protection of Nuclear Material, 3 March 1980, 1456 UNTS 101.

UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85.

Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention), 24 February 1988, 1589 UNTS 474.

Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Naviga-tion, 10 March 1988, 1678 UNTS 221.

Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf - Protocol to the Convention for the Suppression of Unlawful Acts Against Maritime Navigation, 10 March 1988, 1678 UNTS 304.

United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, 38 ILM 493.

Basel Convention on Control of Transboundary Movements of Hazardous Wastes and their Disposal, 22 March 1989, 1673 UNTS 126.

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SelecT BIBlIoGraphy

International Convention Against the Recruitment, Use, Financing and Training of Mer-cenaries, 4 December 1989, 2163 UNTS 75.

Convention for the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 13 January 1993, 32 ILM 800 (1993).

Convention on the Safety of United Nations and Associated Personnel, 9 December 1994, 2051 UNTS 363.

International Convention for the Suppression of Terrorist Bombings, 15 December 1997, 2149 UNTS 256.

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.

Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, 26 March 1999, UNESCO Doc. HC/1999/7.

International Convention on the Suppression of Financing of Terrorism, 9 December 1999, UN Doc. No. A/RES/54/109.

Optional Protocol to the Convention on the Rights of the Child on the Sale of Chil-dren, Child Prostitution and Child Pornography, 25 May 2000, UN Doc. No. A/RES/54/263.

UN Convention against Transnational Organised Crime, 15 November 2000, UN Doc. No. A/Res/55/25.

UN Convention against Corruption, 13 October 2003, UN Doc. No. A/58/422.International Convention for the Suppression of Acts of Nuclear Terrorism, 13 April

2005, UN Doc. No. A/Res/59/290.International Convention for the Protection of All Persons from Enforced Disappearance,

20 December 2006, UN Doc. No. A/Res/61/177.Draft Convention for the Prevention and Punishment of Terrorism, 16 November 1937,

19 League of Nations O.J. 23 (1938).

regional Treaties and Conventions

Second Montevideo Convention on Extradition, 26 December 1933, 165 LNTS 46. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December

1948, 78 UNTS 277.Arab League Extradition Agreement, 15 September 1952. 159 BFSP 606.European Convention on Extradition, 13 December 1957, ETS No. 024.

100 |


OAS Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of International Significance, 2 Febru-ary 1971, 1483 UNTS 195.

European Convention on the Suppression of Terrorism, 27 January 1977, Europ.TS No. 90

Convention of the OAU for the Elimination of Mercenarism in Africa.3 July 1977, 1490 UNTS 95.

Inter-American Convention on Extradition, 25 February 1981, OAS Treaty Series, No.60. Inter-American Convention to Prevent and Punish Torture, 9 December, 1985, OAS

Treaty Series No.67.SAARC Regional Convention on Suppression of Terrorism, 4 November 1987, available

at <http://untreaty.un.org/English/Terrorism.asp> (accessed 5 August 2007).Bamako Convention on the Ban of the Import into Africa and the Control of Transbound-

ary Movement and Management of Hazardous Wastes within Africa, 30 January 1991, 2102 UNTS 242.

Inter-American Convention on International Traffic in Minors, 18 March 1994, OAS Treaty Series, No.79.

Inter-American Convention on Forced Disappearance of Persons, 9 June 1994, Inter-American Treaty No. A-60.

Inter-American Convention Against Corruption, 29 March 1996, Inter-American Treaty No. B-58.

Inter-American Convention against the Illicit Manufacturing of and Trafficking in Fire-arms, Ammunition, Explosives, and Other Related Materials, 14 November 1997, Inter-American Treaty No. A-63.

Arab Convention on the Suppression of Terrorism, 22 April 1998, available at <http://untreaty.un.org/English/Terrorism.asp> (accessed 18 June 2007).

Convention of the Organization of the Islamic Conference on Combating International Terrorism, 1 July 1999, available at <http://untreaty.un.org/English/Terrorism.asp> (accessed 5 August 2007).

OAU Convention on the Prevention and Combating of Terrorism, 14 July 1999, 2219 UNTS 208.

Council of Europe’s Criminal Law Convention on Corruption, 27 January 1999, Council of Europe Treaty Series No. 173.

Council of Europe’s Convention on Cyber-crime, 23 November 2001, Council of Europe Treaty Series No. 185

African Union Convention on Preventing and Combating Corruption, 11 July 2003, avail-able at <www.africa-union.org> (accessed 5 August 2007).

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| 101

SelecT BIBlIoGraphy

Additional Protocol to the SAARC Regional Convention on Suppression of Terrorism, 6 January 2004.

Council of Europe Convention on the Prevention of Terrorism, 16 May 2005, Council of Europe Treaty Series No.196.

Council of Europe Convention on Action Against Trafficking in Human Beings, 16 May 2005, Council of Europe Treaty Series No. 197.

Bilateral Treaties

US-UK Extradition Treaty, signed 31 March 2003.

4.5 oTher AGreeMenTS

The Bonn Declaration on International Terrorism, (1978) 17 International Legal Materi-

als 1285.

4.6 unITed nATIonS doCuMenTS

foundation documents and Statutes

Charter of the United Nations.

Statute of the International Court of Justice.

Statute of the International Criminal Tribunal for the Former Yugoslavia, 25 May 1993, UN Doc. S/RES/827 (1993).

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.

Statute of the International Tribunal for Rwanda, 8 November 1994, UN Doc. No. S/RES/955 (1994).

Security Council resolutions

S/RES/748 (1992), 31 March 1992.S/RES/1054 (1996), 26 April 1996.S/RES/1267 (1999), 15 October 1999.S/RES/1269 (1999), 19 October 1999.S/RES/1333 (2000), 19 December 2000.

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S/RES/1373, 12 November 2001.S/RES/1456 (2003), 20 January 2003.S/RES/1502 (2003), 26 August 2003.S/RES/1566 (2004), 8 April 2004.S/RES/1624 (2005), 14 September 2005.S/RES/1674 (2006), 28 April 2006.S/RES/1738 (2006), 23 December 2006.

General Assembly resolutions

GA Resol. 2840 (XXVI), 18 December 1971.GA Resol. 3074 (XXVIII), 3 December 1973.A/RES/34/145, 17 December 1979.A/RES/38/130, 19 December 1983.A/RES/40/61, 9 December 1985.A/RES/42/159, 7 December 1987.A/RES/44/29, 4 December 1989.A/RES/46/51, 9 December 1991.A/RES/47/133, 18 December 1992.A/RES/49/60, 17 February 1995.A/RES/51/210, 16 January 1997.A/RES/51/60, 28 January 1997.A/RES/54/164, 24 February 2000.A/RES/56/160, 13 February 2002.A/RES/60/147, 21 March 2006.A/RES/60/288, 20 September 2006.A/RES/61/34, 18 December 2006.

International law Commission documents

Yearbook of the International Law Commission, 1949, Vol. I, UN Doc. No. A/CN.4/13 and Corr 1-3.

Yearbook of the International Law Commission, 1972, vol. II,, UN Doc. No. A/CN.4/L.182.

Report of the International Law Commission on the work of its 46th Session, 2 May-22

July 1994, UN Doc. No. A/49/10, 1 September 1994.

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Preliminary Report on the Law and Practice Relating to Reservations to Treaties, UN Doc. No. A/C.N.4/470, 30 May 1995.

Report of the International Law Commission on the work of its forty-eighth session”,

May 26 July 1996, Official Records of the General Assembly, Fifty-first session, Sup-plement No.10, UN Doc. No. A/51/10.

“Articles on Responsibility of States for Internationally Wrongful Acts”, in Report of the

International Law Commission on the Work of Its Fifty-third Session, Official Records of the General Assembly, AOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001).

Galicki, Z., Preliminary report on the obligation to extradite or prosecute (“aut dedere aut judicare”), 7 June 2006, UN Doc. No. A/CN.4/571.

Report of the International Law Commission on the work of its fifty-eighth session (2006), UN Doc. No. A/61/10.

The obligation to extradite or prosecute (aut dedere aut judicare) Comments and informa-

tion received from Governments, 5 March 2007, UN Doc. No. A/CN.4/579, and the Addendums thereto, 30 April 2007, UN Doc. No. A/CN.4/579/Add.1; 5 June 2007, UN Doc. No. A/CN.4/579/Add.2; 2 July 2007, UN Doc. No. A/CN.4/579/Add.3; 11 July 2007, A/CN.4/579/Add.4.

Galicki, Z., Second report on the obligation to extradite or prosecute (aut dedere aut judi-care), 11 June 2007, A/CN.4/585

other documents

Yearbook of the United Nations, 1948-49, New York, Columbia University Press, 1950.Third periodic report of Egypt to the Committee against Torture, U.N. Doc. CAT/C/34/

Add.11, 28 January 1999.Report of the Ad Hoc Committee on the Elaboration of a Convention against Transna-

tional 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.Supplementary report by Italy to the Counter-Terrorism Committee pursuant to Security

Council resolution 1373 (2001), S/2003/724, 18 July 2003.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 Janu-ary 2004.

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Report of the intersessional open-ended working group to elaborate a draft legally bind-

ing normative instrument for the protection of all persons from enforced disappear-

ance, UN Doc. No. E/CN.4/2004/59, 24 February 2004.Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 10, UN

Doc. No. A/59/10, 16 September 2004.Decision of the Committee Against Torture under Article 22 of the Convention Against

Torture and other Cruel, Inhuman or Degrading Treatment and Punishment, Commu-nication 18/2001, 19 May 2006, UN Doc. No. CAT/C/36/D/181/2001.

Note by the Secretary General: Ensuring the accountability of United Nations staff and

experts on mission with respect to criminal acts committed in peacekeeping opera-

tions, UN Doc.No. A/60/980, 16 August 2006.Process Verbale of 5338th meeting of the Security Council, 28 September 2006, UN Doc.

No. S/PV.5538.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.

4.7 oTher rePorTS or doCuMenTS

Alleged secret detentions and unlawful inter-state transfers of detainees involving Coun-

cil of Europe member states, Report of the Council of Europe’s Committee on Legal Affairs and Human Rights, Doc. 10957, 12 June 2006.

Canada’s Program on Crimes Against Humanity and War Crimes: Eighth Annual Report,

2004-2005, Canada Border Services Agency, Citizenship and Immigration Canada, Department of Justice, Royal Canadian Mounted Police, available at <http://www.cbsa-asfc.gc.ca/security-securite/wc-cg/wc-cg2005-eng.html> (accessed 5 August 2007).

Canada’s Program on Crimes Against Humanity and War Crimes: Ninth Annual Report,

2005-2006, Canada Border Services Agency, Citizenship and Immigration Canada, Department of Justice, Royal Canadian Mounted Police, available at <http://www.cbsa-asfc.gc.ca/security-securite/wc-cg/wc-cg2006-eng.html> (accessed 5 August 2007).

Crimes Against Humanity: Pinochet Faces Justice, International Commission of Jurists, Châteleine, July 1999.

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Council Framework Decision of 13 June 2002 on the European Arrest Warrant and Sur-

render Procedures Between Member States, Official Journal of European Communi-ties L. 190/1, 18 July 2002.

Limits to National Jurisdiction: Documents and Judicial Resolutions on the Alvarez

Machain case, published by the Mexican Secretaria de Relaciones Exteriores (1993).Letter from John B. Bellinger III and William J Haynes to Dr Jakob Kellenberger, Presi-

dent, International Committee of the Red Cross, 9 November 2006, available at <http://www.defenselink.mil/home/pdf/Customary_International_Humanitiarian_Law.pdf> (accessed 5 August 2007).

The relationship between safeguarding internal security and complying with international

protection obligations and instruments”, European Commission Working Paper, 5 December 2001, COM(2001) 743.

Report of the Committee of Eminent African Jurists on the case of Hissene Habré, Afri-can Union, July 2006, available at <http://hrw.org/justice/habre/>, (accessed 5 August 2007).

Report on Concerns in Europe, July to December 1998, 1 April 1999, AI Index: EUR 01/001/1999.

Resolution 1507(2006): Alleged Secret Detentions and Unlawful Inter-state Transfers of

Detainees involving Council of Europe Member States, Parliamentary Assembly of the Council of Europe, 27 June 2006.

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crimes, crimes against humanity, torture and genocide, Redress, 30 June 1999, avail-able at <http://www.redress.org/Universal_jurisdiction.html> (accessed 5 August 2007).

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Universal Jurisdiction: The Duty of States to Enact and Implement Legislation, Amnesty International, September 2001, AI Index No. IOR53/002/2001, available at <http://web.amnesty.org/pages/legal_memorandum> (accessed 5 August 2007).

4.8 weBSITeS And dATABASeS

Human Rights Watch, L’affaire Habré, available at <www.hrw.org/french/themes/habre.htm>, (accessed 5 August 2007).

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base of National Implementation, available at <http://www.icrc.org/ihl-nat.nsf/WebALL!OpenView>, (accessed 5 August 2007).

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T.M.C. Asser Institute for International Law, Website of International Humanitarian Law, available at <http://www.wihl.nl/>, (accessed 5 August 2007).

4.9 newSPAPer ArTICleS

Benn, “PM to UK: Enact law prohibiting IDF officers’ arrest in Britain”, Haaretz, 8 Feb-ruary 2007.

“Chechen Envoy Granted UK Asylum”, BBC News, 29 November 2003, available at <<http://news.bbc.co.uk/2/hi/uk_news/3249474.stm>>,(accessed 5 August 2007).

“City was Home to a Terrorist with $25m Price on his Head”, Times (London), 16 January 2003.

“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).

“UK Accused of Hypocrisy on Terror”, BBC News, 13 November 2003, available at <http://news.bbc.co.uk/2/hi/uk_news/3269385.stm>, (accessed 5 August 2007).

Kampschror, “Bosnian Serbs deported by US are indicted for war-crimes”, Christian Sci-

ence Monitor”, 29 December 2006, p.25.“Bosnian Serbs ‘lied about past’”, BBC News, 16 December 2006, available at <http://

news.bbc.co.uk/2/hi/europe/6185309.stm> (accessed 5 August 2007).Lelyveld, J., “South Africa to try mercenaries in hijacking”, New York Times, 6 January

1982McAllister, “Detainee suspected in massacre”, Newsday (New York), 18 December 2006,

p. A05.“Norwegian police arrest second Bosnian war crimes suspect in two weeks”, Interna-

tional Herald Tribune, 8 May 2007.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).Swain, J., “UK genocide suspect face Rwanda trial”, The Sunday Times, 12 November

2006.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.Weaver and Chardy, “Judge drops charges against Posada”, Miami Herald, 8 May 2007.

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Annexes

Annex 1 MulTIlATerAl TreATIeS ConTAInInG An exTrAdITe or ProSeCuTe ClAuSe

Multilateral conventions

No. 1 Treaty: International convention for the protection of all persons from enforced Disappearance

Ref. No. UN Doc. No. A/Res/61/177Date 20.12.2006GA Res. adopting treaty A/Res/61/177Date in force Not yet in forceNo. States Parties (at 01.08.2007) –Extradite or prosecute clause:

A.9(2). Each State Party shall likewise take such measures as may be necessary to estab-lish its competence to exercise jurisdiction over the offence of enforced disappearance when the alleged offender is present in any territory under its jurisdiction, unless it extradites or surrenders him or her to another State in accordance with its interna-tional obligations or surrenders him or her to an international criminal tribunal whose jurisdiction it has recognized.

A.10(1). Upon being satisfied, after an examination of the information available to it, that the circumstances so warrant, any State Party in whose territory a person suspected of having committed an offence of enforced disappearance is present shall take him or her into custody or take such other legal measures as are necessary to ensure his or her presence. The custody and other legal measures shall be as provided for in the law of that State Party but may be maintained only for such time as is necessary to ensure the person’s presence at criminal, surrender or extradition proceedings.

A.11(1). The State Party in the territory under whose jurisdiction a person alleged to have committed an offence of enforced disappearance is found shall, if it does not extradite that person or surrender him or her to another State in accordance with its interna-tional obligations or surrender him or her to an international criminal tribunal whose

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jurisdiction it has recognized, submit the case to its competent authorities for the pur-pose of prosecution.

A.11(2). These 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 Party. In the cases referred to in article 9, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 9, paragraph 1.

No. 2 Treaty: International convention for the Suppression of acts of Nuclear Terrorism

Ref. No. UN Doc. No. A/Res/59/290. UN Reg. No. 44004.Date 13.04.2005GA Res. adopting treaty A/Res/59/290Date in force Not yet in forceNo. States Parties (at 01.08.2007) 24Extradite or prosecute clause:

A.9(4). Each State Party shall likewise take such measures as may be necessary to estab-lish its jurisdiction over the offences set forth in article 2 in cases where the alleged offender is present in its territory and it does not extradite that person to any of the States Parties which have established their jurisdiction in accordance with paragraph 1 or 2 of the present article.

A.10(1). Upon receiving information that an offence set forth in article 2 has been com-mitted or is being committed in the territory of a State Party or that a person who has committed or who is alleged to have committed such an offence may be present in its territory, the State Party concerned shall take such measures as may be necessary under its national law to investigate the facts contained in the information.

A.10(2). Upon being satisfied that the circumstances so warrant, the State Party in whose territory the offender or alleged offender is present shall take the appropriate mea-sures under its national law so as to ensure that person’s presence for the purpose of prosecution or extradition.

A.11(1). The State Party in the territory of which the alleged offender is present shall, in cases to which article 9 applies, if it does not extradite that person, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that

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State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.

No. 3 Treaty: UN convention against corruption

Ref. No. UN Doc. No. A/58/422. UN Reg. No. 42146.Date 31.10.2003GA Res. adopting treaty A/Res/58/4Date in force 14.12.2005No. States Parties (at 01.08.2007) 95Extradite or prosecute clause:

A.42(3). For the purposes of article 44 of this Convention, each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences established in accordance with this Convention when the alleged offender is present in its territory and it does not extradite such person solely on the ground that he or she is one of its nationals.

A.42(4). Each State Party may also take such measures as may be necessary to establish its jurisdiction over the offences established in accordance with this Convention when the alleged offender is present in its territory and it does not extradite him or her.

A.44(10). Subject to the provisions of its domestic law and its extradition treaties, the requested State Party may, upon being satisfied that the circumstances so warrant and are urgent and at the request of the requesting State Party, take a person whose extra-dition is sought and who is present in its territory into custody or take other appropri-ate measures to ensure his or her presence at extradition proceedings.

A.44(11). A State Party in whose territory an alleged offender is found, if it does not extradite such person in respect of an offence to which this article applies solely on the ground that he or she is one of its nationals, shall, at the request of the State Party seeking extradition, be obliged to submit the case without undue delay to its compe-tent authorities for the purpose of prosecution. Those authorities shall take their deci-sion and conduct their proceedings in the same manner as in the case of any other offence of a grave nature under the domestic law of that State Party. The States Par-ties concerned shall cooperate with each other, in particular on procedural and eviden-tiary aspects, to ensure the efficiency of such prosecution.

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No. 4 Treaty: UN convention against Transnational organised crime

Ref. No. UN Doc. No. A/Res/55/25. UN Reg. No. 39574.Date 15.11.2000GA Res. adopting treaty A/Res/55/25Date in force 29.09.2003No. States Parties (at 01.08.2007) 134Extradite or prosecute clause:

A.15(3). For the purposes of article 16, paragraph 10, of this Convention, each State Party shall adopt such measures as may be necessary to establish its jurisdiction over the offences covered by this Convention when the alleged offender is present in its terri-tory and it does not extradite such person solely on the ground that he or she is one of its nationals.

A.15(4). Each State Party may also adopt such measures as may be necessary to estab-lish its jurisdiction over the offences covered by this Convention when the alleged offender is present in its territory and it does not extradite him or her.

A.16(9). Subject to the provisions of its domestic law and its extradition treaties, the requested State Party may, upon being satisfied that the circumstances so warrant and are urgent and at the request of the requesting State Party, take a person whose extra-dition is sought and who is present in its territory into custody or take other appropri-ate measures to ensure his or her presence at extradition proceedings.

A.16(10). A State Party in whose territory an alleged offender is found, if it does not extradite such person in respect of an offence to which this article applies solely on the ground that he or she is one of its nationals, shall, at the request of the State Party seeking extradition, be obliged to submit the case without undue delay to its compe-tent authorities for the purpose of prosecution. Those authorities shall take their deci-sion and conduct their proceedings in the same manner as in the case of any other offence of a grave nature under the domestic law of that State Party. The States Par-ties concerned shall cooperate with each other, in particular on procedural and eviden-tiary aspects, to ensure the efficiency of such prosecution.

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No. 5 Treaty: optional protocol to the convention on the rights of the child on the Sale of children, child prostitution and child pornography

Ref. No. UN Doc. No. A/RES/54/263Date 25.05.2000GA Res. adopting treaty A/RES/54/263Date in force 18.01.2002No. States Parties (at 01.08.2007) 121Extradite or prosecute clause:

A.4(3). Each State Party shall also take such measures as may be necessary to establish its jurisdiction over the above-mentioned offences when the alleged offender is present in its territory and it does not extradite him or her to another State Party on the ground that the offence has been committed by one of its nationals.

A.5(5). If an extradition request is made with respect to an offence described in article 3, paragraph 1, and if the requested State Party does not or will not extradite on the basis of the nationality of the offender, that State shall take suitable measures to submit the case to its competent authorities for the purpose of prosecution.

No. 6 Treaty: Second protocol to the hague convention of 1954 for the protection of Cultural Property in the Event of Armed Conflict

Ref. No. UNESCO Doc. HC / 1999 / registration with UN - 05.05.2004 - no. 3511Date 26.03.1999GA Res. adopting treaty –Date in force 09.03.2004No. States Parties (at 01.08.2007) 45Extradite or prosecute clause:

A.16(1). Without prejudice to paragraph 2, each Party shall take the necessary legislative measures to establish its jurisdiction over offences set forth in Article 15 in the fol-lowing cases: (a). when such an offence is committed in the territory of that State; (b). when the alleged offender is a national of that State; (c). in the case of offences set forth in Article 15 sub-paragraphs (a) to (c), when the alleged offender is present in its territory.

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A.16(2). With respect to the exercise of jurisdiction and without prejudice to Article 28 of the Convention: (a). this Protocol does not preclude the incurring of individual crimi-nal responsibility or the exercise of jurisdiction under national and international law that may be applicable, or affect the exercise of jurisdiction under customary inter-national law; (b). Except in so far as a State which is not Party to this Protocol may accept and apply its provisions in accordance with Article 3 paragraph 2, members of the armed forces and nationals of a State which is not Party to this Protocol, except for those nationals serving in the armed forces of a State which is a Party to this Pro-tocol, do not incur individual criminal responsibility by virtue of this Protocol, nor does this Protocol impose an obligation to establish jurisdiction over such persons or to extradite them.

A.17(1). The Party in whose territory the alleged offender of an offence set forth in Arti-cle 15 sub-paragraphs 1 (a) to (c) is found to be present shall, if it does not extradite that person, submit, without exception whatsoever and without undue delay, the case to its competent authorities, for the purpose of prosecution, through proceedings in accordance with its domestic law or with, if applicable, the relevant rules of interna-tional law.

No. 7 Treaty: International convention on the Suppression of financing of Terrorism

Ref. No. UN Doc. No. A/RES/54/109. UN Reg. No. 38349.Date 09.12.1999GA Res. adopting treaty A/RES/54/109Date in force 10.04.2002No. States Parties (at 01.08.2007) 158Extradite or prosecute clause:

A.7(4). Each State Party shall likewise take such measures as may be necessary to estab-lish its jurisdiction over the offences set forth in article 2 in cases where the alleged offender is present in its territory and it does not extradite that person to any of the States Parties that have established their jurisdiction in accordance with paragraphs 1 or 2.

A.9(1). Upon receiving information that a person who has committed or who is alleged to have committed an offence set forth in article 2 may be present in its territory, the State Party concerned shall take such measures as may be necessary under its domes-tic law to investigate the facts contained in the information.

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A.9(2). Upon being satisfied that the circumstances so warrant, the State Party in whose territory the offender or alleged offender is present shall take the appropriate mea-sures under its domestic law so as to ensure that person’s presence for the purpose of prosecution or extradition.

A.10(1). The State Party in the territory of which the alleged offender is present shall, in cases to which article 7 applies, if it does not extradite that person, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.

No. 8 Treaty: International convention for the Suppression of Terrorist Bombings

Ref. No. 2149 UNTS 256Date 15.12.1997GA Res. adopting treaty A/RES/52/164Date in force 23.05.2001No. States Parties (at 01.08.2007) 151Extradite or prosecute clause:

A.6(4). Each State Party shall likewise take such measures as may be necessary to estab-lish its jurisdiction over the offences set forth in article 2 in cases where the alleged offender is present in its territory and it does not extradite that person to any of the State Parties which have established its jurisdiction in accordance with paragraph 1 or 2 of the present article.

A.7(1). Upon receiving information that a person who has committed or who is alleged to have committed an offence as set forth in article 2 may be present in its territory, the State Party concerned shall take such measures as may be necessary under its domes-tic law to investigate the facts contained in the information.

A.7(2). Upon being satisfied that the circumstances so warrant, the State Party, in who territory the offender or alleged offender is present shall take the appropriate mea-sures under its domestic law so as to ensure that person’s presence for the purpose of prosecution or extradition.

A.8(1). The State Party in the territory of which the alleged offender is present shall, in cases to which article 6 applies, if it does not extradite that person, be obliged, without exception whatsoever and whether or not the offence was committed in its

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territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.

No. 9 Treaty: convention on the Safety of United Nations and associated personnel


A.10(4). Each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set out in article 9 in cases where the alleged offender is present in its territory and it does not extradite such person pursuant to article 15 to any of the States Parties which have established their jurisdiction in accordance with paragraph 1 or 2.

A.13(1). Where the circumstances so warrant, the State Party in whose territory the alleged offender is present shall take the appropriate measures under its national law to ensure that person’s presence for the purpose of prosecution or extradition.

A.14. The State Party in whose territory the alleged offender is present shall, if it does not extradite that person, submit, without exception whatsoever and without undue delay, the case to its competent authorities for the purpose of prosecution, through proceed-ings in accordance with the law of that State. Those authorities shall take their deci-sion in the same manner as in the case of an ordinary offence of a grave nature under the law of that State.

No. 10 Treaty: International convention against the recruitment, Use, financing and Training of mercenaries

Ref. No. 2163 UNTS 75Date 04.12.1989GA Res. adopting treaty A/RES/44/34Date in force 20.10.2001

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No. States Parties (at 01.08.2007) 30Extradite or prosecute clause:

A.9(2). Each State Party shall likewise take such measures as may be necessary to estab-lish its jurisdiction over the offences set forth in articles 2, 3 and 4 of the present Con-vention in cases where the alleged offender is present in its territory and it does not extradite him to any of the States mentioned in paragraph 1 of this article

A.10(1). Upon being satisfied that the circumstances so warrant, any State Party in whose territory the alleged offender is present shall, in accordance with its laws, take him into custody or take such other measures to ensure his presence for such time as is necessary to enable any criminal or extradition proceedings to be instituted. The State Party shall immediately make a preliminary inquiry into the facts.

A.12. The State Party in whose territory 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, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.

No. 11 Treaty: United Nations Convention Against Illicit Traffic in Narcotic Drugs and psychotropic Substances

Ref. No. 38 ILM 493Date 20.12.1988GA Res. adopting treaty –Date in force 11.11.1990No. States Parties (at 01.08.2007) 183Extradite or prosecute clause:

A.6(8). Subject to the provisions of its domestic law and its extradition treaties, the requested Party may, upon being satisfied that the circumstances so warrant and are urgent, and at the request of the requesting Party, take a person whose extradition is sought and who is present in its territory into custody or take other appropriate mea-sures to ensure his presence at extradition proceedings.

A.6(9). Without prejudice to the exercise of any criminal jurisdiction established in accor-dance with its domestic law, a Party in whose territory an alleged offender is found shall: (a) If it does not extradite him in respect of an offence established in accordance with arti-cle 3, paragraph 1, on the grounds set forth in article 4, paragraph 2, subparagraph (a),

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submit the case to its competent authorities for the purpose of prosecution, unless oth-erwise agreed with the requesting Party; (b) If it does not extradite him in respect of such an offence established in accordance with article 4, paragraph 2, subparagraph (b), submit the case to its competent authorities for the purpose of prosecution, unless otherwise requested by the requesting Party for the purposes of preserving its legiti-mate jurisdiction.

No. 12 Treaty: convention for the Suppression of Unlawful acts against the Safety of maritime Navigation

Ref. No. 1678 UNTS 221Date 10.03.1988GA Res. adopting treaty –Date in force 01.03.92No. States Parties (at 01.08.2007) 144Extradite or prosecute clause:

A.6(4). Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 3 in cases where the alleged offender is present in its territory and it does not extradite him to any of the State Parties which have established their jurisdiction in accordance with paragraphs 1 and 2 of this arti-cle.

A.7(1). Upon being satisfied that the circumstances so warrant, any State Party in the ter-ritory of which the offender or the alleged offender is present shall, in accordance with its law, take him into custody or take other measures to ensure his presence for such time as is necessary to enable any criminal or extradition proceedings to be insti-tuted.

A.7(2). Such State shall immediately make a preliminary inquiry into the facts in accor-dance with its own legislation.

A.10(1). The State Party in the territory of which the offender or the alleged offender is found shall, in cases to which article 6 applies, 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 without delay to its competent authorities for the purpose of prosecution in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.

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No. 13 Treaty: protocol for the Suppression of Unlawful acts against the Safety of fixed platforms located on the continental Shelf


A.1(1). The provisions of articles 5 and 7 and of articles 10 to 16 of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (herein-after «the Convention») shall also apply mutatis mutandis to the offences set forth in article 2 of this Protocol where such offences are committed on board or against fixed platforms located on the continental shelf.

A.1(2). In cases where this Protocol does not apply pursuant to paragraph 1, it never-theless applies when the offender or the alleged offender is found in the territory of a State Party other than the State in whose international waters or territorial sea the fixed platform is located.

A.3(4). Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 2 in cases where the alleged offender is present in its territory and it does not extradite him to any of the State Parties which have established their jurisdiction in accordance with paragraphs 1 and 2 of this arti-cle.

No. 14 Treaty: UN convention against Torture and other cruel, Inhuman or Degrading Treatment or punishment


A.5(2). Each State Party shall likewise take such measures as may be necessary to estab-lish its jurisdiction over such offences in cases where the alleged offender is present

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in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article.

A.6(1). Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal mea-sures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

A.6(2). Such State shall immediately make a preliminary inquiry into the facts. A.7(1). The State Party in the territory under whose jurisdiction a person alleged to have

committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

No. 15 Treaty: convention on the physical protection of Nuclear material


A.8(2). Each State party shall likewise take such measures as may be necessary to estab-lish its jurisdiction over these offences in cases where the alleged offender is present in its territory and it does not extradite him pursuant to article 11 to any of the States mentioned in paragraph 1.

A.9. Upon being satisfied that the circumstances so warrant, the State Party in whose ter-ritory the alleged offender is present shall take appropriate measures, including deten-tion, under its national law to ensure his presence for the purpose of prosecution or extradition. Measures taken according to this article shall be notified without delay to the States required to establish jurisdiction pursuant to article 8 and, where appropri-ate, all other States concerned.

A.10. The State Party, in whose territory the alleged offender is present shall, if it does not extradite him, submit, without exception whatsoever and without undue delay, the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State.

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No. 16 Treaty: International convention against the Taking of hostages


A.5(2). Each State Party shall likewise take such measures as may be necessary to estab-lish its jurisdiction over the offences set forth in article 1 in cases where the alleged offender is present in its territory and it does not extradite him to any of the States mentioned in paragraph 1 of this article.

A.6(1). Upon being satisfied that the circumstances so warrant, any State Party in the territory of which the alleged offender is present shall, in accordance with its laws, take him into custody or take other measures to ensure his presence for such time as is necessary to enable any criminal or extradition proceedings to be instituted. That State Party shall immediately make a preliminary inquiry into the facts.

A.8(1). The State Party 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 authori-ties for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a grave nature under the law of that State.

No. 17 Treaty: protocol additional to the Geneva conventions of 12 august 1949, and relating to the Protection of Victims of International Armed Conflicts (additional protocol I)


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A.85(1). The provisions of the Conventions relating to the repression of breaches and grave breaches, supplemented by this Section, shall apply to the repression of breaches and grave breaches of this Protocol.

No. 18 Treaty: convention on the prevention and punishment of crimes against Internationally protected persons Including Diplomatic agents

Ref. No. 1035 UNTS 167Date 14.12.1973GA Res. adopting treaty A/RES/3166 (XXVIII)Date in force 20.02.1977No. States Parties (at 01.08.2007) 165Extradite or prosecute clause:

A.3(2). Each State Party shall likewise take such measures as may be necessary to estab-lish its jurisdiction over these crimes in cases where the alleged offender is present in its territory and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article.

A.6(1). Upon being satisfied that the circumstances so warrant, the State Party in whose territory the alleged offender is present shall take the appropriate measures under its internal law so as to ensure his presence for the purpose of prosecution or extradition. Such measures shall be notified without delay directly or through the Secretary-Gen-eral of the United Nations to: ...

A.7. The State Party in whose territory the alleged offender is present shall, if it does not extradite him, submit, without exception whatsoever and without undue delay, the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State.

No. 19 Treaty: convention for the Suppression of Unlawful acts against the Safety of civil aviation (montreal convention)

Ref. No. 974 UNTS 177Date 23.09.1971GA Res. adopting treaty –Date in force 26.01.1973No. States Parties (at 01.08.2007) 185

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Extradite or prosecute clause:

A.5(2). Each Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offences mentioned in Article 1, paragraph 1(a), (b) and (c), and in Article 1, paragraph 2, in so far as that paragraph relates to those offences, in the case where the alleged offender is present in its territory and it does not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1 of this Article.

A.6(1). Upon being satisfied that the circumstances so warrant, any State Party in the ter-ritory of which the offender or the alleged offender is present, shall take him into cus-tody or take other measures to ensure his presence. The custody and other measures shall be as provided int he law of that State but may only be continued for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

A.6(2). Such State shall immediately make a preliminary enquiry into the facts.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.

No. 20 Treaty: protocol to the convention for the Suppression of Unlawful acts against the Safety of civil aviation (montreal convention)


A. III. In Article 5 of the Convention, the following shall be added as paragraph 2 bis: “2 bis. Each Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offences mentioned in Article 1, paragraph 1 bis, and in Article 1, paragraph 2, in so far as that paragraph relates to those offences, in the case where the alleged offender is present in its territory and it does not extradite him pursuant to Article 8 to the State mentioned in paragraph 1(a) of this Article.

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No. 21 Treaty: convention on psychotropic Substances


A.22(2)(a)(v). Serious offences heretofore referred to committed either by nationals or by foreigners shall be prosecuted by the Party in whose territory the offence was com-mitted, or by the Party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the Party to which application is made, and if such offender has not already been prosecuted and judgement given.

No. 22 Treaty: convention for the Suppression of Unlawful Seizure of aircraft (hague convention)


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.6(1). Upon being satisfied that the circumstances so warrant, any State Party in the ter-ritory of which the offender or the alleged offender is present, shall take him into cus-tody or take other measures to ensure his presence. The custody and other measures shall be as provided in the law of that State but may only be continued for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

A.6(2). Such State shall immediately make a preliminary enquiry into the facts.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

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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.

No. 23 Treaty: Single convention on Narcotic Drugs


A.36(2)(a)(iv). Serious offences heretofore referred to committed either by nationals or by foreigners shall be prosecuted by the Party in whose territory the offence was com-mitted, or by the Party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the Party to which application is made, and if such offender has not already been prosecuted and judgement given.

No. 24 Treaty: Convention for the Suppression of the Traffic in Persons and of the exploitation of the prostitution of others


A.9. In States where the extradition of nationals is not permitted by law, nationals who have returned to their own State after the commission abroad of any of the offences referred to in articles 1 and 2 of the present Convention shall be prosecuted in and punished by the courts of their own State. This provision shall not apply if, in a simi-lar case between the Parties to the present Convention, the extradition of an alien can-not be granted.

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A.10. The provisions of article 9 shall not apply when the person charged with the offence has been tried in a foreign State and, if convicted, has served his sentence or had it remitted or reduced in conformity with the laws of that foreign State.

No. 25 Treaty: Geneva convention for the amelioration of the condition of the wounded and Sick in armed forces in the field


Art. 49. The High Contracting Parties undertake to enact any legislation necessary to pro-vide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Arti-cle. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, pro-vided such High Contracting Party has made out a prima facie case.

No. 26 Treaty: Geneva convention for the amelioration of the condition of wounded, Sick and Shipwrecked members of armed forces at Sea


Art. 50. The High Contracting Parties undertake to enact any legislation necessary to pro-vide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Arti-

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cle. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, pro-vided such High Contracting Party has made out a prima facie case.

No. 27 Treaty: Geneva convention relative to the Treatment of prisoners of war


Art. 129. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be commit-ted, any of the grave breaches of the present Convention defined in the following Arti-cle. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, pro-vided such High Contracting Party has made out a prima facie case.

No. 28: Treaty: Geneva convention relative to the protection of civilian persons in Time of war


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Art. 146. The High Contracting Parties undertake to enact any legislation necessary to pro-vide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

No. 29 Treaty: Convention for the Suppression of the Illicit Traffic in Dangerous Drugs

Ref. No. 198 LNTS 299Date 26.06.1936GA Res. adopting treaty –Date in force 26.10.1936No. States Parties (at 01.08.2007) 15Extradite or prosecute clause:

A.7(1). In countries where the principle of the extradition of nationals is not recognized, nationals who have returned to the territory of their own country, after the commis-sion abroad of any of the offences referred to in Article 2, shall be prosecuted and punished in the same manner as if the offence had been committed in the said terri-tory, even in a case where the offender has acquired his nationality after the commis-sion of the offence.

A.8. Foreigners who are in the territory of a High Contracting Party and who have com-mitted abroad any of the offences set out in Article 2 shall be prosecuted and punished as though the offence had been committed in that territory if the following conditions are realized - namely, that: (a) extradition has been requested and could not be granted for a reason independent of the offence itself; (b) The law of the country of refuge considers prosecution for offences committed abroad by foreigners admissible as a general rule.

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No. 30 Treaty: International convention for the Suppression of counterfeiting currency

Ref. No. 112 LNTS 371Date 20.04.1929GA Res. adopting treaty –No. States Parties (at 01.08.2007) 79Extradite or prosecute clause:

A.8. In countries where the principle of the extradition of nationals is not recognized, nationals who have returned to the territory of their own country after the commission abroad of an offence referred to in Article 3 should be punishable in the same manner as if the offence had been committed in their own territory, even in a case where the offender has acquired his nationality after the commission of the offence. This provi-sion does not apply if, in the similar case, the extradition of a foreigner could not be granted.

A.9. Foreigners who have committed abroad any offence referred to in Article 3, and who are in the territory of a country whose internal legislation recognizes as a general rule the principle of the prosecution of offences committed abroad, should be punishable in the same way as if the offence had been committed in the territory of that country. The obligation to take proceedings is subject to the condition that extradition has been requested and that the country to which application is made cannot hand over the per-son accused for some reason which has no connection with the offence.

regional conventions

No. 1 Treaty: Council of Europe Convention on Action Against Trafficking in human Beings

Ref. No. Council of Europe Treaty Series No. 197Date 16.05.2005Date in force Not yet in forceNo. States Parties (at 01.08.2007) 7Extradite or prosecute clause:

A.31(3). Each Party shall adopt such measures as may be necessary to establish juris-diction over the offences referred to in this Convention, in cases where an alleged

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offender is present in its territory and it does not extradite him/her to another Party, solely on the basis of his/her nationality, after a request for extradition.

No. 2 Treaty: council of europe convention on the prevention of Terrorism

Ref. No. Council of Europe Treaty Series No.196Date 16.05.2005Date in force 01.06.2007No. States Parties (at 01.08.2007) 7Extradite or prosecute clause:

A.14(3). Each Party shall take such measures as may be necessary to establish its juris-diction over the offences set forth in this Convention in the case where the alleged offender is present in its territory and it does not extradite him or her to a Party whose jurisdiction is based on a rule of jurisdiction existing equally in the law of the requested Party.

A.18(1). The Party in the territory of which the alleged offender is present shall, when it has jurisdiction in accordance with Article 14, if it does not extradite that person, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that Party. Those authorities shall take their decision in the same manner as in the case of any other offence of a serious nature under the law of that Party.

A.18(2). Whenever a Party is permitted under its domestic law to extradite or otherwise surrender one of its nationals only upon the condition that the person will be returned to that Party to serve the sentence imposed as a result of the trial or proceeding for which the extradition or surrender of the person was sought, and this Party and the Party seeking the extradition of the person agree with this option and other terms they may deem appropriate, such a conditional extradition or surrender shall be sufficient to discharge the obligation set forth in paragraph 1.

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No. 3 Treaty: african Union convention on preventing and combating corruption

Date 11.07.2003Date in force 05.08.2006No. States Parties (at 01.08.2007) 21Extradite or prosecute clause:

A.13(1). Each State Party has jurisdiction over acts of corruption and related offences when:… (c). the alleged criminal is present in its territory and it does not extradite such person to another country.

A.15(6). Where a State Party in whose territory any person charged with or convicted of offences is present and has refused to extradite that person on the basis that it has jurisdiction over offences, the Requested State Party shall be obliged to submit the case without undue delay to its competent authorities for the purpose of prosecution, unless otherwise agreed with the Requesting State Party, and shall report the final out-come to the Requesting State Party.

A.15(7). Subject to the provisions of its domestic law and any applicable extradition trea-ties, a Requested State Party may, upon being satisfied that the circumstances so war-rant and are urgent and at the request of the Requesting State Party, take into custody a person whose extradition is sought and who is present in its territory, or take other appropriate measures to ensure that the person is present at the extradition proceed-ings.

No. 4 Treaty: council of europe’s convention on cyber-crime

Ref. No. Council of Europe Treaty Series No. 185Date 23.11.2001Date in force 01.07.2004No. States Parties (at 01.08.2007) 21Extradite or prosecute clause:

A.22(3). Each Party shall adopt such measures as may be necessary to establish jurisdic-tion over the offences referred to in Article 24, paragraph 1, of this Convention, in cases where an alleged offender is present in its territory and it does not extradite him or her to another Party, solely on the basis of his or her nationality, after a request for extradition.

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A.24(6). If extradition for a criminal offence referred to in paragraph 1 of this article is refused solely on the basis of the nationality of the person sought, or because the requested Party deems that it has jurisdiction over the offence, the requested Party shall submit the case at the request of the requesting Party to its competent authori-ties for the purpose of prosecution and shall report the final outcome to the request-ing Party in due course. Those authorities shall take their decision and conduct their investigations and proceedings in the same manner as for any other offence of a com-parable nature under the law of that Party.

No. 5 Treaty: council of europe’s criminal law convention on corruption

Ref. No. Council of Europe Treaty Series No. 173Date 27.01.1999Date in force 01.07.2002No. States Parties (at 01.08.2007) 36Extradite or prosecute clause:

A.17(1). Each Party shall adopt such legislative and other measures as may be necessary to establish jurisdiction over a criminal offence established in accordance with Arti-cles 2 to 14 of this Convention where:

(a) the offence is committed in whole or in part in its territory; (b) the offender is one of its nationals, one of its public officials, or a member of one

of its domestic public assemblies; (c) the offence involves one of its public officials or members of its domestic public

assemblies or any person referred to in Articles 9 to 11 who is at the same time one of its nationals.

A.17(2). Each State may, at the time of signature or when depositing its instrument of rat-ification, acceptance, approval or accession, by a declaration addressed to the Secre-tary General of the Council of Europe, declare that it reserves the right not to apply or to apply only in specific cases or conditions the jurisdiction rules laid down in para-graphs 1 b and c of this article or any part thereof.

A.17(3). If a Party has made use of the reservation possibility provided for in paragraph 2 of this article, it shall adopt such measures as may be necessary to establish jurisdic-tion over a criminal offence established in accordance with this Convention, in cases where an alleged offender is present in its territory and it does not extradite him to another Party, solely on the basis of his nationality, after a request for extradition.

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A.27(5). If extradition for a criminal offence established in accordance with this Conven-tion is refused solely on the basis of the nationality of the person sought, or because the requested Party deems that it has jurisdiction over the offence, the requested Party shall submit the case to its competent authorities for the purpose of prosecution unless otherwise agreed with the requesting Party, and shall report the final outcome to the requesting Party in due course.

No. 6 Treaty: oaU convention on the prevention and combating of Terrorism

Ref. No. 2219 UNTS 208Date 14.07.1999Date in force 06.12.2002No. States Parties (at 01.08.2007) 37Extradite or prosecute clause:

A.6(4). Each State Party shall likewise take such measures as may be necessary to estab-lish its jurisdiction over the acts set forth in Article 1 in cases where the alleged offender is present in its territory and it does not extradite that person to any of the States parties which have established their jurisdiction in accordance with paragraphs 1 or 2.

A.7(1). Upon receiving information that a person who has committed or who is alleged to have committed any terrorist act as defined in Article 1 may be present in its terri-tory, the State Party concerned shall take such measures as may be necessary under its national law to investigate the facts contained in the information.

A.7(2). Upon being satisfied that the circumstances so warrant, the State Party in whose territory the offender or alleged offender is present shall take the appropriate mea-sures under its national law so as to ensure that person’s presence for the purpose of prosecution.

A.8(4). A State Party in whose territory an alleged offender is present shall be obliged, whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution if it does not extradite that person.

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No. 7 Treaty: convention of the organization of the Islamic conference on combating International Terrorism

Date 01.07.1999Date in force Not knownNo. States Parties (at 01.08.2007) Not knownExtradite or prosecute clause:

A.6. Extradition shall not be permissible in any of the following circumstances: … (3) if the crime for which extradition is requested was committed in the territory of the requested Contracting State, unless this crime has undermined the interests of the requesting State and its laws stipulate that the perpetrators of those crimes shall be prosecuted and punished providing that the requested country has not commenced investigation or trial; ...(8) If the legal system of the requested State does not per-mit extradition of its national, then it shall be obliged to prosecute whosoever com-mits a terrorist crime if the act is punishable in both States by a freedom restraining sentence for a minimum period of one year or more. The nationality of the person requested for extradition shall be determined according to the date of the crime taking into account the investigation undertaken in this respect by the requesting State.

No. 8 Treaty: arab convention on the Suppression of Terrorism

Date 22.04.1998Date in force Not knownNo. States Parties (at 01.08.2007) Not knownExtradite or prosecute clause:

A.3. Contracting States undertake not to organize, finance or commit terrorist acts or to be accessories thereto in any manner whatsoever. In their commitment to the prevention and suppression of terrorist offences in accordance with their domestic laws and pro-cedures, they shall endeavour: ... II. Measures of suppression. (1). To arrest the perpe-trators of terrorist offences and to prosecute them in accordance with national law or extradite them in accordance with the provisions of this Convention or of any bilateral treaty between the requesting State and the requested State.

A 5. Contracting States shall undertake to extradite those indicated for or convicted of terrorist offences whose extradition is requested by any of these states in accordance with the rules and conditions stipulated in this convention.

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A.6. Extradition shall not be permissible in any of the following circumstances: … (c) if the offence for which extradition is requested was committed in the territory of the requested contracting State, except where the offence has harmed the interests of the requesting State and its law provide for the prosecution and punishment for such offences and where the requested State has not initiated any investigation or prosecu-tion; ...(h) If the legal system of the requested State does not allow it to extradite its nationals. In this case, the requested State shall prosecute any such persons who com-mit in any of the other Contracting States a terrorist offence that is punishable in both States by deprivation of liberty for a period of at least one year or more. The nation-ality of the person whose extradition is sought shall be determined as at the date on which the offence in question was committed, and use shall be made in this regard of the investigation conducted by the requesting State.

No. 9 Treaty: Inter-american convention against the Illicit manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials

Ref. No. Inter-American Treaty No. A-63Date 14.11.1997Date in force 01.07.1998No. States Parties (at 01.08.2007) 27Extradite or prosecute clause:

A. V(3). Each State Party shall adopt such measures as may be necessary to establish its jurisdiction over the offenses it has established in accordance with this Convention when the alleged criminal is present in its territory and it does not extradite such per-son to another country on the ground of the nationality of the alleged criminal.

A.XIX(6). If extradition for an offense to which this article applies is refused solely on the basis of the nationality of the person sought, the Requested State Party shall sub-mit the case to its competent authorities for the purpose of prosecution under the cri-teria, laws, and procedures applied by the Requested State to those offenses when they are committed in its own territory. The Requested and Requesting States Parties may, in accordance with their domestic laws, agree otherwise in relation to any pros-ecution referred to in this paragraph.

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No. 10 Treaty: Inter-american convention against corruption

Ref. No. Inter-American Treaty No. B-58Date 29.03.1996Date in force 03.06.1997No. States Parties (at 01.08.2007) 33Extradite or prosecute clause:

A.V(3). Each State Party shall adopt such measures as may be necessary to establish its jurisdiction over the offenses it has established in accordance with this Convention when the alleged criminal is present in its territory and it does not extradite such per-son to another country on the ground of the nationality of the alleged criminal.

A.XIII(6). If extradition for an offense to which this article applies is refused solely on the basis of the nationality of the person sought, or because the Requested State deems that it has jurisdiction over the offense, the Requested State shall submit the case to its competent authorities for the purpose of prosecution unless otherwise agreed with the Requesting State, and shall report the final outcome to the Requesting State in due course.

A.XIII(7). Subject to the provisions of its domestic law and its extradition treaties, the Requested State may, upon being satisfied that the circumstances so warrant and are urgent, and at the request of the Requesting State, take into custody a person whose extradition is sought and who is present in its territory, or take other appropriate mea-sures to ensure his presence at extradition proceedings.

No. 11 Treaty: Inter-american convention on forced Disappearance of persons

Ref. No. Inter-American Treaty No. A-60Date 09.06.1994Date in force 28.03.1996No. States Parties (at 01.08.2007) 13Extradite or prosecute clause:

A.IV. ... Every State Party shall, moreover, take the necessary measures to establish its jurisdiction over the crime described in this Convention when the alleged criminal is within its territory and it does not proceed to extradite him.

A.VI. When a State Party does not grant the extradition, the case shall be submitted to its competent authorities as if the offense had been committed within its jurisdiction, for

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the purposes of investigation and when appropriate, for criminal action, in accordance with its national law. Any decision adopted by these authorities shall be communi-cated to the state that has requested the extradition.

No. 12 Treaty: Inter-American Convention on International Traffic in Minors

Ref. No. OAS Treaty Series, No.79Date 18.03.1994Date in force 15.08.1997No. States Parties (at 01.08.2007) 13Extradite or prosecute clause:

A.7. The States Parties undertake to adopt effective measures, under their domestic law, to prevent and severely punish the international traffic in minors defined in this Con-vention.

A.9. The following shall have competence in cases of crimes involving international traffic in minors: ...c) the State Party in which the alleged offender is located if said offender has not been extradited.

No. 13 Treaty: Saarc regional convention on Suppression of Terrorism

Date 04.11.1987Date in force 22.08.1988No. States Parties (at 01.08.2007) Not knownExtradite or prosecute clause:

A.IV. A contracting State in whose territory a person suspected of having committed an offence referred to in Article 1 or agreed to in terms of Article II is found and which has received a request for extradition from another Contracting State, shall, if it does not extradite that person, submit the case without exception and without delay, to its competent authorities who shall take their decisions in the same manner as in the case of any offence of a serious nature under the law of the State.

A.VI. A Contracting State, in whose territory an alleged offender is found shall, upon receiving a request for extradition from another Contracting State, take appropriate measures, subject to its national laws, so as to ensure his presence for the purposes of extradition or prosecution. Such measures shall immediately be notified to the requesting State.

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No. 14 Treaty: additional protocol to the Saarc regional convention on Suppression of Terrorism

Date 06.01.2004Date in force 12.01.2006No. States Parties (at 01.08.2007) Not knownExtradite or prosecute clause:

A.13(2). The provisions of Article IV of the 1987 SAARC Convention relating to the duty to extradite or prosecute shall apply, mutatis mutandis, in respect of the offences set forth in Article 4 of this Additional Protocol.

No. 15 Treaty: Inter-american convention to prevent and punish Torture

Ref. No. OAS Treaty Series No.67Date 09.12.1985Date in force 28.02.1987No. States Parties (at 01.08.2007) 17Extradite or prosecute clause:

A.12. ... Every State Party shall also take the necessary measures to establish its jurisdic-tion over the crime described in this Convention when the alleged criminal is within the area under its jurisdiction and it is not appropriate to extradite him in accordance with Article 11.

A.14. When a State Party does not grant the extradition, the case shall be submitted to its competent authorities as if the crime had been committed within its jurisdiction, for the purposes of investigation, and when appropriate, for criminal action, in accor-dance with its national law. Any decision adopted by these authorities shall be com-municated to the State that has requested the extradition.

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No. 16 Treaty: convention of the oaU for the elimination of mercenarism in africa.

Ref. No. 1490 UNTS 95Date 03.07.1977Date in force 22.04.1985No. States Parties (at 01.08.2007) 28Extradite or prosecute clause:

A.8. Each contracting State shall undertake to take such measures as may be necessary to punish, in accordance with the provisions of Article 7, any person who commits an offence under Article 1 of this Convention and who is found on its territory if it does not extradite him to the State against which the offence has been committed.

A.9(2). A request for extradition shall not be refused unless the requested State undertakes to exercise jurisdiction over the offender in accordance with the provisions of Article 8.

A.9(3). Where a national is involved in the request for extradition, the requested State shall take proceedings against him for the offence committed if extradition is refused.

No. 17 Treaty: european convention on the Suppression of Terrorism

Ref. No. Europ.TS No. 90Date 27.01.1977Date in force 04.08.1978No. States Parties (at 01.08.2007) 45Extradite or prosecute clause:

A.6. Each Contracting State shall take such measures as may be necessary to establish its jurisdiction over an offence mentioned in Article 1 in the case where the suspected offender is present in its territory and its does not extradite him after receiving a request for extradition from a Contracting State whose jurisdiction is based on a rule of jurisdiction existing equally in the law of the requested State.

A.7. A Contracting State in whose territory a person suspected to have committed an offence mentioned in Article 1 is found and which has received a request for extradition under the conditions mentioned in Article 6, paragraph 1, shall, if it does not extradite that person, submit the case, without exception whatsoever and without undue delay, 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 offence of a serious nature under the law of that State.

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No. 18 Treaty: oaS convention to prevent and punish acts of Terrorism Taking the form of crimes against persons and related extortion that are of International Significance

Ref. No. 1483 UNTS 195 / OAS Treaty Series No. 37Date 02.02.1971Date in force Date of deposit of ratification for each stateNo. States Parties (at 01.08.2007) 18Extradite or prosecute clause:

A.5. When extradition requested for one of the crimes specified in Article 2 is not in order because the person sought is a national of the requested state, or because of any other legal or constitutional impediment, that state is obliged to submit the case to its com-petent authorities for prosecution, as if the act had been committed in its territory. The decision of these authorities shall be communicated to the state that requested extradi-tion. In such proceedings, the obligation established in Article 4 shall be respected.

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Annex 2SeCurITy CounCIl reSoluTIonS referrInG To The exTrAdITe or ProSeCuTe ClAuSe

No. 1 Security council resolution 1738 (2006)

Date 23.12.2006Topic Protection of civilians in armed conflictCh. VII? NoProvision

Recalling that the States Parties to the Geneva Conventions have an obligation to search for persons alleged to have committed, or to have ordered to be committed a grave breach of these Conventions, and an obligation to try them before their own courts, regardless of their nationality, or may hand them over for trial to another con-cerned State provided this State has made out a prima facie case against the said persons, 7. Emphasizes the responsibility of States to comply with the relevant obligations under international law to end impunity and to prosecute those responsible for serious violations of international humanitarian law.


Date 28.04.2006Topic Protection of civilians in armed conflictCh. VII? NoProvision

23. Condemns all attacks deliberately targeting United Nations and associated personnel involved in humanitarian missions, as well as other humanitarian personnel, urges States on whose territory such attacks occur to prosecute or extradite those responsible, and wel-comes in this regard the adoption on 8 December 2005 by the General Assembly of the Optional Protocol to the Convention on the Safety of United Nations and Associated Per-sonnel.

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Date 14.09.2005Topic Threats to international peace and security (Security Council Summit 2005)Ch. VII? NoProvision

Recalling that all States must cooperate fully in the fight against terrorism, in accordance with their obligations under international law, in order to find, deny safe haven and bring to justice, on the basis of the principle of extradite or prosecute, any person who supports, facilitates, participates or attempts to participate in the financing, planning, preparation or commission of terrorist acts or provides safe havens.


Date 08.04.2004Topic Threats to international peace and security caused by terrorist actsCh. VII? YesProvision

Acting under Chapter VII of the Charter of the United Nations, … 2. Calls upon States to cooperate fully in the fight against terrorism, especially with those States where or against whose citizens terrorist acts are committed, in accordance with their obligations under international law, in order to find, deny safe haven and bring to justice, on the basis of the principle to extradite or prosecute, any person who supports, facilitates, participates or attempts to participate in the financing, planning, preparation or commission of terrorist acts or provides safe havens.


Date 26.08.2003Topic Protection of United Nations personnel, associated personnel and humanitarian personnel in conflict zonesCh. VII? No

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Provision

5. Expresses its determination to take appropriate steps in order to ensure the safety and security of humanitarian personnel and United Nations and its associated personnel, including, inter alia, by: (a) Requesting the Secretary-General to seek the inclusion of, and that host countries include, key provisions of the Convention on the Safety of United Nations and Associated Personnel, among others, those regarding the prevention of attacks against members of United Nations operations, the establishment of such attacks as crimes punishable by law and the prosecution or extradition of offenders, in future as well as, if necessary, in existing status-of-forces, status-of-missions and host country agreements negotiated between the United Nations and those countries, mindful of the importance of the timely conclusion of such agreements.


Date 20.01.2003Topic High-level meeting of the Security Council: combating terrorismCh. VII? NoProvision

States must bring to justice those who finance, plan, support or commit terrorist acts or provide safe havens, in accordance with international law, in particular on the basis of the principle to extradite or prosecute.

No. 7 Security council resolution 1333 (2000) Date 19.12.2000Topic Measures against the TalibanCh. VII? YesProvision

Recalling the relevant international counter-terrorism conventions and in particular the obligations of parties to those conventions to extradite or prosecute terrorists.

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Date 19.10.1999Topic The responsibility of the Security Council in the maintenance of international peace and securityCh. VII? NoProvision

4. Calls upon all States to take, inter alia, in the context of such cooperation and coordina-tion, appropriate steps to: … - deny those who plan, finance or commit terrorist acts safe havens by ensuring their apprehension and prosecution or extradition.


Date 15.10.1999Topic Measures against the Taliban Ch. VII? YesProvision

Recalling the relevant international counter-terrorism conventions and in particular the obligations of parties to those conventions to extradite or prosecute terrorists.

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Annex 3 STATeS’ IMPleMenTInG leGISlATIon

Afghanistan ? ? ? ? ? ?Albania x x x x x xAlgeria √ √ √ x ? xAndorra x x x x x xAngola ? ? ? ? ? xAntigua and Barbados ? ? √ ? ? xArgentina √ √ ? √ √ √Armenia √ √ √ x √ √Australia √ √ √ √ √ xAzerbaijan √ √ √ √ √ √Austria √ √ √ √ √ √Bahamas √ ? √ ? ? xBahrain √ √ √ ? ? √Bangladesh ? ? x ? ? xBarbados √ ? ? ? ? xBelarus √ √ √ √ √ √Belgium √ √ √ x x √Belize √ ? √ ? ? xBenin √ √ √ ? ? √Bhutan ? ? ? ? ? ?Bolivia √ √ √ x ? √Bosnia-Hercegovinia √ √ √ √ ? √Botswana √ ? √ ? ? xBrazil √ √ √ x x √Brunei Darassalam ? ? X ? ? xBulgaria √ √ √ √ √ √Burkina Faso ? ? ? ? ? ?

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Burundi √ √ √ √ √ √Cambodia ? ? ? ? ? ?Cameroon ? √ x ? ? xCanada √ √ √ √ √ xCapo Verde ? ? ? ? ? ?Central African Rep. ? ? ? ? ? ?Chad ? ? ? ? ? ?Chile √ √ √ x ? √China √ √ √ x ? √Colombia √ √ √ √ √ √Comoros ? ? ? ? ? ?Congo (Dem. Rep. of) √ √ √ √ √ √Congo (Republic of) ? ? ? ? ? ?Costa Rica √ √ √ √ √ xCôte d’Ivoire x ? ? ? x xCroatia √ √ √ √ √ √Cuba √ √ √ √ √ √Cyprus √ √ √ x ? √Czech Republic √ √ √ √ √ √Dem. Rep. of Korea ? ? ? ? ? ?Denmark √ √ √ √ √ √Djibouti ? ? ? ? ? xDominica √ ? ? ? ? xDominican Republic x ? ? ? ? xEcuador √ √ √ √ √ √Egypt x x x x x xEl Salvador √ √ √ √ √ xEquatorial Guinea ? ? ? ? ? xEritrea ? ? ? ? ? ?Estonia √ √ √ ? √ √

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Ethiopia √ √ √ √ √ √Fiji √ ? ? ? ? xFinland √ √ √ √ √ √France x √ √ x x xGabon ? ? ? ? ? ?Gambia √ ? ? ? ? xGeorgia √ √ √ x ? √Germany √ √ √ √ √ √Ghana √ √ √ x √ √Greece √ √ √ x x √Grenada √ ? ? ? ? xGuatemala √ √ √ x x √Guinea √ √ √ ? ? xGuinea-Bissau ? ? ? ? ? ?Guyana √ x ? ? ? xHaiti ? ? ? ? ? ?Honduras √ √ √ √ √ √Hungary √ √ √ ? √ √Iceland ? √ √ ? ? ?India √ ? √ ? ? xIndonesia x x ? ? ? xIran √ ? √ x x √Iraq x ? ? ? ? ?Ireland √ √ √ x ? xIsrael √ √ √ x √ √Italy √ √ √ √ √ √Jamaica √ ? ? ? ? xJapan √ √ √ x x √Jordan x x ? x x xKazakhstan √ √ √ x ? √

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Kenya √ ? x ? ? xKiribati √ ? ? ? ? xKuwait x x x x x xKyrgyzstan x x x ? ? xLaos √ ? √ x ? √Latvia √ √ √ x ? √Lebanon √ √ √ √ √ √Lesotho √ ? ? ? ? ?Liberia √ √ √ x x √Libya x x ? ? ? xLiechtenstein √ √ √ ? x √Lithuania √ √ √ √ x √Luxembourg √ √ √ x √ √Macedonia (FYR) √ √ √ √ √ √Madagascar ? ? ? ? ? ?Malawi √ ? ? ? ? xMalaysia √ ? x ? ? xMaldives ? ? ? ? ? ?Mali ? ? ? ? ? ?Malta √ √ √ x ? xMarshall Islands ? ? x ? ? ?Mauritania ? ? x ? ? ?Mauritius √ x √ ? ? xMexico √ √ √ x √ √Micronesia ? ? ? ? ? ?Moldova √ √ √ x x √Monaco x √ ? x x xMongolia √ √ √ x √ √Montenegro √ √ √ √ √ √Morocco x x x ? ? x

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Mozambique ? ? x ? ? ?Myanmar ? ? ? ? ? ?Namibia ? ? x ? ? xNauru ? ? ? ? ? ?Nepal ? x ? ? ? xThe Netherlands √ √ √ √ √ xNew Zealand √ √ √ √ √ xNicaragua √ ? x ? √ xNiger ? ? ? ? ? ?Nigeria √ ? x ? ? xNorway √ √ √ √ √ √Oman √ √ √ √ √ √Pakistan ? ? ? ? ? ?Palau ? ? ? ? ? ?Panama √ √ √ x √ √Papua New Guinea √ ? x ? ? xParaguay √ √ √ √ √ √Peru √ √ √ √ √ √Phillippines √ √ ? √ √ xPoland √ √ √ √ √ √Portugal √ √ √ √ √ √Qatar x x √ ? ? xRepublic of Korea x x x ? ? xRomania √ √ √ √ √ √Russian Federation √ √ √ x x √Rwanda ? ? x ? ? ?St Kitts and Nevis √ ? ? ? ? xSt Lucia √ ? ? ? ? xSt Vincent & Grenadines √ ? ? ? ? xSamoa √ ? ? ? ? x

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San Marino √ √ ? x x √São Tome & Principe ? ? ? ? ? ?Saudi Arabia ? x x ? ? xSenegal x x x ? ? xSerbia √ √ √ √ √ √Seychelles √ ? √ ? ? ?Sierra Leone √ ? ? ? ? ?Singapore √ ? √ ? ? xSlovakia √ √ √ √ √ √Slovenia √ √ √ √ √ √Solomon Islands √ ? ? ? ? ?Somalia ? ? ? ? ? ?South Africa √ ? √ √ √ xSpain √ √ √ √ √ √Sri Lanka ? √ ? x ? xSudan ? ? √ ? ? ?Suriname ? ? x ? ? ?Swaziland √ ? ? ? ? xSweden √ √ √ √ √ √Switzerland √ √ √ x √ √Syrian Arab Republic √ √ √ √ √ √Tajikistan √ √ √ √ √ √Tanzania √ ? x ? ? xThailand ? ? √ ? ? ?Timor-Leste √ √ ? √ √ xTogo x ? ? ? ? xTonga ? ? x ? ? ?Trinidad & Tobago √ ? x ? ? xTunisia ? ? √ ? ? ?Turkey √ √ √ √ √ √

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Turkmenistan √ √ √ x ? √Tuvalu √ ? ? ? ? ?Uganda √ x x ? ? xUkraine √ √ √ x ? √United Arab Emirates ? ? √ ? ? ?United Kingdom √ √ √ x x xUnited States x √ √ x x xUruguay √ √ √ x ? √Uzbekistan √ √ √ x ? √Vanuatu √ ? ? x ? xVenezuela √ ? ? √ √ xVietnam √ x √ x ? √Yemen x ? x ? ? xZambia ? x ? ? ? ?Zimbabwe √ ? x ? ? x

Sources for this annex include 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 Conven-tion 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 Resolu-tion 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.

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Annex 4 GenerAl ASSeMBly reSoluTIonS

No. 1 Safety and security of humanitarian personnel and protection of United Nations personnel

Resolution – UN Doc. No. A/RES/61/133Date 14.12.2006Voting Without vote

Provision

Recommends that the Secretary-General continue to seek the inclusion of, and that host countries include, key provisions of the Convention on the Safety of United Nations and Associated Personnel, among others, those regarding the prevention of attacks against members of the operation, the establishment of such attacks as crimes pun-ishable by law and the prosecution or extradition of offenders, in future as well as, if necessary, in existing status-of-forces, status-of-mission, host country agreements and other related agreements negotiated between the United Nations and those countries, mindful of the importance of the timely conclusion of such agreements, and encour-ages further efforts in this regard;

No. 2 The United Nations Global counter-Terrorism Strategy : resolution adopted by the General assembly


Provision

We resolve to undertake the following measures to prevent and combat terrorism, in par-ticular by denying terrorists access to the means to carry out their attacks, to their targets and to the desired impact of their attacks: … 2. To cooperate fully in the fight against terrorism, in accordance with our obligations under international law, in order to find, deny safe haven and bring to justice, on the basis of the principle of extradite or prosecute, any person who supports, facilitates, participates or attempts to partici-pate in the financing, planning, preparation or perpetration of terrorist acts or provides safe havens;

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We resolve to undertake the following measures, reaffirming that the promotion and pro-tection of human rights for all and the rule of law is essential to all components of the Strategy, recognizing that effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing, and stressing the need to promote and protect the rights of victims of terrorism: …

4. To make every effort to develop and maintain an effective and rule of law-based national criminal justice system that can ensure, in accordance with our obligations under international law, that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in support of terrorist acts is brought to justice, on the basis of the principle to extradite or prosecute, with due respect for human rights and fundamental freedoms, and that such terrorist acts are established as serious criminal offences in domestic laws and regulations. We recognize that States may require assistance in developing and maintaining such effective and rule of law-based criminal justice systems, and we encourage them to resort to the technical assis-tance delivered, inter alia, by the United Nations Office on Drugs and Crime;

No. 3 human rights and terrorism

Resolution – UN Doc. No. A/RES/56/160 Date 13.02.2002Voting 102:0:69

Provision

Emphasizing also the importance of Member States taking appropriate steps to deny safe haven to those who plan, finance or commit terrorist acts by ensuring their apprehension and prosecution or extradition,

No. 4 human rights and Terrorism

Resolution – UN Doc. No. A/RES/54/164Date 24.02.2000Voting 106:0:58

Provision

Emphasizing the importance of Member States taking appropriate steps to deny safe haven to those who plan, finance or commit terrorist acts, by ensuring their apprehen-sion and prosecution or extradition,

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No. 5 United Nations Declaration on crime and public Security


Provision

A.3. Member States shall take measures to prevent support for and operations of criminal organizations in their national territories. Member States shall, to the fullest possible extent, provide for effective extradition or prosecution of those who engage in serious transnational crimes in order that they find no safe haven.

No. 6 measures to eliminate international terrorism


Provision

5. The States Members of the United Nations reaffirm the importance of ensuring effec-tive cooperation between Member States so that those who have participated in terror-ist acts, including their financing, planning or incitement, are brought to justice; they stress their commitment, in conformity with the relevant provisions of international law, including international standards of human rights, to work together to prevent, combat and eliminate terrorism and to take all appropriate steps under their domestic laws either to extradite terrorists or to submit the cases to their competent authorities for the purpose of prosecution;

No. 7 measures to eliminate terrorism


Provision

States must also fulfil their obligations under the Charter of the United Nations and other provisions of international law with respect to combating international terrorism and

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are urged to take effective and resolute measures in accordance with the relevant pro-visions of international law and international standards of human rights for the speedy and final elimination of international terrorism, in particular: ... 5.(b) To ensure the apprehension and prosecution or extradition of perpetrators of terrorist acts, in accor-dance with the relevant provisions of their national law;

No. 8 General assembly Declaration on the protection of all persons from enforced Disappearance

Resolution – UN Doc. No. .Date .Voting . Provision

A/RES/47/13318.12.1992Without voteAny person alleged to have perpetrated an act of enforced disappearance in a particular State shall, when the facts disclosed by an official investigation so warrant, be brought before the competent civil authorities of that State for the purpose of prosecution and trial unless he has been extradited to another State wishing to exercise jurisdiction in accor-dance with the relevant international agreements in force. All States should take any lawful and appropriate action available to them to bring to justice all persons presumed responsible for an act of enforced disappearance, who are found to be within their juris-diction or under their control.

No. 9 measures to eliminate terrorism


Provision

Urges all States to fulfill their obligations under international law and take effective and resolute measures for the speedy and final elimination of international terrorism and to that end, in particular: ... 4.(b) To ensure the apprehension and prosecution or extra-dition of perpetrators of terrorist acts

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No. 10 measures to prevent international terrorism


Provision



Resolution – UN Doc. No. A/RES/42/159Date 07.12.1987Voting 153:2:1

Provision




Provision

8. Also urges all States to co-operate with one another more closely, especially through the exchange of relevant information concerning the preventing and combating of ter-rorism, the apprehension and prosecution or extradition of the perpetrators of such acts, the conclusion of special treaties and/or the incorporation into appropriate bilat-eral treaties of special clauses, in particular regarding the extradition or prosecution of terrorists;

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Provision

6. Urges all States to co-operate with one another more closely, especially through the exchange of relevant information concerning the preventing and combating of terror-ism, the apprehension and prosecution of the perpetrators of such acts, the conclusion of special treaties and/or the incorporation into appropriate bilateral treaties of special clauses, in particular regarding the extradition or prosecution of terrorists;


Resolution – UN Doc. No. A/RES/34/145Date 17.12.1979Provision

11. Urges all States to co-operate with one another more closely, especially through the exchange of relevant information concerning the prevention and combating of inter-national terrorism, the conclusion of special treaties and/or the incorporation into appropriate bilateral treaties of special clauses, in particular regarding the extradition or prosecution of international terrorists;

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The aut dedere aut judicare, or “extradite or prosecute” clause is shorthand for a range of

clauses that are almost compulsory in international treaties criminalizing conduct, obliging a

State to either extradite or prosecute one accused of the crime the subject of the treaty. The

obligation has become increasingly central in the emerging legal regime against impunity and

has a role in States’ armoury of international criminal enforcement mechanisms. Yet there

has been little academic consideration of the sources of the principle, including whether it

exists at customary international law, and the scope and operation of the obligation. While

the topic is currently being considered by the International Law Commission, this paper

seeks to provide some of the empirical research that has to date been missing and to identify

the sources and scope of the obligation to extradite or prosecute.