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In This Article Aut Dedere Aut Judicare

  • Introduction
  • Judicial Decisions
  • International Law Commission
  • History

International Law Aut Dedere Aut Judicare
by
Raphael Van Steenberghe

Introduction

Various reasons may prevent states on the territory of which a criminal is found from extraditing him or her to the state where the crime was committed or to any other state willing to prosecute the case. The suspect is likely to escape prosecution and enjoy impunity if the authorities of the custodial state are not required to initiate proceedings against him or her. The obligation to extradite or prosecute, now traditionally described by the Latin expression aut dedere aut judicare, is one of the paramount cooperation means designed by states in order to counter this phenomenon and, in particular, to deprive criminals of any safe haven. This obligation is classically understood as requiring the custodial state to prosecute the suspect in case of non-extradition. The very origins of the obligation to extradite or prosecute can be traced back to Baldus’ works in the 14th century, and it was first qualified as the aut dedere aut punire principle by Grotius in the 16th century. Quite neglected for a long time by legal scholars, it is now gaining increasing attention. This is because the obligation has gradually been incorporated in numerous bilateral and multilateral treaties, which deal with different types of crimes, including ordinary offenses with an international nexus, terrorism, and core international crimes such as torture. There are various formulations of the obligation, the most well-known being the one provided under the 1970 Hague Convention dealing with terrorism on aircraft (called the “Hague formula”) and repeated in a large number of multilateral conventions. Given its growing importance, the obligation to extradite or prosecute has recently been put on the agenda of the International Law Commission, whose work on the subject is still in progress. It was also at the heart of the dispute recently brought by Belgium against Senegal before the International Court of Justice in relation to the Hissène Habré case. The decision that the court delivered on 20 July 2012 contains insightful considerations on the status as well as content of the obligation to extradite or prosecute, especially with respect to torture. The obligation to extradite or prosecute is controversial in many respects. The most debated issue is its customary nature, this issue being crucial regarding core international crimes, such as genocide, crimes against humanity, and war crimes, since a conventional obligation to extradite or prosecute with respect to such crimes only exists in relation to torture and the grave breaches of the four 1949 Geneva Conventions and the 1977 Additional Protocol I. Other controversial issues are concerned with the operation of the obligation, mainly the definition of its two alternatives, the priority to be given to one of them when the obligation is coming into play, the conditions for triggering the obligation to prosecute, as well as the practicability of prosecution when extradition is refused for some particular reasons.

General Overviews

It is only recently that legal scholars have started studying the obligation to extradite or prosecute from a general perspective. General overviews of the subject, therefore, remain limited. They may be found in a few monographs, articles/contributions, and textbooks.

LAST MODIFIED: 11/27/2013

DOI: 10.1093/OBO/9780199796953-0023

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