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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.

Monographs

Besides the famous monograph in Bassiouni and Wise 1995, which was the first published on the subject, only three other monographs systematically analyze the obligation to extradite prosecute: one, Mitchell 2009, is written in English, while Caligiuri 2012 and Maierhöfer 2006, which are the most comprehensive ones, are published in Italian and German, respectively.

  • Bassiouni, M. C., and E. M. Wise. Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law. Dordrecht, The Netherlands: Martinus Nijhoff, 1995.

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    The first book published on the subject and the most quoted one in legal literature. Divided into two parts: the first part offers a comprehensive analysis of the obligation to extradite or prosecute although the main developments are devoted to demonstrating the customary nature of the obligation based on the notion of civitas maxima (see infra Sources: Customary International Law; General Principles of International Law), while the second part provides a list of multilateral treaties embodying it.

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  • Caligiuri, A. L’obbligo aut dedere aut judicare nel diritto internazionale. Milan: Giuffrè, 2012.

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    The most recent comprehensive study on the subject, in Italian. Provides a systematic analysis of the issues raised by the obligation to extradite or prosecute, including the origins of the obligation, the definition of its two alternatives, the existence of a potential “third alternative” (see infra Operation:Third Alternative and Interference), the different formulations of the obligation and its customary nature.

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  • Maierhöfer, C. “Aut dedere—aut iudicare”: Herkunft, Rechtsgrundlagen und Inhalt des völkerrechtlichen Gebotes zur Strafverfolgung oder Auslieferung. Berlin: Ducker and Humblot, 2006.

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    The most detailed study on the subject, written in German. Starts by analyzing the functions as well as origins and evolution of the obligation to extradite or prosecute, before addressing the core issues: the conventional practice and non-treaty-based nature of the obligation, the interrelations between its two alternatives, the definition of these alternatives and the relationships between the obligation and the international criminal jurisdictions.

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  • Mitchell, C. Aut Dedere, aut Judicare: The Extradite or Prosecute Clause in International Law. Geneva, Switzerland: Graduate Institute, 2009.

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    The most recent English monograph on the subject. Offers a detailed analysis of the sources, scope, and operation of the obligation to extradite or prosecute, besides listing (in four additional annexes) treaties, UNSC and UNGA resolutions as well as domestic legislation incorporating the obligation.

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Articles and Contributions

Among the few articles and contributions designed to provide a general overview on the subject, only Wise 1993 and Plachta 1999 systematically address most of the issues raised by the obligation while the others analyze those issues from a specific angle, such as van Steenberghe 2011, or study part of them, such as Tiribelli 2009 and Scharf 2008.

  • Plachta, M. “Aut Dedere Aut Judicare: An Overview of Modes of Implementation and Approaches.” Maastricht Journal of European and Comparative Law 6 (1999): 332–365.

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    Besides containing a specific part on the implementation of the obligation to extradite or prosecute within the Organization of American States, successively analyzes the status of the obligation under international law, the relationships between its two alternatives, and the practicability of prosecution in lieu of extradition.

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  • Scharf, M. P. “Aut dedere aut iudicare.” In Max Planck Encyclopedia of International Law. Edited by R. Wolfrum. 2008.

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    Although published in an encyclopedia as a general article on aut dedere aut judicare, mainly focuses on the non-treaty-based as well as jus cogens nature of the obligation to extradite or prosecute. Argues that the obligation cannot be ascribed such nature, mainly on the basis of the practice related to asylum, amnesties, and exile.

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  • Tiribelli, C. “Aut dedere Aut Judicare: A Response to Impunity in International Criminal Law?” Sri Lanka Journal of International Law 21 (2009): 231–260.

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    While focusing on the universality of the obligation to extradite or prosecute, in particular its links with universal jurisdiction (see infra Operation:Links to Universal Jurisdiction), addresses some other general questions such as the incorporation of the obligation into treaties, its non-treaty-based nature, its application in domestic law and the crimes covered by it.

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  • van Steenberghe, R. “The Obligation to Extradite or Prosecute: Clarifying Its Nature.” Journal of International Criminal Justice 9 (2011): 1089–1116.

    DOI: 10.1093/jicj/mqr049Save Citation »Export Citation »E-mail Citation »

    Although primarily seeking to demonstrate the existence of a customary obligation to extradite or prosecute and to make suggestions on the scope of this customary obligation, this article provides a general overview of the subject. It addresses questions such as the definition of the two alternatives of the obligation or the conditions of its application and provides a typology of treaties incorporating it.

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  • Wise, E. M. “The Obligation to Extradite or Prosecute.” Israel Law Review 27 (1993): 268–287.

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    The first article entirely devoted to the subject. Analyzes the incorporation of the obligation to extradite or prosecute into multilateral treaties and questions its customary nature, in addition to referring to the origins of the obligation as well as elaborating on the interplay between its two alternatives.

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Textbooks

Apart from Wise 1999 and David 2009, the other textbooks that deal with the obligation to extradite or prosecute from a general perspective (Cryer, et al. 2007; Shaw 2008; Aust 2010, Werle 2010; and Bantekas 2010) contain a limited number of considerations on the obligation.

  • Aust, A. Handbook of International Law. Cambridge, UK: Cambridge University Press, 2010.

    DOI: 10.1017/CBO9780511841460Save Citation »Export Citation »E-mail Citation »

    Reports on the scope and object of the obligation to extradite or prosecute, especially in relation to terrorism.

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  • Bantekas, I. International Criminal Law. Oxford: Hart, 2010.

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    Emphasizes that prosecution must be carried out independently of the executive and in accordance with international standards in order to be discharged of the obligation to extradite. Asserts that the obligation to extradite or prosecute is of customary nature in relation to core international crimes such as the grave breaches, crimes against humanity, and genocide, and that the obligation is owed to the entire international community.

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  • Cryer, R., H. Friman, D. Robinson, and E. Wilmshurst. An Introduction to International Criminal Law and Procedure. Cambridge, UK: Cambridge University Press, 2007.

    DOI: 10.1017/CBO9780511801006Save Citation »Export Citation »E-mail Citation »

    Addresses the treaty-based aspects of the obligation to extradite or prosecute regarding international (and transnational) crimes. Criticizes arguments (such as those drawn from the ICTY case law, UNGA resolutions and nature of the crimes) made for ascribing a customary and jus cogens status to the obligation. The authors are skeptical about such a status, although admitting the possible emergence of a customary obligation to prosecute “based on territoriality, and perhaps nationality, jurisdiction” (p. 60).

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  • David, E. Eléments de droit pénal international et européen. Brussels: Bruylant, 2009.

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    Distinguishes and describes treaties embodying an obligation to extradite or prosecute (aut dedere aut judicare), which makes the obligation to prosecute dependent upon a request for extradition, from treaties containing an obligation to prosecute or extradite (judicare vel dedere), which comes into play irrespective of such request. Also examines bars to prosecution and extradition, such as the political offense exception and amnesties.

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  • Shaw, M. International Law. 6th ed. Cambridge, UK: Cambridge University Press, 2008.

    DOI: 10.1017/CBO9780511841637Save Citation »Export Citation »E-mail Citation »

    Briefly describes a number of treaties providing for an obligation to extradite or prosecute while discussing the issue of universal jurisdiction.

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  • Werle, G. Principles of International Criminal Law. The Hague: Asser, 2010.

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    Briefly addresses the obligation to extradite or prosecute under the four 1949 Geneva Conventions. Argues that there is a genuine choice between the two alternatives and that the obligation also applies to war crimes in civil wars. Emphasizes the lack of a treaty-based obligation regarding genocide and crimes against humanity. Refers to the ILC Draft Code of Crimes against the Peace and Security of Mankind in relation to all crimes against international law. See pp. 70–71.

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  • Wise, E. M. “Aut Dedere Aut Judicare: The Duty to Prosecute or Extradite.” In International Criminal Law: Procedural and Enforcement Mechanisms. 2d ed. Vol. 2. Edited by M. C. Bassiouni, 15–29. New York: Transnational Publishers, 1999.

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    As an abridged version of Bassiouni and Wise 1995 (cited under Monographs), this addresses the main issues regarding the obligation to extradite or prosecute; and in particular it distinguishes between four groups of treaties incorporating the obligation and argues in favor of ascribing to it a customary status on the basis of a civitas maxima hypothesis, as well as a jus cogens nature.

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Judicial Decisions

International judicial decisions on the obligation to extradite or prosecute are scarce. It is only in Belgium v. Senegal (2012), that the International Court of Justice has had the occasion to rule on this obligation, especially the one provided under the UN Torture Convention. In the other cases, International Court of Justice 2000 (Republic Democratic of the Congo v. Belgium) and International Court of Justice 1992 (Libyan Arab Jamahiriya v. United States of America), considerations on the obligation can only be found in individual opinions of judges. As far as the international criminal jurisdictions are concerned, the International Criminal Tribunal for the former Yugoslavia only incidentally qualified, in the Prosecutor v. Tihomir Blaskic case (1997), the obligation to extradite or prosecute as a customary obligation with respect to the grave breaches of international humanitarian law, whereas inferring, in the Prosecutor v. Anto Furundzija case (1998), the mere entitlement (and not the obligation) to prosecute or extradite individuals accused of torture from the jus cogens nature of the prohibition of this crime. In Inter-American Court of Human Rights, Case of Goiburas, et al. v. Paraguay (2006) the Inter-American Court of Human Rights concluded that human rights violations were subject to an obligation to extradite or prosecute, although such obligation is not expressly provided by the American Convention on Human Rights. The obligation to extradite or prosecute has also been ruled on by a few national jurisdictions: the Federal Court of Australia in Federal Court of Australia, Nulyarimma v. Thompson (1999) and the Spanish National Court Judge Santiago Pedraz in the Response of Spanish National Court Judge Santiago Pedraz to the Constitutional Court of Guatemala, Guatemala Genocide Case (2007). The Australian Court and the Spanish judge asserted the existence of a customary obligation to extradite or prosecute with respect to genocide and to all international crimes having a jus cogens nature, respectively.

  • Federal Court of Australia, Nulyarimma v. Thompson. (1999), FCA 1192, 1 September 1999, paras 18 and 141.

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    Accepted the existence of a customary obligation to extradite or prosecute persons suspected of having committed genocide, such obligation deriving, in Judge Merkel’s view, from “the acceptance under international law of a universal crime which has attained the status of jus cogens” (p. 23, paragraph 141).

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    • ICTY. 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), Appeals Chamber, 29 October 1997, IT-95-14-AR, para. 29.

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      When discussing the obligation for all UN Member States to collaborate with the Tribunal in accordance with Article 29 of its statute, asserted that the “courts of any State [. . .] are under a customary-law obligation to try or extradite persons who have allegedly committed grave breaches of international humanitarian law” (paragraph 29). Referred to the United States military manual in order to support this conclusion.

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    • ICTY. Prosecutor v. Anto Furundzija (Judgement), Trial Chamber, 10 December 1998, IT-95-17/-T, para. 156.

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      Considered that any state was entitled to investigate, prosecute, and punish or extradite a person suspected of torture as “‘the consequence of the jus cogens character bestowed by the international community upon the prohibition of torture”’ (paragraph 156).

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      • Inter-American Court of Human Rights, Case of Goiburas, et al. v. Paraguay, 22 September 2006, para. 132.

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        Recognized an obligation to extradite or prosecute persons accused of crimes against human rights by referring to mechanisms provided under the American Convention on Human Rights, altogether with some obligations imposed by other regional and universal texts.

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        • International Court of Justice. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) Order of 14 April 1992. The Hague: International Court of Justice, 1992.

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          Issues concerning the obligation to extradite or prosecute under the Montreal Convention (1971) were not addressed by the court as the latter gave precedence to the concurring obligations imposed by UNSC resolutions. Those issues were nonetheless discussed by some judges, namely judges Evensen, Tarassov, Guillaume, and Aguilar Mawdsley, who asserted that the obligation did not exist under customary international law (p. 24), while Judge Weeramentry defended the opposite view (p. 69).

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        • International Court of Justice. Case Concerning the Arrest Warrant of 11 April 2000 (Republic Democratic of the Congo v. Belgium). Judgment of 14 February 2002. The Hague: International Court of Justice, 2002.

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          While the judgment does not address the issue of the legality of universal jurisdiction, some judges briefly referred in their opinions to the obligation to extradite or prosecute in relation to this issue, such as judges Higgins, Kooijmans, and Buergenthal (pp. 78 and 80), as well as judge Van den Wyngaert (p. 174), the latter emphasizing the need to “distinguish between jurisdiction clauses and prosecution (aut dedere aut judicare) clauses in international criminal conventions.”

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        • International Court of Justice. Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 22 July 2012. The Hague: International Court of Justice, 2012.

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          Only considered the obligation under the UN Torture Convention and not customary law. Concluded inter alia that the obligation has an erga omnes partes nature; extradition is an option while prosecution is the international obligation, the latter merely requires submitting the case to the competent authorities for the purpose of prosecution. It must be applied as soon as the suspect is found on the territory, independently of a request for extradition.

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        • Response of Spanish National Court Judge Santiago Pedraz to the Constitutional Court of Guatemala, Guatemala Genocide Case, 12 December 2007.

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          Asserted the existence of an obligation to extradite or prosecute “applicable to all international crimes that are jus cogens in nature” (such as genocide) (p. 4) and also claimed that the aut dedere aut judicare obligation was an “erga omnes (universally applicable)” obligation that was “incorporated into both customary and conventional International Law and International Criminal Law” (p. 4).

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        International Law Commission

        The obligation to extradite or prosecute was first discussed by the International Law Commission in the context of its work on the Draft Code of Crimes against the Peace and Security of Mankind (1983–1995). Included in the debates since 1986, this obligation now appears under Article 9 of the Draft Code, according to which “the State Party in the territory of which an individual alleged to have committed [genocide, crimes against humanity, war crimes or crimes against United Nations and associated personal] is found shall extradite or prosecute that individual.” In 2004, the commission decided to include “the obligation to extradite or prosecute (aut dedere aut judicare)” in its long-term program of work. Therefore, the obligation as such is currently on the agenda of the commission. Four reports on the topic have already been submitted to the commission by the special rapporteur. The latter issued a Galicki 2006, Galicki 2007, Galicki 2008, and Galicki 2011. In its last session (2012), the commission appointed a working group and requested it to evaluate progress made on the topic as well as to assess its viability.

        History

        There is no general study on the history of the obligation to extradite or prosecute. However, some articles, such as Wise 1993, and books, such as Caligiuri 2012, contain insightful considerations on this aspect whereas an entire chapter, in Maierhöfer 2006, is dedicated to the evolution of the obligation in the monograph.

        • Caligiuri, A. L’obbligo aut dedere aut judicare nel diritto internazionale. Milan: Giuffrè, 2012.

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          Starts with some considerations on the origins of the principle aut dedere aut judicare before focusing on the first codifications of this principle under the League of Nations. See pp. 1–11.

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        • Maierhöfer, C. “Aut dedere—aut iudicare”: Herkunft, Rechtsgrundlagen und Inhalt des völkerrechtlichen Gebotes zur Strafverfolgung oder Auslieferung. Berlin: Ducker and Humblot, 2006.

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          Contains the most detailed information on the origins and evolution of the obligation to extradite or prosecute. Analyzes this question in the framework of a general study on the historical formation of the rules related to prosecution and extradition since Antiquity to the end of the interwar period.

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        • Wise, E. M. “The Obligation to Extradite or Prosecute.” Israel Law Review 27.268 (1993): 276–279.

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          Asserts that the origins of the obligation to extradite or prosecute go back the works of Baldus de Ulbadis (14th century) and Jean Bodin (16th century). Analyzes the main differences between the modern formulation of the obligation and Grotius’ assertion of a duty to extradite or punish (aut dedere aut punire), namely the conditions for its application and its nature.

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        Sources

        The main and uncontested sources of the obligation to extradite or prosecute are bilateral and multilateral treaties. Some authors nonetheless argue that, at least with respect to international crimes, the obligation is also part of customary international law or may be considered as a general principle of international law and has a jus cogens nature.

        Treaties

        Any study on the obligation to extradite or prosecute refers to treaties embodying it. General studies usually propose a typology of such treaties while the others focus on some specific conventions, mainly those dealing with terrorism or international crimes (such as genocide, war crimes, and torture) and regional treaties.

        Typology

        Almost all proposed typologies at a minimum distinguish between two types of treaties: those incorporating an obligation to extradite or prosecute modeled on the 1970 Hague formula (see Introduction) and the four 1949 Geneva Conventions completed by the 1977 Additional Protocol I (David 2009). Typologies nonetheless often provide for additional categories of treaties, such as those that clearly make the application of the obligation dependent upon a request for extradition, such as the ones adopted during the interwar period (Henzelin 2000, van Steenberghe 2011), and extradition treaties (Bassiouni and Wise 1995, UN Secretariat 2010), or those providing for a third alternative (Caligiuri 2012). Completely different typologies are nevertheless also proposed, such as between multilateral and extradition treaties (Mitchell 2009).

        • Bassiouni, M. C., and E. M. Wise. Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law. Dordrecht, The Netherlands: Martinus Nijhoff, 1995.

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          Distinguishes four groups of treaties: extradition treaties (mainly dealing with the problem of non-extradition of nationals); treaties modeled on the conventions of the interwar period (which do not require states party to be prepared to assert jurisdiction in every case in which a suspect is not extradited); treaties modeled on the 1970 Hague Convention; and, finally, the four 1949 Geneva Conventions and the 1977 Additional Protocol I.

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        • Caligiuri, A. L’obbligo aut dedere aut judicare nel diritto internazionale. Milan: Giuffrè, 2012.

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          Identifies three forms of obligation: the aut dedere aut judicare model, in treaties such as the 1970 Hague Convention, the four 1949 Geneva Conventions and the 1977 Additional Protocol I; the primo dedere secundo judicare model, in some treaties adopted at the regional and UN levels; and the third alternative model, in the 2006 UN Convention on forced disappearance and the 2007 African Charter on Democracy, Elections and Governance.

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        • David, E. Eléments de droit pénal international et européens. Brussels: Bruylant, 2009.

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          Distinguishes between treaties incorporating an obligation to extradite or prosecute (aut dedere aut judicare), whose application is dependent upon a request for extradition, and the four 1949 Geneva Conventions, as well as the 1977 Additional Protocol I, providing for an obligation to prosecute or extradite (judicare vel dedere), whose application is not dependent upon a request for extradition.

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        • Henzelin, M. Le principe de l’universalité en droit pénal international: Droit et obligation pour les Etats de poursuivre et juger selon le principe de l’universalité. Brussels: Bruylant, 2000.

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          Identifies three categories of treaties: those embodying an obligation primo dedere secundo judicare (including those modeled on conventions of the interwar period, extradition treaties and some regional treaties); those providing an obligation aut dedere aut prosequi (including multilateral treaties modeled on the 1970 Hague Convention); and those establishing an obligation primo prosequi secundo dedere (including the four Geneva Conventions and the 1977 Additional Protocol I).

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        • Mitchell, C. Aut Dedere, aut Judicare: The Extradite or Prosecute Clause in International Law. Geneva, Switzerland: Graduate Institute, 2009.

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          Classifies treaties into two groups: multilateral and extradition treaties.

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        • UN Secretariat. Survey of Multilateral Conventions which May Be of Relevance for the Work of the International Law Commission on the Topic “The Obligation to Extradite or Prosecute (Aut Dedere Aut Judicare).” UN Doc. A/CN.4/630, paras 7–121 (2010).

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          The most detailed analysis of the treaties incorporating an obligation to extradite or prosecute. Includes an analysis of the preparatory works of most of these treaties. Identifies four groups of treaties: those modeled on conventions of the interwar period; the four 1949 Geneva Conventions and the 1977 Additional Protocol I; the regional extradition treaties; and the treaties modeled on the 1970 Hague Convention.

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        • van Steenberghe, R. “The Obligation to Extradite or Prosecute: Clarifying Its Nature.” Journal of International Criminal Justice 9 (2011): 1110–1115.

          DOI: 10.1093/jicj/mqr049Save Citation »Export Citation »E-mail Citation »

          Argues for three groups of treaties: those making the alternative obligation to prosecute dependent upon a request for extradition (including conventions of the interwar period, extradition, and regional treaties); those for which such condition is unclear (including multilateral treaties modeled on the 1970 Hague Convention); and those requiring to prosecute independently of a request for extradition (including the four Geneva Conventions and the 1977 Additional Protocol I).

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        International Terrorism

        The increasing number of acts of terrorism involving aircrafts in the 1960s led to the adoption of The Hague Convention for the suppression of unlawful seizure of aircraft in 1970. One of the main purposes of the convention is to provide an obligation to extradite or prosecute, in addition to an obligation to assert extraterritorial jurisdiction. The 1970 Hague Convention was followed by a series of other conventions that incorporated the same form of obligation to extradite or prosecute (called the “Hague formula”). Most of those conventions aim at combating terrorism. That is the reason why legal scholars generally examine the obligation to extradite or prosecute when dealing with international terrorism (Costello 1975, Guillaume 1989, and Drozniewski 2011), or with specific conventions adopted on the matter, such as the Hostage Convention (Shubber 1981, Lambert 1990), the European Convention on combating terrorism (Vallée 1976) or the 1970 Hague Convention (Guillaume 1970, Mankiewicz 1971).

        • Costello, D. “International Terrorism and the Development of the Principle Aut Dedere Aut Judicare.” Journal of International Law & Economics 10 (1975): 483–501.

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          Describes the consecutive treaties embodying an obligation to extradite or prosecute since the 1970 Hague Convention and examines developments on the matter at the Council of Europe level, in particular resolution 73(3) adopted on 24 January 1974 by the Committee of Ministers and attenuating the effect of the political offense exception in relation to terrorism.

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        • Drozniewski, M. “Aut Dedere aut Judicare against Terrorism.” Revue hellénique de droit international 64 (2011): 833–859.

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          Makes a comparative analysis between the form of obligation to extradite or prosecute contained in the 1970 Hague Convention and that incorporated in other conventions, including the 1937 Convention on Terrorism as well as other sectoral conventions against terrorism. Examines which form is the most suited in relation to terrorism and questions the usefulness and role of the obligation in preventing terrorism.

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        • Guillaume, G. “La Convention de La Haye du 16 décembre 1970 pour la répression de la capture illicite d’aéronefs.” Annuaire français de droit international 45 (1970): 51–53.

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          Highlights the ambiguities stemming from the formulation of the obligation to extradite or prosecute under the 1970 Hague Convention, in particular regarding the issue of when prosecution must be initiated.

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        • Guillaume, G. “Terrorisme et droit international.” Recueil des cours de l’Académie de droit international 215 (1989): 354–370.

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          Devotes an entire chapter to the obligation to extradite or prosecute in relation to terrorism. Provides an analysis of the scope of the judicare part of the obligation as well as the conditions for triggering it. Emphasizes the ambiguous wording of the obligation, which leaves unsettled the issue of whether prosecution must only be initiated after a request for extradition has been made and refused.

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        • Lambert, J. J. Terrorism and Hostages in International Law: A Commentary on the Hostages Convention 1979. Cambridge, UK: Grotius, 1990.

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          Detailed and systematic analysis of the form of obligation to extradite or prosecute modeled on the 1970 Hague Convention. Explains the meaning of each expression used in the wording of the obligation, including the one related to the political offense exception. Interestingly, the author emphasizes that the obligation does not impose extradition when prosecution cannot take place and that the obligation to prosecute is not dependent upon a request for extradition. See pp. 188–203.

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        • Mankiewicz, R. H. “The 1970 Hague Convention.” Journal of Air Law and Commerce 37.195 (1971): 204–206.

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          Describes the various international conventions against terrorism preceding the 1970 Hague Convention. Argues that the latter convention may be interpreted as allowing state parties not to prosecute an alleged hijacker if they consider the hijacking as a political offense or if prosecution is deemed inappropriate for any other reason.

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        • Shubber, S. “The International Convention against the Taking of Hostages.” British Yearbook of International Law 205 (1981): 225–226.

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          Makes brief comments on the obligation to extradite or prosecute contained in the 1979 Hostage Convention. Emphasizes that the judicare part of the obligation merely requires submitting the case to the relevant national authorities without such authorities being obliged to prosecute.

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        • Vallée, C. “La Convention européenne pour la répression du terrorisme.” Annuaire français de droit international 756 (1976): 776–780.

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          Describes the obligation to extradite or prosecute contained in the Council of Europe Convention for the Suppression of Terrorism and compares it with the obligation to extradite or prosecute under the 1970 Hague Convention. Emphasizes that, contrary to the latter convention, priority is given to extradition in the European Convention as the obligation to prosecute is dependent upon the refusal of a request for extradition.

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        Genocide, Torture, and War Crimes

        Although legal literature on the conventional obligation to extradite or prosecute mainly focuses on international terrorism, authors also pay attention to treaties dealing with international crimes. Pictet 1952, Van Elst 2004, and Kress 2009 address the obligation in relation to the grave breaches of the four 1949 Geneva Conventions and the 1977 Additional Protocol I. They all insist on the obligation for state parties to prosecute the suspects of such grave breaches independently of a request for extradition. Genocide is discussed in Steven 1999, Schabas 2000, and David 2008, who argue that an obligation to extradite or prosecute is implicitly enshrined in the 1948 Genocide Convention. Finally, scholarly texts such as Burgers and Danelius 1988 shed some light on the scope of the obligation to extradite or prosecute provided under the UN Torture Convention, emphasizing that, although some level of discretion is left to state parties about when undertaking prosecution, the obligation to prosecute is not dependent upon a request for extradition.

        • Burgers, J. H., and H. Danelius. The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment. Dordrecht, The Netherlands: Martinus Nijhoff, 1988.

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          Makes comments on the scope of the obligation to extradite or prosecute enshrined in the UN Torture Convention, including that prosecution is not dependent upon the refusal of a request for extradition and that some discretion must be allowed to state parties to decide when to prosecute the suspect once he or she is found on their territory. See pp. 136–138.

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        • David, E. Principes de droit des conflits armés. 4th ed. Brussels: Bruylant, 2008.

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          Seeks to demonstrate that the Genocide Convention has evolved and can now be interpreted as imposing an obligation to extradite or prosecute, mainly given its Article 1 and the evolution of international criminal law. See pp. 872–878.

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        • Kress, C. “Reflections on the Iudicare Limb of the Grave Breaches Regime.” Journal of International Criminal Justice 7 (2009): 789–809.

          DOI: 10.1093/jicj/mqp055Save Citation »Export Citation »E-mail Citation »

          The most detailed study on (the judicare part of) the obligation to extradite or prosecute under the four 1949 Geneva Conventions. Analyzes in particular the customary scope of the obligation; relationships between the judicare and dedere parts; the scope ratione temporis of the obligation; the role of national law in its application; the meaning of the words “to bring such persons . . . before its own courts,” and the obstacles to prosecution.

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        • Pictet, J.-S. La Convention de Genève pour l’amélioration du sort des blessés et des malades dans les forces armées en campagne. Geneva, Switzerland: International Committee of the Red Cross, 1952.

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          Emphasizes that the obligation for state parties to refer suspects of grave breaches of the four Geneva Conventions to their tribunals does not depend upon a request from another state; the obligation to extradite is limited by the national law of the custodial state; the state requesting extradition must provide sufficient evidence against the suspect; and a third alternative, to surrender suspects to an international criminal tribunal, cannot be excluded. See pp. 401–412.

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        • Schabas, W. A. Genocide in International Law: The Crimes of Crimes. Cambridge, UK: Cambridge University Press, 2000.

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          Although admitting that the Genocide Convention does not expressly impose an obligation to extradite or prosecute, argues that the latter may be implicitly induced from the convention. Also refers to a secretariat memo and an Iranian declaration made during the drafting of the convention in order to support such a position. See pp. 404–406.

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        • Steven, L. A. “Genocide and the Duty to Extradite or Prosecute: Why the United States Is in Breach of Its International Obligations.” Virginia Journal of International Law 39.425 (1999): 460–461.

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          Argues for the existence of an implicit obligation to extradite or prosecute under the Genocide Convention on the basis of the overall structure of the convention.

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        • Van Elst, R. “Implementing Universal Jurisdiction over Grave Breaches of the Geneva Conventions.” Leiden Journal of International Law 13.815 (2004): 817–821.

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          Emphasizes that prosecution is put at the first place in the obligation to extradite or prosecute enshrined in the four 1949 Geneva Conventions. Gives an analysis of the meaning of the dedere part of the obligation by highlighting that the conventions do not require extradition but the handing over of the suspect to another state or, possibly, to an international tribunal. Briefly addresses the practical obstacles to the application of the obligation.

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        Regional Treaties

        Although legal literature mainly focuses on universal treaties when dealing with the conventional obligation to extradite or prosecute, some studies are entirely or partly devoted to regional treaties providing for such obligation. For example, Vallée 1976 and Bigay 1980 analyze the specificities of the obligation to extradite or prosecute under the Council of Europe Convention for the Suppression of Terrorism, while Plachta 1999 examines the obligation implemented within the Organization of the American States.

        • Bigay, J. “Extrader ou punir.” Revue de droit pénal et de criminologie 113 (1980): 120–121.

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          Focuses on the obligation to extradite or prosecute established by the Council of Europe Convention for the Suppression of Terrorism and emphasized its limits, including the fact that the convention only applies when a request for extradition has been made and refused.

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        • Plachta, M. “Aut Dedere Aut Judicare: An Overview of Modes of Implementation and Approaches.” Maastricht Journal of European and Comparative Law 6.332 (1999): 342–362.

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          Analyzes the implementation of the obligation to extradite or prosecute within the Organization of the American States. Examines the evolution of the obligation by describing the successive multilateral treaties embodying it, notably in relation to the principle that states usually refuse to extradite their nationals.

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        • Vallée, C. “La Convention européenne pour la répression du terrorisme.” Annuaire français de droit international 756 (1976): 776–780.

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          Describes the obligation to extradite or prosecute contained in the Council of Europe Convention for the Suppression of Terrorism and compares it with the obligation to extradite or prosecute under the 1970 Hague Convention. Emphasizes that contrary to the latter convention, priority is given to extradition in the European Convention as the obligation to prosecute is dependent upon the refusal of a request for extradition.

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        Customary International Law

        The customary nature of the obligation to extradite or prosecute is one of the most discussed issues in the legal literature on the subject. Authors usually address this issue in general terms. Some of them nonetheless analyze it in relation to specific offenses. While some authors are rather critical of the existence of a customary obligation to extradite or prosecute (Wise 1993, Plachta 1999), especially in relation to any international crime (Gilbert 1998, Mitchell 2009), others argue in favor of it. Arguments are based either on the specific nature of the crime with respect to which the customary obligation is claimed to exist (Bassiouni 1995) or, more classically, on state practice and opinio juris (Tiribelli 2009, David 2009, van Steenberghe 2011).

        • Bassiouni, M. C., and E. M. Wise. Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law. Dordrecht, The Netherlands: Martinus Nijhoff, 1995.

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          Although agreeing that a customary obligation to extradite or prosecute cannot be inferred from state practice and opinio juris, postulates the existence of a common concern on repressing international crimes (hypothesis of a civitas maxima) and induces from it a customary obligation to “assist in bringing those who commit such crimes to justice—which implies an obligation either to prosecute or extradite alleged offenders” (p. 50). See pp. 26–69.

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        • David, E. Eléments de droit pénal international et européens. Brussels: Bruylant, 2009.

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          Argues in favor of a customary obligation to prosecute or extradite (judicare vel dedere) with respect to core international crimes, including genocide, crimes against humanity, and war crimes. Arguments are based on state practice, including UNGA and UNSC resolutions, the Rome Statute, domestic legislation and case law. See pp. 708–709.

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        • Gilbert, G. Transnational Fugitive Offenders in International Law: Extradition and Other Mechanisms. The Hague: Martinus Nijhoff, 1998.

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          Argues against the existence of a general obligation to extradite or prosecute under customary law given the lack of a sufficient body of state practice and opinio juris. Nonetheless admits that “the provision in a particular treaty may have become declaratory of customary international law with regard to the relevant crime” (p. 322). Analyzes this issue especially in relation to prosecution of political offenders.

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        • Mitchell, C. Aut Dedere, aut Judicare: The Extradite or Prosecute Clause in International Law. Geneva, Switzerland: Graduate Institute, 2009.

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          Argues against a customary obligation to extradite or prosecute with respect to all international crimes and some specific crimes such as genocide, mainly because of a lack of universal state practice. Nonetheless recognizes, with respect to the grave breaches of the Geneva Conventions, that “there is at least an emerging customary obligation operating outside the Conventions themselves to extradite or prosecute” (p. 57). See pp. 20–60.

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        • Plachta, M. “Aut Dedere Aut Judicare: An Overview of Modes of Implementation and Approaches.” Maastricht Journal of European and Comparative Law 6.332 (1999): 334–335.

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          Asserts that there is no customary obligation to extradite or prosecute with respect to international offenses given the lack of a sufficient body of state practice.

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        • Tiribelli, C. “Aut dedere Aut Judicare: A Response to Impunity in International Criminal Law?” Sri Lanka Journal of International Law 21.231 (2009): 242–244.

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          Infers the existence of a customary obligation to extradite or prosecute with respect to international offenses mainly from the accession of states to a large number of multilateral treaties incorporating an obligation to extradite or prosecute.

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        • van Steenberghe, R. “The Obligation to Extradite or Prosecute: Clarifying Its Nature.” Journal of International Criminal Justice 9.1089 (2011): 1091–1107.

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          Argues in favor of a customary obligation to prosecute or extradite (prosequi vel dedere) with respect to core international crimes such as genocide, crimes against humanity, and war crimes, mainly on the basis of state declarations. Nonetheless, due to some opposing state declarations, the author only ascribes this customary nature to the obligation as such and not to the whole system usually linked to it and obliging states to assert extraterritorial (universal) jurisdiction.

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        • Wise, E. M. “The Obligation to Extradite or Prosecute.” Israel Law Review 27.268 (1993): 280–287.

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          Considers that no general customary obligation to extradite or prosecute can be asserted by relying on state behavior or multilateral treaties. Doubts that a customary nature may be ascribed to the obligation with respect to international crimes on the basis of the nature of those crimes and, in particular, the idea of a civitas maxima allegedly implying that prosecution of such crimes is the concern of all states.

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        Specific Cases

        Some authors focus on the issue of the customary nature of the obligation to extradite or prosecute in relation to specific crimes: for example, Kelly 2003 deals with international terrorism, Steven 1999 with genocide, and Enache-Brown and Fried 1997–1998 with war crimes.

        • Enache-Brown, C., and A. Fried. “Universal Crime, Jurisdiction and Duty: The Obligation of Aut Dedere Aut Judicare in International Law.” McGill Law Journal 43.613 (1997–1998): 625–633.

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          In relation to crimes committed in non-international armed conflicts, this argues for the existence of a customary obligation to extradite or prosecute those responsible for international offenses, mainly on the basis of treaties incorporating this obligation.

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        • Kelly, M. J. “Cheating Justice by Cheating Death: The Doctrinal Collision for Prosecuting Foreign Terrorists—Passage of Aut Dedere Aut Judicare into Customary Law and Refusal to Extradite Based on the Death Penalty.” Arizona Journal of International and Comparative Law 20.491 (2003): 500–506.

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          Considering that a customary obligation to extradite or prosecute with respect to a specific crime may be inferred from the jus cogens nature of this crime, this article demonstrates that international terrorism is regarded as a jus cogens conduct and, as a result, that a customary obligation to extradite or prosecute exists with respect to such conduct.

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        • Steven, L. A. “Genocide and the Duty to Extradite or Prosecute: Why the United States Is in Breach of Its International Obligations.” Virginia Journal of International Law 39.425 (1999): 439–443.

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          Argues for the existence of a customary obligation to extradite or prosecute with respect to genocide. Bases such opinion on the international nature of this crime, in particular the common interest that all states have in suppressing it.

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        General Principles of International Law

        Although legal literature on the non-treaty-based nature of the obligation to extradite or prosecute is mainly dedicated to the issue of the existence of the obligation under customary law, some authors (e.g., Enache-Brown and Fried 1997–1998, Mitchell 2009) question whether the obligation (also) constitutes a general principle of international law.

        • Enache-Brown, C., and A. Fried. “Universal Crime, Jurisdiction and Duty: The Obligation of Aut Dedere Aut Judicare in International Law.” McGill Law Journal 43.613 (1997–1998): 631–632.

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          Argues that the obligation to extradite or prosecute may be considered as a general principle of international law since it ensures “the promotion of peace and well-being of humankind,” which, in the authors’ view, is the main goal of international law (p. 631).

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        • Mitchell, C. Aut Dedere, aut Judicare: The Extradite or Prosecute Clause in International Law. Geneva, Switzerland: Graduate Institute, 2009.

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          Argues against the obligation to extradite or prosecute as a general principle of law recognized by civilized nations (article 38 ICJ Statute), understood either as a general principle of international law, given the lack of consistent state practice, or as a principle of international law common to all or most national systems, given the significant discrepancies between national systems on the matter.

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        Jus Cogens

        Most authors who rely on the specific nature of international crimes in order to demonstrate the existence of a customary obligation to extradite or prosecute with respect to those crimes consider this obligation as having a jus cogens nature. This is the position adopted by Bassiouni and Wise 1995, Steven 1999, and Tiribelli 2009. Others (e.g., Wise 1993, Cryer 2005) generally oppose such ideas.

        • Bassiouni, M. C., and E. M. Wise. Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law. Dordrecht, The Netherlands: Martinus Nijhoff, 1995.

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          Considers that a jus cogens nature must be ascribed to the obligation to extradite or prosecute with respect to international crimes given the paramount importance of the obligation for the effective repression of those crimes, the prohibition of the latter being only meaningful, according to Bassiouni, “in so far as states are regarded as having an overriding obligation to bring those who perpetrate such [crimes] to justice” (p. 52).

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        • Cryer, R. Prosecuting International Crimes: Selectivity and the International Criminal Law Regime. Cambridge, UK: Cambridge University Press, 2005.

          DOI: 10.1017/CBO9780511494161Save Citation »Export Citation »E-mail Citation »

          Most of developments on the obligation to extradite or prosecute are devoted to systematically refute arguments ascribing a jus cogens nature to this obligation in relation to international crimes, such as arguments based on the conception of the society as a civitas maxima, the jus cogens nature of the prohibition of those crimes, Article 41 of ILC rules and international case law.

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        • Steven, L. A. “Genocide and the Duty to Extradite or Prosecute: Why the United States Is in Breach of Its International Obligations.” Virginia Journal of International Law 39.425 (1999): 446–450.

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          Infers the jus cogens nature of the obligation to extradite or prosecute with respect to international crimes (in particular genocide) from the absolute prohibition of those crimes, such prohibition being useless, in the author’s view, if states could derogate from their obligation to extradite or prosecute.

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        • Wise, E. M. “The Obligation to Extradite or Prosecute.” Israel Law Review 27.262 (1993): 280.

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          Emphasizes that ascribing a jus cogens nature to the obligation to extradite or prosecute would have absurd results, notably the invalidation “of all extradition treaties that provide for the extradition of nationals and so deprive the requested state of the option of trying itself” (p. 280).

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        Operation

        Much legal literature on the obligation to extradite or prosecute addresses issues related to the operation of the obligation, including the meaning of its two alternatives, the priority to be given to either of these alternatives, the conditions for triggering the obligation to prosecute, the existence of a third alternative or potential interference from a specific actor in the application of the obligation, the practicability of prosecution in case of non-extradition due to specific circumstances, as well as the links between the obligation and universal jurisdiction.

        Judicare

        Scholarship usually provides an analysis of the meaning of the judicare part of the obligation to extradite or prosecute. This analysis may concern any form of the obligation (Mitchell 2009, van Steenberghe 2011, Caligiuri 2012) or a specific one, such as this contained in the conventions dealing with terrorism (Mankiewicz 1971, Vallée 1976, Lambert 1990) or war crimes (Kress 2009).

        • Caligiuri, A. L’obbligo aut dedere aut judicare nel diritto internazionale. Milan: Giuffrè, 2012.

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          The most comprehensive and recent analysis of the meaning of the judicare part of the obligation to extradite or prosecute in general. Examines the jurisdictional bases involved by the obligation to prosecute and the procedural limits stemming from international immunities as well as national laws, like those linked to evidence or amnesty. Finally, proposes criteria for determining whether states have correctly applied the obligation to prosecute.

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        • Kress, C. “Reflections on the Judicare Limb of the Grave Breaches Regime.” Journal of International Criminal Justice 7 (2009): 789–809.

          DOI: 10.1093/jicj/mqp055Save Citation »Export Citation »E-mail Citation »

          The most detailed study on the judicare part of the obligation to extradite or prosecute under the four 1949 Geneva Conventions. Asserts that it only entails a duty to investigate and, where so warranted, to prosecute but argues against the exercise of any prosecutorial discretion based on national interests, immunity ratione personae and immunities under national law as bars to prosecution, and unlimited application of statutes of limitations.

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        • Lambert, J. J. Terrorism and Hostages in International Law: A Commentary on the Hostages Convention 1979. Cambridge, UK: Grotius, 1990.

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          Provides a detailed analysis of the scope of the judicare part of the obligation to extradite or prosecute modeled on the 1970 Hague Convention. In particular, the author emphasizes that the political offense exception may still act as a bar to prosecution; proceedings must be conducted in accordance with the criminal procedure of the custodial state and in the same manner as for other serious crimes under the law of that state.

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        • Mankiewicz, R. H. “The 1970 Hague Convention.” Journal of Air Law and Commerce 37.195 (1971): 204–205.

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          Discusses the meaning of the judicare part of the obligation to extradite or prosecute under the 1970 Hague Convention. Specifically argues that this convention may be interpreted as allowing state parties not to prosecute an alleged hijacker if they consider the hijacking as a political offense or if prosecution is deemed inappropriate for any other reason.

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        • Mitchell, C. Aut Dedere, aut Judicare: The Extradite or Prosecute Clause in International Law. Geneva, Switzerland: Graduate Institute, 2009.

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          Agrees that the judicare part of the obligation to extradite or prosecute does not affect prosecutorial discretion recognized in some states but argues for a reasonable interpretation of the clause referring to national law regarding the application of the obligation. Also questions amnesties and pardons as bars to prosecution. Argues in that regard for “an appropriate balance being struck between the avoidance of impunity and the need for [. . .] reconciliation process[ses]” (p. 69).

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        • Vallée, C. “La Convention européenne pour la répression du terrorisme.” Annuaire français de droit international 756 (1976): 776–780.

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          Emphasizes that as under the 1970 Hague Convention, the obligation to extradite or prosecute provided under the Council of Europe Convention for the Suppression of Terrorism does not affect the discretionary power of the relevant authorities to initiate proceedings. Nonetheless argues in light of the wording of the convention that it will be difficult not to initiate such proceedings given the serious nature of the offense.

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        • van Steenberghe, R. “The Obligation to Extradite or Prosecute: Clarifying Its Nature.” Journal of International Criminal Justice 9.1089 (2011): 1108–1110.

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          Although containing insightful considerations on the meaning of the judicare part of the obligation to extradite or prosecute in general, the main arguments seek to demonstrate that the competent authorities for prosecuting suspects of international crimes in lieu of extradition only retain a limited prosecutorial discretion.

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        Dedere

        Legal literature on the meaning of the dedere part of the obligation to extradite or prosecute is rather scarce, especially in comparison with the legal scholarship addressing the other part of the obligation (see Judicare). Developments on this part may nonetheless be found in general studies such as Mitchell 2009 and Caligiuri 2012, or in studies devoted to specific offenses, in particular war crimes as addressed in Van Elst 2004.

        • Caligiuri, A. L’obbligo aut dedere aut judicare nel diritto internazionale. Milan: Giuffrè, 2012.

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          The most comprehensive and recent study on the meaning of the dedere part of the obligation to extradite or prosecute in general. Analyses the extraditions rules contained in the relevant treaties, the classical limits to extradition, the impact of the human rights, refugee status and non-refoulement obligation on extradition process, and the issue of priority in case of several requests for extradition.

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        • Mitchell, C. Aut Dedere, aut Judicare: The Extradite or Prosecute Clause in International Law. Geneva, Switzerland: Graduate Institute, 2009.

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          Considers that the dedere part of the obligation to extradite or prosecute normally implies a formal extradition procedure, excluding processes such as deportations or renditions. Doubts that the handing over of the suspect (under the 1949 Geneva Conventions) is still acceptable in light of human rights’ evolution, and argues that the surrendering of the suspect to a state (under the 2006 Convention on Forced Disappearance) is limited to a specific situation.

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        • Van Elst, R. “Implementing Universal Jurisdiction over Grave Breaches of the Geneva Conventions.” Leiden Journal of International Law 13.815 (2004): 843.

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          Focuses on the dedere part of the obligation to extradite or prosecute under the four 1949 Geneva Conventions. Argues that it excludes expulsion and implies that the state requesting extradition must have made out a prima facie case.

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        Triggering

        The conditions for triggering the obligation to extradite or prosecute are disputed in legal literature. The main issue is whether the alternative obligation to prosecute is dependent upon a request for extradition and its refusal. Henzelin 2000 and Caligiuri 2012 address this issue in general studies on the subject, whereas David 2009 and Kress 2009 examine this issue in relation to war crimes, Burgers and Danelius 1988 with respect to torture and Vallée 1976, Guillaume 1989 and Lambert 1990 with regard to international terrorism.

        • Burgers, J. H., and H. Danelius. The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment. Dordrecht, The Netherlands: Martinus Nijhoff, 1988.

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          Argues in light of the preparatory works of the UN Torture Convention and its wording that the obligation to extradite or prosecute imposed by the convention should be interpreted as not making the alternative obligation to prosecute contingent upon a request for extradition, although the issue is not clearly settled in the text. See p. 136.

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        • Caligiuri, A. L’obbligo aut dedere aut judicare nel diritto internazionale. Milan: Giuffrè, 2012.

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          Distinguishes treaties that make the alternative obligation to prosecute dependent upon the refusal of a request for extradition (including the African and European conventions as well as some UN conventions) from treaties that do not impose such a condition (including those modeled on the 1970 Hague Convention, the UN Convention against torture, and the four 1949 Geneva Conventions). See pp. 14–72.

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        • David, E. Eléments de droit pénal international et européens. Brussels: Bruylant, 2009.

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          Distinguishes between treaties incorporating an obligation to extradite or prosecute (aut dedere aut judicare), whose application is dependent upon a request for extradition, and the four 1949 Geneva Conventions as well as the 1977 Additional Protocol I, providing for an obligation to prosecute or extradite (judicare vel dedere), whose application is not dependent upon such a request. See pp. 705–732.

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        • Guillaume, G. “Terrorisme et droit international.” Recueil des cours de l’Académie de droit international 215 (1989): 354–370.

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          Emphasizes that the issue of whether the alternative obligation to prosecute is dependent upon the refusal of a request for extradition is unclear with respect to all the conventions dealing with international terrorism and modeled on the 1970 Hague Convention.

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        • Henzelin, M. Le principe de l’universalité en droit pénal international: Droit et obligation pour les Etats de poursuivre et juger selon le principe de l’universalité. Brussels: Bruylant, 2000.

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          Distinguishes three groups of treaties: in the author’s view, the obligation to prosecute is clearly dependent upon a request for extradition in the first group (including interwar period, extradition, and some regional treaties); likely not in the second group (composed of multilateral treaties modeled on the 1970 Hague Convention) and definitely not in the third group of treaties (including the four Geneva Conventions and the Additional Protocol I). See pp. 294–324, 338–356.

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        • Kress, C. “Reflections on the Iudicare Limb of the Grave Breaches Regime.” Journal of International Criminal Justice 7.789 (2009): 796–797.

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          Argues that under the obligation to extradite or prosecute imposed by the four 1949 Geneva Conventions, the custodial state has a free choice between the two alternatives of the obligation. Opposes the idea that priority must be given to either prosecution or extradition.

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        • Lambert, J. J. Terrorism and Hostages in International Law: A Commentary on the Hostages Convention 1979. Cambridge, UK: Grotius, 1990.

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          Argues that under the obligation to extradite or prosecute contained in the 1979 Hostage Convention (modeled on the 1970 Hague Convention), “a State’s duty to prosecute an alleged offender present in its territory is in no way contingent upon a request for extradition from another State” (p. 196).

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        • Vallée, C. “La Convention européenne pour la répression du terrorisme.” Annuaire français de droit international 756 (1976): 776–780.

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          Argues that contrary to the 1970 Hague Convention, priority is clearly given to extradition under the obligation to extradite or prosecute provided in the Council of Europe Convention for the Suppression of Terrorism, as the obligation to prosecute is dependent upon the refusal of a request for extradition.

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        Priority

        Although the operation of the obligation to extradite or prosecute raises the important question of the priority to be given between several states having jurisdiction to prosecute the case, legal literature has quite neglected this question. Only two studies, Plachta 1999 and Caligiuri 2012, specifically address such issue.

        • Caligiuri, A. L’obbligo aut dedere aut judicare nel diritto internazionale. Milan: Giuffrè, 2012.

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          Contains insightful analyses on both the means for resolving conflicts between concurrent jurisdictions and the priority to be given to a particular state in the event several requests for extraditions are made. See pp. 113–120, 178–182.

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        • Plachta, M. “Aut Dedere Aut Judicare: An Overview of Modes of Implementation and Approaches.” Maastricht Journal of European and Comparative Law 6.332 (1999): 335–340.

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          Discusses the issue of conflicting jurisdictions and proposes a list of factors (inspired by Canadian case law) enabling “the particular circumstances of each case to be given due consideration in the process of making a decision regarding” the state jurisdictions that should preferably prosecute the case (p. 339).

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        Third Alternative and Interference

        The operation of the obligation to extradite or prosecute may involve another actor than the states bound by the obligation. Such actor may be an international criminal jurisdiction to which the suspect is to be surrendered instead of being prosecuted or extradited to another state. This is the so-called third alternative, a particular hypothesis specifically addressed by some authors, such as Van Elst 2004, Mitchell 2009, and Caligiuri 2012. Another situation is when a specific actor such as the UN Security Council interferes in the operation of the obligation by paralyzing the choice between extradition and prosecution. The Lockerbie case is illustrative of this situation. Some authors, such as Plachta 2001, have made a systematic analysis of that case.

        • Caligiuri, A. L’obbligo aut dedere aut judicare nel diritto internazionale. Milan: Giuffrè, 2012.

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          Analyzes the few treaties that provide for a “third alternative,” in particular the 2006 UN Convention on forced disappearance as well as the 2007 African Charter on Democracy, Elections and Governance. See pp. 73–78.

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        • Mitchell, C. Aut Dedere, aut Judicare: The Extradite or Prosecute Clause in International Law. Geneva, Switzerland: Graduate Institute, 2009.

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          Mentions the 2006 UN Convention on forced disappearance and the ILC Draft Code against the Peace and Security of Mankind as referring to a “third alternative” hypothesis. Examines potential problems arising when a state is bound to apply both the obligation to extradite or prosecute and the obligation to surrender suspects to an ad hoc or permanent international criminal jurisdiction. See pp. 69–71.

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        • Plachta, M. “The Lockerbie Case: The Role of the Security Council in Enforcing the Principle Aut Dedere Aut Judicare.” European Journal of International Law 12 (2001): 125–140.

          DOI: 10.1093/ejil/12.1.125Save Citation »Export Citation »E-mail Citation »

          Analyzes the Lockerbie case in which the UN Security Council required Libya to surrender the suspects of an aerial terrorism act, although Libyan authorities claimed to have the choice to either prosecute or extradite the suspects under the 1971 Montreal Convention. Discusses, in light of this precedent, the potential interference of the UN Security Council in the operation of the obligation to extradite or prosecute.

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        • Van Elst, R. “Implementing Universal Jurisdiction over Grave Breaches of the Geneva Conventions.” Leiden Journal of International Law 13.815 (2004): 844–846.

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          Elaborates on the positive and negative aspects of considering the handing over of a suspect to an international criminal jurisdiction (ICTY, ICTR, or ICC) as a third alternative of the obligation to extradite or prosecute. Proposes a viable division of work between states and international criminal jurisdictions for the prosecution of international crimes.

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        Practicability

        Legal literature has emphasized the practical problems that may affect the operation of the obligation to extradite or prosecute. Many problems are listed by works such as Schutte 1991. Yet, legal scholars (e.g., Dugard and Van Den Wyngaert 1998, Plachta 1999, Van Elst 2004) usually focus on the difficulties in prosecuting a case when extradition has been refused on specific grounds, including human rights ones, especially problems regarding criminal cooperation with the requesting state.

        • Dugard, J., and C. Van den Wyngaert. “Reconciling Extradition with Human Rights.” American Journal of International Law 92.187 (1998): 192–193.

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          Emphasizes three main problems related to interstate cooperation in prosecuting a case when extradition has been refused on human rights grounds: the requesting state is not likely to cooperate in gathering evidence; the requested state is likely to be suspicious regarding evidence forwarded to it by the requesting state and the latter may not be willing to have the case prosecuted by another state because of the non bis in idem principle.

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        • Plachta, M. “Aut Dedere Aut Judicare: An Overview of Modes of Implementation and Approaches.” Maastricht Journal of European and Comparative Law 6.332 (1999): 341–342.

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          Highlights that the requested state may be unable or unwilling to prosecute its nationals when extradition of such individuals has been refused; that prosecution of crimes committed in another territory of the custodial state is likely to be conducted in a “careless, indifferent and intermittent manner” by that state and that cooperation in gathering evidence is rendered difficult (p. 341).

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        • Schutte, J. J. E. “Enforcement Measures in International Criminal Law.” Revue international de droit pénal 52.441 (1991): 445–448.

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          Mentions nine general problems regarding the operation of the obligation to extradite or prosecute, including those related to the practicability of prosecution in case of non-extradition based on specific reasons; the interpretation of the obligation; the lack of uniformity between the terms of the obligation and the wording of related obligations (dealing with state jurisdiction); and the limited ratione personae scope of the obligation.

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        • Van Elst, R. “Implementing Universal Jurisdiction over Grave Breaches of the Geneva Conventions.” Leiden Journal of International Law 13.815 (2004): 848–850.

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          Underlines some problems with respect to cooperation in gathering evidence when prosecution of grave breaches of the four 1949 Geneva Conventions is conducted on the basis of universal jurisdiction or after a request for extradition has been refused for human rights reasons.

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        Links to Universal Jurisdiction

        Legal literature is divided on the issue of the relationships between the obligation to extradite or prosecute and universal jurisdiction. While scholarship such as Schutte 1991, Van Elst 2004, and Mitchell 2009 argue that the obligation necessarily implies the assertion of such jurisdiction, Tiribelli 2009 and van Steenberghe 2011 establish a clear distinction between the two. In addition, other works, such as Reydam 2003, Kress 2006, and Ryngaert 2008, refer to the specific form of the obligation to extradite or prosecute (provided by a treaty) in order to determine the nature of the universal jurisdiction associated with it.

        • Kress, C. “Universal Jurisdiction over International Crimes and the Institut de Droit international.” Journal of International Criminal Justice 4.561 (2006): 566–568.

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          Uses expressions such as “absolute universality” to qualify universal jurisdiction related to core international crimes and aiming at the protection of fundamental values of the international community. Distinguishes it from what he qualifies as the “representative universal jurisdiction principle” provided under the multilateral treaties up to 1970, which aims at the protection of parallel state interests as evidenced by the specific form of obligation to extradite or prosecute contained therein.

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        • Mitchell, C. Aut Dedere, aut Judicare: The Extradite or Prosecute Clause in International Law. Geneva, Switzerland: Graduate Institute, 2009.

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          Asserts that the aut dedere aut judicare obligation is twofold and implies both the obligation to establish the appropriate jurisdiction and the obligation to prosecute the suspect in case of non-extradition. Also considers the lack of state assertions of universal jurisdiction for prosecuting international crimes in case of non-extradition as an argument against the evidence of a customary obligation to extradite or prosecute. See p. 6, 32–33.

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        • Reydam, L. Universal Jurisdiction: International and Municipal Legal Perspectives. Cambridge, UK: Cambridge University Press, 2003.

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          Qualifies universal jurisdiction as a “cooperative universality principle” when associated with an obligation to extradite or prosecute that makes prosecution depend upon the refusal of a request for extradition, whereas qualifies it as a “unilateral universal principle” when coupled with an obligation to extradite or prosecute which requires prosecution independently of a request for extradition. See pp. 28–42.

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        • Ryngaert, C. Jurisdiction in International Law. Oxford: Oxford University Press, 2008.

          DOI: 10.1093/acprof:oso/9780199544714.001.0001Save Citation »Export Citation »E-mail Citation »

          Asserting that the obligation to extradite or prosecute is only of conventional nature, the author seems to endorse the position that when universal jurisdiction is exercised on the basis of such obligation, states do not in fact exercise universal jurisdiction, since the obligation is limited to state parties. Nonetheless, the author emphasizes that this obligation is sometimes applied to nationals of non-state parties and may become declaratory of customary law regarding some treaties. See pp. 104–106.

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        • Schutte, J. J. E. “Enforcement Measures in International Criminal Law.” Revue international de droit pénal 52.441 (1991): 443.

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          Asserts that the establishment of a system of aut dedere aut judicare implies the obligation to assume universal jurisdiction.

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        • Tiribelli, C. “Aut dedere Aut Judicare: A Response to Impunity in International Criminal Law?” Sri Lanka Journal of International Law 21.231 (2009): 235–236, 244–245.

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          Argues that the obligation to extradite or prosecute is not a corollary but a separate principle of universal jurisdiction.

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        • Van Elst, R. “Implementing Universal Jurisdiction over Grave Breaches of the Geneva Conventions.” Leiden Journal of International Law 13.815 (2004): 817–821.

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          Argues, in light of the preparatory works of the four 1949 Geneva Conventions, that the obligation to establish universal jurisdiction is implicit in the obligation to extradite or prosecute under those conventions.

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        • van Steenberghe, R. “The Obligation to Extradite or Prosecute: Clarifying Its Nature.” Journal of International Criminal Justice 9.1089 (2011): 1102–1107.

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          Argues that the obligation to extradite or prosecute as such is conceptually distinct from the aut dedere aut judicare system usually associated with it and requiring to assert universal jurisdiction. Therefore claims that the obligation may exist without the assertion of such extraterritorial jurisdiction, this claim being the basis of the author’s argument in favor of a customary obligation to extradite or prosecute.

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        LAST MODIFIED: 11/27/2013

        DOI: 10.1093/OBO/9780199796953-0023

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