Th e obligation to extradite or prosecute cannot be treated as a traditional topic only. International terrorism and the principle aut dedere aut judicare 211 and shall bring such persons, irrespective of their nationality, before its own courts. In many cases the aut dedere aut judicare principle remains purely theoretical, and states that have courageously tried to implement the principles of universal jurisdiction and complementarity in a more systematic and concrete manner through their national legislation have not been long in realizing. Amnesty international in a 2001 publication stated that under this principle a state may not shield a person suspected of certain categories of crimes. Does customary international law obligate states to extradite or prosecute. The idea behind the maxim aut dedere, aut judicare originally stems from grotius.
This obligation is classically understood as requiring the custodial. Crimes against humanity are not set out in any comprehensive, global treaty. States have an obligation to prosecute or extradite persons suspected of torture the convention against torture was the first human rights treaty to set out the obligation to establish universal jurisdiction. As a qualitative matter of modern international law, terrorist offenses are on substantive par with the grave breach provisions of the 1949 geneva conventions, the 1948 genocide convention, and the provisions of the torture convention precisely because of the aut dedere aut judicare obligation. Information from and observations by china on the scope and. Belgium submitted that, by failing to prosecute mr. Universal jurisdiction for international crimes a case study. The principles of universal jurisdiction and complementarity. The obligation to extradite or prosecute aut dedere aut judicare. In the case of grave breaches of the geneva conventions and the crime of torture, international treaties make prosecution not only a right but a duty. As the most serious war crimes grave breaches should not be left unpunished, the 1949 geneva conventions contain an unusually worded obligation to either prosecute such a suspected war criminal or to hand him over to another country to be tried there aut judicare aut dedere in stead of aut dedere aut judicare. The conventions thus make an important contribution to the principle of.
Universal instruments international humanitarian law geneva conventions of 1949 cuba stating that it introduced the application of universal jurisdiction to violations characterized as grave breaches. Convention against corruption, the convention for the suppression of unlawful seizure of aircraft, the convention against torture and other cruel. Does customary international law obligate states to extradite. The taking of hostages as a means of ensuring the execution of armistices and other agreements, or as a means of punishment and reprisal, was an accepted part of the ancient, ritualised law of war. This construction is included in the four geneva conventions of 1949, 30 which provide. International criminal law prosecution and defense britannica. Implementing universal jurisdiction over grave breaches of. The laws of war are usually described in terms of geneva law, which relates to the protection of noncombatants, and hague. Under the principle known as aut dedere aut judicare latin. The obligation to extradite or prosecute after the icjs judgment in belgium v. The state party may also elect not to prosecute if it prefers to extradite the person to a requesting state. The final section of this part seeks to dispel certain myths and correct.
The obligation of aut dedere aut judicare in international law colleen enachebrown and ari fried this note focuses on the arbitrary distinction in international human rights and humanitarian law between heinous crimes committed in international con. Eu support to domestic prosecution of violations of. The obligation aut dedere aut judicare has been present in several legal collaboration instruments, such as the four geneva red cross conventions of. Convention for the suppression of terrorist bombings, the u. Acn4571, 7 june 2006 11 maastricht principles on extraterritorial obligations of states in the area of economic social and cultural rights, sept. Jurisdiction over war crimes ihl database customary. Universal jurisdiction for international crimes a case study rahim hesenov published online. The obligation of aut dedere aut judicare in international law. Observations by belgium on the scope and application of. Followup report on the implementation by france of the. Aug 11, 20 as a qualitative matter of modern international law, terrorist offenses are on substantive par with the grave breach provisions of the 1949 geneva conventions, the 1948 genocide convention, and the provisions of the torture convention precisely because of the aut dedere aut judicare obligation. Does customary international law obligate states to. An overview of modes of implementation and approaches, 6 maastricht journal of european and comparative law, 1999, pp. Observations by belgium on the scope and application of the principle of universal jurisdiction.
Typical examples of such conventions are the 1963 convention on offences and certain other acts committed on board aircraft,3 the 1971 convention for the. The obligation to extradite or prosecute aut dedere aut. Whereas such duty expressed a clear political imperative in the aftermath of 11 september 2001, it is less clear how national authorities are supposed to translate it into a set of enforceable legal obligations. Accused persons must be brought before the competent courts and, if found guilty, sentenced. The extradite or prosecute clause in international law. Under the aut dedere aut judicare principle, the only condition for the obligation to prosecute to arise is the. Then it explains the part that universal jurisdiction can play in ending that impunity. The oxford companion to international criminal justice is the first major reference work to provide a complete overview of this emerging field.
Most of them contain an aut dedere aut judicare clause requiring custodial states to either extradite or prosecute suspects. In this construction the obligation to prosecute has primacy, and there is only an option to extradite. A concept related to extradition that has significant implications in transnational criminal law is that of aut dedere aut judicare. Chapter seven international convention against the taking of hostages 1979 hostages convention 1. The obligation aut dedere aut judicare extradite or.
The geneva conventions also introduced the system of grave breaches and the obligation of all states parties to prosecute or to extradite violations listed as such, aut dedere aut judicare. Th e obligation aut dedere aut judicare has been present in several legal collaboration instruments, such as the four geneva red cross conventions of 1949 and treaties which follow either the 1929 convention for the suppression. States military manual which describes the geneva conventions provisions dealing with. Thus states party to the conventions were required by them to enact legislation which would give jurisdiction to their courts to. Commenting on the categories of crimes associated with the obligation. It is said to require a state to either extradite or prosecute an accused who is found on its territory. Combined 5th and 6th periodic report on the implementation.
Habre for certain acts he was alleged to have committed during his presidency, including acts of torture and crimes against humanity, or to extradite him to belgium, senegal had violated the socalled obligation aut dedere aut judicare that is to say, to prosecute or extradite. The obligation to extradite or prosecute aut dedere aut judicare agenda item 10 document acn. Geneva conventions for the protection of war victims geneva, 12 august 1949 united nations. For the other core crimes it is questionable whether customary international law. The state party must prosecute perpetrators of serious crimes who are in its territory. January 2016 abstract the thesis focuses on the scope, content, sources and applicability of the obligation aut dedere aut judicare pertaining to certain international crimes such as genocide, war crimes, crimes against humanity, the prohibition of torture, drug trafficking, hijacking of civil aviation and. Aut dedere aut judicare office of legal affairs the united. Whilst all the other treaties speak of extradition, the geneva conventions speak of handing such persons over for trial to another high contracting party. Indeed, six decades ago the drafters of the geneva conventions of 1949 envisaged that the. Extradite or prosecute aut dedere aut judicare obligation finds expression in nearly all counterterrorism and organised crime conventions and a number of unsc resolutions as a primary means to deny safe heavens to fugitive offenders. Duty to bring terrorists to justice and discretionary prosecution.
Although many of the treaties containing the aut dedere aut judicare. Part ii provides background information regarding the aut dedere aut judicare. The role of the security council in enforcing the principle aut dedere aut judicare, 12 european journal of international law, 2001. The third construction of the aut dedere aut judicare principle establishes an order that is the reverse from the first construction. Extraterritorial jurisdiction as a tool for improving the human rights accountability of. This maxim represents the principle that states must either surrender a criminal within their jurisdiction to a state that wishes to prosecute the criminal or prosecute the offender in its own courts. The scope and operation of the obligation openedition books. Principle based on which every state party to the 1949 geneva conventions has the obligation to search persons accused of having committed or ordered the commission of any of the grave breaches defined by the law of armed conflict. We believe that provisions on aut dedere aut judicare and universal jurisdiction are essential. Enforcement and deterrence hinges on individual criminal responsibility premised on universal jurisdiction.
The conventions thus make an important contribution to the principle of universal jurisdiction over crimes jure gentium. This report is intended to summarize and to highlight particular aspects of the work of the commission on the topic the obligation to extradite or prosecute aut dedere aut judicare. Latest developments questions relating to the obligation to. But article 7 of the rome statute of the international criminal court icc regarding crimes against humanity is now generally accepted despite some differences in the text between the statutes of the icty, the international. For example, the geneva conventions of 1949 placed an obligation on state parties to the conventions to either prosecute or extradite alleged offenders of the terms of the conventions, applying the principle of aut dedere aut judicare.
For the core crimes of genocide, war crimes and crimes against humanity, there is a treatybased obligation aut dedere aut judicare only for grave breaches of the geneva conventions and additional protocol i. The obligation of aut dedere aut judicare for all crimes is however not assured, and stigall notes that some contemporary scholars hold the opinion that aut dedere aut judicare is not an obligation under customary international law but rather a specific conventional clause relating to specific crimes and, accordingly, an obligation that. Table with aut dedere aut judicare provisions of ihl treaties and other relevant documents geneva convention i of 1949 art. Sri lanka association against impunity to the committee. Many international agreements contain provisions for aut dedere aut judicare. January 2016 abstract the thesis focuses on the scope, content, sources and applicability of the obligation aut dedere aut judicare pertaining to certain international crimes such as genocide, war crimes, crimes. Treaties containing aut dedere aut judicare articles and supplementary jurisdictional articles. Cypruss geneva conventions act 1966, referring to article 50 of the 1949 geneva convention i, article 51 of the 1949 geneva convention ii, article of the 1949 geneva convention iii and article. The same is true for the geneva convention for the suppression.
Although regional, the european convention of human rights has also been invoked as a bar to extradition in a number of cases falling within its jurisdiction and decisions from the european court of human rights have been a useful source of development in this area. Observations by belgium on the scope and application of the. The same principle is sometimes phrased aut dedere aut prosequi. These include all four 1949 geneva conventions, the u. The aut dedere aut judicare obligation in conventional law. Other controversial issues are concerned with the operation of the obligation, mainly the definition of its two. This report is intended to summarize and to highlight particular aspects of the work of the commission on the topic the obligation to extradite or prosecute aut dedere aut judicare, in order to assist states in this matter. Extraterritorial jurisdiction as a tool for improving the. This obligation is known as aut dedere aut judicare. Common article 3 of the four geneva conventions 1949, and protocol 2 to the geneva conventions of 1977, where the state. The commission, at its fiftyseventh session 2005, decided to include the topic the obligation to extradite or prosecute aut dedere aut judicare in its programme of work and appointed mr. Cooperation in extradition and judicial assistance in. Aut dedere aut judicare means that states where the suspect is have the c hoice between extraditing or judging him. Crimes against humanity are not set out in any comprehensive.
Thus, the conventions establish not an obligation aut dedere aut judicare, but what might be termed an obligation judicare vel dedere. Universal jurisdiction luc reydams yale university. Terrorist crimes and the aut dedere aut judicare obligation. 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. Information from and observations by china on the scope. Chapter x the obligation to extradite or prosecute. Chapter x the obligation to extradite or prosecute aut. Protocol if additional to the ge neva conventions of august 12, 1949 and relating to the protection of victims of non. Is aut dedere aut judicare extradite or prosecute obligation a duty rooted in customary international law. The move to end impunity for human rights atrocities has seen the creation of international and hybrid tribunals and increased prosecutions in domestic courts. The obligation to extradite or prosecute aut dedere aut judicare 83source protocol additional to the geneva conventions of 12 august 1949, and relating to the protection of victims of international armed conflicts protocol i geneva, 8 june 1977. Geneva conventions for the protection of war victims geneva, 12 august 1949.