Is Aut Dedere Aut Judicare (Extradite or Prosecute) Obligation A Duty Rooted in Customary International Law? Part II

Is Aut Dedere Aut Judicare (Extradite or Prosecute) Obligation A Duty Rooted in Customary International Law? Part II

2.2)- Nature of the crimes

Even if it is accepted that duty to extradite or prosecute does have its roots in customary international law, such duty may only arise with respect to crimes under international law. However, the crimes established by counter-terrorism and organised crime convention can at best be regarded crimes of international concern.

2.2.1)- Crimes under International Law:

The international instruments which are usually cited to support customary law status of aut dedere au tjudicare refer to crimes under international law.[1] For example, ILC’s Draft Code of Crime Against Peace and Security of Mankind 1996 recognizes the existence of an international duty to extradite or prosecute with respect to certain types of crimes which constitute threats to international peace and security.[2] These include genocide, war crimes, crimes against United Nations and Associated Personnel and crimes against humanity.[3]In the same way, certain crimes which shock the conscience of humanity or endanger its commonly held values are also considered to be crimes under international law. These include torture, slavery and piracy. [4]Following are some distinctive features of these crimes:

2.2.1.1- Individual criminal responsibility

One common feature of these crimes is that nearly all them give rise to individual criminal responsibility of the offender at international law.This implies that the offender is held responsible for his crime, independent of the responsibility of the state concerned.[5]For example, Draft Code of Crimes Against peace and Security of Mankind 1996 provides, ‘A crime against peace and security of mankind entails individual criminal responsibility.’[6] Similarly, 1998 Rome Statute of the ICC provides, ‘A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.’[7]Although individual criminal responsibility is not established by every convention proscribing crimes under international law, in relation to these crimes the responsibility is said to flow from customary international law.[8]For example, the Torture Convention 1984 does not establish individual criminal responsibility. However, the prohibition against torture doubtlessly represents customary international law.[9]Thus, it was held by the ICJ in Belgium v. Senegal, ‘[i]n the Court’s opinion, the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens)’.[10]

2.2.1.2- Prosecution before International Criminal Court (ICC)

A number of these crimes have been prosecuted before International Criminal Court (ICC). [11] These include genocide, war crimes, crimes against humanity and aggression.[12] The ICC has been given complementary jurisdiction over these crimes along with national courts.[13] However, since the jurisdiction of the ICC does not extend to the whole class of crimes under international law, some of them are prosecutable before national courts only.[14] For example, the crimes of Torture and Piracy despite being considered crimes under international law are prosecuted before national courts alone.[15]

2.2.1.3- Threat to common values of mankind

In relation to crimes under international law, it is believed that the custodial state owes it international community besides the injured state to bring the offender to justice.[16] This is so because the crimes are deemed to threaten the commonly shared values of humanity.[17]In the words of Bassiouni:

“These are offences reprehended by international community as a whole. These are offences against world public order. They are of concern to all states and all states ought to cooperate in bringing to justice those who commit such crimes.”[18]

The argument is fortified by the judgement of the ICJ in Belgium v. SenegalIn para. 68 of its judgment the Court observed that:

“The States parties to the Convention have a common interest to ensure, in view of their shared values, that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity...”[19]

2.2.1.4- No treaty is required for extradition or prosecution of the offender

As regards crimes under international law, the duty to extradite or prosecute flows from common interest which states have in the suppression of international offences. Hence, no bilateral treaty is required between the custodial and the injured states with respect to extradition or prosecution of the offender involved in these crimes, the obligation automatically flows from customary international law.[20]According to one commentator:

“In the absence of a system of direct law enforcement through prosecution before international court, reliance has to be placed on individual states to prosecute international offenders before their own courts. The whole effort to bring such offenders to justice will be frustrated if states do not accept a duty to prosecute or else to extradite them to a state which is prepared to prosecute.”[21]

2.2.2- Crimes of International Concern or Treaty Crimes

By contrast, crimes set forth by international counter-terrorism and organised crime conventions are called crimes of international concern or treaty crimes.[22]These include varying types of offences ranging from aircraft terrorism, hostage taking, bombing of places, navigational terrorism, nuclear terrorism and theft, financing of terrorism, corruption, drug trafficking, human and arms trafficking as well as human smuggling. The only factor common in all these crimes is their transgression of national boundaries.[23] The incorporation of these crimes in multilateral conventions shows that there is a level of international concern about them. Following are the major differences between these crimes and the crimes under international law.

2.2.2.1-Absence of individual criminal responsibility at international law

Unlike Rome Statute and the Draft Code, the conventions on terrorism and organised crime while defining these offences, do not establish individual criminal responsibility of the offenders at international law, neither do they make these crimes prosecutable before international courts.[24] Instead, these conventions only require the parties  to take all necessary measures to establish them as crimes under their national law.[25]

2.2.2.2- Absence of precise definition

The crimes of international concern do not have any precise definitions.[26] The conventions establishing these crimes define them broadly and leave it up to the parties to settle the particularities of their definitions.[27]Accordingly, the UN Convention against Transnational Crime (UNTOC) 2000 and UN Convention against Corruption 2003(UNCAC) expressly provide that description of offences is reserved to domestic law of state parties.[28] This scheme is implicit in counter-terrorism conventions because majority of them do not require the adoption of exact definitions of crimes and those which do, leave enough room for the parties to adjust them in accordance with domestic law requirements.[29]To the contrary, crimes under international law are usually defined with precision.[30]

2.2.2.3- Insufficient level of threat evoked by treaty crimes

The most significant dissimilarity between the two categories of crimes is that crime of international concern or treaty crimes do not generate sufficient level of threat to evoke international response. [31]  According to Neil Boister, ‘treaty crimes are not by definition a threat to international peace and security or so egregious to shock the conscience of humanity’.[32] Hence, the offenders can at best be regarded enemies of states parties.[33] The incorporation of these crimes in multilateral conventions shows that there is a level of international concern about them; however, they still remain crimes under national law.

2.2.2.4- Requirement of bilateral treaty to give effect to duty to extradite or prosecute

Since the crimes established by counter-terrorism and organised crime conventions do not pose a threat to commonly shared values, it is obvious,no customary law duty underpins extradite or prosecute obligation pertaining to these crimes. Hence, the obligation in relation to these crime flows from treaty law only, which is based on principle of reciprocity or exchange of comparable favors.[34] Under this principle, a requested state agrees to surrender fugitives, in anticipation of receiving similar treatment from the requesting state in future, if the circumstances are reversed.[35]There is no international duty, independent of the treaty to bring the offender to justice.[36] In other words, there is no international right to insist upon surrender of fugitives, absent bilateral treaty.[37]This argument is fortified by the ICJ’s judgement in Lockerbie case.[38] A Joint declaration by Judges Evensen, Tarassov, Guillaume and Aguilar Mawdsley reads as follows:

Insofar as general international law is concerned, extradition is a sovereign decision of the requested state which is never under an obligation to carry it out. Moreover, in general international law, there is no obligation to prosecute in default of extradition…This being so every state is at liberty to request extradition and every state is free to refuse it. [39]

2.3- ILC’s working group’s report on the status of aut dedere aut judicare and the ICJ’s judgement in Belgium v. Senegal

According to the report of ILC’s working group, the essential requirements of custom are found to be missing with respect to the obligation to extradite or prosecute.[40] These requirements are given under Article 38(i)(b) of the statute of International Court of Justice(ICJ) and comprise the elements of state practice and opinio juris.[41] The report suggests, neither the practice of states is uniform enough [42]nor states consider it their legal obligation to extradite or prosecute the offender, in the absence of a treaty.[43]  However, the report emphasizes that a customary rule may well be in the making concerning the crimes under international law.[44]

This observation has partially been overruled by the judgement of the ICJ in Belgium v. Senegal, according to which, to the extent of crimes under international law such as torture, the obligation to prosecute represents an international obligation whereas the obligation to extradite remains reciprocal. In para. 95 of its judgment the Court stated that:

Extradition is an option offered to the State by the (Torture) Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State.[45]

Since the crimes set forth by counter-terrorism and organised crime conventions do not fall into this category of crimes, in relation to them, neither the obligation to prosecute can be said to underpin an international obligation nor is it likely that both the obligations may in future acquire the status of custom.

In the light of above, scholarly emphasis on tracing the customary origin of aut dedere aut judicare rule, as contained in counter-terrorism and organised crime treaties, appears to be misplaced. The aim of giving customary status to a treaty obligation is to enhance the case for its observance by making the parties realize that the obligation is not simply contractual but represents a rule of international law.[46] Nevertheless, states are already bound to perform their treaty obligations in good faith under Article 26 of the Vienna Convention 1969, which is said to represent customary international law.[47] If states can violate this obligation, it is possible; they will not refrain from breaching other obligations under customary law. It can thus be argued that the weakness lies in the law of state responsibility rather than in the less binding nature of aut dedere aut judicare rule.[48]

—–

References:

[1] See article 1(2) Draft Code of Crimes against Peace and Security of Mankind 1996 “Crimes against the peace and security of mankind are crimes under international law and punishable as such, whether or not they are punishable under national law.”

[2] See article 9 Draft Code of Crimes against Peace and Security of Mankind 1996

[3] See article 17, 18, 19 & 20 Draft Code of Crimes against Peace and Security of Mankind 1996

[4]Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), ICJ Judgement July 20, 2012 at para 68; See also See Neil Boister,“Treaty Crimes, International Criminal Court?  12 New Criminal Law Review: An International and Interdisciplinary Journal(2009) 341 at 349

[5] See article 25 Rome Statute of the ICC 1988

[6] See article 2(1) Draft Code of Crimes against Peace and Security of Mankind 1996 “A crime against the peace and security of mankind entails individual responsibility.”

[7] See article 25(2) Rome Statute of the ICC 1998

[8] See Neil Boister,“Treaty Crimes, International Criminal Court?  12 New Criminal Law Review: An International and Interdisciplinary Journal(2009) 341 at 349

[9] ibid

[10]Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), ICJ Judgement July 20, 2012 at para 99

[11] The examples of international conventions setting up international courts or tribunals include Genocide Convention 1948 and Rome Statute of the ICC 1988.  See for instance article 1 and 6 of the Genocide Convention 1948. Article 1 provides states parties confirm that Genocide constitutes a crime under international law and article 6 makes the offence triable by national courts as well as by such international penal tribunal which may have jurisdiction and whose jurisdiction has been consented to by states parties. See also article 5(1) of the Rome Statute of International Criminal Court(ICC)1988. “The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole.” These include Genocide, Crimes against humanity, War Crimes and aggression. Also see article 25 Rome Statute 1998

[12] See article 5 Rome Statute of ICC 1998

[13] See article 17 Rome Statute of ICC 1998

[14]Examples of Crimes under International law prosecutable before national courts alone include Piracy and Torture. The International Conventions dealing with both these crimes make the offences prosecutable before national courts only. See for instance, UN Convention on Law of the Sea (UNCLOS) 1982, Rome (SUA) Convention 1988 and UN Convention against Torture 1984.

[15] ibid

[16] Either by surrendering him or through subjecting him to domestic prosecution

[17] such as prohibition against genocide or war crimes

[18]Bassiouni (n 1)24

[19]Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), ICJ Judgement July 20, 2012 at para 68

[20]Bassiouni (n 1)21

[21]Bassiouni (n 1)24

[22] Neil Boister,“Treaty Crimes, International Criminal Court?  12 New Criminal Law Review: An International and Interdisciplinary Journal(2009) 341 at 349

[23] In relation to the involvement of more than one state in their perpetration or nationality of the victims and offenders or their location

[24] See article 2(1) Draft Code of Crimes against Peace and Security of Mankind 1996 “A crime against the peace and security of mankind entails individual responsibility.” See also article 25 Rome Statute of the ICC 1998

[25] Some of the international conventions do require the states to take legislative measures to establish these offences as crimes under national law. These for example, include Terrorist Bombing Convention 1997, Terrorist Financing Convention 1999 and UN Convention against Transnational Organized Crime(UNTOC) 2000. However, even these conventions provide in their separate provisions that offences shall be defined in accordance with national law.

[26] Neil Boister (n 79) at 346

[27] ibid

[28] See article 30(9) UN Convention against Corruption(UNCAC) 2003; also see article 11(6) UN Convention against Transnational Organized Crime(UNTOC) 2000

[29] ibid

[30] See for example article 2 Genocide Convention 1948; See also articles 6, 7 & 8 Rome Statute of the ICC 1998

[31] See Neil Boister, “Treaty Crimes, International Criminal Court?”  12 New Criminal Law Review: An International and Interdisciplinary Journal(2009) 341 at 349

[32] ibid at 346

[33] ibid

[34]Bassiouni (n 1)21 &22, 37

[35]Bassiouni (n 1) 37

[36] ibid

[37] ibid

[38] Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, 1992 ICJ Reports 3(Apr 14); Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States), ICJ Reports (1992) 225

[39] Joint declaration of Judges Evensen, Tarassov, Guillaume and Aguilar Mawdsley, 1992 I.C.J 136(Apr 14) para 2;See also Omer Y. Elegab, “ The Hague as the Seat of Lockerbie Trial: Some Constraints”34 The International Lawyer (2000) 289 at 300

[40]ZdzislawGalicki, 4th report on the obligation to extradite or prosecute submitted in the 63rd session of the ILC. See A/CN.4/648

[41] See article 38(I)(b) Statute of International Court of Justice “1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply…(b) international custom, as evidence of a general practice accepted as law…

[42] with respect to performance of the obligation

[43]ZdzislawGalicki, 4th report on the obligation to extradite or prosecute submitted in the 63rd session of the ILC. See A/CN.4/648

[44] ibid

[45]Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), ICJ Judgement July 20, 2012 at para 95

[46]Bassiouni (n 1)20

[47] See article 26 Vienna Convention on Law of Treaties 1969 “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

[48]Bassiouni (n 1)41-42

 

 

The paper has been previously published in International Journal of Humanities and Social Science (IJHSS) Vol. 5, No. 9(1); September 2015, pp.239-248.

This paper consist of two parts. Part I is also available in the Commentary Section of the website.

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Dr Usman Hameed

The writer holds a PhD in Law from the University of Glasgow, UK.



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