Is Aut Dedere Aut Judicare (Extradite or Prosecute) Obligation A Duty Rooted in Customary International Law? Part I
Abstract
Extradite or Prosecute (Aut dedere aut judicare) obligation finds expression in nearly all counter-terrorism and organised crime conventions and a number of UNSC resolutions as a primary means to deny safe heavens to fugitive offenders. This led some scholars to claim that the duty has its roots in customary international law. The assertion has its implications for state cooperation in law enforcement. By asserting that aut dedere aut judicare is embedded in customary international law, these scholars imply that the obligation becomes enforceable as soon as a fugitive arrives in the territory of a state party, whether or not any bilateral treaty exists between state of refuge and state of commission of crime.
This paper suggests that aut dedere aut judicare as contained in counter-terrorism and organised crime conventions still remains a bilateral and reciprocal undertaking, dependent on the existence of a bilateral treaty between cooperating state and/or authorisation under national law of the custodial state. There might be a number of crimes with respect to which the obligation may have assumed the character of an emerging norm of customary international law; however, ‘treaty crimes’ do not fall under this category of crimes.
Introduction:
The UN Sponsored international suppression conventions on terrorism and organised crime oblige the parties to adopt the mechanism of aut dedere aut judicare. The mechanism requires a state in the territory of which an offender is found either to extradite or prosecute him. Hence, the mechanism demands the adoption of alternative modalities of law enforcement, so that if one fails, the other can be employed to offer inter-state assistance. Its purpose is to make sure that the offender may not avoid punishment under any circumstances.
The international suppression conventions are designed to facilitate state cooperation in law enforcement with respect to crimes that transcend national borders.[1] State cooperation has so far been carried out on reciprocal basis necessitating a bilateral treaty between cooperating states, duplicating the principles of national law.[2] According to some scholars, the inclusion of aut dedere aut judicare in international suppression conventions has transformed the nature of the obligation by making it an international rather than a reciprocal undertaking.[3] This paper looks into the question of the extent to which aut dedere aut judicare rule as contained in counter-terrorism and organised crime conventions represents an international obligation independent of bilateral treaty.
It will be suggested that formulation of the obligation as well as the nature of the crimes set forth by the conventions indicate that both the alternatives obligations i.e. extradition and prosecution are subject to national law and bilateral treaties. Had there been an international duty, independent of bilateral treaty, the same would have required states to perform their alternative obligations irrespective of the contrary provisions of their national laws which invariably demand existence of a bilateral treaty for state cooperation. However, as things stand, both obligations can be avoided, if they are inconsistent with national law of the concerned state. It is therefore clear that no international duty exists, independent of bilateral treaty, to extradite or prosecute the offender.
In this backdrop, scholarly focus on tracing the customary origin of the obligation amounts to misdirecting the debate. More importantly, it defies the principle of reciprocity or mutuality of obligations which underlies the very formulation of the international suppression conventions containing aut dedere aut judicare obligation. In order to make aut dedere aut judicare an effective tool of law enforcement cooperation, it should be treated as a treaty based mechanism subordinate to national law.
1.1)- Aut dedere aut judicare
The maxim aut dedere aut judicare refers to alternative obligations to extradite or prosecute the offender found in the territory of a state, which is party to a treaty containing the obligation. It finds expression in multilateral treaties of universal scope aimed at promoting state cooperation in law enforcement.[1] It represents the modern adaptation of the ancient phrase aut dedere aut punier which was introduced by a Dutch scholar Grotius in 1625.[2] In the words of Grotius, international law imposed a duty on the state in the territory of which an alleged offender had escaped after committing his crime elsewhere, either to return him to the state of commission, or to punish him according to its own law.[3]
Grotius presumed the existence of an international community sharing certain common values and goals including the right of states to punish those who had committed crimes in their territories.[4] Pursuant to this view, bringing an offender to justice was considered a right exercised by individual states on behalf of entire international community because elimination of every type of criminality was thought to be in the interest of all mankind.[5] Thus, if an offender had escaped to another state, the state of custody was deemed under an international obligation not to interfere with the right of the injured state to exact punishment.[6]
Nonetheless, the injured state was not allowed to send its forces to the territory of the state where the offender had taken refuge. It was rather given the right to demand transfer of physical custody of the offender. The custodial state was not absolutely bound to transfer, as an alternative, it could punish the offender itself through domestic proceedings. However, taking one of the two measures was deemed mandatory.[7]
According to Grotius, the duty to extradite or prosecute applied to every type of crime including domestic law crimes such as murder and robbery.[8] However, a number of other scholars held the view that the duty never transformed into positive law and at best remained a moral obligation.[9]
The modern equivalent of Grotius’s phrase in multilateral treaties replaced the verb ‘punier’ with ‘judicare’ to give recognition to the fact that the alleged offender may as well be found innocent, thereby, restricting the scope of the obligation to prosecution rather than punishment.[10] Therefore, in contemporary legal instruments, the obligation has been rephrased as ‘aut dedere aut judicare’ implying that a state in the territory of which an offender is found has a duty to either extradite or prosecute. As of 2010, the obligation found expression in over 70 international law instruments including multilateral treaties as well as resolutions of General Assembly and Security Council of the United Nations.[11] Furthermore, it is widely applied in municipal laws on extradition of fugitives.[12]
1.2)- Argument that Aut dedere aut judicare represents customary international law
The widespread recognition of the maxim has led some scholars to claim that it represents a rule of customary international law,[13] a few even go to the extent of regarding it jus cogens or peremptory norm of international law, from which no departure is possible.[14] This implies that states are bound to comply with the obligation, notwithstanding, the contrary provisions of their national law.[15] Thus, it was held by the International Court of Justice (ICJ) in Belgium v. Senegal that Senegal may have evoked international responsibility by not bringing necessary changes to its national law to make it conducive to the requirements of aut dedere aut judicare, as contained in the Torture Convention 1984.[16]
The opposite view is that aut dedere aut judicare typifies a rule based on reciprocity or mutuality of obligations having no legal force beyond the treaty containing it. Since treaties are subordinate to national law, the obligations contained in them including aut dedere aut judicare cannot be deemed to have over-ridden the contrary provisions of the latter.[17] The argument is advanced by those who do not believe in the existence of an international community sharing common values; they rather believe that each member of international system interacts with the other on the basis of reciprocal protection of self-interest or exchange of comparable favours.[18] In the words of Bassiouni:
“[E]xtradition is readily explicable in terms of self-interest of states. Each state has an interest in getting back fugitives from its own law who flee to a foreign state. But to secure their return on regular basis, a state is likely to have to agree to extradite in its own turn. This is the main motive of concluding extradition treaties.”[19]
There has been a tendency of late to view international law as a system based on common values of international community rather than reciprocal protection of self-interest.[20] According to one commentator, it has become fashionable these days to argue that international law is witnessing a shift from reciprocity based bilateral system to a multilateral system founded on common values of international community.[21]
In line with this argument, it has been suggested that incorporation of aut dedere aut judicare in multilateral treaties of universal scope has transformed its nature from a rule embedded in reciprocity to an obligation underlying an international duty, independent of bilateral treaty. In the words of Jennings, there is a tendency to speak of multilateral treaties as if they could in some way legislate for states generally without their consent.[22] To support this view, it is said that ‘generalizable’ treaty provisions produce customary rules binding on all states including non-parties.[23] Thus, according to dissenting opinion of Judge Weeramantry in the Lockerbie case, principle of aut dedere aut judicare represents a rule of customary international law.[24]
Two justifications have so far been advanced to give credence to the argument that aut dedere aut judicare rule represents an international duty not requiring the medium of bilateral treaty for its application. Firstly, it has been argued that consistent appearance of the obligation in multilateral treaties of universal scope testifies to its customary status. Secondly, it has been suggested that the rule underlies a general international duty to cooperate in fight against impunity.
1.2.1)-Consistent appearance in multilateral treaties
Modern international suppression conventions containing aut dedere aut judicare rule can be classified into 11 headings, each corresponding to a particular category of international wrongs. These include: (1) aircraft hijacking and related offences (2) offences against safety of maritime navigation (3) Violence against or injury to internationally protected persons(4) Hostage Taking (5) Nuclear theft and terrorism (7) Bombing of places (8) Financing of terrorism (9) Drug Trafficking(10) Corrupt practices (11) Organized crimes including smuggling of weapons, human smuggling and human trafficking. Although there is little in common with respect to nature of the offences, one factor is shared by all these conventions i.e. the requirement to extradite or prosecute the offender found in state territory. Considering this, it is quite plain to see that the argument of consistent appearance of the obligation does hold some ground.
Apart from this, a majority of these conventions are widely ratified and can be said to have established obligations of universal application. Hence, the contention that the conventions in question lay down the obligations of universal application also carries weight. For example, out of 193 UN member states[25], 185 are members of the Hague Convention 1970[26], 188 have ratified Montreal Convention 1971[27], 168 are parties to Hostages Convention 1979[28], 167 are parties to IPP Convention 1973[29], Rome Convention 1988 has 156 parties[30], 142 are parties to Nuclear Materials Convention 1980[31], Terrorist Bombings Convention 1997 has 165 parties[32], Financing Convention 1999 has 173 parties[33], Drugs Convention 1988 has 188 parties[34], UNTOC 2000 has 174 parties[35] and UNCAC 2003 has been ratified by 165 states.[36] Out of the treaties under consideration, only two do not have the support of overwhelming majority of the UN member states i.e. Beijing Convention on Civil Aviation 2010 and Nuclear Terrorism Convention 2005. The former has only 3[37] parties and the latter 84 parties[38].
1.2.2)-General international duty to cooperate in fight against impunity
Another argument which is frequently advanced to establish the elevated status of aut dedere aut judicare is that the obligation underlies a general international duty to cooperate in fight against impunity.
According to Zdzislaw Galciki, the duty to cooperate is a well-established principle of international law and can be found in numerous international law instruments.[39] It can for example be seen in article 1(3) of the UN Charter 1945, UNGA Declaration on Friendly Relations 1970[40] and Council of Europe’s Guideline XII on International Cooperation. Similarly, the obligation to deny safe heavens to terrorists, as found in the Security Council’s binding resolution 1373(2001) is said to be a corollary of the duty to cooperate in fight against impunity.[41] Arguably, the duty to cooperate in fight against impunity represents a rule of customary international law. [42] However, the duty can be realized in the best and most effective way by applying the principle of aut dedere aut judicare.[43] The fact has been acknowledged not only in the scholarly writings but also in successive resolutions of the Security Council. For example, resolutions 1456(2003) and 1566(2004) make it clear that the obligation to bring terrorists to justice shall be carried out on the basis of the principle of extradite or prosecute.[44] Similarly, while commenting upon the Eichman case several scholars argued that Argentina had a duty not to withhold war criminals from justice, whether by granting asylum or by affording them a heaven of refuge.[45] Likewise, Hersh Lauterpacht observed that it would be an abuse of the right to cooperate in fight against impunity, to refuse extradition of a wrongdoer whose misdeed did not constitute a political crime.[46] Recently, in Belgium v. Senegal case it was argued before the ICJ by Eric David:
“…the right of Belgium to see states fulfil their obligation to prosecute or extradite, the perpetrators of crimes under international law…is ultimately nothing more than transposition into law by international community of a fundamental moral and social value which has now become a legal requirement-not to let some of the very gravest crimes go free.”[47]
Due to the above reasons, the working group of the International Law Commission (ILC) on the obligation to extradite and prosecute has reaffirmed in its successive reports that duty to cooperate in fight against impunity constitutes a primary source of the obligation of aut dedere aut judicare. [48] Significantly, this argument was also advanced by Professor Higgins while representing UK before the ICJ in .[49]
The argument that an international duty underlies aut dedere aut judicare suffers from three fundamental weaknesses. Firstly, it overlooks the fact that expression of the obligation in various international conventions is not uniform enough to give birth to a generalizable rule, producing customary law obligation. Secondly, even if it is admitted that an international duty underpins aut dedere aut judicare, it must apply to crimes under international law, however, the conventions containing aut dedere aut judicare obligation set forth ‘treaty crimes’ which can at best be regarded crimes of international concern. Thirdly, the wording of aut dedere aut judicare in suppression conventions points to its subordination to domestic law and bilateral treaties.
2.1)- Expression of the obligation in international conventions on terrorism and organised crime
A crucial factor in determining the customary status of a treaty obligation is its consistent appearance in the treaties containing it.[50] This leads to emergence of generalizable treaty provision, binding all states including non-parties. The analysis of the obligation as contained in counter-terrorism as well as organised crime conventions reveals that the element of uniformity is lacking in the expression of the obligation.[51] While counter-terrorism conventions provide more or less uniform version of the obligation, their travaux préparatoires indicates that the obligation can be subjected to multiple interpretations. By contrast, the version of the obligation as reflected in the organised crime conventions differs markedly from counter-terrorism conventions.
The first dissimilarity in the two versions is that aut dedere aut judicare rule as laid down by the organised crime conventions gives explicit recognition to the fact that jurisdiction of the custodial state to prosecute the offender is activated only once a request for extradition has been made to it and the same has been rejected.[52] In other words, the custodial state is not bound to prosecute, merely because the offender is present in its territory, its obligation takes effect, once it receives an extradition request from a state in the territory of which or within whose jurisdiction the crime has been committed, and it decides not to extradite. By contrast, the Hague Convention 1970 and the conventions modelled after it requires no such trigger mechanism.
The second difference is that organised crime conventions allow the parties not to extradite their nationals for crimes committed abroad, if their domestic law does not authorize them to do so. In such cases, the custodial state is required to submit the case to its competent national authorities for domestic prosecution. [53] Conversely, the Hague Convention 1970 and the conventions modelled after it afford no such concession with respect to non- extradition of nationals.
The third discrepancy relates to organised crime conventions not requiring the mandatory prosecution of non –nationals for crimes committed abroad. As per the language used in these conventions, states ‘may’ prosecute non-nationals for crimes committed abroad, whereas, for prosecution of nationals, the word ‘shall’ has been used.[54] By comparison, the Hague formula gives no such concession with respect to prosecution of non-nationals, it rather requires their prosecution regardless of the locus of crime.
In view of the above, it is apparent that at least three different variants of the ‘Hague Formula’ can be seen. These include the requirement of trigger mechanism, permissibility to refuse extradition of nationals and the requirement to prosecute non-nationals only when the national law applies to extraterritorial crimes. Needless to say, these discrepancies are so fundamental that existence of a generalizable provision to extradite or prosecute is difficult to prove.
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References:
[1] M.Cherif Bassiouni & Edward M Wise, ‘Aut dedere Aut Judicare: The duty to extradite or prosecute in international law’ (Netherlands: Matinus Nijhoff Publishers 1995)3
[2] M.Plachata, ‘Aut Dedere Aut Judicare: An overview of modes of implementation and approaches’ 6 Maastricht J. Eur. & Comp. L.(1991)331
[3] Bassiouni (n1)5
[4] ibid at 5 & 22, 28
[5] ibid
[6] ibid
[7] Ibid at 22-28
[8] ibid
[9] ibid
[10]ibid at 4; See also Zdzislaw Galicki, ‘preliminary report on the obligation to extradite or prosecute’ A/CN.4/571 at p.6
[11] Zdzislaw Galicki, ‘4th report on the obligation to extradite or prosecute submitted in the 63rd session of the ILC’ See A/CN.4/648
[12]Amnesty International’s report on the obligation to extradite or prosecute 2009 <http://www.amnesty.org/ar/library/asset/IOR40/001/2009/en/a4761626-f20a-11dd-855f-392123cb5f06/ior400012009en.pdf>[date accessed 17/03/13]
[13] C. Enache-Brown, A. Fried, ‘Universal Crime, Jurisdiction and Duty: The Obligation of Aut Dedere Aut Judicare in International Law’43 McGill Law Journal (1998) 628-629; See also Bassiouni (n1)22-26, 51-53
[14] Bassiouni (n1)26
[15] Bassiouni (n 1)20
[16] Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), ICJ Judgement July 20, 2012 at para 75 & 95
[17] Abraham Abramovsky, ‘Multilateral Conventions for suppression of unlawful seizure and interference with aircraft part 1: Hague Convention’ 13 Colum. J. Transnat’l L.(1974) 381 at 400
[18] Puffendrof quoted in Bassiouni (n 1)23
[19] Bassiouni (n 1)37
[20] Richard Falk quoted in Bassioni (n 1)35
[21] Bassiouni (n 1)20,21
[22] Bassiouni (n 1)46
[23] Bassiouni (n 1)47
[24] 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, Order of 14 April 1992, I.C.J. Reports 1992, 50 at 51; See also Plachata (n2)5
[25] <http://www.unvienna.org/unov/en/faq.html[date visited 21/03/03]
[26] <http://www.icao.int/secretariat/legal/List%20of%20Parties/Hague_EN.pdf>[date visited 21/03/13]
[27] <http://cil.nus.edu.sg/1971/1971-convention-for-the-suppression-of-unlawful-acts-against-the-safety-of-civil-aviation/>>[date visited 21/03/13]
[28]<http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-5&chapter=18&lang=en>[date visited 21/03/13]
[29] <http://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-7&chapter=18&lang=en>[date visited 21/03/13]
[30] <http://cil.nus.edu.sg/1988/1988-convention-for-the-suppression-of-unlawful-acts-against-the-safety-of-maritime-navigation/> [date visited 21/03/13]
[31] <http://cil.nus.edu.sg/1979/1979-vienna-convention-on-the-physical-protection-of-nuclear-materials/>[date visited 21/03/13]
[32]< http://treaties.un.org/doc/publication/mtdsg/volume%20ii/chapter%20xviii/xviii-9.en.pdf>[date visited 21/03/13]
[33] <http://cil.nus.edu.sg/1999/1999-international-convention-for-the-suppression-of-the-financing-of-terrorism/> [date visited 21/03/13]
[34] <http://treaties.un.org/doc/publication/mtdsg/volume%20i/chapter%20vi/vi-19.en.pdf>[date visited 21/03/13]
[35] <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12&chapter=18&lang=en> [date visited 21/03/13]
[36] <http://treaties.un.org/doc/publication/mtdsg/volume%20ii/chapter%20xviii/xviii-14.en.pdf>[date visited 21/03/13]
[37]<http://www.icao.int/secretariat/legal/List%20of%20Parties/Beijing_Conv_EN.pdf>[date visited 21/03/13]
[38]<http://treaties.un.org/Pages/ViewDetailsIII.aspx &src=TREATY&mtdsg_no=XVIII%7E15&chapter=18&Temp=mtdsg3&lang=en> [date visited 21/03/13]
[39] Zdzislaw Galicki, 4th report on the obligation to extradite or prosecute submitted in the 63rd session of the ILC. See A/CN.4/648 at 6
[40] GA Res 2625 (XXV) of 24 October 1970 annex para 1
[41] See para 2(c) S/RES/1373 (2001) adopted on 28 September 2001, S/RES/1373 (2001)
[42] Zdzislaw Galicki, 4th report on the obligation to extradite or prosecute submitted in the 63rd session of the ILC. See A/CN.4/648 at 7
[43] ibid at 9
[44] See para 3, S/RES/1456 (2003) adopted by the Security Council at its 4688th meeting, on 20 January 2003; See also para 2, S/RES/1566 (2004) Adopted by the Security Council at its 5053rd meeting, on 8 October 2004
[45] Bassiouni (n 1)45
[46] Hersh Lauterpacht quoted in Bassiouni ibid
[47] Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) ICJ Judgement of July 20, 2012 < http://www.icj-cij.org/docket/files/144/17064.pdf >[Date visited 19/04/13]
[48] Zdzislaw Galicki, 4th report on the obligation to extradite or prosecute submitted in the 63rd session of the ILC. See A/CN.4/648 at 7; See also A/65/10 para 339
[49] Oral Hearings on Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial incident at Lockerbie (Libyan Arab Jamahiriya v. UK) 1992 I.C.J 17; See also Omer Y. Elegab, “ The Hague as the Seat of Lockerbie Trial: Some Constraints”34 The International Lawyer (2000) 289 at 298
[50] Bassiouni (n 1)44,45
[51] Bassiouni (n 1)18
[52] See for instance article 44(11) UN Convention against Corruption(UNCAC) 2003: “A State Party in whose territory an alleged offender is found, if it does not extradite such person in respect of an offence to which this article applies solely on the ground that he or she is one of its nationals, shall, at the request of the State Party seeking extradition, be obliged to submit the case without undue delay to its competent authorities for the purpose of prosecution. Those authorities shall take their decision and conduct their proceedings in the same manner as in the case of any other offence of a grave nature under the domestic law of that State Party. The States Parties concerned shall cooperate with each other, in particular on procedural and evidentiary aspects, to ensure the efficiency of such prosecution.” See also article 16(10) UN Convention against Transnational Organized Crime 2000
[53] See for instance article 15(3) UN Convention against Transnational Organized Crime 2000 “ For the purposes of article 16, paragraph 10, of this Convention, each State Party shall adopt such measures as may be necessary to establish its jurisdiction over the offences covered by this Convention when the alleged offender is present in its territory and it does not extradite such person solely on the ground that he or she is one of its nationals.” See also article 42(3) UN Convention against Corruption 2003 and article 4(2)(a) UN Convention against Drugs 1988
[54] See for instance article 42(3) &(4) UN Convention against Corruption(UNCAC) 2003, article 15(3) &(4) UN Convention against Transnational Organized Crime(UNTOC) 2000 and article 4(2)(a)&(b) UN Convention against Drugs 1988. The Drugs Convention 1988 establishes mandatory obligation to prosecute non-nationals where the crime is committed in state territory or in an aircraft or vessel owned by the requested state. However, both these bases may not be considered extraterritorial.
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 II 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.
