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The Aut Dedere Aut Judicare Provision in The On the Proposed Crimes Against Humanity Convention Morten Bergsmo and SONG Tianying (editors) PURL: http://www.legal-tools.org/doc/b707e3/ E-Offprint: SHANG Weiwei and ZHANG Yueyao, “The Aut Dedere Aut Judicare Provision in the Proposed Convention on Crimes Against Humanity: Assessment from a Chinese perspective”, in Morten Bergsmo and SONG Tianying (editors), On the Proposed Crimes Against Humanity Convention, FICHL Publication Series No. 18 (2014), Torkel Opsahl Academic EPublisher, Brussels, ISBN 978-82-93081-96-8. First published on 12 December 2014. This publication and other TOAEP publications may be openly accessed and downloaded through the website www.fichl.org. This site uses Persistent URLs (PURL) for all publications it makes available. The URLs of these publications will not be changed. Printed copies may be ordered through online distributors such as www.amazon.co.uk. © Torkel Opsahl Academic EPublisher, 2014. All rights are reserved. PURL: http://www.legal-tools.org/doc/b707e3/ 13 ______ The Aut Dedere Aut Judicare Provision in the Proposed Convention on Crimes Against Humanity: Assessment from a Chinese perspective SHANG Weiwei* and ZHANG Yueyao* * 13.1. Introduction The obligation aut dedere aut judicare requires a State to extradite or prosecute a person found in its territory if the person is suspected of cer- tain crimes. It is created to support international co-operation in fighting impunity for those crimes. There are over 60 multilateral treaties that con- tain an aut dedere aut judicare provision.1 Yet when it comes to core in- ternational crimes, there is no treaty with this obligation for genocide, most crimes against humanity, or war crimes other than grave breaches.2 The proposed International Convention on Prevention and Punishment of Crimes Against Humanity (‘Proposed Convention’) tends to narrow this gap by prescribing an obligation aut dedere aut judicare (‘prosecute or extradite’) in its Article 9. * SHANG Weiwei (LL.B., China University of Political Science and Law), is currently a master candidate in international law at Peking University, China and an intern in the Ap- peals Chamber of International Criminal Tribunal for the former Yugoslavia (ICTY). * * ZHANG Yueyao (LL.B., Peking University, M.A., Peking University, LL.M, University of California Berkeley), is currently a Ph.D. candidate in the Max-Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany. During her studies in Peking University, she participated in the Human Rights Master Programme of Peking University Law School and Lund University Raoul Wallenberg Institute of Human Rights and Humanitarian Law. She is an editor of Peking University International and Compara- tive Law Review and of the Torkel Opsahl Academic EPublisher. All Internet references were last accessed on 25 August 2014. 1 Survey of multilateral conventions that may be of relevance for the work of the Interna- tional Law Commission on the topic: The obligation to extradite or prosecute (aut dedere aut judicare), 18 June 2010, U.N. Doc. A/CN.4/630 (‘U.N. Secretariat Survey’), para. 4. 2 Report of the Working Group on the Obligation to extradite or prosecute (aut dedere aut judicare), 22 July 2013, U.N. Doc. A/CN.4/L.829, para. 20. FICHL Publication Series No. 18 (2014) – page 345 PURL: http://www.legal-tools.org/doc/b707e3/ On the Proposed Crimes Against Humanity Convention China is party to 23 multilateral treaties with aut dedere aut judi- care provisions.3 While the obligation set out in some of those provisions are similar to that under Article 9 of the Proposed Convention, the latter contains a unique option of extradition to international judicial organs. Mindful of China’s general recognition of the need to ensure pun- ishment of crimes against humanity, this chapter analyzes the relationship between prosecution and extradition, as well as the three alternatives en- tertained by Article 9 of the Proposed Convention, in light of China’s do- mestic law and positions pronounced in international fora. Then it turns to China’s possible concerns that may be caused by other articles in the Pro- posed Convention in the implementation of Article 9, and predicts that China may be reluctant to accept this regime for punishing crimes against humanity. 13.2. China’s General Recognition of the Need to Ensure Punish- ment of Crimes Against Humanity The need to ensure punishment of crimes against humanity by prosecution or extradition was declared in U.N. General Assembly Resolution 2840 (XXVI) 4 and Resolution 3074 (XXVIII) 5 in the 1970s. The Security Council has also adopted many resolutions regarding crimes against hu- manity and other core international crimes. While not usually prescribing an explicit obligation aut dedere aut judicare, those resolutions urge 3 See the Annex to this chapter. 4 Question of the punishment of war criminals and of persons who have committed crimes against humanity, 18 December 1971, U.N. Doc. A/Res/2840 (XXVI). In its para. 1, the resolution “urges all States […] to put an end to and to prevent war crimes and crimes against humanity and to ensure the punishment of all persons guilty of such crimes, includ- ing their extradition to those countries where they have committed such crimes”. 5 Principles of international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, 3 December 1973, U.N. Doc. A/Res/3074 (XXVIII). Para. 5 of the resolution provides: Persons against whom there is evidence that they have committed war crimes and crimes against humanity shall be subject to trial and, if found guilty, to punishment, as a general rule in the country in which they committed those crimes. In that connection, States shall co- operate on questions of extraditing such persons. FICHL Publication Series No. 18 (2014) – page 346 PURL: http://www.legal-tools.org/doc/b707e3/ The Aut Dedere Aut Judicare Provision in the Proposed Convention on Crimes Against Humanity: Assessment from a Chinese perspective States to put an end to impunity for crimes against humanity.6 China vot- ed for all of the resolutions above.7 In connection with the Draft Code of Crimes against the Peace and Security of Mankind, States discussed in detail the obligation to prosecute or extradite core international crimes, including crimes against humanity.8 Although China did not submit specific comments regarding this issue, the record shows that the association of this obligation with crimes against humanity was not challenged.9 In a 2007 Statement regarding the International Law Commission (‘ILC’) report, China suggests crimes covered by the obligation aut dede- re aut judicare should primarily include, among others, international crimes “endangering the common interest of the international community as confirmed by the international law”. According to China, if the crime to which this obligation is applied is a crime under customary law univer- sally acknowledged by the international community, the obligation to ex- tradite or prosecute may also become an obligation under customary in- 6 Resolution 1318 (2000) of U.N. Security Council, 7 September 2000, U.N. Doc. S/RES/1318 (2000), at VI; Resolution 1325 (2000) U.N. Security Council, 31 October 2000, U.N. Doc. S/RES/1325 (2000), para. 11; Resolution 1379 (2001) of U.N. Security Council, 20 November 2001, U.N. Doc. S/RES/1379 (2001), para. 9(a); Resolution 1612 (2005) of U.N. Security Council, 26 July 2005, U.N. Doc. S/RES/1612 (2005), Preamble; Resolution 1674 (2006) of U.N. Security Council, 28 April 2006, U.N. Doc. S/RES/1674 (2006), para. 8; Resolution 1820 (2008) of U.N. Security Council, 19 June 2008, U.N. Doc. S/RES/1820 (2008), para. 4. 7 Study on relevant State declarations see Raphaël van Steenberghe, “The Obligation to Extradite or Prosecute – Clarifying its Nature”, in Journal of International Criminal Jus- tice, 2011, vol. 9, pp. 1100–1101. 8 Draft Code of Crimes Against the Peace and Security of Mankind,U.N. Doc. A/CN.4/L.532, Corr.1, Corr.3, 26 July 1996, Articles 9 and 18. 9 Twelfth Report on The Draft Code of Crimes Against the Peace and Security of Mankind, by Mr. Doudou Thiam, Special Rapporteur, 15 April l994, U.N. Doc. A/CN.4/460 and Corr. 1, paras. 49–69. FICHL Publication Series No. 18 (2014) – page 347 PURL: http://www.legal-tools.org/doc/b707e3/ On the Proposed Crimes Against Humanity Convention ternational law.10 In another Statement in 2012, China recognizes crimes against humanity as established international crimes.11 Through these documents and declarations, China repeatedly, alt- hough in a general sense, supports the application of the obligation aut dedere aut judicare to crimes against humanity. That being said, one should bear in mind that China holds a narrow definition and have reser- vations over the universality of this category of crime.12 13.3. Relationship between Prosecution and Extradition 13.3.1. Two Categories of Relationship The aut dedere aut judicare provisions in international treaties ensure prosecution of the alleged offender either by the State requesting extradi- tion or by the State where the individual is present. The relationship be- tween extradition and prosecution in existing treaties can be classified into two categories: (i) an obligation to prosecute arises ipso facto when the alleged offender is present in the territory of the State. Once a request for extradition is made, the State concerned may be relieved of the obliga- tion to prosecute by opting for extradition; and (ii) the obligation to pros- ecute is only triggered by the refusal to surrender the alleged offender fol- lowing a request for extradition. It is also the obligation aut dedere aut judicare in its classic sense of the word.13 Examples of Category One aut dedere aut judicare obligation can be found in the relevant provisions of the 1949 Geneva Conventions and their 1977 Additional Protocol I, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘Torture 10 “Statement by Mr.
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