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UvA-DARE (Digital Academic Repository) The global prosecution of core crimes under international law Soler, C. Publication date 2017 Document Version Other version License Other Link to publication Citation for published version (APA): Soler, C. (2017). The global prosecution of core crimes under international law. General rights It is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an open content license (like Creative Commons). Disclaimer/Complaints regulations If you believe that digital publication of certain material infringes any of your rights or (privacy) interests, please let the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the material inaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letter to: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. You will be contacted as soon as possible. UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl) Download date:30 Sep 2021 Part IV The Horizontal System of Enforcement 216 Chapter 14: Aut dedere aut judicare In primis, suffice to say that it might be hard to conceive of the enforcement of international criminal justice as predominantly dependent upon the execution of ‘something’ embodied merely in four Latin words. In practice, however, this is not a figment of one’s imagination. Scholars identified seventy-two instances wherein the aut dedere aut judicare rule appears, after having examined three hundred and twelve international legal instruments.1985 At the outset, therefore, the first task that should be undertaken is to determine the nature, scope and status of this rule. 14.1 The nature, scope and status of the aut dedere aut judicare rule The complex nature of aut dedere aut judicare1986 is not cast in stone but is still clouded by controversy. Aut dedere aut judicare may be referred to in many ways ranging from: i. a customary obligation1987 of international law;1988 ii. a customary1989 right, an entitlement, under international law;1990 iii. a general principle of law which bestows rights and obligations bilaterally, between the State where an offender is present and the State directly linked to the offence;1991 iv. a principle1992 of customary international law;1993 v. an obligation, habitually by States and prosecutors;1994 vi. an obligation specifically deriving from the UNC;1995 vii. an erga omnes obligation;1996 viii. a corollary of the principle of complementarity;1997 ix. a defence, by counsel before the ICC;1998 1985 J.J. Paust, M.C. Bassiouni, M. Scharf, J. Gurule`, L. Sadat and B. Zagaris, International Criminal Law: Cases and Materials, 3rd Edn., CAP, 2007, p. 12. 1986 Sometimes jurists use aut dedere aut judicare on the one hand, and aut dedere aut prosequi on the other hand, inter-changeably [R. Kolb, ‘The Exercise of Criminal Jurisdiction over International Terrorists’, in A. Bianchi, Enforcing International Law Norms Against Terrorism, HP, Portland, Oregon, USA, 2004, p. 232]. Kolb justifies his preference to the latter term, that is, aut dedere aut prosequi, since ‘the obligation of the State is not to try, but to submit the case to the competent authorities in view of prosecution’ [R. Kolb, ‘The Exercise of Criminal Jurisdiction over International Terrorists’, in A. Bianchi, Enforcing International Law Norms Against Terrorism, HP, Portland, Oregon, USA, 2004, p. 263]. Though Kolb’s choice of words is valid, the former, that is, aut dedere aut judicare, shall be used for the purposes of this work. 1987 T. Obokata, Transnational Organised Crime in International Law, Studies in International and Comparative Criminal Law, Volume 5, HP, Oxford and Portland, Oregon, 2010, p. 46. 1988 Prosecutor v Tihomir Blaskic, ICTY Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18th July 1997, IT-95-14-AR, para. 29. 1989 Such rule acquires customary status, inter alia, when States sign and ratify a significant number of treaties containing the aut dedere aut judicare rule, hence articulating the belief that aut dedere aut judicare is a recognized and accepted rule which is conducive to the suppression of core crimes. The customary status of such rule has been originally propounded by Bassiouni [M.C. Bassiouni and E.M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law, MNP, 1995, Preface, pp. 22-25; see pp. 43-48 thereof for a contrary view]. 1990 Prosecutor v Furundzija, ICTY, 10th December 1998, IT-95-17/1-T (1999). 1991 L. Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives, OUP, 2003, p. 115; M.Plachta, Contemporary Problems of Extradition: Human Rights, Grounds for Refusal and the Principle Aut Dedere Aut Judicare, UNAFEI Annual Report for 1999 and Resource Material Series No. 57, 2001, pp. 68-69, available at http://www.unafei.or.jp/english/pdf/PDF_rms/no57/57-07.pdf 1992 M.C. Bassiouni and E.M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law, MNP, 1995, Preface, p. 24. 1993 Libyan Arab Jamahiriya v United Kingdom and Libyan Arab Jamahiriya v USA, Provisional Measures, Orders of 14th April 1992, Dissenting Opinion of Judge Weermantry, ICJ Reports, 1992. 1994 Report of the ILC, Annex containing Preliminary Remarks of the Special Rapporteur Zdzislaw Galicki, Sixty-Third Session, The Obligation to Extradite or Prosecute (aut dedere aut judicare) in International Law, A/66/10, 2011, p. 318 available at http://untreaty.un.org/ilc/reports/2004/english/annex.pdf 1995 C. Enache-Brown and A. Fried, ‘Universal Crime, Jurisdiction and Duty: The Obligation of Aut Dedere Aut Judicare in International Law’, McGLJ, Vol. 43, McGill University, Montreal, Canada, 1998, p. 632. 1996 African Commission: Communications 54/91, 61/91, 96/93, 98/93, 164/97, 210/98, Various Communications vs Mauritania, 11th May 2000, para. 83, reproduced in the Amicus brief on the Legality of Amnesties in International Law in Prosecutor v Morris Kallon, SCSL, Trial Chamber, p. 27, cited in A. Abass, ‘The International Criminal Court and Universal Jurisdiction’, ICLR, Vol. 6, MNP, 2006, p. 355, fn. 31. 1997 M. El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice, MNP, 2008, pp. 220-221. 1998 G-J. A. Knoops, Surrendering to International Criminal Courts: Contemporary Practice and Procedures, International and Comparative Criminal Law Series, TP, Ardsley, NY, 2002, p. 313. 217 x. a jus cogens norm, by a few publicists;1999 xi. a ‘dead letter’;2000 xii. a general norm of international law;2001 xiii. a ground of jurisdiction;2002 xiv. a form of universality;2003 xv. a jurisdiction-bestowing device;2004 xvi. a system;2005 xvii. a communitarian principle;2006 to xviii. an open-ended concept,2007 the intricacies of which the present author shall shortly consider. An examination of its nature is crucial to understand its weight for the purposes of the enforcement of international criminal justice, because only by understanding its nature, one can decipher its consequences. Though reference will be made to the sources of international law which were referred to in heading 1.2, the scope of Part IV is not to complete a definitive study on all bi-lateral and multi-lateral extradition treaties which include the aut dedere aut judicare obligation, or else to enlist all UNSC Resolutions which refer to it. These will be mentioned only when they can shed a light on the nature, status and scope of aut dedere aut judicare. In so far as it is explicitly provided for within treaties, aut dedere aut judicare, the origins of which are attributable to the Dutch jurist Hugo Grotius,2008 is a fully-fledged conventional international law, id est, it possesses the feaures of a treaty and therefore it only binds those States which have ratified the treaty. It is thus only valid inter partes. It has no force of law in relation to non-State parties to the treaty, which consequently do not have an obligation to implement it.2009 To the extent that it may be deemed to constitute customary international law, aut dedere aut judicare may be said to be an important unwritten rule.2010 It is a settled matter that customary law is the most suitable source for grounding the non-treaty based nature of the obligation to extradite or prosecute.2011 This theory finds support in the works of jurists who argue, inter alia, that suppression conventions which have secured a substantial degree of ratifications have led to a general pattern of treaty practice, and hence a rule of customary international law.2012 Another jurist opines that the 1999 See Bassiouni’s main arguments in M.C. Bassiouni and E. M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law, MNP, 1995, preface, p. 25. 2000 A. Cassese, International Law in a Divided World, Thomson/West, CP, 1986, p. 275. 2001 C. Enache-Brown and A. Fried, ‘Universal Crime, Jurisdiction and Duty: The Obligation of Aut Dedere Aut Judicare in International Law’, McGLJ, Vol. 43, McGill University, Montreal, Canada, 1998, pp. 631-632. 2002 L.Benavides, ‘The Universal Jurisdiction Principle: Nature and Scope’, Annuario Mexicano de derecho internacional, Vol. 1, 2001, p. 19; M. Henzelin, Le principe de l’universalite en droit penal international: Droit et Obligation pour les Etats de poursuivre et juger selon le principe de l’universalite, Helbin and Lichtenhahn, Munich, Geneva, Brussels, 2000; M.C.
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