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RESOURCE MATERIAL SERIES No. 57

* Gdansk University, Faculty of Law, First Vice-Dean,Chair of Criminal Procedure, Poland

CONTEMPORARY PROBLEMS OF EXTRADITION: HUMANRIGHTS, GROUNDS FOR REFUSAL AND THE PRINCIPLE

AUT DEDERE AUT JUDICARE

Michael Plachta*

I. EXAMINATION OF HUMANRIGHTS IN THE CONTEXT OF

EXTRADITION

The growth and expansion of the humanrights concept have inevitably led it tocover the vast area of internationalcooperation in criminal matters whosemost renowned form, extradition, has beenfor centuries dominated by considerationsand concerns deeply rooted in stateinterests, such as sovereignty, maintainingpower and domestic order, keeping externalpolitical alliances, etc. Human rights havebeen granted protection only in so far asthat would correspond with these statedpriorities. The human rights movementwith its unequivocal emphasis on theirprotection as such, has changed thatperspective.

This development coincided with thetendency towards strengthening theposition of individuals through therecognition of their personality ininternational law, albeit in a very limitedscope and yet still contested by someauthorities, and acknowledgment that theyshould have their say in internationalmatters involving their interests.Stipulations of recent multilateralconventions regarding the rule of specialityillustrate this tendency. One example canbe found in the 1995 Convention onSimplif ied Extradition Procedure,elaborated within the European Union.1

Since the mutual relationship betweenextradition and human rights has raised a

lot of interest2 recently which, in turn,produced a number of publications on thissubject,3 this paper offers some generalcomments which may become a “food forthought” and a basis for further discussion.

Mutual relationships between humanrights and extradi t ion are o f tencharacterized as a “tension” betweenprotective and cooperative functions of thisform of international legal assistance.Generally, this problem can be approachedand viewed from three perspectives. First,these relationships can be described in the

1 Convention drawn up on the basis of Article K.3 ofthe Treaty on European Union, on simplifiedextradition procedure between the Member Statesof the European Union, 10 March 1995, O.J.30.03.1995, No. C.78/1.

2 In the eighties, the problem of extradition andhuman rights was discussed by the Institute ofInternational Law at its Dijon session whichadopted a resolution, following a report submittedby K. Doehring, 60 Yearbook of the Institute ofInternational Law 211, 306 (1983). In the nineties,this problem was a subject of a conference held bythe International Association of Penal Law in Riode Janeiro in 1994, 41 Revue internationale de droitpénal 67 (1995). In the most recent years, theInternational Law Association has devoted muchof its attention to this problem, producing threereports elaborated by Ch. Van den Wyngaert andJ. Dugard and adopting three resolutions. SeeReport of the 66th Conference of the InternationalLaw Association (Buenos Aires, 1994), 4, 142;Report of the 67th Conference of the InternationalLaw Association (Helsinki, 1996), 15, 214; Reportof the 68th Conference of the International LawAssociation (Taipei, 1998).

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114TH INTERNATIONAL TRAINING COURSEVISITING EXPERTS’ PAPERS

“rule-exception” terms. Second, it could beargued that only one side sets the goal orthe objective while the other has to yieldby making necessary concessions. One ofthe issues that would have to be resolvedhere refers to the starting point in thisanalysis: should it be the needs of lawenforcement or the protection of humanrights? Third, and the most appropriate,the coexistence between the interests,needs and values involved in theinternational cooperation in criminalmatters, on the one hand, and theprotection of human rights, on the other,should be sought and based on a reasonablecompromise which would avoid the “criticalpoint” beyond which human rights becomeunbalanced and, therefore, constitute anobstacle to an effective cooperation in thefight against crime.

Reaching a compromise is a difficulttask, for it requires recognizing, taking intodue consideration, assessing and weighing

many various factors and components. Theprocess of balancing all the interestsinvolved should be carried out on twolevels: first, human rights versus needs oflaw enforcement and internationalcooperation; second, human rights of therequested person (fugitive) versus humanrights of others (and society).

In addressing and evaluating therelevancy of human rights in the contextof extradition, two criteria could beemployed. One would emphasize thenature of a specific right as vital ornecessary. This approach requires sortingout all human rights in order to “designate”the appropriate ones. It is here that theconcept of “fundamental human rights” hasemerged and is gaining a widespreadacceptance. This concept is based on theunderstanding that out of all human rightsa group has been recognized as non-derogable in all universal and regionalinstruments and, therefore, has to begranted protection the specificity ofextradition notwithstanding. An obviousdisadvantage of applying this criterion isthat it offers a very restrictive scope ofhuman rights which are covered under thenotion of “fundamental human rights”. Atpresent, there are only four such rightswhich are regarded as non-derogable: theright to life; the prohibition on torture andother forms of cruel, inhuman anddegrading treatment and punishment; theprohibition on slavery; and freedom fromex post facto or retroactive criminal laws.

The second criterion points to the scope,degree and severity of the violation ratherthan the nature of the right. Byemphasizing the threshold, this approachindicates that controlling is not the rightas such but the way it was, or likely to be,violated. There seems to be a generalagreement that this threshold must besufficiently high to justify the refusal of theextradition request. Such standard was

3 See e.g. J. Dugard, Ch. Van den Wyngaert,Reconciling Extradition with Human Rights, 92AJIL 1 87 (1998); Ch. Van den Wyngaert, Applyingthe European Convention on Human Rights toExtradition: Opening Pandoras Box? , 39International and Comparative Law Quarterly 757(1990); O. Lagodny, S. Reisner, Extradition Treaties,Human Rights and “Emergency Brake“-Judgments:A comparative European Survey, 2 FinnishYearbook of International Law 237 (1994); O.Lagodny, W. Schomburg, International Cooperationin Criminal Matters and Rights of the Individualfrom a German Perspective, 2 European Journal ofCrime, Criminal Law and Criminal Justice 379(1994); A.H.J. Swart, Human Rights and theAbolition of Traditional Principles, in: A. Eser, O.Lagodny (eds.) Principles and Procedures for a newTransnational Criminal Law 505 (1992); G. Gilbert,Aspects of Extradition Law 79-93 (1991); C.H.W.Gane, Human Rights and InternationalCooperation in Criminal Matters, in: P.J. Cullen andW.C. Gilmore (eds) Crime Sans Frontieres 186(1998).

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elaborated by the European Court ofHuman Rights in its seminal judgment inthe Soering case where the Court held thatthe United Kingdom, acting as therequested state, must have not extraditeda fugitive “where substantial grounds havebeen shown for believing that the personconcerned, if extradited, faces a real riskof being subjected to torture or to inhumanor degrading treatment or punishment inthe requesting country”.4

The “real risk” test was followed by theUN Human Rights Committee in Ng v.Canada.5 Also the national courts seem tobe going along the similar lines when theyground the refusal of extradition on thenotions of a “blatant unjust”, “violation tothe principles of fundamental justice”,“shock to the conscious of Jurists”, offensiveto the conceptions of “ordre public”, “grossviolation”, “flagrant breach”, etc. Anappropriate scrutiny is called for by therecommendations adopted by both theInternational Law Association at its TaipeiConference in 1998 and the participants ofthe Oxford Conference on InternationalCooperation in Criminal Matters, convenedby the Commonwealth Secretariat and heldin 1998. Both documents propose thatextradition be refused i f there issubstantial evidence that if a fugitive werereturned there is a real risk of a seriousviolation of human rights. The “real risk”test is, therefore, qualified and combinedwith the requirement of a “seriousviolation”.

Besides “fundamental human rights”,there is another category which raises adifficult question: are the fair trial rightsrelevant and applicable to extradition, andif so, which ones and to what extent? This

problem should be discussed in twoseparate contexts as it generates differentissues when the application of the right tofair trial is analyzed from the point of viewof the requesting state and the requestedstate. In the context of the former, twosituations (or scenarios) must bedistinguished depending on whether therehas been an actual violation of fair trialrights in the proceedings that have led tothe conviction and sentence, or there ismerely a potential for such a violation. Thefollowing flowchart represent an attemptto point out and illustrate major problemsinvolved in the process of examination aswell its methodology.

FLOWCHART

The questions raised in the context ofthe requested state are different. Theyrelate to the nature of the extraditionproceedings carried out by the competentauthorities of that country. The disparityof domestic legislation and state practiceis striking. The solutions adopted invarious parts of the world range frompurely administrative procedure, judicialor mixed procedures, criminal proceedingsto the procedure sui generis. Given such adisparity it does not seem advisable orfeasible to propose a uniform proceduraland organizational system that would beacceptable to all states. Instead, effortsshould concentrate the elaboration of a listof “core fair trial rights” that must beguaranteed to the extraditurus by therequested state no matter whichprocedural system it has adopted.Although the International Covenant ofCivil and Political Rights (Article 14) andthe European Convention on HumanRights (Article 6) might offer a good“starting point” an examination should notstop there: the rights embodied thereinhave to be tailored to the specific natureand needs of extradition.

4 Soering v. United Kingdom, E.C.H.R. Series A, No.161 (1989); 28 ILM 1063 (1989).

5 Ng v. Canada, H.R.C., Communication No. 469/1991, 5 November 1993, 98 ILR 479 (1994).

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Flowchart: examination of a fair trial objection to extradition

applicable standard

national :constitutional order (rights)

in the requested state

international :* global instruments,* regional conventions,* customary international law

extraditee

(tried and) convicted and sentenced(actual violation)

extraditiondenied

OR condition(s)attached

sufficient assurances bythe requesting state

YES NO

extraditiondenied

extraditiongranted

sought for trial(potential violation)

inquiry conducted in the requested state:

• evidentiary difficulties, e.g. relikelihood;

• disparity of interpretation (basedon or taking into account domesticrules, standards and practice)

• burden of proof on the extraditee;• t h r e s h o l d : f l a g r a n t ( a n d

systematic)? real risk?• conditions ?• competent authority: government

or courts?

outcome: highly uncertain

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II. GROUNDS FOR REFUSAL OFEXTRADITION: A CRUCIAL AND

YET CONTENTIOUS ISSUE

A. Criteria for the classification ofgrounds for refusal of extradition

1. Binding Force:

A. Mandatory,B. Optional,

2. Source:

A. International law:1. treaty and convention stipulations,2. customary norms,

B. Domestic legislation:1. constitution,2. statutes,

C. Jurisprudence of the judiciary:1. domestic courts,2. international tribunals,

3. Subject Matter:

A. Nature of the offence:1. political,2. military,3. fiscal,

B. Requested person:11. nationality,2. immunity (under):

a) international law,b) doctrine of state,c) domestic statutory or case law,

3. refugee status,4. humanitarian considerations,5. discriminatory treatment,

C. O b s t a c l e s t o p r o s e c u t i o n o rpunishment:1. substantive:

a) principle of legality (nullumc r i m e n s i n e l e g e , n o n -retroactivity),

b) s t a t u t e o f l i m i t a t i o n(prescription),

c) other,

2. procedurala) ad hoc o r extraord inary

tribunal,b) trial (judgment) in absentia,c) res judicata (ne bis in idem,

double jeopardy):(i) f inal judgment in the

requested state,(ii) final judgment in the third

state,d) l i s p e n d e n s ( p e n d i n g

prosecution),e) declining to prosecute,f) amnesty and pardon,g) lapse of time (unreasonable

delay),h) immunity under:

(i) international law,(ii) doctrine of state,(iii) domestic statutory or case

law,i) other,

[Note: obstacles under “a” and “b”—extradition-specific, obstacles under “c”through “i” — general.]

D. Punishment:1. death penalty,2. other sanctions,

E. Jurisdiction:1. concurrent jurisdiction,2. extraterritorial jurisdiction,

F. Human rights:1. prohibition of cruel, inhuman or

d e g r a d i n g t r e a t m e n t o rpunishment,

2. other:a) d i r e c t a p p l i c a t i o n o f

international instruments,b) indirect application - via

domestic legislation,

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4. State’s Interests Involved:

A. Rooted predominantly in therequested state:1. nature of the offence,2. requested person,3. lis pendens (pending prosecution),4. declining to prosecute,5. amnesty and pardon,6. immunity under domestic statutory

or case law,

B. Rooted predominantly in therequesting state:1. ad hoc or extraordinary tribunal,2. trial (judgment) in absentia,3. punishment,4. human rights,5. lapse of time (unreasonable delay),

C. “Neutral” (or any of the statesinvolved):1. statute of limitation (lapse of time),2. res judicata (ne bis in idem, double

jeopardy),3. immunity under:

a) international law,b) doctrine of state,

5. Rationale :

A. Mistrust among states and the lackof confidence in one another’s justicesystem,

B. Political considerations,C. International undertakings of a state,D. Protection of human rights,E. Sovereignty,F. Tradition,G. Notions of fundamental justice and

fairness embodied in the domesticlegal system,

H. Discrepancies between legal systems.

B. Comments on the grounds forrefusal of extradition

Admittedly, both the size of the catalogueand the length of the list of the grounds for

refusal of extradition are impressive. Notonly have they grown significantly over thelast hundred years but, more importantly,still have a considerable potential forfurther growth (refer to section III of theChart: C.1 .c, C.2.g, D.2, F.2). This tendencyworries many government officials andpeople directly involved in the extraditionprocess who fear that, if upheld andstrengthened, the continuous expansion ofdefences, exceptions, exemptions, andexclusions may, in the long run, seriouslyundermine this mechanism and frustrateefforts aimed at bringing fugitive offendersto justice. Besides, the grounds for refusalare a “double dulled sword”: while it isrightly argued that their existence is aconditio sine qua non for each and everyform of international cooperation incriminal matters because they give anassurance to the states involved that theirvital interests will be respected, at thesame time, it must not be ignored thatfrequent or, viewed from the perspectiveof the requesting state, unwarranted resortto refursal may have adverse effects oninternational relationships. Undeniably,the longer the list of grounds for refusal,the weaker the extradition may become.

To prevent the deterioration of themechanism of international rendition ofo f f enders and t o s t rengthen i t seffectiveness, one of the available optionsis to improve this process itself through theoptimalization of its treaty and statutoryregulation. One way to proceed would beto downsize the catalogue of grounds forrefusal, or at least, to stop or slow downthe process of its further growth. However,since the possibilities for improvement inthis way are naturally limited theresources have to be sought elsewhere.This is where the principle aut dedere autjudicare comes into play as an alternativesolut ion. The properly designedmechanism for “judicare” may become aneffective countermeasure that will, to a

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certain degree, compensate for theexpansionist approach towards thegrounds for refusal.

It must be made clear that the chart doesnot cover all situations where the requestsubmitted for extradition is denied. It islimited to the categories which, by way oftradition and linguistic convention fallsunder the “grounds for refusal”.6 Inaddition to them, there are all theconditions and requirements pertaining,e.g. to the definition of an extraditableoffence, which, if not met or fulfilled, alsoresult in the request being denied.

The f irst cr i ter ion used in theclassification, the binding force of aparticular ground for refusal, is of utmostimportance for the states involved in theextradition process, especially for therequested state. In countries where thecourts have been empowered to inquire intothe legal admissibility of the surrender, thecontents of the catalogue for mandatoryrefusal is the most valuable guide, for itdelimits the scope of situations where thecourt will issue a negative opinionregarding extradition. It is then onlylogical that the executive organ authorizedto make the final decision is bound by thiskind of court’s ruling which says that theextradition is not (legally) allowed.

However, this classification presentslittle value and help for those whose effortsfocus on modifying and improving thetreaty and domestic regulations in thisarea. Shuffling the grounds for refusalbetween the two catalogues back and forthis not very promising, nor does it bear anyvaluable fruits, especially in terms ofcommon acceptance of a particularsolution; therefore, we have to reach deeper

into the problem and examine the natureand meaning of each ground, irrespectiveof legal consequences it produces.

To carry out this task successfully, wehave to start from elaborating distinctcategories that could accommodate all ofthe existing (and potential) grounds forrefusal. Section III of the Chart raises anumber of problems, questions and doubts.For example, are all these categories fullydisjunctive, i.e. do they not overlap? Should“human rights” be, as they appear in thechart, placed separately, or — as someauthors maintain7 — no separate-categoryis needed as they can, and should, beaccommodated in other categories, mostnotably under the “obstacles to prosecutionand punishment”? Why are somecategories left open (C.1.c C.2.g, D.2, F.2)?Two reasons: first, the author did not havean opportunity to conduct a full-scalecomparative analysis of all internationaltreaties and domestic legislation, otherwisechances are that these blank spaces wouldhave been filled in; second, the author seesthem as a “potential for growth”.

Section IV represents yet anotherattempt aimed at examining and analyzingthis problem. If we consider extraditionas a process based on bipartite relationshipbetween the requesting state and therequested state, then the question arisesconcerning the side on which the obstacleto which the particular ground for refusalrelates is located. When the requestedstate refuses to surrender the personsought, does it so because the real problemlies within its borders and its ownjurisdiction, or, maybe, the invoked groundfor refusal points to the requesting state?While seeking answers to these questions,the distinction was made between grounds

6 A.H.J. Swart, Refusal of Extradition and the UnitedNations Model Treaty on Extradition , 23Netherlands Yearbook of Int’l L. 175 (1992).

7 See e.g. M. Ch. Bassiouni, INTERNATIONALEXTRADITION: UNITED STATES LAW ANDPRACTICE 496 (3rd ed. 1996).

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f o r r e f u s a l w h i c h a r e b a s e d o ncircumstances for which the responsibilityare borne predominantly by the requestedstate and those which fall predominantlywithin the realm of the requesting state.The third category was also distinguishedas there are a few instances where theground for refusal, as defined in generaland abstract terms, is “neutral” in the sensethat it there is not an inseparable linkbetween the underlying obstacle and onlyone of the states concerned. An analysiscarried out along these lines shouldgenerate further arguments in favor ofmandatory or optional nature of somegrounds for refusal. It should alsocontribute to the elaboration of a moreefficient mechanism based on the principleaut dedere aut judicare by indicating whereit may be reasonable to expect from therequested state to proceed with “judicare”when its authorities deny the extraditionrequest.

An attempt was also made to get to theheart (or roots) of the problem by askingthe question: WHY does the requested statedeny extradition when its executiveauthority invokes this or that ground forrefusal? This question has nothing to dowith the problem of legal and factualjustification of the negative decision in anygiven case. Nor does it imply any sort ofassessment or evaluation of the proprietyof the refusal. Rather, it suggests that itmay be more instructive to move thisinquiry further back to see why thatparticular ground for refusal was includedin a treaty or domestic law in the first place.Therefore, when it comes to the applicationof that legislative enactment or treatystipulation in practice the rationale behindit in many cases either is not fully realized,or lies somewhere in the “shadow”. It isthis author’s strong belief that only bybringing the true motives and reasons tolight can we challenge them, and only bychallenging them, better still removing

some of them, can we make any meaningfulchanges within the framework of thegrounds for refusal possible, therebymodernizing and re-shaping the existingsystem of international extradition. Theproposed inquiry does not necessarily haveto confirm the status quo; instead, it mayindicate either that the rationale, althoughwell founded and valid in the past (e.g. inte 19th century), has out-lived, and is notsusta inable today as complete lyi n c o m p a t i b l e w i t h t h e e v o l v e dinternational relationships, or, conversely,that the need has emerged calling for newexceptions and exemptions.

Section V of the Chart summarizes theresults of the preliminary investigationinto this problem. The classification basedupon the rationale behind the grounds forrefusal is far from perfect, and the resultingpicture is not as clear-cut as in the case ofother criteria. Several factors havecontributed to this. First, the grounds forrefusal usually are not analyzed from thisperspective; its examination is carried outin legal terms, and is limited to treaty and/or legislative regulation. Second, the realsignificance and role of the rationale forrefusal are downplayed, if not completelyignored, by the governments and theirauthorities involved in the process ofextradition. Third, since no inquiry intothese matters is being made as irrelevantto the rendition it is not an easy task to“translate” each and every category ofrationale into one (and only one) groundfor refusal, and vice versa.

The mutual relationships between thegrounds for refusal and the rationale aresomewhat “muddled” due to the fact thatthere does nor exist a logical link betweenthem, the result being that the categoriesof rationale do not have their specificcounterparts within the grounds for refusalwhich could be easily identified andestablished by way of necessity. The

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opposite is true: a ground for refusal maybe based on more than just one rationaleand, based on one category of rationale,more than one ground for refusal may beinvoked. For example, the political offenceexception (section III, A.1) may be rootedin at least the following categories ofrationale (section V): mistrust amongstates and the lack of confidence in oneanother ’s justice system (A), politicalconsiderations (B), and notions offundamental justice and fairness embodiedin the domestic legal system (of therequested state)(G). Similarly, the mistrustand the lack of confidence (section V, A) mayresult in refusing extradition on one of themany grounds (section III), such asnationality of the requested person (B.1),discriminatory treatment (B.5), someprocedural obstacles to prosecution (C.2),and the protection of human rights (F).

It is submitted that this ratherunexplored territory should become asubject of further and more detailedstudies. A report from such an analysis,e s p e c i a l l y w h e n d r a f t e d i n acomprehensible language and formulatedin practical terms, may constitute a muchmore effective tool that could be used toconvince both the government officials andthe politicians, most notably the membersof the national parliaments, that, possibly,the time has come to change their approachto and their way of thinking aboutextradition and the grounds for refusalthereof. Most importantly, such a studyshould contribute to the commonunderstanding that the so-cal ledtraditional grounds for refusal, based onthe rationale which itself is rooted in the“old days’” concepts and notions, may bepreserved and accommodated insofar asthey are compatible with the modernapproach to extradition.

III. THE PRINCIPLE AUT DEDEREAUT JUDICARE

A. Present status of the principleaut dedere aut judicare underinternational law

If the possibility of an offender ’simpunity is recognized as the most seriousdanger caused by the practice of non-extradition of nationals, then from thepoint of view of criminal justice it shouldnot matter in the territory of which statehe is prosecuted and punished as long asthe justice is done. This was the underlyingidea of the maxim aut dedere aut punire asit was originally formulated by HugoGrotius in 1625:

“The state in which he who has beenfound guilty dwells ought to do oneof two things. When appealed to, itshould either punish the guiltyperson as he deserves, or it shouldentrust him to the discretion of theparty making the appeal. This lattercourse is rendition, a procedure morefrequently mentioned in historicalnarratives (...) All these examplesnevertheless must be interpreted inthe sense that a people or king is notabsolutely bound to surrender aculprit, but, as we have said, eitherto surrender or to punish him”.8

When interpreting these words today, itmust be remembered that the scope ofapplication of this maxim was limited to“crimes which in some way affect humansociety” as a whole, and which incontemporary language can be identified,to a certain extent, as internationalcrimes.9 Moreover, the rule presupposedan existence of a “triggering mechanism”,

8 H. GROTIUS, DE IURE BELLI AC PACIS, BookII, Chapter XXI, para. III-1,2, IV-1,3;transl. F. W.Kelsy (ed.), THE CLASSICS OF INTERNATIONALLAW 526-529 (1925).

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or “appeal”, which today would betranslated as an extradition request.Finally, while in the original wording analternative to dedere was punire, it cannotbe held that Grotius really meant exactingpunishment without first establishingguilt.10 The accused fugitive may turn outto be innocent. Thus, the most that canrightly be demanded from the requestedstate in lieu of extradition is to put him ontrial, or prosecute him (judicare).11

Under the aegis of this maxim, insteadof it being a last resort if extradition isrefused on the grounds of nationality of thefugitive offender, prosecution and trial inthe requested state would be elevated to amore pro-active status in internationalcriminal law. At present, the prevailingview hold that extradition, or some variantthereof, is the exclusive way of bringingfugitive offenders to justice. It is acceptedthat the principal aim must be to prosecute

the fugitive and that international publicorder requires international cooperationand mutual assistance, then a morepositive acceptance of trial in theextraditee’s home country is necessary. Todetermine the effectiveness of the systembased on aut dedere aut judicare withrespect to the extradition of nationals, thefollowing three problems have to beaddressed: first, the status and scope ofapplication of this principle underinternational law; second, the hierarchyamong the options embodied in this rule,provided that the requested state has achoice; third, practical difficulties inexercising judicare.

Despite persuasive arguments advancedby leading authorities in internationalcriminal law to the contrary,12 the principleaut dedere aut judicare has not gained thestatus of a norm of international customarylaw. In order to qualify as a customary ruleof international law binding on theinternational community and to satisfy therequirements of Article 38, paragraph 1 (b)of the Statute of the International Courto f Just i ce concerning sources o finternational law, two elements have to beproved: (1) a material element manifestedby a general practice, and (2) opinio jurissive necessitatis, that is the conviction thatthe practice is “accepted as law”. However,contemporary practice furnishes far fromconsistent evidence of the actual existenceof a general obligation to extradite orprosecute with respect to internationaloffences.13 The most it can be said aboutaut dedere aut judicare is that it constitutesa “general principle of international law”,14

9 Generally, two methods have been proposed todefine an international crime. One is to use aconcise and general definition, the other is toemploy a set of criteria (“penal characteristics”) foridentifying such offences. The former is advocatedby E.M. Wise, International Crimes and DomesticCriminal Law, 38 DePaul L. R. 923-933 (1989),while the latter is supported by M. C. BASSIOUNI,A DRAFT INTERNATIONAL CODE AND DRAFTSTATUTE FOR AN INTERNATIONAL CRIMINALCOURT 21-65 (1987).

10 In fact, GROTIUS himself seems to have beencognizant of the principle of fundamental justice,for he added the following note: “For surrendershould be preceded by judicial investigation; it isnot fitting ‘to give up those who have not beentried’”. GROTIUS, supra note 144. Book II, ChapterXXI, para. IV(1).

11 M . C . B A S S I O U N I , I N T E R N AT I O N A LEXTRADITION: UNITED STATES LAW ANDPRACTICE 5(3rd ed. 1996): G. Guillaume,Terrorisme et droit international, 215 Hague Rec.287, 371 (1989-III): “the true option which is opento states is necessarily aut dedere aut prosequi”.

12 M.C. BASSIOUNI & E.M. WISE, AUT DEDEREAUT JUDICARE: THE DUTY TO EXTRADITE ORPROSECUTE IN INTERNATIONAL LAW 22-26,5 1 -53 (1996).

13 J.J. LAMBERT, TERRORISM AND HOSTAGES ININTERNATIONAL LAW 190 (1990).

14 BASSIOUNI, EXTRADITION, supra note 7, at 9.

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although some authors go further byarguing that it belongs to the jus cogensnorms.15 The latter proposal would meanthat this principle is an overriding or“peremptory” norm which cannot be setaside by treaty. The consequences of sucha proposal might be quite dramatic: if everystate under any circumstances had thisalternative obligation (either to surrenderor to prosecute) treaty stipulationsnotwithstanding, that would invalidateboth international instruments providingexclusively for “dedere” and treatiesproviding for the extradition of nationals.16

In his dissenting opinion in the Lockerbiecase , Judge Weeramantry in h ischaracterization of this principle as a “ruleof customary international law” seems tohave equated it with the proposition thata state is entitled “to try its own citizens inthe absence of an extradition treaty”.17 Inthis sense, the principle is “an importantfacet of a State’s sovereignty over itsnationals”.18 However, the proposition thatthere is no duty, absent treaty, to extraditenationals whom a state is prepared to tryitself can be relevant only in the face of anobligation to surrender. But, as thepractice of contemporary international lawdemonstrates, there is no duty to extraditein the absence of treaty.19

The uncertainties surrounding thestatus of this principle under internationallaw directly affect both the scope of itsapplication and its ef fect iveness.Practically, the alternative obligation ofstates either to surrender or to prosecuteexists insofar as has been expressly spelledout in an international instrument or, onlyexceptionally, in the domestic legislation.It has been a standard policy to have theprinciple aut dedere aut judicare includedin general extradition treaties, eitherbilateral or multilateral,20 especially withrespect to the refusal of surrender ofnationals.21 In addition, such a stipulationappears in almost all conventions aimedat defining international offences as wellas securing international cooperation in thesuppression of such acts.22 It is feared thatan unrestricted, or absolute, principle autdedere aut judicare might imply that allstates are obliged to prosecute any offencecommitted in any place by any personfound in their territory, unless an offenderis extradited.23

All the difficulties concerning the scopeof application and the contents of anobligation envisaged by various formulasin which th i s pr inc ip le appearsnotwithstanding, the validity of the systembased on aut dedere aut judicare has beenconf i rmed not on ly in numerousinternational instruments, but also indomestic jurisprudence in many states.

15 BASSIOUNI & WISE, supra note 12 , at 25.16 E.M. Wise, The Obligation to Extradite or Prosecute,

27 Israel L. R. 268, 280 (1993).17 Questions of Interpretation and Application of the

1971 Montreal Convention arising from the AerialIncident at Lockerbie (Libyan Arab Jamahiriya v.United Kingdom), Provisional Measures, Order of14 April 1992. I. C. J. Reports 1992, 50 at 51.

18 Ibid., at 69.19 H . W H E A T O N , E L E M E N T S O F

INTENIRATIONAL LAW 188 (5th ed. 1916).20 I . S H E A R E R , E . X T R A D I T I O N I N

INTERNATIONAL LAW 116-117, 124-125 ( 1971).

21 See the formula recommended for inclusion inbilateral treaties which appears in Article 4 of theUnited Nations Model Treaty on Extradition, G.A.Res. 45/116, U.N. Doc. A Res/45/116 (1991).

22 For a list of such conventions, see BASSIOUNI &WISE, supra note 12, at 75-287.

23 See e.g. N. Keijzer, Aut dedere aut judicare, inNETHERLANDS REPORTS TO THE XIthI N T E R N A T I O N A L C O N G R E S S O FCOMPARATIVE LAW 412 (H.U. JESSURUND’OLIVEIRA ed. 1982).

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For example, the Austrian Supreme Courtheld that where the extradition of anational has been refused “the right toprosecute must, as a general rule andwithout prejudice to the continuedexistence of the right to prosecute of theState in whose territory the offence hasbeen committed, be offered to the homeState of the offender”.24 On some occasions,the principle aut dedere aut judicare isrelied upon to demonstrate that it works“both ways”. In the Pesachovitz case wherean extradition request was submitted tothe Israeli authorities under the EuropeanConvention on Extradition, the courtassuming that Israel is obligated to do oneof two things: either to extraditePesachovitz or to punish him25 decided toorder the extradition the fugitive on thegrounds that prosecution was precludedunder Israeli law.26

B. Hierarchy of obligations or amatter of discretion?

One of the most intriguing and delicatequestions in the context of the principle autdedere aut judicare is whether bothalternative obligations embodied in thismaxim are placed on equal footing. If thatwas the case, then the requested state, thatis, the forum deprehensionis, would have acompletely free choice as to whichalternative it will elect to pursue. On theother hand, it could be argued that dedereand judicare are not really equalalternatives to the effect that the duty toextradite should be regarded as primary,

with the duty to prosecute arising only ifthe domestic legislation contains a bar toextradition. A corollary of the latterproposition is a view that the state locidelict i commissi has the primaryresponsibility to prosecute and punish theoffender, whereas the prosecutingauthorities and courts of the custody state,i.e. the country in whose territory anoffender has been found, have only asecondary duty. Such a conclusion couldbe based on several treaty stipulations anddomestic laws making judicare conditionalon: (1) the submission of the extraditionrequest; (2) the refusal of surrender, and(3) the requesting state’s specific demandthat the case be submitted to the competentauthorities of the requested state for thepurpose of prosecution.

The rationale for an a priori hierarchyof the alternative obligations embodied inthe principle aut dedere aut judicare withextradi t ion be ing pre ferred overprosecution, seems to be grounded in threeconsiderations: first, the state where theoffence was committed, has the primaryinterest in seeing the offender brought tojustice; second, in most cases, mainly dueto the evidentiary issues, the forum delicticommissi is the most convenient place forinvestigation, prosecution and trial; third,there may be cases where prosecution inthe forum deprehensionis will appear to beineffective or unfair. Although it is arguedthat “whenever possible, extradition shouldtake priority, at least in cases in which therequesting state asserts territorialjurisdiction over the offence”,27 the formulacontaining the principle aut dedere autjudicare that can be found in almost allmultilateral conventions prescribinginternational crimes as extraditiontreaties, is formulated in such languagethat does not seem to accord any specialpriority to extradition. A purely theoretical

24 Service of Summons in Criminal Proceedings(Austria Case), 21 February 1961, 38 I.L.R. 133,Ö.J.Z. 95 (1961) at 134

25 European Convention on Extradition, 1957, E.T.S.No. 24, Article 6.

26 Criminal Appeal 308/75, Supreme Court Decisionof 21 March 1977, Israeli Law Reports (1977), vol.31, II, p.449. See also C. Shachor-Landau, Extra-territorial Penal Jurisdiction and Extradition, 29Int’l & Comp. L. Quarterly 274-279 (1980). 27 BASSIOUNl & WISE, supra note 12, at 57.

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attempt based on an interpretativedistinction between “alternative” or“disjunctive” and “co-existent” obligation toprosecute or extradite does not seem to besuccessful in this context either.28

Thus, it is submitted that, absent treatystipulation to the contrary, the presentstatus of this principle does not warrant anassertion that judicare is “subordinated” todedere to the effect that the requested state’sfirst obligation is to deliver up the offendersought, and that it is allowed to instituteits own criminal proceedings only after ithas showed that extradition is prohibitedon legal grounds.29 However, onequalification has to be put on thisproposition: efforts must be made to solve aproblem that comes up in a situation wherean offender holds the citizenship of therequested state, while at the same time, theinvestigation, prosecution and trial in theterritory of that state appears to be notmerely inefficient, but simply impossible forpractical, evidentiary and political reasons.

In the henceforth international practice,the only attempt to effectively end theensuing stalemate (and the totalfrustration to criminal justice as well) hasbeen made in a concerted action by thegovernments of the United States and theUnited Kingdom in the Lockerbie case.Frustrated by Libya’s refusal to extraditeits two nationals suspected of having blownup Pan Am Flight 103 over Lockerbie,Scotland, and determined not to submit allthe evidence that have been gathered as aresult of the three-year extensive

investigation, the United States and theUnited Kingdom (joined by France)presented the case before the UN SecurityCouncil and the General Assembly.30 InJanuary and March 1992, the SecurityCouncil adopted two resolutions in thismatter: the first was urging Libya torespond fully and effectively to therequests31 of the United States, the UnitedKingdom and France,32 while the secondimposed economic sanctions on Libya.33

Libya brought the case before theInternational Court of Justice seekingprovisional measures to prevent the UnitedStates or the United Kingdom from takingany action to coerce Libya into handingover the two suspects or otherwiseprejudice the rights claimed by thatcountry.34 On April 14, 1992, the Courtdeclined (by a vote of 11 to 5) to indicate

28 BASSIOUNl, EXTRADITION, supra note 7, at 10.29 In essence, this was the position Libya held in the

Lockerbie case. See e.g. Letter dated 18 January1992 from the Permanent Representative of theLibyan Arab Jamahiriya to the United NationsAddressed to the President of the Security Council,reprinted in 31 I.L.M. 728-729 (1992).

30 See UN Doc. A/46/825; S/23306; 31 Dec.1991. 75

31 The requests consisted of the following demands:to• surrender for trial all those charged with the

crime; and accept responsibility for the actionsof Libyan officials;

• disclose all it knows of this crime, includingthe names of all those responsible, and allowfull access to all witnesses, documents andother material evidence, including all theremaining timers;

• pay appropriate compensation.” See , U.N. Doc.S/23308 (1991).

32 S.C. Res. 731 (1992) 21 Jan. 1992.33 S.C. Res. 748 (1992) 31 March 1992. In 1993, the

Security Council adopted a further resolutionextending previously imposed sanctions on Libya.See S.C. Res. 883 (1993) 11 Nov. 1993.

34 Questions of Interpretation and Application of the1971 Montreal Convention arising from the AerialIncident at Lockerbie (Libyan Arab Jamahiriya v.United States of America), provisional Measures,Order of 14 April 1992, I.C.J. Reports 1992 at 114.Questions of Interpretation and Application of the1971 Montreal Convention arising from the AerialIncident at Lockerbie (Libyan Arab Jamahiriya v.United Kingdom)), provisional Measures, Order of14 April 1992, I.C.J. Reports 1992 at 3.

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the provisional measures therebyconfirming the validity and binding forceof Resolution 748.35 The following threeinterpretations of the of the U.N. SecurityCouncil involvement in the Lockerbie caseare possible:

(a) Libya fa i led to demonstrateconvincingly that it is capable offulfilling the obligation which itc la imed under the MontrealConvention, that is, to make a goodfaith effort to prosecute the crimesitself.

(b) The resolutions signal a substantialloss of faith in the MontrealConvention’s authority and efficacyin bringing the offenders to justice.

(c) The Security Council offered anextraordinary remedy which, whileupholding the existing extraditions y s t e m , a t t h e s a m e t i m e ,supplemented it with the recourse tothat organ for intervention inexceptional situations, especiallywhere the traditional treaty modelproves unworkable.

The latter seems to be the mostpersuasive. The Court’s ruling means thatunder Article 103 of the U.N. Charter theResolution 748 takes precedence over anyother international agreement, includingthe Montreal Convention. In one sense, thegenuine choice between extradition andprosecution has been brought down to analternative: extradite or extradite. On theother hand, given the U.N. Charter ’sChapter VII exceptions to Article 2(7), thesecurity Council has the authority todetermine whether a situation is so severethat it constitutes a threat to the peace, abreach of the peace, or an act of aggression.Therefore, the Security Council has theauthority to take up such matters. In orderto reconcile both the Security Council

resolutions and the decision of theInternational Court of Justice in theLockerbie case, it was suggested that theinternational extradition law has not beenviolated or altered because in exceptionalcases, “the law merely operates at a differentlevel through the internationally sanctionedways and means of the United Nations”.36

It is doubtful, however, whether Lockerbiecould and should be viewed as the mostappropriate mechanism designed to end thestand-off in other similar cases. Rather, itis submitted that in seeking the solution, arigid approach should be abandoned infavour of a more flexible one which, in turn,should be based on modifications to judicare,so that it can constitute a viable optionwhich, more importantly, would beacceptable also to the requesting state. Sucha system, called “substituting prosecution”,was proposed by the Institute ofInternational Law in 1981:

1. “The sys tem o f subs t i tu t ingprosecution should be strengthenedand amplified.

2. T h e s y s t e m o f s u b s t i t u t i n gprosecution should be completed bystipulating detailed methods of legalassistance.

3. W h e n g o v e r n m e n t s a c t s i nsubst itut ing prosecution, theinterested governments-and inparticular the government of theterritory in which the offence wascommitted-should be entitled to sendobservers to the trial unless seriousgrounds, in particular with respect tothe preservation of State security,would justify their non-admittance.

4. In cases of substituting prosecution, ifthe tribunal concerned determines that

36 C.C. Joyner & W.P. Rothbaum, Libya and the AerialIncident at Lockerbie; What Lessons forInternational Extradition Law?, 14 Mich. J. Int’lL. 222, 256 (1993).35 Ibidem para. 39.

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the accused is guilty, an appropriatepenalty should be imposed, similar tothat which would be applied tonationals in a cognate case”.37

Instead of having a fixed hierarchy ofalternative obligations embodied in theprinciple aut dedere aut judicare, it is moredesirable to base the decision whether toprosecute, or not to prosecute in therequested country and surrender theperson sought, on mutual consultationsbetween the appropriate authorities of thestates involved. There may be cases inwhich it will be preferable for an accusedto be tried in a foreign state rather than inhis home country. The problem becomeseven more delicate where an offence wascommitted in the territory of both therequesting and the requested states, bothof which are, therefore, entitled to claimjurisdiction based on the principle ofterritoriality. A general and rigid rule ofrefusing to extradite nationals in suchcases would reduce the effectiveness ofextradition as a major tool in combattingtransnational crime. To allow theparticular circumstances of each case beinggiven due consideration in the process ofmaking a decision regarding the principleaut dedere aut judicare, one of theCanadian courts suggested that thefollowing factors should be included:

• where was the impact of the offencefelt or likely to have been felt;

• which jurisdiction has the greatestinterest in prosecuting the offence;

• which police force played the majorrole in the development of the case;

• which jurisdiction has laid charges;• which jurisdiction has the most

comprehensive case;• which jurisdiction is ready to proceed

to trial;• where is the evidence located;• whether the evidence is mobile;• the number of accused involved and

whether they can be gatheredtogether in one place for trial;

• in what jurisdiction were most of theacts in furtherance of the crimecommitted;

• the nationality and residence of theaccused;

• the severity of the sentence theaccused is likely to receive in eachjurisdiction.38

Moreover, due regard should be alsogiven to the question as to whetherprosecution would be equally effective inthe requested state, given its domestic lawand international instruments for thecooperation in criminal matters.39

No matter how persuasive andreasonable such recommendations are,they seem to be much easier to follow bythe common law countries. It is more thandoubtful whether they can become equallyattractive and compelling for countriesw h o s e d o m e s t i c l e g i s l a t i o n h a stradit ional ly opposed the idea ofextradition of their own nationals. Forexample, narcotic offences involvingColombians have often been committed inColombia but the effects of these crimeshave been felt in the United States andhave constituted crimes under UnitedStates law. In such instances the UnitedStates may have the greater interest in theprosecution of the crime, especially if thecrime did not cause much injury inColombia. However, it is rather unlikelythat this argument is powerful enough toconvince the Colombian government and

38 Swystun v. United States of America (1988), 40C.C.C. (3d) 222, 227-228 (Man. Q.B.).

39 United States v. Cotroni (1989), 48 C.C.C. (3d) 193,194 (S.C.C.).

37 Resolution adopted by the 12th Commission at itssession in Dijon. See 59 Institute of Int’l L.Yearbook 176-177 (1981).

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legislature that they should lift the ban onextradition of nationals.

C. Practicality of prosecution in lieuof extradition

Practical problems in fulfilling itsobligation under judicare do not necessarilyhave its source in the lack of good will onthe part of the requested state. Rather, theimpunity of an offender and the frustrationof justice should be viewed as a result oftheir inability to break with the rule of non-extradition of nationals, on the one hand,and to overcome difficulties inherentlyinvolved in prosecuting and punishingoffenders for crimes committed abroad, onthe other hand. Admittedly, in someinstances the requested country may beunwilling or unable, because of legal or otherreasons, to prosecute its national whoseextradition has been requested by anotherstate. Moreover, even when the requestedstate institutes criminal proceedings,problems may arise. At the least, the refusalto extradite may strain relations betweenthe requesting and the requested states.Furthermore, the former may believe, andthe facts may in some instances support thisbelief, that the latter will inadequatelypursue the prosecution, with the result thatthe accused will be acquitted or will receivea too lenient sentence.40 In 1938, the UnitedStates Secretary of State Hull complainedthat “such punishment as has been inflictedupon nationals of other countries in the ownlands for offenses committed in the UnitedStates has, in general, been much lighterthan the offenses committed appeared towarrant, and in many cases no punishimentas all has been inflicted and the trials heldhave resulted in acquittals”41. Much earlier,Lewis held that since a government has notsubstantial interest in punishing crimescommitted in the territory of another state,prosecution and trial in such cases will beconducted in a “careless, indifferent andintermittent manner”.42

Even where the competent authoritiesof the requested state have institutedcriminal proceedings against the nationalof that country whose extradition wasrefused, frequently they cannot to carrythem out because to pursue theirinvestigation they need evidence which,obviously, can only be found in the territoryof the requesting state where the offencewas committed. The latter, however, iseither not in a position or unwilling to putsuch evidence at the disposal of therequested state. Worse still, the problemmay not always be satisfactorily correctedthrough the use of mutual (legal) assistancefor it may be precluded on the grounds ofordre public, especially where the stateseeking such an assistance exercises itsown inherent criminal jurisdiction over anoffence.43 Even to the extent that seekingevidence abroad is legally possible, thatoperation creates three types of problems:first, bringing witnesses from distantcountries imposes a heavy financial burdenon both them and the accused, not tomention serious practical difficulties;second, some evidence are not available atall, such as the viewing of the scene of the

40 See M.P. Scharf, The Jury Is Still Out on the Needfor an International Criminal Court, l Duke J.Comp. & Int’l L. 135, 151-152 (1991).

41 Secretary of State Hull to Robert W. Rafuse, letter,April 20, 1938, MS. Department of State, file200.00/893. See 6 WHITEMAN, DIGEST 883. Hulladmitted that there may be “the tendency, perhapsnatural, to refrain from punishing a fellowcountryman for an offense he committed in a distantcountry and as to which there may be in the mindsof his fellow countrymen who pass in judgmentupon him a feeling that there may have beenextenuating circumstances”. Id.

42 LEWIS, FOREIGN JURISDICTION AND THEEXTRADITION OF CRIMINALS 30 (1859).

43 See P. Wilkitzki, Inclusion of the principle “autdedere aut judicare” in the European Conventionon Extradition, in EUROPEAN COMMITTEE ONCRIME PROBLEMS PC-OC 9 (1987).

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crime; third, if the evidence were takenabroad the court might have troubles to usethem at the trial due to possible proceduralrestrictions on such evidence. To overcomethe latter impediment, the law of evidencewould have to be substantially changed,especially in the common law countries.44

However, the possibility of such a

45 See e.g. M.D. Gouldman, Extradition from Israel,Michigan Yearbook of Int’l Leg. Studies 173, 198(1983); Cotroni, supra note 39, at 224.

46 See E.A. Nadelmann, The Evolution of UnitedStates Involvement in the International Renditionof Fugitive Criminals, 25 N. Y. U. J. Int’l. L. &Politics. 813, 856 (1993).

"Traditional"

Scope ofApplication

Nature of theStipulation

ratione criminis(offences)

ratione exceptionis(grounds for refusal)

Applicability

Scope of "judicare"

Ne bis in idem no yes

limited unrestricted unrestricted

unrestricted limited to one limited

Proposed

I II

prior state's jurisdictionas a precondition

"self-executing"

• Prosecution

• Trial

• prosecution• trial• enforcement of

a sanction (autdedere autpoenampersequi)

offence-related(derivative of

the gravity anddefinition

of an offence)

nationality-related

grounds-for refusal-related

(logical supplement of the duty to

extradite)

“revamping” has met with skepticism 45

Generally, government declarations andtreaty ( c onvent i on ) s t ipu la t i onsnotwithstanding, prosecution of nationalsin lieu of extradition is viewed as a sort of“second class” criminal proceedings,46

although this was not always the case.47

44 For example, in Israel it was proposed that evidencelawfully taken abroad should be accepted as primafacie evidence and that the court should not allowthe examination of the witnesses for theprosecution, unless the accused had requested thatsuch an examination be held and had establishedto the satisfaction of the court that it was requiredin order to prevent a denial of justice. See T. Meron,Non-extradition of Israeli Nationals andExtraterritorial Jurisdiction: Reflections on Bill No.1306, 13 Is. L. R. 215, 221 (1978).

IV. APPROACHES TO THE PRINCIPLE AUT DEDERE AUT JUDICARE

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A. Traditional approachesGenerally, from the available legislative

pronouncements and treaty stipulations,two basic approaches to the principle autdedere aut judicare can be discerned: oneis based on an inseparable link betweenduty to prosecute and the offence as definedin the international instrument while theother relates this duty to the grounds forrefusal: only one has been singled out, i.e.the nationality of the requested person, asa relevant and appropriate basis for thisobligation. The former can be called the“offence-oriented approach” and the latter-the “offender-oriented approach”.

1. “Offence-oriented approach”The traditional, “offence-oriented”,

approach has been widely applied inmultilateral conventions prescribinginternational crimes. Typically, thesolution adopted in those instrumentsconsists of two provisions which are ofinterest here. The chronologically first oneeither confers a jurisdictional competenceon the signatory states to prosecute therespective offence or obliges them toestablish such a jurisdiction. Thejurisdictional clause is usually followed bya separate stipulation on the principle autdedere aut judicare.

As regards national court jurisdiction,the former provision can be seen as acorollary of the former which establishesthe obligation of a state party to extraditeor prosecute an individual who is allegedlyresponsible for the crime defined in theconvent ion . In th is regard , the

jurisdictional “component” of this systemis intended to secure the possibility for thecustodial state to fulfil its obligation toextradite or prosecute by opting for thesecond alternative with respect to such anindividual. This alternative for thecustodial state consists of the prosecutionof that individual by its competent nationalauthorities in a national court. It ismeaningful only to the extent that thecourts of the custodial State have thenecessary jurisdiction over the crimes setout in the particular instrument to enablethat state to opt for the prosecutionalternative. Failing such jurisdiction, thecustodial state would be forced to acceptany request received for extradition whichwould be contrary to the alternative natureof the obligation to extradite or prosecuteunder which the custodial state does nothave an absolute obligation to grant arequest for extradition. Moreover, thealleged offender would elude prosecutionin such a situation if the custodial statedid not receive any request for extraditionwhich would seriously undermine thefundamental purpose of the aut dedere autjudicare principle, namely, to ensure theeffective prosecution and punishment ofoffenders by providing for the residualjurisdiction of the custodial state.

One of the new examples of the “offence-oriented approach” to this principle isrepresented by the DRAFT CODE OFCRIMES AGAINST THE PEACE ANDSECURITY OF MANKIND, adopted by theInternational Law Commission at its 48th

session in 199648.

48 Report of the International Law Commission on thework of its 48th session, U.N. G.A. Official Records51st session (A/51/10) at 14. See also T.L.H.McCormack, G.J. Simpson, The International LawCommission’s Draft Code of Crimes against thePeace and Security of Mankind: An Appraisal ofthe Substantive Provisions, 5 Crim. L. Forum 1(1994).

47 In 1910, the British Foreign Office advised theUnited States’ Ambassador that “according to theexperience of His Majesty’s Government, the resultof the prosecution of foreign subjects by their ownGovernments in lieu of surrender to this countryhas been, generally speaking satisfactory”. ForeignOffice to Mr. Whitelaw Reid, 25 July 1910, F.O. 372/262.

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Article 9 - Obligation to extradite orprosecuteWithout prejudice to the jurisdictionof an international criminal court, theState Party in the territory of whichan individual alleged to havecommitted a crime set out in articles17, 1 8, 19 or 20 is found shall extraditeor prosecute that individual.

The crimes defined in the Draft Code are:aggression (Article 16), genocide (Article17), crimes against humanity (Article 18),crimes against United nations andassociated personnel (Article 19), and warcrimes (Article 20).

The obligation to prosecute or extraditeis imposed on the custodial state in whoseterritory an alleged offender is present.The custodial state has an obligation totake action to ensure that such anindividual is prosecuted either by thenational authorities of that state or byanother state which indicates that it iswilling to prosecute the case by requestingextradition. The custodial state is in au n i q u e p o s i t i o n t o e n s u r e t h eimplementation of the present Code byvirtue of the presence of the allegedoffender in its territory. Therefore thecustodial state has an obligation to takethe necessary and reasonable steps toapprehend an alleged offender and toensure the prosecution and trial of such anindividual by a competent jurisdiction.

The custodial state has a choice betweentwo alternative courses of action either ofwhich is intended to result in theprosecution of the alleged offender. Thecustodial state may fulfil its obligation bygranting a request for the extradition of analleged offender made by any other stateor by prosecuting that individual in its

national courts. Article 9 does not givepriority to either alternative course ofaction. The custodial state has discretionto decide whether to transfer the individualto another jurisdiction for trial in responseto a request received for extradition or totry the alleged offender in its nationalcourts. The custodial state may fulfil itsobligation under the first alternative bygranting a request received for extraditionand thereby transferring to the requestingstate the responsibility for the prosecutionof the case. However, the custodial state isnot required to grant such a request if itprefers to entrust its own authorities withthe prosecution of the case.

This kind of approach to the principleaut dedere aut judicare has been adoptedin the 1970 Hague Convention for theSuppression of Unlawful Seizure ofAircraft49 and several internationalinstruments patterned after it. TheConvention does not subordinate the dutyto prosecute to the requested state’s ruleso f c o m p e t e n c e r e g a r d i n g t h eextraterritorial jurisdiction. The obligationto prosecute arises whenever theextradition is not granted:

Article 7“The Contracting Party in theterritory of which the alleged offenderis found shall, if it does not extraditehim, be obliged, without exceptionwhatsoever and whether or not theoffense was committed in its territory,to submit the case to its competentauthorities for the purpose ofprosecution. Those authorities shalltake their decision in the samemanner as in the case of any ordinaryoffense of a serious nature under thelaw of the that state”.

This mechanism for the implementationof the rule aut dedere aut judicare has beenrepl icated in several subsequent

49 Convention for the Suppression of Unlawful Seizureof Aircraft, December 16, 1970, 860 U.N.T.S. 105.

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conventions for the suppression ofinternational offences concluded under theauspices of the United Nations or itsspecialized agencies50. The following twovariants of the Hague Convention formulacan be discerned:

a) the alternative obligation to submit acase for prosecution is subject, where aforeigner is involved, to whether a state haselected to authorize the exercise ofextraterritorial jurisdiction51;

b) the obligation to submit a case forprosecution only arises when a request forextradition has been refused52.

2. “Offender-oriented approach”The other traditional approach the

“offender-oriented approach”, presupposesthat the scope of application of the principleaut dedere aut judicare should not belimited to the most serious internationalcrimes; instead it should encompass allextraditable offences. This approachfocuses on the situation where therequested state refuses to surrender itsown nationals and perceives such a caseas extremely frustrating to the wholesystem of international extradition. Toavoid the most blatant abuses wherebythat state might take advantage of thisexception in order to grant protection

against punishment to its citizens, it is onlylogical to demand from that state that itinstitute the criminal proceedings againstthe requested persons and subject them toits domestic criminal justice system. Inthis approach, it is not the offence thatmatters and is decisive - it is the offenderhimself that is the “triggering element” forthe mechanism aut dedere aut judicare.

Examples of this approach can be foundin both multilateral conventions andbilateral treaties on extradition. The 1957European Convention on Extradition53

provides one of them. Its Article 6,paragraph 1 (a) confers on the contractingstates a right to refuse extradition of theirnationals. Consequently, paragraph 2 ofthis article stipulates that:

“If the requested Party does notextradite its national, it shall at therequest of the requesting Party submitthe case to its competent authoritiesin order that proceedings may be takenif they are considered appropriate. Forthis purpose, the files, information andexhibits relating to the offence shall betransmitted without charge by themeans provided for in Article 12,paragraph 1. The requesting Partyshall be informed of the result of itsrequest”.

Some bilateral treaties also containprovisions to the same effect. For example,Article 44(a) of the 1992 Treaty on LegalAssistance in Criminal Matters, Transfer ofSentenced Persons and Extradition54

between Poland and Egypt has beenmodelled on the European Convention on

53 E.T.S. No. 24. See also Explanatory Report on theEuropean Convention on Extradition, Council ofEurope 1969 at 17.

54 The Treaty was signed on May 17, 1992, andentered into force on February 20, 1993 (DZ.U.[Journal of Laws, Polish] of 1994, No. 34, Item 129).

50 By way of example, the following instruments canbe mentioned: Convention for the Suppression ofUnlawful Acts Against the Safety of Civil Aviation,1971, 974 U.N.T.S. 177 (the Montreal Convention);Convention on the Prevention and Punishment ofCrimes Against Internationally Protected Persons,Including Diplomatic Agents, 1973, 1035 U.N.T.S.167 (the New York Convention); InternationalConvention Against the Taking of Hostages, 1979,18 I.L.M. 1456 (1979).

51 United Nations Convention Against Illicit Trafficin Narcotic Drugs and Psychotropic Substances,1988, 28 I.L.M. 493 (1989), Article 6, paragraph 9.

52 See e.g. the European Convention on the Suppressionof Terrorism, 1977, E.T.S. No. 90, Article 7.

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Extradition. Also the United Nations ModelTreaty on Extradition incorporated a clauseformulated along the similar lines55.

3. A compromise positionA variant formula has been worked out

by drafters of some internationalconventions which represents a compromisebetween the two approaches referred tobefore. The “middle position” takes accountof differing views among states on whetherthe exercising criminal jurisdiction overoffences committed abroad is proper, useful,and reasonab le , the ex t rad i t i onnotwithstanding. The compromise formulaallows the states involved to consider andevaluate such factors.

This formula was adopted in the 1929Convention for the Suppression ofCounterfeiting Currency56 whose draftersabandoned the rigid clause embodied in theinternational instruments discussed aboveunder A, and favored a more flexible solutionwhich confers, to a certain extent, adiscretion on the requested state withrespect of exercising its jurisdiction toprosecute in lieu of extradition. Toaccommodate both the variety of views andthe discretion, two different procedures havebeen provided for depending on thenationality of the requested person. If thatperson is a national of the requested stateand his status is the only ground for refusalof his surrender, that is, if there are no otherobstacles to extradition, Article 8 providesthat he “should be punishable” in his homecountry for an offence committed abroad.On the other hand, the Convention hasimposed a slightly diminished burden on therequested state with respect to foreigners.

They “should be punishable” for offencescommitted outside the borders of therequested state only if it has beenestablished that the domestic law of thatcountry “recognizes as a general rule theprinciple of prosecution of offencesc o m m i t t e d a b r o a d ” ( A r t i c l e 9 ) .Furthermore, the obligation to prosecute isconditioned on two other circumstances:first, the extradition request has beensubmitted by another state; second, thegrounds for refusal are not offence-related57.

B. Proposed approachThe mechanism for the implementation

of the principle aut dedere aut judicareenvisioned by the new approach can becharacterized as follows:

1. The scope of application of thisprinciple ratione criminis shouldremain unrestricted to the effect thatthe duty to prosecute should arise withrespect to all extraditable offences.

2. The scope of application rationeexceptionis should be limited to certaingrounds for refusal of extraditionwhere, after a careful analysis, it isboth realistic and reasonable to expectthe requested state to institute andconduct criminal proceedings in thecase at hand. In making thisassessment, two sets off actors have tobe taken into account: first, therationale behind each ground forrefusal, especially any political over-orundertones; second, the legislativeenactments , most notably theconstitution, in the requested statepertaining to the admissibility of thecriminal prosecution.

57 Article 9“The obligation to take proceedings is subject to thecondition that extradition has been requested andthat the country to which application is madecannot hand over the person accused for somereason which has no connection with the offence”.

55 United Nations Model Treaty on Extradition, G.A.Res. 45/1 1 6, U.N. Doc. A/Res/45/1 16 (1991).

56 International Convention for the Suppression ofCounterfeiting Currency, April 20, 1929, 112L.N.T.S. 371.

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3. While the typical stipulation of thisprinciple rooted in the traditionalapproach can be seen as a derivative ofthe gravity and the definition of anoffence the new approach postulatesthat the rule is a logical supplement ofthe duty to extradite.

4. As opposed to the existing systemunder which the requested state’scriminal jurisdiction and “judicare” aretreated not only as two separateelements but, more importantly, as theformer being a necessary preconditionfor the latter, the new approachsuggests that stipulation of theprinciple aut dedere aut judicare itselfconstitute sufficient jurisdictional basisfor the competent authorities of therequested state to prosecute and punishthe offender. In a sense, the proposedmechanism would be similar to thesystem of the socalled “vicariousadministration of Justice”58 based onthe “principle of representation”59.

5. The “judicare” option should beinterpreted in functional and notstrictly legal (“legalistic”) terms.Consequently, the meaning of thisalternative should not be limited to twostages of the criminal process, i.e.prosecution and trial. The requestedstate should be allowed to fulfill itsobligation under the rule aut dedere autjudicare by undertaking to enforce the

60 See PLACHTA, TRANSFER OF PRISONERSUNDER INTERNATIONAL INSTRUMENTS ANDDOMESTIC LEGISLATION. A COMPARATIVESTUDY 191-193 (1993).

61 Similar proposal was submitted by J.E. Schutte,Enforcement Measures in International CriminalLaw, 52 Revue internationale de droit pénal 441-453 (1981).

final sentence imposed on the offenderwhose extradition was requested. Thisrule should, therefore, be supplementedby a new clause: aut dedere aut poenampersequi60.

6. Last but not least, all the effortstowards treaty and legislativeregulation of the principle aut dedereaut judicare notwithstanding, the ruleis at present an “open end concept”. Acrucial element is missing which wouldmake this mechanism fully operationaland, at the same time, considerablycontribute to this principle beingtreated seriously; this is the rule ne bisin idem as the most logical consequenceof both prosecution and trial (sentence).The inclusion of the protection againstdouble jeopardy in this context61 isrequired not only by the need to securethe effectiveness of this system but also,and more important ly, by theconsiderations of human rights, worldpublic order, and the most fundamentalnotions of justice. As the Romans usedto say: finis coronat opus. This“finishing touch” on the principle autdedere aut judicare is overdue62.

58 See J. Meyer, The Vicarious Administration ofJustice; An Overlooked Basis of Jurisdiction, 31Harv. J. Int’l L. 108-116 (1990).

59 The basic elements of this principle have beenadopted in the 1972 European Convention on theTransfer of Proceedings in Criminal Matters,Articles 2 and 3, E.T.S. No. 73. Se also S.Z. Feller,Jurisdiction Over Offences with a Foreign Element,in 2 TREATISE ON INTERNATIONAL CRIMINALLAW 34-37 (BASSIOUNI & NANDA eds. 1973); D.OEHLER, INTERNATIONALES STRAFRECHT497-518 (2nd ed. 1983).

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62 This author is fully aware that the proposed conceptmay be considered a “teoria prematura” as long asthe mistrust persists in the relationships betweenstates, not necessarily limited to the politically,geographically, and culturally distant ones. It isquite clear that, given the lack of confidence in theadministration of justice frequently demonstratedby the states involved in the practice of extradition,the non-inclusion of the rule ne bis in idem in theprinciple aut dedere aut judicare is treated as an“emergency valve” which may be turned on and offdepending on whether or not the requesting stateis satisfied with the results of the requested state’sefforts to bring an offender to justice. Also, since onthe one hand, the procedures falling under“judicare” are governed exclusively by the domesticlaw of the requested state, and on the other, thestriking discrepancies between the nationallegislation of various countries continue to exist, itis understandable why the governments areextremely unwilling to give up what might beperceived as a “final assurance” that the offender,one way or another, will eventually be punished interms consistent with the rules and notions ofjustice as adopted in the country concerned. Toinclude the rule in this system, and then toimplement it, would amount to giving up hope.

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