The 1949 Geneva Conventions and the 1977 Additional Protocol I

Finally, a fourth category of treaties can be identified; these treaties essentially provide for the opposite approach of the second category.³⁰⁷ Indeed, the wording of the common provision found in the Geneva Conventions suggests a model of primo prosequi, secundo dedere – i.e. a priority to prosecution over extradition.³⁰⁸ It reads as follows:

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a 'prima facie' case.

Thus, the obligation to search for and to prosecute an alleged offender seems to exist irrespective of any request for extradition made by another party.

According to Van Steenbergher, “the formula ‘prosequi vel dedere’ seems to be more suitable. It [….] reflects that states bound by this obligation have a free choice between prosecution and extradition, while emphasis is put on prosecution since extradition appears only as a means at the disposal of the custodial state for complying with its obligation to prosecute”.³⁰⁹ In other words, states are not obliged to extradite; rather, they are obliged to prosecute and have an option to release themselves from this obligation by extraditing the alleged offender.³¹⁰

As seen above, the relationship between the obligation to prosecute and the obligation to extradite varies from one treaty to another. In this respect, the treaties containing the formula aut dedere may be divided into two broad categories: (a) those which contain clauses imposing an obligation to prosecute only when extradition has been requested and not granted and (b) those which

307 Nollkaemper, supra note 304, at 517.

308 Henzelin, Le principe de l’universalité en droit pénal international : Droit et obligation pour les Etats de poursuivre et juger selon le principe de l’universalité, at 353.

309 Van Steenbergher, ‘The Obligation to Extradite or Prosecute Clarifying its Nature’, 9 Journal of International Criminal Justice (2011) 1089-1116.

310 See Nollkaemper, supra note 304, at 507.

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contain clauses imposing an obligation to prosecute, with the possible alternative of extradition.³¹¹

Under category (a) clauses, prosecution by the state on whose territory the alleged offender is found only becomes an obligation if a request for extradition has been made and refused, because of a number of factors, including, for example, the suspect’s nationality. In other words, the obligation to prosecute is only trigerred by the refusal of a request for extradition. States do not have any obligation to prosecute offenders present on their territory independently from a request for extradition. The first two types of clauses defined in Section 2 – i.e.

those found in extradition treaties and the 1929 Counterfeiting Convention – fall into this category. Other treaties similarly falling into this category include the 1936 Convention for the Suppression of the Illicit Traffic in Dangerous Drugs,³¹² the 1937 Convention for the Prevention and Punishment of Terrorism,³¹³ the 1950 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others,³¹⁴ the 1961 Single Convention on

311 See International Law Commission Secretariat, Survey of multilateral conventions which may be of relevance for the work of the International Law Commission on the topic ‘The obligation to extradite or prosecute (aut dedere aut judicare)’, 62nd session of the ILC, UN Doc A/CN.4/630 (18 June 2010), paras 127-136; See also ICJ, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Separate Opinion of Judge Yusuf, 20 July 2012, § 19.

312 Art. 8 of the1936 Convention for the Suppression of the Illicit Traffic in Dangerous Drugs provides that “Foreigners who are in the territory of a High Contracting Party and who havecommitted abroad any of the offences set out in Article 2 shall be prosecuted andpunished as though the offence had been committed in that territory if the followingconditions are realized — namely, that:(a) Extradition has been requested and could not be granted for a reasonindependent of the offence itself;(b) The law of the country of refuge considers prosecution for offences committed abroad by foreigners admissible as a general rule.”

313 Art. 10 of the 1937 Convention for the Prevention and Punishment of Terrorism provides that

“Foreigners who are on the territory of a High Contracting Party and who havecommitted abroad any of the offences set out in Articles 2 and 3 shall be prosecutedand punished as though the offence had been committed in the territory of that High Contracting Party, if the following conditions are fulfilled – namely, that: (a) Extradition has been demanded and could not be granted for a reason not connected with the offence itself; (b) The law of the country of refuge recognizes the jurisdiction of its own courts in respect of offences committed abroad by foreigners; (c) The foreigner is a national of a country which recognizes the jurisdiction of its own courts in respect of offences committed abroad by foreigners.”

314 This Convention does not contain any provision regarding the prosecution of non-nationals of a requested state. Art. 9 of the 1950 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others provides, “In States where the extradition of nationals is not permitted by law, nationalswho have returned to their own State after the commission abroad of any of the offences referred to in articles 1 and 2 of the present Convention shall be prosecutedin

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Narcotic Drugs,³¹⁵ and the 1971 Convention on Psychotropic Substances, Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.³¹⁶

On the contrary, in category (b) clauses, the obligation to prosecute is absolute. It arises as soon as a person alleged to have committed a certain crime is present on state territory.³¹⁷ It is only when an extradition request is made that the state has the choice between extradition and prosecution.³¹⁸ In other words, treaties that contain such a clause oblige states to exercise universal jurisdiction (“shall submit to”), when the suspect is present on their territory and not extradited. The Geneva Conventions, the Convention against Torture, as well as the International Convention for the Protection of All Persons from Enforced Disappearance³¹⁹ are classified in category (b).³²⁰ Other treaties that follow this model include the 1971 Convention for the Suppression of Unlawful Acts

and punished by the courts of their own State.This provision shall not apply if, in a similar case between the Parties to thepresent Convention, the extradition of an alien cannot be granted.”

315 Art. 36(2)(a)(iv) of the 1961 Single Convention on Narcotic Drugs provides that “Serious offences heretofore referred to committed either by nationals or by foreigners shall be prosecuted by the Party in whose territory the offence was committed, or by the Party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the Party to which application is made, and if such offender has not already been prosecuted and judgement given.”

316 Art. 4(3) of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography provides that “Each State Party shall also take such measures as may be necessary to establish its jurisdiction over the aforementioned offences when the alleged offender is present in its territory and it does not extradite him or her to another State Party on the ground that the offence has been committed by one of its nationals.” Art. 5(5) provides that “If an extradition request is made with respect to an offence described in article 3, paragraph 1, and the requested State Party does not or will not extradite on the basis of the nationality of the offender, that State shall take suitable measures to submit the case to its competent authorities for the purpose of prosecution.”

317 International Law Commission Secretariat, Survey of multilateral conventions which may be of relevance for the work of the International Law Commission on the topic ‘The obligation to extradite or prosecute (aut dedere aut judicare)’, 62nd session of the ILC, UN Doc A/CN.4/630 (18 June 2010),

§ 127.

318 Ibid.

319 Art. 9(2) ofthe Convention on Enforced Disappearances provides that “Each State Party shall likewise take such measures as may be necessary to establish its competence to exercise jurisdiction over the offence of enforced disappearance when the alleged offender is present in any territory under its jurisdiction, unless it extradites or surrenders him or her to another State in accordance with its international obligations or surrenders him or her to an international criminal tribunal whose jurisdiction it has recognized.”

320 Lafontaine, ‘Universal Jurisdiction – the Realistic Utopia’, 10 Journal of International Criminal Justice (2012) 1277-1302, at 1289.

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against the Safety of Civil Aviation,³²¹ the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents,³²² the 1979 International Convention against the Taking of Hostages,³²³ the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation,³²⁴ the 1989 International Convention Against the Recruitment, Use, Financing and Training of Mercenaries,³²⁵ the 1994 Convention on the Safety of United Nations and Associated Personnel,³²⁶ the

321 Art. 7 of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation provides that “The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.”

322 Art. 7 of the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents provides that “The State Party in whose territory the alleged offender is present shall, if it does not extradite him, submit, without exception whatsoever and without undue delay, the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State.”

323 Art. 8(1) of the1979 International Convention against the Taking of Hostages provides that “The State Party in the territory of which the alleged offender is found shall, ifit does not extradite him, be obliged, without exception whatsoever and whether ornot the offence was committed in its territory, to submit the case to its competentauthorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a grave nature under the law of that State.”

324 Art. 10(1) of the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation provides that “The State Party in the territory of which the offender or the alleged offender is found shall, in cases to which article 6 applies, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.”

325 Art. 12 ofthe 1989 International Convention Against the Recruitment, Use, Financing and Training of Mercenaries provides that “The State Party in whose territory the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.”

326 Art. 14 of thethe 1994 Convention on the Safety of United Nations and Associated Personnel provides that “The State Party in whose territory the alleged offender is present shall, if itdoes not extradite that person, submit, without exception whatsoever and without undue delay, the case to its competent authorities for the purpose of prosecution,through proceedings in accordance with the

1997 International Convention for the Suppression of Terrorist Bombings,³²⁷ and the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism.³²⁸

Consequently, a distinction should be made between the implementation by states of category (a) clauses and the implementation by states of category (b) clauses. In the former case, states will generally ensure that jurisdiction can be established specifically for those cases in which they are not in a position to extradite the suspect to another state. Thus, if a state does not extradite the alleged perpetrator for some reason or another³²⁹ or if it is not in a position to do so, it generally ensures that its courts may exercise jurisdiction over the suspect. It should be underlined that in such cases, states are not exercising universal jurisdiction but jurisdiction by representation.³³⁰ Indeed, the custodial state that exercises jurisdiction is merely representing the state whose extradition request was rejected. It should be noted that in many pieces of domestic legislations, specific provisions exist for the implementation of category (a) clauses.³³¹ Such provisions should therefore be carefully distinguished from provisions that provide for universal jurisdiction – over core crimes for instance – subject to a number of conditions, which may include the presence of the suspect on the territory of the state and his non-extradition.

law of that State. Those authorities shalltake their decision in the same manner as in the case of an ordinary offence of a grave nature under the law of that State.”

327 Art. 8 (1) of the 1997 International Convention for the Suppression of Terrorist Bombings provides that “The State Party in the territory of which the alleged offender is present shall, in cases to which article 6 applies, if it does not extradite that person, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.”

328 Art. 11(1) of the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism provides that “The State Party in the territory of which the alleged offender is present shall, in cases to which article 9 applies, if it does not extradite that person, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.”

329 This could for instance be because the court of the state requesting extradition does not give all the fair trial guarantees.

330 On the representation principle, see supra N 85 ff.

331 See for instance § 65(1) of the Austrian Criminal Code; Section 8(6) of the Danish Criminal Code; Art.

113-8-1 of the French Penal Code; Art. 9 of the Penal Code of Paraguay; Art. 7(2)(a) of the Swiss Penal Code; All of these provisions subject the application of the domestic law of the state to the denial of an extradition request.

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On the contrary, in the case of category (b) treaty clauses, states are exercising universal jurisdiction. Indeed, they are obliged to prosecute an offence if the suspect is present on their territory unless they extradite him. In this case, the aut dedere obligation compels states to provide for all types of jurisdiction including universal jurisdiction.³³² This jurisdiction is a particular type of universal jurisdiction in that it generally arises under treaty, is strictly

“custodial”³³³ and is mandatory.³³⁴ We can refer to this type of universal jurisdiction, linked to the aut dedere aut prosequi principle, as “obligatory custodial universal jurisdiction”.

With respect to core international crimes and in the context of the fight against impunity, there has been a growing tendency to consider that the obligation to

‘prosecute’ in treaties takes precedence over the obligation to ‘extradite’.³³⁵ As noted above, this is clear from the wording of the Geneva Conventions.

Regarding genocide, the Genocide Convention does not expressly include such a clause, but it has been suggested that the primo prosequi secundo dedere model also applies to genocide.³³⁶ With respect to torture, as seen above, the Torture Convention incorporates the “Hague formula”. However, the question of the relationship between prosecute and extradite was recently addressed by the International Court of Justice in the Belgium v Senegal case.³³⁷ The Court held that the obligation to prosecute arises irrespective of the existence of a prior request

332 Unless the state considers that it can exercise universal jurisdiction directly based upon its treaty-based aut dedere aut prosequi obligation. See Hall, ‘The Role of Universal Jurisdiction in the International Criminal Court Complementarity System’, in M. Bergsmo (ed.), Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes (Oslo: Torkel Opsahl Academic EPublisher, 2010) 201-232, at 204.

333 This obligation to exercise universal jurisdiction only arises if the suspect is on the territory of the state.

334 See Currie and Rikhof, International & Transnational Criminal Law (2^nd ed., Toronto: Irwin Law, 2013), at 98-101.

335 Lafontaine, ‘Universal Jurisdiction – the Realistic Utopia’, 10 Journal of International Criminal Justice (2012) 1277-1302, at 1288.

336 On this issue see Roth, ‘The Extradition of Génocidaires’, in Gaeta (ed.), The UN Genocide Convention:

A Commentary (Oxford: Oxford University Press, 2009) 278-309, at 304 ff.

337 ICJ, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, 20 July 2012, § 94-95.

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for the suspect’s extradition.³³⁸ It also held that extradition under the Torture Convention is an option, not an obligation. According to the Court:

It follows that the choice between extradition and submission for prosecution, pursuant to the Convention, does not mean that the two alternatives are to be given the same weight. Extradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State.

The ICJ thus opted for a construction of Article 7 of the Torture Convention in which precedence is given to the custodial state and in which extradition to the concerned state is considered to be an option, not an obligation. In fact, it therefore placed the Torture Convention (originally deemed to fall within the second category of clauses identified in Section 2) in the third category.³³⁹

The ICJ thus opted for a construction of Article 7 of the Torture Convention in which precedence is given to the custodial state and in which extradition to the concerned state is considered to be an option, not an obligation. In fact, it therefore placed the Torture Convention (originally deemed to fall within the second category of clauses identified in Section 2) in the third category.³³⁹