RESOURCE MATERIAL SERIES No. 57

CONTEMPORARY PROBLEMS OF EXTRADITION: HUMAN
RIGHTS, GROUNDS FOR REFUSAL AND THE PRINCIPLE
AUT DEDERE AUT JUDICARE
Michael Plachta*
I. EXAMINATION OF HUMAN
RIGHTS IN THE CONTEXT OFEXTRADITION
The growth and expansion of the humanrights concept have inevitably led it tocover the vast area of international
cooperation in criminal matters whose
most renowned form, extradition, has been
for centuries dominated by considerations
and concerns deeply rooted in stateinterests, such as sovereignty, maintaining
power and domestic order, keeping external
political 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 limited
scope and yet still contested by someauthorities, and acknowledgment that theyshould have their say in international
matters involving their interests.
Stipulations of recent multilateralconventions regarding the rule of speciality
illustrate this tendency. One example canbe found in the 1995 Convention on
Simplified Extradition Procedure,elaborated within the European Union.1
Since the mutual relationship between
extradition and human rights has raised a* Gdansk University, Faculty of Law, First Vice-Dean,
Chair of Criminal Procedure, Poland

64

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 extradition are often
characterized as a “tension” between
protective and cooperative functions of thisform of international legal assistance.
Generally, this problem can be approached
and viewed from three perspectives. First,
these relationships can be described in the1

Convention drawn up on the basis of Article K.3 of
the Treaty on European Union, on simplified
extradition 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 which
adopted a resolution, following a report submitted
by K. Doehring, 60 Yearbook of the Institute ofInternational Law 211, 306 (1983). In the nineties,
this problem was a subject of a conference held by
the International Association of Penal Law in Riode Janeiro in 1994, 41 Revue internationale de droit
pénal 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 and
J. Dugard and adopting three resolutions. See
Report of the 66th Conference of the International
Law Association (Buenos Aires, 1994), 4, 142;
Report of the 67th Conference of the International
Law Association (Helsinki, 1996), 15, 214; Reportof the 68th Conference of the International Law
Association (Taipei, 1998).

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS“rule-exception” terms. Second, it could beargued that only one side sets the goal or
the objective while the other has to yieldby making necessary concessions. One of
the issues that would have to be resolved
here refers to the starting point in thisanalysis: should it be the needs of law
enforcement or the protection of humanrights? Third, and the most appropriate,
the coexistence between the interests,
needs and values involved in theinternational cooperation in criminal
matters, on the one hand, and theprotection of human rights, on the other,should be sought and based on a reasonable
compromise which would avoid the “criticalpoint” beyond which human rights become
unbalanced and, therefore, constitute an
obstacle to an effective cooperation in thefight against crime.
Reaching a compromise is a difficult
task, for it requires recognizing, taking intodue consideration, assessing and weighing
3

See e.g. J. Dugard, Ch. Van den Wyngaert,
Reconciling Extradition with Human Rights, 92
AJIL 1 87 (1998); Ch. Van den Wyngaert, Applying
the 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 Finnish
Yearbook of International Law 237 (1994); O.
Lagodny, W. Schomburg, International Cooperationin Criminal Matters and Rights of the Individualfrom a German Perspective, 2 European Journal of
Crime, 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 International
Cooperation in Criminal Matters, in: P.J. Cullen and
W.C. Gilmore (eds) Crime Sans Frontieres 186(1998).

many various factors and components. The
process of balancing all the interests
involved should be carried out on twolevels: first, human rights versus needs oflaw enforcement and international
cooperation; second, human rights of therequested person (fugitive) versus humanrights of others (and society).
In addressing and evaluating therelevancy of human rights in the context
of extradition, two criteria could be
employed. 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 widespread
acceptance. This concept is based on theunderstanding that out of all human rights
a group has been recognized as nonderogable in all universal and regional
instruments and, therefore, has to be
granted protection the specificity of
extradition notwithstanding. An obvious
disadvantage of applying this criterion isthat it offers a very restrictive scope ofhuman rights which are covered under thenotion of “fundamental human rights”. At
present, there are only four such rights
which 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 rather
than 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 be
sufficiently high to justify the refusal of theextradition request. Such standard was

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RESOURCE MATERIAL SERIES No. 57
elaborated by the European Court of
Human Rights in its seminal judgment in
the Soering case where the Court held that
the United Kingdom, acting as therequested state, must have not extraditeda fugitive “where substantial grounds havebeen shown for believing that the person
concerned, if extradited, faces a real riskof being subjected to torture or to inhumanor degrading treatment or punishment in
the requesting country”.4
The “real risk” test was followed by the
UN 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 to
the principles of fundamental justice”,“shock to the conscious of Jurists”, offensive
to the conceptions of “ordre public”, “grossviolation”, “flagrant breach”, etc. An
appropriate scrutiny is called for by therecommendations adopted by both theInternational Law Association at its Taipei
Conference in 1998 and the participants of
the Oxford Conference on International
Cooperation in Criminal Matters, convenedby the Commonwealth Secretariat and heldin 1998. Both documents propose thatextradition be refused if there issubstantial evidence that if a fugitive werereturned there is a real risk of a serious
violation of human rights. The “real risk”
test is, therefore, qualified and combinedwith the requirement of a “serious
violation”.
Besides “fundamental human rights”,
there is another category which raises adifficult question: are the fair trial rights
relevant and applicable to extradition, andif so, which ones and to what extent? This
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).

66

problem should be discussed in two
separate contexts as it generates different
issues when the application of the right tofair trial is analyzed from the point of viewof the requesting state and the requested
state. In the context of the former, twosituations (or scenarios) must be
distinguished depending on whether there
has been an actual violation of fair trial
rights in the proceedings that have led tothe conviction and sentence, or there ismerely a potential for such a violation. The
following flowchart represent an attempt
to point out and illustrate major problems
involved in the process of examination as
well its methodology.
FLOWCHART
The questions raised in the context of
the requested state are different. They
relate to the nature of the extradition
proceedings 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, judicial
or mixed procedures, criminal proceedings
to the procedure sui generis. Given such a
disparity it does not seem advisable orfeasible to propose a uniform proceduraland organizational system that would be
acceptable to all states. Instead, efforts
should concentrate the elaboration of a listof “core fair trial rights” that must be
guaranteed to the extraditurus by therequested state no matter which
procedural system it has adopted.
Although the International Covenant ofCivil and Political Rights (Article 14) andthe European Convention on Human
Rights (Article 6) might offer a good“starting point” an examination should notstop there: the rights embodied therein
have to be tailored to the specific natureand needs of extradition.

114TH INTERNATIONAL TRAINING COURSE
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Flowchart: examination of a fair trial objection to extradition
applicable standard

national :constitutional order (rights)
in the requested stateinternational :* global instruments,* regional conventions,* customary international law

extraditee(tried and) convicted and sentenced(actual violation)

extradition
deniedOR

condition(s)attachedsought for trial(potential violation)

inquiry conducted in the requested state:••sufficient assurances by
the requesting state

YES

NO

extradition
grantedextradition
denied••••evidentiary difficulties, e.g. relikelihood;disparity of interpretation (basedon or taking into account domestic
rules, standards and practice)burden of proof on the extraditee;
threshold: flagrant (andsystematic)? real risk?
conditions ?
competent authority: government
or courts?

outcome: highly uncertain67

RESOURCE MATERIAL SERIES No. 57
II. GROUNDS FOR REFUSAL OF
EXTRADITION: 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:1
1. 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 r
punishment:
1. substantive:a) principle of legality (nullum
crimen sine lege, nonretroactivity),b) s t a t u t e o f l i m i t a t i o n(prescription),c) other,68

2. procedurala) a d h o c o r e x t r a o r d i n a r ytribunal,b) trial (judgment) in absentia,c) res judicata (ne bis in idem,
double jeopardy):(i) f i n a l j u d g m e n t i n t h erequested state,(ii) final judgment in the thirdstate,d) l i s p e n d e n s ( p e n d i n gprosecution),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 caselaw,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 ordegrading treatment or
punishment,
2. other:a) d i r e c t a p p l i c a t i o n o finternational instruments,b) i n d i r e c t a p p l i c a t i o n - v i adomestic legislation,

114TH INTERNATIONAL TRAINING COURSE
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4. State’s Interests Involved:
A. R o o t e d p r e d o m i n a n t l y i n t h erequested 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. R o o t e d p r e d o m i n a n t l y i n t h erequesting 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 states
involved):
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,refusal of extradition are impressive. Not
only 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 tendency
worries many government officials andpeople directly involved in the extradition
process who fear that, if upheld andstrengthened, the continuous expansion of
defences, exceptions, exemptions, andexclusions may, in the long run, seriously
undermine this mechanism and frustrateefforts aimed at bringing fugitive offenders
to justice. Besides, the grounds for refusal
are a “double dulled sword”: while it isrightly argued that their existence is aconditio sine qua non for each and every
form 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 resort
to refursal may have adverse effects on
international relationships. Undeniably,
the longer the list of grounds for refusal,
the weaker the extradition may become.

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 andfairness embodied in the domestic
legal system,
H. Discrepancies between legal systems.
B. Comments on the grounds forrefusal of extradition
Admittedly, both the size of the catalogue
and the length of the list of the grounds for

To prevent the deterioration of themechanism of international rendition of
offenders and to strengthen its
effectiveness, one of the available options
is to improve this process itself through the
optimalization of its treaty and statutory
regulation. One way to proceed would beto downsize the catalogue of grounds forrefusal, or at least, to stop or slow down
the 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 aut
judicare comes into play as an alternative
solution. The properly designed
mechanism for “judicare” may become aneffective countermeasure that will, to a

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RESOURCE MATERIAL SERIES No. 57
certain degree, compensate for the
expansionist approach towards thegrounds for refusal.

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

It must be made clear that the chart does
not cover all situations where the request
submitted for extradition is denied. It islimited to the categories which, by way of
tradition and linguistic convention falls
under the “grounds for refusal”. 6 In
addition to them, there are all theconditions and requirements pertaining,e.g. to the definition of an extraditableoffence, which, if not met or fulfilled, also
result in the request being denied.

To carry out this task successfully, we
have to start from elaborating distinct
categories that could accommodate all of
the existing (and potential) grounds forrefusal. Section III of the Chart raises anumber of problems, questions and doubts.
For example, are all these categories fully
disjunctive, i.e. do they not overlap? Should“human rights” be, as they appear in thechart, placed separately, or — as someauthors maintain7 — no separate-category
is needed as they can, and should, be
accommodated in other categories, mostnotably under the “obstacles to prosecution
and 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 international
treaties and domestic legislation, otherwise
chances are that these blank spaces would
have been filled in; second, the author sees
them as a “potential for growth”.

The first criterion used in theclassification, the binding force of aparticular ground for refusal, is of utmost
importance for the states involved in theextradition process, especially for therequested state. In countries where thecourts have been empowered to inquire into
the legal admissibility of the surrender, thecontents of the catalogue for mandatory
refusal is the most valuable guide, for it
delimits the scope of situations where thecourt will issue a negative opinion
regarding extradition. It is then only
logical that the executive organ authorized
to make the final decision is bound by thiskind of court’s ruling which says that theextradition is not (legally) allowed.
However, this classification presents
little value and help for those whose efforts
focus on modifying and improving thetreaty and domestic regulations in thisarea. Shuffling the grounds for refusal
between the two catalogues back and forth
is not very promising, nor does it bear any
valuable fruits, especially in terms ofcommon acceptance of a particularsolution; therefore, we have to reach deeper

Section IV represents yet anotherattempt aimed at examining and analyzing
this problem. If we consider extradition
as a process based on bipartite relationshipbetween the requesting state and therequested state, then the question arises
concerning the side on which the obstacle
to which the particular ground for refusal
relates is located. When the requested
state refuses to surrender the personsought, does it so because the real problem
lies within its borders and its own
jurisdiction, or, maybe, the invoked groundfor refusal points to the requesting state?
While seeking answers to these questions,the distinction was made between grounds

6

7

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

70

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

114TH INTERNATIONAL TRAINING COURSE
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for refusal which are based on
circumstances for which the responsibility
are borne predominantly by the requested
state and those which fall predominantly
within 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 link
between the underlying obstacle and only
one of the states concerned. An analysis
carried out along these lines should
generate further arguments in favor ofmandatory or optional nature of somegrounds for refusal. It should also
contribute to the elaboration of a more
efficient mechanism based on the principle
aut dedere aut judicare by indicating where
it may be reasonable to expect from therequested state to proceed with “judicare”
when its authorities deny the extradition
request.
An attempt was also made to get to theheart (or roots) of the problem by asking
the question: WHY does the requested state
deny extradition when its executive
authority invokes this or that ground forrefusal? This question has nothing to dowith the problem of legal and factual
justification of the negative decision in any
given case. Nor does it imply any sort ofassessment or evaluation of the proprietyof the refusal. Rather, it suggests that it
may be more instructive to move thisinquiry further back to see why thatparticular ground for refusal was included
in a treaty or domestic law in the first place.
Therefore, when it comes to the applicationof that legislative enactment or treaty
stipulation in practice the rationale behind
it in many cases either is not fully realized,
or lies somewhere in the “shadow”. It is
this author’s strong belief that only bybringing the true motives and reasons tolight can we challenge them, and only bychallenging them, better still removingsome of them, can we make any meaningfulchanges within the framework of thegrounds for refusal possible, thereby
modernizing and re-shaping the existing
system of international extradition. The
proposed inquiry does not necessarily haveto confirm the status quo; instead, it may
indicate either that the rationale, althoughwell founded and valid in the past (e.g. inte 19th century), has out-lived, and is notsustainable today as completely
incompatible with the evolved
international relationships, or, conversely,that the need has emerged calling for new
exceptions and exemptions.
Section V of the Chart summarizes theresults of the preliminary investigation
into this problem. The classification based
upon the rationale behind the grounds forrefusal is far from perfect, and the resulting
picture 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 out
in legal terms, and is limited to treaty and/or legislative regulation. Second, the realsignificance and role of the rationale forrefusal are downplayed, if not completely
ignored, by the governments and theirauthorities involved in the process of
extradition. Third, since no inquiry into
these 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 the
grounds for refusal and the rationale aresomewhat “muddled” due to the fact that
there does nor exist a logical link between
them, the result being that the categoriesof rationale do not have their specificcounterparts within the grounds for refusal
which could be easily identified andestablished by way of necessity. The

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RESOURCE MATERIAL SERIES No. 57
opposite is true: a ground for refusal may
be based on more than just one rationale
and, based on one category of rationale,
more than one ground for refusal may be
invoked. For example, the political offence
exception (section III, A.1) may be rooted
in at least the following categories ofrationale (section V): mistrust amongstates and the lack of confidence in one
another ’s justice system (A), politicalconsiderations (B), and notions offundamental justice and fairness embodied
in the domestic legal system (of therequested state)(G). Similarly, the mistrust
and the lack of confidence (section V, A) may
result in refusing extradition on one of themany grounds (section III), such as
nationality 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 rather
unexplored territory should become asubject of further and more detailed
studies. A report from such an analysis,
especially when drafted in acomprehensible language and formulated
in practical terms, may constitute a much
more 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 about
extradition and the grounds for refusal
thereof. Most importantly, such a study
should contribute to the common
understanding that the so-called
traditional grounds for refusal, based on
the rationale which itself is rooted in the“old days’” concepts and notions, may bepreserved and accommodated insofar as
they are compatible with the modern
approach to extradition.

72

III. THE PRINCIPLE AUT DEDEREAUT JUDICARE
A. Present status of the principle
aut dedere aut judicare underinternational law
If the possibility of an offender ’s
impunity is recognized as the most serious
danger caused by the practice of nonextradition of nationals, then from thepoint of view of criminal justice it should
not matter in the territory of which state
he is prosecuted and punished as long as
the justice is done. This was the underlying
idea of the maxim aut dedere aut punire as
it was originally formulated by Hugo
Grotius in 1625:“The state in which he who has beenfound guilty dwells ought to do one
of two things. When appealed to, itshould either punish the guilty
person as he deserves, or it should
entrust him to the discretion of theparty making the appeal. This lattercourse is rendition, a procedure more
frequently mentioned in historicalnarratives (...) All these examples
nevertheless must be interpreted in
the sense that a people or king is not
absolutely bound to surrender aculprit, but, as we have said, either
to surrender or to punish him”.8
When interpreting these words today, it
must be remembered that the scope of
application 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 international
crimes.9 Moreover, the rule presupposed
an existence of a “triggering mechanism”,
8

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

114TH INTERNATIONAL TRAINING COURSE
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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 cannot
be held that Grotius really meant exacting
punishment without first establishingguilt.10 The accused fugitive may turn out
to be innocent. Thus, the most that canrightly be demanded from the requested
state in lieu of extradition is to put him on
trial, 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 the
fugitive offender, prosecution and trial in
the requested state would be elevated to amore pro-active status in international
criminal law. At present, the prevailingview hold that extradition, or some variant
thereof, is the exclusive way of bringing
fugitive offenders to justice. It is acceptedthat the principal aim must be to prosecute
9

Generally, two methods have been proposed todefine an international crime. One is to use a
concise and general definition, the other is toemploy a set of criteria (“penal characteristics”) for
identifying such offences. The former is advocatedby E.M. Wise, International Crimes and Domestic
Criminal 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 CRIMINAL
COURT 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 is
not fitting ‘to give up those who have not been
tried’”. GROTIUS, supra note 144. Book II, Chapter
XXI, para. IV(1).
11 M . C . B A S S I O U N I , I N T E R N A T I O N A L
EXTRADITION: UNITED STATES LAW AND
PRACTICE 5(3 rd ed. 1996): G. Guillaume,
Terrorisme et droit international, 215 Hague Rec.
287, 371 (1989-III): “the true option which is open
to states is necessarily aut dedere aut prosequi”.

the fugitive and that international publicorder requires international cooperationand mutual assistance, then a morepositive acceptance of trial in theextraditee’s home country is necessary. To
determine the effectiveness of the system
based on aut dedere aut judicare withrespect to the extradition of nationals, thefollowing three problems have to beaddressed: first, the status and scope of
application of this principle underinternational law; second, the hierarchy
among the options embodied in this rule,provided that the requested state has achoice; third, practical difficulties in
exercising judicare.
Despite persuasive arguments advanced
by leading authorities in international
criminal law to the contrary,12 the principle
aut 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 Courtof Justice concerning sources ofinternational law, two elements have to be
proved: (1) a material element manifested
by a general practice, and (2) opinio juris
sive 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 international
offences.13 The most it can be said about
aut dedere aut judicare is that it constitutes
a “general principle of international law”,14
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 IN
INTERNATIONAL LAW 190 (1990).
14 BASSIOUNI, EXTRADITION, supra note 7, at 9.

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RESOURCE MATERIAL SERIES No. 57
although some authors go further byarguing that it belongs to the jus cogens
norms.15 The latter proposal would meanthat this principle is an overriding or“peremptory” norm which cannot be set
aside by treaty. The consequences of sucha proposal might be quite dramatic: if every
state under any circumstances had thisalternative obligation (either to surrenderor to prosecute) treaty stipulations
notwithstanding, that would invalidate
both international instruments providing
exclusively for “dedere” and treaties
providing for the extradition of nationals.16
In his dissenting opinion in the Lockerbie
c a s e , J u d g e We e r a m a n t r y i n h i scharacterization 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 in
the absence of an extradition treaty”.17 In
this sense, the principle is “an important
facet of a State’s sovereignty over its
nationals”.18 However, the proposition that
there is no duty, absent treaty, to extradite
nationals whom a state is prepared to try
itself can be relevant only in the face of an
obligation to surrender. But, as thepractice of contemporary international law
demonstrates, there is no duty to extradite
in the absence of treaty.19

The uncertainties surrounding thestatus of this principle under internationallaw directly affect both the scope of its
application and its effectiveness.
Practically, the alternative obligation ofstates either to surrender or to prosecute
exists insofar as has been expressly spelled
out in an international instrument or, only
exceptionally, in the domestic legislation.
It has been a standard policy to have theprinciple aut dedere aut judicare included
in general extradition treaties, either
bilateral or multilateral,20 especially withrespect to the refusal of surrender ofnationals.21 In addition, such a stipulation
appears in almost all conventions aimed
at defining international offences as well
as securing international cooperation in the
suppression of such acts.22 It is feared thatan unrestricted, or absolute, principle aut
dedere aut judicare might imply that allstates are obliged to prosecute any offence
committed in any place by any person
found in their territory, unless an offenderis extradited.23
All the difficulties concerning the scopeof application and the contents of an
obligation envisaged by various formulasin which this principle appears
notwithstanding, the validity of the system
based on aut dedere aut judicare has been
confirmed not only in numerous
international 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 the1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom), Provisional Measures, Order of
14 April 1992. I. C. J. Reports 1992, 50 at 51.
18 Ibid., at 69.
19 H .
WHEATON, ELEMENTS OF
INTENIRATIONAL LAW 188 (5th ed. 1916).
20 I .
SHEARER, E.XTRADITION IN
INTERNATIONAL LAW 116-117, 124-125 ( 1971).

74

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, in
NETHERLANDS REPORTS TO THE XIthI N T E R N AT I O N A L C O N G R E S S O FCOMPARATIVE LAW 412 (H.U. JESSURUND’OLIVEIRA ed. 1982).

114TH INTERNATIONAL TRAINING COURSE
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For example, the Austrian Supreme Court
held that where the extradition of anational has been refused “the right toprosecute must, as a general rule andwithout prejudice to the continued
existence of the right to prosecute of theState in whose territory the offence has
been committed, be offered to the home
State 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 where
an extradition request was submitted to
the Israeli authorities under the European
Convention on Extradition, the court
assuming that Israel is obligated to do one
of two things: either to extradite
Pesachovitz or to punish him25 decided toorder the extradition the fugitive on the
grounds that prosecution was precluded
under Israeli law.26
B. Hierarchy of obligations or amatter of discretion?
One of the most intriguing and delicate
questions in the context of the principle aut
dedere 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 dedere
and judicare are not really equalalternatives to the effect that the duty to
extradite should be regarded as primary,
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, Extraterritorial Penal Jurisdiction and Extradition, 29
Int’l & Comp. L. Quarterly 274-279 (1980).

with the duty to prosecute arising only if
the domestic legislation contains a bar to
extradition. A corollary of the latter
proposition is a view that the state locidelicti commissi has the primary
responsibility to prosecute and punish theoffender, whereas the prosecuting
authorities and courts of the custody state,i.e. the country in whose territory an
offender has been found, have only asecondary duty. Such a conclusion could
be based on several treaty stipulations anddomestic laws making judicare conditionalon: (1) the submission of the extradition
request; (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 the
purpose of prosecution.
The rationale for an a priori hierarchyof the alternative obligations embodied in
the principle aut dedere aut judicare withextradition being preferred 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 due
to the evidentiary issues, the forum delicti
commissi is the most convenient place forinvestigation, prosecution and trial; third,
there may be cases where prosecution in
the forum deprehensionis will appear to beineffective or unfair. Although it is argued
that “whenever possible, extradition shouldtake priority, at least in cases in which therequesting state asserts territorial
jurisdiction over the offence”,27 the formulacontaining the principle aut dedere aut
judicare that can be found in almost all
multilateral conventions prescribing
international crimes as extradition
treaties, is formulated in such languagethat does not seem to accord any special
priority to extradition. A purely theoretical
27 BASSIOUNl & WISE, supra note 12, at 57.

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RESOURCE MATERIAL SERIES No. 57
attempt based on an interpretative
distinction between “alternative” or“disjunctive” and “co-existent” obligation toprosecute or extradite does not seem to be
successful in this context either.28
Thus, it is submitted that, absent treaty
stipulation to the contrary, the present
status of this principle does not warrant anassertion that judicare is “subordinated” todedere to the effect that the requested state’s
first obligation is to deliver up the offendersought, and that it is allowed to instituteits own criminal proceedings only after it
has showed that extradition is prohibitedon legal grounds. 29 However, one
qualification has to be put on this
proposition: efforts must be made to solve a
problem that comes up in a situation where
an offender holds the citizenship of therequested state, while at the same time, theinvestigation, prosecution and trial in the
territory 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 total
frustration to criminal justice as well) has
been made in a concerted action by thegovernments of the United States and theUnited Kingdom in the Lockerbie case.
Frustrated by Libya’s refusal to extradite
its two nationals suspected of having blown
up Pan Am Flight 103 over Lockerbie,
Scotland, and determined not to submit all
the evidence that have been gathered as aresult of the three-year extensive
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 January
1992 from the Permanent Representative of the
Libyan Arab Jamahiriya to the United Nations
Addressed 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

76

investigation, the United States and theUnited Kingdom (joined by France)
presented the case before the UN Security
Council and the General Assembly.30 In
January and March 1992, the Security
Council adopted two resolutions in thismatter: the first was urging Libya to
respond fully and effectively to therequests31 of the United States, the United
Kingdom and France,32 while the second
imposed economic sanctions on Libya.33
Libya brought the case before theInternational Court of Justice seeking
provisional measures to prevent the UnitedStates or the United Kingdom from taking
any action to coerce Libya into handing
over the two suspects or otherwise
prejudice the rights claimed by thatcountry. 34 On April 14, 1992, the Court
declined (by a vote of 11 to 5) to indicate
31 The requests consisted of the following demands:

to•surrender for trial all those charged with thecrime; and accept responsibility for the actionsof Libyan officials;• disclose all it knows of this crime, including
the names of all those responsible, and allow
full 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, theSecurity Council adopted a further resolution
extending 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 Aerial
Incident 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 Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom)), provisional Measures, Order of
14 April 1992, I.C.J. Reports 1992 at 3.

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
the provisional measures thereby
confirming the validity and binding force
of Resolution 748.35 The following threeinterpretations of the of the U.N. Security
Council involvement in the Lockerbie caseare possible:(a) L i b y a f a i l e d t o d e m o n s t r a t econvincingly that it is capable offulfilling the obligation which it
claimed under the Montreal
Convention, that is, to make a goodfaith effort to prosecute the crimes
itself.
(b) The resolutions signal a substantial
loss of faith in the Montreal
Convention’s authority and efficacy
in bringing the offenders to justice.
(c) The Security Council offered an
extraordinary remedy which, while
upholding the existing extradition
system, at the same time,
supplemented it with the recourse tothat organ for intervention in
exceptional situations, especiallywhere the traditional treaty model
proves unworkable.
The latter seems to be the mostpersuasive. The Court’s ruling means that
under Article 103 of the U.N. Charter the
Resolution 748 takes precedence over any
other international agreement, including
the 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 ’s
Chapter 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
35 Ibidem para. 39.

resolutions and the decision of theInternational Court of Justice in the
Lockerbie case, it was suggested that theinternational extradition law has not been
violated or altered because in exceptional
cases, “the law merely operates at a different
level through the internationally sanctioned
ways and means of the United Nations”.36
It is doubtful, however, whether Lockerbie
could and should be viewed as the mostappropriate mechanism designed to end thestand-off in other similar cases. Rather, it
is 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 option
which, more importantly, would be
acceptable also to the requesting state. Sucha system, called “substituting prosecution”,
was proposed by the Institute ofInternational Law in 1981:
1. “ 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 strengthened
and 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 by
stipulating detailed methods of legal
assistance.
3. W h e n g o v e r n m e n t s a c t s i n
substituting prosecution, theinterested governments-and inparticular the government of theterritory in which the offence wascommitted-should be entitled to send
observers to the trial unless serious
grounds, in particular with respect tothe preservation of State security,
would justify their non-admittance.
4. In cases of substituting prosecution, if
the tribunal concerned determines that
36 C.C. Joyner & W.P. Rothbaum, Libya and the Aerial

Incident at Lockerbie; What Lessons forInternational Extradition Law?, 14 Mich. J. Int’lL. 222, 256 (1993).

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RESOURCE MATERIAL SERIES No. 57
the accused is guilty, an appropriate
penalty 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 the
person sought, on mutual consultations
between the appropriate authorities of thestates involved. There may be cases inwhich it will be preferable for an accused
to be tried in a foreign state rather than in
his 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 claim
jurisdiction based on the principle ofterritoriality. A general and rigid rule ofrefusing to extradite nationals in suchcases would reduce the effectiveness of
extradition as a major tool in combatting
transnational crime. To allow theparticular circumstances of each case being
given due consideration in the process ofmaking a decision regarding the principle
aut dedere aut judicare, one of theCanadian courts suggested that thefollowing factors should be included:• where was the impact of the offence
felt or likely to have been felt;• which jurisdiction has the greatest
interest 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 mostcomprehensive case;• which jurisdiction is ready to proceed

to trial;• where is the evidence located;• whether the evidence is mobile;• the number of accused involved andwhether they can be gathered
together 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 also
given to the question as to whether
prosecution would be equally effective inthe requested state, given its domestic law
and international instruments for thecooperation in criminal matters.39
No matter how persuasive andreasonable such recommendations are,they seem to be much easier to follow by
the common law countries. It is more thandoubtful whether they can become equallyattractive and compelling for countries
whose domestic legislation has
traditionally opposed the idea of
extradition of their own nationals. For
example, narcotic offences involving
Colombians have often been committed in
Colombia but the effects of these crimes
have 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 in
Colombia. However, it is rather unlikelythat this argument is powerful enough toconvince the Colombian government and
38 Swystun v. United States of America (1988), 40

37 Resolution adopted by the 12th Commission at its

session in Dijon. See 59 Institute of Int’l L.
Yearbook 176-177 (1981).

78

C.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.).

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
legislature that they should lift the ban on
extradition of nationals.
C. Practicality of prosecution in lieu
of extradition
Practical problems in fulfilling its
obligation under judicare do not necessarily
have its source in the lack of good will on
the part of the requested state. Rather, theimpunity of an offender and the frustrationof justice should be viewed as a result of
their inability to break with the rule of nonextradition of nationals, on the one hand,
and to overcome difficulties inherently
involved in prosecuting and punishing
offenders for crimes committed abroad, on
the other hand. Admittedly, in someinstances the requested country may be
unwilling or unable, because of legal or otherreasons, to prosecute its national whose
extradition has been requested by anotherstate. Moreover, even when the requested
state institutes criminal proceedings,
problems may arise. At the least, the refusal
to extradite may strain relations between
the requesting and the requested states.
Furthermore, the former may believe, andthe facts may in some instances support thisbelief, that the latter will inadequately
pursue the prosecution, with the result thatthe accused will be acquitted or will receive
a too lenient sentence.40 In 1938, the UnitedStates Secretary of State Hull complainedthat “such punishment as has been inflicted
upon nationals of other countries in the own
lands for offenses committed in the UnitedStates has, in general, been much lighter
than the offenses committed appeared to
warrant, and in many cases no punishimentas all has been inflicted and the trials held
have resulted in acquittals”41. Much earlier,
Lewis held that since a government has notsubstantial interest in punishing crimes
committed in the territory of another state,prosecution and trial in such cases will be
conducted in a “careless, indifferent andintermittent manner”.42

Even where the competent authoritiesof the requested state have instituted
criminal proceedings against the nationalof that country whose extradition was
refused, 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 offence
was committed. The latter, however, iseither not in a position or unwilling to put
such evidence at the disposal of therequested state. Worse still, the problem
may not always be satisfactorily corrected
through the use of mutual (legal) assistancefor it may be precluded on the grounds ofordre public, especially where the stateseeking such an assistance exercises its
own inherent criminal jurisdiction over an
offence.43 Even to the extent that seeking
evidence abroad is legally possible, that
operation creates three types of problems:
first, bringing witnesses from distantcountries imposes a heavy financial burden
on 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, perhaps
natural, to refrain from punishing a fellow
countryman for an offense he committed in a distantcountry and as to which there may be in the mindsof his fellow countrymen who pass in judgment
upon him a feeling that there may have been
extenuating circumstances”. Id.
42 LEWIS, FOREIGN JURISDICTION AND THE
EXTRADITION OF CRIMINALS 30 (1859).
43 See P. Wilkitzki, Inclusion of the principle “autdedere aut judicare” in the European Convention
on Extradition, in EUROPEAN COMMITTEE ON
CRIME PROBLEMS PC-OC 9 (1987).

79

RESOURCE MATERIAL SERIES No. 57“revamping” has met with skepticism 45
Generally, government declarations andtreaty (convention) stipulations
notwithstanding, prosecution of nationals
in lieu of extradition is viewed as a sort of“second class” criminal proceedings, 46
although this was not always the case.47

crime; third, if the evidence were taken
abroad the court might have troubles to usethem at the trial due to possible procedural
restrictions on such evidence. To overcome
the latter impediment, the law of evidence
would have to be substantially changed,
especially in the common law countries.44
However, the possibility of such a

IV. APPROACHES TO THE PRINCIPLE AUT DEDERE AUT JUDICARE"Traditional"I
ratione criminis(offences)
Scope of
Application ratione exceptionis(grounds for refusal)
Nature of the
Stipulation

Applicability

ProposedII
limitedunrestrictedunrestrictedunrestricted

limited to one

limitedoffence-related(derivative of
the gravity anddefinitionof an offence)nationalityrelated

grounds-forrefusal-related(logical supplementof the duty to
extradite)prior state's jurisdiction
as a precondition• Prosecution• TrialScope of "judicare"

Ne bis in idem

no"self-executing"• prosecution• trial• enforcement ofa sanction (autdedere aut
poenampersequi)yes

44 For example, in Israel it was proposed that evidence

lawfully taken abroad should be accepted as prima
facie evidence and that the court should not allow
the 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).

80

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).

114TH INTERNATIONAL TRAINING COURSE
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1. “Offence-oriented approach”
The traditional, “offence-oriented”,
approach has been widely applied in
multilateral conventions prescribing
international crimes. Typically, thesolution adopted in those instruments
consists of two provisions which are ofinterest here. The chronologically first one
either confers a jurisdictional competenceon the signatory states to prosecute therespective offence or obliges them toestablish such a jurisdiction. The
jurisdictional clause is usually followed bya separate stipulation on the principle aut
dedere aut judicare.

jurisdictional “component” of this system
is intended to secure the possibility for thecustodial state to fulfil its obligation to
extradite 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 national
authorities in a national court. It ismeaningful only to the extent that the
courts of the custodial State have thenecessary jurisdiction over the crimes set
out in the particular instrument to enable
that state to opt for the prosecution
alternative. Failing such jurisdiction, thecustodial state would be forced to accept
any request received for extradition which
would be contrary to the alternative natureof the obligation to extradite or prosecute
under which the custodial state does nothave an absolute obligation to grant arequest for extradition. Moreover, thealleged offender would elude prosecution
in such a situation if the custodial state
did not receive any request for extradition
which would seriously undermine thefundamental purpose of the aut dedere aut
judicare principle, namely, to ensure theeffective prosecution and punishment ofoffenders by providing for the residual
jurisdiction of the custodial state.

As regards national court jurisdiction,
the former provision can be seen as acorollary of the former which establishes
the obligation of a state party to extraditeor prosecute an individual who is allegedly
responsible for the crime defined in theconvention. In this regard, theOne of the new examples of the “offenceoriented approach” to this principle isrepresented by the DRAFT CODE OF
CRIMES AGAINST THE PEACE AND
SECURITY OF MANKIND, adopted by theInternational Law Commission at its 48th
session in 199648.

47 In 1910, the British Foreign Office advised the48 Report of the International Law Commission on the

United States’ Ambassador that “according to theexperience of His Majesty’s Government, the resultof the prosecution of foreign subjects by their own
Governments in lieu of surrender to this country
has been, generally speaking satisfactory”. Foreign
Office to Mr. Whitelaw Reid, 25 July 1910, F.O. 372/
262.

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

A. Traditional approaches
Generally, from the available legislative
pronouncements and treaty stipulations,two basic approaches to the principle aut
dedere aut judicare can be discerned: one
is based on an inseparable link between
duty 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, as
a relevant and appropriate basis for thisobligation. The former can be called the“offence-oriented approach” and the latterthe “offender-oriented approach”.

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RESOURCE MATERIAL SERIES No. 57
Article 9 - Obligation to extradite orprosecuteWithout prejudice to the jurisdictionof an international criminal court, theState Party in the territory of which
an individual alleged to havecommitted a crime set out in articles
17, 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 war
crimes (Article 20).
The obligation to prosecute or extradite
is imposed on the custodial state in whose
territory 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 requesting
extradition. The custodial state is in aunique position to ensure theimplementation of the present Code byvirtue of the presence of the alleged
offender 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 between
two alternative courses of action either ofwhich is intended to result in theprosecution of the alleged offender. The
custodial state may fulfil its obligation by
granting a request for the extradition of analleged offender made by any other state
or by prosecuting that individual in its
49 Convention for the Suppression of Unlawful Seizureof Aircraft, December 16, 1970, 860 U.N.T.S. 105.

82

national courts. Article 9 does not givepriority to either alternative course ofaction. The custodial state has discretion
to decide whether to transfer the individual
to another jurisdiction for trial in response
to a request received for extradition or totry the alleged offender in its national
courts. The custodial state may fulfil its
obligation under the first alternative by
granting a request received for extradition
and thereby transferring to the requestingstate the responsibility for the prosecutionof the case. However, the custodial state is
not required to grant such a request if it
prefers to entrust its own authorities withthe prosecution of the case.
This kind of approach to the principle
aut dedere aut judicare has been adopted
in the 1970 Hague Convention for the
Suppression of Unlawful Seizure of
Aircraft 49 and several international
instruments patterned after it. The
Convention does not subordinate the duty
to prosecute to the requested state’s rulesof competence regarding theextraterritorial jurisdiction. The obligation
to prosecute arises whenever the
extradition is not granted:
Article 7“The Contracting Party in the
territory of which the alleged offenderis found shall, if it does not extradite
him, be obliged, without exception
whatsoever 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 ordinary
offense of a serious nature under thelaw of the that state”.
This mechanism for the implementationof the rule aut dedere aut judicare has been
replicated in several subsequent

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
conventions for the suppression ofinternational offences concluded under the
auspices of the United Nations or its
specialized agencies50. The following two
variants 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 has
elected to authorize the exercise of
extraterritorial jurisdiction51;b) the obligation to submit a case forprosecution only arises when a request for
extradition has been refused52.
2. “Offender-oriented approach”
The other traditional approach the“offender-oriented approach”, presupposesthat the scope of application of the principle
aut dedere aut judicare should not belimited to the most serious international
crimes; instead it should encompass all
extraditable offences. This approach
focuses on the situation where therequested state refuses to surrender its
own nationals and perceives such a caseas extremely frustrating to the wholesystem of international extradition. To
avoid the most blatant abuses whereby
that state might take advantage of thisexception in order to grant protection

against punishment to its citizens, it is only
logical to demand from that state that it
institute the criminal proceedings against
the requested persons and subject them toits domestic criminal justice system. In
this 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 1957
European Convention on Extradition 53
provides one of them. Its Article 6,paragraph 1 (a) confers on the contracting
states 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 submit
the case to its competent authorities
in order that proceedings may be taken
if they are considered appropriate. For
this purpose, the files, information andexhibits relating to the offence shall betransmitted without charge by themeans provided for in Article 12,
paragraph 1. The requesting Party
shall be informed of the result of its
request”.

50 By way of example, the following instruments canbe mentioned: Convention for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation,
1971, 974 U.N.T.S. 177 (the Montreal Convention);
Convention on the Prevention and Punishment of
Crimes Against Internationally Protected Persons,
Including Diplomatic Agents, 1973, 1035 U.N.T.S.
167 (the New York Convention); International
Convention 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.

Some bilateral treaties also containprovisions to the same effect. For example,
Article 44(a) of the 1992 Treaty on Legal
Assistance in Criminal Matters, Transfer ofSentenced Persons and Extradition 54
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).

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Extradition. Also the United Nations Model
Treaty on Extradition incorporated a clauseformulated along the similar lines55.
3. A compromise position
A variant formula has been worked out
by drafters of some international
conventions which represents a compromise
between the two approaches referred tobefore. The “middle position” takes accountof differing views among states on whether
the exercising criminal jurisdiction overoffences committed abroad is proper, useful,and reasonable, the extradition
notwithstanding. The compromise formula
allows the states involved to consider andevaluate such factors.
This formula was adopted in the 1929
Convention for the Suppression ofCounterfeiting Currency56 whose drafters
abandoned the rigid clause embodied in theinternational instruments discussed above
under A, and favored a more flexible solution
which confers, to a certain extent, a
discretion on the requested state withrespect of exercising its jurisdiction toprosecute in lieu of extradition. To
accommodate both the variety of views andthe discretion, two different procedures havebeen provided for depending on thenationality of the requested person. If that
person 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 provides
that he “should be punishable” in his homecountry for an offence committed abroad.
On the other hand, the Convention has
imposed a slightly diminished burden on therequested state with respect to foreigners.

They “should be punishable” for offences
committed outside the borders of therequested state only if it has been
established that the domestic law of thatcountry “recognizes as a general rule theprinciple of prosecution of offences
committed abroad” (Article 9).
Furthermore, the obligation to prosecute isconditioned on two other circumstances:
first, the extradition request has been
submitted by another state; second, thegrounds for refusal are not offence-related57.
B. Proposed approach
The mechanism for the implementationof the principle aut dedere aut judicare
envisioned by the new approach can becharacterized as follows:
1. The scope of application of thisprinciple ratione criminis should
remain unrestricted to the effect thatthe duty to prosecute should arise withrespect to all extraditable offences.
2. The scope of application ratione
exceptionis should be limited to certain
grounds for refusal of extradition
where, after a careful analysis, it isboth realistic and reasonable to expect
the 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-or
undertones; second, the legislative
enactments, most notably theconstitution, in the requested state
pertaining to the admissibility of thecriminal prosecution.
57 Article 9

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, 112
L.N.T.S. 371.

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“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”.

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
3. While the typical stipulation of thisprinciple rooted in the traditional
approach can be seen as a derivative of
the gravity and the definition of an
offence the new approach postulates
that the rule is a logical supplement of
the duty to extradite.
4. As opposed to the existing system
under which the requested state’s
criminal jurisdiction and “judicare” aretreated not only as two separate
elements but, more importantly, as theformer being a necessary precondition
for the latter, the new approachsuggests that stipulation of theprinciple aut dedere aut judicare itself
constitute sufficient jurisdictional basis
for the competent authorities of therequested state to prosecute and punish
the offender. In a sense, the proposedmechanism would be similar to thesystem of the socalled “vicarious
administration of Justice”58 based on
the “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 requested
state should be allowed to fulfill its
obligation under the rule aut dedere aut
judicare by undertaking to enforce thefinal sentence imposed on the offender
whose extradition was requested. This
rule should, therefore, be supplemented
by a new clause: aut dedere aut poenam
persequi60.
6. Last but not least, all the efforts
towards treaty and legislative
regulation of the principle aut dedere
aut judicare notwithstanding, the rule
is at present an “open end concept”. A
crucial element is missing which would
make this mechanism fully operational
and, at the same time, considerably
contribute to this principle being
treated seriously; this is the rule ne bis
in idem as the most logical consequenceof both prosecution and trial (sentence).
The inclusion of the protection against
double jeopardy in this context 61 isrequired not only by the need to secure
the effectiveness of this system but also,
a n d m o r e i m p o r t a n t l y, b y t h econsiderations of human rights, world
public order, and the most fundamental
notions of justice. As the Romans used
to say: finis coronat opus. This“finishing touch” on the principle aut
dedere aut judicare is overdue62.

58 See J. Meyer, The Vicarious Administration of

Justice; An Overlooked Basis of Jurisdiction, 31
Harv. J. Int’l L. 108-116 (1990).
59 The basic elements of this principle have been
adopted 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 STRAFRECHT
497-518 (2nd ed. 1983).

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 Criminal
Law, 52 Revue internationale de droit pénal 441453 (1981).

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62 This author is fully aware that the proposed concept

may be considered a “teoria prematura” as long as
the mistrust persists in the relationships between
states, 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 demonstrated
by 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 off
depending on whether or not the requesting stateis satisfied with the results of the requested state’s
efforts to bring an offender to justice. Also, since on
the one hand, the procedures falling under“judicare” are governed exclusively by the domestic
law of the requested state, and on the other, thestriking discrepancies between the national
legislation of various countries continue to exist, it
is understandable why the governments are
extremely 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. To
include the rule in this system, and then to
implement it, would amount to giving up hope.

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