The obligation to extradite or prosecute – Statement of Dr. A. Rohan Perera, Legal Advisor, Ministry of Foreign Affairs, Member of the International Law Commission, at the 59th Session of the International Law Commission – 2nd August 2007

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I wish to express my sincere appreciation to Mr. Zdzislaw Galicki, Special Rapporteur, on the topic “Obligation to Extradition or Prosecute” for his second report and for his comprehensive introduction. I have also found his preliminary report together with the preliminary plan of action extremely informative and undoubtedly provides useful material and guidance for the future work of the Commission, on this important topic.

I will focus my intervention primarily on two aspects raised in the report, i.e.
i. the source of the obligation and
ii. the scope of the topic, in particular the relationship between the obligation to extradite or prosecute and the principle of universal jurisdiction.

1. Source of the obligation
The second report reflects the cautious approach adopted both in the Commission, as well as in the 6th Committee, in acknowledging at least at the present stage, of the existence of a general binding customary law obligation to extradite or prosecute, applicable in general to all criminal offences. At the same time, there appears to be a broad consensus with regard to international treaties being increasingly recognized as a source of the obligation to extradite or prosecute, in respect of the specific crimes falling within the scope of such treaties.

The issue whether the obligation is gradually acquiring an emerging customary law character, at least in respect of specific categories of crimes demands careful examination by the Commission, taking into account current developments in state practice and jurisprudence. Among the factors which need to be considered in this regard are;

the acceptance of the obligation to extradite or prosecute by a growing number of States, as State parties to treaties dealing with suppression of serious international crime and through this process, the growth of a State practice creating a wide network of international legal obligations to extradite or prosecute.
Consequent adoption of domestic legislation by such States to give effect to the obligation to extradite or prosecute, as reflecting State practice.
Judicial pronouncements, e.g: in the Lockerbie Case before the ICJ, although in several dissenting opinions, referring to the existence of “a principle of customary international law, Aut Dedere, Aut Judicare” (referred to in para 55 of the preliminary report).
The doctrinal support cited in the second report (para 109) to the proposition that the growing acceptance and the state practice in respect of the wide range of international treaties incorporating the obligation, should lead to the entrenchment of this principle in customary international law.

In my view, a sufficient customary base exists in respect of the limited category of “grave international crimes” well recognized in International Law. I would hasten to add as falling within the scope of this category, those crimes as defined in and within the scope of International Conventions for the suppression of serious crimes, such as terrorism and drug trafficking, given their wide acceptance by the International community. In this regard I agree with the views expressed by Professor Brownlie and Professor Dugard, concerning the role of the International Law Commission on the progressive development of International Law.

This is the crucial issue to be addressed in the future consideration of the topic. We look forward to the next report in which the Special Rapporteur has undertaken to present a systematic survey of the relevant international treaties, together with a classification of the extent of the obligation contained in such treaties. This would certainly facilitate the task of the Commission in reaching a conclusion on this issue.

ii. Scope of the topic
In relation to the scope of the topic, the second report raises the important issue of the relationship between the obligation to extradite or prosecute and the principle of universal jurisdiction, I would broadly agree that the primary focus of the work on this topic, must be on the issues arising from the obligation to extradite or prosecute and that some demarcation need to be maintained between this obligation and the related principle of universal jurisdiction.

Having said this, I am however of the view that such a demarcation should not necessarily result in a strict water-tight compartmentalization of these related principles. A study of the extradite or prosecute principle while not necessarily involving a broader study of the universal jurisdiction principle, must of necessity recognize the obvious linkages between the two and take cognizance of the fact that the principle of universal jurisdiction is a key component in the effective implementation of the extradite or prosecute regime.

An essential ingredient in the practical application of the extradite or prosecute obligation is that the state where the offender is present, must ensure that its Courts are vested with the necessary jurisdiction to prosecute the offender, irrespective of where the offence is committed, when it is not in a position to extradite him to a requesting state possessing the necessary jurisdiction.

International treaties containing the extradite or prosecute regime, particularly the series of sectoral Conventions dealing with suppression of specific terrorist crimes, include different bases of jurisdiction, such as the conventional base of territorial jurisdiction and also the active nationality base, requiring the mandatory exercise of jurisdiction, as well as extra-territorial jurisdiction based on the less conventional active and passive nationality and protective principles, requiring the discretionary exercise of jurisdiction.

The most far-reaching provision relating to jurisdiction in these sectoral Conventions however, is the requirement that contracting states establish jurisdiction over the offences specified in the Convention when the offender is present in its territory, where it does not extradite the offender. The assuming of jurisdiction in this instance is of a mandatory nature. The only link between the crime and the state assuming jurisdiction in such an instance is the mere presence of the alleged offender on its territory and the custody and control of the custodial state, has over the offender. This requirement in effect approximates the principle of universal jurisdiction.

The jurisdictional clauses of these sectoral Conventions dealing with a wide ranging basis of jurisdiction could be the logical starting point in examining the relevance of the universal jurisdiction principle to the obligation to extradite or prosecute. In this regard, the recent new generation Conventions, namely the Terrorist Bombings Convention and the Terrorist Financing Convention follow a similar pattern in their jurisdictional clauses. Therefore, as identified in the preliminary plan of action, it would be useful and indeed essential for the Commission to establish as precisely as possible, this existing mutual relationship and inter-dependence between the principle of universal jurisdiction on the one hand, and obligation to extradite or prosecute on the other.

I would urge caution in going down the path of the Third Alternative of surrender of offenders to international tribunals which is governed by distinct legal rules.

Other Issues
The Special Rapporteur has suggested draft Article (i) based on the material presented in the preliminary and second reports. The draft article recognizes the alternative nature of the obligation deriving directly from the traditional expression “Aut Dedere, Aut Judicare” which is premised on a choice between extradition and prosecution. The draft article is broadly acceptable for present purposes, pending the development of further articles. The Special Rapporteur, however, raises several issues with regard to the substantive element of this draft article, such as ;

(a) which part of the alternative should have priority in the practice of implementing the obligation by states ; or

(b) do states have the freedom of choice between extradition or the prosecution of the persons concerned;

© whether the custodial state has sufficient margin of discretion to refuse a request for extradition when it is ready to prosecute or when the request is manifestly wrongful and contrary to the legal system of the custodial state.

These issues must be approached, having regard to the historic evolution of the legal concept of extradition as a matter of sovereign discretion which depended on the prerogative powers of the sovereign. Thus a requested state would have the freedom of choice to refuse a request for extradition on the basis of legal or other impediments, (including the manifestly wrongful nature of the request) and choose to prosecute the offender instead. Such refusal would, however, immediately give rise to the obligation to prosecute, so that the fugitive does not escape justice. This is the core and substance of the extradite or prosecute regime. Thus it is not so much a question of priority, but the alternative nature of the obligation on a requested state which must be viewed at the same level, as stated during the debate by Prof. Escaramia.

Another issue raised by the Special Rapporteur in paragraph 47 of the report containing his concluding remarks on the debate in the Commission and in the Sixth Committee relate to the difficulties that may arise in the application of the traditional limitations on extradition in respect of crimes covering under the extradite or prosecute regime.

Current developments relating to the non-applicability of the traditional political offences exception in relation to serious international crimes, having regard to their pre-dominantly criminal character and indiscriminate nature, must be taken due note in this regard. The Terrorist Bombings Convention, the Terrorist Financing Convention and the Draft Comprehensive Convention on Terrorism under negotiation contain identical provision excluding the applicability of the exemption in respect of crimes covered under these Conventions.

State Parties to these Conventions have enacted enabling legislation which amend their extradition laws by removing the applicability of the political offences exception in respect of such category of crimes.

Another traditional limitation, however, the right to refuse extradition, where the request itself is made in bad faith and not in the interest of the enforcement of the ordinary criminal law, i.e. for the purpose of prosecuting or punishing a person on account of his race, religion, nationality, political opinion, etc., is specifically preserved in these Conventions and its applicability remains unaltered. It would also seem that the obligation to prosecute such offenders may not arise in such instances.

These developments are directly relevant to the practical application of this obligation and deserves careful consideration, in the formulation of future draft articles.

Plans for further development
With regard to the plans for further development, I would also agree that the formulations referred to in paragraphs 113 to 114 of the Report relating to the important work accomplished by the Commission on the draft code of crimes against the peace and security of mankind would provide invaluable material and a useful guide in the further development of draft articles, on the topic.

I also agree with the view expressed by Prof. McRae and several other Members, that we await the further development of draft Articles, before referring Articles to the Draft Committee.

Finally I would like to thank the Special Rapporteur once again for the important work accomplished so far and we look forward to the further development of the topic in his next Report.