31 Jul Symposium on Ljubljana – The Hague Convention on Mutual Legal Assistance: Critical Reflections – The aut dedere aut judicare Obligation
[Ezéchiel Amani Cirimwami is a Research Fellow at the Max Planck Institute Luxembourg for Procedural Law. He holds a joint PhD in International Criminal Law from the Catholic University of Louvain (UCLouvain) and the Free University of Brussels (VUB).]
The author attended the Ljubljana Diplomatic Conference as a DRC delegate and was elected by the Conference as a member of the Drafting Committee. The views in this post are expressed in the author’s personal capacity.
As a result of recent developments in interstate travel, criminals may easily cross international borders and escape prosecution by the State authorities in the territory in which they have committed their crime. The obligation to extradite or prosecute is one of several criminal cooperation tools States design to counter this phenomenon. It is through this obligation that the duty to cooperate in combating impunity for international crimes is given effect. The fundamental role played by the obligation to extradite or prosecute undoubtedly explains why it was a vigorously debated issue before the International Law Commission (ILC) and was at the heart of the dispute brought by Belgium against Senegal before the International Court of Justice (ICJ) concerning the Hissène Habré case. In its final report on the obligation to extradite or prosecute (aut dedere aut judicare), the ILC noted that the existing treaty regime has significant gaps that may need to be filled (see paras. 14 and 31). In particular, the final report highlighted the absence of international conventions containing this obligation regarding most crimes against humanity. It also underlines the existence of a gap in treaty law concerning war crimes other than grave breaches in international armed conflicts and war crimes in non-international armed conflicts. Regarding genocide, the report points out that international cooperation’s regime could be strengthened compared to the rudimentary regime provided by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. In other words, the scope of the obligation to extradite or prosecute is limited in the treaties. It applies only to certain international crimes.
The question now arises as to how the Ljubljana – The Hague Convention on Mutual Legal Assistance closes these gaps in the fight against impunity for international crimes. With this in mind, this blog post analyses the legal regime of the aut dedere aut judicare obligation.
The Legal Regime of the aut dedere aut judicare Obligation
The Ljubljana – The Hague Convention on Mutual Legal Assistance provides for an obligation to extradite or prosecute. Article 14 of the Convention, which governs the obligation aut dedere aut judicare, reads as follows:
1. The State Party in the territory under whose jurisdiction a person alleged to have committed any crimes to which this Convention applies in accordance with Article 2 is found shall, in the cases contemplated in Article 8, if it does not extradite or surrender the person to another State or a competent international criminal court or tribunal, submit the case to its competent authorities for the purposes of prosecution.
2. These authorities shall take their decision in the same manner as in the case of any other crime of a grave nature under the domestic law of that State Party. In the cases referred to in Article 8, paragraph 3, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in Article 8, paragraphs 1 and 2.
3. Any person against whom proceedings are brought in connection with any of the crimes to which this Convention applies shall be guaranteed fair treatment at all stages of the proceedings.
This formulation of the obligation aut dedere aut judicare is modelled on that of Article 10 of the ILC’s Draft Articles on Crimes Against Humanity, which is also largely inspired by the language of Article 7 of the Convention against Torture that constitutes the reference standard for both instruments. During the travaux préparatoires of the Ljubljana – The Hague Convention, the Core Group, in a document entitled “The relationship of the MLA initiative to the ILC draft articles on Crimes against Humanity” stressed that “ [o]n of the overriding considerations should be the avoidance of diverging substantive treaty provisions”. This was an important development, given that the rich comments accompanying Article 10 of the ILC Draft Articles on Crimes against Humanity (see, at 92-98) could serve to clarify the regime of the obligation to extradite or prosecute provided for in Article 14 of The Ljubljana – The Hague Convention.
To understand how the provisions of the Convention make it possible to fill the gaps in treaty law as regards the obligation to extradite or prosecute, it is now necessary to analyse the content of the obligation aut dedere aut judicare laid down in Article 14. The approach is to examine this obligation in its principle (A) and its system (B).
A. The Obligation in its Principle
Article 14 of the Ljubljana – The Hague Convention is modelled on the so called “Hague formula”, as enshrined in Article 7 of the UNCAT and as clarified by the International Court of Justice in the Hissène Habré case (see here, paras. 94-95). These clarifications concern the order of priority between extradition and prosecution (1), the scope of each of the two elements that make up the obligation, namely dedere and judicare (2), and the interaction between the two (3).
1. The Order of Priority Between Extradition and Prosecution
Article 14(1) obliges the State Party in the territory under whose jurisdiction a person alleged to have committed any crimes to which the Convention applies is present, to submit the case to its competent authorities for the purposes of prosecution or, failing that, to extradite him or her to another State willing to prosecute or to surrender him or her to a competent international criminal tribunal. In other words, as for the two elements of the alternative, the choice between extradition or submission for prosecution does not mean that the two alternatives are to be given the same weight. While the extradition is an option offered to the State by the Convention, prosecution is an international obligation (see also here, para. 95).
2. An Obligation to Submit the Case to the Competent Authorities for Criminal Prosecution
The scope of the obligation to prosecute contained in Article 14(1) limits the State’s obligation to “submit the case to its competent authorities for the purposes of prosecution”. While the diplomatic negotiations did not clarify the notion of “competent authorities”, the ILC commentary on Article 10 of its Draft Article on Crimes Against Humanity, which has the same language with Article 14(1) of the Ljubljana – The Hague Convention, stated that it means submitting the matter to “police and prosecutorial authorities, who may or may not decide to prosecute in accordance with relevant procedures and policies” (see the third commentary, at 93).
3. An Obligation to Prosecute Independent of a Request for Extradition or Surrender
The interaction between extradition and prosecution is clearly set out in Article 14 of the
Ljubljana – The Hague Convention. This article does not make the application of the obligation to prosecute that it contains dependent on a request for extradition or surrender. Phased differently, the obligation to prosecute is triggered irrespective of the existence of a prior request for the extradition of the suspect. What matters is that the suspect is immediately prosecuted once he is identified on the territory of a State Party.
B. The aut dedere aut judicare Obligation Viewed From its System
The previous discussion has made it clear that, under the Ljubljana – The Hague Convention only “judicare” constitutes an obligation. The “dedere” is, therefore, merely an option open to the State. To this end, the mechanism established by the Convention establishes, on the one hand, procedural obligations without which the State concerned cannot submit the case to its competent authorities for the purpose of prosecution (1). On the other hand, if the State chooses the option of extradition, procedural mechanisms to facilitate extradition are also provided for (2).
1. Procedural Requirements for Implementing the Obligation to Prosecute
The Ljubljana – The Hague Convention provides for a series of procedural obligations on which the implementation of the obligation to prosecute under Article 14(1) depends: the obligations to criminalise (i), to establish jurisdiction (ii) and to take preliminary measures (iii). As the ICJ concluded regarding a similar set of provisions in the UNCAT, “[t]hese obligations, taken as a whole, may be regarded as elements of a single conventional mechanism aimed at preventing suspects from escaping the consequences of their criminal responsibility, if proven” (see here, para. 91).
i. The Obligation to Criminalise
The obligation to criminalise within the meaning of Article 7 of the Ljubljana – The Hague Convention, according to which:
1. Each State Party shall take the necessary measures to ensure that the crimes to which the State Party applies this Convention constitute crimes under its domestic law.
2. Each State Party shall make the crimes referred to in paragraph 1 punishable by appropriate penalties which take into account their gravity.
During the discussions leading up to the Ljubljana Diplomatic Conference, some States, notably Norway, nevertheless argued that the inclusion of the obligation to criminalise could prevent many States that are not currently party to existing legal frameworks in this area from becoming a party to the Convention. They warned that this would undermine the underlying objective of securing the widest possible support for the MLA Initiative. Other States, including Switzerland, considered that the Convention should be limited to aspects of international cooperation in criminal matters and should, therefore, not contain substantive criminal law provisions such as criminalisation. Consequently, Switzerland suggested that the obligation to criminalise should be removed from the text and left to be dealt with by other conventions. However, these proposals were not adopted as most States considered the obligation to criminalise necessary to implement the obligation to extradite or prosecute set out in Article 14 of the Convention.
ii. The Obligation to Establish Jurisdiction
Article 8 of the Ljubljana – The Hague Convention provides for an obligation to establish jurisdiction, which is, logically, a prior step to the implementation of the duty to extradite or prosecute a suspect present on the territory of a State. During the diplomatic negotiations, paragraphs 1 and 2 of Article 8 were mostly uncontroversial, as they require the states parties to establish jurisdiction on more settled grounds, that is, the place of the crime, nationality of the offender and of the victims and, in case the offender is a stateless person, habitual residence.
On the contrary, paragraph 3 was the one that triggered more debate as rightly reported here, here and here despite the fact that its text is modelled on agreed language from Article 5 of the UNCAT. Article 8(3), as contained in the zero draft, reads as follows:
Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such crimes in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite the alleged offender to any of the States referred to in paragraphs 1 or 2 or surrender the alleged offender to a competent international criminal court or tribunal.
It follows that where the crime was committed abroad, and there is no special connection with the State of the forum, the obligation to extradite or prosecute necessarily corresponds to the exercise of universal jurisdiction, which is triggered as soon as the individual is identified in the territory of the State concerned. However, the Convention does not prevent the obligation to extradite or prosecute from corresponding to the exercise of jurisdiction on other bases provided for in Article 8 (1) (a) and (b). Thus, if a state can exercise jurisdiction on another basis, it does not necessarily have to invoke universal jurisdiction in order to discharge the obligation to extradite or prosecute.
iii. The Obligation to Take Preliminary Measures
Another procedural obligation to implement the obligation to extradite or prosecute per Article 14 of the Convention is the obligation to take preliminary measures established under Article 13. This provision obliges a State Party “in whose territory a person alleged to have committed a crime to which it applies this Convention is present shall take the person into custody or take other legal measures to ensure the person’s presence, in accordance with its domestic law. The custody and other legal measures may be continued only for such time as is necessary to enable any criminal, extradition or surrender proceedings to be instituted”. After the detention of the person identified in the territory, the State Party shall immediately conduct a preliminary investigation to establish the facts.
2. Procedural Mechanisms to Facilitate Extradition
The previous discussion demonstrated that to prevent criminals from finding refuge in the territory of States Parties, the Ljubljana – The Hague Convention imposes a clear obligation on the State of the forum to prosecute any alleged perpetrator present in any territory under its jurisdiction while also leaving open the possibility of extradition to the territorial or national State. Articles 49 to 65 of the Convention aim to achieve this second objective by removing, as far as possible, legal obstacles to extradition. In particular, the Convention establishes the obligation to treat the crimes to which it applies as extraditable offences in bilateral or multilateral extradition treaties between States Parties (Article 49(4)). Moreover, under Article 50, “[i]f a State Party that makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it shall consider this Convention as the legal basis for extradition in respect of any crime to which this Convention applies”. Article 51 sets out the grounds for refusing extradition. However, paragraph 3 of this article specifies that before refusing a request or postponing its execution, the requested State Party shall, where appropriate, discuss with the requesting State Party the possibility of authorising extradition subject to such conditions as it deems necessary. Otherwise, the requested State Party shall inform the requesting State Party of the reasons for such refusal or postponement under Article 54(3) of the Convention. In the event of an extradition request, States Parties have the right to refuse to extradite their nationals. However, Article 54 provides that the State Party in whose territory the alleged offender is present, if it does not extradite him solely because he is one of its nationals, shall be obliged to submit the case without undue delay to its competent authorities for prosecution.
While the Ljubljana – The Hague Convention offers a more detailed and comprehensive regime for the obligation aut dedere aut dedere, its ability to effectively fill the gaps in treaty law will depend on widespread ratification by States. It remains to be hoped that the enthusiasm that characterised States during the diplomatic negotiations will materialise in implementing procedural requirements at the domestic level through which the obligation to extradite or prosecute could be deployed.