Aut dedere aut judicare
In law, the principle of aut dedere aut judicare (Latin for "extradite or prosecute") refers to the legal obligation of states under public international law to prosecute persons who commit serious international crimes where no other state has requested extradition. This obligation arises regardless of the extraterritorial nature of the crime and regardless of the fact that the perpetrator and victim may be of alien nationality.
The rationale for this principle is to ensure that there are no jurisdictional gaps in the prosecution of internationally committed crimes. It is, however, unusual for States to be required to exercise this jurisdiction because often another State party will have an interest in the matter and will apply for extradition. In this situation that State will have priority.
Some contemporary scholars hold the opinion that aut dedere aut judicare is not an obligation under customary international law but rather “a specific conventional clause relating to specific crimes” and, accordingly, an obligation that only exists when a state has voluntarily assumed the obligation. Cherif Bassiouni, however, has posited that, at least with regard to international crimes, it is not only a rule of customary international law but a jus cogens principle. Professor Michael Kelly, moreover, citing Israeli and Austrian judicial decisions, has noted that “there is some supporting anecdotal evidence that judges within national systems are beginning to apply the doctrine on their own.”
A wide array of international instruments now contain provisions for aut dedere aut judicare. These include all four 1949 Geneva Conventions,113 the UN Convention for the Suppression of Terrorist Bombings, the UN Convention Against Corruption, the Convention for the Suppression of the Unlawful Seizure of Aircraft, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention for the Protection of Cultural Property in the Event of an Armed Conflict, and the International Convention for the Suppression and Punishment of the Crime of Apartheid.
Typically offences classified as falling under the aut dedere aut judicare principle include:
- Hijacking of civilian aircraft
- Taking of civilian hostages
- Acts of terrorism
- Crimes against internationally protected persons; and
- Financing of terrorism and other international crimes
The majority of these offences rely on multilateral treaties to extend the "prosecute or extradite" principle to them. This method of granting jurisdiction has become increasingly common since World War II. Jurisdiction granting treaties include:
- The Geneva Conventions of 1949, Hague Convention for the Suppression of Unlawful Seizure of Aircraft 1970,
- International Convention Against the Taking of Hostages 1979,
- International Convention for the Suppression of Terrorist Bombings 1997,
- International Convention on the Suppression of the Financing of Terrorism 1999,
- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment 1984, and
- the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons 1973.
- Hall, Stephen, International Law (2006) 2nd ed., Butterworths Tutorial Series, LexisNexis Butterworths
- Dan E. Stigall, Ungoverned Spaces, Transnational Crime, and the Prohibition on Extraterritorial Enforcement Jurisdiction in International Law: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2211219&download=yes