Aut dedere aut judicare

Last updated

In law, the principle of aut dedere aut judicare (Latin for "either 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. However, the Lockerbie case demonstrated that the requirement to extradite or prosecute is not a rule of customary international law. The 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. [1] It is generally included as part of international treaties dealing with an array of transnational crimes to facilitate bringing perpetrators to justice.

Contents

Rationale

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 so will apply for extradition of the defendant(s). In this situation the state requesting extradition will have priority.

The obligation of aut dedere aut judicare for all crimes is however not assured, and Stigall notes that "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." [2] But in the international crimes for which it is applied, it is "posited [by Cherif Bassiouni] that ... it is not only a rule of customary international law but a jus cogens principle", compelling states to invoke it for any and all crimes that fall under the principle; Kelly finds within Israeli and Austrian judicial decisions "some supporting anecdotal evidence that judges within national systems are beginning to apply the doctrine on their own." [3]

Typical offences

Typically offences classified as falling under the aut dedere aut judicare principle include:

Multilateral treaties

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: [2]

Related Research Articles

Jurisdiction is the legal term for the authority granted to a legal entity to enact justice. Colloquially it is used to refer to the geographical area. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.

Universal jurisdiction is a legal principle that allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, country of residence, or any other relation to the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage.

United Nations Convention against Torture International human rights instrument against torture and cruel or unusual punishment

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is an international human rights treaty, under the review of the United Nations, that aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world.

Extradition is an action wherein one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to the other's law enforcement. It is a cooperative law enforcement procedure between the two jurisdictions and depends on the arrangements made between them. In addition to legal aspects of the process, extradition also involves the physical transfer of custody of the person being extradited to the legal authority of the requesting jurisdiction.

Extraterritorial jurisdiction (ETJ) is the legal ability of a government to exercise authority beyond its normal boundaries.

A peremptory norm is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted.

Mutual legal assistance treaty Treaty to enforce public or criminal laws

A mutual legal assistance treaty (MLAT) is an agreement between two or more countries for the purpose of gathering and exchanging information in an effort to enforce public or criminal laws. A mutual legal assistance request is commonly used to formally interrogate a suspect in a criminal case, when the suspect resides in a foreign country.

Hostis humani generis is a legal term of art that originates in admiralty law. Before the adoption of public international law, pirates and slavers were already held to be beyond legal protection and so could be dealt with by any nation, even one that had not been directly attacked.

Transnational crimes are crimes that have actual or potential effect across national borders and crimes that are intrastate but offend fundamental values of the international community. The term is commonly used in the law enforcement and academic communities. Transnational organized crime (TOC) refers specifically to transnational crime carried out by crime organizations.

A Central Authority is an agency or organization that is designated to play a key facilitating role in the implementation and operation of an international treaty in public and private international law.

The state of Ireland asserts universal jurisdiction and extraterritorial jurisdiction in various situations. Ireland has universal jurisdiction for murder and manslaughter committed by its citizens. This dates from at least 1829, retained by the Offences against the Person Act 1861, as adapted in 1973.

The Hostages Convention is a United Nations treaty by which states agree to prohibit and punish hostage taking. The treaty includes definitions of "hostage" and "hostage taking" and sets out the principle of aut dedere aut judicare: a party to the treaty must prosecute a hostage taker if no other state requests extradition for prosecution of the same crime.

The Hague Hijacking Convention is a multilateral treaty by which states agree to prohibit and punish aircraft hijacking. The convention does not apply to customs, law enforcement or military aircraft, thus it applies exclusively to civilian aircraft. The convention only addresses situations in which an aircraft takes off or lands in a place different from its country of registration. The convention sets out the principle of aut dedere aut judicare—that a party to the treaty must prosecute an aircraft hijacker if no other state requests his or her extradition for prosecution of the same crime.

The Protection of Diplomats Convention is a United Nations anti-terrorism treaty that codifies some of the traditional principles on the necessity of protecting diplomats.

The Convention on the Safety of United Nations and Associated Personnel is a United Nations treaty that has the goal of protecting United Nations peacekeepers and other UN personnel.

A political offence exception is a provision which limits the obligation of a sovereign state under an extradition or mutual legal assistance treaty or statute. Such provisos allow the state whose assistance has been requested to refuse to hand over a suspect to — or to gather evidence on behalf of — another state, if the requested party's competent authority determines that the requesting party seeks assistance in order to prosecute an offence of a political character.

The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation is a multilateral treaty by which states agree to prohibit and punish behaviour which may threaten the safety of civil aviation.

The Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf is a multilateral treaty by which states agree to prohibit and punish behaviour which may threaten the safety of offshore fixed platforms, including oil platforms.

An extraterritorial operation in international law is a law enforcement or military operation that takes place outside the territory or jurisdiction of the state whose forces are conducting the operation, generally within the territory of another sovereign state. Under international law, these activities are generally highly restricted, and it is considered a violation of a state's sovereignty if any other state engages in law enforcement or military operations within another state without gaining that state's consent:

The first and foremost restriction imposed by international law on a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State.

The law of extradition in the Republic of Ireland includes legislation and case law, and gives effect to treaties.

References

  1. Hall, Stephen, International Law (2006) 2nd ed., Butterworths Tutorial Series, LexisNexis Butterworths
  2. 1 2 Stigall, Dan E. (February 2013). "Ungoverned Spaces, Transnational Crime, and the Prohibition on Extraterritorial Enforcement Jurisdiction in International Law". Notre Dame Journal of International & Comparative Law. SSRN   2211219.
  3. Kelly, Michael J. (2003). "Cheating Justice by Cheating Death: The Doctrinal Collision for Prosecuting Foreign Terrorists—Passage of Aut Dedere Aut Judicare into Customary Law & Refusal to Extradite Based on the Death Penalty". 20 Ariz. J. Int'l & Comp. L. 491: 496–497. SSRN   920879. In Stigall (2013), p. 16.