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GAPS IN THE LEGAL REGIME OF INTERSTATE COOPERATION IN PROSECUTING CRIMES
In addition, the Commission noted that the so called “Hague formula” (the
obligation to extradite or prosecute, as formulated in Article 7 of the 1970 Hague
Convention for the Suppression of Unlawful Seizure of Aircraft and as subsequently
interpreted) served as a model for the most contemporary conventions containing the
obligation to extradite or prosecute (such as the UN Convention against Torture of
1984 or the International Convention for the Protection of all Persons from Enforced
Disappearance of 2006) and recommended that States consider the Hague formula
in undertaking to close any above mentioned gaps in the existing conventional
regime governing the obligation to extradite or prosecute.32 Similar conclusions form
the basis of the Draft Code of Crimes against the Peace and Security of Mankind,
adopted by the International Law Commission at its forty-eighth session in 1996,33
which provides for the obligation to establish the jurisdiction and the obligation
to extradite or prosecute with regard to, i.a., the crime of genocide, crimes against
humanity and war crimes.
Possible adoption of a convention on cooperation in the prosecution of crimes
under international law, which would include the obligation to extradite or prosecute
based on the “Hague formula”, could also represent a significant contribution to the
clarification of the regime of universal jurisdiction. The International Court of Justice,
in its judgment of 2012 in the dispute between Belgium and Senegal,34 intepreted the
system of the Convention against Torture, based on the “Hague formula”, as follows:
All the other States parties to the Convention have a common interest in compliance
with the Convention by the State in whose territory the alleged offender is present;
this common interest implies that the obligations in question are owed by any State
party to all the other States parties to the Convention. Thus, the Convention, according
to the Court, gives rise to the obligations erga omnes partes and the common interest
entitles each State party – regardless of whether the applicant state has any special interest
in bringing the claim due to a connection with the crime, alleged torturer or his victims
– to make a claim for the cessation of an alleged breach by any other State party of the
obligations contained in the Convention, including (as was the case in the dispute
between Belgium and Senegal) the obligations to immediately make a preliminary
inquiry into the facts as soon as a suspected offender is identified in the territory of
the State party and to submit the case to its competent authorities (if it does not
extradite him).35 Therefore, a possible future convention on interstate cooperation
of International Criminal Justice, 10 (2012), p. 1294, fn. 90; Claus Kreß, Universal Jurisdiction over
International Crimes and the Institut de Droit International, Journal of International Criminal Justice,
4 (2006), p. 584.
32 ILC, Report on the work of its sixty-sixth session (2014), doc. A/69/10, p. 155.
33 Yearbook of the International Law Commission, 1996, Volume II, Part Two, p. 15 et seq.
34 International Court of Justice, Questions Concerning the Obligation to Prosecute and Extradite (Belgium
v. Senegal), Judgment (July 20, 2012); available at les/144/17064.pdf.
35 Ibid., paras. 68-70.