CYIL 2015

304

PAVEL CABAN

CYIL 6 ȍ2015Ȏ

A future convention should also envisage and address the relationship between

surrender to the International Criminal Court (or any other possible international

criminal tribunal, which may still have jurisdiction or which might, theoretically, be

established in the future) and the obligation to prosecute or extradite to another state,

i.e.

namely to provide that surrender to the International Criminal Court satisfies the

obligation to extradite or prosecute (so called third alternative).

Model provisions

in this regard may be Article 11(1), together with Article 9(2), of the Enforced

Disappearance Convention, which provides that the state party is obliged to submit the

case to its competent authorities for the purpose of prosecution, unless it extradites (or

surrenders) the alleged offender (who is present in any territory under its jurisdiction) to

another state in accordance with its international obligations or surrenders him or her

to an “international criminal tribunal whose jurisdiction it has recognized”.

The non-

governmental Proposed International Convention for the Prevention and Punishment

of Crimes against Humanity (see below), elaborated by the Crimes Against Humanity

Initiative, contains similar (slightly differently worded) provisions, regulating the above

“third alternative”, in its Draft Articles 9 and 10(3).

6. The Proposed International Convention for the Prevention

and Punishment of Crimes against Humanity

The most influental among the non-governmental, academic contributions

to the discussions on this topic up to now seems to be the Proposed International

Convention for the Prevention and Punishment of Crimes against Humanity,

humanity, either through jurisprudence singling them out as acts of persecution or ‘other inhumane acts’,

state practice or amendment of the Rome Statute”; see Otto Triffterer (ed.),

op. cit.

sub 37, p. 169, fn. 17

See Article 90 of the Rome Statute, which regulates how to deal with requests from the Court for the

surrender of a person under Article 89 if the State also receives a request from any other State for the

extradition of the same person. See also Article 9 of the Commission’s 1996 draft Code of Crimes

against the Peace and Security of Mankind (“Without prejudice to the jurisdiction of an international

criminal court, the State Party in the territory of which an individual alleged to have committed a crime

set out in Article 17, 18, 19 or 20 is found shall extradite or prosecute that individual.”).

ILC, Report on the work of its sixty-sixth session (2014), doc. A/69/10, pp. 155-6.

Article 9 “(1) Each State Party shall take necessary measures to establish its competence to exercise

jurisdiction over crimes against humanity when the alleged offender is present in any territory under its

jurisdiction, unless it extradites him or her to another State in accordance with its international obligations

or surrenders him or her to the International Criminal Court, if it is a State Party to the Rome Statute,

or to another international criminal tribunal whose jurisdiction it has recognized; (2) In the event that a

State Party does not, for any reason not specified in the present Convention, prosecute a person suspected

of committing crimes against humanity, it shall, pursuant to an appropriate request, either surrender such

a person to another State willing to prosecute fairly and effectively, to the International Criminal Court,

if it is a State Party to the Rome Statute, or to a competent international tribunal having jurisdiction

over crimes against humanity.” [Article 10(3) of the Proposed Convention has almost the same wording

as Article 9 (1) of the Proposed Convention.] It can be observed that draft Article 9(2) of the Proposed

Convention, in comparison to,

e.g.

, Article 11(1) of the Enforced Disappearance Convention, changes the

sequence (priority) of the obligations to extradite or prosecute.