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PAVEL ŠTURMA
CYIL 5 ȍ2014Ȏ
2.3 The obligation to extradite or prosecute (aut dedere aut judicare)
The third topic, which the Commission completed this year, relates to the obligation
to extradite or prosecute (
aut dedere aut judicare
). However, the methods of work and
the outcome differ considerably from the above presented draft articles. In 2014,
the ILC re-constituted the Working Group on the topic under the chairmanship of
Mr. K. Kittichaisaree. The Working Group continued to evaluate work on this topic,
particularly in the light of comments made in the Sixth Committee at the sixty-
eighth session of the General Assembly on the 2013 report of the Working Group.
On the basis of the work of the Working Group, the Commission adopted the final
report and decided to conclude the topic.
12
The final report is intended to summarize and to highlight particular aspects of
the work of the Commission on the topic “The obligation to extradite or prosecute”,
in order to assist States in this matter. The ILC noted that States have expressed their
desire to cooperate among themselves, and with competent international tribunals,
in the fight against impunity for crimes, in particular offences of international
concern. The role that the obligation to extradite or prosecute plays in supporting
international cooperation to fight impunity has been recognized at least since the
time of Hugo Grotius, who postulated the principle
aut dedere aut punire
.
13
The Commission referred to the general framework for the topic adopted in
2009.
14
It also considered the Survey of multilateral conventions which may be of
relevance for the ILC’s work on this topic prepared by the Secretariat, which identified
four categories of treaty provisions on
aut dedere aut judicare
.
15
The Working Group
also considered the Judgment of the International Court of Justice in case
Belgium
v. Senegal
.
16
Most members of the Commission agreed that a continuing work on
this topic could not bring expected results, such as draft articles with commentaries.
In the light of the above Survey, the Commission considered that when drafting
treaties States could decide for themselves as to which conventional formula on
the obligation to extradite or prosecute best suits their objective in a particular
circumstance. Because of the great diversity in the formulation, content and scope of
the obligation, it would be futile for the ILC to engage in harmonizing the various
treaty clauses.
17
The Commission also touched upon the relationship of the obligation to extradite
or prosecute with
erga omnes
obligations or
jus cogens
norms. The statement of the
ICJ in
Belgium v. Senegal
must be read in the specific context of that case. The
12
See doc. A/CN.4/L.839 (2014).
13
See Hugo Grotius,
De Iure Belli ac Pacis
, Book II, chapter XXI, section IV (English translation by
F.W. Kelsey), Oxford/London, 1925, p. 527. Cit. in: doc. A/CN.4/L.839 (2014), pp. 5-6.
14
See Report of the ILC, 2009, GAOR, Sixty-Fourth Session, Supplement No. 10 (A/64/10), § 204.
15
Survey of multilateral conventions, UN doc. A/CN.4/630 (2010).
16
Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal), Judgment of 20 July
2012, ICJ Reports 2012.
17
See doc. A/CN.4/L.839 (2014), p. 10, § 12.