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PAVEL CABAN
CYIL 4 ȍ2013Ȏ
in this provision is very close to a special category of
aut dedere aut iudicare
regime
based on the wording (“the Hague formula”) of Article 7 of the Hague Convention
for the Suppression of Unlawful Seizure of Aircrafts of 1970 (this model wording was
subsequently followed by other multilateral treaties against corruption, transnational
organised crime, terrorism, torture, enforced disappearances, etc.),
55
in which,
according to current interpretation, the obligation to prosecute arises
ipso facto
when the alleged offender is present in the territory of the state of apprehension, i.e.
this obligation is no longer made dependent on a prior extradition request and its
denial, but applies in all cases of non-extradition. This obligation to prosecute is thus
regarded as absolute (as soon as the presence of the alleged offender in the territory
of the state concerned is ascertained), unless another state requests extradition, in
which case the state concerned has the discretion to choose between extradition and
prosecution.
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This provision containing the obligation
aut dedere aut iudicare
is (in
the treaties modelled on the regime of the Hague Convention for the Suppression
of Unlawful Seizure of Aircrafts) complemented by (or based on) further obligation
of each state to “take such measures as may be necessary to establish its jurisdiction
over the offence in the case where the alleged offender is present in its territory and
it does not extradite him” to any of the states with a connection (based on territorial,
active or even passive personal jurisdiction, depending on the concrete treaty) to
the crime.
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In the words of the Survey of multilateral conventions prepared for
Article 146, second paragraph, of the 1949 Geneva Convention IV: “Each High Contracting Party
shall be under the obligation to search for persons alleged to have committed, or to have ordered to
be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before
its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation,
hand such persons over for trial to another High Contracting Party concerned, provided such High
Contracting Party has made out a
prima facie
case.”
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Article 7 of the Hague Convention for the Suppression of Unlawful Seizure of Aircrafts of 1970:
“The Contracting State in the territory of which the alleged offender is found shall, if it does not
extradite him, be obliged, without exception whatsoever and whether or not the offence was committed
in its the territory, to submit the case to its competent authorities for the purpose of prosecution.
Those authorities shall take their decision in the same manner as in the case of any ordinary offence
of a serious nature under the law of that State”. See further for example Article 7, para. 1 of the
1984 United Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment: “The State Party in territory under whose jurisdiction a person alleged to have committed
any offence referred to in Article 4 is found, shall in the cases contemplated in Article 5, if it does not
extradite him, submit the case to its competent authorities for the purpose of prosecution.”
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Unlike the older (pre-1970) version of this clause, which is modelled on the text (Article 9) of the 1929
International Convention for the Suppression of Counterfeiting Currency and which provides that the
obligation to prosecute “is subject to the condition that extradition has been requested and the country
to which the application is made cannot hand over the person accused for some reason which has no
connection with the offence”. See Survey of multilateral conventions which may be of relevance for the
work of the International Law Commission on the topic “The obligation to extradite or prosecute (
aut
dedere aut iudicare
)”, Study by the Secretariat, International Law Commission, Sixty-second session, A/
CN.4/630, pp. 64-65; C. Kreß,
op. cit
. sub 10, pp. 567-568.
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See further for example Article 5, para. 2 of the UN Torture Convention (“State Party shall likewise
take such measures as may be necessary to establish its jurisdiction over such offences in cases where the