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provide for the suppression of acts, which are of concern to the whole international
community, universal jurisdiction is applicable.
55
In addition, as a pillar to fill the impunity gap, the duty to extradite or prosecute
(
aut dedere aut judicare
) becomes of great importance, along with the doctrines of
obligation
erga omnes
and
jus cogens
. These doctrines, together with the principle of
universal jurisdiction, are important pillars in filling the impunity gap.
2.3.1 Universal Jurisdiction and Aut dedere aut judicare: parallels between two
dynamic principles
Universal jurisdiction is often coupled with the principle of
aut dedere aut
judicare
, which may be seen as a pillar in the fight against impunity. This principle
obliges states having custody of a suspect to either extradite the person to a state
having jurisdiction over the case or to instigate its own judicial proceeding. The
objective of the principle is to avoid crimes being left unpunished because there is no
extradition or prosecution.
Under this rule a state is required
either to exercise jurisdiction (such as universal
jurisdiction) over a suspected person, or to extradite the person to a state which is
able and willing to do so, or to an international criminal court with jurisdiction over
the suspect and the crime in question.
56
A state subject to
aut dedere aut judicare
is bound to adopt one choice: either to extradite, if it does not prosecute; or to
prosecute, if it does not extradite.
57
There are many examples of treaties containing this principle standing alone or
meshed with that of universal jurisdiction.
58
There is therefore a thin line between
the principle of
aut dedere aut judicare
and that of universal jurisdiction. For example,
from the text of the 1948 Geneva Convention one might assert that the principle
of
aut dedere aut judicare
is represented by the wording: “[…] shall be under the
obligation to search…and it may also, if it prefers…hand such persons over for
trial….” and universal jurisdiction: “enact any legislation necessary”.
59
Nevertheless,
one has to keep in mind that the obligation of
aut dedere aut judicare
is conceptually
55
ibid.
56
Hall, Christopher K.:
op. cit
., p. 204.
57
Tribelli, Carlo: Aut Dedere Aut Judicare: A Response to Impunity in International Criminal Law.
Sri
Lanka Journar of International Law
, Vol. 21 (1), 2009, p. 234. See further on the principle Aut Deder
Aut Judicare also Platcha, Michael: Aut Dedere Aut Judicare: An overview of Modes of Implemention
and Approaches.
Maastricht Journarl of European and Comperative Law
, Vol. 6 (4), 1999.
58
Examples of conventions that enshrine the duty to prosecute or extradite are: Unlawful Seizure of
Aircraft Convention (Article 7); Unlawful Acts against Aircraft Convention (Article 7); Internationally
Protected Persons Convention (Article 7); Hostages Convention, article 8(1); Torture Convention
[Article 7(1) and (2)]; Unlawful Acts against Maritime Navigation Convention, article 10(1); UN
and Associated Personnel Convention, Article 14; Terrorist Bombings Convention (Article 8);
Enforced Disappearance Convention [Article 11(1) and (2)]; 1949 Geneva Convention I (Article 49);
1949 Geneva Convention II (Article 50); 1949 Geneva Convention III (Article 129); 1949 Geneva
Convention IV (Article 146).
59
Tribelli, Carlo:
op. cit
., p. 244.