CYIL Vol. 4, 2013

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. 56 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. 57 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.” 55 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.” 56 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. 57 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