In
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
, the principle of ''aut dedere aut judicare'' (
Latin
Latin (, or , ) is a classical language belonging to the Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through the power of the ...
for "either
extradite
Extradition is an action wherein one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to the other's law enforcement. It is a cooperative law enforcement procedure between the two jurisdic ...
or
prosecute
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal tr ...
") refers to the
legal obligation
The law of obligations is one branch of private law under the civil law legal system and so-called "mixed" legal systems. It is the body of rules that organizes and regulates the rights and duties arising between individuals. The specific rights a ...
of
states under
public international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
to prosecute persons who commit serious
international crimes where no other state has requested extradition. However, the
Lockerbie case demonstrated that the requirement to extradite or prosecute is not a rule of customary international law. The obligation arises regardless of the
extraterritorial
In international law, extraterritoriality is the state of being exempted from the jurisdiction of local law, usually as the result of diplomatic negotiations.
Historically, this primarily applied to individuals, as jurisdiction was usually cl ...
nature of the crime and regardless of the fact that the perpetrator and victim may be of
alien nationality.
[Hall, Stephen, ''International Law'' (2006) 2nd ed., Butterworths Tutorial Series, LexisNexis Butterworths] It is generally included as part of international treaties dealing with an array of transnational crimes to facilitate bringing perpetrators to justice.
Rationale
The rationale for this principle is to ensure that there are no jurisdictional gaps in the prosecution of internationally committed crimes. It is, however, unusual for states to be required to exercise this jurisdiction because often another state party will have an interest in the matter, and so will apply for extradition of the defendant(s). In this situation the state requesting extradition will have priority.
The obligation of ''aut dedere aut judicare'' for all crimes is however not assured, and Stigall notes that "some contemporary scholars hold the opinion that ''aut dedere aut judicare'' is not an obligation under customary international law but rather “a specific conventional clause relating to specific crimes” and, accordingly, an obligation that only exists when a state has voluntarily assumed the obligation."
But in the international crimes for which it is applied, it is "posited
y Cherif Bassiounithat ... it is not only a rule of customary international law but a ''
jus cogens
Jus may refer to:
Law
* Jus (law), the Latin word for law or right
* Jus (canon law), a rule within the Roman Catholic Church
People
* Juš Kozak (1892–1964), Slovenian writer
* Juš Milčinski, Slovenian theatre improviser
* Justin Jus ...
'' principle", compelling states to invoke it for any and all crimes that fall under the principle; Kelly finds within Israeli and Austrian judicial decisions "some supporting anecdotal evidence that judges within national systems are beginning to apply the doctrine on their own."
[ In , p. 16.]
Typical offences
Typically offences classified as falling under the ''aut dedere aut judicare'' principle include:
*
Hijacking of
civilian aircraft
* Taking of civilian
hostage
A hostage is a person seized by an abductor in order to compel another party, one which places a high value on the liberty, well-being and safety of the person seized, such as a relative, employer, law enforcement or government to act, or refr ...
s
* Acts of
terrorism
Terrorism, in its broadest sense, is the use of criminal violence to provoke a state of terror or fear, mostly with the intention to achieve political or religious aims. The term is used in this regard primarily to refer to intentional violen ...
*
Torture
Torture is the deliberate infliction of severe pain or suffering on a person for reasons such as punishment, extracting a confession, interrogational torture, interrogation for information, or intimidating third parties. definitions of tortur ...
* Crimes against diplomats and other "
internationally protected persons", and;
*
Financing of terrorism
Terrorism financing is the provision of funds or providing financial support to individual terrorists or non-state actors.
Most countries have implemented measures to counter terrorism financing (CTF) often as part of their money laundering l ...
and other international crimes
Multilateral treaties
The majority of these offences rely on
multilateral treaties
A multilateral treaty is a treaty to which two or more sovereign states are parties. Each party owes the same obligations to all other parties, except to the extent that they have stated reservations. Examples of multilateral treaties include the ...
to extend the "prosecute or extradite" principle to them. This method of granting jurisdiction has become increasingly common since
World War II
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposing ...
. Jurisdiction granting treaties include:
* The
Geneva Conventions
upright=1.15, Original document in single pages, 1864
The Geneva Conventions are four treaties, and three additional protocols, that establish international legal standards for humanitarian treatment in war. The singular term ''Geneva Conve ...
of 1949;
*
Hague Convention for the Suppression of Unlawful Seizure of Aircraft 1970;
*
International Convention Against the Taking of Hostages
The Hostages Convention (formally the International Convention against the Taking of Hostages) is a United Nations treaty by which states agree to prohibit and punish hostage taking. The treaty includes definitions of "hostage" and "hostage taki ...
1979;
*
1997;
*
International Convention on the Suppression of the Financing of Terrorism 1999;
*
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment 1984;
* The
Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons 1973;
*
United Nations Convention against Corruption 2003;
*
1954, and;
*
International Convention for the Suppression and Punishment of the Crime of Apartheid 1973.
References
External links
Aut Dedere Aut Judicare -- Bibliographies on the topics of the International Law Commission (no. 6 in the list) (UNOG Library)
{{DEFAULTSORT:Aut Dedere Aut Judicare
Legal rules with Latin names
International criminal law
Extradition