The Obligation to “Extradite or Prosecute” is not an Obligation to “Prosecute or Extradite”

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Joanna Harrington is Associate Professor of Law, University of Alberta, Canada. Her Phd obtained from the University of Cambridge dealt with extradition and human rights. From 2006-2008, she was on secondment to the Legal Affairs Bureau of the Canadian Department of Foreign Affairs and International Trade. In that capacity, she, among other things, was a member of the Canadian delegation to the UN General Assembly for meetings of the Sixth (Legal) Committee dealing with the work of the International Law Commission.

Dapo’s post on the case in the ICJ between Belgium and Senegal highlights the real issue in the case, which is this question of whether international law “obliges” prosecution.

One aspect of the ILC’s recent work on “Extradite or prosecute” that has attracted my own interest is the Special Rapporteur’s description of this obligation as a choice, an “either/or” option for States, thus equating “extradite or prosecute” with “prosecute or extradite” (the latter being the “obligation” now invoked by Belgium).

In the very treaties that the Special Rapporteur has cited in his reports, the actual wording of the treaty provisions imposes an obligation to extradite, and IF that does not occur, THEN an obligation arises to submit the case for prosecution. In other words, there is a condition within the treaty-based provision, which the shorthand reference to “extradite or prosecute” does not convey, and which does not mean that we can look to these treaty obligations on “extradite or prosecute” to substantiate a customary obligation to “prosecute or extradite”. We can’t just flip the phrase. This is especially so where the obligation to extradite or prosecute applies to crimes for which one of the state parties to the extradition treaty would not have jurisdiction to prosecute. This happens in extradition treaties between common law and civil law countries, when the latter may invoke the nationality exception to extradition, and in return, is subject to an obligation to submit the case for consideration for national prosecution. The common law country would not be in the same position if it refused to extradite all nationals for all crimes given the territorial nature of much of common law criminal law.

The Special Rapporteur appears to have glossed over the actual wording of the treaty provisions which contain an “extradite or prosecute” provision, and has opted to add the “either” element in his own drafting of a general encapsulation (see draft Article 3 in the recent report). If this is an intended progressive development of the law, rather than mere codification, I would prefer to see an express discussion of this “either/or” aspect.

As for paragraph 124 of the Special Rapporteur’s recent report, to which Dapo refers, I’m still surprised to see an ILC Special Rapporteur continue to cite the work of two student authors, without further citation to secondary sources. (The Special Rapporteur quoted at length from this journal article in his preliminary report at para 41.) I mean no disrespect to the authors, who are now lawyers in private practice, but I would have thought that an ILC member would have marshalled further citations to “the teachings of the most highly qualified publicists” for what appears to be an important aspect of his argument for keeping the customary aspect alive in his work programme. I have similar concerns about the Special Rapporteur’s citations to a report by Amnesty International to support assertions of statements of doctrine. Again, I have great respect for the work of Amnesty International, but it is an advocacy organization, and not the work of a respected author in a peer-reviewed academic press. It is not as if jurisdiction has not been discussed in such works.

Speaking frankly, without the diplomatic niceties of thanking the ILC for its efforts etc during the Sixth Committee debates, I think the ILC’s work on “extradite or prosecute” needs more rigour, including a more careful analysis of what exactly the various treaties containing an “extradite or prosecute” obligation require, whether bilateral (and thus also applicable to ordinary crimes) or multilateral, before a conclusion is made that there is a customary law basis for the proposed obligation.

Given that many extradition treaties identify their first article as the “Obligation to extradite”, the phrase under discussion could be read as “Obligation to extradite” OR “prosecute”, thus indicating that the obligation aspect refers to the extradition obligation for the treaty parties, while “prosecute” is the alternative commitment made by the treaty parties for the policy reason of avoiding impunity when extradition cannot take place (for example, when the nationality exception to extradition is invoked), but the prosecute aspect is not an obligation, taking into account respect for prosecutorial independence. This, of course, does not help Belgium which is asserting the alternative concept of “prosecute or extradite”.

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