Universal Crime, Jurisdiction and Duty:
The Obligation of Aut Dedere Aut Judicare
in International Law
Colleen Enache-Brown and Ari Fried*
This Note focuses on the arbitrary distinction in
international human rights and humanitarian law be-
tween heinous crimes committed in international con-
flagrations and those committed in the course of an in-
ternal conflict The authors present an argument for the
existence of a general duty in international law of aut
dedere autjudicare, that is, the obligation of states to
extradite or prosecute perpetrators of universally con-
demnable crimes irrespective of the context in which
they occur. In this Note, the duty of aut dedere autju-
dicare is expanded to include the duty of non-asylum.
The effective promotion and protection of human
rights, as mandated specifically by article 55(c) of the
UN Charter, not only requires the creation of substan-
tive norms, i.e. prohibitions, but procedural norms as
well. Such implementation mechanisms are necessary
corollaries of interdictions and are found in every sys-
tem of law. For the effective treatment of universally
condemnable crimes, a duty must be found that re-
quires states to take some form of action against the
perpetrators of such offenses.
The authors apply a three part analysis, beginning
with an examination of the notions of universal crime
and jurisdiction. They conclude that in the presence of
armed conflict, the customary law making process, the
UN Charter, and compelling principles and elementary
considerations of humanity all establish the obligation
of aut dedere autjudicare as a general precept within
international law – a principle which can and must be
applied to both international and internal armed con-
flicts.
perpdtrds
internationaux et ceux
Cette note se concentre sur la distinction arbi-
traire, en droit international de la personne et en droit
humanitaire, entre les crimes haineux commis dans des
conflits
lors
d’hostilitds denvergure nationale. Les auteurs sont
d’avis qu’en droit international, le devoir aut dedere aut
judicare devrait exister. Ainsi, les ttats se verraient
dans l’obligation soit d’extrader ou de traduire en jus-
tice les auteurs de crimes universellement condamna-
bles, peu importe le contexte dans lequel ils ont t6
commis. Dans cette note, le devoir aut dedere autjudi-
care est compris comme incluant le devoir de non-asile.
La promotion et Ia protection efficaces des droits
de ]a personne, telles que requises par l’article 55(c) de
Ia Charte de I’ONU, ne commandent pas seulement Ia
crdation de normes substantielles, c’est-4-dire de prohi-
bitions. Elles exigent aussi des rfgles procduraes. Les
m6canismes d’application sont des corollaires ndcessai-
res h toute interdiction et sont partie intdgrante de tout
systdme de droit. Pour atteindre un traitement efficace
des crimes universellement condamnables, il doit y
avoir un devoir incombant aux ttats d’agir de quelque
manire vis-t-vis les coupables de tels crimes.
Par une analyse en trois parties ddbutant avec
l’examen des notions de crime etjuridiction universels,
les auteurs concluent qu’en prdsence de conflits armds,
le droit coutumier, ]a Charte de I’ONU et de convain-
cants principes humanitaires fondamentaux soutiennent
l’existence de l’obligation aut dedere aut judicare en
tant que prdcepte gdndral de droit international. Ce der-
nier peut et doit 6tre appliqu6 aux conflits tant natio-
naux qu’internationaux.
* Colleen Enache-Brown, LL.B., B.C.L. (McGill, 1998), B.A. (Hons.) (Alberta, 1993); Ari Fried,
LL.B., B.C.L. (McGill, 1998), B.A. (Concordia, 1994). This Note is dedicated to the memory of
France Chan-Tang-Kwan, the late father of our colleague and friend Daphne Chan-Tang-Kwan. The
authors would like to express their gratitude to: Dean Stephen J. Toope, Professors Ren6 Provost,
William Schabas, Yoram Dinstein, and to Anthony Enache-Brown.
McGill Law Journal 1998
Revue de droit de McGill
To be cited as: (1998) 43 McGiU LI. 613
Mbde de rdfdrence: (1998) 43 R.D. McGill 613
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[Vol. 43
Introduction
I. Universal Crime
1U. Universal Jurisdiction
I1. Universal Duty
A. The Obligation to Take Action is Fundamental
1. Custom as Derived from Convention
a. Traditional Paradigm
b. Non-Traditional Analysis
c. Aut Dedere Aut Judicare as a General Principle of Interna-
tional Law
Conclusion
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C. ENACHE-BROWN & A. FRIED – AUT DEDERE AUT JUDICARE
615
Introduction
In this century, perhaps more than at any other time in the history of the modem
world, armed conflict between peoples has occurred within state borders, rather than
between countries.’ The internal nature of these armed conflicts does not in any way
mean that the world has become less violent. Internal conflicts, no less so than their
international counterparts, imply that “there will be civilian casualties, that there will
be terror and torture … that there will be exceptional detention as well as attacks on
prisons, and that food supplies and medical services will be disrupted*”‘ Given the toll
that such conflicts take upon human life and property, three salient questions emerge:
i) Is there any persuasive legal reason for viewing reprehensible acts through a differ-
ent legal lens depending on whether they are committed in an international or internal
conflict? Specifically, should such acts be viewed as non-criminal simply because
they occur in a domestic conflict?; ii) In the absence of a direct link to the perpetrator
or victim of a heinous act which has occurred in a situation of internal conflict, can
third party states claim criminal jurisdiction over the perpetrators of such acts?; and
iii) If it is determined that a universally condemnable crime has been committed and
that all states may exercise jurisdiction over the perpetrator of the act, is there a con-
comitant duty to bring the offender to justice?
The first two questions will be analyzed narrowly as the focus of this Note is the
determination of the third: whether or not there is a general duty in international law
to extradite or prosecute perpetrators of universally condemnable crimes irrespective
of where they occur. In other words, is there a duty of aut dedere autjudicare in in-
ternational law?
I. Universal Crime
Traditionally, intemationally agreed upon standards have only applied to conflicts
between states due to the widespread adherence to the principle of state sovereignty.
International conflagrations invoke specific guidelines to which the warring parties
have agreed as members of the international community. When an international armed
conflict arises, the engagement is governed by these rules, the object being the “regu-
lation” of the conflict and palliation of its impact on those not taking an active role in
it. However, in light of the changing context of armed conflict, with its increasing em-
phasis on intraborder crises, the international legal community has been given an im-
perative for the development of a new way of thinking about the application of the
laws of war.
With increasing public access to information about atrocities committed within
the borders of any particular country, the impetus for the progressive development of
‘ See L.C. Green, ‘The Man in the Field and the Maxim Ignorantia Juris Non Excusat’ in Essays
on the Modem Law of War (Dobbs Ferry, N.Y: Transnational, 1985) 27 at 36.
‘ D. Forsythe, “Human Rights and Internal Conflicts: Trends and Recent Developments” (1982) 12
Cal. W. Int’l L.J. 287 at 290.
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international law is augmented. The images of terrible human suffering which
emerged from Rwanda, following the events of April 1994, shocked the consciences
of people everywhere. This shock triggered, within a short span of time, several major
legal developments including the promulgation by the Security Council –
acting un-
der Chapter VII of the Charter of the United Nations’ –
of the Statute of the Interna-
tional Criminal Tribunal for Rwanda,’ and the adoption by the International Law
Commission (ILO) of a treaty-based statute for an international criminal court.! These
developments have been very important in the evolutionary stride of international law
with respect to the involvement of the international community in conflicts of a do-
mestic nature.
It has been suggested that international humanitarian law has provided the only
viable legal basis for classifying and assigning responsibility for civilian casualties, as
well as objectively assessing the conduct of hostilities by the various parties to inter-
nal armed conflicts. As rule-making which pertains to both international and internal
armed conflict has the same underlying ratii legi –
the humane treatment of, and re-
spect for the well-being of non-combatants’ –
the applicability of this doctrine to in-
ternal conflicts is theoretically apposite.
In addition to humanitarian law,’ human rights law is also important in determin-
ing whether international remedies may be applied in cases of internal armed conflict.
Human rights law is derived from international agreements such as the Universal
3 Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No.7, 59 Stat. 1031, 145 U.K.FS.
805 [hereinafter UN Charter].
‘United Nations Security Council Resolution 955 (1994) on Establishing the International Tribunal
for Rwanda, SC Res. 955, UN SCOR, 49th Sess., UN Doc. SC1955 (1994), 33 I.L.M. 1598 [herein-
after Statute of the International Tribunalfor Rwanda].
5 See T. Meron, “International Criminalization of Internal Atrocities” (1995) 89 A.JI.L. 554 at 554.
6 See R.K. Goldman, “International Humanitarian Law: Americas Watch’s Experience in Monitor-
ing Internal Armed Conflicts” (1993) 9 Am. U. J. Int’l L. & Pol’y 49 at 88.
7 See W. Walker, “T’he International Law Applicable to Guerrilla Movements in Internal Armed
Conflicts: A Case Study of Contra Attacks on Nicaraguan Farming Cooperatives” (1988) 21 N.Y.U.J.
Int’l L. & Pol. 147 at 176. Generally, when analysing an internal conflict, the primary instruments
which are used are Common Article 3 and Protocol II (Common Article 3 of the Geneva Convention
for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12
August 1949, 75 U.N.T.S. 31, 6 U.S.T. 3114 [hereinafter I Geneva Convention]; Geneva Convention
for the Amelioration of the Armed Forces at Sea, 12 August 1949, 75 U.N.T.S. 85, 6 U.S.T. 3217
[hereinafter 11 Geneva Convention]; Geneva Convention Relative to the Treatment of Prisoners of
War, 12 August 1949, 75 U.N.T.S. 135, 6 U.S.T. 3316 [hereinafter III Geneva Convention]; Geneva
Convention Relative to the Protection of Civilian Persons in lime of War, 12 August 1949, 75
U.N.T.S. 287, 6 U.S.T. 3516 [hereinafter IV Geneva Convention]; Protocol If Additional to the Ge-
neva Conventions of August 12, 1949 and Relating to the Protection of Victims of Non-International
Armed Conflicts, 8 June 1977, UN Doc. A/32/144 (1977), 16 I.L.M. 1442 [hereinafter Protocol II]).
‘ The main conventional sources of HumanitarianLaw are the four 1949 Geneva Conventions, ibid.,
and the two 1977 Additional Protocols thereto. They have traditionally applied to situations of inter-
national armed conflict and contain rules restricting the means and methods of combat in order to
ameliorate the conditions of incapacitated soldiers and to spare the civilian population from the ad-
verse effects of hostilities. See Goldman, supra note 6 at 51.
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C. ENACHE-BROWN & A. FRIED – AUT DEDERE AUT JUDICARE
617
Declaration of Human Rights’ the International Covenant on Civil and Political
Rights,” the Convention for the Protection of Human Rights and Fundamental Free-
doms,” and the American Convention on Human Rights.2 Such declarations give
voice to collective values, expressing how the signatories believe individuals ought to
be treated. In times of crisis states may derogate from the more suppletive obligations.
However, in all cases some individual rights remain inviolable, and the prohibition
against their breach is imperative under international law. In most human rights
documents, the rights to life, freedom from torture and degrading treatment, and free-
dom from slavery and forced labour will be found as examples of such non-derogable
rights.” Non-derogable rights are those human rights that are “so fundamental to pro-
tect the human person … that they may never be legitimately violated. These rights are
based on rules of universal validity which cannot be ignored, even without treaty obli-
gations or any explicit commitments to obey them.””
While human rights law “technically” applies during periods of armed conflict,
the principal flaw in its application is that it prescribes no criteria to establish the
“means and methods” of warfare, given the fact that it was designed to govern in
times of peace.” Although human rights law is not accorded the same stature under
international law as humanitarian law, it is important to consider the former as a seri-
ous complement to the latter, as humanitarian law is not without gaps. This notion of
universal validity is supported by Dupuy in Droit International, who posits: “Cette
convergence est en tous cas significative; elle indique ceux qui, parmi les droits en
cause, constituent les attributs inali6nables de la personne humaine, fond6s comme
tels sur des valeurs que l’on retrouve en principe dans tous les patrimoines culturels et
les syst~mes sociaux.”” Human rights and humanitarian law share a common nucleus
‘GA Res. 217 (II1), UN GAOR, 3d Sess., Supp. No. 13, UN Doe. A/810 (1948) 71.
“19 December 1966,999 U.N.T.S. 171, Can. T.S. 1976 No. 47 [hereinafter .C.C.RR.].
“4 November 1950,213 U.N.T.S. 221, Eur. T.S. 5 [hereinafter Convention on Human Rights].
2OR OEAISer.KIXVI/1.1.1/Doc.65 rev. 1 (1969), 9 I.L.M. 673, O.A.S.T.S. No. 361.
The right to life as a non-derogable right is found in art. 4 of the LC.C.RR., supra note 10, art. 15
of the Convention on Human Rights, supra note 11, and art. 27 the American Convention on Human
Rights, ibid.
“4 Walker, supra note 7 at 153. This proposition is further supported by J.-M. Dupuy in his book
Droit International Public, 3rd ed. (Paris: Dalloz, 1995) at 172 [hereinafter Droit International] where
he states:
‘article 3 commun aux quatre conventions de Gen6ve de 1949 portant sur le
Ainsi,
droit humanitaire (c’est-A-dire en d6finitive le droit de la protection de la personne hu-
maine en cas de conflits arm~s non intemationaux), mais aussi l’article 4, alin6a 2 du
Pacte international relatif aux droits civils et politiques, ou
‘article 12, alin6a 2 de la
convention europlenne, de meme que l’article 27 de la convention amricaine des
droits de l’homme, 6noncent les uns et les autres un certain nombre de droits qui
doivent etre respecis en tous lieux et toutes circonstances, et ne sont par consequent
susceptibles d’aucune ddrogation: il s’agit en particulier du droit k la vie, du droit A ne
pas 8tre soumis L la torture ni k des peines ou traitements inhumains ou d6gradants
[emphasis in original].
“See Goldman, supra note 6 at 50.
“Droit International, supra note 14 at 172.
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of non-derogable rights and a common purpose of protecting human life and dignity.
The specific provisions of humanitarian law, however, seem to afford victims of
armed conflict far greater protection than general human rights guarantees.”
In the context of an internal armed conflict, however, human rights law compen-
sates for the gaps inherent in humanitarian law which arise as a result of the fact that
Common Article 3″ and Protocol IX” are much less far-reaching than the law applica-
ble to international armed conflicts, even though the incidence of internal conflict is
so pervasive and its effect so devastating. Although human rights instruments are not
directly legally enforceable, they are indicative of international norms and thus hold
suasive power. Given that human rights law is primarily concerned with behavior
within a state, it is possible that resistance by states to further international responsi-
bility in internal armed conflicts will be eroded by human rights pressure.2
In addition to humanitarian and human rights law being applicable to internal
conflicts, the International Court of Justice has held that customary law and the laws
of humanity may also be applied to internal armed conflicts. In Military and Para-
military Activities In and Against Nicaragua (Nicaragua v. United States),2′ the Court
held that “elementary considerations of humanity” could apply to a situation of inter-
nal armed conflict and that the Conventions were “in some respects a development,
and in other respects no more than the expression” of fundamental general principles
of humanitarian law.’ These fundamental principles, found in Common Article 3, are
to be applied de minimis to both internal armed conflicts and international armed con-
flicts: “the minimum rules applicable to international and to non-international con-
‘ While Common Article 3 applies explicitly to situations of inter-
flicts are identical’
nal armed conflict, the Court implied that other provisions of the Conventions, such as
‘7 See Goldman, supra note 6 at 53.
“Supra note 7.
19 Ibid.
2 See L. Doswald-Beck & S. Vit6, “International Humanitarian Law and Human Rights Law”
(1993) 293 Int’l Rev. Red Cross 94. This journal is available on the Red Cross homepage online:
reticent to extend the principles of human rights protection very far. Philip Alston notes in his article
“The UN’s Human Rights Record: From San Francisco to Vienna and Beyond” (1994) 16 Hum. Rts.
Q. 375 at 382, that:
the signatories to the Bangkok Declaration, adopted at the World Conference Regional
Preparatory Meeting in April 1993 recognize that while human rights are universal in
nature, they must be considered in the context of a dynamic and evolving process of
international norm-setting, bearing in mind the significance of national and regional
particularities and various historical, cultural and religious backgrounds (Final Decla-
ration of the regional meeting for Asia of the World Conference on Human Rights
(Bangkok Declaration), A/CONF.1571 PC159, (1993) 14 HRLJ 370 at para. 8).
The fact that some commentators view the support of human rights as a culturally relative concept
militates against their universal application.
2 [1986] I.C.J. Rep. 14 at 98 [hereinafter Nicaragua Case].
‘2 Ibid. at 113.
” Ibid.
1998]
C. ENACHE-BROWN & A. FRIED – AUT DEDERE AUT JUDICARE
619
Common Article 1, which applies explicitly to international conflict, may still apply
to internal conflict if its ratio legis fits situations in internal armed conflicts. ‘
In the same way that decisions of the International Court of Justice are useful and
often referred to in determining the state of international law in a particular instance,
resolutions of the General Assembly of the United Nations are similarly important.
While the General Assembly is empowered to make recommendations which are not
considered binding per se, it is important to note the formative influence of such
resolutions in the development of international law.’ Oscar Schachter asserts that “in-
terpretations and declarations of law by the Assembly are official expressions of the
governments concerned and consequently are relevant and entitled to be given weight
in determinations of the law in question'”6 It is in this suasive light that General As-
sembly Resolution 2444, Respect for Human Rights in Armed Conflicts’ must be
viewed. This Resolution specifically recognizes the idea that internal armed conflicts
are subject to legal restraints. Respect for Human Rights brings the law governing in-
ternal conflict in line with that governing international strife, as it recognizes the cus-
tomary rule of civilian immunity and its corollary, the distinction between civilians
and combatants.’
The principle of restraint in internal armed conflict as demonstrated by the Inter-
national Court of Justice and the General Assembly is further strengthened by the
Preamble to Protocol II, which links the protection of human rights and the interna-
tional law governing internal armed conflicts by stating that “international instruments
relating to human rights offer a basic protection to the human person.”‘ In addition,
the Preamble incorporates the Martens Clause,” which recognizes that even with
2,See Walker, supra note 7 at 151.
See 0. Schachter, “International Law in Theory and Practice, General Course in International
Law” (1982) 178 Rec. des Cours 9 at 111-21.
26Ibid. at 117.
GA Res. 2444 (XXII), UN GAOR, 23d Sess., Supp. No 18, UN Doc. A/7218 (1968) [hereinafter
Respectfor Hwnan Rights] states in part:
[The] following principles for observance by all governmental and other authorities for
action in armed conflicts:
(a) That the right of the parties to a conflict to adopt means of injuring the enemy is not
unlimited;
(b) That it is prohibited to launch attacks against the civilian population as such;
(c) That distinction must be made at all time between persons taking part in the hostili-
ties and members of the civilian population to the effect that the latter be spared as
much as possible.
28See Goldman, supra note 6 at 61.
= Protocol II, supra note 7 at para. 2.
For a good explanation of the background to the naming of this clause, see Walker, supra note 7
at 154. The provision originally appeared in the Hague Conventions where it affirmed: “[In] cases not
included in the regulations … the inhabitants and the belligerents remain under the protection and the
rule of the principles of the law of nations, as they result from the usages established among civilized
peoples, from the laws of humanity, and the dictates of the public conscience” [emphasis added].
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documents such as Common Article 3 and international human rights instruments,
there are still cases that may fall into a gap not provided for under the Protocol. The
Preamble emphasizes that such cases are still subject to the principles of humanity
and the dictates of public conscience.
There is pressure to expand the influence of the Martens Clause.” An Interna-
tional Committee for the Red Cross Commentary notes that:
[If] a case is “not covered by the law in force,” whether this.is because of a gap
in the law or because the parties do not consider themselves to be bound by
Common Article 3, or, are not bound by Protocol II, this does not mean that
anything is permitted. The human person remains under the protection of the
principles of humanity and the dictates of the public conscience. This clarifica-
tion prevents an a contrario interpretation. Since they reflect public conscience,
the principles of humanity actually constitute a universal reference point and
apply independently of the Protocol.”
This assertion is reinforced by the wartime holding of a U.S. Military Tribunal in
United States v. Krupp, which determined that the Martens Clause (in its Hague Con-
vention incarnation)
is much more than a pious declaration. It is a general clause, making it, the
usages established among civilized nations, the laws of humanity and the dic-
tates of public conscience into the legal yardstick to be applied if, and when,
the specific provisions of the [Hague] Convention and the regulations annexed
to it do not cover specific cases occurring in warfare, or concomitant to war-
fare.
33
This convergence of the fundamental principles of the laws of humanity and the
dictates of public conscience which form the basis of humanitarian and human rights
law shows that:
war and peace, civil wars and international conflicts, international law and in-
ternal law, all have increasingly overlapping areas. It follows that the law of war
and the law of peace, international law and internal law, the scopes of which
were at first clearly distinct, are today often applicable at the same time side by
side. Thus, the Geneva Conventions and the human rights conventions may of-
ten be applied in cumulative fashion?’
3, Some commentators have noted that principles contained in this Clause are binding only as cus-
tomary law in the context of international armed conflicts (see Walker, supra note 7 at 155).
32 I.C.R.C., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of
12 August 1949 at 1341 [hereinafter Protocols Commentary].
” United States v. Krupp (1949), 9 Trials of War Criminals Before the Nuremberg Military Tribu-
nals 1341, as cited in Walker, supra note 7 at 155.
m D. Schindler, ‘The International Committee of the Red Cross and Human Rights” (1979) 208
Int’l Rev. Red Cross 5, as cited in Forsythe, supra note 2 at 288.
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C. ENACHE-BROWN & A. FRIED – AUT DEDERE AUT JUDICARE
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II. Universal Jurisdiction
Regardless of whether an act is deemed criminal within the internal/international
armed conflict debate as discussed in Part I, the ability of a state to exert jurisdiction
with respect to cases of certain identified crimes has a strong foundation in existing
international law. It is clear that the line between international and internal armed con-
flict is becoming increasingly unsustainable, therefore an act which is condemnable
under international humanitarian law as criminal should not be ignored if it occurs in
a situation of internal conflict.
States may exert jurisdiction over perpetrators of universally condemnable crimes
irrespective of the context in which they occur. When a state exerts jurisdiction over a
case involving persons or property outside that country’s territorial boundaries, how-
ever, the claim must be based on some principle of international jurisdiction.”
One such principle, the principle of universal jurisdiction, “assumes that every
state has an interest in exercising jurisdiction to combat egregious offenses that states
universally have condemned”‘3 Although the interest may be of an economic or social
nature, it may be argued that the extension of the principle of universality is a reflec-
tion of international values whose protection is of interest to all members of the world
community. Accordingly, a state prosecutes an offense because the object of legal
protection is particularly worthy of protection according to customary or treaty law,
and the injury is generally recognized as punishable.’
Although the political will of countries unaffected by the conflict to exercise ju-
risdiction is not likely to be in the same evidence,” there is modem support for the
notion that traditionally defined war crimes as well as an increasingly acknowledged
category of universal crime should also be punishable when committed in internal
armed conflicts. Until the 1990s, the international prosecutions of perpetrators of war
crimes and crimes against humanity during World War II remained the major in-
stances of criminal prosecution of offenders of the fundamental norms of international
humanitarian law. Since then, however, additional treaties which include areas such as
hijacking, hostage taking, crimes against internationally protected persons, apartheid,
torture, and genocide have been adopted, and provide for national prosecution of of-
fenses of international concern through the mechanism of universal jurisdiction. This
expansion derives from the growing world consensus condemning such crimes. Writ-
ers have compared terrorists and human rights offenders to pirates, slave traders and
” While domestic jurisdiction may rest on reconciling one state’s interest in a particular offense
with another state’s interests in the same offense, five general principles of subject-matter jurisdiction
are recognized under international law: nationality, passive, objective territorial, protective and univer-
sality. Only the principle of universality will be discussed in this Note. For a thorough summary of the
five principles see C. Sorensen, “Drug Trafficking on the High Seas: A Move Toward Universal Juris-
diction Under International Law” (1990) 4 Emory Int’l L.R. 205 at 213.
36K.C. Randall, “Universal Jurisdiction Under International Law” (1988) 66 Texas L.R. 785 at 788.
, See R. Wolfram, “The Decentralized Prosecution of International Offenses Through National
3 See generally Meron, supra note 5 at 574ff.
Courts” (1995) 24 Israel YB.H.R. 183 at 185.
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war criminals, the former having provided the historical basis for the development of
the modem notion of universal crime: “IT]heir offenses involve particularly reprehen-
sible acts that often indiscriminately endanger human lives and property interests. Ter-
rorism and human rights violations are thus the concern of the world’s legal system
rather than the sole province of individual states”‘ Although these treaties have not
been commonly followed, ‘
this is not to say that the potential for their observation
and for the continued expansion of the doctrine of universality is unlikely. On the
contrary, there is nothing static about the state of international law, as it must evolve to
meet changing political needs.”
When particular acts become a concern of the world’s legal system, and states
adopt a multilateral treaty to define a specific activity as criminal, this act of agree-
ment forwards the notion that a particular offense is generally punishable, and that the
perpetrator has become, like the pirate, hostis humani generis. This universal consen-
sus lends credence to a state’s claim that it is prosecuting an individual (or extraditing
to a country that will prosecute) on the basis of inherent jurisdiction. In this sense,
“the courts of a particular nation act in the interest of the international community or
the respective treaty membership, as instruments of the decentralized enforcement of
international law.”2
The Geneva Conventions provide a salient example of the expanded nature of
universal jurisdiction, in the sense that all signatories to the Conventions are impli-
cated in the prosecution or extradition of a perpetrator of specific international
crimes.” If a state does not wish to prosecute the alleged offender, then the Conven-
tions leave open the option of extraditing the individual to a state that will prosecute.
The agreement of signatories to the Conventions to enact the legislation necessary to
provide effective domestic jurisdiction underlines the consensus among nations with
respect to the universally condemned nature of the crimes.
“Randall, supra note 36 at 815.
,See Meron, supra note 5 at 554.
The ability of courts to recognize the evolution of international law has been most eloquently
stated by Lord Denning in Trendtex Trading Corporation v. Central Bank of Nigeria, [1977] Q.B. 529
at 554, [1980] 3 All E.R. 721 (C.A.) [hereinafter cited to Q.B.]:
It is certain that international law does change. I would use of international law the
words which Galileo used of the earth: “But it does move” International law does
change: and the courts have applied the changes without the aid of any act of Parlia-
ment. Thus, when the rules of international law were changed (by the force of public
opinion) so as to condemn the slaver, the English courts were justified in applying the
modem rules of international law.
SWolfram, supra note 37 at 186.
“”[Each [party] shall be under the obligation to search for persons alleged to have committed, or
to have ordered to be committed … grave breaches and shall bring such persons, regardless of their
nationality, before its own courts” I Geneva Convention, art. 49; 1I Geneva Convention, art. 50; III
Geneva Convention, art. 129; IV Geneva Convention, art. 146, supra note 7.
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C. ENACHE-BROWN & A. FRIED – AUT DEDERE AUTJUDICARE
623
In addition, article IH of the Convention on the Prevention and Punishment of the
Crime of Genocide” defines certain forms of repression of an ethnic or cultural
grouping as a crime under international law. The commission of particular acts “with
intent to destroy in whole or in part, a national, ethnical, racial or religious group” is a
conceptual derivative of crimes against humanity’ which may be “committed in time
of peace or in time of war'” With respect to the finding of international legal respon-
sibility for these crimes, whether a state is a signatory to the Genocide Convention is,
for the purpose of international law, irrelevant.’
There may be little debate that crimes against humanity, and the crime of geno-
cide, allow for the extension of the principle of universal jurisdiction. An excellent
example of the trend to extend the principle of universality to “war crimes” which
have occurred in a non-international context may be found in article 22 of the ILC’s
Draft Code of Crimes Against the Peace and Security of Mankind.” This article,
which is entitled “Exceptionally Serious War Crimes”, is applicable to armed conflict
of both international and internal nature, and lists serious violations of the laws and
customs applicable in armed conflict. This trend is typified by the recently enacted
Belgian War Crimes Law” which provides for the criminal jurisdiction of Belgian
” GA Res. 260(A)(III), UN GAOR, 3d Sess., Supp. No. 1021, 78 U.N.T.S. 277 (1948), GA Res.
260(11) No. 1021, 78 U.N.T.S. 277 [hereinafter Genocide Convention].
45 See Randall, supra note 36.
“Supra note 44, art. 1
41 The UN Commission of Experts which reported on the situation in Rwanda found that the prohi-
bition on genocide has achieved the status ofjus cogens and accordingly binds all members of the in-
ternational community, regardless of whether their states have ratified the Genocide Convention. See
art. 55(c) of the UN Charter, supra note 3.
,’UN GAOR, 46th Sess., Supp. No. 10, UN Doc. A/46/10 (1991), 30 I.L.M. 1584, art. 22 states:
2. [A~n exceptionally serious war crime is an exceptionally serious violation of princi-
ples and rules of international law applicable in armed conflict consisting of any of the
following acts:
(a) acts of inhumanity, cruelty or barbarity directed against the life, dignity or physical
or mental integrity of persons [in particular wilful killing, torture, mutilation, biological
experiments, taking of hostages, compelling a protected person to serve in the forces of
a hostile Power, unjustifiable delay in the repatriation of prisoners of war after the ces-
sation of active hostilities, deportation or transfer of the civilian population and collec-
tive punishment];
(b) establishment of settlers in an occupied territory and changes to the demographic
composition of an occupied territory;
(c) use of unlawful weapons;
(d) employing methods or means of warfare which are intended or may be expected to
cause widespread, long-term and severe damage to the natural environment;
(e) large-scale destruction of civilian property;
(f) wilful attacks on property of exceptional religious, historical or cultural value.
‘9 Loi relative & la ripression des infractions graves aux Conventions internationales de Genkve du
12 aoat 1949 et aux Protocoles Iet II du 8juin 1977, additionnels i ces Conventions, Moniteur Belge
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courts over certain breaches of the Geneva Conventions and Additional Protocols, ir-
respective of whether there are any other traditional principles of jurisdiction upon
which a court may establish its jurisdiction.”
The law which gives the Belgian courts universal jurisdiction over certain crimes
irrespective of whether Belgium has a traditional nexus with that crime, the crimi-
nal or the victim –
parallels the ability of the War Crimes Tribunal for Rwanda to
prosecute persons who have committed genocide and crimes against humanity.
“Crimes against humanity” (which has not been redefined since its conception in the
Nuremberg Charter” and which was established on the basis of an international con-
flagration 2) has thus been legally extended to the level of internal conflict as well.
This extension of jurisdiction is particularly significant as the crime of “crimes against
humanity” was defined by the Nuremberg Charter to include “murder, extermination,
enslavement, deportation, and other inhuman acts committed against any civilian
population, before or during the war, or persecutions on political, racial or religious
grounds.””
With respect to “newer” offenses such as hijacking, hostage-taking and torture,
the principle of universality under customary law may be extended. Each of the illicit
activities mentioned has multiple international conventions which pertain to it,’ and
which provide varying degrees of international consensus for the sanctions that should
be forthcoming. Many of the conventions governing hijacking, hostage taking, and
(5 August 1993). See E. David, “La Loi Beige Sur les Crimes de Guerre” (1995) Rev. Belge D.L. 668
for an article-by-article analysis of the Act.
Meron writes that on the basis of this law, on 29 May 1995, the Brussels prosecutor’s office issued
several international arrest warrants against persons involved in the atrocities in Rwanda. One of the
three warrants was issued against a Rwandan responsible for massacres of other Rwandans in
Rwanda. See Meron, supra note 5 at 577.
5′ Meron, ibid. at 556.
52 The Belgian development and the jurisdiction developed by the Rwandan Tribunal may find their
beginnings in post-World War II pronouncements. As early as 1949, war crimes tribunals were stating
that “murder, torture, enslavement, and similar crimes which heretofore were enjoined only by the re-
spective nations now fall within the prescription of the family of nations. Thus, murder becomes no
less murder because [it is] directed against a whole race instead of a single person:’ (United States v.
von Leeb (1949), 11 Trials of War Criminals Before the Nuremberg Military Tribunals at 497, as cited
in Meron, ibid at 567).
‘ Charter of the International Military Tribunal, 8 August 1945, 82 U.N.T.S. 280, art. 6(c).
5, With respect to hijacking, two conventions are particularly relevant: Convention for the Suppres-
sion of Unlawful Acts Against the Safety of Civil Aviation, 23 September 1971, 974 U.N.T.S. 177, 24
U.S.T. 565, T.I.A.S. No. 7570 [hereinafter the Safety of Civil Aviation Convention] and the Conven-
tion for the Suppression of Unlawfil Seizure of Aircraft, 16 December 1970, 860 U.N.T.S. 105, 22
U.S.T. 1641, T.I.A.S. No. 7192 [hereinafter Unlawful Seizure ofAircraft Convention]. In hostage tak-
ing situations, the International Convention Against the Taking of Hostages, 4 December 1979, 18
I.L.M. 1456, adopted by GA Res. 34/146, 34 UN GAOR, Supp. No. 39, UN Doc. A/C.6/34/L.23
(1979) [hereinafter Hostage Convention] is applicable. Torture is defined in the following Convention:
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
adopted by GA Res. 39/46, UN GAOR, 1985, Supp. No. 51, UN Doec. A/Res/39/46/ at 197 [herein-
after Torture Convention].
1998]
C. ENACHE-BROWN & A. FRIED – AUT DEDERE AUT JUDICARE
625
torture contain a version of the following provision which is found in the Hostage
Convention:
The State Party 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 territory, to submit the case to its com-
petent authorities for the purpose of prosecution, through proceedings in accor-
dance with the laws of that State.55
This expression of aut dedere aut judicare emphasizes the universal nature of the
crimes, entreating the international legal community to punish the offenders. Irre-
spective of where the perpetrators reside or where the crime takes place, the acts
committed are considered universally condemnable.
Once an act which falls within the category of “universal crime” is committed, ir-
respective of where the act is committed or who the victims are, the ability of all
states to exert jurisdiction logically follows. Once it has been established that univer-
sal jurisdiction has been extended, a further question must be asked: is a state that
finds within its borders a perpetrator of a universal crime mandated, by international
law, to act in order to bring about justice?
III. Universal Duty
A. The Obligation to Take Action is Fundamental
Part IL established the rationale for asserting that every state may exercise juris-
diction over individuals who have committed universal crimes. Once the ability to act
is established, the question becomes whether states are obliged to exercise that juris-
diction. In Part Im, the principle of aut dedere autjudicare will be shown to form the
basis of a general obligation within international law which applies to universally
condemnable crimes.
The UN Charter’ is a document that is “both the constitution of the United Na-
tions Organization and a constitutional substitute for the international legal system'”
It sets out “the foundational concepts of international law'”‘ Article 55(c) of the UN
Charter states that the United Nations has, as a mandate, the promotion of “the uni-
versal respect for, and observance of” human rights.” Practically, efforts of this nature
included statements on the prohibition of genocide, which have led to the categoriza-
5 Hostage Convention, ibid art. 8(1). With respect to the other acts, similar provisions may be
found in Torture Convention, ibid art. 7(1), Safety of Civil Aviation Convention, ibid. art. 7 and the
Unlawful Seizure of Aircraft Convention, ibid art. 7.
56 Supra note 3.
5′ H.M. Kindred et aL, International Law: Chiefly as Interpreted and Applied in Canada, 5th ed.
(Toronto: Emond Montgomery, 1993) at 19, para. 9.
5
8 Ibid
59 Supra note 3.
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tion of that crime as ajus cogens norm under international law.’ Article 56 indicates
that “[a]ll Members pledge themselves to take joint and separate action in co-
operation with the Organization for the achievement of the purposes set forth in Art.
55* “” By applying these two articles, a foundational concept of international law may
be derived: states are required to act in a certain manner when confronted with viola-
tions of human rights norms.
The promotion of human rights not only requires the existence of substantive
norms, i.e., prohibitions, but of procedural norms as well. Without mechanisms for
implementation, prohibitions become empty vessels. Implementation mechanisms are
necessary corollaries of prohibitions. For the effective treatment of universal crimes, a
duty must be found that requires states to take some form of action against the perpe-
trators of the offenses envisaged in article 55(c). Without the recognition of such an
obligation, the perpetrators of heinous crimes are effectively acquitted. Such inaction
promulgates the impression that others will have no consequences to face if they act
in similar ways. Therefore, in the context of crimes which are condemnable at an in-
ternational level, there must be a duty of non-asylum incumbent on the host state.”
The notion of non-asylum flows naturally from article 56 of the UN Charter and in-
cludes deportation, extradition, exclusion, prosecution, and any other method of re-
moving an individual from a host state’s territory. Non-asylum is a comprehensive
duty of aut dedere autjudicare.
The components of the obligation of aut dedere aut judicare may be viewed as
disjunctive, that is, a state has the option either to extradite or prosecute an alleged
criminal. In this way, a host state can prosecute the individual without examining the
possibility of extradition. Even in the cases in which no extradition treaty has been
signed between the host state and the state requesting the return of the alleged of-
fender, an obligation on the part of the host state to take action is present. If extradi-
tion is not a viable option, then the second element of aut dedere autjudicdre imposes
an obligation on the host state to begin criminal proceedings against the alleged per-
petrator of the universal crime.
60 See supra note 44.
,1 UN Charter, supra note 3.
62While the principle of aut dedere autjudicare may be read strictly as “extradite or prosecute”, for
the purposes of this Note, it may also be regarded as a duty of non-asylum. The term “non-asylum” is
attributable to Professor Y. Dinstein, president of Tel-Aviv University (Interview with Prof. Yoram
Dinstein, 29 July 1996, Tel-Aviv, Israel). The authors have expanded on its definition and scope of
application.
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C. ENACHE-BROWN & A. FRIED – AUT DEDERE AuT JUDICARE
627
1. Custom as Derived from Convention
a. Traditional Paradigm
Any discussion which invokes international law must involve an analysis of rele-
vant customary law, since it is considered to be a formal source thereof. Tradition-
ally, customary norms can only be established if two factors are met. First, there must
be a general practice among states as evidenced by state action, and second, this con-
duct must result from the belief by the state that it is required to act in a manner pre-
scribed by international law – opiniojuris. In keeping with this view, in order to as-
sert that the principle of aut dedere autjudicare is a customary norm when dealing
with heinous crimes, examples must be given of what was done with perpetrators of
other similar incidents by both state parties to the governing treaties, as well as non-
state parties.
Although state practice has been strictly characterized as being composed of the
conduct of states without regard to their public pronouncements, a better view seems
to be that “state practice consists not only of what states do, but also of what they
say.”” States “in conjunction with a significant number of legal scholars (and arguably
the International Court of Justice), [have] asserted that these resolutions and declara-
tions [of international organizations, particularly those of the U.N.] are important in-
stances of state practice which create, or at least indicate, rules of customary intema-
‘ Art. 38(1)(b) of the Statute of the International Court of Justice, 59 Stat. 1055, online: Interna-
tional Court of Justice
ute of the ICJ] reads as follows: “The Court, whose function is to decide in accordance with interna-
tional law such disputes as are submitted to it, shall apply: … (b) international custom, as evidence of
a general practice accepted as law” The expression aut dedere autjudicare is found in numerous con-
ventions which deal with issues of international concern. Although there are nuances to the obligation
found in the various treaties, the essence of the obligation is found in each, that is to say, that the
components of mandatory extradition or prosecution are present. For an extensive list see R. Jennings
& A. Watts, eds., Oppenheim’s International Law, vol. 1, pt. 2, 9th ed. (London: Longman, 1992) at
953-54; Bassiouni and Wise add to this list the Organization of American States Convention to Pre-
vent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extor-
tion that are of International Significance, 2 February 1971, 10 I.L.M. 255, 27 U.S.T. 3949, the Inter-
national Atomic Energy Agency Convention on the Physical Protection of Nuclear Material, 3 March
1980, 18 I.L.M. 1419, and the Genocide Convention, supra note 44. See M.C. Bassiouni & E.M.
Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (Dordrecht:
Martinus Nijhoff, 1995) at 121-23 and 3, n. 1 [hereinafter Aut Dedere Aut Judicare]. In E.M. Wise,
“The Obligation to Extradite or Prosecute” (1993) 27 Isr. L. Rev. 268 at 270 it is noted that “the only
post-Hague treaty defining an ‘international offense’ that does not include an obligation to extradite or
prosecute is the Apartheid Convention of 1973″ (International Convention on the Suppression and
Punishnent of the Crime ofApartheid, 30 November 1973, GA Res. 28/3068 (XXVIII), UN GAOR,
28th Sess., Supp. No. 30, UN Doe. A/Res/3068 (1973), 1015 U.N.T.S. 243, 13 I.L.M. 50).
” M. Akehurst, A Modem Introduction to International Law, 6th ed. (London: Routledge, 1992) at
29. See also R.R. Baxter, “Multilateral Treaties as Evidence of Customary International Law” (1968)
66 Brit. YB. Int’l L. 275 at 300.
628
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tional law “” There is strong support for the notion that state practice can come in the
form of both state action or state assertions, the latter emerging primarily in the form
of written documents.
There are principally three theories on the role state assertions have in the creation
of international law. First, both state action and public assertion in and of themselves
can be equally considered instances of state practice. Second, statements made by
states indicate customary norms, but cannot be considered by themselves as state
practice. Third, state declarations constitute instances of state practice, carrying less
weight, however, than the traditional forms of state behaviour in establishing custom-
ary norms.” For the purposes of this Note, it is the first position that will be applied
within the context of the development of international human rights and humanitarian
law.’
In the Nicaragua Case, the International Court of Justice stated that in order for
statements made by states to attain customary norm status there must be evidence of
action.” Although the Court declared that opiniojuris must be confirmed by state ac-
tion, ‘ it also found opinio juris in verbal statements.”0 If, on the one hand, the Court
stated that opiniojuris must be confirmed by state action, and then on the other, found
that opinio juris may emerge simply from statements made by states, it appears that
what the Court is supporting is the proposition that what a state says is equivalent to
what a state does with respect to the determination of the content of state practice.
In the context of humanitarian treaties, state action and opiniojuris have been es-
sentially ignored.” In addition, the International Court of Justice “while supporting the
concept of opinio juris in principle, has repeatedly ignored it in practice.”‘ The con-
text of both human rights and humanitarian law challenges traditional assumptions
with respect to the creation of customary law. It is antithetical to the foundational ob-
jectives of international humanitarian and human rights law to wait for a significant
number of atrocities to occur before customary rules may be established.” It is likely
due to the pressing need to address grave violations of human rights and humanitarian
law that the International Court of Justice has diminished the exclusive importance of
” M. Byers, “Custom, Power, and the Power of Rules: Customary International Law from an Inter-
disciplinary Perspective” (1995) 17 Mich. J. Int’l L. 109 at 118.
‘ See ibid.
‘ 7Nevertheless, the above propositions will be reached whether or not the first or third positions are
applied.
See Nicaragua Case, supra note 21 at 98.
“See ibid.
‘0 See T. Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford: Clarendon,
1989) at 41-43 [hereinafter Humanitarian Norms]. See also G.M. Danilenko, Law-Making in the In-
ternational Community (Dordrecht: Martinus Nijhoff, 1993) at 92-94.
71 See Humanitarian Norms, ibid. Although Meron indicates that opinio juris has been repeatedly
ignored in practice, its relevance will not be dismissed in this Note.
72Byers, supra note 65 at 140. See also Danilenko, supra note 70 at 93-94.
73As would be required applying a traditional view of how customary norms are established.
1998]
C. ENACHE-BROWN & A. FRIED – AUT DEDERE AUTJUDICARE
629
state action and opinio juris in the creation of customary law, and found evidence of
custom in the public statements of states.
At its most basic, opiniojuris means that state practice is motivated by a sense of
obligation. Regarding state action, it may be said that the conduct is motivated by a
sense of legal obligation. Opinio juris can be informed by “compelling principles of
humanity'” However, when examining state pronouncements, it may be argued that a
statement made by a state is not made because it feels that it has the legal duty to do
so, but rather, the state makes the statement because it believes that a particular propo-
sition needs to be articulated.
Given the foregoing, it is reasonable to assert that if a state has signed and ratified
a significant number of treaties containing the aut dedere autjudicare formula,75 then
that state has demonstrated through this practice that aut dedere autjudicare is a cus-
tomary norm. The state, through the act of signing related international agreements,
articulates the belief that aut dedere autjudicare is an accepted norm and that it is the
most effective way of preventing certain forms of conduct. This belief satisfies the re-
quirement of opiniojuris when establishing customary norms. If a state accedes to a
large number of international treaties, all of which have a variation of the aut dedere
autjudicare principle, there is strong evidence that it intends to be bound by this gen-
eralizable provision, and that such practice should lead to the entrenchment of this
principle in customary law. By agreeing to the formula of aut dedere autjudicare in
multiple treaties that are concerned with international offenses, a state has indicated
that with respect to international offenses it believes that the best way to ensure com-
pliance is to impose such an obligation.
b. Non-Traditional Analysis
While aut dedere aut judicare may be found in a careful analysis of what has
been considered the “traditional process” of formation of customary law, an additional
persuasive hypothesis exists that has moved away from this approach.
Advocates of this hypothesis focus on the global objectives of a particular treaty.
The idea behind the concept of global treaties is similar to the notion of international
offenses in that there are certain problems that require universally binding norms in
order to address them effectively. Accordingly, there needs to be a way to bind all
states to certain treaty norms without having to undergo the traditional process of ob-
serving state practice through action or repeated pronouncement.
It is argued that … objective community interests and the will of the interna-
tional community should prevail over the interests and will of individual states.
As a result, there is a legal duty to act in accordance with at least the basic
norms established by global treaties. 6
7’Hwnanitarian Nonns, supra note 70 at 53.
7′ See Aut Dedere AutJudicare, supra note 63.
76Danilenko, supra note 70 at 66-67.
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Proponents of this approach suggest that custom may arise through the creation of
global treaties,’ i.e. treaties that a significant number of members of the international
community have ratified. The legitimacy of the universal application of the principles
contained within these treaties is supportable when dealing with treaties of a humani-
tarian character.” Baxter maintains that “the adhesion of the great majority of the im-
portant states of the world to such an agreement may act in such a way as to impose
the standards of the treaty on non-parties.””
It is not sufficient for prohibitions found in treaties to be considered basic norms,
as to do so would defeat the underlying universally binding rationale of global trea-
ties. To have any real impact, the duty of members of the international community
cannot end with the mere identification of problematic areas, but must extend to the
exercise of action to address the violations of those prohibitions. Mechanisms to deal
with universal crimes must also constitute basic norms. If aut dedere autjudicare is
the most effective way of dealing with perpetrators of universal crimes, it ought to be
regarded as a legal norm established by treaties, even though it is not established by
one treaty, but by a group of treaties.”
Although it may be argued that the traditional law-making process will be contra-
vened, and that what constitutes a global interest will be shrouded by political inter-
ests and subjectivity, the interest of punishing perpetrators of universal crimes is an
overarching interest each state has.”
In such a convention the contracting States do not have any interests of their
own; they merely have, one and all, a common interest, namely, the accom-
plishment of those high purposes which are the raison d’9tre of the convention.
Consequently, in a convention of this type one cannot speak of individual ad-
vantages or disadvantages to States.”2
Although the will of the international community for a host state to act may be rooted
in political goals relating to international relations, and not from a sense of an interna-
tional community, a state’s motivation with respect to the implementation of at ded-
Ibid at 64-68.
See Baxter, supra note 63 at 286. Baxter’s discussion is in the context of prohibitions, however,
the idea behind “global treaties” calls for more than prohibitions to emerge as customary norms. It
demands that the problems be addressed not merely pronounced. See also Akehurst, supra note 64 at
29.
79Baxter, ibid at 299. Although the widespread application of specific conventions may vary, the
number of signatories and quality of reservations provide strong evidence of customary law. For ex-
ample, the hijacking conventions which are widely accepted may have generated customary rules ap-
plicable to non-parties, whereas the Torture Convention (see supra note 54 and accompanying text)
which is less well accepted and has been in existence for less than two decades is less likely to create
customary law.
‘ At the very least, it is apposite to maintain that the mechanism section of the Genocide Conven-
tion, supra note 44, should be considered as binding on all states as it is a “global treaty”.
I In particular, the crime of genocide involves “a denial of the right of existence of entire human
groups, a denial which shocks the conscience of [hu]mankind” (Reservations to the Convention on
Genocide, Advisory Opinion, [1951] I.C.J. Rep. 15 at 23 [hereinafter Genocide Case]).
, 2Ibid. at 23.
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C. ENACHE-BROWN & A. FRIED – AUT DEDERE AUT JUDICARE
631
ere aut judicare is irrelevant. Each state must equally take steps to prevent interna-
tionally condemnable crimes from going unpunished as the principle of aut dedere
aut judicare may be found to be a customary norm of international law using both
traditional and non-traditional analysis.
C. Aut Dedere Aut Judicare as a General Principle of International
Law
Aut dedere autjudicare may also be found to be a general norm in international
law.3 The meaning of article 38(l)(c) of the Statute of the ICJ” has been the subject of
much debate between legal theorists. Naturalists contend that “general principles of
international law” as a source of international law, encompass mores that are intrinsic
to the promotion of peace and to the well-being of humankind.” Positivists argue that
such prescripts envisage principles of law that are accepted in domestic legal systems.”
Applying the first view, the goal of international law is to advance international
peace and security within a framework of principles of justice.” The recognition that a
small number of values and principles are common to every state, however, is not
novel in the field of international law. From such values flow notions such as universal
jurisdiction, erga omnes and jus cogens. In addition, the idea that legal prohibitions
must be enforceable is a further logical extension of these values, as without enforce-
ment mechanisms, grand statements of principle are rendered effectively useless. The
principled adoption of aut dedere aut judicare ensures the promotion of peace and
well-being of humankind, thus becoming a general principle of international law.
Applying the latter view regarding the meaning of article 38(1)(c), legal prohibi-
tions must be coupled with enforcement mechanisms in any criminal law regime, in-
cluding the international criminal law system. A regime which fails to impose even
potential consequences on violators of prohibitions is lacking a prerequisite compo-
nent of a valid legal system.” If the principle of aut dedere autjudicare is not consid-
83 Kindred, supra note 56 at 78, para. 6, cautions significantly that the sources of international law
set out in article 38(1) of the Statute of the ICJ, supra note 63, are all of equal authority. Article
38(l)(c) reads as follows: “. The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply: … (c) the general principles of law recognized by
civilized nations” Danilenko, supra note 65 at 181-82, states that article 38(1)(c) is infrequently used
on its own to establish international norms, however, the authors of this Note contend that there is no
persuasive reason why it could not be used in such a manner.
“Supra note 62.
8 3Danilenko, supra note 69 at 175-76.
“Ibid. at 176.
‘,Wording borrowed from the UN Charter, supra note 3, art. 1, para. 1.
“This idea is not grounded in the realm of legal principles, but rather legislative principles. Both
categories of principles are included in art. 38(I)(c) of the Statute of the ICJ, supra note 63. Legisla-
tive principles underlie a legal system or, more precisely, a criminal law regime. The Positivist view is
focused on principles of law which arise after a legal system is in place. An examination of legal prin-
ciples presupposes sound legislative principles. For example, before examining if the rule which
militates against multiple convictions for the same crime (nemo debet bis puniri pro uno delicto) is a
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ered a norm in international law, what results is the unlikelihood of punishment of a
perpetrator of a universally condemnable crime where the host state is not a party to a
treaty which contains an obligation to take action. The obligation to take action is a
condition precedent for any criminal legal system’s validity, particularly in respect of
the validity of a given prohibition.”
It is clear that the obligation of aut dedere autjudicare is fundamentally rooted in
the UN Charter. It can be considered a norm in international law by virtue of 38(l)(c)
of the Statute of the International Court of Justice, as well as through traditional and
non-traditional processes of the formation of customary international law.
Conclusion
Historically, the principles of sovereignty, equality and political independence of
states have imposed a duty to refrain from intervention in the internal affairs of other
states. According to these first principles, no intervention is permitted in matters
which each state has a sovereign right to decide freely, i.e., no state may interfere in
areas which fall within another state’s domestic jurisdiction. This non-interventionist
approach has meant practically that unless a conflict took on international dimensions
which threatened to infringe on the domestic jurisdiction of other states, all other
states would refrain from taking action, even in the face of gross human rights viola-
tions. This total “hands-off’ approach is being viewed increasingly by the interna-
tional community as unacceptable. Recently, within the structure of the United Na-
tions, the Security Council has expanded new grounds for international jurisdiction
based on humanitarian law. The corollary of this jurisdictional widening is a decline
in absolute domestic jurisdiction.”
Although a persistent concern is that the prosecution of criminals by states that
have little or no connection with the prosecuting country limits the principle of equal-
ity of sovereign states, if a diminished scope of exclusive sovereignty is accepted, a
strong justification can be forwarded to establish that grave violations of human rights
(such as kidnapping and murder) are no longer exclusively the internal affairs of indi-
vidual states.9′ The objective of international laws relating to the protection of funda-
mental human rights cannot be met “if international law impedes the penalization of
such crimes because of the notion of equality of sovereign states:'”
valid legal principle, a working system needs to be established that allows for the opportunity to
prosecute someone.
‘9 The potential for punishment must be kept conceptually distinct from the actual occurrence or
implementation of punishment mechanisms. Although there may be infrequent occurrences of en-
forcement, the possibility for such exists. It is both the potential for enforcement and the presence of
such enforcement mechanisms that validate a legal regime.
” Ruth Gordon notes, however, that domestic jurisdiction is a malleable concept, based on the cur-
rent state of international relations. See R. Gordon, “United Nations Intervention in Internal Conflicts:
Iraq, Somalia, and Beyond” (1994) 15 Mich. J. Int’l. L. 519 at 524.
9’ See Wolfram, supra note 37 at 197.
92Ibid.
1998]
C. ENACHE-BROWN & A. FRIED – AUT DEDERE AUT JUDICARE
633
The universal duty represented by the principle aut dedere autjudicare does not
present any considerable threat to state sovereignty because there is no hierarchy be-
tween the inherent options to either extradite or prosecute the individual. Aut dedere
autjudicare only minimally forces the will of the international community on an in-
dividual state. The host state is merely obligated to act in a certain way. Within a
situation of internal conflict, where crimes are committed which admit of universal ju-
risdiction, if a state’s extradition legislation does not provide for the exercise of this
option, then the state must prosecute the perpetrator.
The distinction between international and internal conflict in the context of hu-
man rights and humanitarian law is not only theoretically unsupportable but is also in-
creasingly subject to challenge. As such, the obligation of aut dedere aut judicare
must be viewed not only as a norm in international law but also as a fundamental ele-
ment in all conflicts from which emerge universal crimes and universal jurisdiction.
The customary law-making process, the UN Charter, compelling principles, and ele-
mentary considerations of humanity all establish the obligation of aut dedere autjudi-
care as a general precept within international law, which can and must be effectively
applied within both international and internal contexts of armed conflict.
