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Last update: November 6, 2023

Summaries of the Work of the International Law Commission

Obligation to extradite or prosecute (aut dedere aut judicare)

See also: Analytical Guide | Texts and Instruments

At its fifty-sixth session, in 2004, the Commission, on the basis of the recommendation of a Working Group on the long-term programme of work, identified the topic “Obligation to extradite or prosecute (aut dedere aut judicare)” for inclusion in its long-term programme of work.1 A brief syllabus describing the overall structure of, and approach to, the topic was annexed to that year’s report of the Commission.2

The General Assembly, in resolution 59/41 of 2 December 2004, took note of the Commission’s report concerning its long-term programme of work.

At its fifty-seventh session, in 2005, the Commission decided to include the topic in its programme of work and to appoint Zdzislaw Galicki as Special Rapporteur for the topic.3

At its fifty-eighth session, in 2006, the Commission considered the preliminary report of the Special Rapporteur,4 dealing with universality of suppression and universality of jurisdiction, universal jurisdiction and the obligation to extradite or prosecute, the sources of the obligation to extradite or prosecute, and the scope of the obligation to extradite or prosecute.

The General Assembly, in resolution 61/34 of 4 December 2006, invited Governments to provide to the Commission information on legislation and practice regarding the topic.

At its fifty-ninth session, in 2007, the Commission considered the second report of the Special Rapporteur,5 containing one draft article on the scope of application of the draft articles as well as a proposed plan for further development.6 At that session, the Commission also had before it comments and information received from Governments in relation to this topic.7

The General Assembly, in resolution 62/66 of 6 December 2007, invited once again Governments to provide to the Commission information on practice regarding this topic.

At the sixtieth session, in 2008, the Commission had before it the third report of the Special Rapporteur,8 as well as comments and information received from Governments.9 The third report was aimed at continuing the process of formulation of questions addressed both to States and to members of the Commission on the most essential aspects of the topic. The questions were intended to enable the Special Rapporteur to draw final conclusions regarding the main issue of whether the obligation aut dedere aut judicare existed as a matter of customary international law. The Commission held a debate on the basis of the Special Rapporteur’s third report which covered, inter alia, substantive questions related to the customary nature of the obligation, its relation to universal jurisdiction and to the surrender of individuals to international courts, as well as procedural aspects to be dealt with in the future.10 The Commission further decided to establish a Working Group on the topic, chaired by Alain Pellet.11

At the sixty-first session, in 2009, the Commission had before it comments and information received from Governments.12 The Commission re-established an open-ended Working Group on this topic, chaired by Mr. Pellet, and subsequently took note of the oral report presented by the Chair of the Working Group. The Working Group proposed the following general framework for the Commission’s consideration of the topic: the legal bases of the obligation to extradite or prosecute; the material scope of the obligation to extradite or prosecute; the content of the obligation to extradite or prosecute; the relationship between the obligation to extradite or prosecute and other principles; the conditions for the triggering of the obligation to extradite or prosecute; the implementation of the obligation to extradite or prosecute; and the relationship between the obligation to extradite or prosecute and the surrender of the alleged offender to a competent international criminal tribunal.13

At its sixty-second session, in 2010, the Commission reconstituted the Working Group on the obligation to extradite or prosecute (aut dedere aut judicare). The Working Group continued its discussions with the aim of specifying the issues to be addressed to further facilitate the work of the Special Rapporteur.14 It had before it a Survey of multilateral conventions which may be of relevance for the Commission’s work on the topic, prepared by the Secretariat,15 together with the general framework prepared by the Working Group in 2009.16 The Working Group also had before it a working paper prepared by the Special Rapporteur, entitled “Bases for discussion in the Working Group on the topic ‘The obligation to extradite or prosecute (aut dedere aut judicare)’”,17 containing observations and suggestions, based on the general framework prepared in 2009, and further drawing upon the Survey by the Secretariat. The Working Group reaffirmed, taking into account the practice of the Commission in the progressive development of international law and its codification, that the general orientation of future reports of the Special Rapporteur should be towards presenting draft articles for consideration by the Commission, based on the general framework agreed in 2009.18 The Commission took note of the oral report presented by the temporary Chair of the Working Group.19

In resolution 65/26 of 6 December 2010, the General Assembly invited the Commission to give priority, inter alia, to its consideration of this topic.

At the sixty-third session, in 2011, the Commission considered the fourth report of the Special Rapporteur,20 addressing the question of sources of the obligation to extradite or prosecute, focusing on treaties and custom, and concerning which three draft articles were proposed.21

In resolution 66/98 of 9 December 2011, the General Assembly invited the Commission to continue to give priority to, and work towards the conclusion of, inter alia, this topic.

At the sixty-fourth session, in 2012, the Commission established an open-ended Working Group on the obligation to extradite or prosecute (aut dedere aut judicare), chaired by Kriangsak Kittichaisaree, to evaluate progress of work on the topic in the Commission and to explore possible future options for the Commission to take. No Special Rapporteur was appointed in place of Mr. Galicki, who was no longer a member of the Commission.22

At the sixty-fifth to sixty-sixth sessions, in 2013 and 2014, the Commission reconstituted the open-ended Working Group on the obligation to extradite or prosecute (aut dedere aut judicare) which continued to evaluate work on this topic.23

The Working Group considered several options for the Commission in deciding how to proceed with its remaining work on the topic. The 2013 report constituted the basis of the Working Group’s final report. The Working Group also discussed the issues that were partially or not covered by its 2013 report but were subsequently raised in the Sixth Committee during the sixty-eighth session of the General Assembly, namely: gaps in the existing conventional regime; the transfer of a suspect to an international or special court or tribunal as a potential third alternative to extradition or prosecution; the relationship between the obligation to extradite or prosecute and erga omnes obligations or jus cogens norms; the customary international law status of the obligation to extradite or prosecute; and other matters of continued relevance in the 2009 general framework.

The Working Group’s consideration of the above issues exhausted all the issues remaining to be analysed in relation to the topic. At the sixty-sixth session, in 2014, the Commission took note of report of the Working Group, and subsequently adopted it as its final report on the topic, and decided to conclude its consideration of the topic.24

By resolution 69/118 of 10 December 2014, the General Assembly expressed its appreciation to the Commission for completing the work on the topic, took note of the final report of the Commission on the topic, and encouraged its widest possible dissemination.

1 See Yearbook … 2004, vol. II (Part Two), paras. 362 and 363.

2 See ibid., annex.

3 See Yearbook … 2005, vol. II (Part Two), para. 500.

4 See Yearbook … 2006, vol. II (Part One), document A/CN.4/571. See also Yearbook … 2006, vol. II (Part Two), paras. 215–232.

5 See Yearbook … 2007, vol. II (Part One), document A/CN.4/585.

6 See Yearbook … 2007, vol. II (Part Two), paras. 348–368.

7 See Yearbook … 2007, vol. II (Part One), document A/CN.4/579 and Add.1 to 4.

8 See Yearbook … 2008, vol. II (Part One), document A/CN.4/603.

9 See ibid., document A/CN.4/599.

10 See Yearbook … 2008, vol. II (Part Two), paras. 316–332.

11 See ibid., para. 315.

12 See Yearbook … 2009, vol. II (Part One), document A/CN.4/612.

13 See Yearbook … 2009, vol. II (Part Two), paras. 200–204.

14 See Yearbook … 2010, vol. II (Part Two), paras. 337–340.

15 See Yearbook … 2010, vol. II (Part One), document A/CN.4/630.

16 See Yearbook … 2009, vol. II (Part Two), para. 204.

17 See Yearbook … 2010, vol. II (Part One), document A/CN.4/L.774.

18 See Yearbook … 2010, vol. II (Part Two), para. 340.

19 See ibid., para. 336.

20 See Yearbook … 2011, vol. II (Part One), document A/CN.4/648.

21 See Yearbook … 2011, vol. II (Part Two), paras. 293–332.

22 See Yearbook … 2012, vol. II (Part Two), paras. 208–221.

23 See Yearbook … 2013, vol. II (Part Two), para. 149 and annex I; and Yearbook … 2014, vol. II (Part Two), para. 61.

24 See Yearbook … 2014, vol. II (Part Two), paras. 61–65.