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Last update: July 15, 2015

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 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 Mr. Zdzislaw Galicki as Special Rapporteur for the topic.2

At its fifty-eighth session, in 2006, the Commission considered the preliminary report of the Special Rapporteur.3

The General Assembly, in resolution 61/34 of 4 December 2006, invited Governments to provide to the International Law 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 Rapporetur,4 containing one draft article on the scope of application as well as a proposed plan for further development.5 The Commission also had before it comments and information received from Governments.6

At the sixtieth session, in 2008, the Commission had before it the third report of the Special Rapporteur,7 as well as comments and information received from Governments.8 The third report of the Special Rapporteur 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 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, the relation to universal jurisdiction and international courts, as well as procedural aspects to be dealt with in the future.9 The Commission further decided to establish a Working Group on the topic under the Chairship of Mr. Alain Pellet.10

At the sixty-first session, in 2009, the Commission had before it comments and information received from Governments.11 The Commission re-established an open-ended Working Group on this topic under the Chairship of Mr. Alain Pellet. The Commission 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, relationship between the obligation to extradite or prosecute and other principles, 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.12

At its sixty-second session in 2010, the Commission reconstituted the Working Group on the obligation to extradite or prosecute (aut dedere aut judicare), which, in the absence of its Chair, was chaired by Mr. Enrique Candioti. 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.13 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,14 together with the general framework prepared by the Working Group in 2009.15 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)",16 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 2009.17 The Commission took note of the oral report presented by the temporary Chair of the Working Group.18

At the sixty-third session in 2011, the Commission had before it the fourth report of the Special Rapporteur,19 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.

At the sixty-fourth session in 2012, the Commission decided to establish an open-ended Working Group on the obligation to extradite or prosecute (aut dedere aut judicare) under the Chairship of Mr. Kriangsak Kittichaisaree. The Working Group was 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.

At the sixty-fifth session in 2013, the Commission reconstituted the open-ended Working Group on the obligation to extradite or prosecute (aut dedere aut judicare) under the Chairship of Mr. Kriangsak Kittichaisaree. The Working Group continued to evaluate work on this topic, particularly in the light of the judgment of the International Court of Justice in the Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) case, of 20 July 2012.20

At the sixty-sixth session in 2014, the Commission reconstituted the open-ended Working Group on the obligation to extradite or prosecute (aut dedere aut judicare) under the Chairship of Mr. Kriangsak Kittichaisaree. The Working Group continued to evaluate work on this topic, particularly in the light ofcomments made in the Sixth Committee at the sixty-eighth session of the General Assembly on the 2013 report of the Working Group. The Working Group considered several options for the Commission in deciding how to proceed with its remaining work on the topic. The Working Group deemed it appropriate that the Commission expedite its work on the topic and produce an outcome that was of practical value to the international community. The 2013 report constituted the basis of the final report of the Working Group. 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. The Commission took note of report of the Working Group, which, inter alia , contained the recommendation that the Commission: (a) adopt the 2013 and 2014 reports, which provide useful guidance for States; and (b) conclude its consideration of the topic “Obligation to extradite or prosecute (aut dedere aut judicare)”. The Commission subsequently adopted the final report on the topic, “Obligation to extradite or prosecute (aut dedere aut judicare)” and decided to conclude its consideration of the topic.

The work of the Commission on the topic as described above proceeded in accordance with the successive resolutions adopted by the General Assembly under the item relating to the report of the International Law Commission.21

1 See Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 10 (A/59/10), para. 362. For the syllabus on the topic, see ibid., annex.

2 See Official Records of the General Assembly, Sixtieth Session, Supplement No. 10 (A/60/10), para. 500.

3 Document A/CN.4/571. (see Analytical Guide) See Official Records of the General Assembly, Sixty-fiirst Session, Supplement No. 10 (A/61/10), paras. 215–232.

4 Document A/CN.4/585 and Corr.1. (see Analytical Guide)

5 See Official Records of the General Assembly, Sixty-second Session, Supplement No. 10 (A/62/10), paras. 348–368.

6 Document A/CN.4/579 and Add.1–4. (see Analytical Guide)

7 Document A/CN.4/603. (see Analytical Guide)

8 Document A/CN.4/599. (see Analytical Guide)

9 See Official Records of the General Assembly, Sixty-third Session, Supplement No. 10 (A/63/10), paras. 316–332.

10 See Official Records of the General Assembly, Sixty-third Session, Supplement No. 10 (A/63/10), para. 315.

11 Document A/CN.4/612. (see Analytical Guide)

12 See Official Records of the General Assembly, Sixty-fourth Session, Supplement No. 10 (A/64/10), paras. 200–204.

13 See Official Records of the General Assembly, Sixty-fifth Session, Supplement No. 10 (A/65/10), paras. 337–340..

14 Document A/CN.4/630. (see Analytical Guide)

15 See Official Records of the General Assembly, Sixty-fourth Session, Supplement No. 10 (A/64/10), para. 204.

16 Document A/CN.4/L.774. (see Analytical Guide)

17 See Official Records of the General Assembly, Sixty-fifth Session, Supplement No. 10 (A/65/10), para. 340.

18 Ibid., para. 336.

19 Document A/CN.4/648. (see Analytical Guide)

20 For the report of the Working Group, see Official Records of the General Assembly, Sixty-eighth Session, Supplement No. 10 (A/68/10), annex A.

21 General Assembly resolutions 60/22 of 23 November 2005; 61/34 of 4 December 2006; 62/66 of 6 December 2007; 66/98 of 9 December 2011; 67/92 of 14 December 2012; and 68/112 of 16 December 2013.