Terrorist Crimes and the Aut Dedere Aut Judicare Obligation
Michael A. Newton
Vanderbilt University - Law School
August 9, 2013
Counter-Terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges, p. 68, Larissa van den Herik & Nico Schrijver, eds., Cambridge University Press, 2013
Vanderbilt Public Law Research Paper No. 13-32
Extradition battles are fought at the confluence of competing legal domains, conflicting human rights obligations, and politically charged contexts.
Because terrorist acts undermine the quintessential function of a state by endangering the core human rights of her citizens, the correlative legal duty either to surrender a suspect to another state with the jurisdiction and willingness to prosecute or to adjudicate the case in its own national courts (termed aut dedere aut judicare) encompasses a grave responsibility even as it exemplifies the solemn duty to join in common purpose to combat terrorism. As a qualitative matter of modern international law, terrorist offenses are on substantive par with the grave breach provisions of the 1949 Geneva Conventions, the 1948 Genocide Convention, and the provisions of the Torture Convention precisely because of the aut dedere aut judicare obligation. The lofty status of these categories of criminality as the core jus cogens violations proscribed by the express language of almost universally binding international treaty obligations makes aut dedere aut judicare really nothing more than a common sense obligation rooted in community morality that morphed into international obligation. Terrorist attacks endanger the whole range of human rights otherwise enjoyed by the victims of such attacks. The aut dedere aut judicare obligation as applied to terrorist cases thus reflects an entirely logical extension of the paramount state obligation to protect the basic human rights of all persons within their scope of lawful authority. Hence, the duty to prosecute terrorist crimes in some sense represents an extension of state authority to protect the human rights of its own citizens, as well as those from other states. This chapter examines the scope of the present obligation to cooperate in the investigation and prosecution of terrorist acts. The integrated aspect of the cooperative framework must be fully appreciated and consistently applied by states. The inherent obstacles of these complex and often emotionally and politically charged cases often prevent a uniform realization of the textual aspiration for a holistic response to terrorist acts relying on the aut dedere aut judicare obligation. This chapter concludes by making three specific recommendations that would constitute progressive developments in the framework of international law to help ensure efficient judicial responses to acts of terror.
Number of Pages in PDF File: 26
Keywords: extradition, terrorism, prosecute, jus cogens, mutual legal assistance, treatyAccepted Paper Series
Date posted: August 11, 2013
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