Wither Aut Dedere? The Obligation to Extradite or Prosecute after the ICJ's Judgment in Belgium v Senegal
University of Amsterdam - Amsterdam Center for International Law
September 10, 2013
Journal of International Dispute Settlement (2013) (Forthcoming)
Amsterdam Law School Research Paper No. 2013-47
Amsterdam Center for International Law No. 2013-16
In this article I explore a narrow question that was raised, but not fully addressed, in the Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) case: does a state that has custody over a person who is suspected of the crime of torture, but that is unwilling or unable to prosecute that person itself, have an obligation to extradite that person to a state that seeks extradition, and that is able and willing to prosecute the suspect? The International Court of Justice (ICJ or Court) answered the question in the negative. The Court’s judgment exposes the fundamentally weak legal position of states that may have the strongest links with a suspect, and that may be best capable of prosecuting that person. The emergence of an absolutist obligation to prosecute of the custodial state has annihilated competing claims, whether or not these are based on a stronger link or better enforcement capabilities. Paradoxically, the result may be that a suspect may not be prosecuted at all.
Number of Pages in PDF File: 23
Keywords: international law, international criminal law, extradition, shared responsibility, international cooperation
JEL Classification: K33, K14
Date posted: September 11, 2013 ; Last revised: January 7, 2014
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