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Wither Aut Dedere? The Obligation to Extradite or Prosecute after the ICJ's Judgment in Belgium v Senegal

Journal of International Dispute Settlement (2013) (Forthcoming)

Amsterdam Law School Research Paper No. 2013-47

Amsterdam Center for International Law No. 2013-16

23 Pages Posted: 11 Sep 2013 Last revised: 7 Jan 2014

Andre Nollkaemper

University of Amsterdam - Amsterdam Center for International Law

Date Written: September 10, 2013

Abstract

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.

Keywords: international law, international criminal law, extradition, shared responsibility, international cooperation

JEL Classification: K33, K14

Suggested Citation

Nollkaemper, Andre, Wither Aut Dedere? The Obligation to Extradite or Prosecute after the ICJ's Judgment in Belgium v Senegal (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. Available at SSRN: https://ssrn.com/abstract=2323467 or http://dx.doi.org/10.2139/ssrn.2323467

Andre Nollkaemper (Contact Author)

University of Amsterdam - Amsterdam Center for International Law ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

HOME PAGE: http://home.medewerker.uva.nl/p.a.nollkaemper/

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