Christopher Soler’s research while affiliated with University of Malta and other places

If and when a State is faced with an international obligation to extradite an individual, but simultaneously it is constitutionally precluded from extraditing the individual owing to human rights concerns or constitutionally-entrenched provisions, what should the State do? A solution can be provided by a State’s ordinary legislation or by the State’s Constitution itself. Where domestic law remains silent on this dilemma international law should prevail to the detriment of a constitutionally-entrenched domestic provision, especially if the international law being invoked is of a customary nature, unless this would entail a breach of a jus cogens norm. What should a State do if faced with two international obligations emanating from norms of equal hierarchical status, or of seemingly equal hierarchical status? In the case of a conflict between two international norms of equal hierarchical status, the usual rules governing conflict between international norms may lead to the priority of the international norm that corresponds to the fundamental right. Here no question of supremacy arises. When the fundamental right in question is a rule of jus cogens, at the international level, the former would trump the latter and the State in question would be free and, indeed, compelled to prioritize the fundamental right. In this situation, again, no issue of supremacy arises. However, when the conflict of norms exists between an internationally protected human right, not rising to the level of jus cogens, and an obligation arising under a resolution of the UNSC, the latter would be superior over conflicting obligations.

An International Convention for the Prevention, Prosecution and Punishment of Core Crimes could constitute evidence of a duty to prosecute of the territorial State and of an obligation to submit to prosecution of the custodial State. If it will be widely ratified it would impose such duties. If not, it could still pave the way for the formation of a rule of customary international law. The exercise of universal jurisdiction by States, provided it be undertaken fairly and not in absentia, could anyway be a preferred course of action to a prosecution under the vertical system of enforcement. Criminal justice will be predominantly meted out by domestic criminal courts, exercising various forms of jurisdiction, particularly territorial, but also resorting to and availing themselves of universal jurisdiction. It will also be delivered by the ICC, and by hybrid tribunals which are most likely to gain importance in the near future since their flexible and customised nature facilitate their creation and establishment. Since the ICC’s jurisdiction can never be all-encompassing due to limitations rationae temporis, rationae loci, rationae personae and rationae materiae, hybrid tribunals are likely to blossom in countries and/or regions post-conflict. There might be some place for sui generis trials, such as the Lockerbie trials. These could also take the form of specialized country-specific tribunals. There is increasingly more room for special courts, such as, inter alia, the EAC. One notes that the UNGA has adopted a Resolution establishing the IIIM which has a unique quasi-prosecutorial role, scope and functions.

The interaction of some instituti legis may have led to functional international constitutionalism, the main cause of which is the hierarchically superior nature of jus cogens norms, and the effect of which justifies the exercise of universal jurisdiction. Such process is a similar development to the constitutionalization of international law. The obligation to submit to prosecution also stems from international human rights law, rather than from international criminal law strictu sensu. Core crimes breach rights in an actual and tangible manner but also prospectively. This is also why the duty to punish a core crime can be equated to the duty to prevent another core crime. Consequently, the responsibility to protect, or rather to prevent, is triggered. Owing to international human rights law, by failing to conduct investigations and undertaking prosecutions, States violate the rights of victims to an effective remedy. Human rights act like a double-edged sword. On the one hand, a duty to investigate and prosecute core crimes flows from a State’s human rights obligations. On the other hand, most barriers to extradition (and hence to eventual prosecution) assume legitimacy for the ultimate protection of human rights in so far as the respect of human rights can entitle States to limit cooperation in some circumstances. The two prongs of human rights counter one another. There exists the need to constantly strike an equitable balance between conflicting interests. This is why the juridical framework is counter-productive. Thus, a restrictive interpretation of grounds for refusal becomes more essential.

This chapter seeks to establish the extent to which States are entitled to assess if the ICC enjoys jurisdiction in order to determine whether they are obliged to surrender a suspect thereto. The ICC Statute only imposes direct obligations on States which have ratified such treaty. The ICC cooperation model is best described as slanted, neither vertical nor horizontal. There is no harmonised international procedure relating to the national execution of an ICC cooperation request. Although States cannot rely on the absence of domestic law to justify non-compliance, the effect of ICC requests largely hinges on the degree to which States have domestically promulgated procedures intended to facilitate cooperation. The complementarity regime prevailing therein endows States with some discretion. Non-State Parties may only be invited by the ICC to cooperate. Yet, even non-State Parties to the ICC would need to implement legislation to execute a UNSC Resolution which directly invokes the cooperation of States. The potential repercussions of the failure to cooperate by the State may lead to the finding of a violation either by the ICC and a referral of the matter to the ASP in terms of Article 87(7) of the ICC Statute and Regulation 109 of the ICC, or else to a referral to the UNSC when the case had been triggered by a UNSC Resolution. Notwithstanding recent jurisprudence, it is still unclear whether the ASP can take any action beyond making the finding of non-compliance. Some ideas to strengthen the fragile ICC cooperation regime are suggested.

Core crimes constitute violations of customary international law which allows for universal jurisdiction thereupon. Yet, we cannot extrapolate the applicability of the aut dedere aut judicare rule therefrom, nor can we extract it from their jus cogens status. This can be done by virtue of some determining factors. One of these relates to the qualitative gravity of core crimes, another emanates from an insufficient reach of international human rights law and a third can be triggered by acknowledging that non-prosecution could be tantamount to a threat to the peace. If a core crime is protected by a jus cogens norm and is subject to universal jurisdiction it is ipso facto, exercisable erga omnes. The execution of the aut dedere aut judicare rule in domestic courts may be equated to the assertion of universal jurisdiction by such domestic courts. The Hague formula favours a choice of the forum deprehensionis to either extradite or prosecute. It admits of two important variables, with the first variant being ‘the terrorism formula’ and the second off-shoot being ‘the drugs formula’. The fourth Geneva formula postulates the prioritization of prosecution over extradition. Limitations to the aut dedere aut judicare rule deriving from the principle of non-refoulement are also considered. The obligation to surrender which arises once the admissibility issue has been decided by the ICC, the Lockerbie incident (aut dedere aut transferre), gacaca tribunals, and the proposed EU corpus juris criminalis, may fall within the special category of alternatives to the aut dedere aut judicare formulae.

A collective subsidiary responsibility of the international community exists when the State manifestly fails in its duties of protection. Yet, the obligation to exercise universal jurisdiction is not absolute, but subsidiary and conditional. Both conventional and customary international law recognise that the State locus delicti, which is also usually the forum conveniens, has a duty to prosecute core crimes. This duty should not be misconstrued as to denote an obligation to prosecute in absentia. International human rights law imposes, at the very least, upon the States locus delicti commissi, a duty to investigate. The duty to submit to prosecution necessitates, as a bare minimum, that the State fulfils ancillary (accessory) obligations. These ancillary obligations should certainly include the duty to notify the international community that an individual is within the custodial jurisdiction of a State, which notification can trigger either a decision of the international community to establish a court or tribunal to prosecute the individual or any potential extradition request of another State. The custodial State would also be obliged to preserve any evidence it might possess or come across which could be used in the eventual prosecution of such individual. These are, to date, good practices but they can gradually assume a more onerous and mandatory dimension. War crimes prosecutions in Europe based on universal jurisdiction have become possible because of the arrival in Europe of both victims and suspects during the refugee crisis. Such prosecutions safeguard access to justice, an enabling right and an empowering tool.

Core crimes possess some overarching juridical elements which are also called ‘contextual circumstances’. These mirror the unwillingness and/or inability of States to investigate and prosecute. In the crimes of genocide the contextual elements are implicit in the dolus specialis, this being the intent to destroy, in whole or in part, a protected group. The existence of a genocidal plan or policy is not a necessary ingredient of the crime, but it is still important evidentiary material wherefrom the dolus specialis may be inferred. Crimes against humanity require that the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack which must be pursuant to or in furtherance of a State or organizational policy to commit such attack. Dicta show how the group-oriented nature of such crimes is implicit in the role of the State. War crimes require an armed conflict which, in turn, presupposes either that the State is a contending party to the conflict itself or else that it is incapable to extinguish such conflict. Although distinct, crimes against humanity and war crimes possess some common features when the perpetrators thereof, namely organizational requirements, are analysed. Being a leadership crime, aggression conjures that the perpetrator must be in a position by means of which he can exercise control over or direct the political or military action of a State. These overarching juridical elements reveal the intrinsic difficulties which are connected with the investigation and/or prosecution of core crimes.

After highlighting that the book will only consider the crucial stage of the procedural iter which can lead to prosecutions, this being either the surrender or extradition of individuals, this chapter unravels the various distinct institutional levels of prosecution. Distinctions are drawn between the domestic, international and hybrid models, whereas the main features of the latter model are explained. With the exception of the African Criminal Court, there is no system which allows for regional prosecutions. When an alleged core crime is not prosecuted, other systems are established. These include special prosecutions which undertake sui generis trials before special courts and/or tribunals. Therefore, multi-layered levels (frameworks) of different types and kinds of prosecutions also comprise extraordinary mechanisms of a sui generis nature, such as the Lockerbie trial. Special courts can be constituted by means of specialized units within the local criminal justice system, such as the ICD of the HC of Uganda and the ICT of Bangladesh. There is no formal relationship between the ICC and the ICD of the HC of Uganda, although the latter can be regarded as a court of complementarity with the ICC. In the case of the ICT of Bangladesh, unlike the KSC which are staffed with international prosecutors and judges, there is no involvement of the international community. These special courts are also distinguished from hybrid tribunals. The determining factor is the involvement or otherwise of external (not domestic) elements. If there is no international involvement at all, the hybrid dimension is missing.

Core crimes, unlike other species of crimes, elicit State aggravated responsibility, which explains both why the State is failing to live up to its duties and justifies the external intervention of the international community. State aggravated responsibility is a consequential characteristic of the commission of core crimes especially when the State is involved as an active perpetrator. These consequences are so unique and conspicuous that they may safely be said to constitute characteristics in their own right, particularly since they (cumulatively) do not belong to other categories/species of crime (such as domestic crimes, transnational organized crimes and international crimes). When cumulatively considered, these consequential characteristics belong solely and exclusively to core crimes. To this extent, although they cannot be directly equated to State aggravated responsibility, these consequential characteristics constitute evidence of aggravated State responsibility. Inversely, the subsistence of State aggravated responsibility serves to corroborate the contention that the State is somehow involved, directly or indirectly, in the perpetration of core crimes. Individual criminal liability on one hand and aggravated State responsibility on the other hand, although distinct, can concur. The idea that the State is somehow involved, directly or indirectly, in the perpetration of core crimes has a parallel in State responsibility. Not only will the State be held responsible for not preventing the core crime and, once perpetrated, for not prosecuting and punishing it, but it will be faced with a continuing obligation to ensure that an individual suspected of having committed a core crime be submitted to prosecution.

The horizontal system of enforcement is largely dependent upon bilateral and multilateral extradition treaties. Whereas multilateral treaties generally target specific crimes, States are increasingly extraditing on the basis of regional treaties. Some rules are phrased in a mandatory way throughout certain treaties, but other similar rules are more leniently (flexibly) drafted within other treaties, leaving therein a considerable amount of discretion upon States. A mandatory provision contrasts sharply with the discretionary nature of another provision, even when like is compared to like, that is, when the aut dedere aut judicare rule is under scrutiny. Indeed the obligation to extradite or prosecute may either be alternative or subsidiary. There may be many reasons to favour the prioritization of the judicare limb over the dedere limb. Yet, practice shows that a prosecution being conducted in the forum conveniens, besides being a very common occurrence, is more likely to be both effective and fair. The dedere limb should be favoured especially when extradition to the forum conveniens is to be undertaken. However, it is equivocal since treaties which either render universal jurisdiction mandatory, facultative, or which seem to permit universal jurisdiction, whilst stipulating the aut dedere aut judicare rule, do not shed a light as to whether such extradition should be effected to the requesting State, to another State party to the treaty, to another State which enjoys non-universal jurisdiction over the extraditee, or to any other State which is willing to exercise universal jurisdiction notwithstanding no connection at all with the crime.