* This text was reproduced and reformatted from the text available at the United Nations website (visited July 16, 2015), http://legal.un.org/ilc/texts/instruments/english/reports/7_6_2014.pdf.

1 Int’1 Law Comm’n, Rep. on the Work of its Sixty-Sixth Session, U.N. Doc. A/69/10, at 139 –165 (2014) [hereinafter ILC Report], available at http://legal.un.org/ilc/texts/instruments/english/reports/7_6_2014.pdf. The General Assembly took note of the final report and “encourage[d] its widest possible dissemination.” G.A. Res. 69/118 (Dec. 10, 2014), available at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/69/118.

2 The ILC cites the 2012 Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels in which states committed to “ensur[e] that impunity is not tolerated for genocide, war crimes, crimes against humanity and for violations of international humanitarian law and gross violations of human rights law. . .” G.A. Res. 67/1, ¶ 22 (Sept. 24, 2012), available at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/67/1.

3 ILC Report, supra note 1, ¶ 3.

4 Report of the International Law Commission to the General Assembly, U.N. GAOR Supp. (No. 10), U.N. Doc. A/51/10, at 15–54 (1996)Google Scholar, reprinted in [1996] 2 Y.B. Int’l L. Comm’n 17, U.N. Doc. A/CN.4/SER.A/1996/Add.l, available at http://legal.un.org/ilc/publications/yearbooks/english/ilc_1996_v2_p2.pdf [hereinafter 1996 Draft Code].

5 Int’l Law Comm’n, Rep. on the Work of its Fifty-Sixth Session, U.N. Doc. A/59/10, at 305 (2004), available at http://legal.un.org/docs/?symbol=A/59/10(SUPP).

6 Int’l Law Comm’n, Rep. on the Work of its Fifty-Seventh Session, U.N. Doc. A/60/10, at 227 (2005) (2005), available at http://legal.un.org/docs/?symbol=A/60/10(SUPP).

7 G.A. Res. 61/34, ¶ 6 (Dec. 18, 2006).

8 Zdzislaw, Galicki (Special Rapporteur on the Obligation to Prosecute or Extradite), Preliminary Rep. of the Special Rapporteur, Int’l Law Comm’n, U.N. Doc. A/CN.4/571 (June 7, 2006)Google Scholar; Second Rep. of the Special Rapporteur, U.N. Doc. A/CN.4/585 (June 11, 2007); Third Rep. of the Special Rapporteur, U.N. Doc. A/CN.4/603 (June 10, 2008); Fourth Rep. of the Special Rapporteur, U.N. Doc. A/CN.4/648 (May 31, 2011).

9 G.A. Res. 66/98, ¶ 6 (Dec. 9, 2011); G.A. Res. 67/92, ¶ 8 (Dec. 14, 2012); G.A. Res. 68/112, ¶ 7 (Dec. 16, 2013).

10 Final Rep. of the Working Group on the Obligation to Extradite or Prosecute (aut dedere aut judicare), 66th Sess., May 5–June 6, July 7–Aug. 8, 2014, ¶ 3, U.N. Doc. A/CN.4/L.844 (June 5, 2014).

11 Int’l Law Comm’n, Survey of Multilateral Conventions which may be of Relevance for the Work of the International Law Commission on the Topic “The Obligation to Extradite or Prosecute (aut dedere aut judicare),” U.N. Doc. A/CN.4/630 (June 18, 2010)Google Scholar [hereinafter Secretariat’s Survey].

12 Questions relating to the Obligation to Prosecute or Extradite (Belg./Sen.), 2012 I.C.J. 423 (Jul. 20) [hereinafter Belgium v. Senegal]. In this case, Belgium filed an application against Senegal alleging that Senegal had refused to extradite Hissène Habré, the former Chadian president accused of war crimes. The Court held that Senegal should submit the case for prosecution or extradite.

13 ILC Report, supra note 1, ¶ 10. The categories include: (1) the 1929 counterfeiting convention and other treaties using the same model; (2) regional conventions on extradition; (3) the 1949 Geneva Conventions and 1977 Additional Protocol I; and (4) the 1970 Hague convention and other conventions following the same model (Hague Formula).

14 Belgium v. Senegal, supra note 12, at 567, ¶ 19 (separate opinion of Judge Yusuf).

15 ILC Report, supra note 1, ¶ 12.

16 Belgium v. Senegal, supra note 12, at 455, ¶ 91; see also ILC Report, supra note 1, ¶¶ 16–20.

17 Belgium v. Senegal, supra note 12, at 454–56, ¶¶ 90, 94.

18 ILC Report, supra note 1, ¶ 22.

19 Id. ¶ 27.

20 Id. ¶ 29.

21 Id. ¶ 30.

22 Id. ¶¶ 58–59. The Commission also pointed states to the United Nations Office on Drugs and Crime’s 2004 Model Law on Extradition for guidance.

23 Belgium v. Senegal, supra note 12, ¶ 113.

24 ILC Report, supra note 1, ¶¶ 14, 31.

25 Id. ¶ 32.

26 Id. ¶ 13.

27 ILC Report, supra note 1, ¶ 50–53; see also Third Rep. of Special Rapporteur, supra note 8 (proposing a draft article on international custom as a source of the obligation).

28 ILC Report, supra note 1, ¶ 54.

29 Id. ¶ 55; Belgium v. Senegal, supra note 12, ¶¶ 53–54.

30 See, e.g., Remarks by Mark, Simonoff, Minister Counselor, Legal Affairs, United States Mission to the United Nations, on Agenda Item 81-Report of the International Law Commission on the Work of its 63rd and 65th Sessions: Part III: Protection of Persons in the Event of Disasters (Nov. 4, 2013)Google Scholar, available at http://usun.state.gov/briefing/statements/216241.htm (stating that “there is no obligation under customary international law to extradite or prosecute individuals for offenses not covered by treaties containing such an obligation”).

31 ILC Report, supra note 1, ¶ 42.

32 Id. ¶ 43.

33 Belgium v. Senegal, supra note 12, ¶ 68; ILC Report, supra note 1, ¶ 46.

34 ILC Report, supra note 1, ¶ 47.

35 Statute of the Int’l Law Comm’n, art. 15 (Nov. 21, 1947), available at http://legal.un.org/ilc/texts/instruments/english/statute/statute.pdf.

* Editor’s note: The numbering of the endnotes in International Legal Materials aligns with this document’s placement in the Report of the International Law Commission from its sixty-sixth session at page 140.

420 See, e.g., General Assembly resolution 2840 (XXVI) of 18 December 1971 entitled “Question of the punishment of war criminals and of persons who have committed crimes against humanity”; General Assembly resolution 3074 (XXVIII) of 3 December 1973 on the “Principles of international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity”; and principle 18 of Economic and Social Council resolution 1989/65 of 24 May 1989 entitled “Effective prevention and investigation of extra-legal, arbitrary and summary executions”.

421 General Assembly resolution 67/1 of 24 September 2012.

422 Ibid., para. 22.

423 See Part 3 below. In the case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), the International Court of Justice states: “. . . Extradition and prosecution are alternative ways to combat impunity in accordance with Art. 7, para 1 [of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984]. . . . .” (Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, at p. 443, para. 50). The Court adds that the States parties to the Convention against Torture have “a common interest to ensure, in view of their shared values, that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity” (ibid., p. 449, para. 68). The Court reiterates that the object and purpose of the Convention are “to make more effective the struggle against torture by avoiding impunity for the perpetrators of such acts” (ibid., p. 451, para. 74 and cf. also para. 75).

Special Rapporteur Zdzislaw Galicki’s fourth report dealt at length with the issue of the duty to cooperate in the fight against impunity. He cited the following examples of international instruments which provide a legal basis for the duty to cooperate: Art. 1 (3) of the Charter of the United Nations, the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, the preamble to the 1998 Rome Statute of the International Criminal Court, and guideline XII of the Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations, adopted by the Committee of Ministers on 30 Mar. 2011, A/CN.4/648, paras. 26 –33.

424 For example, Belgium (A/CN.4/612, para. 33); Denmark, Finland, Iceland, Norway and Sweden (A/C.6/66/SR.26, para. 10); Switzerland (ibid., para. 18); El Salvador (ibid., para. 24); Italy (ibid., para. 42); Peru (ibid., para. 64); Belarus (A/C.6/66/SR. 27, para. 41); Russian Federation (ibid., para. 64); and India (ibid., para. 81).

425 Hugo, Grotius, De Jure Belliac Pacis, Book II, chapter XXI, section IV (English translation by Francis, W. Kelsey (Oxford/London: Clarendon Press/Humphrey Milford, 1925), pp. 527–529 Google Scholar at 527).

426 United Nations, The Work of the International Law Commission, Eighth edition (New York: United Nations 2012), vol. 1, p. 37 Google Scholar.

427 “Without prejudice to the jurisdiction of an international criminal court, the State Party in the territory of which an individual alleged to have committed a crime set out in article 17 [genocide], 18 [crimes against humanity], 19 [crimes against United Nations and associated personnel] or 20 [war crimes] is found shall extradite or prosecute that individual”. See also the Commission’s commentary on this article (Official Records of the General Assembly, Fifty-first Session, Supplement No. 10 (A/51/10), chap. II).

428 Draft code of crimes against the peace and security of mankind, art. 8, para. (3) (ibid.).

429 Official Records of the General Assembly, Forty-ninth Session, Supplement No. 10 (A/49/10), p. 80, para. 142.

430 Draft code of crimes against the peace and security of mankind, art. 8, paras. (3), (4) and (8) and art. 9, para. (2) (ibid., Fifty-first Session, Supplement No. 10 (A/51/10)).

431 At the first reading in 1991, the draft code comprised the following 12 crimes: aggression; threat of aggression; intervention; colonial domination and other forms of alien domination; genocide; apar theid; systematic or mass violations of human rights; exceptionally serious war crimes; recruitment, financing and training of mercenaries; international terrorism; illicit traffic in narcotic drugs; and wilful and severe damage to the environment. At its sessions in 1995 and 1996, the Commission reduced the number of crimes in the final draft code to four crimes: aggression; genocide; war crimes; and crimes against humanity, adhering to the Nuremberg legacy as the criterion for the choice of the crimes cov ered by the draft code. The primary reason for this approach appeared to have been the unfavourable comments by 24 Governments to the list of 12 crimes proposed in 1991. A fifth crime, crimes against United Nations and associated personnel, was added at the last moment on the basis of its magnitude, the seriousness of the problem of attacks on such personnel and “its centrality to the maintenance of international peace and security” (A/CN.4/448 and Add.1).

The crime of aggression was not subject to the provision of art. 9 of the draft code. In the Commission’s opinion, “[t]he determination by a national court of one State of the question of whether another State had committed aggression would be contrary to the fundamental principle of international law par in parent imperium non habet. . . . [and] the exercise of jurisdiction by the national court of a State which entails consideration of the commission of aggression by another State would have serious implications for international relations and international peace and security.” (Draft code of crimes against the peace and security of mankind, Official Records of the General Assembly, Fifty-first Session, Supplement No. 10 (A/51/10), p. 30, para. 14).

432 A/CN.4/603, paras. 36–37. In his preliminary report, the Special Rapporteur discussed various Latin formulas relevant to this topic; namely: aut dedere aut punire; judicare aut dedere; aut dedere aut prosequi; aut dedere, aut judicare, aut tergiversari; and aut dedere aut poenam persequi (A/CN.4/571, paras. 5–8). See also: Raphäel van Steenberghe, “The Obligation to Extradite or Prosecute: Clarifying its Nature” (Journal of International Criminal Justice, vol. 9 (2011), p. 1089 at pp. 1107–8, on the formulas aut dedere aut punire, aut dedere aut prosequi, and aut dedere aut judicare.

433 A/CN.4/630.

434 E.g., (a) 1936 Convention for the Suppression of the Illicit Traffic in Dangerous Drugs; (b) the 1937 Convention for the Prevention and Punishment of Terrorism; (c) the 1950 Convention for the Suppression of the Tra ffic in Persons and of the Exploitation of the Prostitution of Others; (d) the 1961 Single Convention on Narcotic Drugs; and (e) the 1971 Convention on Psychotropic Substances.

435 These instruments include: (a) the 1928 Convention on Private International Law, also known as the “Bustamante Code”, under Book IV (International Law of Procedure), Title III (Extradition); (b) the 1933 Convention on Extradition; (c) the 1981 Inter-American Convention on Extradition; (d) the 1957 European Convention on Extradition; (e) the 1961 General Convention on Judicial Cooperation (Convention générale de coopération en matière de justice); (f) the 1994 Economic Community of West African States (ECOWAS) Convention on Extradition; and (g) the London Scheme for Extradition within the Commonwealth.

436 It may also be recalled that General Assembly has adopted the Model Treaty on Extradition (resolution 45/116, annex) and the Model Treaty on Mutual Assistance in Criminal Matters (resolution 45/117). See also the 2004 Model Law on Extradition prepared by the United Nations Office on Drugs and Crime, Available at http://www.unodc.org/pdf/model_law_extradition.pdf. See also Revised Manuals on the Model Treaty on Extradition and on the Model Treaty on Extradition and on the Model Treaty on Mutual Assistance in Criminal Matters, available at: http://www.unodc.org/pdf/model_treaty_extradition_revised_manual.pdf (visited on 3 June 2014).

437 Arts. 49, 50, 129, and 146, respectively, of the First, Second, Third, and Fourth Geneva Conventions. The reason these Geneva Conventions use the term “hand over” instead of “extradite” is explained in the Secretariat’s Survey (2010) at para. 54.

According to Claus Kreβ (“Reflection on the Iudicare Limb of the Grave Breaches Regime” Journal of International Criminal Justice, vol. 7 (2009), p. 789), what the judicare limb of the grave breaches regime actually entails is a duty to investigate and, where so warranted, to prosecute and convict.

438 See Jean, S. Pictet (ed), The Geneva Conventions of 12 August 1949: Commentary, vol. IV (International Committee of the Red Cross 1958) p. 593 Google Scholar.

439 Art. 85 (1), (3) and art. 88 (2) of Additional Protocol I of 1977.

440 These include, inter alia,: (a) the 1971 Organization of American States (OAS) Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of International Significance; (b) the 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; (c) the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomat ic Agents; (d) the 1977 European Convention on the Suppression of Terrorism; (e) 1977 Organization of African Unity Convention for the Elimination of Mercenarism in Africa; (f) the 1979 International Convention against the Taking of Hostages; (g) the 1979 Convention on the Physical Protection of Nuclear Material; (h) the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; (i) the 1985 Inter-American Convention to Prevent and Punish Torture; (j) the 1987 South Asian Association for Regional Cooperation (SAARC) Regional Convention on Suppression of Terrorism and the 2004 Additional Protocol thereto; (k) the 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; (l) the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation; (m) the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances; (n) the 1989 International Convention Against the Recruitment, Use, Financing and Training of Mercenaries; (o) the 1994 Inter - American Convention on the Forced Disappearance of Persons; (p) the 1994 Convention on the Safety of United Nations and Associated Personnel and its 2005 Optional Protocol; (q) the 1996 Inter -American Convention against Corruption; (r) the 1997 Inter - American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials; (s) the 1997 Organization for Economic Cooperation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions; (t) the 1997 International Convention for the Suppression of Terrorist Bombings; (u) the 1998 Convention on the Protection of the Environment through Criminal Law; (v) the 1999 Criminal Law Convention on Corruption; (w) the 1999 Second Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict; (x) the 1999 International Convention for the Suppression of the Financing of Terrorism; (y) the 2000 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography; (z) the 2000 United Nations Convention against Transnational Organized Crime and its Protocols; (aa) the 2001 Council of Europe Convention on Cybercrime; (bb) the 2003 African Union Convention on Preventing and Combating Corruption; (cc) the 2003 United Nations Convention against Corruption; (dd) the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism; (ee) the 2005 Council of Europe Convention on the Prevention of Terrorism; (ff) the 2006 International Convention for the Protection of All Persons from Enforced Disappearance; (gg) the 2007 Association of Southeast Asian Nations (ASEAN) Convention on Counter-Terrorism; (hh) 2010 Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft; and (ii) the 2010 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation.

441 Separate Opinion of Judge Yusuf in the case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, at pp. 567–568, paras. 19–22. See also Secretariat survey (2010), para. 126. Cf. also Belgium’s comments submitted to the Commission in 2009, where Belgium identified two types of treaties: (a) treaties which contain an aut dedere aut judicare clause with the obligation to prosecute conditional on refusal of a request for extradition of the alleged perpetrator of an offence; and (b) treaties which contain a judicare vel dedere clause with the obligation on States to exercise universal jurisdiction over perpetrators of the offences under the treaties, without making this obligation conditional on refusal to honour a prior extradition request (A/CN.4/612, para. 15), quoted by Special Rapporteur Galicki in his fourth report (A/CN.4/648, para. 85 and fn. 56).

442 As the Secretariat’s Survey (2010) concludes (A/CN.4/630, para. 153):

“. . . The examination of conventional practice in this field shows that the degree of specificity of the various conventions in regulating these issues varies considerably, and that there exist very few conventions that adopt identical mechanisms for the punishment of offenders (including with respect to the relationship between extradition and prosecution). The variation in the provisions relating to prosecution and extradition appears to be determined by several factors, including the geographical, institutional and thematic framework in which each convention is negotiated . . . and the development of related areas of international law, such as human rights and criminal justice. It follows that, while it is possible to identify some general trends and common features in the relevant provisions, conclusive findings regarding the precise scope of each provision need to be made on a case-by-case basis, taking into account the formulation of the provision, the general economy of the treaty in which it is contained and the relevant preparatory works.”

443 Ibid., para. 91.

444 Ibid., para. 109.

445 The 2006 International Convention for the Protection of All Persons from Enforced Disappearance follows the Hague formula, and refers to the “extreme seriousness” of the offence, which it qualifies, when widespread or systematic, as a crime against humanity. However, outside of this, there appears to be a lack of international conventions with the obligation to extradite or prosecute in relation to crimes against humanity.

446 The underlying principle of the four Geneva Conventions of 1949 is the establishment of universal jurisdiction over grave breaches of the Conventions. Each Convention contains an article describing what acts constitute grave breaches that follows immediately after the extradite-or -prosecute provision.

For the First and Second Geneva Conventions, this article is identical (arts. 50 and 51, respectively): “Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

Art. 130 of the Third Geneva Convention stipulates: “Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.”

Art. 147 of the Fourth Geneva Convention provides: “Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

The four Conventions and the Additional Protocol I of 1977 do not establish an obligation to extradite or prosecute outside of grave breaches. No other international instruments relating to war crimes have this obligation, either.

447 I.C.J. Reports 2007, p. 43, at pp. 226–227 and 229, paras. 442, 449. Art. VI reads: “Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” The Court at para. 442 did not exclude other bases when it observed that“Article VI only obliges the Contracting Parties to institute and exercise territorial criminal jurisdiction; while it certainly does not prohibit States, with respect to genocide, from conferring jurisdiction on their criminal courts based on criteria other than where the crime was committed which are compatible with international law, in particular the nationality of the accused, it does not oblige them to do so.”

448 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, at pp. 450–461 Google Scholar, paras. 71–121.

449 The Court notes that art. 7 (1) of the Convention against Torture is based on a similar provision contained in the 1970 Hague Convention (ibid., para. 90). As Judge Donoghue puts it: “The dispositive paragraphs of today’s Judgment bind only the Parties. Nonetheless, the Court’s interpretation of a multilateral treaty (or of customary international law) can have implications for other States. The far-reaching nature of the legal issues presented by this case is revealed by the number of questions posed by Members of the Court during oral proceedings. . . . .” (Declaration of Judge Donoghue in Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, at p. 590, para. 21.)

450 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, at p. 457, para. 99.

451 Ibid., p. 455, para. 91. See also pp. 451–452 and 456, paras. 74–75, 78, 94.

452 Ibid., pp. 454–456, paras. 90, 94.

453 Ibid., p. 456, para. 95.

454 Art. 7, para. 2 of the Convention against Torture and art. 7 of the Hague Convention of 1970, ibid. para. 90.

455 Report of the AU-EU Technical ad hoc Expert Group on the Principle of Universal Jurisdiction (8672/1/09/Rev.1), annex, para. 11. The International Court of Justice in the case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) holds that the performance by States parties to the Convention against Torture of their obligation to establish universal jurisdiction of their courts is a necessary condition for enabling a preliminary inquiry and for submitting the case to their competent authorities for the purpose of prosecution (Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, at p. 451, para. 74).

456 According to one author, “The principle of aut dedere aut judicare overlaps with universal jurisdiction when a a State has no other nexus to the alleged crime or to the suspect other than the mere presence of the person within its territory.” (Mitsue Inazumi, Universal Jurisdiction in Modern International Law: Expansion of National Jurisdiction for Prosecuting Serious Crimes under International Law (Intersentia, 2005), p. 122).

457 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) I.C.J. Reports 2002, p. 3, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, p. 75 para. 42.

458 It should be recalled that the “Obligation to extradite or prosecute” in art. 9 of the 1996 draft code is closely related to the “Establishment of jurisdiction” under art. 8 of the draft code, which requires each State party there to take such measures as may be necessary to establish its jurisdiction over genocide, crimes against humanity, crimes against United Nations and associated personnel, and war crimes, irrespective of where or by whom those crimes were committed. The Commission’s commentary to art. 8 makes it clear that universal jurisdiction is envisaged (Official Record of the General Assembly, Fifty-first Session, Supplement No. 10 (A/51/10), para. 7).

459 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports.

460 Ibid., p. 453, para. 84.

461 Ibid., p. 454, para. 86.

462 Ibid., p. 453, para. 83.

463 Ibid., pp. 453–454, paras. 85–86.

464 Ibid., p. 454, para. 88.

465 Ibid., p. 454, para. 86.

466 Ibid., pp. 453–454, para. 85.

467 Ibid., p. 453, para. 83.

468 Ibid., p. 453, para. 84.

469 Cf. also Chili Komitee Nederland v. Pinochet, Court of Appeal of Amsterdam, 4 Jan. 1995 Netherlands Yearbook of International Law, vol. 28 (1997), pp. 363–365 Google Scholar, in which the Court of Appeal held that the Dutch Public Prosecutor did not err in refusing to prosecute former Chilean President Pinochet while visiting Amsterdam because Pinochet might be entitled to immunity from prosecution and any necessary evidence to substantiate his prosecution would be in Chile with which the Netherlands had no cooperative arrangements regarding criminal proceedings. See Kimberley N. Trapp, State Responsibility for International Terrorism (Oxford: Oxford University Press 2011), p. 88, fn. 132.

470 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, at pp. 454 and 456 Google Scholar, paras. 90, 94.

471 Ibid., paras. 115, 117.

472 Ibid., paras. 114, 115. Cf. Separate Opinion of Judge Ç ancado Trindade in that case at pp. 546–548, paras. 148, 151–153; Dissenting Opinion of Judge ad hoc Sur in the same case at p. 620, para. 50; and Dissenting Opinion of Judge Xue, at p. 578, para. 28.

473 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, at p. 461 Google Scholar, para. 120.

474 Cf. Draft article 12 of the draft articles on the expulsion of aliens adopted by the Commission on second reading in 2014, see Official Records of the General Assembly, Sixtyninth Session, Supplement 10 (A/69/10), chap. IV and European Court of Human Rights, Bozano v. France, Judgment of 18 December 1986, Application No. 9990/82, paras. 52–60, where the European Court of Human Rights has held that extradition, disguised as deportation in order to circumvent the requirements of extradition, is illegal and incompatible with the right to security of person guaranteed under art. 5 of the European Convention on Human Rights.

475 See the reasoning in the case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, at pp. 453– 454, paras. 85–86. Therefore, the Court rules that financial difficulties do not justify Senegal’s failure to comply with the obligations under the Convention against Torture (ibid., para. 112). Likewise, seeking guidance from the African Union does not justify Senegal’s delay in complying with its obligation under the Convention (ibid.).

476 Ibid., para. 113.

477 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, at p. 461, para. 120. As also explained by Judge Cançado Trindade,

“. . .The conduct of the State ought to be one which is conducive to compliance with the obligations of result (in the cas d’espèce, the proscription of torture). The State cannot allege that, despite its good conduct, insufficiencies or difficulties of domestic law rendered it impossible the full compliance with its obligation (to outlaw torture and to prosecute perpetrators of it); and the Court cannot consider a case terminated, given the allegedly ‘good conduct’ of the State concerned.” (Separate Opinion of Judge Cançado Trindade in the case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, at p. 508, para. 50 and see also his full reasoning at pp. 505–508, paras. 44–51.)

478 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, at pp. 457–458, paras. 100–102, citing art. 28 of the Vienna Convention on the Law of Treaties, which reflects customary international law.

479 Ibid., p. 458, paras. 103–105.

480 Ibid., p. 451, para. 75.

481 Ibid., p. 458, paras. 102, 105.

482 Ibid., p. 456, para. 95.

483 Ibid., pp. 460–461, para. 117.

484 Art. 9 of the 1996 Draft code of Crimes against the Peace of Mankind stipulates that the obligation to extradite or prosecute under that article is “[w]ithout prejudice to the jurisdiction of an international criminal court”.

485 “The State party in the territory under whose jurisdiction a person alleged to have committed an offence of enforced disappearance is found shall, if it does not extradite that person or surrender him or her to another State in accordance with its international obligations or surrender him or her to an international criminal tribunal whose jurisdiction it has recognized, submit the case to its competent authorities for the purpose of prosecution.”

486 Dissenting Opinion of Judge Xue, at p. 582, para. 42 (dissenting on other points).

487 Article 28 of the Vienna Convention on the Law of Treaties.

488 This possibility was raised by Special Rapporteur Galicki in his preliminary report (A/CN.4/571), paras. 49–50.

489 Official Records of the General Assembly, Sixty-eighth Session, Supplement No. 10 (A/68/10), Annex B.

490 Ibid., Annex A, para. 20. A study by the Chatham House suggested that the Commission ‘s future work on this topic should concentrate on drafting a treaty obligation to extradite or prosecute in respect of core international crimes an d emulate the extradite-or-prosecute mechanism developed in Article 7 of the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft and incorporated in the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment and, most recently, in the 2006 International Convention for the Protection of All Persons from Enforced Disappearance. See Miša, Zgonec-Rožej and Joanne, Foakes, “International criminals: Extradite or Prosecute?” Chatham House Briefing Paper, Doc. IL BP 2013/01, Jul. 2013 Google Scholar.

491 See also the Commission’s commentary on this article in Official Records of the General Assembly, Fifty-first Session, Supplement No. 10 (A/51/10), chap. II.

492 Official Records of the General Assembly, Sixty-eighth Session, Supplement No. 10 (A/68/10), Annex A, para. 16 and accompanying footnote 28.

493 Ibid., paras. 21–22.

494 Chile, France, and Thailand.

495 Canada and the United Kingdom of Great Britain and Northern Ireland.

496 See also the Council of Europe, Extradition, European Standards: Explanatory notes on the Council of Europe convention and protocol and minimum standards protecting persons subject to transnational criminal proceedings (Council of Europe Publishing, Strasbourg, 2006)Google Scholar, where it is stated that: “. . . In the era of international criminal tribunals, the principle [aut dedere aut judicare] may be interpreted latosensu to include the duty of the state to transfer the person to the jurisdiction of an international organ, such as the International Criminal Court” (ibid., p. 119, footnote omitted).

497 The Extraordinary African Chambers have jurisdiction to try the person or persons most responsible for international crimes committed in Chad between 7 June 1982 and 1 December 1990. The Trial Chamber and the Appeals Chamber are each composed of two Senegalese judges and one non-Senegalese judge, who presides over the proceedings. The Trial Chamber and the Appeals Chamber are each composed of two Senegalese judges and one non-Senegalese judge, who presides over the proceedings, see Statute of the Extraordinary African Chambers, articles 3 and 11, International Legal Materials , vol. 52, (2013), pp. 1020–1036 Google Scholar).

498 Mexico.

499 Cuba and Belarus, respectively.

500 Secretariat Survey (2010), para. 132. In effect, these conventions appear to follow what was originally foreseen by Hugo Grotius when he referred to the principle aut dedere aut punire. Hugo, Grotius, De Jure Belliac Pacis , Book II, chapter XXI, section IV (English translation by Francis, W. Kelsey, Oxford/London, Clarendon Press/Humphrey Milford, 1925), pp. 527–529 Google Scholar, at p. 527.

501 E.g., the 1936 Convention for the Suppression of the Illicit Traffic in Dangerous Drugs; the 1937 Convention for the Prevention and Punishment of Terrorism; the 1950 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others; the 1961 Single Convention on Narcotic Drugs; and the 1971 Convention on Psychotropic Substances. See also Secretariat Survey (2010), para. 29.

502 The overall structure of the mechanism for the punishment of offenders in these conventions is based on the idea that the State in whose territory the crime was committed will request the extradition of the offender who has fled to another State and that extradition should, in principle, be granted. These conventions, however, recognise that States may be unable to extradite in some cases (most notably when the individual is their national or when they have granted asylum to him ) and provide for the obligation to prosecute as an alternative. Secretariat Survey (2010), para. 1 33 and fn. 327 citing Marc Henzelin, Le principe de l’universalité en droit penal international. Droit et obligation pour les Etats de poursuivre et de juger selon le principe de l’universalité (Basel/Geneva/Munich/Brussels, Helbing & Lichtenhahn/Faculté de droit de Genève/Bruylant, 2000), p. 286, who qualifies the system as primo dedere secundo prosequi.

503 E.g., the 1981 Inter-American Convention on Extradition; the 1957 European Convention on Extradition; the 1961 General Convention on Judicial Cooperation (Convention générale de coopération en matière de justice); the 1994 Economic Community of West African States (ECOWAS) Convention on Extradition; and the London Scheme for Extradition within the Commonwealth. These conventions are based on the general un dertaking by States Parties to surrender to one another all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted fo r the carrying out of a sentence or detention order. However, the obligation to extradite is subject to a number of conditions and exceptions, including when the request involves the national of the requested State. When extradition is refused, the conventions impose an alternative obligation to prosecute the alleged offender as a mechanism to avoid impunity. See also Secretariat Survey (2010), para. 134.

504 Secretariat Survey (2010), para. 127, and fn. 307. Those opining that the accused must be present in the territory of the State concerned as a precondition of the assertion of universal jurisdiction include Judges Higgins, Kooijmans and Buergenthal (Joint Separate Opinion in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), I.C.J. Reports 2002, p. 80, para. 57). See also Separate Opinion of Judge Guillaume, ibid., para. 9 and Gilbert, Guillaume, “Terrorisme et droit international”, Recueil des cours de l’Académie de droit international , vol. 215, 1990, pp. 368–369 Google Scholar. However, Marc Henzelin (supra note 502, p. 354) argues that the presence of the alleged offender in the territory of the State is not required for prosecution under the relevant provision of the 1949 Geneva Conventions.

505 While this provision appears to give a certain priority to prosecution by the custodial State, it also recognises that this State has the discretion to opt for extradition, provided that the requesting State has made out a prima facie case. Secretariat Survey (2010), para. 128, citing Declan, Costello, “International Terrorism and the Development of the Principle Aut Dedere Aut Judicare”, The Journal of International Law and Economics, vol. 10, 1975, p. 486 Google Scholar; Cherif Bassiouni, M. and Edward, M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (Dordrecht/Boston/London, Martinus Nijhoff, 1995), p. 15 Google Scholar; and Christian, Maierhöfer, “Aut dedere–aut judicare”. Herkunft, Rechtsgrundlagen und Inhalt des völkerrechtlichen Gebotes zur Strafverfolgung oder Auslieferung (Berlin, Duncker & Humblot, 2006), pp. 75–76 Google Scholar. Authors who emphasize the priority attributed to prosecution in the 1949 Geneva Conventions are said to include Luigi Condorelli, “Il sistemadella repression dei crimini di Guerra nelle Convenzioni di Ginevra del 1949 enel primo protocollo addizionale del 1977”, in Lamberti Zanardi, P. & Vent urini, G., eds., Crimini di guerra e competenza delle giurisdizioni nazionali: Atti del Convegno, Milano, 15–17 maggio 1997 (Milan, Giuffrè, 1998), pp. 35–36 Google Scholar; and Henzelin, supra, p. 353 (who qualifies the model of the 1949 Geneva Conventions as primo prosequi secundo dedere). C.f. also art. 88 (2) of Additional Protocol I to the 1949 Geneva Conventions, which calls on States Parties to “give due consideration to the request of the State in whose

506 Art. 7 of the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft provides that “[t]he Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged . . . to submit the case to its competent authorities for the purpose of prosecution ”.

507 Art. 7 states: “The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.”

508 Guengueng et al. v. Senegal, Merits, Decision of the Committee Against Torture under Art. 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 36th Sess., Doc CAT/C/36/D/181/2001 dated 19 May 2006, para. 9.7.

509 In the case concerning Questions relating to the Obligation to Prosecute or Extra dite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, at p. 456, paras. 94–95.

510 Ibid., p. 456, para. 95.

511 The custodial State has an obligation “to take action to ensure that such an individual is prosecuted either by the national authorities of that State or by another State which indicated that it was willing to prosecute the case by requesting extradition”. Para. 3 of the commentary to art. 9, Yearbook of the International Law Commission 1996 , vol. II (Part Two), p. 31. Reference should also be made to the commentary to art. 8 (whereby each State party “shall take such measures as may be necessary to establish its jurisdiction” over the crimes set out in the Draft Code “irrespective of where or by whom those crimes were committed”).

512 Mexico.

513 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, at pp. 449–450, paras. 67–70. See also Separate Opinion of Judge Cançado Trindade, pp. 527–529, paras. 104–108, and Declaration of Judge Donoghue, pp. 586–589, paras. 9–17. C.f. Dissenting Opinion of Judge Xue, pp. 571–577, paras. 2–23, and Dissenting Opinion of Judge ad hoc Sur, pp. 608 and 610–611, paras. 13, 19–20. Cf. also the Separate Opinion of Judge Skotnikov, pp. 482– 485, paras. 9–22.

514 See, e.g., Council of Europe, note 496 above, Chap. 4: Material human rights guarantees as limitations to extradition; Danai Azaria, Code of Minimum Standards of Protection to Individuals Involved in Transnational Proceedings, Report to the Committee of Experts on Transnational Criminal Justice, European Committee on Crime Problems, Council of Europe, PC-TJ/Docs 2005/PC-TJ (2005) 07 E. Azaria], Strasbourg, 16 Sept. 2005.

515 A/CN.4/666, para. 60.

516 A/CN.4/648, para. 95. The draft article read as follows:

“Article 4

International custom as a source of the obligation aut dedere aut judicare

1. 1.

   1. Each State is obliged either to extradite or to prosecute an alleged offender if such an obligation is deriving from the customary norm of international law.

2. 2.

   2. Such an obligation may derive, in particular, from customary norms of international law concerning [serious violations of international humanitarian law, genocide, crimes against humanity and war crimes].

3. 3.

   3. The obligation to extradite or prosecute shall derive from the peremptory norm of general international law accepted and recognized by the international community of States (jus cogens), either in the form of international treaty or international custom, criminalizing any one of acts listed in paragraph 2.”

517 Official Records of the General Assembly, Sixty-sixth Session, Supplement No. 10 (A/66/10), paras. 320–326.

518 In particular, some States disagreed with the conclusion that the customary nature of the obligation to extradite or prosecute could necessarily be inferred from the existence of customary rules proscribing specific international crimes. Topical summary of the discussion held in the Sixth Committee of the General Assembly during its Sixty-sixth Session, prepared by the Secretariat (A/CN.4/650), para. 48. See also the positions of Argentina, in A/C.6/62/SR.22, para. 58 and the Russian Federation, in A/CN.4/599, para. 54, respectively.

519 Judgment, I.C.J. Reports 2012, p. 422, paras. 53–55, 122 (2), with Judge Abraham and Judge ad hoc Sur dissenting on this point (ibid., Separate Opinion of Judge Abraham, pp. 471– 476, paras. 3–20; Dissenting Opinion of Judge ad hoc Sur, p. 610, para. 17).

520 Judge Abraham and Judge ad hoc Sur concluded that the Court, if it had found jurisdiction, would not have upheld Belgium’s claim of the existence of the customary international law obligation to prosecute or extradite. In his Separate Opinion, Judge Abraham considered there was insufficient evidence, based on State practice and opinio juris, of a customary obligation for States to prosecute before their domestic courts individuals suspected of war crimes or crimes against humanity on the basis of universal jurisdiction, even when limited to the case where the suspect was present in the territory of the forum State. (ibid., Separate Opinion of Judge Abraham, pp. 611–617, paras. 21, 24–25, 31–39).

In his Dissenting Opinion, Judge ad hoc Sur said that despite the silence of the Court, or perhaps because of such silence, ‘it seems clear that the existence of a customary obligation to prosecute or extradite, or even simply to prosecute, cannot be established in positive law’ (ibid., Dissenting Opinion of Judge ad hoc Sur, p. 610, para. 18).

By contrast, the Separate Opinions of Judge Cançado Trindade (ibid., Separate Opinion of Judge Cançado Trindade, p. 544, para. 143) and of Judge Sebutinde (ibid., Separate Opinion of Judge Sebutinde, p. 604, paras. 41– 42) both stressed that the Court only found that it had no jurisdiction to address the merits of the customary international law issues given the facts presented in the case.

In any case, any reference to the existence or nonexistence of the customary law obligation in the case concerning Questions relating to the Obligation to Prosecute or Extr adite (Belgium v. Senegal), was to the obligation in the cases of crimes against humanity and war crimes in internal armed conflicts. It did not touch upon such obligation in the context of genocide, war crimes in international armed conflicts, or other crimes of international concern like acts of terrorism.

521 For ease of reference, the 2009 General Framework is reproduced here. It reads as follows:

List of questions/issues to be addressed

• (a)

  (a) The legal bases of the obligation to extradite or prosecute

  • (i)

    (i) The obligation to extradite or prosecute and the duty to cooperate in the fight against impunity;

  • (ii)

    (ii) The obligation to extradite or prosecute in existing treaties: Typology of treaty provisions; differences and similarities between those provisions, an d their evolution (cf. conventions on terrorism);

  • (iii)

    (iii) Whether and to what extent the obligation to extradite or prosecute has a basis in customary international law;*

  • (iv)

    (iv) Whether the obligation to extradite or prosecute is inextricably linked with certain particular “customary crimes” (e.g. piracy);*

  • (v)

    (v) Whether regional principles relating to the obligation to extradite or prosecute may be identified.*

• (b)

  (b) The material scope of the obligation to extradite or prosecute

  Identification of the categories of crimes (e.g. crimes under international law; crimes against the peace and security of mankind; crimes of international concern; other serious crimes) covered by the obligation to extradite or prosecute according to conventional and/or customary international law:

  • (i)

    (i) Whether the recognition of an offence as an international crime is a sufficient basis for the existence of an obligation to extradite or prosecute under customary international law;*

  • (ii)

    (ii) If not, what is/are the distinctive criterion/criteria? Relevance of the jus cogens character of a rule criminalizing certain conduct?*

  • (iii)

    (iii) Whether and to what extent the obligation also exists in relation to crimes under domestic laws?

• (c)

  (c) The content of the obligation to extradite or prosecute

  • (i)

    (i) Definition of the two elements; meaning of the obligation to prosecute; steps that need to be taken in order for prosecution to be considered “sufficient”; question of timeliness of prosecution;

  • (ii)

    (ii) Whether the order of the two elements matters;

  • (iii)

    (iii) Whether one element has priority over the other – power of free appreciation (pouvoir discrétionnaire) of the requested State?

• (d)

  (d) Relationship between the obligation to extradite or prosecute and other principles

  • (i)

    (i) The obligation to extradite or prosecute and the principle of universal jurisdiction (does one necessarily imply the other?);

  • (ii)

    (ii) The obligation to extradite or prosecute and the general question of “titles” to exercise jurisdiction (territoriality, nationality);

  • (iii)

    (iii) The obligation to extradite or prosecute and the principles of nullum crimen sine lege and nulla poena sine lege;**

  • (iv)

    (iv) The obligation to extradite or prosecute and the principle non bis in idem (double jeopardy);**

  • (v)

    (v) The obligation to extradite or prosecute and the principle of non-extradition of nationals;**

  • (vi)

    (vi) What happens in case of conflicting principles (e.g.: non-extradition of nationals v. no indictment in national law? obstacles to prosecute v. risks for the accused to be tortured or lack of due process in the State to whi ch extradition is envisaged?); constitutional limitations.**

• (e)

  (e) Conditions for the triggering of the obligation to extradite or prosecute

  • (i)

    (i) Presence of the alleged offender in the territory of the State;

  • (ii)

    (ii) State’s jurisdiction over the crime concerned;

  • (iii)

    (iii) Existence of a request for extradition (degree of formalism required); Relations with the right to expel foreigners;

  • (iv)

    (iv) Existence/consequences of a previous request for extradition that had been rejected; (v) Standard of proof (to what extent must the request for extradition be substantiated);

  • (vi)

    (vi) Existence of circumstances that might exclude the operation of the obligation (e.g. political offences or political nature of a request for extradition; emergency situations; immunities).

• (f)

  (f) The implementation of the obligation to extradite or prosecute

  • (i)

    (i) Respective roles of the judiciary and the executive;

  • (ii)

    (ii) How to reconcile the obligation to extradite or prosecute with the discretion of the prosecuting authorities;

  • (iii)

    (iii) Whether the availability of evidence affects the operation of the obligation;

  • (iv)

    (iv) How to deal with multiple requests for extradition;

  • (v)

    (v) Guarantees in case of extradition;

  • (vi)

    (vi) Whether the alleged offender should be kept in custody awaiting a decision on his or her extradition or prosecution; or possibilities of other restrictions to freedom?;

  • (vii)

    (vii) Control of the implementation of the obligation;

  • (viii)

    (viii) Consequences of non-compliance with the obligation to extradite or prosecute.

• (g)

  (g) The relationship between the obligation to extradite or prosecute and the surrender of the alleged offender to a competent international criminal tribunal (the “third alternative”)

  To what extent the “third” alternative has an impact on the other two.

  [* It might be that a final determination on these questions will only be possible at a later stage, in particular after a careful analysis of the scope and content of the obligation to extradite or prosecute under existing treaty regimes. It might also be advisable to examine the customary nature of the obligation in relation to specific crimes.

  ** This issue might need to be addressed also in relation to the implementation of the obligation to extradite or prosecute (f).]

522 At the Sixth Committee debate in 2012, Austria, the Netherlands, and Vietnam considered the 2009 General Framework a valuable supplement to the work of the Commission. In the Netherlands’ opinion, the work of the Commission should eventually result in presenting draft articles based on that General Framework. At the Sixth Commit tee debate in 2013, Austria reiterated the usefulness of the 2009 General Framework to the work of the present Working Group.

523 Available at http://www.unodc.org/pdf/model_law_extradition.pdf. See also Revised Manuals on the Model Treaty on Extradition and on the Model Treaty on Extradition and on the Model Treaty on Mutual Assistance in Criminal Matters, available at: http://www.unodc.org/pdf/model_treaty_extradition_revised_manual.pdf (visited on 3 June 2014).

524 Secretariat Survey (2010), para. 139.

525 Ibid., para. 142.

526 A good example is art. 1 of the Additional Protocol, dated 15 Oct. 1975, to the 1957 European Convention on Extradition, which reads:

“For the application of Article 3 [on political offences] of the Convention, political offences shall not be considered to include the following:

• (a)

  (a) the crimes against humanity specified in the Convention on the Prevention and Punishment of the Crime of Genocide adopted on 9 December 1948 by the General Assembly of the United Nations;

• (b)

  (b) the violations specified in Article 50 of the 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Article 51 of the 1949 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked members of Armed Forces at Sea, Article 130 of the 1949 Geneva Convention relative to the Treatment of Prisoners of War and Article 147 of the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War;

• (c)

  (c) any comparable violations of the laws of war having effect at the time when this Protocol enters into force and of customs of war existing at that time, which are not already provided for in the above-mentioned provisions of the Geneva Conventions” (Council of Europe Treaty Series No. 086).