Aut Dedere Aut Judicare

Abstract

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 deprehensioni s 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 .

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