CYIL 2012

PAVEL ŠTURMA CYIL 3 ȍ2012Ȏ including a general study of jus cogens within the scope of this topic, while some other members put in question such an exclusion, as norms of jus cogens were essentially customary in character. Responding to doubts expressed by one member about the topic, the Special Rapporteur indicated that it had never been the aim, under this topic, to “consider the whole of customary international law” in the sense of examining the substance of the law. Instead, the Commission was only concerned with “secondary” or “systemic” rules on the identification of customary international law. The final outcome of the work of the ILC could be a set of propositions or conclusions, with commentaries. It would not be appropriate for the Commission to be unduly prescriptive, since it was a key characteristic of customary international law that it is formed through a flexible process. 4.6 The obligation to extradite or prosecute (aut dedere aut judicare) This is another “old” topic which remained for the “new” Commission and, unlike the topic on Immunities of State officials, this one seems to be more problematic. Moreover, former Special Rapporteur Mr. Z. Galicki was not reelected as a member of the ILC. Therefore the Commission established a Working Group to make a general assessment of the topic as a whole, focusing on questions concerning its viability and steps to be taken in moving forward, against the background context of the debate on the topic in the Sixth Committee of the General Assembly. Although the WG met several times during the session and discussed informal papers by its Chairman, Mr. K. Kittichaisaree, it was not yet able to decide on the future of the topic. Instead, the Working Group requested its Chairman to prepare a working paper, to be considered at the sixty-fifth session of the ILC in 2013, reviewing the various perspectives in relation to the topic, also in light of the judgment of the ICJ of 20 July 2012. 15 The debate in the WG showed divergent views, from ending the topic as not feasible for further work of the ILC to continuing the search for a possible customary basis of the obligation to extradite or prosecute. Other members were of the opinion that, while incorporated in a number of multilateral treaties, this obligation was not of customary nature. A view was also expressed that the obligation aut dedere aut judicare was not an alone-standing rule of international law but it would only make sense to deal with it in the context of substantive rules (definitions of certain crimes under international law) and of rules on jurisdiction of States, including universal jurisdiction, in respect of such crimes. However, the ILC did not feel it appropriate to include the issue of universal jurisdiction, which was dealt with in the Sixth Committee. In short, an outcome of the debate on this topic seems to be uncertain.

15 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012.

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