CYIL Vol. 4, 2013

PETRA BAUMRUK CYIL 4 ȍ2013Ȏ provide for the suppression of acts, which are of concern to the whole international community, universal jurisdiction is applicable. 55 In addition, as a pillar to fill the impunity gap, the duty to extradite or prosecute ( aut dedere aut judicare ) becomes of great importance, along with the doctrines of obligation erga omnes and jus cogens . These doctrines, together with the principle of universal jurisdiction, are important pillars in filling the impunity gap. 2.3.1 Universal Jurisdiction and Aut dedere aut judicare: parallels between two dynamic principles Universal jurisdiction is often coupled with the principle of aut dedere aut judicare , which may be seen as a pillar in the fight against impunity. This principle obliges states having custody of a suspect to either extradite the person to a state having jurisdiction over the case or to instigate its own judicial proceeding. The objective of the principle is to avoid crimes being left unpunished because there is no extradition or prosecution. Under this rule a state is required either to exercise jurisdiction (such as universal jurisdiction) over a suspected person, or to extradite the person to a state which is able and willing to do so, or to an international criminal court with jurisdiction over the suspect and the crime in question. 56 A state subject to aut dedere aut judicare is bound to adopt one choice: either to extradite, if it does not prosecute; or to prosecute, if it does not extradite. 57 There are many examples of treaties containing this principle standing alone or meshed with that of universal jurisdiction. 58 There is therefore a thin line between the principle of aut dedere aut judicare and that of universal jurisdiction. For example, from the text of the 1948 Geneva Convention one might assert that the principle of aut dedere aut judicare is represented by the wording: “[…] shall be under the obligation to search…and it may also, if it prefers…hand such persons over for trial….” and universal jurisdiction: “enact any legislation necessary”. 59 Nevertheless, one has to keep in mind that the obligation of aut dedere aut judicare is conceptually 57 Tribelli, Carlo: Aut Dedere Aut Judicare: A Response to Impunity in International Criminal Law. Sri Lanka Journar of International Law , Vol. 21 (1), 2009, p. 234. See further on the principle Aut Deder Aut Judicare also Platcha, Michael: Aut Dedere Aut Judicare: An overview of Modes of Implemention and Approaches. Maastricht Journarl of European and Comperative Law , Vol. 6 (4), 1999. 58 Examples of conventions that enshrine the duty to prosecute or extradite are: Unlawful Seizure of Aircraft Convention (Article 7); Unlawful Acts against Aircraft Convention (Article 7); Internationally Protected Persons Convention (Article 7); Hostages Convention, article 8(1); Torture Convention [Article 7(1) and (2)]; Unlawful Acts against Maritime Navigation Convention, article 10(1); UN and Associated Personnel Convention, Article 14; Terrorist Bombings Convention (Article 8); Enforced Disappearance Convention [Article 11(1) and (2)]; 1949 Geneva Convention I (Article 49); 1949 Geneva Convention II (Article 50); 1949 Geneva Convention III (Article 129); 1949 Geneva Convention IV (Article 146). 59 Tribelli, Carlo: op. cit ., p. 244. 55 ibid. 56 Hall, Christopher K.: op. cit ., p. 204.