The Draft Articles’ provisions on establishment of national jurisdiction, investigation, preliminary measures when an alleged offender is present, and the obligation to prosecute or extradite are also compatible with the rules of IHL governing war crimes committed in both international and non-international armed conflict. Although there are currently no significant discrepancies that would give rise to conflicting legal obligations in a situation of armed conflict, the ICRC would like to share the following observations related to the prosecute-or-extradite (aut dedere aut judicare) obligation.
The ICRC is mindful of proposals by several states to give jurisdictional priority to the state on whose territory the crimes against humanity were committed or to the state of nationality of the perpetrator. These proposals suggest that, when determining whether to prosecute or extradite a person, a state would have a primary obligation to extradite to a state with stronger ties to the perpetrator or crimes, thereby foregoing prosecution in its own courts.
Conversely, such an approach might also lead to prosecution by a State with strong ties to the perpetrator or the crime in circumstances where extradition would have been preferable. The result would be a hierarchy of jurisdictions depending on the facts and circumstances of arrest of the perpetrator in each case.
These suggestions depart from past practice. Analogous provisions of IHL do not contain such an obligation; each state may freely choose whether to prosecute or extradite a suspected perpetrator of grave breaches.3 The same prerogative to choose whether to prosecute or extradite is found in numerous other treaties.4
The ICRC is concerned that imposing a novel, primary obligation to extradite rather than prosecute (or vice versa) would create incompatibilities between a crimes against humanity treaty and other prosecute-or-extradite regimes, including those under IHL. The resulting uncertainty and incoherence would hamper the object and purpose of both bodies of law. The ICRC therefore recommends against such a prescriptive approach and encourages states to preserve the prerogative to prosecute or extradite depending on the totality of the circumstances in each case.
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