Chapter 7: State Jurisdiction and Immunities
161
to either prosecute or extradite those persons who are suspected of having committed
the prescribed offence. The
aut dedere aut judicare
principle is, itself, subject to the
conventional and customary limitations attached to extradition.
126
This principle,
which is established only by treaty,
127
creates an affirmative obligation on parties to
multilateral criminal law conventions to prosecute, but the treaties which contain it
do not
per se
constitute an independent legal basis for extradition. Extradition is
dependent on the existence of specific bi- or multilateral treaties. Under the various
international criminal law conventions, Member States enjoy a discretion as to which
extradition request will be satisfied upon refusal to prosecute. As the
Lockerbie
case
has demonstrated, the
aut dedere
component of the principle requires that prosecution
be carried out independently of the executive and in accordance with international
standards. In that case, Libya refused to extradite two of its nationals accused by the
US and UK of detonating an explosive device on a Pan Am flight over Lockerbie,
Scotland, arguing, instead, that it had discharged its obligation under Art 7 of the
1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety
of Civil Aviation (Montreal Convention) to investigate the liability of the accused.
Although the subsequent Libyan investigation acquitted the two accused, there was
ample evidence to suggest that both were agents of the Libyan Government, which
it is believed was the orchestrator of that terrorist attack.
128
It is very likely that this principle constitutes an obligation
erga omnes
arising from
the status of the offences to which it is applied, as being universal crimes.
129
It follows
from this discussion that failure to enforce the
aut dedere aut judicare
obligation entails
the international responsibility of the apprehending State. This would not be the
result where either no extradition request existed, or if it did, it was not compatible
with extradition law or the general rights of the accused. In such situations,
prosecution does not seem to be obligatory even if in abuse of a State’s ability to do
so. It should also be noted that because the
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