Wither Aut Dedere? The Obligation to Extradite or Prosecute after the ICJ’s Judgment in Belgium v Senegal

André Nollkaemper

SHARES Research Paper 27 (2013), ACIL 2013-16

➡ Click here to download the paper. Also available on SSRN.

Published in: (2013) 4(3) Journal of International Dispute Settlement 501-519.

In this article the question will be explored that was raised, but not fully addressed, in the Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) case: does a state that has custody over a person who is suspected of the crime of torture, but that is unwilling or unable to prosecute that person itself, have an obligation to extradite that person to a state that seeks extradition, and that is able and willing to prosecute the suspect? The International Court of Justice (ICJ or Court) answered the question in the negative. The Court’s judgment exposes the fundamentally weak legal position of states that may have the strongest links with a suspect, and that may be best capable of prosecuting that person. The emergence of an absolutist obligation to prosecute of the custodial state has annihilated competing claims, whether or not these are based on a stronger link or better enforcement capabilities. Paradoxically, the result may be that a suspect may not be prosecuted at all.


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