UN GENERAL ASSEMBLY, SIXTH COMMITTEE (LXVII Session), DEBATE ON THE REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS SIXTY-FOURTH SESSION ON THE OBLIGATION TO EXTRADITE OR PROSECUTE (AUT DEDERE AUT JUDICARE).
On 6 November 2012, during the debate in the Sixth Committee of the UN General Assembly on the Report of the International Law Commission, the Legal Adviser to the Permanent Mission of Italy, Mr Salvatore Zappalà, submitted the comments of his delegation on the work conducted by the ILC on the “Obligation to Extradite or Prosecute (Aut Dedere Aut Judicare)”. After encouraging the Commission to give further energy to its work in the area, he recalled that:
The obligation to extradite or prosecute is an important tool (specifically provided for in certain treaties) for the purpose of avoiding impunity. It is a principle that involves States which have a specific relationship in cooperating with each other in the fight against crimes. It offers a clear choice to the State that captures an alleged offender: either to contribute directly by adjudicating or indirectly by transferring the person to another jurisdiction able and willing.
And he added:
A principle of cooperation underlies the bilateral relationship that can be instituted on the basis of the principle; this principle is particularly important in the area of prosecution of crimes of concern for the international community as a whole, such as e.g. the Rome Statute crimes or crimes of terrorism. It is a useful principle to avoid that States may become safe havens for alleged perpetrators of serious crimes.
There are provisions on aut dedere aut judicare contained in specific conventional rules and domestic legislation which allow for elaborating such a notion. However there may be doubts as to the possibility to identify numerous principles of customary law in this area and de-link them from the conventional context.
A thorough reflection on the existence of principles dealing with jurisdictional gaps in general or in specific areas may be worth exploring and a study of these elements could be appropriate.