The State in the territory under whose jurisdiction the alleged offender is present shall submit the case to its competent authorities for the purpose of prosecution, unless it extradites or surrenders the person to another State or competent international criminal tribunal. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.
1. Comments and observations
196. States provided comments on draft article 10 both in writing and in statements before the Sixth Committee during the seventy-first and seventy-second sessions of the General Assembly.
197. Several States485 and the OHCHR486 expressed their general support for the draft
article. The Czech Republic welcomed inclusion of the term “surrender” as “reflecting the different terminology used in various international instruments ”.487
Austria indicated its understanding that the term “international criminal tribunal” as
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484 See paragraphs 192 to 194 above.
485 Argentina, Official Records of the General Assembly, Seventy-second Session, Sixth Committee,
26th meeting (A/C.6/72/SR.26), para. 15; Chile, Official Records of the General Assembly,
Seventy-first Session, Sixth Committee, 25th meeting (A/C.6/71/SR.25), para. 99; Crimes against humanity: Comments and observations received from Governments, international organizations
and others (A/CN.4/726), chapter II.B.11: Chile and the Czech Republic; Jordan, Official
Records of the General Assembly, Seventy-second Session, Sixth Committee, 22nd meeting
(A/C.6/72/SR.22), para. 24; Mexico, Official Records of the General Assembly, Seventy-first
Session, Sixth Committee, 26th meeting (A/C.6/71/SR.26), para. 18; the Netherlands, Official
Records of the General Assembly, Seventy-second Session, Sixth Committee, 20th meeting
(A/C.6/72/SR.20), para. 21; Crimes against humanity: Comments and observations received from
Governments, international organizations and others (A/CN.4/726), chapter II.B.11, Panama;
Peru, Official Records of the General Assembly, Seventy-second Session, Sixth Committee, 19th
meeting (A/C.6/72/SR.19), para. 9; Crimes against humanity: Comments and observations
received from Governments, international organizations and others (A/CN.4/726), chapter II.B.6,
Peru; Slovakia, Official Records of the General Assembly, Seventy-first Session, Sixth Committee,
26th meeting (A/C.6/71/SR.26), para. 141; Switzerland, ibid., 24th meeting (A/C.6/71/SR.24), para. 67; Crimes against humanity: Comments and observations recei ved from Governments,
international organizations and others (A/CN.4/726), chapter II.B.11, Switzerland; and Thailand,
Official Records of the General Assembly, Seventy-second Session, Sixth Committee, 19th meeting (A/C.6/72/SR.19), para. 62.
486 Crimes against humanity: Comments and observations received from Governments, international
organizations and others (A/CN.4/726), chapter III.B.9, OHCHR. See also ibid., chapter III.A,
Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non - recurrence; Amnesty International, “17-point program ...” (footnote 143 above), p. 2; and Commission nationale consultative des droits de l’homme, Avis ... (footnote 305 above), pp. 23–24.
487 Crimes against humanity: Comments and observations received from Gover nments, international
used in the draft articles “includes ... hybrid courts”.488 The Special Rapporteur agrees
that extradition or surrender to hybrid courts is covered by the “unless” clause in this draft article.
198. Sweden (on behalf of the Nordic countries) questioned the structure of the draft article, indicating that “it would be useful to assess whether it is always necessary for such cases to be submitted to the competent authorities for the purpose of prosecution, even without the requesting [S]tate calling for such submission”.489 Yet all other
States viewed this “Hague formula” approach as appropriate in this context. Indeed, Belgium proposed that the title of the draft article be changed to “judicare aut dedere” or “judicare vel dedere”, so as to stress that the obligation is, in the first instance, to submit the matter to prosecution, whether or not there exists an extradition request.490
The Special Rapporteur notes that the Commission considered using a title for the draft article that was technically a more accurate Latin phrase but elected to use the existing title, deeming it the most familiar phrase in common use in this context. 199. Greece and Romania491 each suggested that the wording of draft article 10 might
be better aligned with the actual “Hague formula” used in various treaties.492 Thus,
Greece proposed that the first sentence read: “The State in the territory under whose jurisdiction the alleged offender is present shall, if it does not extradite or surrender him or her to another State or competent international criminal tribunal, submit the case to its competent authorities for the purpose of prosecution.”493 The Special
Rapporteur views this as a non-substantive change that more closely follows the text of the standard “Hague formula” and therefore may be more familiar to the competent authorities of States.
200. Slovakia and Thailand both noted that it was unclear whether the principle of
aut dedere aut judicare reflected customary international law, with the latter
suggesting that State practice should be further examined.494 The Special Rapporteur
notes that the Commission is not seeking to determine whether this provision reflects customary international law, a matter previously considered by the Commission.495
Rather, here the Commission is drafting a provision that is often used in treaties addressing crimes for the purpose of a possible future convention.
201. Panama proposed that a time element be introduced into the draft article, requiring a State to submit the matter to prosecution “within a reasonable period of time”.496 In that regard, it noted that the International Court of Justice has viewed
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488 Ibid., chapter II.A, Austria.
489 Ibid., chapter II.B.8, Sweden (on behalf of the Nordic countries). 490 Ibid., chapter II.B.11, Belgium.
491 Ibid., Greece; Greece, Official Records of the General Assembly, Seventy-first Session, Sixth Committee, 25th meeting (A/C.6/71/SR.25), para. 32; and Romania ibid., para. 76.
492 Article 7 of the Convention for the suppression of unlawful seizure of aircraft (The Hague,
16 December 1970), United Nations, Treaty Series, vol. 860, No. 12325, p. 105, reads:
The Contracting State in the territory of which the alleged offender is found shall, if it
does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.
493 Crimes against humanity: Comments and observations received from Governments, international
organizations and others (A/CN.4/726), chapter II.B.11, Greece.
494 Slovakia, Official Records of the General Assembly, Seventy-first Session, Sixth Committee, 26th
meeting (A/C.6/71/SR.26), para. 141; and Thailand, Official Records of the General Assembly,
Seventy-second Session, Sixth Committee, 19th meeting (A/C.6/72/SR.19), para. 62.
495 See the report of the Commission on the work of its sixty-sixth session, Official Records of the
General Assembly, Sixty-ninth session, Supplement No. 10 (A/69/10), chapter VI.
such an obligation as existing with respect to such a provision.497 The Special
Rapporteur agrees that the case must be submitted to the competent authorities for the purpose of prosecution within a reasonable period of time, but views such an element as implicit in the obligation.
202. Switzerland recommended that the draft article also address the situation where “a person who is sentenced in one State for a crime against humanity but who has not served his or her sentence is currently present in another State”, in which case “the latter State should also extradite the person or enforce the sentence itself ”.498 The
Special Rapporteur notes that a State may pursue extradition for this purpose, as facilitated by draft article 13, with the issue of a refusal to extradite in that context expressly addressed in paragraph 8 of that draft article.
203. The Russian Federation recommended deleting the reference to “competent international criminal tribunal”, since such surrender was regulated by special agreements and thus outside the purpose of the draft articles.499 In contrast, the Czech
Republic and Switzerland proposed retaining the reference.500 Further, the Czech
Republic suggested clarifying in the text that surrender to an international criminal tribunal is possible only where such State has recognized the tribunal’s jurisdiction.501
The Special Rapporteur notes that draft article 10 contains no requirement that a State surrender an alleged offender to an international criminal tribunal. Were a State to do so (rather than to submit the matter to prosecution within its own national law), such surrender would occur subject to whatever relevant international instruments may exist relating to that tribunal, whose jurisdiction might arise from a treaty to which the State has adhered or from a Security Council resolution.
204. Sierra Leone stressed that the phrase “submit the case to its competent authorities” leaves intact prosecutorial discretion as to whether the evidence exists to support a prosecution.502 Australia indicated that “it would be useful to clarify that
where the State in question is a common law jurisdiction, ‘submission to competent authorities for prosecution’ would entail provision of relevant information to police for their evaluation and then, if sufficient information is available, investigation, in accordance with relevant procedures and policies. If a police investigation reveals sufficient evidence of criminal conduct, a brief of evidence would be prepared for a prosecutorial authority. A decision on whether to commence a prosecution would be made independently in accordance with relevant policies.”503
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organizations and others (A/CN.4/726), chapter II.B.11, Panama. See also IBA War Crimes
Committee, Comments ... (footnote 60 above), pp. 10–11.
497 See Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal),
Judgment, I.C.J. Reports 2012, p. 422, p. 460, para. 114 (“While Article 7, paragraph 1, of the
Convention [against torture and other cruel, inhuman or degrading treatment or punishment] does not contain any indication as to the time frame for performance of the obligation for which it provides, it is necessarily implicit in the text that it must be implemented within a reasonable time, in a manner compatible with the object and purpose of the Convention”).
498 Crimes against humanity: Comments and observations received from Governments, international
organizations and others (A/CN.4/726), chapter II.B.11, Switzerland.
499 Russian Federation, Official Records of the General Assembly, Seventy-first Session, Sixth
Committee, 25th meeting (A/C.6/71/SR.25), para. 66.
500 Crimes against humanity: Comments and observations received from Governments, international
organizations and others (A/CN.4/726), chapter II.B.11: the Czech Republic and Switzerland.
501 Ibid., chapter II.B.11, the Czech Republic. To that end, it proposed using language from article 9,
paragraph 2, of the International Convention for the Protection of All Persons from Enforced Disappearance (“… unless it extradites or surrenders him or her to another State in accordance with its international obligations or surrenders him or her to an international criminal tribunal whose jurisdiction it has recognized”).
502 Ibid., Sierra Leone. 503 Ibid., Australia.
205. The Special Rapporteur suggests that clarifications could be included in the Commission’s commentary to address such points. Indeed, the requirement that the State “submit the case to its competent authorities for the purpose of prosecution” and that those “authorities shall take their decision in the same manner” as any offence of a grave nature, means that prosecutorial discretion operates in the usual way, whereby the prosecutor will consider whether sufficient evidence exists against the alleged offender, whether the legal standards for a crime against humanity have been met, and whether there are any other relevant factors, such as determining whether the interests of justice are served in prosecuting the alleged offender. Such factors typically operate within national criminal justice systems504 and are also considered when deciding
whether to proceed with an investigation and prosecution at the International Criminal Court.505
206. Finally, Chile proposed further provisions in this draft article regarding the principle of ne bis in idem, whereby the obligation to submit the matter to prosecution does not exist if the alleged offender has already been convicted or acquitted of the same offence. To that end, Chile suggested using text drawn from article 20 of the Rome Statute of the International Criminal Court.506 The Special Rapporteur notes
that the application of such a principle would need to be considered in relation to at least three different contexts: prosecution for the same offence twice in the same State; prosecution for the same offence in one State after conviction or acquittal in another State; and prosecution for the same offence by a State and by an international criminal tribunal. The Commission’s approach to such matters has been to leave them to be regulated by existing treaties507 and customary international law on human
rights, which must be applied for any alleged offender pursuant to draft article 11. The Commission has not sought to replicate such human rights law in these draft articles; were it to try to do so, many principles beyond ne bis in idem would need to be considered as well.
2. Recommendation of the Special Rapporteur
207. Based on the comments received,508 the Special Rapporteur recommends a non-
substantive adjustment of draft article 10, so as to be more closely aligned wi th the text of the standard “Hague formula.”509 The draft article might read:
“The State in the territory under whose jurisdiction the alleged offender is present shall, if it does not extradite or surrender the person to another State or
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504 See, for example, J. H. Langbein, “Controlling prosecutorial discretion in Germany”, University
of Chicago Law Review, vol. 41, No. 3 (Spring 1974), pp. 439–467; D. J. Galligan, Discretionary Powers: a Legal Study of Official Discretion, Oxford, Clarendon Press, 1990; and D. D. Ntanda
Nsereko, “Prosecutorial discretion before national courts and international tribunals”, Journal of
International Criminal Justice, vol. 3, No. 1 (March 2005), pp. 124–144.
505 See the Rome Statute of the International Criminal Court, art. 53. See also S. SáCouto and
K. Cleary, “The gravity threshold of the International Criminal Court”, American University
International Law Review, vol. 23, No. 5 (2008), pp. 807–854; K. A. Rodman, “Is peace in the
interests of justice? The case for broad prosecutorial discretion at the International Criminal Court”, Leiden Journal International Law, vol. 22, No. 1 (March 2009), pp. 99–126; and K. Vaid, “Discretion operationalized through paw: proprio motu decision-making at the International Criminal Court”, Florida Journal International Law, vol. 25, No. 3 (December 2013), pp. 359–416.
506 Crimes against humanity: Comments and observations received from Governments, international
organizations and others (A/CN.4/726), chapter II.B.11, Chile.
507 See, for example, International Covenant on Civil and Political Rights, art. 14, para. 7; and
Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (Strasbourg, 22 November 1984), United Nations, Treaty Series, vol. 1525, No. 2889, p. 195, art. 4, para. 1.
508 See paragraph 199 above.
competent international criminal tribunal, submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.”
208. No other changes to draft article 10 are recommended, but the Commission may wish to consider changes to the commentary that take into account some of the comments received. The Special Rapporteur will make proposals to this effect in due course.