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Article
Wither Aut Dedere? The Obligation to Extradite or Prosecute after the ICJ's Judgment in Belgium v Senegal
Journal of International Dispute Settlement (2013)
  • André Nollkaemper, University of Amsterdam
Abstract
In this article I explore a narrow question 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.
Keywords
  • international criminal law,
  • extradition,
  • shared responsibility
Disciplines
Publication Date
2013
DOI
10.1093/jnlids/idt025
Citation Information
André Nollkaemper. "Wither Aut Dedere? The Obligation to Extradite or Prosecute after the ICJ's Judgment in Belgium v Senegal" Journal of International Dispute Settlement Vol. 4 Iss. 1 (2013) p. 501 - 519
Available at: http://works.bepress.com/andre_nollkaemper/52/