Abstract
The idea behind the maxim aut dedere, aut judicare originally stems from Grotius. He wrote in 1625:
“...since the organization of states, it is agreed that the crimes of individuals, in so far as they properly concern the community to which they belong, should be left to the states themselves and their rulers, to be punished or condoned at their discretion. But so comprehensive a right has not been granted to states and their rulers in the case of crimes which in some way affect human ociety, and which it is the right of other states and their rulers to follow up...
Much less do states and their rulers possess this full authority in the case of crimes by which another state or its ruler is in a special sense injured, and on account of which that ruler or state, for the sake of dignity or seurity, has the right to exact punishment, in accordance with our previous conclusions. Therefore, the state in which the guilty persn dwells, or its ruler, ought not to interfere with this right. Since as a matter of fact states are not accustomed to permit other states to cross their borders with an armed force for the purpose of exacting punishment, and since such a course is inexpedient, it follows that the state in which he who has been found guilty dwells ought to do one of two things. When appealed to, it should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal. This latter course is rendition, a procedure more frequently mentioned in historical narratives.(...)
All these examples nevertheless must be interpreted in the sense that a people or king is not absolutely bound to surrender a culprit, but, as we have said, either to surrender or to punish him.“ 1
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Notes
De jure belli ac pacis,Liber II, Caput XXI, para III-1,2, IV-1,3; Translation F.W. Kelsey, ed. The Classics of International Law, Oxford/London 1925 (italics added, N.K.).
E.g. Convention for the suppression of counterfeiting currency (Geneva 1929), Art. 3; Red Cross Convention (Geneva, 1949), Art. 49, 50, 129, 146 respectively; Single Convention on narcotic drugs (New York, 1961) Art. 36–1; Convention on Psychotropic substances (Vienna, 1971) Art. 22–1(a); O.A.S. Convention to prevent and punish the acts of terrorism taking the form of crimes against persons and related extortion that are of international significance (Washington, 1971), Art. 1,8 d; Convention on the prevention and punishment of crimes against internationally protected persons, including diplomatic agents (New York, 1973) Art. 2; International Convention against the taking of hostages (New York, 1979 ) Art. 1,2; Convention on the physical protection of nuclear materials (Vienna, New York, 1980) Art. 7.
E.g. Convention for the suppression of counterfeiting currency (Geneva, 1929) Art. 10; Convention for the suppression of unlawful seizure of aircraft (The Hague, 1970) Art. 8; Convention for suppression acts against the safety of civil aviation (Montreal, 1971) Art. 8; Convention on the prevention and punishment of crimes against internationally protected persons, including diplomatic agents (New York, 1973) Art. 8–1; European convention for the suppression of terrorism (Strasbourg, 1977) Art. 4; International Convention against the taking of hostages (New York, 1979 ) Art. 10.
Convention for the suppression of unlawful seizure of aircraft (The Hague 1970) Art. 4–2; Convention for the suppression of unlawful acts against the safety of civil aviation (Montreal, 1971) Art. 5–2; Convention on the prevention and punishment of crimes against internationally protected persons, including diplomatic agents (New York, 1973) Art. 3; European Convention on the suppression of terrorism (Strasbourg, 1977) Art. 6; International Convention against the taking of Hostages (New York, 1975 ) Art. 5.
Hague Convention (1970) Art. 7; Montreal Convention (1971) Art. 7; New York Convention (1973) Art. 7; Strasbourg Convention (1977) Art. 7; New York Convention (1979) Art. 8. Similar provisions have been laid down in: The International Convention for the suppression of counterfeiting currency (Geneva, 1929) Art. 8,9; the Red Cross Conventions (Geneva, 1949) Art. 49, 50, 129 and 146 respectively; the Single Convention on narcotic drugs (New York, 1961) Art. 36–2 (iv.); the O.A.S. Convention to prevent and punish the acts of terrorism taking the form of crimes against persons that are of international significance (Washington, 1971) Art. 5.
Unlike, for example, the Convention on psychotropic substances (Vienna, 1971 ) Art. 2, by which the power of determining which psychotropic substances should come under the criminal law is delegated by the participant states to an international organization. The State of the Netherlands is not a party to this convention.
A similar result is reached by adopting a provision such as Art. 36–4 of the Single Convention on narcotic drugs (New York, 1961): “Nothing contained in this article shall affect the principle that the offences to which it refers shall be defined, prosecuted and punished in conformity with the domestic law of a Party”.
See for example, the provisions mentioned in note 24.
E.g. Art. 6 of the European Convention on the suppression of terrorism. See also the Explanatory Report to this convention, par. 55, 56.
Autrefois acquit, or autrefois convict.
Examples of treaty provisions that do not make this condition are the Hague Convention (1970) Art. 7; the Montreal Convention (1971) Art. 7; the New York Convention (1979) Art. 7. To the latter convention, the State of the Netherlands is not yet a party.
No extradition will take place unless on the basis of a treaty“, is stated in art. 2 of the Extradition Act. (1967).
chwr(133). and the general conditions under which treaties with foreign states concerning the extradition of aliens can be madechwr(133). shall be laid down by statute“. (Art. 4 of the Netherlands Constitution, to which the opening words of the Extradition Act refer).
Supreme Court decisions HR 13–3–1973, NJ 1973–289 and HR 22–7–1974, NJ 1974501. Under the Netherlands Constitution, ratification of treaties is subject to parliamentary approval (Art. 60). In case of conflict between a self–executing treaty provision and an Act of Parliament, the treaty provision prevails (Art. 66).
The Convention for the Suppression of Counterfeiting Currency (Geneva, 1929) Art. 8, 9. The Red Cross Conventions (Geneva, 1949), Art. 49, 50, 129, 146 respectively. The Single Convention on narcotic drugs (New York, 1961), Art. 36–2 (iv). The Convention for the suppression of unlawful seizure of aircraft (The Hague, 1970), Art. 7. The Convention for the suppression of unlawful acts against the safety of civil aviation (Montreal, 1971), Art. 7. The International Convention against the taking of hostages (New York, 1973) Art. 8. The European Convention on the Suppression of Terrorism (Strasbourg, 1977 ), Art. 7. Ratification of the latter convention is still pending. The Geneva Convention (1929), the Red Cross Convention (1949) and the New York Single Convention (1961) do not contain provisions obliging the parties to establish the jurisdiction, necessary for prosecution as an alternative to extradition.
The condition that extradition should have been actually requested has neither been made in the Red Cross Conventions, nor in the Hague and Montreal Conventions mentioned in the previous reference. In the Geneva Convention for the Suppression of Counterfeiting Currency (1929), it has only been made in relation to offences committed by foreigners abroad (Art. 9).
Art. 167–2 and Art. 242–2 of the Netherlands Code of Criminal Procedure.
According to Art. 36–2 (iv) of the Single Convention on narcotic drugs (New York, 1961), serious offences shall be prosecuted. See, however, note 7.
Under the European Convention on Extradition (Paris, 1957), Art. 8, and under the extradition treaty with Belgium and Luxemburg (Brussels, 1962 ), Art. 7, this provision is optional.
The prosecution may, for this reason, be suspended by order of the Minister of Justice. Art. 9 (2), Extradition Act.
See note 15.
Art. 10, Extradition Act.
See note 16.
The convention for the suppression of unlawful seizure of aircraft (The Hague, 1970), Art. 7; the Convention for the suppression of unlawful acts against the safety of civil aviation (Montreal, 1971), Art. 7, and the European Convention on the suppression of terrorism (Strasbourg, 1977 ), Art. 7, require that the prosecuting authorities shall take their decision in the same manner as in the case of any offence of a serious nature.
When the Netherlands government, in 1920, refused the extradition of the German ex-Emperor, it assumed the duty to take the necessary measures of precaution and of submitting his liberty to limitations in order to safeguard international security. (Diplomatic note to the British government, 2nd March 1920, published W 10529).
Art. 26, Aliens Act.
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Keijzer, N. (1982). Aut dedere, aut judicare. In: Ulrich, H., D’Oliveira, J. (eds) Netherlands Reports to the XIth International Congress of Comparative Law Caracas 1982. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-4443-0_22
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