The Reliance of the Horizontal System of Enforcement on the Corpus Juris Relating to Extradition

Abstract

The horizontal system of enforcement is largely dependent upon bilateral and multilateral extradition treaties. Whereas multilateral treaties generally target specific crimes, States are increasingly extraditing on the basis of regional treaties. Some rules are phrased in a mandatory way throughout certain treaties, but other similar rules are more leniently (flexibly) drafted within other treaties, leaving therein a considerable amount of discretion upon States. A mandatory provision contrasts sharply with the discretionary nature of another provision, even when like is compared to like, that is, when the aut dedere aut judicare rule is under scrutiny. Indeed the obligation to extradite or prosecute may either be alternative or subsidiary. There may be many reasons to favour the prioritization of the judicare limb over the dedere limb. Yet, practice shows that a prosecution being conducted in the forum conveniens, besides being a very common occurrence, is more likely to be both effective and fair. The dedere limb should be favoured especially when extradition to the forum conveniens is to be undertaken. However, it is equivocal since treaties which either render universal jurisdiction mandatory, facultative, or which seem to permit universal jurisdiction, whilst stipulating the aut dedere aut judicare rule, do not shed a light as to whether such extradition should be effected to the requesting State, to another State party to the treaty, to another State which enjoys non-universal jurisdiction over the extraditee, or to any other State which is willing to exercise universal jurisdiction notwithstanding no connection at all with the crime.