Agenda item 82: Report of the International Law Commission

Chapter IX: Obligation to prosecute or extradite

Mr. Chairman,

First of all, let me thank the Special Rapporteur for his Second Report.

The obligation aut dedere aut judicare is instrumental in achieving a world justice system in which perpetrators have no safe havens. In the new era heralded by the establishment of the International Criminal Court, States have come to the realisation that there is a certain – at least moral – obligation to act, whether by extraditing or by prosecuting alleged perpetrators of the most serious crimes.

On this subject, the Netherlands would like to make a few comments.

The Netherlands understands the opinion expressed in the second report that the distinction between the obligation to prosecute or extradite and the principle of universal jurisdiction should be clearly drawen, but would like to once again call attention to the fact that in order to have the possibility to choose between extradition and prosecution, States should ensure that they have jurisdiction over the offenses, including on the basis of universal jurisdiction. The Netherlands has created unviersal jurisdiction for war crimes, crimes against humanity, genocide and torture, provided that the suspect is located on Dutch territory. We are thus in a position to implement our obligation to either prosecute or extradite.

With regard to the practice of the Netherlands concerning the obligation to prosecute or extradite, I would refer you to our written submission.

I would therefore like to turn part IV of the Second Report, concerning Draft rules on the obligation to prosecute or extradite. As noted above, the Netherlands is in favour of paying special attention to the link between the principle of universal jurisdiction and the obligation to prosecute or extradite.

The Netherlands also agrees that a more detailed analysis of the mutual impact of the form and substance of the obligation to extradite or prosecute seems to be required.