Session of Cambridge – 1983New Problems of Extradition(Twelfth Commission, Rapporteurs : Mr Karl Doehring)(The English text is authoritative. The French text is a translation.)The Institute of International Law,Recalling the previous Resolutions of the Institute on matter of extradition (Oxford 1880,Geneva 1892, Paris 1984) ;Desirous to contribute to a more effective suppression of crime by means of a betterregulation of the systems of extradition ;Conscious of the need to ensure in this field the observance of fundamental rights of theaccused in particular of his rights of defence,Adopts the following Resolution :I. The Treaty System on Extradition1.Both systems of extradition at present in use, the bilateral and the multilateral, should bedeveloped and extended.2. Since in certain respects the laws of States or groups of States show essential differencesand in order nevertheless to promote a more satisfactory State practice in matters of extradition,States should be encouraged to agree upon a system of extradition in accordance with the general principles of this Resolution. Such agreements might contribute more effectively to thedevelopment of a modern system of extradition than would efforts exclusively aimed atestablishing a universal system.3. The making of reservations to multilateral treaties on extradition should be limited as faras possible.
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24. When there exists no extradition treaty between them, States should nevertheless beencouraged reciprocally to extradite accused persons. The requirements of international lawshould be respected in such cases.II. The Political Offence1.Where the extradition treaty does not expressly contain the right to refuse extradition forpolitical offences, a State may nevertheless invoke this defence in support of its refusal.2. The right to refuse extradition for a political offence should not be replaced by the mereright to grant asylum from political persecution ; the prosecution of a political offender does notalways necessarily amount to persecution justifying the grant of asylum by third States.3. Acts of a particularly heinous character, such as acts of terrorism, should not beconsidered political crimes.III. The Attentat ClauseThe traditional attentat clause should be maintained, and its application should beextended to representatives of States, in particular members of diplomatic missions, and torepresentatives to, and officials of, international organizations.The application of the attentat clause should be extended to acts of a particularly heinous nature.IV. The Protection of the Fundamental Rights of the Human PersonIn cases where there is a well-founded fear of the violation of the fundamental humanrights of an accused in the territory of the requesting State, extradition may be refused,whosoever the individual whose extradition is requested and whatever the nature of the offenceof which he is accused.V. The Relationship between the Grant of Political Asylum and the Duty to ExtraditeNotwithstanding the provisions of Article II, section I, the right to refuse extradition bygranting asylum against political persecution should not be exercised where there is reason toconclude that the requesting State will prosecute the accused with due observance of allrequirements, both substantive and procedural, of the rule of law. Where the treaty to be appliedcontains pertinent provisions, the right to refuse extradition for a political offence should dependon those provisions.VI. Aut judicare aut dedere1. The rule aut judicare aut dedere should be strengthened and amplified, and it shouldprovide for detailed methods of legal assistance.
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32. When a State undertakes to prosecute the person concerned, other interested States, inparticular the State on the territory of which the offence was committed, should be entitled tosend observers to the trial unless serious grounds related to the preservation of State security infact justify the non-admittance of such observers.3. In cases of such prosecution, if the tribunal concerned finds the accused guilty, anappropriate penalty should be imposed similar to that which would normally be applied under the law of that State in a similar case.VII. The Extradition of NationalsWhile every State should in principle remain free to refuse the extradition of its nationals, it should in that event try the offence under its own law. The extradition of nationals, on areciprocal basis, may serve to reduce crime.VIII. The Relationship between an Obligation to Extradite and Municipal Law1.Extradition treaties or appropriate national legislation should provide that a person whose extradition is requested is entitled to invoke before national courts any protective treatyprovision. A person whose extradition is requested should similarly be entitled to rely beforenational courts on rules of customary international law which provide for his protection.2. The fact that the extradition of an alien may be forbidden by municipal law should notprevent his expulsion by legal procedure. It must be left to each State to harmonize its municipalprovisions on extradition and expulsion. The exercise of any right to expel an alien should,internationally, be limited by the duty to respect human rights, in particular by avoiding thedeportation of the person to a State which might persecute him and by avoiding any arbitraryexpulsion.IX. The Settlement of DisputesDisputes concerning treaties on extradition should be submitted to arbitral or judicialsettlement, in particular to the International Court of Justice.*(1stSeptember 1983)
