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World Court Digest



II. Substantive International Law - Second Part
15. EXTRADITION

¤ Questions of Interpretation and Application
of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya / United Kingdom),
Provisional Measures, Order of 14 April 1992,
I.C.J. Reports 1992, p. 3

[pp. 24-25 J. Decl. Evensen, Tarassov, Guillaume and Mawdsley 1] 2. In so far as general international law is concerned, extradition is a sovereign decision of the requested State, which is never under an obligation to carry it out. Moreover, in general international law there is no obligation to prosecute in default of extradition. Although since the days of Covarruvias and Grotius such a formula has been advocated by some legal scholars, it has never been part of positive law. This being so, every State is at liberty to request extradition and every State is free to refuse it. Should it refuse, a State is not obliged to prosecute.
3. Ten international conventions adopted under the aegis of the United Nations or the specialized agencies since 1970 have nevertheless modified the legal situation between the parties to those conventions.
The Montreal Convention of 23 September 1971 for the Suppression of Unlawful Acts Against the Safety of Civil Aviation is one of the conventions mentioned. Libya, the United Kingdom and the United States are parties to it.
The Convention provides, in Article 7, that

"The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution."

In Article 5 the Convention deals with jurisdictional questions for the purpose of facilitating prosecution. In Article 8 the Convention makes extradition easier, but without creating any obligation in that regard.
Thus, the Montreal Convention, which in our opinion was applicable in this case, did not prohibit Libya from refusing to extradite the accused to the United Kingdom or the United States. It implied merely that, in the absence of extradition, Libya had to submit the case to its competent authorities for the purpose of prosecution.

[p. 38 D.O. Bedjaoui 2] 12. ... Article 7 of the 1971 Montreal Convention, the provision that gave rise to the most discussion and is at the heart of the Libyan Application, categorically imposes on every State party to the Convention the obligation either to extradite or to prosecute before its courts the alleged perpetrators of an offence, in keeping with the traditional option to which the maxim aut dedere aut judicare refers. Without entering into the merits of the case, I would point out that, as is well known, there does not exist in international law any rule that prohibits, or, on the contrary, imposes the extradition of nationals. All that the régime laid down by the Montreal Convention does is to complement general international law by, on the one hand, rendering the various national laws applicable and, on the other hand, imposing on States an "obligation to take action", in accordance with their internal law, by either extraditing or arranging for prosecution before their own courts. This option is now valid, if not under general international law at least between all the States parties to the 1971 Montreal Convention.

[p. 72 D.O. Ranjeva] 2. On the basis of general international law, confirmed by the Montreal Convention, the Applicant enjoys the right to choose expressed in the traditional adage: aut dedere aut judicare; this right is opposable erga omnes and creates the obligation to effectively carry through, in normal conditions, proceedings for the establishment of criminal responsibility in the Lockerbie bombing.

[p. 109 D.O. El-Kosheri 3] 55. Without going into details which are at present not needed in the light of the Order rendered by the Court, the principles underlining the adoption of the Montreal Convention include the rule aut dedere, aut judicare (or aut dedere, aut punire, as the case may be in view of the stage reached, which has been explained by Judge Guillaume in his course at the Hague Academy of International Law, RCADI, op. cit., Chap. IV, pp. 354-371). The rule in question necessarily implies confirmation of the deeply rooted principle of general international law according to which no State can be obliged to extradite any persons, particularly its own citizens, in the absence of a treaty explicitly providing for such extradition. In particular, the provisions of Article 7 read with Article 8 (2) of the Montreal Convention entitle any Contracting State to refuse extradition in all cases not subject to an existing extradition treaty. This has been confirmed, through approval by more than 130 Contracting States, as a sovereign right recognized by general public international law. Accordingly, under the Montreal Convention, no other State or group of States can be considered entitled to force another State to extradite, and this applies particularly with regard to its own citizens when their extradition is prohibited under the State's domestic legal system.

1Cf. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya / United States of America), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, pp. 136-137.
2Cf. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya / United States of America), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 148.
3Cf. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya / United States of America), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 214.