“Transfer” and “Surrender” versus “Extradition”
To distinguish between inter-State procedures and those involving States and international criminal tribunals, the terms “transfer” and “surrender” are used instead of “extradition” in the relevant international documents.2499 This change in terminology reflects important conceptual and operational differences between transfer or surrender under the Statute and under traditional extradition2500 in that the principles of domestic extradition law should not be invoked against requests for transfer by the ICTY. Rule 58 of the RoPE further clarifies the relationship between Article 29 of the Statute and national extradition provisions, stipulating that “the obligations laid down in Article 29 of the Statute shall prevail over any legal impediment to the surrender or transfer of the accused or of a witness to the Tribunal which may exist under the national law or extradition treaties of the State concerned.”
Therefore, neither the common concepts of extradition law, such as equality and reciprocity or the acceptance of exceptions based on national policy and human rights protection against arbitrary arrest and detention as often contained in national constitutions, extradition treaties or the national legislation of the state in which the defendant is found,2501 nor the (developing) rule of aut dedere aut judicare, requiring states to either extradite or to prosecute those persons accused by another state of a crime defined under international law apply here as these would violate the primacy of the tribunal stipulated in Article 9 paragraph 2 of the ICTY Statute.2502
According to resolution 827 (1993) (paragraph 4) “States shall take any measure necessary under their domestic law to implement the provisions of both the resolution and the Statute, including the obligation of States to comply with requests for assistance and orders issued by a Trial Chamber under Article 29 of the Statute”. It follows that, since 1993, all States have been under an obligation to enact any implementing legislation necessary to permit them to execute arrest warrants and requests of the Tribunal.2503
The Framer of the BiH Constitution, however, only made general reference to “cooperation with the ICTY”. It would have been preferable had the Framer of the Constitution of BiH not only included a provision on the obligation to cooperate and comply with orders under Article 29 of the Statute, but if a provision specifically allowing for the extradition of citizens in clearly defined cases, most importantly for cases of transfer of suspects and accused to the ICTY, had been included.2504
Footnotes
Bassiouni, 2002, p. 49; Gallant, 1996, p. 344.
Gallant, 1996, p. 346.
Gallant, 1996, p. 353.
On the development of the principle of aut dedere aut judicare see: International Law Commission, Preliminary report on the obligation to extradite or prosecute of the Special Rapporteur, GA, A/CN.4/571, 7 June 2006 paragraph 50-51; according to Bassiouni, referring to a significant number of multilateral conventions creating or recognizing crimes under international law, usually containing requirements that signatories extradite alleged offenders, amongst others, a jus cogens norm of aut dedere aut judicare has already arisen, see Bassiouni, 2002, International Extradition, pp. 10, 13-14.
Unless no amendment to internal law is needed for them to do so, see Prosecutor ./. Blaškic, Decision of the President on the Defence Motion Filed Pursuant to Rule 64, IT-95-14-T, 2 April 1996, paragraph 8.
An example of such provision is Article 16 Paragraph 2, second sentence of the constitution of the Federal Republic of Germany (Basic Law), which allows the extradition of citizens in select cases, such as in the case of a transfer to an international tribunal.