Aut dedere aut judicare, universalità ‘condizionata’ e Convenzione contro la tortura: a margine del caso Belgio c. Senegal

On 20 July 2012 the ICJ settled the dispute between Belgium and Senegal on the application of the principle aut dedere aut judicare under the CAT. Its finding on extradition, as an option offered to the custodial State in order to relieve itself of its obligation to submit case for prosecution, is not convincing. The emerging concept of ‘conditional’ universal jurisdiction over international crimes, as it has been shaped by the subsidiarity principle and supported by legislative and judicial practice, triggered the process of crystallisation of the obligation, incumbent on the custodial State, to examine extradition requests in light of certain factors. These include the willingness and ability of national or territorial States Parties to investigate and prosecute the alleged torturer, in accordance with due process standards. It reflects the logic of substitution for States more directly affected by the offence, which is typical to the protection of international community values.