In relation to the definition of whether there is a custom of the international clause of theaut dedere aut judicare applicable to the crime of genocide, it is necessary to start from the examination of the existence or otherwise of an obligation, internationally, to extradite or prosecute perpetrators of universally condemnable crimes regardless of the place in which they occur. Propedeutically to this are definitions of universal crime and universal jurisdiction as well as the meaning of aut dedere aut judicare.
1 - The concept of universal crime
With the ever easier access by the public to information about the events affecting a particular country, the development of international law has greatly increased. A practical example is represented by Rwanda (1994) which has stimulated important legal developments such as the promulgation by the Security Council of the Statute of the International Criminal Tribunal for Rwanda and the basis for the International Criminal Court.
The fundamental data of international humanitarian law is represented by the safeguarding of individual human rights, which have the inherent nature of their non-transferability: the prohibition of their violation is the core of the DIU. They are based on universal validity rules, which can not be ignored even if there are no specific treaties, obligations or explicit commitments that bind the state authority to respect them. Although the instruments for the protection of human rights are not legally binding in a direct way, as an expression of the norms - at least customary - international, they still hold a screw persuasive that, in the case of a possible and hypothetical State responsible for universal crimes, it will be functional to call the State itself to respond to such facts in accordance with an international responsibility violated.
We can therefore define the universal crime as the violation of the imperative right, for that which can never be understood as legitimately violated, risen to protect the human individual.
2 - Universal jurisdiction
The ability of the State to exercise its jurisdiction over a fact that is a universal crime is based on international law. Today the distinction between internal and international conflict becomes increasingly blurred and the fact that can be condemned according to DIU should not be ignored due to the fact that it was committed in an internal conflict: the criminal is condemnable regardless of the context in which he develops the crime. When a State exercises its jurisdiction over a case involving persons or property outside its territorial boundaries, however, the claim must be based on an international jurisdiction principle. Here, then, is founded the principle of universal jurisdiction which presupposes that every state has an interest in exercising its own coercive action to sanction those crimes that the same States - universally - have condemned. Even if the interest can be of an economic or social nature, it can be argued that the extension of the principle of universality is a reflection of international values whose protection is of interest to all members of the world community. Consequently, a state pursues a crime because the object of legal protection is particularly worthy of protection under customary law or a specific treaty, and the prejudice to the protected good is generally recognized as punishable.
Until 1990 international criminal actions against war crimes and crimes against humanity had a residual object that identified with the crimes perpetrated during the Second World War, the only ones to be considered a violation of the fundamental norms of international law humanitarian. Subsequently, on the regulatory level, other behaviors detrimental to humanitarian law were found, such as theapartheid, torture and genocide, all conducted that are sanctioned at the state level on the basis of the mechanism of universal jurisdiction. This expansion of jurisdiction it derives from the constantly growing world consensus towards the will to condemn these crimes: acts that, often indiscriminately, endanger human lives or patrimonial interests.
The Geneva Conventions provide a broadly marked example of the extended nature of universal jurisdiction: all signatories to the Conventions are required to prosecute or extradite the perpetrator of international crimes. Conventions therefore leave a residual will of the prosecution against the alleged perpetrator who finds full support in the brocardo aut dedere aut judicare.
The art. 3 of the Convention on the Prevention and Suppression of the Crime of Genocide defines certain forms of repression of ethnic or cultural groups as a crime under international law. These forms are all those acts that intend to destroy, in whole or in part, a national, ethnic, racial or religious group. These crimes can be committed in both peacetime and wartime. The principle is that those who carry out these conducts incur a criminal action that generates international responsibility regardless of whether the State implementing the action is a signatory to the Convention or not. Crimes against humanity, and the crime of genocide, therefore, allow for the extension of the principle of universal jurisdiction. This can therefore be seen as a loan from the judges of a particular country in the interest of the international community or on the basis of participation in a treaty aimed at guaranteeing the decentralized application of international law. In conclusion, once an act is attributable to the category of universal crime, all States of the world community are competent to prosecute the fact.
3 - The principle ofaut dedere aut judicare
Once it is established that each State can exercise its jurisdiction over an individual who has committed an international crime, it must be specified that there is a general obligation to exercise criminal prosecution, ie it must be that by some legal entity, in high terms from some State, the offender is punished. The principle is that in the absence of sanctioning mechanisms the prohibitions are completely vain (principle that finds maternity in the theory of special prevention of criminal law where the purpose of punishment, as consideration for the wrong committed, as well as being rehabilitative also performs intimidating functions towards other members). The punishment is therefore a corollary to the prohibition.
This principle ofaut dedere aut judicare has a double hat, that is to be a norm of a customary nature, then accepted and applied by many members of the international community for some time, but also general nature being explicitly provided for by art. 38, c. 1, let. C, of the Statute of the International Court of Justice as an instrument to achieve the objective of guaranteeing peace and international security being the vehicle that ensures effective promotion through the repression of conflicting behavior.
Historically, the principles of sovereignty, equality and political independence of States have imposed the obligation to refrain from any intervention in the internal affairs of other countries: no interference, let alone judicial, was therefore allowed. This non-interventionist approach, totally hands off, it is increasingly seen by the international community as unacceptable. The principle of aut dedere aut judicare it does not present any friction with the sovereignty of the single States, since the proceeding State can freely choose whether to judge or extradite without having to respect a prevalence hierarchy between these two actions, which none is residual to the other.
4 - The crime of genocide
The genocide is a crimen iuris gentium which faces, for the first time in a decisive manner, in international law with the Nazi crimes of which the Court of Nuremberg was responsible. It is defined as the intentional destruction of a national, ethnic or religious group, meaning that also appears within the art. 2 of the 1948 Convention for the Punishment and Repression of the XNUMX Genocide. This definition is taken up in substantially identical terms in the Statutes of the two Courts and following the best practices established by the Security Council for the former Yugoslavia, of the 1993, and for Rwanda, of the 1994, as well as in the Rome Statute of the 1998 International Criminal Court. Today this definition, although remaining substantially unchanged, has undergone slight changes and extensions. We can see this crime as a composite of three elements: the first, the objective one, is the commission of one or more acts such as the killing of the group members, the serious injuries of the physical and / or psychic integrity of the group members, the 'imposition of living conditions that involve the destruction of the group, measures to prevent the birth in a group, and the forced transfer of children, to destroy the language, culture, traditions of the group. The second element is the psychological one represented by the specific intent: the intent to destroy the group. It is however quite difficult to determine the existence of the legal figure of the attempted crime, since it is difficult to find objective elements that reveal the existence of a real in this sense (the proof could however be inferred from the presence of a series of pipelines). The last element is represented by the passive object, ie by the victim, by the group type.
5 - Conclusion
In conclusion we can say that the condicio sine qua non for which a state can punish a person whose criminal action has no connection with him, is that this action is characterized by a clear violation of the general interests of the international community, in other words it must be a universal crime. In this context, the duty that the State undertakes on the state collective will be either to proceed against the offender or to allocate it to another non-national judge: the expression aut dedere aut judicare underlines, therefore, the universal nature of certain crimes - and certainly genocide - by binding the international legal community to punish the perpetrators of the same, regardless of locus commissi delicti or by the nationality of the agents as universally condemnable actions. In light of the above, we can certainly recognize the existence of a custom of application of the principle of judgment or of the devolution of it also with regard to the crime of genocide for the reasons that, being the violation of an internationally guaranteed interest, it must be protected at the interstate level and must have a guarantee of universal repression and sanction.
(pictured some of the victims of the genocide in Rwanda al Genocide Memorial Center of Kigali)
