The Relationship of Prosecution by the State of the Victim and the State Where the Accused Is Present in light of the Obligation Prosecute or Extradite in the 1973 Convention

Document Type : Original Article

Authors

1 Faculty Member of the Institution for Research and Development in the Humanities (SAMT)

2 Assistant Professor of International Law at the University of Tehran, Faculty of Law and Political Science

10.22034/jclc.2024.421620.1926

Abstract

The obligation to prosecute or extradite is a primary obligation that is mainly included in treaties aimed at combating impunity. The initial basis for fulfilling this obligation is the State in whose territory the accused is present. In this case, the concerned State should either respond positively to the possible extradition request of another State regarding the accused or initiate the prosecution of the accused. However, the question that may be raised is that if a State party to the relevant treaty other than the State that holds the accused, can it be said that due to the absence of the accused, there is no possibility of a trial, or at least it can be considered conducting preliminary investigations in order to extradite? In fact, what is the ratio of the investigation by the State of the victim and the State where the accused is present? In this article, by examining the study of the International Law Commission and the jurisprudence of the International Court of Justice, and with a special focus on the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Missions, it is suggested that, on the one hand, conducting preliminary investigations is a condition for requesting extradition and on the other hand, the delay in prosecution and trial will also be considered a violation of the obligation to prosecute.

Keywords

References

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Journal of Criminal Law and Criminology
Volume 11, Issue 22
March 2024
Pages 315-338

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