194 / 350
PAVEL CABAN
CYIL 4 ȍ2013Ȏ
provided with wide discretion in this regard.
23
Conditional universal jurisdiction was
also supported by A. Cassese, who wrote that universality may be asserted subject to
the condition that the alleged offender be on the territory of the prosecuting state at the
time charges are brought and criminal investigations commence. In his own words, “…
universality may be asserted subject to the condition that the alleged offender be on
the territory of the prosecuting state. It would seem contrary to the logic of current
state relations to authorize any state of the world to institute criminal proceedings
(commence investigations, collect evidence and lay out charges) against any foreigner
or foreign state official allegedly culpable of serious international crimes.”
24
However, despite previous assertions, it seems that it cannot be alleged that
the exercise of at least some initial procedural (investigative) steps under universal
jurisdiction
in absentia
is illegal under international law.
25
In addition to the national
legislation of some states (as stated above), as well as similar practice of some other
states,
26
recent resolutions by the Institut de Droit International (2005) and the
International Association of Penal Law (2009)
27
also provide for some form of the
exercise of universal jurisdiction
in absentia
, requiring (explicitly or implicitly) only
that the alleged perpetrator has to be present in the prosecuting state at the time of
the commencement of the trial. The resolution of the Institut de Droit International
requires the presence of the alleged offender in the territory of the prosecuting
state “apart from acts of investigation and requests for extradition”; the resolution
of the International Association of Penal Law provides expressly for the exercise of
universal jurisdiction
in absentia
(including the initiation of the criminal proceedings,
investigation, issuance of an indictment, and request of extradition), except for the
“main proceedings”, i.e. “trials”, when the presence of the alleged perpetrator should be
necessary.
28
A similar provision is also included in the African Union (Draft) Model
23
Steven R. Ratner, Belgium’s War Crimes Statute: A Postmortem,
The American Journal of International
Law
, Vol. 97, 2003, Issue 4, pp. 889-892; Luc Reydams, Belgium Reneges on Universality: The
5 August 2003 Act on Grave Breaches of International Law,
Journal of International Criminal Justice
,
1 (2003), pp. 679-689.
24
A. Cassese,
op. cit.
sub 2, p. 592 and 594.
25
Claus Kreß,
op. cit.
sub 10, p. 577.
26
For relevant examples see Fannie Lafontaine, Universal Jurisdiction – the Realistic Utopia,
Journal of
International Criminal Justice
, 10 (2012), pp. 1284-1286.
27
Which, however, according to its authors, may in some parts reflect a
de lege ferenda
approach to
this subject; see Maja Munivrana Vajda, The 2009 AIDP’s Resolution on Universal Jurisdiction – An
Epitaph or a Revival Call?!,
International Criminal Law Review
, 10 (2010), p. 236.
28
The Resolution of the Institut de Droit International [in its paragraph 3 (b)] provides that “apart from
acts of investigation and requests for extradition, the exercise of universal jurisdiction requires the
presence of the alleged offender in the territory of the prosecuting State or on board a vessel flying its
flag or an aircraft which is registered under its laws, or other lawful forms of control over the alleged
offender.” According to the resolution of the International Association of Penal Law (chapter II, para. 3
and 4) “… [I]nvestigation is admissible
in absentia
; states can initiate criminal proceedings, conduct
an investigation, preserve evidence, issue an indictment, or request extradition. …The presence of the
defendant should be always required for the main proceedings. Therefore, trials
in absentia
shall not be
conducted in cases of universal jurisdiction.”