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UNIVERSAL JURISDICTION UNDER CUSTOMARY INTERNATIONAL LAW …
Law on Universal Jurisdiction over International Crimes.
29
(To make the problem
more nuanced, it may be noted that, according to some opinions, even within the
framework of the investigations or other pre-trial procedures
in absentia
, there could
or should be a differentiation between non-coercive acts of investigation, such as
gathering of information in a sort of passive investigation, receiving testimonies
from a refugee community based on its territory, or a request, addressed to another
state, for information on one hand, and coercive measures, such as issuance of an
arrest warrant, on the other hand.
30
For example, some authors suggest that “… the
police and the prosecutor could therefore carry out investigations over the alleged
commission of a crime abroad, if they wish, but the actual exercise of criminal
jurisdiction would require the ‚voluntary‘ presence of the suspect in the territory of
the state after the alleged commission of the crime. His voluntary presence would
imply that he subjects himself to the criminal jurisdiction of that state, knowing in
advance that universal jurisdiction could be exercised in accordance with the criminal
legislation of that state…”.)
31
Thus, according to several authors, the presence of
the accused on the territory of the prosecuting state from the very beginning of the
investigation based on universal jurisdiction is not a link in the sense of a basis of
jurisdiction required by international law, but only a national procedural condition for
the exercise of universal jurisdiction, required not as a reflection of an international
legal obligation, but adopted voluntarily only for practical reasons – these reasons
being political concerns (it may be politically inconvenient to have such a wide
jurisdiction because it is not conducive to international relations) and practical
considerations concerning the difficulty in obtaining the evidence and the intention
not to overburden its national judicial system.
32
The goal of an investigation
in
absentia
(gathering information, receiving testimonies) may be to collect evidence as
a form of anticipated legal assistance for the benefit of the state on whose territory
the alleged offender is present, or in light of an anticipated presence of a suspect on
a state’s territory, or (if it is accepted that investigation
in absentia
may also include
coercive acts such as issuance of an arrest warrant or a request of extradition) with
a view to preparing an extradition request to the state on whose territory the alleged
offender is residing or present.
33
The absence of a strict presence requirement for
the investigative part of enforcement of universal jurisdiction, combined with wider
prosecutorial discretion over cases based on universal jurisdiction and with other
conditions for the exercise of universal jurisdiction, namely subsidiarity (see below),
29
African Union (Draft) Model Law on Universal Jurisdiction over International Crimes (EXP/MIN/
Legal/VI, November-December 2011), section 4 (1).
30
An Introduction,
op. cit.
sub 5, p. 52, fn. 55.
31
Antonio Cassese and Paola Gaeta,
Cassese’s International Criminal Law
, 3rd edition, Oxford University
Press, 2013, p. 279.
32
Roger O’Keefe,
op. cit.
sub 20, pp. 751, 757-758; An Introduction,
op. cit.
sub 5, pp. 51-52; Fannie
Lafontaine,
op. cit.
sub 26, pp. 1284-186; Arrest Warrant,
op. cit.
sub 1, dissenting opinion by Judge
van den Wyngaert, para. 56.
33
Claus Kreß,
op. cit.
sub 10, p. 577-578; The Oxford Companion,
op. cit.
sub 4, p. 557.