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UNIVERSAL JURISDICTION UNDER CUSTOMARY INTERNATIONAL LAW …
play its role at the phase preceding the commencement of the investigation (if it is
accepted that universal jurisdiction may be exercised, at least at the initial phases of
the proceedings,
in absentia
),
40
as well as in a situation when a state where a suspect
is present is confronted with a concrete choice between prosecution or extradition.
41
According to some authors, the subsidiarity seems to be primarily not a customary
legal rule,
42
but only (similarly to the condition of presence of the alleged offender
on the territory of the prosecuting state) a sensible practical, political limitation,
“a good policy” (having regard to the easier access to evidence in the states with
primary jurisdiction and less demanding proceedings in financial and political terms
in these states) and can be (only) used as an informal criterion taken into account
in the exercise of prosecutorial discretion in conformity with the principle of comity
in international relations.
43
On the other hand, according to other authors, it would
now seem possible to argue that the subsidiarity principle might crystallize (or even
might have crystallized) into a rule of customary international law supplementing
the principle of universal jurisdiction over crimes under international law, arguing
that the
opinio iuris
might be based on the legal recognition of a legitimate primary
interest of those states that are directly connected with the crime, as well as on
considerations of procedural economy.
44
It is suggested that the relevance of the
subsidiarity limitation of the exercise of universal jurisdiction is also dependent on
its inter-connection with the concrete form of other limiting factors, namely the
presence of the alleged offender on the territory of the prosecuting state, and with the
concrete form of other aspects of the whole system of the universal jurisdiction under
customary international law (interpretation of obligation
aut dedere aut iudicare
).
This issue will be further elaborated below. It is submitted that under the current
regime of universal jurisdiction, as described above, it would be more appropriate
that subsidiarity evolves into an international legal rule (combined with prosecutorial
custody over an alleged offender, to the extent that it relies solely on universal jurisdiction, should
carefully consider and, as appropriate, grant any extradition request addressed to it by a State having
a significant link, such as primarily territoriality or nationality, with the crime, the offender, or the
victim, provided such State is clearly able and willing to prosecute the alleged offender.” [para 3 (d)].
40
Strafprozessordnung (Code of Criminal Procedure), section 153f.
41
See F. Lafontaine,
op. cit.
sub 26, pp. 1292-1297. However, F. Lafontaine is of the opinion that
subsidiarity should not be invoked as a justification for inaction based on unclear intentions of the
territorial state or vague investigations in general situations, but only when the alleged offender is
present in the territory of the state exercising universal jurisdiction. F. Lafontaine adds that, in such
a case, the existing legal regime of extradition and mutual legal assistance should provide the necessary
framework for how to take into account the possible inability or unwillingness of another state to
prosecute the relevant crime (relevant national laws and bilateral and multilateral treaties provide for
the possibility of refusing extradition on the grounds of non-discrimination,
non-refoulement
principle
or guarantees of the fair trial; there are also possibilities of monitoring and diplomatic assurances or
guarantees).
42
An Introduction,
op. cit.
sub 5, p. 58; C. Kreß,
op. cit.
sub 10, pp. 579-580.
43
F. Lafontaine,
op. cit.
sub 26, p. 1290-91.
44
Suggesting, however, that the rule would apply not at the initial investigative stage, but only after the
conclusion of an investigation. See C. Kreß,
op. cit.
sub 10, pp. 579-580.