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UNIVERSAL JURISDICTION UNDER CUSTOMARY INTERNATIONAL LAW …
the International Law Convention,
58
“… the 1970 Convention establishes a link
between the operation of the provision on extradition and prosecution, on the one
hand, and what appears to be a subsidiary exercise of universal jurisdiction, on the
other hand”.
59
It is to be noted that the above obligation to prosecute or extradite does not
necessarily imply that relevant proceedings will be taken or that the alleged offender
will be punished; the obligation only requires the states to “submit the case to its
competent authorities for the purpose of prosecution”, and the authorities are “only”
obliged to “take their decision in the same manner as in the case of any ordinary
offence of a serious nature under the law of that State”.
60
This means that, according
to these provisions, the competent authorities retain some prosecutorial discretion,
and there may be cases in which a state would fulfill its obligations, while the alleged
offender would neither be extradited nor prosecuted.
61
In any case, the state in whose
territory the alleged offender is present, upon being satisfied that the circumstances
so warrant, is obliged to take him into custody or take other measures to ensure his
presence, and immediately make a preliminary enquiry into the facts. In addition,
a state which has taken a person into custody (and makes preliminary inquiry
mentioned above) has to immediately notify the states with a territorial and personal
jurisdiction over the crime “of the fact that such person is in custody and of the
circumstances which warrant his detention”, and, as regards the preliminary inquiry,
to “promptly report its findings to the said States and indicate whether it intends to
exercise jurisdiction”.
62
Thus, relevant provisions cited above create a kind of network
of rights and obligations with the aim of supporting cooperation and exchange of
information between states concerning prosecution of relevant crimes.
However, one has to be aware of the fact that these treaties cannot be regarded
as a monolithic category – it is important to take into account the concrete text of
the individual treaties. According to the Survey prepared for the International Law
Commission, “it appears to be difficult to draw general conclusions as to the precise
scope of the conventional obligations incumbent upon States under the clauses that
combine the options of extradition and prosecution, including on issues such as the
relationship between the two courses of action provided for under the obligation”
and “the relationship with other principles (including universal jurisdiction)”; and
“[w]hile it is possible to identify some general trends and common features in the
relevant provisions, conclusive findings regarding the precise scope of each provision
need to be made on a case-by-case basis, taking into account the formulation of
alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant
to Article 8 to any of the States mentioned in paragraph 1 of this article.”)
.
58
Survey,
op. cit
. sub 56, p. 73.
59
However, as mentioned below, this “contractual universal jurisdiction” differs in some important
aspects from the “customary universal jurisdiction” described above.
60
See Article 7 para. 1 and 2 of the UN Torture Convention.
61
Survey,
op. cit
. sub 56, pp. 74-75.
62
See for example Art. 6, para. 1, 2 and 4 of the UN Torture Convention.