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the provision, the general economy of the treaty in which it is contained and the
relevant preparatory works”.
63
In addition, it is worth mentioning that the above
interpretation of the unconditional,
ipso facto
obligation to prosecute, on which
the conclusions concerning the “contractual universal jurisdiction” is based, might
not have been intended by the drafters of the first “model conventions” and have
been “read into” these provisions only afterwards by extensive interpretation.
64
For
example, according to some opinions, the wording of the common article of the
Geneva Conventions cited above only reflects special circumstances following the
2nd World War (displacement and migration of millions of people and the redrawing
of national borders, fear that the Axis war criminals might flee to a neutral country
etc.), and therefore the provision cannot be read as containing an unqualified right
for neutral (all) countries to prosecute grave breaches.
65
In addition, as the authors of
the International Law Commission Survey noted, the terms of the “model” Article 7
of the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft appear
to be ambiguous in this respect: “even when read in its context and taking into
account the preparatory works of the Convention, the text of this provision does not
unequivocally resolve the question of whether the obligation to prosecute arises
ipso
facto
or only once a request for extradition is submitted and not granted”.
66
However,
current interpretation of the obligation to prosecute
ipso facto
(regardless of a prior
extradition request), contained in several subsequent conventions, is widely accepted
and forms a logical and integral part of a mechanism the aim of which is to avoid
impunity of those who had committed relevant serious offences. It may be argued, in
agreement with the authors of the Survey, that the “Hague formula” indicates that the
obligation to prosecute exists
ipso facto
, but that the definitive interpretation of this
clause cannot be given in general terms and should rather be based on a case-by-case
examination of the exact formulation of the provision of the relevant treaty, its context
and preparatory works.
67
In this regard, some general trends and common features
may be discerned in the text of relevant provisions of treaties concerned. It may be
argued that the relevant provisions in the conventions against more serious or “state”
crimes (such as war crimes, torture and enforced disappearance)
68
are formulated
63
Survey,
op. cit
. sub 56, p. 77-78.
64
See Survey,
op. cit
. sub 56, p. 67-68. See further for example the opinion of the Committee against Torture
– CAT/C/36/D/181/2001 (“… the obligation to prosecute the alleged perpetrator of acts of torture does
not depend on the prior existence of a request for his extradition. The alternative [i.e. extradition] available
to the State party under Article 7 of the Convention exists only when a request for extradition has been
made … the objective of the provision being to prevent any act of torture from going unpunished.”).
65
Luc Reydams,
op. cit
. sub 23, p. 345 (“One simply cannot seriously believe that the drafters ever
contemplated universal jurisdiction.”).
66
Survey,
op. cit
. sub 56, p. 46, 66 and 67, incl. fn. 316 (“… [from the travaux préparatoires] it appears
that the … provision in the Convention for the Suppression of Unlawful Seizure of Aircraft was also
included on the assumption that such a request [for extradition] would have been made …”).
67
Survey,
op. cit
. sub 56, p. 68.
68
But also crimes of terrorism, as defined in recent UN conventions against terrorist bombing, financing
of terrorism and nuclear terrorism.