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as soon as a suspected torturer is identified in the territory of the state party and to
submit the case to its competent authorities (if it does not extradite him).
71
This
important conclusion will be further commented below.
Therefore, if the
aut dedere aut iudicare
formula contained in relevant conventions
is interpreted as imposing an obligation to prosecute
ipso facto
, it may be considered
that there exists a general obligation to exercise a kind of (contractual) universal
jurisdiction (provided that the presence of the alleged perpetrator in the territory of
the state is ascertained), unless the state proceeds to extradition.
72
However, as further
elaborated below, the parameters of the universal jurisdiction as currently contained
in customary international law (and described above) differ in several aspects from
this type of “contractual” universal jurisdiction. In addition, one has to bear in
mind that the regime of “contractual” universal jurisdiction in fact applies only
inter
partes
, among the states parties of the relevant conventions, and cannot be
stricto
sensu
considered universal (however, the Geneva Conventions come very close to the
universal acceptance) and that only several of these conventional crimes are so grave
that they can be linked to the “protection of fundamental values of the international
community”, as is the case with the crimes under customary international law which
are, according to the prevailing view, covered by customary universal jurisdiction.
73
71
See para. 68 and 69 of the judgement of the International Court of Justice: “… 68. The States parties
to the Convention have a common interest to ensure, in view of their shared values, that acts of torture
are prevented and that, if they occur, their authors do not enjoy impunity. The obligations of a State
party to conduct a preliminary inquiry into the facts and to submit the case to its competent authorities
for prosecution are triggered by the presence of the alleged offender in its territory, regardless of the
nationality of the offender or the victims, or of the place where the alleged offences occurred. All the other
States parties have a common interest in compliance with these obligations by the State in whose territory
the alleged offender is present. That common interest implies that the obligations in question are owed by
any State party to all the other States parties to the Convention. All the States parties “have a legal interest”
in the protection of the rights involved … These obligations may be defined as “obligations erga omnes
partes” in the sense that each State party has an interest in compliance with them in any given case. In this
respect, the relevant provisions of the Convention against Torture are similar to those of the Convention
on the Prevention and Punishment of the Crime of Genocide, with regard to which the Court observed
that‚ [I]n such a convention the contracting States do not have any interests of their own; they merely
have, one and all, a common interest, namely, the accomplishment of those high purposes which are the
raison d’être of the Convention. 69. The common interest in compliance with the relevant obligations
under the Convention against Torture implies the entitlement of each State party to the Convention to
make a claim concerning the cessation of an alleged breach by another State party. If a special interest were
required for that purpose, in many cases no State would be in the position to make such a claim. It follows
that any State party to the Convention may invoke the responsibility of another State party with a view
to ascertaining the alleged failure to comply with its obligations erga omnes partes, such as those under
Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, and to bring that failure to an end.”
See also Cindy G. Buys, Belgium v. Senegal, The International Court of Justice Affirms the Obligation to
Prosecute or Extradite Hissène Habré Under the Convention against Torture, Insights, American Society
of International Law, Volume 16, Issue 29, 11 September 2012; available at
http://www.asil.org/pdfs/
insights/insight120911.pdf (visited 19 April 2013).
72
Survey,
op. cit
. sub 56, p. 73.
73
C. Kreß,
op. cit
. sub 10, p. 566.