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UNIVERSAL JURISDICTION UNDER CUSTOMARY INTERNATIONAL LAW …
V. Differences between the “contractual universal jurisdiction”
and universal jurisdiction under customary international law
The above construction of the “contractual universal jurisdiction” contained in
the international conventions has been used as an argument against the legality of
the (customary) universal jurisdiction
in absentia
– with reference to the condition,
contained in all the above conventions, that each state party “is obliged to take such
measures as may be necessary to establish its jurisdiction over the offence in the case
where the alleged offender is present in its territory”. In the words of the President
of the ICJ, judge Gilbert Guillaume,
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“none of the texts [of the conventions] has
contemplated establishing jurisdiction over offences committed abroad by foreigners
against foreigners when the perpetrator is not present in the territory of the State in
question. Universal jurisdiction
in absentia
is unknown to international conventional
law.”
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Also Luc Reydams highlights one of the basic differences between the regime
of the universal jurisdiction under customary international law, as described above,
and the “contractual universal jurisdiction” (and the regime
aut dedere aut iudicare
)
contained in the relevant international conventions aimed at prosecuting serious
crimes. As he puts it, the relevant treaties contain an obligation of the state to establish
jurisdiction over relevant offences in cases where the alleged offender is present in its
territory and it does not extradite him to the state on whose territory the offence was
committed or whose national is the alleged offender or the victim; however, these
provisions do not contemplate a scenario of a state exercising jurisdiction without
its having any link (i.e. at least presence of the alleged offender on its territory) with
the offence – an arrest warrant or extradition request from such a state has no basis
in these conventions.
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However, it may be countered that all states parties to such
a convention (i.e. even those states which do not have any territorial or personal link
with the alleged crime) have, in accordance with the recent interpretation provided
by the International Court of Justice in the dispute between Belgium and Senegal,
another entitlement or option, namely to insist on performance of obligations under
the relevant convention and make a claim, addressed to the state where the alleged
perpetrator is present, for the cessation of any breach of the obligations contained
in the convention – including the obligation to immediately make a preliminary
inquiry into the facts as soon as a suspected perpetrator is identified in the territory
of the state party and to submit the case to its competent authorities for the purpose
of prosecution. Thus, this entitlement of all (but one) states parties (without them
having any link to the offence) serves as a complement to the obligation of the
(one) state party on whose territory the alleged offender is present: although those
“remaining” states parties may not be entitled to issue an arrest warrant or request
extradition, they can make a claim for the cessation of any (alleged) breach of the
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Arrest Warrant judgment,
op. cit
. sub 1, separate opinion of judge Guillaume, para. 7-8.
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For similar conclusions see also Arrest Warrant judgment (op. cit. sub 1), separate opinion of Judge
Ranjeva, paras. 8-12.
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L. Reydams, op. cit. sub 23, p. 346-347.