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relevant obligations contained in the convention concerned. At the same time, it
can be said that this entitlement of any state party to insist on the performance of
the obligations of the state party where the alleged perpetrator is present to make
a preliminary inquiry and to submit the case to its competent authorities is to some
extent analogous to the possibility of the exercise (of at least some initial procedural
steps) of customary universal jurisdiction
in absentia
.
F. Lafontaine points to another interesting conceptual difference between the
customary and “contractual” universal jurisdiction regime, a difference which concerns
the developing principle of subsidiarity of customary universal jurisdiction: as
described above, according to current interpretation, the obligation (which forms
a part of the “contractual universal jurisdiction”) to prosecute the alleged offender
present in the territory of the prosecuting state is interpreted as absolute, existing
ipso facto
, regardless of any request for extradition (extradition being only an option):
this obligation is not, at least in principle, subject to precedence of the extradition to
the state with closer link to the crime or the perpetrator (or victims).
77
On the other
hand, in case of customary universal jurisdiction – if the principle of subsidiarity
should come into play when a state where a suspect is present is confronted with
a concrete choice between prosecution in its own courts or transfer to the state
having primary territorial or personal connection with the alleged crime – the state
of apprehension should opt for transfer or extradition to the “more natural” forum
of the state with territorial or personal jurisdiction. So it seems that, even in this
respect, different regimes (contractual and customary) cover the crimes of a similar
gravity, or even the same crimes. As F. Lafontaine points out, some of the crimes
concerned are parts of both contractual and customary regimes and they may be
treated differently depending on whether the relevant convention or, instead,
customary international law is applied. This remark is, of course, also valid with regard
to the previously mentioned major difference between the condition of the presence
of the alleged offender as applied within the framework of “contractual” universal
jurisdiction and the suggested absence of this condition within the regime of customary
universal jurisdiction. In addition, there exists a potential legal vacuum, contained in
the regime of the universal jurisdiction under customary international law, when a state
of apprehension exercising such jurisdiction cannot extradite a suspect (on the basis of
one of the accepted reasons) to the state with “more natural” jurisdiction – in such
a case, it seems that such a state remains under no strict obligation to prosecute the
crime in its own courts, “since the initial decision to exercise universal jurisdiction is
founded only on a permissive basis under customary international law”. (However,
as F. Lafontaine concludes with regard to this last difference, although the obligation
to prosecute is unclear outside of the treaty regime, it would seem that a principle of
the law of extradition might in certain circumstances create a (customary) obligation
77
F. Lafontaine,
op. cit
. sub 26, p. 1289.