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problem differently: according to the customary universal jurisdiction, the states
(at least according to the above description of the regime of customary universal
jurisdiction) should be entitled to exercise their jurisdiction, at least at the initial
phases of the proceedings,
in absentia
, i.e. without the presence of the alleged
offender on their territory. On the other hand, if the recent interpretation provided
by the International Court of Justice in the dispute between Belgium and Senegal
is accepted, any state party to the relevant conventions (regardless of whether the
applicant state has any special connection with the crime, alleged perpetrator or his
victims) is entitled to make a claim towards the state on whose territory the alleged
offender is present for the cessation of any breach of relevant obligations contained
in the convention. Thus, it seems that both systems might be evolving, each from
a different perspective, towards a certain universal network of rights and obligations
aimed at filling the existing legal loopholes and eliminating, at least in principle, the
impunity of perpetrators of the most serious crimes of international concern. In this
regard, it is suggested that the evolution within the regime of “contractual universal
jurisdiction”, namely the interpretation of the rights and obligations
erga omnes
provided by the International Court of Justice in the dispute between Belgium and
Senegal, might be relevant also for the regime of customary universal jurisdiction. It
is possible that, in the future, the current system of customary universal jurisdiction
described above will be replaced by a contractual regime covering the prosecution
of current crimes under customary international law – a contractual regime which
would be based on the same principles as contained (and interpreted) in the UN
Convention against Torture and other relevant conventions mentioned above. The
Draft Code of Crimes against the Peace and Security of Mankind, prepared by the
International Law Commission, points in this direction as well. A possible important
step towards further convergence of these two approaches might be the recent
initiative (presented by Belgium, Netherlands and Slovenia) to elaborate a draft of
a multilateral treaty on international cooperation in criminal matters with respect to
the crime of genocide, crimes against humanity and war crimes (crimes not covered
by the relevant provisions of Geneva Conventions and Protocol I).
82
According to the
authors of this initiative, such a convention would criminalize these core crimes (by
referring to the provisions of the Rome Statute of the International Criminal Court,
by directly including the provisions in the text of such a new convention or in any
other appropriate manner) and would contain other provisions (on the obligation of
82
See the Report from the expert meeting in The Hague on 22 November 2011 – A Legal Gap? Getting
the evidence where it can be found: Investigating and prosecuting international crimes. The initiative
was introduced at the 22nd meeting of the Commission on Crime Prevention and Criminal Justice
(Vienna, 22-26 April 2013). The initiative gathered considerable support, but was “vetoed” by several
“big” states which are not parties to the Rome Statute of the International Criminal Court and which
objected that such an initiative exceeds the mandate of the CCPCJ. The rejection within CCPCJ does
not mean that this initiative will not prove viable within a different framework – one of the options
seems to be the sphere of States Parties to the Rome Statute which (should) share the same view on the
basic principles in this area.