Czech Yearbook Vol. 4 2013

UNIVERSAL JURISDICTION UNDER CUSTOMARY INTERNATIONAL LAW …

aut dedere aut iudicare

, preliminary investigation and custody, extradition, mutual

legal assistance etc.) based on and inspired by the similar provisions in the UN

Convention against Torture, the International Convention for the Protection of

All Persons from Enforced Disappearance, the UN Convention on Transnational

Organized Crime and the UN Convention Against Corruption.

Adoption of such

a convention is supported also by the legal doctrine.

If such a possible convention acquired universal acceptance and the above

interpretation of the

erga omnes

regime of such a convention, elaborated by the

International Court of Justice in the dispute between Belgium and Senegal, were

accepted as well, legal gaps in the regime of universal jurisdiction over crimes under

international law would be filled. However, such a scenario currently seems like an

utopia – a bit less realistic than the concept of customary universal jurisdiction.

Until that time (which definitely will not come soon, if at all), current customary

regime of universal jurisdiction will play its very important role. However, a possible

future convention on international cooperation in criminal matters with respect

to crimes under international law, even if not widely accepted, might – together

with the principles of “contractual universal jurisdiction”, as currently applied and

interpreted – influence and shape creation of new (or amendment to the relevant

existing) principles of universal jurisdiction contained in customary international law

along the lines of the principles of “contractual universal jurisdiction” (as currently

applied and interpreted). Such a possible development, even if theoretical, seems to

be preferable to the current system of customary universal jurisdiction.

However, as pointed out above, some of those provisions (concerning the obligation of

aut dedere aut

iudicare

) differ to some extent from each other.

F. Lafontaine,

op. cit

. sub 26, p. 1294, fn. 90 (“The development of a more consitent mutual legal

assistance framework as regards the prosecution for genocide and crimes against humanity should

be considered a priority in the discussions regarding universal jurisdiction”); C. Kreß,

op. cit

. sub 10,

p. 584 (“The time has now come for states to incorporate both the basic competence and the reasonable

limitations on the exercise of the universal jurisdiction into an international convention on universal

jurisdiction”); A. Cassese,

op. cit

. sub 2, p. 595 (“… if both the conditions on which the exercise of

universal jurisdiction must be made contingent [presence of the alleged offender on the territory of the

state at the time of the commencement of investigation, subsidiarity] and other limitations restraining

this exercise were laid down in a treaty, much of the current uncertainties surrounding customary law

would be dispelled.”). Also the International Law Commission’s Working Group on the Obligation

to Extradite or prosecute recently stated that “…there are important gaps in the present conventional

regime governing the obligation to extradite or prosecute which may need to be closed. Notably, there

is a lack of international conventions with this obligation in relation to most crimes against humanity,

war crimes other than grave breaches, and war crimes in non-international armed conflict. In relation

to genocide, the international cooperation regime could be strengthened beyond the rudimentary

regime under the Convention for the Prevention and Punishment of the Crime of Genocide of

1948...” The Working Group i.a. added that “the prosecute-or-extradite formula under the Convention

against Torture could serve as a model for new prosecute-or-extradite regimes governing prohibitions

covered by peremptory norms (jus cogens), such as genocide, crimes against humanity, and serious war

crimes.” See the Report of the Working Group on the obligation to extradite or prosecute (aut dedere

aut judicare), International Law Commission, Sixty-fifth session, doc. A/CN.4/L.829, 22 July 2013,

pp. 9-10.