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PAVEL CABAN
CYIL 4 ȍ2013Ȏ
However, for the time being this is almost pure theorizing; the current state of
customary international law concerning universal jurisdiction and the conditions
of its exercise are described above. It is suggested that the relevant customary law
conditions, notably the absence of a strict presence requirement for the (initial or
investigative part of ) enforcement of universal jurisdiction, and the subsidiarity of
the exercise of universal jurisdiction serve as a kind of counterpart to the relevant
principles applied within the “contractual universal jurisdiction”, namely the absolute
obligation to prosecute when the alleged offender is present on the territory of the
state party, and the right of each state party to make a claim, addressed to the state
where the alleged perpetrator is present, for the cessation of any breach of relevant
obligations concerning the obligation to prosecute. It is further suggested that
the exercise of customary universal jurisdiction under current conditions will
perhaps inevitably contain certain political aspects, and that these customary law
conditions by its nature require that states willing to prosecute on the basis of
customary universal jurisdiction are given some leeway or discretion in enforcing
universal jurisdiction, enabling the prosecuting authorities to take into account
all circumstances of a concrete case. In this regard, it is opportune to point to the
opinion of Máximo Langer, who holds the view that certain selectivity and limited
potential to convict international criminals is a structural feature of (current
customary) universal jurisdiction.
85
M. Langer opines that some political aspects
are unavoidably part of the regime of universal jurisdiction, and the question is not
to eliminate them but to find the best way how to give them a voice in this regime:
the conditions such as the presence of the alleged perpetrator on the territory of
the prosecuting state and the subsidiarity of universal jurisdiction are just one
of the (political) tools to control universal jurisdiction cases, the other being
prosecutorial discretion with regard to the cases based on the exercise of universal
jurisdiction – he suggests that a higher level of prosecutorial discretion may result
in narrowing that state’s statutory restrictions on universal jurisdiction (such as the
presence of the perpetrator) and
vice versa
.
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It is to be noted that this, maybe a bit
too realistic, approach does not speak against the concept of customary universal
jurisdiction described above: any real, even if ultimately mostly unfulfilled, threat
of the exercise of customary universal jurisdiction based on sound legal conditions
and prosecutorial discretion may be effective as a deterrent. It is suggested that an
approach conducive to more appropriate and efficient application of customary
universal jurisdiction is the combination of broader prosecutorial discretion and
85
M. Langer,
op. cit
. sub 1, p. 45. M. Langer, after analyzing practice in major jurisdictions exercising
universal jurisdiction, found out that in the last twenty-five years, only around twenty-five offenders
around the world have been criminally convicted on the basis of universal jurisdiction; he also came
to the conclusion that universal jurisdiction is in reality exercised in cases of (“harmless”) defendants
about whom there is a broad agreement in the international community that they should be prosecuted
(primarily Nazis, former Yugoslavs and Rwandans) and whom their own state of nationality is not
willing to defend (
op. cit
., p. 3).
86
M. Langer,
op. cit
. sub 1, p. 46-47.