CYIL Vol. 4, 2013

PAVEL CABAN CYIL 4 ȍ2013Ȏ provided with wide discretion in this regard. 23 Conditional universal jurisdiction was also supported by A. Cassese, who wrote that universality may be asserted subject to the condition that the alleged offender be on the territory of the prosecuting state at the time charges are brought and criminal investigations commence. In his own words, “… universality may be asserted subject to the condition that the alleged offender be on the territory of the prosecuting state. It would seem contrary to the logic of current state relations to authorize any state of the world to institute criminal proceedings (commence investigations, collect evidence and lay out charges) against any foreigner or foreign state official allegedly culpable of serious international crimes.” 24 However, despite previous assertions, it seems that it cannot be alleged that the exercise of at least some initial procedural (investigative) steps under universal jurisdiction in absentia is illegal under international law. 25 In addition to the national legislation of some states (as stated above), as well as similar practice of some other states, 26 recent resolutions by the Institut de Droit International (2005) and the International Association of Penal Law (2009) 27 also provide for some form of the exercise of universal jurisdiction in absentia , requiring (explicitly or implicitly) only that the alleged perpetrator has to be present in the prosecuting state at the time of the commencement of the trial. The resolution of the Institut de Droit International requires the presence of the alleged offender in the territory of the prosecuting state “apart from acts of investigation and requests for extradition”; the resolution of the International Association of Penal Law provides expressly for the exercise of universal jurisdiction in absentia (including the initiation of the criminal proceedings, investigation, issuance of an indictment, and request of extradition), except for the “main proceedings”, i.e. “trials”, when the presence of the alleged perpetrator should be necessary. 28 A similar provision is also included in the African Union (Draft) Model 23 Steven R. Ratner, Belgium’s War Crimes Statute: A Postmortem, The American Journal of International Law , Vol. 97, 2003, Issue 4, pp. 889-892; Luc Reydams, Belgium Reneges on Universality: The 5 August 2003 Act on Grave Breaches of International Law, Journal of International Criminal Justice , 1 (2003), pp. 679-689. 24 A. Cassese, op. cit. sub 2, p. 592 and 594. 25 Claus Kreß, op. cit. sub 10, p. 577. 26 For relevant examples see Fannie Lafontaine, Universal Jurisdiction – the Realistic Utopia, Journal of International Criminal Justice , 10 (2012), pp. 1284-1286. 27 Which, however, according to its authors, may in some parts reflect a de lege ferenda approach to this subject; see Maja Munivrana Vajda, The 2009 AIDP’s Resolution on Universal Jurisdiction – An Epitaph or a Revival Call?!, International Criminal Law Review , 10 (2010), p. 236. 28 The Resolution of the Institut de Droit International [in its paragraph 3 (b)] provides that “apart from acts of investigation and requests for extradition, the exercise of universal jurisdiction requires the presence of the alleged offender in the territory of the prosecuting State or on board a vessel flying its flag or an aircraft which is registered under its laws, or other lawful forms of control over the alleged offender.” According to the resolution of the International Association of Penal Law (chapter II, para. 3 and 4) “… [I]nvestigation is admissible in absentia ; states can initiate criminal proceedings, conduct an investigation, preserve evidence, issue an indictment, or request extradition. …The presence of the defendant should be always required for the main proceedings. Therefore, trials in absentia shall not be conducted in cases of universal jurisdiction.”