CYIL Vol. 4, 2013

UNIVERSAL JURISDICTION UNDER CUSTOMARY INTERNATIONAL LAW … Law on Universal Jurisdiction over International Crimes. 29 (To make the problem more nuanced, it may be noted that, according to some opinions, even within the framework of the investigations or other pre-trial procedures in absentia , there could or should be a differentiation between non-coercive acts of investigation, such as gathering of information in a sort of passive investigation, receiving testimonies from a refugee community based on its territory, or a request, addressed to another state, for information on one hand, and coercive measures, such as issuance of an arrest warrant, on the other hand. 30 For example, some authors suggest that “… the police and the prosecutor could therefore carry out investigations over the alleged commission of a crime abroad, if they wish, but the actual exercise of criminal jurisdiction would require the ‚voluntary‘ presence of the suspect in the territory of the state after the alleged commission of the crime. His voluntary presence would imply that he subjects himself to the criminal jurisdiction of that state, knowing in advance that universal jurisdiction could be exercised in accordance with the criminal legislation of that state…”.) 31 Thus, according to several authors, the presence of the accused on the territory of the prosecuting state from the very beginning of the investigation based on universal jurisdiction is not a link in the sense of a basis of jurisdiction required by international law, but only a national procedural condition for the exercise of universal jurisdiction, required not as a reflection of an international legal obligation, but adopted voluntarily only for practical reasons – these reasons being political concerns (it may be politically inconvenient to have such a wide jurisdiction because it is not conducive to international relations) and practical considerations concerning the difficulty in obtaining the evidence and the intention not to overburden its national judicial system. 32 The goal of an investigation in absentia (gathering information, receiving testimonies) may be to collect evidence as a form of anticipated legal assistance for the benefit of the state on whose territory the alleged offender is present, or in light of an anticipated presence of a suspect on a state’s territory, or (if it is accepted that investigation in absentia may also include coercive acts such as issuance of an arrest warrant or a request of extradition) with a view to preparing an extradition request to the state on whose territory the alleged offender is residing or present. 33 The absence of a strict presence requirement for the investigative part of enforcement of universal jurisdiction, combined with wider prosecutorial discretion over cases based on universal jurisdiction and with other conditions for the exercise of universal jurisdiction, namely subsidiarity (see below), 29 African Union (Draft) Model Law on Universal Jurisdiction over International Crimes (EXP/MIN/ Legal/VI, November-December 2011), section 4 (1). 30 An Introduction, op. cit. sub 5, p. 52, fn. 55. 31 Antonio Cassese and Paola Gaeta, Cassese’s International Criminal Law , 3rd edition, Oxford University Press, 2013, p. 279. 32 Roger O’Keefe, op. cit. sub 20, pp. 751, 757-758; An Introduction, op. cit. sub 5, pp. 51-52; Fannie Lafontaine, op. cit. sub 26, pp. 1284-186; Arrest Warrant, op. cit. sub 1, dissenting opinion by Judge van den Wyngaert, para. 56. 33 Claus Kreß, op. cit. sub 10, p. 577-578; The Oxford Companion, op. cit. sub 4, p. 557.