CYIL Vol. 4, 2013

PAVEL CABAN CYIL 4 ȍ2013Ȏ thus might even play in favour of interstate cooperation and comity in the fight against international criminality, 34 and “may lead to abandoning an essentially reactive approach dependent on the random presence of an alleged international criminal in a potential prosecuting state”. 35 III.2 Subsidiarity The Technical AU-EU Ad hoc Expert Group on the Principles of Universal Jurisdiction came to the conclusion that “positive international law recognises no hierarchy among the various bases of jurisdiction that it permits. In other words, a state which enjoys universal jurisdiction … is under no positive legal obligation to accord priority in respect of prosecution to the state within the territory of which the criminal acts occurred or to the state of nationality of the offender or victim.” 36 Similarly, the International Law Commission, in its commentary on Article 9 of its 1996 Draft Code of Crimes against the Peace and Security of Mankind, 37 considered the question of a priority right to adjudication for the territorial state as being not ripe for codification. However, despite these conclusions it is suggested that subsidiarity already is or will evolve into another limiting condition for the exercise of universal jurisdiction. It seems that according to most of the commentators, the jurisdiction of the state intending to prosecute on the basis of universal jurisdiction should give way to the jurisdiction of the state where the alleged crime was committed, or the state of nationality of the alleged perpetrator or, according to several sources, also the state of the nationality of the victims, 38 and should be activated only as an alternate mechanism, if the states with the primary jurisdiction are unable or unwilling to genuinely investigate and prosecute the crimes. 39 Subsidiarity should 36 The AU-EU Report on the Principle of Universal Jurisdiction, op. cit. sub 5, para. 14. However, at the same time, Ad hoc Expert Group recommendations (recommendation 9, op. cit. , p. 42) provides that “states should, as a matter of policy, accord priority to territoriality as a basis of jurisdiction, since such crimes, while offending against the international community as a whole by infringing universal values, primarily injure the community where they have been perpetrated … . In addition, it is within the territory of the state of alleged commission that the bulk of the evidence will usually be found.” 37 See Yearbook of the International Law Commission, 1996, Volume II, Part Two, p. 31 and 32. 38 See relevant legislation of Germany (Strafprozessordnung (Code of Criminal Procedure), section 153f, subsection 2, para. 4); para. 3(d) of the Resolution of the Institut de Droit International (2005); The Oxford Companion, op. cit. sub 4, p. 557. On the other hand, according to A. Cassese ( op. cit. sub 2, p. 593), “ … universal jurisdiction may only be exercised to substitute for other countries that would be in a better position to prosecute the offender, but for some reason do not. …These countries are the territorial state or the state of active nationality.” (thus not mentioning the state of passive personality). 39 See for example A. Cassese, op. cit. sub 2, p. 593-594; The Oxford Companion, op. cit. sub 4, p. 557; C. Kreß, op. cit. sub 10, p. 579 et seq.; F. Lafontaine, op. cit. sub 26, p. 1286 et seq. See further the Resolution of the Institut de Droit International (2005): “Any State having custody over an alleged offender should, before commencing a trial on the basis of universal jurisdiction, ask the State where the crime was committed or the State of nationality of the person concerned whether it is prepared to prosecute that person, unless these States are manifestly unwilling or unable to do so. It shall also take into account the jurisdiction of international criminal courts.” [paragraph 3 (c)], and “Any State having 34 F. Lafontaine, op. cit. sub 26, p. 1285. 35 Máximo Langer, op. cit. sub 1, pp. 46-47.