CYIL Vol. 4, 2013

UNIVERSAL JURISDICTION UNDER CUSTOMARY INTERNATIONAL LAW … play its role at the phase preceding the commencement of the investigation (if it is accepted that universal jurisdiction may be exercised, at least at the initial phases of the proceedings, in absentia ), 40 as well as in a situation when a state where a suspect is present is confronted with a concrete choice between prosecution or extradition. 41 According to some authors, the subsidiarity seems to be primarily not a customary legal rule, 42 but only (similarly to the condition of presence of the alleged offender on the territory of the prosecuting state) a sensible practical, political limitation, “a good policy” (having regard to the easier access to evidence in the states with primary jurisdiction and less demanding proceedings in financial and political terms in these states) and can be (only) used as an informal criterion taken into account in the exercise of prosecutorial discretion in conformity with the principle of comity in international relations. 43 On the other hand, according to other authors, it would now seem possible to argue that the subsidiarity principle might crystallize (or even might have crystallized) into a rule of customary international law supplementing the principle of universal jurisdiction over crimes under international law, arguing that the opinio iuris might be based on the legal recognition of a legitimate primary interest of those states that are directly connected with the crime, as well as on considerations of procedural economy. 44 It is suggested that the relevance of the subsidiarity limitation of the exercise of universal jurisdiction is also dependent on its inter-connection with the concrete form of other limiting factors, namely the presence of the alleged offender on the territory of the prosecuting state, and with the concrete form of other aspects of the whole system of the universal jurisdiction under customary international law (interpretation of obligation aut dedere aut iudicare ). This issue will be further elaborated below. It is submitted that under the current regime of universal jurisdiction, as described above, it would be more appropriate that subsidiarity evolves into an international legal rule (combined with prosecutorial custody over an alleged offender, to the extent that it relies solely on universal jurisdiction, should carefully consider and, as appropriate, grant any extradition request addressed to it by a State having a significant link, such as primarily territoriality or nationality, with the crime, the offender, or the victim, provided such State is clearly able and willing to prosecute the alleged offender.” [para 3 (d)]. 40 Strafprozessordnung (Code of Criminal Procedure), section 153f. 41 See F. Lafontaine, op. cit. sub 26, pp. 1292-1297. However, F. Lafontaine is of the opinion that subsidiarity should not be invoked as a justification for inaction based on unclear intentions of the territorial state or vague investigations in general situations, but only when the alleged offender is present in the territory of the state exercising universal jurisdiction. F. Lafontaine adds that, in such a case, the existing legal regime of extradition and mutual legal assistance should provide the necessary framework for how to take into account the possible inability or unwillingness of another state to prosecute the relevant crime (relevant national laws and bilateral and multilateral treaties provide for the possibility of refusing extradition on the grounds of non-discrimination, non-refoulement principle or guarantees of the fair trial; there are also possibilities of monitoring and diplomatic assurances or guarantees). 42 An Introduction, op. cit. sub 5, p. 58; C. Kreß, op. cit. sub 10, pp. 579-580. 43 F. Lafontaine, op. cit. sub 26, p. 1290-91. 44 Suggesting, however, that the rule would apply not at the initial investigative stage, but only after the conclusion of an investigation. See C. Kreß, op. cit. sub 10, pp. 579-580.