CYIL Vol. 4, 2013

PAVEL CABAN CYIL 4 ȍ2013Ȏ discretion over cases based on universal jurisdiction) observed by the states exercising universal jurisdiction, while the concrete form of this legal rule should be a matter of future gradual “tuning”. III.3 Human rights standards, privileges and immunities It is a matter of course that another limitation or condition of the exercise of universal jurisdiction (as in the case of any other exercise of criminal jurisdiction) is the need to comply with internationally accepted standards of fair trial. Some authors even suggest that the human rights standards in the case of the exercise of (solely) universal jurisdiction should be stricter, namely the same as the human rights limitations in conducting proceedings before the International Criminal Court (also because, in such a case, the relevant state does not act in its own interest, but as a trustee of a fundamental value of the international community – the international court being an organ which represents the values of the international community in this regard). 45 According to several voices, part of these human rights standards should be the application of the ne bis in idem principle to the final decisions taken by a national court on the sole basis of universal jurisdiction. 46 The problem is that the “crossborder application” of this principle, i.e. the application of this principle on the international level, is controversial and, according to prevailing view, not recognized as a customary rule of international law (in addition, this problem is not unique for the exercise of universal jurisdiction). 47 However, this principle is included in the international treaties dealing with cooperation in criminal matters, 48 and, according to some voices, this principle is evolving as a rule of customary international law with regard to crimes under international law, as a corollary to the exercise of universal jurisdiction. 49 Also the resolution of the International Association of Penal Law (which however, as pointed out above, may be in some aspects regarded as lex ferenda ) provides (in its Chapter III, para. 3) that “[I]n conformity with the ne bis in idem principle, a state wishing to exercise universal jurisdiction shall respect final decisions rendered by the domestic court of another State (or international court) regarding the same acts, unless the underlying proceedings were not conducted independently, impartially, or in accordance with the norms of due process recognized by international law.” 45 C. Kreß, op. cit. sub 10, pp. 581-2, referring to Articles 55, 67 and 21 para. 3 of the Rome Statute of the International Criminal Court. 46 C. Kreß, op. cit. sub 10, p. 583. 47 An Introduction, op. cit. sub 5, p. 81. 48 The 1957 European Convention on Extradition, Art. 9; Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, Art. 54 (“A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.”). 49 An Introduction, op. cit. sub 5, p. 81 and 91; The Oxford Companion, op. cit. sub 4, p. 304-305.