CYIL Vol. 4, 2013

PAVEL CABAN CYIL 4 ȍ2013Ȏ the provision, the general economy of the treaty in which it is contained and the relevant preparatory works”. 63 In addition, it is worth mentioning that the above interpretation of the unconditional, ipso facto obligation to prosecute, on which the conclusions concerning the “contractual universal jurisdiction” is based, might not have been intended by the drafters of the first “model conventions” and have been “read into” these provisions only afterwards by extensive interpretation. 64 For example, according to some opinions, the wording of the common article of the Geneva Conventions cited above only reflects special circumstances following the 2nd World War (displacement and migration of millions of people and the redrawing of national borders, fear that the Axis war criminals might flee to a neutral country etc.), and therefore the provision cannot be read as containing an unqualified right for neutral (all) countries to prosecute grave breaches. 65 In addition, as the authors of the International Law Commission Survey noted, the terms of the “model” Article 7 of the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft appear to be ambiguous in this respect: “even when read in its context and taking into account the preparatory works of the Convention, the text of this provision does not unequivocally resolve the question of whether the obligation to prosecute arises ipso facto or only once a request for extradition is submitted and not granted”. 66 However, current interpretation of the obligation to prosecute ipso facto (regardless of a prior extradition request), contained in several subsequent conventions, is widely accepted and forms a logical and integral part of a mechanism the aim of which is to avoid impunity of those who had committed relevant serious offences. It may be argued, in agreement with the authors of the Survey, that the “Hague formula” indicates that the obligation to prosecute exists ipso facto , but that the definitive interpretation of this clause cannot be given in general terms and should rather be based on a case-by-case examination of the exact formulation of the provision of the relevant treaty, its context and preparatory works. 67 In this regard, some general trends and common features may be discerned in the text of relevant provisions of treaties concerned. It may be argued that the relevant provisions in the conventions against more serious or “state” crimes (such as war crimes, torture and enforced disappearance) 68 are formulated 63 Survey, op. cit . sub 56, p. 77-78. 64 See Survey, op. cit . sub 56, p. 67-68. See further for example the opinion of the Committee against Torture – CAT/C/36/D/181/2001 (“… the obligation to prosecute the alleged perpetrator of acts of torture does not depend on the prior existence of a request for his extradition. The alternative [i.e. extradition] available to the State party under Article 7 of the Convention exists only when a request for extradition has been made … the objective of the provision being to prevent any act of torture from going unpunished.”). 65 Luc Reydams, op. cit . sub 23, p. 345 (“One simply cannot seriously believe that the drafters ever contemplated universal jurisdiction.”). 66 Survey, op. cit . sub 56, p. 46, 66 and 67, incl. fn. 316 (“… [from the travaux préparatoires] it appears that the … provision in the Convention for the Suppression of Unlawful Seizure of Aircraft was also included on the assumption that such a request [for extradition] would have been made …”). 67 Survey, op. cit . sub 56, p. 68. 68 But also crimes of terrorism, as defined in recent UN conventions against terrorist bombing, financing of terrorism and nuclear terrorism.