CYIL Vol. 4, 2013

UNIVERSAL JURISDICTION UNDER CUSTOMARY INTERNATIONAL LAW … stricter than the provisions in conventions directed against “ordinary” crimes: for example the United Nations Convention against Transnational Organized Crime and the United Nations Convention against Corruption contain split provision for the case in which the state does not extradite the person on the ground that he or she is one of its nationals (for which there is an obligation to establish jurisdiction) and for the other cases of refusal to extradite (for which States parties only have the voluntary option to establish jurisdiction). 69 Current interpretation of the obligation to prosecute ipso facto , regardless of extradition request, was also confirmed and even developed in an important recent judgment by the International Court of Justice in the case of “Questions Concerning the Obligation to Prosecute or Extradite (Belgium v. Senegal) of 20 July 2012”. In this decision the Court stated that Article 7, paragraph 1 of the 1984 United Nations Convention against Torture requires the State on whose territory the alleged perpetrator is found to submit the case to its competent authorities for the purpose of prosecution, “irrespective of the existence of a prior request for the extradition of the suspect”, and that “the extradition is an option … whereas prosecution is an international obligation under the Convention, the violation of which is wrongful act engaging the responsibility of the State”. 70 Importantly, the Court also came to the conclusion that the states parties to the UN Convention against Torture have common interest to ensure that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity. The Convention thus, according to the Court, gives rise to the obligations erga omnes partes and, as a result, this common interest entitles each state party – regardless of whether the applicant state has any special interest in bringing the claim due to a connection with the crime, alleged torturer or his victims – to make a claim for the cessation of an alleged breach by another State party of the obligations contained in the Convention, including (as was the case in the dispute between Belgium and Senegal) the obligations (set forth in Articles 6 and 7 of the Convention) to immediately make a preliminary inquiry into the facts 69 Survey, op. cit. sub 56, p. 47, fn. 232. 70 Questions Concerning the Obligation to Prosecute and Extradite (Belgium v. Senegal), Judgment (July 20, 2012), para. 94 and 95; available at http://www.icj-cij.org/docket/files/144/17064.pdf. (“The Court considers that Article 7, paragraph 1, requires the State concerned to submit the case to its competent authorities for the purpose of prosecution, irrespective of the existence of a prior request for the extradition of the suspect. That is why Article 6, paragraph 2, obliges the State to make a preliminary inquiry immediately from the time that the suspect is present in its territory. The obligation to submit the case to the competent authorities, under Article 7, paragraph 1, may or may not result in the institution of proceedings, in the light of the evidence before them, relating to the charges against the suspect… However, if the State in whose territory the suspect is present has received a request for extradition in any of the cases envisaged in the provisions of the Convention, it can relieve itself of its obligation to prosecute by acceding to that request. It follows that the choice between extradition or submission for prosecution, pursuant to the Convention, does not mean that the two alternatives are to be given the same weight. Extradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State.”).