CYIL Vol. 4, 2013

PAVEL CABAN CYIL 4 ȍ2013Ȏ relevant obligations contained in the convention concerned. At the same time, it can be said that this entitlement of any state party to insist on the performance of the obligations of the state party where the alleged perpetrator is present to make a preliminary inquiry and to submit the case to its competent authorities is to some extent analogous to the possibility of the exercise (of at least some initial procedural steps) of customary universal jurisdiction in absentia . F. Lafontaine points to another interesting conceptual difference between the customary and “contractual” universal jurisdiction regime, a difference which concerns the developing principle of subsidiarity of customary universal jurisdiction: as described above, according to current interpretation, the obligation (which forms a part of the “contractual universal jurisdiction”) to prosecute the alleged offender present in the territory of the prosecuting state is interpreted as absolute, existing ipso facto , regardless of any request for extradition (extradition being only an option): this obligation is not, at least in principle, subject to precedence of the extradition to the state with closer link to the crime or the perpetrator (or victims). 77 On the other hand, in case of customary universal jurisdiction – if the principle of subsidiarity should come into play when a state where a suspect is present is confronted with a concrete choice between prosecution in its own courts or transfer to the state having primary territorial or personal connection with the alleged crime – the state of apprehension should opt for transfer or extradition to the “more natural” forum of the state with territorial or personal jurisdiction. So it seems that, even in this respect, different regimes (contractual and customary) cover the crimes of a similar gravity, or even the same crimes. As F. Lafontaine points out, some of the crimes concerned are parts of both contractual and customary regimes and they may be treated differently depending on whether the relevant convention or, instead, customary international law is applied. This remark is, of course, also valid with regard to the previously mentioned major difference between the condition of the presence of the alleged offender as applied within the framework of “contractual” universal jurisdiction and the suggested absence of this condition within the regime of customary universal jurisdiction. In addition, there exists a potential legal vacuum, contained in the regime of the universal jurisdiction under customary international law, when a state of apprehension exercising such jurisdiction cannot extradite a suspect (on the basis of one of the accepted reasons) to the state with “more natural” jurisdiction – in such a case, it seems that such a state remains under no strict obligation to prosecute the crime in its own courts, “since the initial decision to exercise universal jurisdiction is founded only on a permissive basis under customary international law”. (However, as F. Lafontaine concludes with regard to this last difference, although the obligation to prosecute is unclear outside of the treaty regime, it would seem that a principle of the law of extradition might in certain circumstances create a (customary) obligation

77 F. Lafontaine, op. cit . sub 26, p. 1289.