CYIL Vol. 4, 2013

UNIVERSAL JURISDICTION UNDER CUSTOMARY INTERNATIONAL LAW … for the requested state that refused to proceed with the extradition to submit the case to its own prosecuting authorities.) 78 It is to be noted that a system similar to the regime contained in the conventions described above is provided for in the relevant articles of the Draft Code of Crimes against the Peace and Security of Mankind, 79 adopted by the International Law Commission at its forty-eighth session in 1996. The Draft Code covers the “customary crimes” with regard to which the customary rules of universal jurisdiction should apply, namely the crime of genocide, the crimes against humanity, war crimes and, in addition, crimes against the United Nations and associated personnel (as for the crime of aggression, the Draft Code contains a special regime which is in some respects different from the regime regulating the above four crimes). Article 8 of the Draft Code provides that (without prejudice to the jurisdiction of an international criminal court) each state party shall take such measures as may be necessary to establish its jurisdiction over the crimes set out in Articles 17, 18, 19 and 20 of the Draft Code, irrespective of where or by whom those crimes were committed (as is stated in the commentary by the International Law Commission, any state party is thus entitled to exercise jurisdiction over an individual, allegedly responsible for a crime under international law set out in Articles 17 to 20 who is present in its territory, under the principle of “universal jurisdiction” set forth in Article 9). 80 Article 9 of the Draft Code contains the obligation to prosecute or extradite, according to which (again, without prejudice to the jurisdiction of an international criminal court) the state party in the territory of which an individual, alleged to have committed any of the above mentioned crimes, is found shall extradite or prosecute that individual. In other words, such a custodial state has an obligation to take action to ensure that such an individual is prosecuted either by the national authorities of that state or by another state which indicates that it is willing to prosecute the case by requesting extradition (according to the commentary by the International Law Commission, Article 9 does not give priority to either alternative course of action, i.e. the obligation to prosecute arises independently from any request for extradition). 81 Thus, the regime envisaged in the Draft Code for the crimes under international law closely follows the regime contained in the cited provisions of the relevant conventions providing for “contractual universal jurisdiction”. Having regard to the observations above it seems that the key outstanding point of both the system of the universal jurisdiction under customary international law and the “contractual universal jurisdiction” is how to handle the situation when the alleged offender is not present in the territory of the state which is seeking to prosecute the crime and which has no territorial or active or passive personal connection with the crime. It seems that each (customary and contractual) system approaches this

78 F. Lafontaine, op. cit . sub 26, p. 1300-1301. 79 Yearbook of the International Law Commission, 1996, Volume II, Part Two, p. 15 et seq .

80 Ibid. , p. 29 (para. 7 of the commentary). 81 Ibid ., p. 31 (para. 3 of the commentary).