CYIL Vol. 4, 2013

UNIVERSAL JURISDICTION UNDER CUSTOMARY INTERNATIONAL LAW … aut dedere aut iudicare , preliminary investigation and custody, extradition, mutual legal assistance etc.) based on and inspired by the similar provisions in the UN Convention against Torture, the International Convention for the Protection of All Persons from Enforced Disappearance, the UN Convention on Transnational Organized Crime and the UN Convention Against Corruption. 83 Adoption of such a convention is supported also by the legal doctrine. 84 If such a possible convention acquired universal acceptance and the above interpretation of the erga omnes regime of such a convention, elaborated by the International Court of Justice in the dispute between Belgium and Senegal, were accepted as well, legal gaps in the regime of universal jurisdiction over crimes under international law would be filled. However, such a scenario currently seems like an utopia – a bit less realistic than the concept of customary universal jurisdiction. Until that time (which definitely will not come soon, if at all), current customary regime of universal jurisdiction will play its very important role. However, a possible future convention on international cooperation in criminal matters with respect to crimes under international law, even if not widely accepted, might – together with the principles of “contractual universal jurisdiction”, as currently applied and interpreted – influence and shape creation of new (or amendment to the relevant existing) principles of universal jurisdiction contained in customary international law along the lines of the principles of “contractual universal jurisdiction” (as currently applied and interpreted). Such a possible development, even if theoretical, seems to be preferable to the current system of customary universal jurisdiction. 83 However, as pointed out above, some of those provisions (concerning the obligation of aut dedere aut iudicare ) differ to some extent from each other. 84 F. Lafontaine, op. cit . sub 26, p. 1294, fn. 90 (“The development of a more consitent mutual legal assistance framework as regards the prosecution for genocide and crimes against humanity should be considered a priority in the discussions regarding universal jurisdiction”); C. Kreß, op. cit . sub 10, p. 584 (“The time has now come for states to incorporate both the basic competence and the reasonable limitations on the exercise of the universal jurisdiction into an international convention on universal jurisdiction”); A. Cassese, op. cit . sub 2, p. 595 (“… if both the conditions on which the exercise of universal jurisdiction must be made contingent [presence of the alleged offender on the territory of the state at the time of the commencement of investigation, subsidiarity] and other limitations restraining this exercise were laid down in a treaty, much of the current uncertainties surrounding customary law would be dispelled.”). Also the International Law Commission’s Working Group on the Obligation to Extradite or prosecute recently stated that “…there are important gaps in the present conventional regime governing the obligation to extradite or prosecute which may need to be closed. Notably, there is a lack of international conventions with this obligation in relation to most crimes against humanity, war crimes other than grave breaches, and war crimes in non-international armed conflict. In relation to genocide, the international cooperation regime could be strengthened beyond the rudimentary regime under the Convention for the Prevention and Punishment of the Crime of Genocide of 1948...” The Working Group i.a. added that “the prosecute-or-extradite formula under the Convention against Torture could serve as a model for new prosecute-or-extradite regimes governing prohibitions covered by peremptory norms (jus cogens), such as genocide, crimes against humanity, and serious war crimes.” See the Report of the Working Group on the obligation to extradite or prosecute (aut dedere aut judicare), International Law Commission, Sixty-fifth session, doc. A/CN.4/L.829, 22 July 2013, pp. 9-10.