CYIL Vol. 4, 2013

PAVEL CABAN CYIL 4 ȍ2013Ȏ However, for the time being this is almost pure theorizing; the current state of customary international law concerning universal jurisdiction and the conditions of its exercise are described above. It is suggested that the relevant customary law conditions, notably the absence of a strict presence requirement for the (initial or investigative part of ) enforcement of universal jurisdiction, and the subsidiarity of the exercise of universal jurisdiction serve as a kind of counterpart to the relevant principles applied within the “contractual universal jurisdiction”, namely the absolute obligation to prosecute when the alleged offender is present on the territory of the state party, and the right of each state party to make a claim, addressed to the state where the alleged perpetrator is present, for the cessation of any breach of relevant obligations concerning the obligation to prosecute. It is further suggested that the exercise of customary universal jurisdiction under current conditions will perhaps inevitably contain certain political aspects, and that these customary law conditions by its nature require that states willing to prosecute on the basis of customary universal jurisdiction are given some leeway or discretion in enforcing universal jurisdiction, enabling the prosecuting authorities to take into account all circumstances of a concrete case. In this regard, it is opportune to point to the opinion of Máximo Langer, who holds the view that certain selectivity and limited potential to convict international criminals is a structural feature of (current customary) universal jurisdiction. 85 M. Langer opines that some political aspects are unavoidably part of the regime of universal jurisdiction, and the question is not to eliminate them but to find the best way how to give them a voice in this regime: the conditions such as the presence of the alleged perpetrator on the territory of the prosecuting state and the subsidiarity of universal jurisdiction are just one of the (political) tools to control universal jurisdiction cases, the other being prosecutorial discretion with regard to the cases based on the exercise of universal jurisdiction – he suggests that a higher level of prosecutorial discretion may result in narrowing that state’s statutory restrictions on universal jurisdiction (such as the presence of the perpetrator) and vice versa . 86 It is to be noted that this, maybe a bit too realistic, approach does not speak against the concept of customary universal jurisdiction described above: any real, even if ultimately mostly unfulfilled, threat of the exercise of customary universal jurisdiction based on sound legal conditions and prosecutorial discretion may be effective as a deterrent. It is suggested that an approach conducive to more appropriate and efficient application of customary universal jurisdiction is the combination of broader prosecutorial discretion and 85 M. Langer, op. cit . sub 1, p. 45. M. Langer, after analyzing practice in major jurisdictions exercising universal jurisdiction, found out that in the last twenty-five years, only around twenty-five offenders around the world have been criminally convicted on the basis of universal jurisdiction; he also came to the conclusion that universal jurisdiction is in reality exercised in cases of (“harmless”) defendants about whom there is a broad agreement in the international community that they should be prosecuted (primarily Nazis, former Yugoslavs and Rwandans) and whom their own state of nationality is not willing to defend ( op. cit ., p. 3). 86 M. Langer, op. cit . sub 1, p. 46-47.