CYIL Vol. 4, 2013

UNIVERSAL JURISDICTION: A TOOL AGAINST IMPUNITY distinct from universal jurisdiction. The establishment of jurisdiction, universal or otherwise, is logically a prior step: a state must first vest its courts with competence to try given criminal conduct. It is only once such competence has been established that the question of whether to prosecute or extradite arises. 60 In sum, a state party to one of the treaties in question is not only bound to empower its criminal justice system to exercise universal jurisdiction but is further bound actually to exercise that jurisdiction by means of either considering prosecution or extradition. In addition, according to Bassiouni, international crimes that rise to the level of jus cogens constitute legal obligations. This, in his opinion, stipulates that the legal obligations, which stem from grave breaches, include, among others, the duty to prosecute or extradite. Thus a state that simply does not wish to prosecute or extradite suspected offenders, can and often does ignore its non-derogable, jus cogens duty of aut dedere aut judicare , resulting in granting the accused individuals impunity for their crimes. 2.3.2 Jus Cogens and obligation Erga Omnes Universal jurisdiction is often described as being in close relation with the doctrines of jus cogens and obligation erga omnes. All three doctrines, universal jurisdiction, jus cogens and obligations erga omnes, involve compelling principles of law creating rights or obligations for every state. More importantly, erga omnes and jus cogens , may give support to the view that nonparties to some of the hijacking, terrorism, apartheid or torture conventions have the jurisdictional right to prosecute for those offences. Obligations erga omnes are literally obligations “flowing to all”. As indicated by dictum in the Barcelona Traction case: An essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-á-vis another State… By their very nature the former are the concern of all states. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes . 61 The jus cogens concept refers to peremptory principles or norms from which no derogation is allowed. Traditionally, international law has distinguished the erga omnes obligation and jus cogens doctrines (which address state responsibility), from the universality principle (which addresses violations of individual responsibility). However, these doctrines may support the right of all states to exercise universal jurisdiction over offenders. 62 It has even been argued with respect to some or all of the above mentioned crimes that universal jurisdiction is mandatory as customary law, often adducing arguments of jus cogens and obligations erga omnes in support. 63 60 A.U.-E.U. Expert Report: op. cit ., para. 11. 61 Barcelona Traction, Light & Power Co. (Belgium v. Spain ), International Court of Justice, judgment of Feb. 5 1970, page 32, para. 33. 62 Randall, Kenneth C.: op. cit., p. 830. 63 Bassiouni, M. Cherif: Accountability for International Crimes and Serious Violations of Fundamental