Unraveling the confused relationship between treaty obligations to extradite or prosecute and “Universal Jurisdiction” in the light of the Habr´e case

Since the 1980s, the idea that treaty obligations to extradite or prosecute embody or even mandate a principle of universal jurisdiction has increasingly met with weighty support in scholarship. Although this view has not gone unchallenged, in the wake of the ICJ’s judgement in the Habré case, it is gaining ground, as can be seen, for example, in the International Law Commission’s final report on treaty obligations to extradite or prosecute and the debate on universal jurisdiction at the UN General Assembly and its Sixth Committee. Indeed, this case is increasingly spoken of as if the ICJ was affirming the existence of the principle of universal jurisdiction and providing meaningful guidance on its relationship with the obligation to extradite or prosecute. This article brings new insight to an important topic by examining the relationship between jurisdiction in treaty obligations to extradite or prosecute and universal jurisdiction and providing some much needed conceptual and legal clarification. It argues that treaty obligations to extradite or prosecute should not be conceptualised as, or used to infer the existence of, universal jurisdiction. An alternative conceptualisation of jurisdiction, as a form of “treaty-based jurisdiction”, is offered. The purpose of such jurisdiction is to enable states parties to a treaty regime to obtain the custody of the accused, or have such persons prosecuted on their behalf, failing extradition, for the protection of national vital interests. This argument is informed by engaging with a wide range of primary sources, including a comprehensive empirical analysis of state and treaty practice since the end of World War II to the present, including the actual trials conducted on the basis of extraterritorial jurisdiction. The article concludes that treaty obligations to extradite or prosecute do not provide a legal source of universal jurisdiction proper and characterising these obligations as such is conceptually confused and inconsistent with actual state practice. Evidence of actual state practice in support of universal jurisdiction in customary international law is virtually nonexistent, while much of the verbal practice and opinio juris in support of “universal jurisdiction”, though lacking uniformity, is really support for treaty-based jurisdiction. The universal jurisdiction concept is in urgent need of substantial revision.