However, one can recognize a policy rule to accord priority to the principle of
territoriality in combination with a model of conditional subsidiarity of universal
jurisdiction once an investigation is concluded. The conditionality of the exercise of
universal jurisdiction, while not settled conclusively, may be based on the “good faith”
exercise of the primary jurisdiction and may be construed following the case law of
human rights courts and the basic concept established by Article 17 of the Rome Statute
for the vertical state-ICC relation. It follows that, if the territorial state is unwilling or
unable to genuinely conduct investigations or if the investigations or prosecutions are
no more than sham proceedings to shield the perpetrator, then the third state may initiate
its own criminal proceedings. For an investigation to be considered genuine, it must
meet the universal standards of effectiveness, promptness, independence and
impartiality.
However, one can recognize a policy rule to accord priority to the principle of
territoriality in combination with a model of conditional subsidiarity of universal
jurisdiction once an investigation is concluded. The conditionality of the exercise of
universal jurisdiction, while not settled conclusively, may be based on the “good faith”
exercise of the primary jurisdiction and may be construed following the case law of
human rights courts and the basic concept established by Article 17 of the Rome Statute
for the vertical state-ICC relation. It follows that, if the territorial state is unwilling or
unable to genuinely conduct investigations or if the investigations or prosecutions are
no more than sham proceedings to shield the perpetrator, then the third state may initiate
its own criminal proceedings. For an investigation to be considered genuine, it must
meet the universal standards of effectiveness, promptness, independence and
impartiality.
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