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UNIVERSAL JURISDICTION UNDER CUSTOMARY INTERNATIONAL LAW …
Another matter of course is that states, while exercising universal jurisdiction,
have to maintain full respect for the relevant immunities under international law,
particularly the personal immunities that shield certain high-level individuals from
prosecution (even for the worst crimes under international law) while they remain
in the office.
50
It is suggested that the immunities which have to observed in the
case of prosecutions for crimes under international law are only immunities
ratione
personae
(not immunities
ratione materiae
– on the basis of the principle that in
case of prosecutions for crimes under international law, the exception from the
immunities
ratione materiae
applies)
51
contained in relevant international treaties
and in customary international law, i.e. above all the immunities
ratione personae
of diplomats, members of special missions and the personal immunities of the
highest representatives of states (heads of states, prime ministers, ministers of foreign
affairs) while in office. The exact scope of the immunities
ratione personae
and
ratione
materiae
of state officials is currently a topic in the agenda of the International Law
Commission under the title of “Immunity of State officials from foreign criminal
jurisdiction”.
52
IV. Universal jurisdiction, treaty crimes and principle
aut dedere aut iudicare
The universal jurisdiction under customary international law is often discussed
in connection with the
aut dedere aut iudicare
regime contained in several dozens
of multilateral treaties aimed at prosecuting serious crimes with international
dimension.
53
An important provision belonging to this category is, for example, the
common article of the 1949 Geneva Conventions, which provides that contracting
states shall be under the obligation to search for persons alleged to have committed
grave breaches of the relevant Convention and shall bring such persons, regardless
of their nationality, before its own courts or extradite them.
54
The scheme contained
50
See A. Cassese,
op. cit.
sub 2, p. 594.
51
See e. g. Antonio Cassese, When May Senior State Officials Be Tried for International Crime? Some
Comments on the Congo vs. Belgium Case,
European Journal of International Law
, 2002, Vol. 13,
No. 4, pp. 853-875.
52
For an overview of current discussions on this topic see also for example Dapo Akande, Immunities
of State Officials, International Crimes, and Foreign Domestic Courts, The European Journal of
International Law, Vol. 21, 2011, no. 4, s. 815-852. Compare also relevant Belgian legislation
concerning this issue (according to L. Reydams,
op. cit.
sub 23, p. 685).
53
The obligation
aut dedere aut iudicare
is only part of the system contained in the relevant treaties. As
mentioned in the AU-EU Expert Report on the Principle of Universal Jurisdiction, (
op. cit
. sub 5,
p. 10), the obligation
aut dedere aut iudicare
is conceptually distinct from universal jurisdiction:
“the establishment of jurisdiction, universal or otherwise, is a logical first step; it is only once such
competence has been established that the question whether to prosecute the relevant conduct, or to
extradite persons suspected of it, arises. Moreover, the obligation to submit a case to the prosecuting
authorities or to extradite applies as much in respect of an underlying jurisdiction based on territoriality,
nationality, passive personality, etc., as it does to universal jurisdiction.”
54
Article 49, second paragraph, of the 1949 Geneva Convention I; Article 50, second paragraph, of the
1949 Geneva Convention II; Article 129, second paragraph, of the 1949 Geneva Convention III and