CYIL Vol. 4, 2013

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