THE AU MODEL LAW ON UNIVERSAL JURISDICTION: AN AFRICAN RESPONSE TO WESTERN PROSECUTIONS BASED ON THE UNIVERSALITY PRINCIPLE

The African continent has been consistent in placing its concerns regarding the manner in which international criminal justice is administered on the international platform. For the past decade, the continent has minced no words about its misgivings concerning the use of universal jurisdiction (UJ) by both foreign States and the International Criminal Court (ICC). The African Union (AU) has been very supportive of UJ and its utility in fighting impunity and affording justice to victims of the core crimes of international law, namely, genocide, war crimes and crimes against humanity. Often referred to as core crimes, these are regarded as customary law crimes which are an affront to entire humankind. These crimes were also codified by the Rome Statute of the ICC. However, the political and selective use of the principle of universality by foreign States to prosecute perpetrators of these crimes was seen as causing conflicts and undermining peace efforts, reconciliation and regional stability. As a result the African continent voiced its concerns at various public platforms, including under the auspices of the UN and it therefore called for reforms. This prompted the AU to produce its own model law on UJ, which African States could adapt to their own socio-political circumstances and legal context. The debates that ensued around UJ on the African continent offered African States a chance to contribute to the development of international law, especially on the rules concerning UJ. This paper analyses the interaction amongst African states that eventually led to the development of UJ regulations within their individual legal systems, and tries to determine if there is indeed an African signature in those legal rules.

The UN convened the Preparatory Committee on the Establishment of an International Criminal Court from 25 March to 12 April and from 12 to 30 August 1996, whose task was to polish the already existing draft statute. This was followed by the diplomatic conference of plenipotentiaries in 1998 whose aim was to finalise and adopt a convention on the establishment of an international criminal court. The Assembly also decided that the Preparatory Committee would meet in 1997 and 1998, in order to complete the drafting of the text for submission to the Conference. The Preparatory Committee met from 11 to 21 February, from 4 to 15 August and from 1 to 12 December 1997, during which time the Committee continued to prepare a widely acceptable consolidated text of a convention for an international criminal court. This was followed by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, held at Rome in 1998 (see Resolution on Establishment of an International Criminal Court GA Res 52/160 (1997)). The Conference had before it the draft motion did not receive the necessary support, as states feared it might impact negatively on the ratification process. It was felt that this would politicise the court and make it impossible to get states to append their signatures on the treaty. As a result, UJ is currently not listed as a ground upon which the ICC could exercise jurisdiction. 12 However, when the ICC decides to seize a matter that involves neither a State Party nor a citizen of a State Party, arguments can be made and have been made that the ICC is in that regard exercising a form of UJ. In terms of Articles 12(2) and 13(b), the ICC shall have jurisdiction where: The prevailing view is that the ICC does not exercise UJ. 14 However, this position overlooks the fact that the exercise of jurisdiction by the ICC in cases referred by the UNSC constitutes an exception to the territorial and nationality requirement. In other words, even though the Rome Statute lists territoriality and nationality as the only two forms of jurisdiction, Article 13(b) allows the UNSC to avoid these two statute, which was assigned to the Committee of the Whole for its consideration. The Conference entrusted the Drafting Committee, without reopening substantive discussion on any matter, with coordinating and refining the drafting of all texts referred to it without altering their substance, formulating drafts and giving advice on drafting as requested by the Conference or by the Committee of the Whole, and reporting to the Conference or to the Committee of the Whole as appropriate. On 17 July 1998, the Conference adopted the Rome Statute of the International Criminal Court (1998), which was opened for signature on 17 July 1998 and remained open until 17 October 1998. 11 Germany, for instance, wanted to have included in the Rome Statute a provision granting the court UJ over the core crimes. Germany's arguments were based on the rationale that states individually have a legitimate basis at international law to prosecute the core crimes on account of UJ. The ICC therefore had to have the same capacity as the contracting states. See Williams 2000 ILS 544.
12 ICC 2014 http://www.icc-cpi.int/en_menus/icc/about%20the%20court/icc%20at%20a%20 glance/Pages/jurisdiction%20and%20admissibility.aspx. 13 A 13(b) of the Rome Statute empowers the Security Council to refer a situation to the Prosecutor, irrespective of the nationality of the accused or the location of the crime. is not a form of jurisdiction; hence, the ICC's connection with matters referred to it in this manner can be explained only on the basis of the universality principle. 15 Even though most commentators are of the opinion that the ICC does not exercise UJ, 16 there are instances where ICC prosecutions fall squarely within the universality principle. 17 Further, in relation to the domestic legislative enactments aimed at implementing the ICC obligations of states under the Rome Statute, Dugard expresses the opinion that such laws do confer upon the courts of a particular State some form of UJ. This is the power of domestic courts to try the international law crimes recognised by the Rome Statute, based on the principle of universality. 18 The interventions of the ICC and those of the domestic courts of foreign states resulted in African and some non-African states uniting to denounce what they perceived as the abuse of the principle, mainly by Western states, 19 which were 15 Dube Universal Jurisdiction 126. 16 Ryngaert International Criminal Court 4. Even the ICC perceives itself as not having UJ because of the manner in which A 13 of its Statute is worded. See in this regard ICC 2014 http://www.icccpi.int/en_menus/icc/about%20the%20court/icc%20at%20a%20glance/Pages/jurisdiction%20a nd%20admissibility.aspx. Also see Bekou and Cryer 2007 ICLQ 50. 17 Dugard International Law 155. Whilst Dugard aligns with the position that the ICC does exercise limited UJ, he also points out that other commentators hold a contrary view. 18 Dugard International Law 155. 19 See Delegates Cite Abuse of Universal Jurisdiction, Lip Service to Fight against Impunity: Sixth Committee Debate Sixty-Eighth General Assembly, 14th Meeting, GA/L/3462 (2013). During the debate many state representatives voiced their concerns about the manner in which the principle of universality was being used by what they termed "police states" in violation of international law. Their major concern was that this legal avenue was being politicised, and used in disregard of state sovereignty and the jurisdictional immunities that state officials enjoy under international law. Speaking in the debate were representatives from a number of African states including Mozambique (which stressed that UJ has political consequences and up to now has been used by non-African States to prosecute African leaders unilaterally), Equatorial Guinea (whose representative expressed concern about the political nature and abuse of the principle of universality by what he referred to as "police States"), Kenya (which urged caution when exercising the principle and that it should not be used only as lip service in the fight against impunity, as is currently the case), Lesotho (which raised the concern that UJ is currently being used to serve the caprices of individual [non-African] States), and Uganda (whose representative called for a working group to assist states to reach a consensus on the scope and application of the principle of UJ). Non-African States also raised similar concerns about the misuse of UJ. These include Iran (which raised concerns about the violation of the jurisdictional immunities of heads of state), Azerbaijan (whose concerns included selectivity and politically motivated prosecutions), Cuba (which raised concerns about UJ's being used to undermine the integrity of various legal systems), Italy (which called for a detailed study of the concept, as it is currently a murky area), Israel (which called for additional state reports on the topic in order to deal with 454 allegedly pursuing a neo-colonial agenda against African States. To ensure that its reservations were placed in the international arena the AU decided to request In 2011 Switzerland introduced several new aspects to its legislation and judicial organisation aimed at broadening its framework for the prosecution of the core crimes. The Swiss Criminal Code, 1937 was revised to introduce a specific heading on crimes against humanity, which had until then been captured under the Swiss law as a common crime like murder, assault, rape or other serious crimes. It also transferred jurisdiction over these crimes from the military to civilian justice. The new law also provides for UJ over crimes committed abroad (A 264m) and the exclusion of relative immunity (A 264n in which the AU noted its concerns on the abuse of the principle of universality by Western States. In the same decision, the AU called upon its members to furnish it with a list of pending UJ cases against African leaders in foreign courts. The AU further called upon its members to apply the principle of reciprocity on countries that have instituted proceedings against African State officials and to extend mutual legal assistance to each other in the process of the investigation and prosecution of such cases. This was Africa's attempt to show the West that African courts could equally be the staging area for the prosecution of State officials from those Western States that were currently pursuing Africans, regardless of where the crime took place. The AU members further called for an international regulatory body with competence to review and/or handle complaints or appeals arising out of the abuse of the principle of UJ by individual States.
ratified the Rome Statute, for most of them the legislation aimed at implementing those obligations and introducing UJ for the core crimes is still in draft form. 29 The AU's position on the universality principle has not been to dismiss UJ absolutely in principle. Instead the AU has consistently noted the utility of UJ in ending impunity, especially in the light of Article 4(h) of the Constitutive Act of the AU. 30 What the regional body has, however, continually decried is the manner in which this principle has been used by non-African States against African state officials. In its 2008 session, the AU noted that there was a rise in the abuse of the principle of universality in respect of the core crimes, and that this will have negative consequences in international relations. 31

The AU Model Law on Universal Jurisdiction
The Model Law on Universal Jurisdiction (AU Model Law) that was adopted by the AU was a result of concerns that Africa had with the use of UJ by both non-African  34 It also resonates with the sovereign equality of states. Hence the draft AU Model Law stipulates that its purpose is to provide a framework for individual countries to exercise UJ over certain international crimes. It is worth noting that the model's provision does not necessarily limit itself to the core crimes of genocide, war crimes and crimes against humanity. Instead it extends this jurisdiction to other international law crimes and other crimes of international concern. Hence it uses the wording "international crimes" rather than "international law crimes", "core crimes" or "atrocity crimes". The AU Model Law does not define what an international crime is, save to list the categories of crimes over which states 33 See the preamble to the AU Model Law. In the preamble, African States recognise that the heinous nature of some crimes means that they should not go unpunished, and that this resonates with the obligations of African States under A 4(h) of the AU Constitutive Act. It further recognises that the primary responsibility to end impunity, and to prosecute offenders rests with states, and that this will enhance international cooperation amongst states. 34 See the case of S v Petane 1988 3 SA 51 (C), in which the court clearly stated that customary law is founded on practice, not on preaching.
could employ the universality principle in national legislation as follows: genocide, war crimes, crimes against humanity, piracy, trafficking in narcotics, and terrorism. 35 The provisions of the AU Model Law on jurisdiction differs markedly from the provisions of the Western states that initiated prosecution proceedings against African state officials in the past decade, 36 particularly regarding the requirement of the presence of the accused. In Article 4 of the AU Model Law the presence of the accused is stipulated as a requirement only for the commencement of prosecution. 37 The AU Model Law is silent on whether presence is a pre-requisite for the initiation of UJ-based investigations. 38 In other words, investigations can commence without the accused being present.
What is notable, though, in the AU Model Law is the rider introduced by Article 4(2).
It provides that in exercising UJ the courts of the prosecuting state shall accord priority to the courts of the state in whose territory the crime is alleged to have been committed. The territorial state has a stronger connection with the crimes, and as such, even though all States are outraged by the heinous nature of the crimes committed, it is ultimately the territorial State that is most affected by the accused's conduct. It is only logical that it be given the chance to deal with the situation and find closure. However, Article 4(2) was also couched in such a way as to deal with the possibility of impunity, in that it gives preference to the territorial state only to the extent that it is willing and able to prosecute. Hence only cases where the territorial state is unwilling and unable to prosecute can any other state proceed on the basis of UJ. This is in line with the international law principle of 35 See A 8 of the AU Model Law. 36 See the discussion above concerning the Belgian Act on the Punishment of Grave Breaches of International Humanitarian Law, 1993Law, (amended in 1999, which allowed Belgian courts to prosecute a foreigner for offences committed abroad against another foreigner, even if the accused could not be found in Belgium.

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A 4 of the AU Model Law provides as follows: "The Court shall have jurisdiction to try any person … provided that such a person shall be within the territory of the State at the time of the commencement of the trial". 38 In A 5 the AU Model Law empowers the national prosecuting authority of states desiring to use UJ to prosecute offenders who are found in their territory.
complementarity. 39 Xavier Philippe defines this principle as a functional principle aimed at granting jurisdiction to a subsidiary body when the main body fails to exercise its primacy jurisdiction. 40 The principle is premised upon a compromise between respect for the sovereignty of states and respect for the universality principle. It thus involves an acceptance by States that the perpetrators of the core crimes may be punished through the creation and recognition of international criminal bodies, 41 and in this case, the recognition of the right of third-party states to prosecute, based on the grave nature of the offences.
Article 17 of the Rome Statute regulates the complementarity of the ICC vis-à-vis national courts. 42 The drafters of the Rome Statute chose the word "or" rather than "and", which is the preferred term in the AU Model Law. 43 The complementarity envisaged in Article 4(2)  It provides that as regards the admissibility of cases, the Court shall determine a case admissible where "it is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is unwilling or unable genuinely to carry out the investigation or prosecution". The use of the word "genuinely" works as a safeguard against states which would attempt to carry out a sham trial, in order to block the ICC or any other competent tribunal from being seized with jurisdiction. 43 A 4(2) of the AU Model Law provides that "... the Courts shall accord priority to the court of the State in whose territory the crime is alleged to have been committed, provided that the State is willing and able to prosecute". As stated above, in both the ICC and AU outlook on complementarity, the concepts of the ability and willingness of the domestic court to prosecute are used. Under the Rome Statute it should suffice that a state has failed to meet one of these elements.
This means that if a state is willing to prosecute, but is otherwise unable to do so by reason of its having a collapsed judicial system or for some other reason, this should be sufficient ground for the ICC to assume jurisdiction over the matter. In other words, in the ICC context, the two factors need not exist simultaneously. It will be sufficient that one of them is established (ie inability or unwillingness). However, given the use of "and" in the AU Model Law, the understanding should be that both elements must be satisfied before any other court can exercise UJ over a particular matter. If interpreted in this way, the provision means that a capable state which is unwilling to prosecute and a willing state which is unable to prosecute still retain primacy of jurisdiction, unless it can be proved that the two elements are simultaneously satisfied. The existence of just one of the two elements is not sufficient under the current wording of the AU Model Law. This is a consequence of the use of the word "and", which denotes that both elements must be satisfied and not just one of them. This is a much more stringent approach to complementarity and may defeat the stated goal to end impunity.
As stated earlier, the AU Model Law does not necessarily limit itself to the core crimes, but includes other crimes of international concern. Notably omitted from its list of crimes are the crimes of slave-trading and slavery, which largely affected the continent in the 17 th century and continue to plague the continent to this day, although in a subtle way. The draft does, however, list piracy, which under customary international law is in the same category as slave-trading in terms of its heinous nature. 48 Perhaps the drafters were of the opinion that both slave-trading, and the exercise of UJ over this crime are already established under customary Both slave-trading and piracy have formed the bedrock of the development of UJ since the 17th century, a development which has been gradually gaining momentum since the Nuremburg Trials.

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international law. 49 Unfortunately, the same cannot be said of the core crimes.
Unlike piracy and slave-trading, even though the core crimes are established as crimes under customary international law, 50 there is no consensus that customary law confers UJ on states for their prosecution. 51 The AU Model Law also takes into account one of the major concerns that the African continent has consistently expressed over time, being that of immunity for sitting heads of states. Article 16 reaffirms the immunity of foreign state officials. It stipulates that foreign state officials who are entitled to jurisdictional immunity shall not be charged or prosecuted under this law. The provision makes an exception where the crimes in question are covered by a treaty to which both the prosecuting state and the state of the nationality of such officials are parties, and which prohibits immunity. This is in line with international law on jurisdictional immunities. The fact that it requires both the prosecuting state and the state of the suspect's nationality to be party to a treaty that excludes immunity for those crimes also resonates with the international law principle that state consent is central to the formation of rules of international law.
The AU was eager to ensure that sovereign immunity was put into effect. Article 16(2) of the AU Model Law stipulates that the jurisdiction of the national court set out in Article 4 shall not extend to foreign state officials. The same provision prevents the prosecuting authority of each state from extending its prosecutorial powers to foreign state officials. 49 Cassese International Criminal Law 284. See also Mugambi 2007 Ga J Int'l & Comp L 500. Also see Dugard International Law 157 who also supports the position that the earliest known customary international crime was that of piracy. 50 See Kontorovich, who asserts that historical evidence does not support the view that slavetrading, like piracy, exemplified a universal offence which entitled all States to prosecute offenders. Instead, he propounds a view that most international treaties on slave-trading created "delegated jurisdiction" whereby several nations conveyed to one another the right to exercise some of their jurisdictional powers with respect to a particular offence. This effectively made each state an agent of the others. He also argues that piracy as well did not become universally

The requirement of presence for the purposes of investigation
International law is silent on the requirement of presence for the purposes of pursuing a UJ-based investigation against a foreigner who committed core crimes against other foreigners abroad. The AU Model Law also does not address this point, but limits itself to presence for the purposes of prosecution only. In Article 5 it only empowers the national prosecuting agency of the state in whose territory the accused is found to initiate prosecution proceedings, and is silent about investigation. 56 As there is generally no court involvement in the investigative phase of the proceedings, the wording of the AU Model Law should be understood to deal with cases that have gone beyond the investigative stage, cases which are ripe for adjudication. But as soon as there is court involvement, the accused's presence would be required so as to secure the jurisdiction of the court. This could be for the purposes of putting charges to the suspect. 57 This is a preferable approach, given that there is no customary law rule prohibiting investigations in absentia.
In the case of UJ-based investigations, however, there is a need to differentiate between presence and residency. Even though the AU Model Law is silent on the accused's presence as a pre-requisite for UJ-based investigations to commence, the state intending to do so must remain alive to the futility of opening investigations against an accused person who is highly unlikely to ever enter its territory. Where there is a likelihood that the accused can be brought within the territory of the prosecuting state, either voluntarily or via extradition, an investigation in absentia as a prelude to a UJ-based prosecution therefore makes more sense. 58 56 A 5 of the AU Model Law provides that "The Prosecuting Authority shall have the power to prosecute before the court any person in the territory of the State who is alleged to have committed a crime prohibited under this law".

Creating Africa's own international criminal court
The efforts of the continent to be proactive and develop an autochthonous African framework to stem the culture of impunity for core crimes can also be seen ... it shall not be a defence … nor a ground for a reduction of sentence for a person … to plead that he is or was Head of State, a member of a Government or Parliament, an elected representative or a government official of a foreign State. 63 Section 27 of the Kenyan International Criminal Courts Act of 2008 also precludes immunity from becoming a bar to proceedings in which a request for the surrender of a suspect to the ICC is being determined. South Africa adopts the same approach

African states that embrace universal jurisdiction in relation to the core crimes
In analysing the countries on the continent that embrace UJ, each country's implementation of the Rome Statute will be considered. In essence, the focus will be on those countries which are party to the Rome Statute which codified the three core crimes, and will determine how each country's legislation for implementing the on the prosecution of the offences alleged, rather than the investigation of those offences.
The South African case involving Zimbabwean torture victims that will be reviewed below turned on the refusal of the State prosecuting authority and the police service to initiate a UJ-based investigation of suspects who were not on South African soil.
One of the key considerations that could have influenced the refusal is that investigations do not always lead to prosecution, and as such these two processes must be viewed separately as different stages of development of criminal proceedings. In this case, Zimbabwean state security forces had raided the opposition party, the Movement for Democratic Change (MDC)'s headquarters and detained and tortured suspected as well as actual MDC supporters. All the elements of the crime took place in Zimbabwe, the perpetrators were Zimbabweans, and so were the victims. Two organisations (the Southern Africa Litigation Centre (SALC) and the Zimbabwe Exiles Forum (ZEF)) later assisted the victims, who now resided in South Africa, to seek justice. They delivered a dossier to the NPA and the South African Police Service containing comprehensive evidence of the involvement of Zimbabwean officials in the perpetration of widespread and systematic torture, constituting a crime against humanity. To establish a link, the organisations stated that the perpetrators were frequent travellers to South Africa and as such could easily be subjected to the ICC Act. They therefore requested the NPA and SAPS to initiate an investigation in terms of their legal obligations stipulated in the ICC Act. The SAPS refused to oblige, citing the extra-territorial nature of the acts allegedly committed. The matter is still pending at the Constitutional Court, where it was heard on 15 May 2014. It is worth noting that the case was initially brought to court prior to the The court found arguments that the allegations complained of are deemed to have taken place the moment the accused entered South African soil to be fallacious. It stated that the provision criminalises such conduct at the time of its commission, regardless of where and by whom it was committed. Further, that whilst the ICC Act does not expressly authorise an investigation prior to the presence of an alleged perpetrator within South African territory, it also does not prohibit such an investigation (para 55). The court found that there was nothing wrong with an investigation in absentia, provided that it happens on the State's own territory, or on the foreign State's territory only with its consent (para 56). encourage impunity. 81 It is commonplace that the investigation of an alleged crime might or might not lead to prosecution. Whilst alive to the issues raised by the court, and also alive to the lacuna in international customary law on this point, it should be noted that where the third State can initiate investigations without infringing on the sovereignty of another State, then it should be permitted to do so. Hence the Constitutional Court also held on appeal from the SCA that UJ investigations can be initiated without offending the South African Constitution or international law. A IV of the Torture Convention. The same applies to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. The Torture Convention already envisaged an element of universality, for it provides in A IV(2) that each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. However, A IV does not introduce UJ; it merely underscores the grave nature of the crime of torture. UJ in respect of this crime comes through only in A VI.

The presence requirement in the initiation of prosecution
each State Party to exercise jurisdiction on the basis of the universality principle in cases where the accused is present on its territory. 86 In keeping with its obligations under the Torture Convention, South Africa enacted Section 6 of the Torture Act, 87 which provides for South African courts to exercise extra-territorial jurisdiction over acts of torture committed abroad. 88 The Torture Act is silent on the need for the presence of the accused in UJ-based torture investigations; it expressly requires the presence of the accused for prosecution purposes only. 89 The Act is worded in such a way that it grants a South African court jurisdiction over extra-territorial acts of torture provided the accused is present in the territory of the Republic after the commission of the offence. Since South African courts are largely not involved in the investigation stages of the proceedings, it stands to reason that the jurisdiction referred to here is judicial jurisdiction.

Kenya
Kenya is also a party to the Rome Statute, having ratified it in 2005. 90 Kenya enacted the International Criminal Courts Act of 2008, 91 which entered into force on 86 A VI provides that: "Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in Article IV is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted." Article VI has a rider, which places an obligation on the prosecuting state to make an immediate preliminary enquiry into the facts. In other words, the Torture Convention envisages a situation where the state must apprehend the suspect for purposes of investigation. A VI is further buttressed by Aa XII and XIII which impose procedural fairness considerations. titled Extra-territorial jurisdiction, provides that: "A court of the Republic has jurisdiction in respect of an act committed outside the Republic which would have constituted an offence … had it been committed in the Republic, regardless of whether or not the act constitutes an offence at the place of its commission, if the accused person -… (c) is after the commission of the offence, present in the territory of the Republic or in its territorial waters or on board a ship, vessel, off-shore installation, a fixed platform or aircraft registered or required to be registered in the Republic and that person is not extradited pursuant to Article 8 of the Convention." The Kenyan International Criminal Court Act's short title states that this is an Act of Parliament to make provision for the punishment of certain international crimes, namely genocide, crimes against humanity and war crimes, and to enable Kenya to co-operate with the International Criminal Court established by the Rome Statute in the performance of its functions 93 S 8 of the International Criminal Court Act, 2008 provides that a person who is alleged to have committed any of the core crimes may be tried and punished in Kenya on the basis of territoriality (s 8(a) -offence is alleged to have been committed in Kenya), or nationality (s 8(b)(i) -at the time of commission the person was a Kenyan citizen or was employed by the Government of Kenya in a civilian or military capacity), or passive personality (s 8(b)(iii) -the victim of the alleged offence was a Kenyan citizen). Kenya also introduced a novel form of passive personality, under which its courts assume jurisdiction if the victim was a citizen of a State that was allied with Kenya in an armed conflict (s 8(b)(iv)). Kenya also interestingly provides for its courts to have jurisdiction over an offender who, at the time of the commission of the offence, was a citizen of a state that was engaged in an armed conflict against Kenya, or was employed in a civilian or military capacity by such a state. For the core crimes of genocide, war crimes and crimes against humanity, there is a treatybased obligation aut dedere aut judicare only for grave breaches of the Geneva Conventions (1949) and Additional Protocol I. See Chatham House 2013 http://www.chathamhouse.org/ publications/papers/view/192991#sthash.LF58B8oA.dpuf.

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The Geneva Conventions and their Additional Protocols are international treaties that contain the most important rules limiting the barbarity of war. They protect people who do not take part in the fighting (civilians, medics, aid workers) and those who can no longer fight (wounded, sick and shipwrecked troops, prisoners of war). See ICRC 2010 https://www.icrc.org/eng/war-andlaw/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm.
Perhaps this can be attributed to the fact that apart from war crimes, the other two core crimes could be committed in peace time, and as such required a well-suited legal system and a tribunal structure to punish offenders. It was the jurisprudence of the various ad hoc international criminal tribunals, 118 the various treaties and global political and diplomatic lobbying that brought about general consent to the need to punish not only perpetrators of war crimes but also genocide and crimes against humanity. 119 The Rome Statute and the obligations of states contained therein provided a springboard for the development of new legal frameworks, both on the African continent and abroad, aimed at giving effect to the obligations of states under international law. These new legal frameworks also developed within a milieu of widespread global impunity for these grave breaches. 120 The interactions that have taken place under the umbrella of the UN and the AU also demonstrate the hunger on the part of African states to meaningfully participate in the development of international law on the basis of sovereign equality with other states. Hence Africa as a collective has been very vocal on issues that it perceives as a corruption or abuse of established international customary law, such as the immunity of state officials in the courts of a foreign state. It also presents international law with challenges for the assertion that UJ over these core crimes is an established principle of customary law, since this assertion is not necessarily supported by state practice. Whilst a few states, such as Belgium, Spain, France and Switzerland have attempted to prosecute and at times succeeded in prosecuting foreigners on the basis of UJ, there is no evidence that this is indicative of widespread acceptance of the practice amongst states. In fact their recent recapitulation also does not bode well for such an assertion. The various 118 For example, the International Criminal Tribunal for the Former Yugoslavia and The International Criminal Tribunal for Rwanda. 119 The occurrences in the former Yugoslavia and in Rwanda galvanised the revulsion of all of humanity and ultimately provoked the international community to respond to this situation. It spurred a determination to return to the legacy of Nuremberg in order to end the culture of impunity that had prevailed since. See generally Griffin 2000 IRRC. 120 The ICC, for example, was set up in response to this growing trend in impunity over the core crimes of genocide, war crimes and crimes against humanity. 477 amendments of UJ legislations, for example the 2014 Spanish amendment which now confers jurisdiction only if the perpetrator later becomes a citizen of or a permanent resident of Spain indicates that no such state practice exists. The persistent objections raised by African states, as well as other concerned states such as China, Israel, the US and others, militates against the view that UJ in relation to the prosecution of these offences is settled customary law.
The AU's resolve to come up with a sound legal framework on this issue which has divided the world can be seen in its attempts to strengthen not only the domestic laws of its members but also in its attempts to create a continental tribunal akin to the ICC. 121 121 The Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (2014) was adopted by the AU Assembly at its 23 rd Ordinary Session in Malabo, Equatorial Guinea in June 2014, and has not yet come into force.