Assembly/AU/ 14 (XI) Page 2 lxv Sean D. Murphy, ‘U.S. Reaction to Belgian Universal Jurisdiction Law’, (2003) 97 AJIL 984, at p.986 37 I.L.M 999 lxvii Bassiouni, op.cit., p.82 lxviii Stephen Macedo (ed.), Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law, (Pennsylvania: University of Pennsylvania Press, 2004), p.5 lxix 41 I.L.M. 536 lxx Judgment of 14 February 2002, Paragraphs 41-43 lxxi Separate Opinion of President Guillaume, Paragraph 16 lxxii Dissenting Opinion of Judge Oda, Paragraph 12 lxxiii Separate Opinion of Judge ad hoc Bula Bula, Paragraphs 104 and 107 lxxiv Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, Paragraph 3 lxxv Separate Opinion of Judge Rezek, Paragraphs 7 and 10 lxxvi Separate Opinion of Judge Koroma, Paragraph 9 lxxvii Dissenting Opinion of Judge ad hoc van den Wyngaert, Paragraphs 54-55, 59 lxxviii Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, Paragraph 41 lxxix The decision in Pinochet was based on the Torture Convention. lxxx In Nulyarimma v. Thompson [1999] FCA 1192; (2000) 39 I.L.M. 20, the Federal Court of Australia recognized universal jurisdiction over certain international crimes and that an enabling national legislation would be required for the exercise of such jurisdiction; confirmed in Polyukhovich v. Commonwealth of Australia [1991] HCA 32 lxxxi In Dusko Cvjetkovic, the Austrian Supreme Court asserted jurisdiction over genocide on the grounds of lack of a functioning legal system in the State where the genocide was committed as well as the lack of an international criminal court in existence to exercise jurisdiction over the matter. lxxxii In re Javor it was held that the Genocide Convention does not provide for universal jurisdiction and though upon appeal the decision was reversed, it was done based on other grounds, 1996 Bull. Crim., No. 132, at p. 379, case note by Brigitte Stern, ‘In re Javor. 1996 Bull. Crim., No. 132, at 379 In re Munyeshyaka. 1998 Bull. Crim. No.2, at 3’, (1999) 93 AJIL 525; likewise, in the Qaddafi case, both the Cour d’Appel and the Cour de Cassation did not rely on universal jurisdiction but rather on passive personality and immunity, respectively. lxxxiii The Higher Regional Court of Bavaria has asserted universal jurisdiction over genocide where the accused was found in Germany. lxxxiv The Dutch Supreme Court provided for the additional jurisdictional links of nationality or presence within the Netherlands following from an earlier decision by the Amsterdam Court of Appeal in Bouterse that torture was a crime against humanity attracting extraterritorial jurisdiction. lxxxv Though relying more on passive personality, the United States has shown an inclination towards universal jurisdiction in response to terrorism, US v. Yunis, 681 F.Supp 896 (1988) and US v. Bin Laden, 92 F. Supp (2d) 189 (2000). lxxxvi Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, Paragraphs 22-45 lxxxvii Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, Paragraphs 45 lxxxviii This is contrary to the opinion of Judge Koroma that the question was not indispensable in the arrival of a conclusion. lxxxix M. Cherif Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’, (2001-2002) 42 Virginia Journal of International Law 81, at p.82 xc See Act Concerning the Punishment of Grave Breaches of International Humanitarian Law (as amended in 1999) (1993) 38 I.L.M. 918; (as amended in 2003) (2003) 42 I.L.M. 749 xci Available at http://www.hrw.org/campaigns/icc/belgium-qna.pdf, last accessed on 30/05/08 xcii Sean D. Murphy, ‘U.S. Reaction to Belgian Universal Jurisdiction Law’, (2003) 97 AJIL 984, at p.986 xciii Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), (2002) 41 I.L.M. 536 xciv Rome Statute of the International Criminal Court, 37 ILM 999. Articles 27 and 98 of the Statute are to be read together. xcv Murphy, op.cit., pp.985-987 xcvi Arrest Warrant case, op.cit. xcvii Arrest Warrant case, ibid., paragraph 17 of the Judgment of 14 February 2000 xcviii Ibid., paragraphs 41-43 xcix Jurist Legal News and Research, 29 September 2005, available at http://jurist.law.pitt.edu/paperchase/2005/09/belgium-issues-international-arrest.php; and also http://www.hrw.org/press/2003/08/belgium080103.htm last accessed 30/05/08. c Assembly/AU/Dec.103 (VI), available at http://www.africaunion.org/root/au/Documents/Decisions/hog/AU6th_ord_KHARTOUM_Jan2006.pdf, last accessed 30/05/08 lxvi