Assembly/AU/ 14 (XI) Page 17 78. The action of Spain as it concerns universal jurisdiction cannot form the basis of customary international law on the matter, as one instance is not enough to create a rule of custom. A body of practice and opinio juris of the generality of States is required for the formation of a rule of customary international law on universal criminal jurisdiction for genocide and crimes against humanity. cxiv POTENTIAL FOR ABUSE 79. The importance of the concept of universal jurisdiction in international law in ensuring that individuals are within the ambit of the law is not to be taken for granted. Likewise, the potential for abuse of the concept is not to be taken for granted. A likely consequence of the abuse of universal jurisdiction would be the problem of judicial chaos that would arise due to a proliferation of litigation and the erosion of the principle of the sovereign equality of States. 80. The fact that States could use universal jurisdiction as an excuse to pursue citizens of other States should not be in lieu of the principle of the diplomatic protection of nationals abroad. Although this is a discretionary principle, the imperative that motivates a State to resort to universal jurisdiction should be considered to be of a sufficiently compelling factor in favour of invoking diplomatic protection. Under this principle, one State could bring a claim against another, upon exhausting local remedies or invoking exceptions to it, on grounds that such a State has committed a wrong, including the violation of human rights, against its citizens and has failed to provide an appropriate remedy. A case in point is that of Amadou Sadio Diallo: Republic of Guinea v Democratic Republic of the Congo. cxv According to the facts of the case, on 28 December 1998, the Government of the Republic of Guinea instituted proceedings against the Democratic Republic of the Congo in respect of a dispute concerning ‘serious violations of international law’ allegedly committed against Mr. Ahmadou Sadio Diallo, a businessman of Guinean nationality. In its judgment on the preliminary objections raised by the Democratic Republic of the Congo, the Court declared unanimously that the application of the Republic of Guinea was admissible in so far as it concerned the protection of Mr. Diallo’s rights as an individual. 81. Universal jurisdiction is subject to the principles of legality in international law, particularly as regards jurisdictional immunities, and where the alleged offender is outside the State, procedural requirements concerning the extradition (under a treaty) or lawful transfer of such persons, as well as mutual legal assistance where relevant, are applicable. Failure to abide by these would amount to an abuse and a violation of the right to a fair trial, which is a fundamental human right of an accused person enshrined in international treaties and in the constitutions of most countries. 82. To avoid abuse of jurisdiction, summons to Heads of States to appear in proceedings before the courts of another State must be subject to the consent of the Head of State concerned and diplomatic confidentiality must be kept. Obligations pertaining to these matters were pointed out more recently by the International Court of Justice in its decision on the preliminary objections to its exercise of jurisdiction in the case between Djibouti and France. According to the Court: ‘The consent of the Head of State is expressly sought in this request for testimony, which was transmitted through the intermediary of the authorities and in the form prescribed by law…. This measure cannot have infringed the immunities from jurisdiction enjoyed by the Djiboutian Head of State. Moreover, the Court does not consider that there was an attack on the