Assembly/AU/ 14 (XI) Page 12 “The Judgment cannot be seen either as a rejection of the principle of universal jurisdiction, the scope of which has continued to evolve, or as an invalidation of that principle. In my considered opinion, today, together with piracy, universal jurisdiction is available for certain crimes, such as war crimes and crimes against humanity, including the slave trade and genocide.” lxxvi 53. Judge ad hoc van den Wyngaert was of the view that international law does not prohibit universal jurisdiction for war crimes and crimes against humanity but clearly permits it. The Judge also argued that there is no rule of conventional international law or customary international law prohibiting the exercise of universal jurisdiction in absentia. lxxvii 54. An analysis of customary international law and international conventions, as shown in Part I of this Report 1, shows that universal jurisdiction applies to piracy, war crimes under the Geneva Conventions, and potentially to genocide. The so-called ‘treaty-based universal jurisdiction’ is not universal jurisdiction per se but “really an obligatory territorial jurisdiction over persons in relation to acts committed elsewhere.” lxxviii 55. In the most detailed analysis of universal jurisdiction in the Arrest Warrant Case, Judges Higgins, Kooijmans and Buergenthal, upon considerations of the various national legislations and case-law in the United Kingdom, lxxix Australia, lxxx Austria, lxxxi France, lxxxii Germany, lxxxiii Netherlands lxxxiv and the United States lxxxv , observe that though there may have been efforts to adjudicate over extra-territorial crimes, especially war crimes, there has been no clear instance of an assertion of universal jurisdiction where there has been no other jurisdictional link, with the exception of Belgium. lxxxvi The Judges stated that there cannot be said to be an established practice of the exercise of universal jurisdiction by States in international law because national legislations envisage some sort of link to the forum State. The Judges went further to state that the fact that the practice of universal jurisdiction by States was not established does not necessarily mean that such an exercise would be unlawful. lxxxvii CONCLUSION 56. Universal jurisdiction is yet to substantively come into the deliberations of the United Nations General Assembly. As yet, there are no existing Resolutions of the Assembly dealing with the concept. The uncertainty over the scope of universal jurisdiction resonates in any related discourse, and it was unfortunate that the International Court of Justice side-stepped the opportunity to consider the question of universal jurisdiction as it related to the Arrest Warrant case despite the fact that the question was necessary to the findings of the Court. lxxxviii It is hoped that such an opportunity presents itself before the International Court of Justice once again and that the Court rises to the occasion through an incisive, wellconsidered and well-informed elucidation of universal jurisdiction in international law, as is customary of the Court. It is also further hoped that the International Law Commission of the United Nations takes up the concept of universal jurisdiction so as to assist its developments, as the Commission has done concerning other areas of International Law, including State responsibility. PARTII: INTERNATIONAL ABUSE OF THE CONCEPT OF UNIVERSAL JURISDICTION