Assembly/AU/ 14 (XI) Page 1 xxxiv Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287 Bassiouni, op.cit., p.117 xxxvi Sections 3-4 of the Convention, 704 U.N.T.S. 219 xxxvii Article 7 of both Conventions are pari materia. Hague Convention 1970, 860 U.N.T.S. 105; Montreal Convention 1971, 704 U.N.T.S. 177 xxxviii Higgins, op.cit., p.64 xxxix General Assembly Resolution 3068 (XXVIII) 1973; 1015 U.N.T.S. 243 xl Article 3 of the Convention, 1035 U.N.T.S. 167 xli General Assembly Resolution 146 (XXXIV); 1316 U.N.T.S. 205 xlii 681 F.Supp 896 xliii Lynda M. Clarizio, ‘United States v. Yunis, 681 F.Supp 896’, (1989) 83 AJIL 94, at p.99 xliv 1456 U.N.T.S. 246; Article 8(1) of the Convention xlv Article 8(2) xlvi 1465 U.N.T.S. 85 xlvii R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 3), op.cit. xlviii 630 F.2d 876 (2d Cir. 1980); 77 ILR 169 xlix Ibid., at p. 184 l 37 I.L.M 249 li Article 7 of the International Convention for the Suppression of Financing of Terrorism, 39 I.L.M 270; and Article 9 of the International Convention for the Suppression of Acts of Nuclear terrorism, available at http://untreaty.un.org/English/Terrorism/English_18_15.pdf, last accessed 01/06/08 lii Op.cit., p.65 liii Paragraph 12, Separate Opinion of President Guillaume in the Arrest Warrant case, op.cit liv Arrest Warrant case, Paragraph 44-45, Joint Separate Opinion, op.cit. lv A peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character, see Article 53 of the Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 lvi Arrest Warrant case, Paragraph 59, op.cit lvii The decision in Pinochet was based on the Torture Convention and the technicality of the requirement of the double criminality rule in English Law. lviii In Nulyarimma v. Thompson [1999] FCA 1192; (2000) 39 I.L.M. 20 (regarding genocide), the Federal Court of Australia recognized certain international crimes attracting universal jurisdiction and further recognized that an enabling national legislation would be required for the exercise of such jurisdiction. This was confirmed in Polyukhovich v. Commonwealth of Australia [1991] HCA 32 (regarding war crimes). lix There is a requirement of double-criminality for the exercise of universal jurisdiction and 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; see Paragraph 22 of Joint Separate Opinion in Arrest Warrant case; Axel Marschik, ‘The Politics of Prosecution: European National Approaches to War Crimes’, in Timothy L.H. McCormack & Gerry J. Simpson (eds) The Law of War Crimes: National and International Approaches, (The Hague: Kluwer Law International, 1997), p.79-81 lx 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; see Paragraph 22 of Joint Separate Opinion. 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; see Paragraph 22, ibid. lxi The Higher Regional Court of Bavaria has asserted universal jurisdiction over genocide where the accused was found in Germany; see Paragraph 22, ibid. lxii 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; see Paragraph 22, ibid; Pita Schimmelpennick van der Oije and Steven Freeland, ‘Universal Jurisdiction in the Netherlands- The Right Approach but the Wrong Case?: Bouterse and the ‘December Murders’’, 2001 Australian Journal of Human Rights 20; http://hrw.org/reports/2006/ij0606/10.htm, last accessed 30/05/08. lxiii Though relying more on passive personality, the United States has shown an inclination towards universal jurisdiction in response to terrorism, see US v. Yunis, 681 F.Supp 896 (1988) and US v. Bin Laden, 92 F. Supp (2d) 189 (2000). See Paragraph 22, ibid lxiv Paragraphs 20, 21, and 45 Arrest Warrant case, ibid. See the Australian War Crimes Act 1945 (amended in 1988), the United Kingdom War Crimes Act 1991 and the Criminal Code of Canada 1985 xxxv