Assembly/AU/11 (XIII) Annex II Page 7   request under article 89(1) for the surrender of a person to the Court if this would require the requested state to act inconsistently with its obligations under international law with respect to the state or diplomatic immunity of a person or property of a third state, unless the Court can first obtain the cooperation of that third state for the waiver of the immunity. (d) The Key Points AU-EU Concern over Universal Jurisdiction The points of concern over Universal Jurisdiction were equally different between the two areas i.e. Africa and Europe as shown below: (i) African concerns 1. African states welcome the principle of universal jurisdiction, and are committed to addressing impunity, as shown by Article 4(h) of Constitutive Act of the African Union 2000 and as emphasized in subsequent AU decisions. Article 4(h) of the Constitutive Act, in laying down the right of the AU to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity, amounts to a statement that impunity for these crimes is unacceptable to AU Member States. But there are national legal and institutional constraints on the capacity of many African states to address these crimes and to prosecute perpetrators of them. Consideration should be given to building the national legal capacity of African states to combat genocide, crimes against humanity, war crimes and torture. 2. As some members of International Law Commission have observed, assertion by national courts of the principle of universal jurisdiction has led to misunderstandings and to aggravation of inter-state tensions, and has given rise to perceptions of abuse on political or other grounds. African states take the view that they have been singularly targeted in the indictment and arrest of their officials and that the exercise of universal jurisdiction by European states is politically selective against them. This raises a concern over double standards, and the concern is heightened by multiple charges being brought against officials of African states in the jurisdictions of different European states. The African perception is that the majority of indictees are sitting officials of African states, and the indictments against such officials have profound implications for relations between African and European states, including the legal responsibility of the relevant European states. As one leader of a European state has intimated, the powers of investigative judges relating to indictments against officials of foreign states need to be reviewed by amending the relevant legislation. (ii) European Concerns 1. It is apparent to the independent experts appointed by the EU that Member States of the EU, like African states, view the exercise of universal Version 31 March 09(FINAL)