Assembly/AU/11 (XIII) Annex II Page 6   3. Beyond these legal limitations, certain practical limitations to the exercise of universal jurisdiction exist. The first is the difficulty of collecting evidence in relation to crimes committed abroad, especially when the state where the crime is alleged to have occurred refuses to co-operate. Prospective evidentiary problems are a major reason why few prosecutors in EU Member States have initiated proceedings on the basis of universal jurisdiction to date. A second practical limitation is the awareness on the part of many prosecuting authorities and courts of the diplomatic sensitivities at stake when the conduct of a serving, and in some cases former, state official is involved. 4. Proceedings on the basis of universal jurisdiction been instituted to date in only eight of the twenty-seven Member States of the EU against African officials, including heads of state, on extraterritorial bases of jurisdiction other than universal jurisdiction and in respect of crimes other than serious crimes of international concern. Since these cases do not implicate universal jurisdiction, they fall outside the scope of the present report. (c) The Jurisdiction of the International Criminal Court In relation to the International Criminal Court, the Experts noted that Universal jurisdiction is to be distinguished at all times from the jurisdiction of international criminal courts and tribunals. Universal jurisdiction relates to the competence of a state to prosecute persons before its own courts, rather than to the prosecution of those same persons before international judicial bodies with criminal jurisdiction. These include the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), the Special Tribunal for Lebanon. The Experts went on to elaborate the following: 1. The most significant international criminal court or tribunal in the present context is the permanent International Criminal Court (ICC). The ICC, established by way of treaty under the Rome Statute 1998, has jurisdiction only with respect to crimes committed after the Statute’s entry into force on 1 July 2002. The ICC regime is premised on the principle of ‘complementarity,’ which means that in practice states (and not just states parties) are entitled to pre-empt the prosecution of crimes within the Court’s jurisdiction: if a state investigates and/or prosecutes a given case itself or has done so, and does or has done so genuinely, the case becomes inadmissible before the ICC. At the same time, a state is not obliged to prosecute first but may instead refer the case directly to the Court. The ICC has jurisdiction ratione materiae over genocide, crimes against humanity, war crimes and the crime of aggression, although it is unable to exercise its competence over the last until agreement has been reached on the definition of the offence. 2. Article 27 of the Rome Statute renders the official capacity of an accused irrelevant for the purposes of trial before the ICC. Also of significance is article 98(1) of the Statute, which provides that the ICC may not proceed with a Version 31 March 09(FINAL)