Assembly/AU/11 (XIII) Annex II Page 15   General is needed before a prosecution may be brought for at least certain such offences.107 (v) In Spain, proceedings for serious crimes of international concern must be brought in a specified superior court, namely the Audiencia Nacional.108 (vi) Since the exercise of prosecution is normally discretionary, it will be for the competent prosecuting authorities to assess the advisability of prosecution and its chances of success. In many countries where prosecution is obligatory, the obligation is offset by other considerations. For instance, in Germany, although prosecution is usually mandatory, prosecutors may decide not to prosecute crimes committed abroad by reference to certain specified criteria, and they have decided not to prosecute on numerous occasions.109 (vii) Legislation or common law may oblige national courts to respect those immunities from criminal process accorded state officials by international law, whether customary or conventional.110 EU Member States have taken varying views on the extent to which these immunities apply in respect of serious crimes of international concern. At least one Member State (Belgium, 1999-2003111) has, in the past, statutorily abrogated the availability of international immunities in respect of genocide, crimes against humanity and war crimes. In a second (the Netherlands), one court has held that international immunities pose no bar to prosecution for international crimes.112 In a third (Italy), the highest court of appeal has held that state immunity, an immunity ratione materiae or functional immunity, is unavailable in respect of international crimes that violate jus cogens, such as war crimes.113 In yet another state (the UK), the highest appellate court                                                              107 Geneva Conventions Act 1957, section 1A(3); Criminal Justice Act 1988, section 135 (torture within the meaning of the Torture Convention); War Crimes Act 1991, section 1(3); International Criminal Court Act 2001, sections 53(3) and 60(4). 108 Law 6/1985 of 1 July 1985 on the Competence of the Courts, article 65. 109 Code of Criminal Procedure, section 153f. It was on the basis of these criteria that the German Federal Prosecutor, on 10 February 2005, dismissed a criminal complaint against US Secretary of Defense Donald Rumsfeld and ten named and further unnamed persons in relation to allegations of mistreament amounting to crimes under the Code of Crimes against International Law: see 45 ILM 119 (2006). See also the decision of 13 September 2005 of the Higher Regional Court (5th Criminal Division), Stuttgart, in relation to the same allegations: 45 ILM 122 (2006). The Federal Prosecutor dismissed a second complaint based on the same facts on 27 April 2007. The criteria in section 153f of the Code of Criminal Procedure also underpinned the Federal Prosecutor’s refusal of 30 March 2006 to open an investigation into the alleged criminal responsibility of the Uzbek Minister for the Interior Zakirjon Almatov in respect of the events of 13 May 2005 in Andijan, Uzbekistan. A motion to reconsider the decision was dismissed on 16 October 2006. 110 Among such national law will be legislation to give effect to the European arrest warrant. In this regard, note article 20 of Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), which deals with privileges and immunities. 111 See Law of 15 June 1993 on the punishment of grave breaches of the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 18 June 1977, as amended by the Law of 10 February 1999 on the punishment of grave breaches of international humanitarian law, article 5(3). But see now Code of Criminal Procedure, Chapter I, Part One, article 1bis, introduced by the Law of 5 August 2003 amending the Law of 15 June 1993 on the punishment of grave breaches of international humanitarian law, as amended by the Laws of 10 February 1999 and 23 April 2003. 112 Wijngaarde et al. v Bouterse, order of 20 November 2000, District Court of Amsterdam. The order was quashed on other grounds by the Supreme Court on 18 September 2001. 113  Lozano, ILDC 1085 (IT 2008), 24 July 2008, Court of Cassation (passive personality jurisdiction).  Version 31 March 09(FINAL)