CYIL Vol. 4, 2013

PETRA BAUMRUK CYIL 4 ȍ2013Ȏ Therefore universal jurisdiction derives from the fact that the core crimes of international criminal law stem from norms of jus cogens that give rise to obligations erga omnes . 64 Some commentators presume that any act violating a peremptory norm which is jus cogens will ipso facto be the subject of universal jurisdiction, and moreover, that the exercise of universal jurisdiction thus becomes erga omnes. In this way, the two doctrines may support universal jurisdiction of all states and thus become a part in the fight against impunity. 2.4 Limitation on the exercise of universal jurisdiction There are a few limitations whichmay hamper the exercise of universal jurisdiction for international crimes. All of these impediments could be debated in great length, but that is beyond the scope of this article and thus will only be addressed briefly. Firstly, when a state is willing and able to exercise universal jurisdiction, it must apply faithfully to international law (the law common to everybody) against the universal crime. To be more precise, the state must apply the legal definition of the crime in question that is accepted by the international community. If the state does not use international agreed upon definitions (or interpretations), the state claiming universal jurisdiction, could interfere with the sovereignty of other states. If a state expands the definition of a certain crime in order to claim jurisdiction for activities committed by non-nationals abroad it can also interfere with individual rights, often coupled with the doctrine of legality ( nullum crimen sine lege, nulla poena sine lege ). 65 Second, in recent decades the question of immunities accorded to high-ranking officials in the case of international crimes has produced much controversy. Serving head of state or other high-ranking state officials enjoy personal immunity ( ratione personae ), which is considered to be absolute, so even when accused of international crimes he is inviolable and immune from prosecution due to personal immunities. When he leaves office, the immunity is removed with regard to conduct performed in their private capacity. In contrast, former high-ranking state officials always enjoy functional immunity ( ratione materiae ) with respect to official acts, even when they leave office. 66 Nevertheless, some commentators argue that no immunity of any kind may be raised in response to allegations of heinous crimes. Some crimes have been “cancelled” by many states that have passed legislation granting amnesty for war crimes or crimes against humanity. The idea behind amnesties is that in the aftermath of periods of deep rift, such as those following, for example, armed conflict, it is the best way to “heal” by forgetting past misdeeds. 67 Human rights: International Crimes: Jus Cogens and Obligation Erga Omnes. Law & Contemporary Problems , Vol. 59 (4), 1996, p. 63, 65. 64 ibid. 65 Colangelo, Anthony J.: op. cit ., pp. 901-903, 909. 66 Baumruk, Petra: International Law on Immunities Accorded to High-ranking State Officials. In Šturma, Pavel et. al. (eds.): Czech Yearbook of Public & Private International Law . Vol. 3, Prague, 2012, pp. 177-179; Bantekas, Ilias: op. cit ., p. 128-131. 67 Cassese, Antonio: op. cit., p. 309-310; Colangelo, Anthony J.: op. cit ., p. 918-919.