Shadows across the Path 471contended, would “risk creating total judicial chaos. It would... encourage
the arbitrary for the benefi t of the powerful, purportedly acting as an agent
for an ill- defi ned ‘international community.’... [S]uch a development
would represent not an advance in the law but a step backward.”
Th e Arrest Warrant case had the eff ect of stimulating other African gov-
ernments to lend their support to the Congo’s opposition to universal juris-
diction— or at least to abuses of it. In 2008, the African Union (AU), the
principal or ga ni za tion of African countries, condemned “the abuse of the
principle of universal jurisdiction by judges from some non- African coun-
tries against African leaders,” characterizing it as “a clear violation of the
sovereignty and territorial integrity” of African states. It urged its mem-
ber countries to refuse to execute arrest warrants issued on this basis.
Th is spirited opposition had at least some eff ect. A committee of six in de-
pen dent experts was assembled by the Council of Eu rope (the Eu ro pe an
counterpart of the AU) to look into these objections. Among its members
were the Italian lawyer, judge, and scholar Antonio Cassese, who served as a
judge on the Yugo slavia Crimes Tribunal; the Algerian Mohammed Bed-
jaoui, a former World Court judge; and Chaloka Beyani, a prominent Zam-
bian lawyer. It reported its conclusions in 2009.
Th is expert group did not follow Judge Guillaume in altogether denying
the applicability of universal jurisdiction to cases of serious human- rights
violations. But it did conclude, rather delicately, that states which applied
universal jurisdiction “should bear in mind the need to avoid impairing
friendly international relations.” Such states should also “consider refraining
from taking steps that might publicly and unduly expose the suspects,
thereby discrediting and stigmatizing them” and possibly prejudicing the
fundamental right to a presumption of innocence. Th e group also expressed
the view that states in whose territories the crimes were allegedly committed
should have “priority” over nonterritorial states. And it recommended that,
when accused persons were government offi ce- holders, states seeking to
prosecute should refrain from issuing arrest warrants. Th ey should instead
issue only a “summons to appear,” to enable the suspect to present exculpa-
tory evidence on his behalf.
Opposition to universal jurisdiction was not confi ned to Africa. No less a
luminary than American ex- Secretary of State Henry Kissinger added his
voice to the concern over universal jurisdiction. He complained that the con-
cept “has not been subjected to systematic debate, partly because of the