a. Where such persons are tried in their own countries; or b. Where the State which they represent or have represented decides to waive that immunity; or c. Where such persons no longer enjoy all the immunities accorded by international law in other States after ceasing to hold the position qualifying them for jurisdictional immunity; or d. Where such persons are subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.140 Of most practical importance is the exception listed in (c), as the situations in (a) and (b) will probably rarely occur, and the scope of (d) is as yet extremely limited. There is nothing in the judgment of the International Court of Justice to indicate that the Court was of the view that crimes under international law, which include the crime of torture, necessarily can be assimilated to acts committed in a “private capacity”.142 Added to the fact that the definition of torture in Article 1 requires an element of official involvement, the universal jurisdiction in Article 5 §2 against former State officials enjoying functional immunity may in fact be subject to severe limitations under international customary law, as interpreted by the International Court of Justice in Congo v. Belgium. In other words, if an act of torture in a particular case is considered to have been carried out in an official capacity, a former State representative accused of this act may in fact enjoy life-long immunity. Indeed, although the Court emphasised that immunity from jurisdiction does not mean impunity143, the end result in some cases may nevertheless amount to de facto life-long impunity. A fundamental precept of international criminal law is the prohibition in international and domestic law on assigning guilt for acts not considered as crimes when committed, the so-called principle of nullum crimen sine lege (no crime without law). However, the establishment and exercise of universal jurisdiction, without reference to the obligation in the Convention, does not contravene the principle because torture is a crime under customary international law, independent of the Convention.144 It should, however, be kept in mind that the definition of the crime of torture under customary international law is linked to II. INDIVIDUAL ANALYSIS OF ARTICLES 1–16 OF THE CONVENTION 2. ANALYSIS OF SUBSTANTIVE PROVISIONS As upheld by the Court, certain incumbent representatives of States, including diplomatic agents, enjoy complete immunity (so-called immunity rationae personae) in conventional and customary international law, based on a notion that such immunities are necessary to ensure the efficient performance of their functions on behalf of their respective States.141 According to (c), the same group of State representatives, after leaving office, enjoys functional immunity for all acts performed in the exercise of an official capacity (so-called immunity rationae materiae). It is thus not the nature of the acts which determines whether or not jurisdictional immunity applies to former State representatives, but whether or not the acts in question were performed in an official or private capacity. 41