Sixty-eighth General Assembly

Sixth Committee

14^th Meeting (AM)

At Conclusion of Sixth Committee Debate, Delegates Cite Abuse of Universal

Jurisdiction, ‘Lip Service’ to Fight against Impunity

 

Speakers Argue Over Best Forum for Further Study, Discussions on Matter

Although crucial in the fight against impunity, universal jurisdiction must be used selectively and exceptionally, as a means of last resort, and without violating international law and the principles of the United Nations Charter, delegates told the Sixth Committee (Legal) today as it concluded its debate on the scope and application of the principle of universal jurisdiction.

“Otherwise”, stated Kenya’s representative, “we will end up substituting impunity at the national level with impunity at the international level under the cloak of universal jurisdiction”.  The abuse and selective application of the principle endangered long-standing norms of international law and paid lip service to the fight against impunity.

Distressed by the apparent misuse and abuse of universal jurisdiction, Equatorial Guinea’s delegate expressed concerns about the political nature by which certain “police States” used the principle against African States, including his own.  Stressing that international warrants be issued in accordance with international law, he marvelled that, when issued by African judges, they were not executed in any non-African State.

Several speakers also suggested that perhaps the time had come for the Committee to seek greater involvement by the International Law Commission.   Albania’s representative, pointing out that the Committee had discussed the agenda item for years, said the Committee must recognize its limits in dealing with the subject.  There was merit in several delegations’ suggestions that the matter be taken up elsewhere in a reliable expert body, such as the International Law Commission.

However, other speakers called for the subject to remain in the purview of the Sixth Committee.   Uganda’s representative underscored that the view that the discussion did not belong in the current forum could not be further from the truth.  “If not in this forum, then where?” he asked, recalling that the Committee, when working in an open forum, had had a number of successes even in the most difficult of situations.

Also speaking today were representatives of Israel, Iran, Cuba, Mozambique, Burkina Faso, Viet Nam, Lesotho, Azerbaijan, Italy and Thailand.

The Sixth Committee will next convene on Monday, 21 October, at 10 a.m. to consider the responsibility of States for internationally wrongful acts and would take up the issue of diplomatic protection.

Background

The Sixth Committee met this morning to conclude its deliberations on the scope and application of universal jurisdiction. (For background see Press Release GA/L/3461.)

Statements

OHAD ZEMET ( Israel) noted the different views held by States on the range of offences ascribed to universal jurisdiction, as well as to its definition.  However, he shared the widespread acknowledgement that it was important to combat impunity and bring the perpetrators of heinous crimes to justice.  In light of the basic inconsistencies regarding the principle’s scope and application, it would be prudent to seek additional State reports on the topic.

ADMIRA JORGJI ( Albania) said the Albanian Criminal Code had established territorial jurisdiction as a primary source of jurisdiction over foreigners who had committed an offence in her country.  It also had implemented relevant jurisdiction addressing crimes committed by Albanian citizens outside Albania, as well as protective jurisdictions for some specified crimes against the Albanian State or an Albanian citizen.  Further, her country had enacted specific legislation within its Criminal Code that enabled universal jurisdiction.  The principle could be exercised by a competent Albanian court in order to try a person accused of committing serious crimes under international law.  Noting that the Committee had discussed the current agenda item for years, she said it must recognize its limits in dealing with a highly diversified legal issue.  The proposal by several countries that discussions take place elsewhere, separately or jointly, in a reliable expert body, such as the International Law Commission, had merit.

HOSSEIN GHARIBI ( Iran), associating his delegation with the Non-Aligned Movement, recalled opinions by some judges in the International Court of Justice that universal jurisdiction in absentia was unknown to international law.  It was a treaty-based exception, with the prevailing principle being territorial jurisdiction, which barred States from exercising criminal jurisdiction beyond their borders.  Further, the “extradite or prosecute” provision contained in many international treaties was not equivalent to universal jurisdiction and the two concepts should not be confused.  What was of concern was the principle’s application in cases that contravened fundamental principles of international law, particularly that of the immunity of State officials.  The exercise of criminal jurisdiction over foreign nationals should not be applied in an arbitrary manner and/or violate the immunity granted under international law to Heads of State and Government and other high-ranking officials.  Further, leaving interpretation of international crimes to national courts would have adverse affects on the stability and integrity of international law.

Ms. DIEGUEZ LA O (Cuba), associating with the Non-Aligned Movement and the Community of Latin American and Caribbean States (CELAC), said that the central objective of the work on universal jurisdiction must be directed at establishing regulations or international guidelines to avoid the principle’s undue use, and maintaining peace and security.  It was also vitally important that its application by national courts strictly respect the principles of the Charter.  In addition, it could not be used to undermine the integrity of various legal systems.  Hence, it was exceptional and supplementary in nature, and should be confined to exceptional circumstances wherein no other recourse existed.  Further, the principle could not be used to breach respect for the national jurisdiction of a single country or used in a selective fashion for political purposes.  Stressing that violation of universal jurisdiction was counter to the principles of the rule of law, she said that crimes should be confined to crimes against humanity.  Its exercise should require the approval of the State wherein the act took place or to which the accused belonged.

HENRIQUE BANZE (Mozambique), associating his delegation with the African Group and the Non-Aligned Movement, expressed alarm at the move initiated by some courts that unilaterally prosecuted African leaders in clear violation of international law, and thus generated international concerns over the legal and political consequences of universal jurisdiction.  He stressed that any attempt at the concept’s unilateral interpretation and application should be agreed upon and regulated at the international level.  Such regulation should establish criteria for the principle’s application and for its compatibility with international law.  Even so, he recognized that universal jurisdiction could provide an important tool for prosecuting the perpetrators of serious crimes under international treaties.

SIMPLICE GUIBILA ( Burkina Faso) said it was unfortunate that States were far from being unanimous in their understanding of universal jurisdiction since opinions on its scope and application differed either legally or politically.  States should strive to reach consensus by responsibly and fairly fleshing out the concept, and by avoiding its abuse and selective use for political purposes.  Further, States should look at the most serious international crimes, such as genocide, war crimes, and crimes against humanity, and adopt a law to adapt or implement its legislation which would have the procedures, terms and conditions for clamping down on those crimes.  Despite the differences of opinion, States must work on the basis of existing mechanisms in order to combat impunity internationally. In that regard, aut ded aut judicare should be a complementary principle to universal jurisdiction in order to overcome difficulties in prosecuting international crimes by foreigners.

PHAM THI THU HUONG ( Viet Nam) emphasized that the principle of universal jurisdiction should be applied with caution and within a well-founded framework to avoid abuses that went against the principles of sovereign equality, political independence and non-interference in the internal affairs of States.  Further, it should supplement other jurisdictions, which had stronger links to crime, such as territorial or national jurisdiction.  A State could exercise universal jurisdiction only when the alleged perpetrator was present in its territory.  Such prosecution must comply with universally recognized standards of human rights and international humanitarian law.

TEODORO OBIANG NGUEMA MBASOGO ( Equatorial Guinea) expressed concern about the political nature and abuse of the principle of universal jurisdiction by “police States” against African States.  A case in point occurred in Equatorial Guinea wherein French judges in 2011 had issued arrest warrants for his country’s Vice President for a crime of supposedly ill-gained goods, even though the International Criminal Police Organization (INTERPOL) had decided not to enforce those warrants.  The French State also seized goods of the Equatorial Guinea Mission to the United Nations Educational, Scientific and Cultural Organization (UNESCO).  He said he was curious about which international texts France had used to support the issuance of warrant arrests of a sovereign State’s Vice President and the breaking into of diplomatic premises of a friendly State in its territory, the seizing of its goods, and the arresting of its diplomats.

“If an individual who had committed grave crimes were not supposed to go unpunished, what exactly were the war crimes or crimes against humanity which France had accused his country’s President when INTERPOL had found no violation of international law?,” he asked.  International warrants must be issued in accordance with international law.  When issued by African judges, they were not executed in any non-African State.  Stating support for the statements by the Group of 77 and China and the African Group, he expressed hope that international legality could be defended, and did not politicize the rules of international law.

MACHARIA KAMAU ( Kenya) urged caution when exercising the principle’s application.  “Otherwise we will end up substituting impunity at the national level with impunity at the international level under the cloak of universal jurisdiction,” he stated.  The abuse and selective application of the principle endangered long standing norms of international law and paid lip service to the fight against impunity.  Lack of a common understanding on its scope and application would undermine the rule of law at the international level.  The concept, however, should be distinguished from the work of the International Criminal Court, which was complementary to national criminal jurisdictions.  Nonetheless, the Court’s interpretation of the Rome Statute in its Kenyan cases seemed consistent with a political agenda rather than a quest for fighting impunity.

The current debate, he said, was not only about the application of the principle of universal jurisdiction and the future management of international justice in the world, but about the future management of cases of impunity and violence in the world and inter-State relations in the context of the international justice system.  Rather than focusing on universal jurisdiction alone, he advocated for an all-inclusive system with clear benchmarks, transparency and achievable standards.  “[T]he application of universal jurisdiction cannot be an end in itself; it must be part of a process towards lasting peace,” he said.

KELEBONE MAOPE ( Lesotho), associating himself with the Non-Aligned Movement and the African Group, said universal jurisdiction should be used to “serve the collective needs of the international community and not the caprices of individual States”.  While the aim of both universal jurisdiction and the “obligation to prosecute or extradite” was to combat impunity for certain types of crimes established in international legal instruments, a clear distinction must be made between them.  He welcomed the International Law Commission’s efforts regarding the viability of the relationship between those two concepts.  He also favoured the continuation of the debate in the Sixth Committee with a view to reaching a common understanding of the different aspects of universal jurisdiction, in particular the conditions for application and the nature of the crimes by which it could be engaged.  As well, continued discussions in the working group would allow the Sixth Committee to focus more on issues through well-structured and informed discussions, thus avoiding political sensitivities normally generated by the topic.

TOFIG MUSAYEV ( Azerbaijan) said that universal jurisdiction was particularly important in situations of armed conflict, including those of a protracted nature and those involving prolonged foreign military occupation.  Yet, it was clear that any accountability efforts for serious criminal offenses must be free of selectivity and politically motivated approaches and preferences.  He encouraged the Sixth Committee to continue examination of the issue, but also saw a strong rational for a comprehensive legal study and a possible role for the International Law Commission.

SALVATORE ZAPPALÀ ( Italy), noting the unanimous recognition of the principle as a fundamental tool to ensure that the perpetrators of heinous crimes were brought to justice, noted that differences remained on the crimes covered by the principle.  There was a need for more in depth study of the matter, which required deep examination of at least three branches of the law: international law; criminal law; and criminal procedure.  He further proposed four more areas for study, among many possibilities, namely:  universal jurisdiction’s relationship with the principles and rules on the independence and impartiality of prosecutors and judges; links with national procedural systems; links with mechanisms of international cooperation; and the role of plaintiff that would be granted to victims in some national systems.  In that context, he said that the involvement of the International Law Commission could be useful.

Ms. DILOGWATHANA (Thailand), associating her delegation with the Non-Aligned Movement, said a distinction should be drawn between jurisdiction of the international tribunals over treaty crimes, such as genocide, torture and slavery, and the jurisdiction of national courts over the crimes which customary international law had categorized as falling within the application of universal jurisdiction.  Distinction must also be made between the obligation to extradite or prosecute as required by international treaties and obligation to extradite or prosecute as required by the application of the principle.  Thus, her delegation welcomed the report of the International Law Commission working group on aut dedere aut judicare, which had promoted a better understanding for the legal community.  Highlighting the decision of the International Court of Justice in the “Arrest Warrant case”, she said that case had raised concerns and called for the international legal community’s reconsideration of the scope and application of immunity and its exceptions while establishing jurisdiction over State officials.  The question also needed to be carefully considered with respect to both its legal and political aspects.

MUHUMUZA LAKI (Uganda), associating himself with the Non-Aligned Movement and the African Group, said the scope and application of universal jurisdiction must be agreed upon, and that the Sixth Committee was the forum wherein consensus must be built.  He expressed support for the idea of a working group because anything else would be counterproductive.   He noted that his Government believed in the fight against impunity, pointing out that it had been the first country to refer a case to the International Criminal Court.  In addition, it had surrendered fugitives to the appropriate tribunals.  To those who had expressed reservations that the current debate did not belong to the Committee, he said that could not be further from the truth.  “If not in this forum, then where?,” he asked.  All matters should be brought to table.  The Committee had had a number of successes even in the most difficult of situations, so its concerns could be better dealt with when working in such an open forum.

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For information media • not an official record