As Views Diverge on Universal Jurisdiction’s Scope, Application, Definition Sixth Committee Delegates Urge Further Study on Matter
While speakers agreed on the need to end impunity for the gravest international crimes, views diverged on how broad the application of universal jurisdiction should be towards that end and whether or not to specify crimes for inclusion, as the Sixth Committee (Legal) considered the matter today.
Taking up the topic of the scope and application of the principle of universal jurisdiction and the Secretary-General’s related report (document A/70/125), which detailed national measures taken over the past year, delegates recognized that the principle’s purpose was to ensure that individuals who committed grave offences, such as war crimes and crimes against humanity, did not enjoy impunity and were brought to justice. However, whether to apply the principle narrowly to a set of specific crimes or take a broader approach was up for debate.
Kenya’s representative said the divergence of views and opinions on the subject was a clear sign that, if not carefully defined and regulated, States’ unilateral application of universal jurisdiction could be subject to abuse and could threaten international peace and security, a stance shared by other speakers, as well.
Concurring, the representative of Mozambique also stressed that application of the principle while universal consensus on the matter was pending had generated international concerns and controversy as to the legal and political consequences. The principle should be exercised with caution and only after being regulated at the international level.
In that light, many delegations emphasized that universal jurisdiction was complementary and subsidiary to international law, with Algeria’s delegate stating that the concept’s application had to respect all principles deriving from national laws, international law and customary law, most importantly the immunity of Heads of State and Government. He also pointed out that the International Criminal Court had focused almost exclusively on Africa, while unacceptable situations in other parts of the world continued to be ignored.
Rejecting the arrest warrants issued against African Heads of State, the representative of Sudan stressed that universal jurisdiction must complement national jurisdiction, not replace it. The abusive use of the principle, the expansion of its scope and the selective use of it by some countries to meet “narrow political goals” was concerning. It was imperative that the rules of immunity of officials in no way be undermined.
Yet, while many delegations expressed concern on the question of immunity of State Officials, the representative of Venezuela urged that immunity of State officials should be considered in the same framework as it was in other areas of international law.
Commenting that the borders in her region were porous, the representative of Burkina Faso said it was difficult to always prosecute transnational crimes. Universal jurisdiction made that easier. However, consensus must be reached on crimes to which the principle would be applicable, following which each State should develop national laws on how to deal with those crimes.
Other speakers, such as the representative of Slovenia, stressed that it was important not to create limitations by listing all crimes to which the principle could apply. Rather a general reference on obligations arising under customary international law and treaty law should be developed.
Guatemala’s representative said that, above all, respect must be given to international law. Stressing the link between universal jurisdiction and ending impunity, she said the best way to prevent a crime was to ensure that there was nowhere on earth a crime could go unpunished. To that end, States must ensure that universal jurisdiction was accepted in national legislation. However, what constituted a crime under universal jurisdiction must be defined.
A number of delegates elaborated national measures relating to the principle of universal jurisdiction. Norway’s representative explained that his country’s legislation on the matter aimed at ensuring that Norway would not become a safe haven for individuals wishing to avoid criminal responsibility for serious crimes. Thus it did not provide a specific list of crimes over which universal jurisdiction would be exercised. Rather, it allowed for discretionary universal jurisdiction when the alleged offender was present on Norwegian territory.
Viet Nam’s representative spoke of the divergent views on the scope and application and the strong link between the principle and other topics discussed by the International Law Commission, such as jurisdictional immunity of State officials and jus cogens. Joining a number of other delegates, she suggested that the Committee entrust the Commission with preparation of a working document regarding the legal framework and possible development of an instrument on universal jurisdiction, for the Committee’s consideration.
Also speaking today were representatives of Iran (also speaking for the Non-Aligned Movement), Ecuador (speaking for the Community of Latin American and Caribbean States (CELAC)), South Africa (speaking for the African Group), Trinidad and Tobago (speaking for Caribbean Community (CARICOM)), New Zealand (also speaking for Canada and Australia), Peru, Singapore, Cuba, Belarus, Qatar, Colombia, Czech Republic, Switzerland, Serbia, Brazil, Israel, Poland, United States, Russian Federation, Thailand, United Kingdom, Lebanon, India, Iran, China, Egypt, Croatia, El Salvador and Morocco.
An observer for the Holy See also participated. A representative of the International Committee of the Red Cross also spoke on that agenda item.
The Sixth Committee will next meet at 10 a.m. on Thursday, 22 October, to take up the Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization.
Statements
GHOLAMHOSSEIN DEHGHANI (Iran), speaking for the Non-Aligned Movement, called upon all States to consider limitations to the scope and application of universal jurisdiction to prevent its inappropriate use. The principles of the United Nations Charter, particularly on the sovereignty and independence of States and non-interference in their affairs, were paramount in international law. Thus high-ranking officials, who enjoyed immunity under international law, should not come under the national jurisdiction of States.
Expressing alarm at the misapplication of universal jurisdiction, he noted that the African Union, concerned with such abuse directed at Heads of State on the continent, had adopted a resolution at its nineteenth regular session that, among other things, requested that warrants of arrests issued based on that principle’s misuse not be executed by any member State. The decisions of the International Court of Justice and the work of the International Law Commission might be useful to the work of the Committee on the issue. Voicing his opposition to expanding the crimes that came under universal jurisdiction, he encouraged all Member States to engage in the discussions to identify the principle’s scope and jurisdiction.
AGUSTÍN FORNELL (Ecuador), speaking for the Community of Latin American and Caribbean States (CELAC), emphasized that the framework for the study and analysis of universal jurisdiction was established under international law, explicitly under previously agreed conventions and treaties. Since its inclusion on the agenda had been requested with a view to establishing guidelines for its application, it would be productive to discuss commencing work, built on prior discussions, during the current session.
Universal jurisdiction should not be confused with the exercise of international criminal jurisdiction, or with the obligation to extradite or prosecute (aut dedere aut judicare), he said. They differed in their legal nature, notwithstanding their complementarity for fighting impunity. Even though after four years, the Working Group’s outcome could still not be predicted, possibility of a future request to the International Law Commission to study the topic should be considered.
KINGSLEY MAMABOLO (South Africa), associating himself with the Non-Aligned Movement, pointed out that the African Group, concerned with the abuse of universal jurisdiction, particularly over African Officials, had requested its inclusion on the General Assembly’s agenda. He recognized the principle’s purpose to ensure that individuals who committed grave offences, such as war crimes and crimes against humanity, did not enjoy impunity and were brought to justice. However, that application of the principle must respect other legal norms. The International Court of Justice held the view that the cardinal principle of immunity of Heads of State should not be put to question or re-examined. Abuse of the principle could endanger international law and the fight against impunity. The international community should adopt measures that put an end to the abuse and political manipulation of universal jurisdiction by judges and politicians from States outside Africa, including by violating the principle of the immunity of Heads of State under international law. He also requested that the warrants of arrest issued on the basis of such abuse not be executed in any Member State.
LIZANNE ACHING (Trinidad and Tobago), speaking for the Community of Latin American and Caribbean States (CARICOM) and associating herself with the Non-Aligned Movement and CELAC, pointed to delegations’ concerns over the exercise of universal jurisdiction by States. Consideration of the topic had been ongoing since 2009. A comprehensive legal study would be helpful to provide a solid framework for future discussions.
She said CARICOM supported the jurisdiction of the International Criminal Court and fully upheld the provisions of article 27 (1) of the Rome Statute, which provided that the Statute shall apply equally to all persons without any distinction based on official capacity. National courts, however, had the primary responsibility to investigate and prosecute crimes, whether committed by their own nationals, in their own territory, or otherwise under their jurisdiction. Reiterating CARICOM’s other views on the principle, she said the circumstances under which it would be appropriate to exercise universal jurisdiction should be clearly defined.
CAROLYN SCHWALGER (New Zealand), speaking also for Canada and Australia, acknowledged those States that had incorporated universal jurisdiction over serious international crimes into their domestic legislation and encouraged others to do so. The principle was a powerful mechanism for prosecuting perpetrators of serious international crimes, but it must be exercised in good faith and with regard to other principles and rules of international law and should only be applied to those crimes recognized as the most serious and abhorrent.
Noting the frequent criticism that universal jurisdiction could be used to undermine immunity, she said that immunities could be relied upon where universal jurisdiction was the basis for an investigation or prosecution, in exactly the same way as asserting those immunities where a territorial State sought to exercise jurisdiction over a foreign national accused of having committed crimes on its territory. It was also important not to confuse universal jurisdiction with other principles of international law, including the obligation to extradite or prosecute, which did not provide a jurisdictional basis, per se. Member States must collectively respond swiftly, impartially and thoroughly to crimes that shocked the global conscience.
GUSTAVO MEZA-CUADRA VELASQUEZ (Peru), associating himself with the Non-Aligned Movement and CELAC, said that universal jurisdiction, where appropriate, could serve as a rapid and effective response to deal with perpetrators of crimes of genocide, war crimes or crimes against humanity when other accountability mechanisms could not be applied. Underscoring the need for substantive progress during the current session, he said the list of crimes should not be burdensome or exhaustive. More discussion on what crimes should be included was needed and should be derived based on consensus. Victims should also be included as minority groups, and different conditions for application must be recognized. Enumerating other aspects that still needed elaboration, he said it was also necessary to establish criteria in cases where more than one State requested the application of universal jurisdiction. While the Committee was the appropriate forum for discussion on the topic, it needed to make headway and in that regard, it might be useful to ask the International Law Commission to study the topic as well.
DANIELLE YEOW PING LIN (Singapore), associating herself with the Non-Aligned Movement, said she looked to a graduated approach to the topic that would allow commonalities to be identified and built upon. In that light, the first objective was to assess whether a specific crime was subject to universal jurisdiction based on the principle’s foundational rationale, namely that certain crimes were of such gravity that rendered their suppression a joint concern of the international community. On its application, she noted that the principle was one of several tools to fight impunity, and should only be used where no State was able or willing to exercise the primary basis of jurisdiction. Universal jurisdiction must not be exercised in isolation or to the exclusion of other applicable principles of international law. Thus its legitimacy and credibility hinged on its principled application as a complementary basis of jurisdiction.
TANIERIS DIEGUEZ LAO (Cuba), associating herself with the Non-Aligned Movement and CELAC, expressed concern about the unjust use of the principle, in particular the selective and politically motivated exercise of it by courts of developed countries. The application of universal jurisdiction by national courts must respect the Charter’s principles and the integrity or values of different legal systems must not be undermined. As well, the application of universal jurisdiction should always be complementary to the national actions and not supplant them. Its use should be limited to exceptional circumstances, when there was absolutely no other recourse to avoid impunity. The drafting of norms or a set of guidelines that would establish conditions or limitations under which universal jurisdiction could be invoked was welcomed, as well as the drafting of a clear list of crimes to which the principle would be applied. Establishing the requirements for regulation of the principle was a “pressing need”. Crimes eventually defined should be restricted to crimes against humanity.
DMITRY SPRESOV (Belarus) stressed that the proper meaning of universal jurisdiction must be based on treaty law and customary law. It must not impinge on the integrity of sovereign States and the immunity of officials. Any arbitrary unilateral use of the principle was unacceptable. The international community should determine the crimes to which universal jurisdiction pertained and the situations in which it be used. He defined the crimes against which it should be applied as those that affected all of humanity, namely: piracy, crimes against humanity, crimes against peace, war crimes, and trafficking in humans, drugs or weapons. The Committee should consider the item every two years.
Mr. MOHAMED (Sudan), associating himself with the Non-Aligned Movement and the African Group, said an in-depth study on the scope of universal jurisdiction was needed given its controversial nature. The General Assembly’s efforts on the matter must focus on the scope and conditions for application while ensuring full respect for the sovereignty of States and their national legal systems. Universal jurisdiction must complement national jurisdiction, not replace it. He expressed concern with the abusive use of the principle, the expansion of its scope and, in particular, the selective use of it by some countries to meet “narrow political goals”. Underscoring that the rules of immunity of officials must in no way be undermined, he said he rejected the arrest warrants issued against African Heads of State. Continued dialogue was needed to ensure one interpretation of the principle and to avoid its politicization and the abuse or erroneous use of it. Its use must abide by international law, customary law and the Charter.
YASSER ALI AL MALIK (Qatar) said that work on the issue should be carried out progressively, initially identifying areas of consensus and those still requiring discussion. It was important for the principle to be carried out in good faith and in keeping with international law, ensuring balance between it and other principles of international law. It was the nature of the crimes that should be determining, including crimes against humanity, war crimes and others of that nature. He endorsed the initiative not to use the veto in the Security Council in the case of mass atrocities. That was critically important at a time when there were violations of international law causing the death and displacement of thousands of people. It was also important to continue working on the issue to bring people justice. That effort was needed more than ever for a safe, peaceful and harmonious world.
LUIS FERNANDO OROZCO BARRERA (Colombia), associating himself with CELAC and the Non-Aligned Movement, said that although universal jurisdiction was a unique concept of criminal jurisdiction, the principle as an exercise of criminal authority was a form of prescriptive jurisdiction. Traditional forms of prescriptive jurisdiction had been exercised in a limited way under international law. Universal jurisdiction gave to all States the option or mandate to assume competence on jurisdiction over those crimes condemned by the international community as long as those persons alleged to have committed a crime were in their territory, even if the crime had not been committed there. Colombia recognized universal jurisdiction as a norm of international law, thus making it compatible with his country’s Constitution. The concept’s application required respect for due process and was subject to principles enshrined in human rights instruments, such as the International Covenant on Civil and Political Rights and the American Convention on Human Rights.
MATEJ MARN (Slovenia) said that the aspect of universal jurisdiction that would prevent the most horrible crimes must not be disregarded. However, it was important not to create limitations by listing all crimes to which the principle could apply. In that regard, a general reference on obligations arising under customary international law and treaty law should be developed. He expressed support for national and international efforts to end impunity for perpetrators of the most serious violations of international humanitarian law, noting, however, the primacy of States in prosecuting those perpetrators. In that context, he said that his country, along with the Netherlands, Belgium and Argentina were working on an initiative to open negotiations on a treaty for mutual legal assistance and extradition between States for the domestic investigation and prosecution of crimes against humanity, war crimes and genocide. That initiative had thus far received support from almost 50 States from all regions. Cooperation between experts and practitioners at a practical level would significantly complement and strengthen political efforts to fight impunity.
PETRA BENESOVA (Czech Republic) expressed concern that the current format of work on universal jurisdiction had already been exhausted. The topic, however, merited a thorough legal analysis. In that regard, the International Law Commission, as an expert body, was the most suitable place for its consideration. It could use its knowledge from the study of other closely related topics currently or previously on its agenda. Referring the topic to the Commission would also demonstrate the Committee’s commitment to strengthening its interaction with the Commission. The Committee would still retain final responsibility for treatment of the topic since the outcome of the Commission’s work would be presented to the Committee for action. Referring the topic to the Commission would also help the Committee to address urgent matters such as the elaboration of the comprehensive anti-terrorism convention.
ANDREAS MOTZFELDT KRAVIK (Norway) said his country’s new penal code of 2005 did not provide a specific list of crimes over which universal jurisdiction would be exercised. Rather it allowed for discretionary universal jurisdiction when the alleged offender was present on Norwegian territory. Two further requirements were that the concrete application of the principle must be consistent with international law and that the prosecuting authorities must retain the ability to exercise full discretion in application of the principle. The main purpose of that legislation was to ensure that Norway would not become a safe haven for individuals wishing to avoid criminal responsibility for serious crimes. However, the code underlined that not all cases that met the criteria for universal jurisdiction should be prosecuted before Norwegian courts, save for those related to genocide or crimes against humanity. On others, the prosecutor should make an independent determination without external interference. In that regard, he would welcome a discussion on prosecutorial discretion to universal jurisdiction.
DAMARIS CARNAL (Switzerland) recalled that each year the Secretary-General’s reports on the scope and application of universal jurisdiction shed light on the large variety of approaches adopted by Member States. That variety could explain why it had been difficult to further discussions on the topic within the Committee. Indeed the issue should be examined further by experts and make every effort to advance the debate. He reiterated his country’s suggestion to involve the International Law Commission in the matter, given the fundamentally juridical nature and technical character of the subject. A comprehensive legal study analysing the practical application of universal jurisdiction would provide the Committee with a solid basis for future discussions. He said that his delegation was ready to cooperate with others in exploring the possibility of advancing the debate with the help of the International Law Commission.
BORIS HOLOVKA (Serbia) said that its 2003 law on Organization and Competence of Government Authorities in War Crimes Proceedings provided for jurisdiction over war crimes committed in the territory of the former Yugoslavia, regardless of the nationality of the suspect or the victim, and regardless of the presence of the suspect on Serbian territory. No proceedings, however, had yet been conducted in absentia. Most defendants had been found in Serbia and had not been indicted by neighbouring countries. Trials conducted under that law were monitored by the Organization for Security and Cooperation in Europe (OSCE) Mission in Serbia and had become part of the monitoring of the International Criminal Tribunal for the Former Yugoslavia during the process of its completion strategy. He also noted that a number of European Union member States had adopted laws granting universal jurisdiction for such crimes to their domestic courts.
PATRICK LUNA (Brazil), associating himself with the Community of Latin American and Caribbean States, said a proper definition of universal jurisdiction and a shared understanding of the scope of application were needed to prevent the misapplication and to avoid selective application. The Working Group should continue to seek an acceptable definition of the concept. That could advance the discussion of other matters, such as the crimes that would allow exercise of the principle, as well as its subsidiary character. In relation to the jurisdictional immunities of State officials, it was premature to address adoption of uniform standards at the international level. Brazilian criminal legislation adopted territoriality as the basic principle for exercising jurisdiction but also took into account the principle of nationality. Under certain circumstances, universal jurisdiction could be exerted by national tribunals in relation to genocide and the crimes to which his country had obliged itself to repress through treaties or conventions.
NGUYEN THI HONG QUYEN (Viet Nam), associating herself with the Non-Aligned Movement, said that in the process of her country’s reforming its penal code, and in keeping with international treaties to which Viet Nam was party, providing for universal jurisdiction was being contemplated. The principle must be carried out in accordance with international law and should be invoked only as an option of last resort and complementary nature, she said, stressing that the perpetrator should be present in the territory of the State concerned. Noting the divergent views on the scope and application and the strong link between the principle and other topics discussed by the International Law Commission, such as jurisdictional immunity of State officials and jus cogens, she suggested that the Committee entrust the Commission with preparation of a working document regarding the legal framework and possible development of an instrument on universal jurisdiction, for the Committee’s consideration.
RACHEL OBERMAN (Israel) said that there appeared to be a divergence in views on the definition of universal jurisdiction and its scope of application. The Committee should continue its work as it would be productive to explore the practical application of universal jurisdiction. Appropriate safeguards should be established in national legal systems to ensure the responsible exercise of the concept in appropriate, exceptional cases. Its legitimacy and credibility greatly depended upon its proper application in conformity with other principles and rules of international law. Further deliberation was needed to address how national courts should address due process challenges. Attention should also be given to competing jurisdictional claims by other States that could have a closer link to the underlying criminal act and the interplay with international law as it related, for example, to immunities.
MEHDI REMAOUN (Algeria), associating himself with the African Group and the Non-Aligned Movement, said that the concept’s application had to respect all principles deriving from national laws, international law and customary law. That included the principle of State sovereignty, territorial jurisdiction, the primacy of actions by States regarding criminal prosecutions, the protective principle and most importantly the immunity of Heads of State and Government during the exercise of their functions. Furthermore, universal jurisdiction must be considered as a complementary mechanism and a measure of last resort. The selective and arbitrary application of the principle was of concern and its use in pursuit of a political agenda must be rejected. He pointed out that the activities of the International Criminal Court had focussed almost exclusively on Africa, while unacceptable situations in other parts of the world continued to be ignored. Thus, he called for continued work in the Committee that was based on respect for States’ sovereign equality and political independence.
PRZEMYSLAW SAGANEK (Poland) said the different approaches adopted by States with regard to the scope of their legislative or judicial jurisdiction was in line with the “famous” Lotus judgment of the Court of the International Justice. That judgement had differentiated those two kinds of jurisdiction from the administrative one — limited to the territory of a given State. In that regard, solutions adopted by States should not be considered as contrary to international law. His country belonged to a group of States which opted for a wide scope of jurisdiction. In particular, article 110 of the Polish Criminal Code provided that his country’s criminal law applied to “a foreigner who committed abroad an offence against the interests of the Republic of Poland or of the Polish nationals". It also indicated that the Polish criminal law should apply to foreigners who committed abroad another offence, provided that four conditions were met. Among those conditions was that a given offence must be penalized by the Polish criminal law with a penalty exceeding two years of imprisonment. It must also be penalized in the State in which it was committed. The perpetrator must be in the territory of Poland and would not to be extradited.
STEPHEN TOWNLEY (United States) said it would be beneficial to understand what criteria States used in determining whether to exercise universal jurisdiction, where available, and how they addressed competing jurisdictional claims by other States. His country might refrain if the State where the crime had been committed or whose citizens were the principal victims were able and willing to prosecute. He expressed interest in how other States’ laws and policies addressed that issue. Among other topics that could warrant additional consideration were: how States ensured due process guarantees when exercising the principle and how national courts had addressed due process challenges. He also expressed interest in what conditions or safeguards States had placed on the principle’s exercise, noting that appropriate safeguards were needed to ensure responsible use of universal jurisdiction where it existed. In addition, the relationship between the obligation to prosecute or extradite and universal jurisdiction could be furthered examined.
SERGEY A. LEONIDCHENKO (Russian Federation), noting the broad divergence of opinion regarding various aspects of universal jurisdiction, said the concept’s application should be in line with norms of customary international law and in particular those pertaining to immunity of State officials. States and the international community had, in terms of methods of applying universal jurisdiction, other instruments to combat impunity. While last year’s discussion did not lead to any “fundamental new moments” that could enrich the Committee’s discussion on the agenda item, he said he was not against further discussion of the item in the Committee as long as it did not lead to the duplication of work in other bodies. The question was whether the Committee had a real opportunity to bring together its position and develop a unified approach for the concept.
CHAYAPAN BAMRUNGPHONG (Thailand), associating himself with the Non-Aligned Movement, said that to implement international treaties to which his country was a party, it had promulgated national legislations establishing jurisdiction over certain crimes. Those included transnational organized crimes and human trafficking. Thailand was committed to complying with international organizations and conventions relating to fisheries conservation and management to which it was a State party and was in the process of drafting a royal ordinance on fisheries with a view to combatting illegal, unreported and unregulated fishing. The new ordinance would allow Thai courts to prosecute that practice regardless of where it took place and regardless of the nationalities of offenders or ships.
AHILA SORNARAJAH (United Kingdom) said universal jurisdiction must be distinguished from the jurisdiction of international judicial mechanisms, including the International Criminal Court. It should also be distinguished from jurisdiction established under treaties, which provided for an “extradite or prosecute” regime. That was notwithstanding that some States could establish universal jurisdiction at the domestic level in order to implement such treaties. In addition, universal jurisdiction should also be distinguished from the extra-territorial jurisdiction of national courts to prosecute crimes committed by a State’s nationals overseas. While there was a limited group of crimes which some States would consider applying the principle, including genocide and crimes against humanity, there was no international consensus on the issue. Those crimes were not underpinned by treaties providing for universal jurisdiction. A careful study of State practice and opinion iuris would be required to determine whether such crimes were established under customary international law as crimes of universal jurisdiction and whether there were conditions for the exercise of such jurisdiction.
YOUSSEF HITTI (Lebanon) said that it was necessary to ensure that the principle was not subject to political abuse and was applied in good faith with regard to due process, rather than arbitrarily or selectively. States bore the primary responsibility in prosecuting the alleged perpetrators of “the most heinous crimes”, based on territorial or personal jurisdiction. Universal jurisdiction should be exercised only when States were unwilling or unable to prosecute. The grave crimes which fell under its scope should be clearly defined under international law to avoid inconsistencies in prosecution. That problem could be addressed through an international convention to define and list such crimes.
JAMES WAWERU (Kenya), associating himself with the Non-Aligned Movement and the African Group, said the divergence of views and opinions on the subject was a clear sign that, if not carefully defined and regulated, States’ unilateral application of universal jurisdiction could be subject to abuse and could threaten international peace and security. He underscored that extra-territorial jurisdiction should be invoked as a secondary means in cases where national jurisdiction was unwilling or unable to address a matter. Caution must be exercised in the concept’s application. Otherwise, “we can end up substituting impunity at the national level with impunity at the international level under the cloak of universal jurisdiction,” he stated. The double standard and overt politicization of the use of universal jurisdiction should be a concern to the Committee. Abuse of the principle endangered the universal application and acceptance of long standing norms of international law and paid lip service to the fight against impunity.
BHARTRUHARI MAHTAB (India), associating with the Non-Aligned Movement, said that a criminal should not go “scot free” because of procedural technicalities, including the lack of jurisdiction. The rationale for universal jurisdiction was the nature of certain offences affecting the interests of all States. Piracy on the high seas was the only such crime over which claims of universal jurisdiction were undisputed. For other serious crimes, such as genocide and war crimes, international treaties had provided the basis for the exercise of universal jurisdiction. The question remained as to whether the jurisdiction provided for specific serious crimes under certain treaties could be converted into a commonly exercisable jurisdiction, irrespective of the States parties to those treaties. Other unanswered issues included those relating to the basis for extending such jurisdiction, the relationship with laws relating to immunity, pardoning and amnesty.
ALI NASIMFAR (Iran), associating himself with the Non-Aligned Movement, said the Committee should not lose sight of the original reasons the item was introduced to the agenda. Deliberations should be engaged from different perspectives. Universal jurisdiction was a treaty-based exception in exercising criminal jurisdiction. However, prevailing was the principle of territorial jurisdiction, which barred States from exercising criminal jurisdiction beyond borders and was critical to the sovereign equality of States. In his country, there was no expressed legislation concerning universal jurisdiction, and no precedent applying that jurisdiction in its judicial practice either. The Iranian courts were entitled to exercise criminal jurisdiction over certain crimes, irrespective of location of the committed crimes or nationality of the alleged offender, provided that the crimes had been established under an international treaty to which Iran was a party, and the alleged offender was present on the Iranian territory. His country was a party to a number of international instruments. They included, in one way or another, the “extradite or prosecute” provision, which was not equivalent to universal jurisdiction. The two notions should not be confused. There was no track of that kind of jurisdiction in its bilateral agreements on extradition or mutual legal assistance.
ISAÍAS ARTURO MEDINA MEJÍAS (Venezuela), associating himself with CELAC and the Non-Aligned Movement, said it was essential to continue pursuing the category of crimes that would come under the principle. The criminal code of Venezuela stated that Venezuelans or others on its territory who had committed piracy or other crimes against humanity could be prosecuted except where they had already been convicted in another jurisdiction or had completed serving a sentence for the crime. However, the immunity of State officials should be considered in the same framework as it was in other areas of international law. Furthermore, the principle should be complementary to the jurisdiction of national courts and should be used only where the States of the crime’s commission or of the perpetrator’s nationality would not or could not prosecute. From an operative point of view, he said it was necessary to continue informal consultations on the matter with the idea of turning the issue over to the International Law Commission so as to be free of undue political pressure.
ZHOU WU (China) said that while the Committee had deliberated on the topic for seven consecutive years, there were still notable differences among States on the principle’s definition and scope of application. “A consensus is still far off,” he said. The Committee’ work should focus on the prudent application of the principle by States and the prevention of its abuse. Furthermore, a State must strictly follow international law in establishing and exercising universal jurisdiction. Universal jurisdiction was different from the obligation of “extradite or prosecute” and from the jurisdiction explicitly granted to existing international judicial bodies by specific treaties or other legal instruments. In the absence of international consensus on the definition and scope of application, States should refrain from seeking to unilaterally claim and exercise universal jurisdiction not explicitly permitted by international law.
MYRIAM SOULAMA (Burkina Faso), noting that the borders in her region were porous, said it was difficult to always prosecute transnational crimes. Universal jurisdiction made that easier. However, that principle should look at the most serious crimes that touched on jus cogens. Consensus must be reached on crimes to which the principle would be applicable, following which each State should develop national laws on how to deal with those crimes. Her country had laws on how to prosecute crimes listed under the Rome Statute and under the Geneva Conventions and their Protocols. Furthermore, at the international level aut dedere aut judicare should be complementary to universal jurisdiction. Cooperation and judicial assistance were also proven tools in combatting impunity.
FERNANDO MANHIÇA (Mozambique), associating himself with the African Group and the Non-Aligned Movement, said that while a universal consensus on the matter was pending he would not support the application of the principle by some countries. Those actions had generated international concerns and controversy as to their legal and political consequences. He called on all Member States to reflect on the issue and consider those implications. The principle should only be exercised with caution and only after being regulated at the international level. While recognizing universal jurisdiction as an important tool for the prosecution of perpetrators of certain serious crimes under international treaties, he condemned the principle’s application with political motivations or other than those pursued by international law. The right application would strengthen the rule of law at national and international levels.
MOHAMED IBRAHIM EL SHINAWY (Egypt), associating himself with the Non-Aligned Movement and the African Group, said there were ongoing discussions in his country to include atrocities, crimes against humanity, war crimes and others in legislation and to “put them in line” with universal jurisdiction. Universal jurisdiction was “additional” and went in hand with national jurisdiction. A State had to take charge of all crimes committed within its jurisdiction. Application of the principle must be limited to cases only when a country could not, would not or did not wish to apply national jurisdiction. More efforts were needed to complete legal reform nationally and regionally to respect the principle of national ownership. To ensure its effectiveness, universal jurisdiction must be applied in full neutrality and independence and not in a politicized way. Its application must also comply with international law and the provisions of the Charter, as well as international conventions and customs. It must also comply with the provisions of the International Court of Justice under the principles of independence, sovereignty of States and non-interference in the affairs of States.
SEBASTIAN ROGAČ (Croatia) noting that universal jurisdiction was a powerful subsidiary tool in ending impunity for core international crimes, said that he supported its use and that his country applied the principle. Offering a brief overview of national law, he said that the principle and its application should be based on international law and be exercised responsibly and as an exceptional measure of last resort to prevent its unwarranted or politically motivated use. Furthermore, universal jurisdiction must be clearly distinguished from the jurisdiction of international tribunals. A State exercising the principle should observe its universal character, implementing it solely on the nature of the crime and without limitation to State territories and respect the principle of subsidiarity. As well, international due process norms must be respected. In that regard, he encouraged Serbia to introduce in its legislation universal jurisdiction for core international crimes in its proper form and to strictly follow the principles of its implementation.
HÉCTOR ENRIQUE CELARIE LANDAVERDE (El Salvador) said his country recognized universal jurisdiction within its domestic legislation. Although an exhaustive list of crimes had not been drawn up, the central fundamental element in universal jurisdiction was regulated. The nature of the crime was the only relevant “nexus or trigger factor” which paved the way for its application. Should other “nexus or trigger factors” enact universal jurisdiction, then the principle would lose its individuality and would be reduced to a mere synonym of the principles of territoriality and personality. Universal jurisdiction must also be distinguished from other concepts which aimed to prevent impunity, such as the obligation to extradite or prosecute or the jurisdiction given to international courts. Although those mechanisms existed on the international level, each possessed its own rules of operation. Given those and other considerations he described, he said it was necessary to continue legal study on the topic.
MOHAMMED ATLASSI (Morocco) said that the principle of universal jurisdiction was complementary to international law, allowing any State that had accepted the principle through a treaty or convention to prosecute perpetrators of grave crimes that affected the international community. Nonetheless, the principle of sovereignty and territorial integrity was paramount. While Moroccan law did not recognize the principle, he detailed national measures which were in accord with its aims and said that Moroccan legislators regulated acts and violations that would give rise to the exercise of universal jurisdiction. That jurisdiction was optional and preventive in nature.
JOSEPH GRECH, the Holy See, said the issue impacted what some had described as competing principles: State sovereignty and the immunity of State officials, on one hand, and the deterrence of the most serious crimes and prevention of impunity, on the other. Used for political or ideological purposes, universal jurisdiction had the potential to harm international cooperation and the rule of law. As such, universal jurisdiction must not be misused to serve improper ends. It must be firmly based on substantive and procedural norms. Given the questions surrounding the principle, an expert study as to what customary international law was in relation to it would be a productive step in advancing the Committee’s work.
Mr. OJEDA, International Committee of the Red Cross (ICRC), said his organization continued to promote the prevention of serious violations of international humanitarian law and the implementation of adequate sanction mechanisms, with an emphasis on universal jurisdiction. Among its efforts to assist States, it developed technical documents, such as the Manual on Domestic Implementation of International Humanitarian Law and model legislation. That manual assisted policymakers, legislators, judges and other parties in the implementation of, among others, the repression of serious violations of international humanitarian law and the application of universal jurisdiction. The International Committee had identified more than 100 States that had established some form of universal jurisdiction over war crimes in their national legal order. While, in 2014 and 2015, some States had limited the exercise of the principle in their territory, others had adopted domestic legislation criminalizing serious violations of international humanitarian law and providing for universal jurisdiction over such crimes perpetrated beyond their borders.
ANA CRISTINA RODRÍGUEZ PINEDA (Guatemala), associating with the Non-Aligned Movement and CELAC, said that above all respect must be given to international law. Stressing the link between universal jurisdiction and ending impunity, she said the best way to prevent a crime was to ensure that there was nowhere on earth a crime could go unpunished. To that end, States must ensure that universal jurisdiction was accepted in national legislation. However, what constituted a crime under universal jurisdiction must be defined. Therefore discussions on the matter should continue to ensure harmony of national laws among States and with international law. She said she looked forward to grappling with practical issues such as the immunity of Heads of State and issues of jurisdiction where there were conflicting claims. She also suggested that the issue could be entrusted to the International Law Commission.