Tackling Scope, Application of Universal Jurisdiction, Sixth Committee Speakers Debate Best Venue for Further Discussions on Principle’s Definition
Delegates Conclude Consideration of Special Committee on Charter of United Nations
Offering differing opinions on the scope and application of the principle of universal jurisdiction, speakers debated whether the appropriate venue for such consideration should be the Sixth Committee (Legal) or the International Law Commission, as that Committee began its debate on the matter today.
As the Committee considered the Secretary-General’s report, “The Scope and Application of the Principle of Universal Jurisdiction” (document A/72/112), the representative of Mexico pointed out that Sixth Committee debates had revealed the difference between that issue and two other related principles that were in danger of being conflated, including the obligation to prosecute or extradite, and the international criminal jurisdiction as exercised by international criminal courts. A study by the International Law Commission would be able to provide clarity on substantive elements for future debate by the Committee.
Echoing that, the representative of Trinidad and Tobago, speaking for the Caribbean Community (CARICOM), also noted the merit in referring the topic for consideration by the International Law Commission. She observed that discussions of that issue had been ongoing since 2010. A comprehensive legal study would be helpful in providing a solid framework to further develop those discussions.
The representative of Cuba, while stressing that universal jurisdiction should not be used to undermine the integrity of different legal systems, called for the preparation of international guidelines or standards which would establish the conditions or limits of the principle of universal jurisdiction, as well as a list of crimes to which it could be applied.
However, the representative of Norway disagreed, saying that developing an exhaustive list of crimes would not be useful, nor was it the best use of the Committee’s time. He also stated that the Sixth Committee remained the best forum in which to discuss the principle’s scope and application.
The representative of Slovenia underscored the very gravity of the crimes affecting the international legal order as a whole that spoke in favour of the potential of universal jurisdiction. Still, she raised the question of whether the Sixth Committee wished the debate to continue without end, or, instead, focus on tangible outcomes.
Concurring with that, the representative of Kenya observed that there was something of a lull in progress on the matter, with States repeating their well-known positions. It was time to inject fresh impetus into the discussion, perhaps by having more States reporting on their practices involving universal jurisdiction and its application and scope so as to provide more material for the Secretary-General’s next report on the principle.
The Committee also concluded its debate today on the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization.
Also speaking were representatives of Venezuela, Iran (for the Non-Aligned Movement), Algeria (for the African Group), El Salvador (for the Community of Latin American and Caribbean States (CELAC)), Australia (also speaking for Canada and New Zealand), Sudan, Singapore, Paraguay, Syria, Burkina Faso, Thailand, Uruguay, Togo, Israel, South Africa, Nigeria, Bangladesh, Brazil, Senegal, China, and Saudi Arabia.
The Sixth Committee will reconvene at 10 a.m. on Thursday, 12 October, to conclude its consideration of the scope and application of universal jurisdiction and to take up the matter of the expulsion of aliens.
Statements on Special Committee on Charter of United Nations
FÁTIMA YESENIA FERNÁNDES JÚAREZ (Venezuela), associating herself with the Non-Aligned Movement and the Community of Latin American and Caribbean States (CELAC), said that given the threats to international security, including interventionism, the principles of the United Nations Charter were more important than ever today. Reform to the United Nations was needed, as was an ongoing review of the functioning of its organs. As well, the reform of its main bodies, especially the Security Council, must be the goal, and she expressed support for the broadening of its membership. The revitalization of the General Assembly and Economic and Social Council was also fundamental, she said.
Scope and Application of Universal Jurisdiction
ESHAGH AL HABIB (Iran), speaking for the Non-Aligned Movement, said that by invoking universal jurisdiction, the exercise of criminal jurisdiction by national courts over high-ranking officials, who enjoyed immunity under international law, violated the sovereignty of States. That was one of the most fundamental principles of international law. The immunity of States officials was deeply rooted in the Organization’s Charter. While universal jurisdiction provided a tool to prosecute perpetrators of certain serious crimes under international treaties, there were concerns about the range of crimes that fell under the principle and the conditions for its application.
The invocation of universal jurisdiction against some member States of the Movement, in violation of the principle of immunity of State officials before the courts of other States, had generated concerns over its legal and political implications, he said. Universal jurisdiction should not replace other jurisdictional bases, namely, territoriality and nationality, and it should be asserted only for serious crimes. Expansion of the principle to include any less than the most heinous crimes could call into question its legitimacy. It was premature, he added, to request the International Law Commission to undertake a study on different aspects of universal jurisdiction.
SABRI BOUKADOUM (Algeria), speaking for the African Group, said that abuse of the universal jurisdiction principle, particularly over African officials, caused the African Group to request in February 2009 the inclusion of an additional item in the agenda of the General Assembly’s sixty-third session. African States recognize that universal jurisdiction was a principle of international law whose purpose was to ensure that individuals who committed grave offences such as war crimes did not enjoy impunity. In that respect, the African Union Constitutive Act provided for the right of the Union to intervene, at the request of any member State, in situations of genocide, war crimes and crimes against humanity.
He asked the international community to adopt measures to put an end to the abuse of and political manipulation of the principle by judges and politicians from States outside Africa, including by violating the principle of the immunity of Heads of State under international law. Warrants of arrest issued on the basis of the abuse of universal jurisdiction should not be executed in any Member State, he said. The African Union had urged its members to use the principle of reciprocity to defend themselves against such abuse.
HECTOR ENRIQUE JAIME CALDERÓN (El Salvador), speaking for CELAC, recalled the informal notes presented by the Working Group on the principle which not only considered the different elements of universal jurisdiction, its scope, and purpose, but also how it differed from related concepts. Several meetings had been dedicated to the possible list of crimes and as a result of those efforts, the Working Group had made much headway, arriving at several points of common understanding. Over its six-year lifetime, the Working Group had made much progress.
Universal jurisdiction, he added, served to fight impunity and serve justice. Several delegates had stressed that it should not be confused with the exercise of international criminal jurisdiction. Reiterating that if no further progress was made in the next Working Group meetings, the Sixth Committee should request the International Law Commission to study some or all of the elements of universal jurisdiction, he also noted that the Commission was currently examining a number of related issues.
PENNELOPE ALTHEA BECKLES (Trinidad and Tobago), speaking for the Caribbean Community (CARICOM) and associating herself with CELAC, said that certain crimes posed a serious threat to the fundamental interests of the international community. It was the responsibility and moral duty of States to investigate and prosecute perpetrators of heinous crimes in accordance with international law. No place should become a safe haven for perpetrators of crimes such as genocide, war crimes, torture and crimes against humanity.
She voiced support for the jurisdiction of the International Criminal Court and its foundational principle of complementarity, which was only invoked when States were unable or unwilling to conduct an effective investigation and prosecution of alleged perpetrators. The creation of that Court did not diminish the need for effective implementation of universal jurisdiction. Noting that discussions of that issue had been ongoing since 2010, she underlined the need to further develop the discussions. A comprehensive legal study would be helpful in providing a solid framework for future discussions and there was merit in referring the topic to the International Law Commission.
CARRIE MCDOUGALL (Australia), speaking for Canada and New Zealand, stressed that ending impunity was critical to promoting the rule of law, helping victims and their loved ones to heal, and deterring would-be perpetrators. The State in which any alleged serious international crime occurred had the primary responsibility to investigate and prosecute such crimes.
However, when the territorial State was not always willing or able to investigate or prosecute serious international crimes, international or mixed criminal courts or tribunals, including the International Criminal Court had a role to play, she continued. Universal jurisdiction was an alternative means by which the international community could ensure that crimes of exceptional gravity did not go unpunished. Its exercise was subject to international law obligations concerning immunities, and as such, was entirely consistent with State sovereignty.
PABLO ADRÍAN ARROCHA OLABUENAGA (Mexico) said that Sixth Committee debates had revealed the difference between universal jurisdiction and two other related principles. There was universal jurisdiction as enshrined in international treaties, solely with respect to piracy and war crimes. There was also the obligation to prosecute or extradite, as enshrined in international treaties dealing with genocide, torture, forced disappearance and attacks against civil aviation and maritime traffic. Finally, there was international criminal jurisdiction as exercised by international criminal courts over war crimes and crimes against humanity. Acknowledging conflicting positions, he said that the immunity of Heads of States and Governments did not apply in cases of international criminal jurisdiction under the Rome Statute but that immunity did apply in foreign courts. It was important to correct and avoid State confusion and a study by the International Law Commission would provide the Committee substantive elements for future debates.
OMER DAHAB FADL MOHAMED (Sudan), associating himself with Non-Aligned Movement and the African Group, called for a more objective examination of universal jurisdiction. A balanced, comprehensive and neutral approach to the topic should fundamentally observe the established principles in international law, international customary law, as well as the provisions of the United Nations Charter, particularly sovereign equality, and non-interference in the internal affairs of other States. Universal jurisdiction should be complementary to and not an alternative for domestic jurisdiction, he stressed, cautioning that unjustified use of the principle and unilateral, selective application by certain national courts could make it an instrument of international conflict.
SERAPHINA FONG (Singapore), associating herself with the Non-Aligned Movement, said that the principle of universal jurisdiction was based on the recognition that some crimes were so heinous that every State could use its right to bring the perpetrators to justice. It was consistent with the global commitment to combat impunity. The principle’s scope and application should not be inconsistent with its conceptual underpinnings. It was not the primary form of jurisdiction but was complementary to the other factors such as the territoriality principle and nationality principles. Universal jurisdiction should only be asserted when no State was willing or able to exercise jurisdiction, and its application should be limited to the most heinous crimes.
JULIO CÉSAR ARRIOLA RAMÍREZ (Paraguay), associating himself with CELAC, said that he recognized a supranational body of law that guaranteed human rights, peace and development, and condemned all forms of dictatorship or imperialism. Reiterating his commitment to universal jurisdiction, he said his Government had included in its legislation many human rights instruments that could not be denounced unless there was a constitutional amendment. The prosecution of crimes committed abroad, such as genocide, trafficking in persons and the illicit trafficking in drugs was covered in Paraguay’s criminal code. As well, the national plan to implement the Rome Statute had been approved by Paraguay’s Congress, he said.
MAGNUS FORBERG ANDERSEN (Norway) said that his country considered universal jurisdiction to be an important tool for States to ensure that atrocity crimes and other crimes did not go unpunished. The Sixth Committee was the most suitable forum for discussing the issue, although developing an exhaustive list of crimes for which universal jurisdiction should be applied would not be a constructive way to move forward. In the countries where the principle had already been incorporated into domestic legislation, responsibility for determining its scope and application in specific cases rested with national prosecutorial offices. It would be constructive to examine how different Member States had organized their prosecution systems in the application of the principle, he said, adding that it would also be important to identify well-functioning mechanisms for ensure that prosecution offices are independent.
AMMAR AL ARSAN (Syria), associating himself with the Non-Aligned Movement, said that the implementation of universal jurisdiction could serve justice only in a reality free from selectivity and double standards. Unfortunately, that was not the case to date, and a number of international crises had been caused by countries violating the Charter to pursue egocentric personal agendas and to support terrorism. Some Member States were trying to expand the scope of universal jurisdiction in harmful ways. Noting that his country was one of the first to sign the Rome Statute, he added that since then his country had distanced itself from the International Criminal Court because it had become a tool to serve the interests of influential Governments.
BARBARA KREMŽAR (Slovenia), while commending the Working Group for presenting a full set of normative pointers covering all three pillars, asked if the Sixth Committee wanted the debate to continue ad infinitum or focus on tangible outcomes. Universal jurisdiction was an important principle of international law that continued to strengthen rule of law both at national and international levels. It was the very gravity of the crimes affecting the international legal order as a whole that spoke in favour of the potential of universal jurisdiction. When exercising that principle, States should always take into account the core principle of nulla poena sine lege and exercise it in good faith. Furthermore, States should also take the necessary steps to strengthen mutual legal assistance and cooperation in order to improve the effectiveness of the investigation and prosecution of crimes under universal jurisdiction.
PASCAL T. GOUBA (Burkina Faso) said that combating crime involved punishing the perpetrators, wherever they were located. That was particularly true for the most serious crimes against humanity. His country was party to several international conventions stipulating a general obligation to prosecute or extradite, including the Convention against Torture and the Convention against Forced Disappearances. As well, the principle of universal jurisdiction was included in his country’s law. In 2009, Burkina Faso adopted a law on the determination of jurisdiction for the implementation of the Rome Statute. His country could not be a refuge for serious criminals who wanted to enjoy impunity, he said, adding that universal jurisdiction was the appropriate mechanism to ensure that no serious crimes remained unpunished.
HECTOR ENRIQUE CELARIE LANDAVERDE (El Salvador), associating himself with CELAC, said that universal jurisdiction prevented impunity for the most serious crimes including genocide, torture and crimes against humanity. His country’s criminal code provided for criminal jurisdiction so that it could apply its criminal law to anyone who committed a crime not in its jurisdiction when those crimes were serious crimes against human rights. The principle was exceptional in nature and was only to be applied where it was not possible to prosecute in accordance with the ordinary principles of the application of criminal law, especially under the principle of territoriality. Affirming the need to continue work to bring about better understanding of the scope of universal jurisdiction, he said he was ready to continue its study in the Sixth Committee.
INDIRA GUARDIA GONZÁLEZ (Cuba), associating herself with the Non-Aligned Movement and CELAC, voiced concern about the improper use of universal jurisdiction in the unilateral, selective and politically-motivated exercise of jurisdiction by courts of developed countries against natural or legal persons from developing countries, not in accordance with international standards or treaties. Universal jurisdiction should not be used to undermine the integrity and values of different legal systems. Furthermore, the application of the principle of universal jurisdiction should not be used to contravene the respect for a country’s national jurisdiction or undermine the values and integrity of its legal system. Nor should it be used in a selective manner with political aims to the detriment of the rules and principles of international law. She voiced support for the preparation of international guidelines or standards that clearly established the conditions or limits in which the principle of universal jurisdiction should be enclosed, as well as the crimes it should be applied to.
NATHITA PREMABHUTI (Thailand), associating herself with Non-Aligned Movement, said that the judicious and responsible application of universal jurisdiction could bring perpetrators to light, and then, to justice. However, national judicial systems needed to be strengthened further. Furthermore, perpetrators should be prosecuted by the State on whose territory the crimes were committed or by the State whose nationals were victims of such crimes in the case where it did not fall within the scope of universal jurisdiction. Thailand had established universal jurisdiction over a number of serious criminal offenses relating to national security, terrorism, money laundering, counterfeiting, piracy, robbery and gang robbery in the high seas, indecency, human trafficking and transnational organized crimes, she said.
MARÍA ALEJANDRINA SANDE (Uruguay), noting that her country was a firm defender of human rights, said that Uruguay had incorporated various international human rights laws into its domestic legislation so that it could uphold the rule of law. Protection of human rights implied punishments for those who violated those rights. The international community was now faced with a need for jurisdiction in those cases where a State was reluctant to prosecute perpetrators, she said, also calling for more cooperation among States through instruments for extradition and mutual legal assistance. Universal jurisdiction was key to the promotion of human rights, and that in turn, called for constant linking between domestic and international bodies.
KOKOU KPAYEDO (Togo), associating himself with the African Group and the Non-Aligned Movement, said that universal jurisdiction was critical to combating impunity. The complex and sensitive nature of that issue meant that there had been no consensus on the principle or the legal context of its scope. Despite that, he stressed that the most serious crimes should not go unpunished; the principle was necessary to combat impunity. His Government was resolved to combat impunity and protect justice and had acceded to several international conventions that enshrined the obligation to prosecute or extradite. His country’s courts were competent to try any person presumed to have perpetrated serious crimes in its territory or outside of its territory, including genocide or crimes against humanity, he said.
AMIT HEUMANN (Israel) said that Israel, given its people’s history, certainly embraced the importance of combatting impunity and ensuring that perpetrators of the most serious crimes of international concern were brought to justice. Nonetheless, he stressed that he wanted to be sure that the principle of subsidiarity was honoured and that universal jurisdiction mechanisms were used only as a last resort. He also warned against the potential for political abuse of universal jurisdiction mechanisms, underscoring the importance of adopting safeguards against those abuses.
SABONGA MPONGOSHA (South Africa), associating himself with the Non-Aligned Movement and the African Group, said that universal jurisdiction had evolved from eighteenth and nineteenth century doctrine stating that perpetrators of certain crimes were enemies of all humanity. However in recent years, a number of international crimes had been created by multilateral treaties, which conferred wide jurisdiction powers upon States parties. The key to determining whether a criminal prosecution or a civil case for damages could be brought, based on universal jurisdiction, was the law of the particular country in which the case was brought. Most States, including his, would not try a person for an international crime unless the conduct had been criminalized under domestic law. In addition, there was growing international conviction that impunity would no longer be tolerated. While there was a general consensus about the importance of universal jurisdiction, a number of issues remained unresolved, including the definition of the principle and the need to distinguish it from related concepts, such as the jurisdiction exercised by international criminal tribunals. On the whole, the controversy about the principle was not on the validity of the principle, but about its application and scope.
HUSSEIN ABDULLAHI (Nigeria), associating himself with the African Group, said he supported the punishment of those who committed heinous crimes against humanity. That doctrine should be exercised in good faith and in line with other principles of international law. However, relevant officials must be immune against the doctrine of universal jurisdiction, he said, adding that primary responsibility for investigating and prosecuting serious crimes lay with the State possessing territorial jurisdiction. Universal jurisdiction should, as much as possible, be used as a last resort. He also expressed his support that the Working Group on the matter be open to all Member States and would continue a thorough discussion of the issue and clarify some ambiguous areas, particularly in regards to concerns of African States.
JAMES NDIRANGU WAWERU (Kenya), associating himself with the Non-Aligned Movement and the African Group, said that the unilateral application of universal jurisdiction by States could be subject to abuse. If caution was not exercised, he cautioned that “we can end up substituting impunity at the national level with impunity at the international level”. Some States didn’t have to worry about accountability for international crimes. It was that double standard and overt politicization which was causing concern, he said, noting that the deliberations in the Committee had reached a lull in forward progress with States repeating their well-known positions. It was time to inject fresh impetus into the deliberations, possibly by ensuring that more States reported on their practices so as to better inform the Secretary-General’s report for the next session.
MOHAMMED HUMAYUN KABIR (Bangladesh) said that the International Criminal Court was a last resort to ensure accountability for the most serious of crimes. There was an obligation for States to address any such crimes within their respective territories. Any broad extra-territorial application on universal jurisdiction by a national court was also likely to get embroiled in international and domestic policies and would pose challenges. Cautioning that a selective approach in the application of the principle would undermine the over-riding objective of justice, he also added that after six years of work by the Working Group, it was advisable to consider whether it was worthwhile to continue the discussions ad infinitum.
PATRICK LUNA (Brazil), associating himself with CELAC, said that if the universality of the Rome Statute was to be achieved, then there would be more fertile grounds for values of justice and stability and for an order based on international law; discussions on universal jurisdiction would probably lose relevance. Universal jurisdiction was one way to achieve accountability and deny impunity to those accused of serious international crimes. One of the most contentious issues remaining was the application of universal jurisdiction while upholding the jurisdictional immunities of State officials. However, it was premature to address the issue of the adoption of uniform standards at the international level on that particular subject.
MAMADOU RACINE LY (Senegal), associating himself with the African Group and Non-Aligned Movement, said that his country had incorporated universal jurisdiction into its domestic legal provisions because of its important role in combating serious violations of international law. Its procedural code had been modified and its lawmakers had been authorized to exercise the principle in case of genocide, war crimes, and crimes against humanity. Other crimes such as counterfeiting the currency and acts of terrorism also led to the application of universal jurisdiction. Turning to persons of interest, he said that in order to apply universal jurisdiction, such persons must be in Senegal either because they were arrested there or extradited there or because one of their victims lived in Senegal.
SHI XIAOBIN (China) said that the international community was far from reaching a consensus on the existence of universal jurisdiction in international law, as well as its definition, scope, and conditions of application. Calling for a cautious approach, he added that other than acts of piracy, considerable differences existed over whether or not universal jurisdiction existed in other situations. When examining the applicability of the principle, attention should also be given to the distinction between universal jurisdiction and the norm of aut dedere aut judicare envisaged in international treaties on combating serious crimes. In any case, when a country established and exercised jurisdiction, it should adhere to the principles of the Charter. More so, in view of the divergence of views and the difficulty in reaching consensus, the Committee must consider whether it was necessary to continue to consider the item.
ABDULAZIZ AL NASSER (Saudi Arabia) affirmed the importance of the aim behind the principle of universal jurisdiction, which was to combat impunity for criminals as much as possible. Justice must be upheld and rendered. However, to implement that principle there were unclear guidelines and a lack of necessary mechanisms to establish a list of crimes to which it applied. Obstacles needed to be overcome and the principles of the United Nations Charter and international law needed to be upheld, particularly in regards to State sovereignty. The implementation of universal jurisdiction should be carried out according to international legal customs. Violations of international law would never achieve the justice that was desired.