Without Clear Definition, Universal Jurisdiction Principle Risks Misuse, Abuse, Sixth Committee Speakers Warn
Engaging in a vigorous debate over the definition of universal jurisdiction, as well as its scope and application when fighting impunity and achieving judicial justice, delegates cautioning that without clear limitations, the principle was open to misuse and abuse, as the Sixth Committee continued its consideration of the topic today. (For background, see Press Release GA/L/3569.)
The representative of Kenya emphasized that while the principle of universal jurisdiction is not new, its scope and application remain controversial and a source of concern. “Universal jurisdiction must not be allowed to become a wildfire, uncontrolled in its spread and destructive of orderly legal processes,” he warned. Without a carefully constructed definition, its application ran a risk of abuse by States.
The representative of India also flagged the potential misuse of the principle. While the crime of piracy is a classic example of universal jurisdiction and has been invoked for the prosecution of that crime, he also stressed that its application should be avoided when addressing acts that do not legally fall within its scope. Such misuse could be the result of the lack of conceptual and legal clarification of the term, he said.
Argentina’s delegate argued that the principle of universal jurisdiction is well-regulated by agreed norms as well as customary law. However, the danger lies in unlimited universal jurisdiction, which could create conflicts of jurisdiction between States. Individuals could become the subjects of politically motivated attacks. He applauded the approach of the Sixth Committee Working Group and its focus on clarifying the different aspects of the concept so that it could be better understood and defined.
The representative of Sierra Leone noted that since 2009, when the Sixth Committee took up the subject, delegates have sought to find a common understanding of the principle and to set it apart from the jurisdiction of international criminal tribunals. However, despite some progress, the Committee reached the point of inertia on the matter. The International Law Commission’s inclusion of universal jurisdiction in its long-term programme of work would enable that body to bring its known technical rigor to the question and offered new insight.
Nonetheless, Eswatini’s delegate highlighted the impossibility of a consensus definition regarding the principle. Emphasizing the concept of cultural relativism, she said it is a fallacy to believe that there is a set of global moral norms and that the courts of a country wishing to exercise its jurisdiction over an individual would know exactly what those norms were.
Still, Czechia’s delegate noted that a strict application of the principle of aut dedere aut judiciare (either extradite or prosecute) under relevant international treaties, working alongside the application of universal jurisdiction under customary international law, could contribute to deterring the most serious crimes. Furthermore, such efforts would enhance the fight against impunity, she said.
The representative of Mexico, highlighting the important differences between the principles of universal jurisdiction and the obligation to extradite, pointed out that 117 States have enacted legislation on universal jurisdiction with regards to war crimes. While many States differed in their position on universal jurisdiction when discussing the immunity of Heads of States and Governments, for Mexico, this immunity applies in foreign courts but not in the International Criminal Court.
The subject of immunities from criminal jurisdiction, South Africa’s delegate emphasized, should be approached with caution. Universal jurisdiction was a challenge to State sovereignty and should be addressed with political sensitivity. More so, cooperation and support were key in the application of the principle, particularly in cases of the most serious crimes. Because of this, her country is part of the international initiative to develop a convention based on mutual legal assistance and extradition for such crimes.
Also speaking today were representatives of Qatar, Peru, Liechtenstein, Paraguay, Singapore, Sudan, Gabon, Slovakia, Syria, Cuba, Egypt, Mauritius, Rwanda, China, El Salvador, Russian Federation, Libya, Morocco, Bulgaria, Burkina Faso, United States and Uruguay.
The Sixth Committee will next meet at 10 a.m. on Thursday, 11 October, to continue consideration of the principle of universal jurisdiction and take up the subject of Administration of Justice.
Statements
FAISAL AL-THANI (Qatar) said that impunity is a cause behind the commitment of mass atrocities around the world and universal jurisdiction is an additional legal tool to prevent impunity. The legal gaps must be addressed in order to end impunity and protect the rights of victims. This is only possible through concerted international efforts to promote the rule of law and deter any person or party who thinks of committing such serious crimes. However, it is necessary to find the right balance to end impunity and not to abuse the principle of universal jurisdiction. On this basis, the gap should be narrowed on the divergent positions on the scope of the principle; it is an application of the four Geneva Conventions that obligate State parties to search for alleged perpetrators of violations against these Conventions.
ANGEL HORNA (Peru) said that universal jurisdiction allows the State in exceptional circumstances to exercise its jurisdiction against the most serious crimes. It should always be exercised in consistency with international law, he said, noting that atrocities continue to occur and frequently go unpunished. Universal jurisdiction could be an effective response to ensure accountability. This is particularly relevant considering that the victims of the crimes are usually members of the most vulnerable groups. Based on the Working Group’s unofficial document of 21 October 2011 and given the discussions undertaken, he said he would like progress to continue, specifically on the definition and scope and circumstances of application. As to the scope of the principle, the list of offences should not be exhaustive and there is no uniform criterion in relation to immunities of State officials.
SINA ALAVI (Liechtenstein), noting the existence of impunity gaps, said that the primary responsibility to prosecute perpetrators of the most serious international crimes rests with those States on whose territory the crimes were committed. Other jurisdictional links, such as the nationality of the perpetrator as well as the victims are also widely accepted. If those States are unwilling or unable to bring perpetrators to account, other States that have no direct connection should fill the gap based on universal jurisdiction. Taking note of the role played by the International, Impartial and Independent Mechanism for Syria, he added that while the path of the International Criminal Court remains obstructed by the use of veto, by invoking universal jurisdiction, a number of European courts have been able to prosecute perpetrators in a limited but meaningful way.
ENRIQUE J.M. CARRILLO GOMEZ (Paraguay), noting that his country accepts international law and a super-national order that guarantees the protection of human rights, said that Paraguay is a party to the Rome Statute. The criminal court of his country extends the scope of Paraguayan criminal jurisdiction to acts committed abroad against Paraguayan legal assets or where the perpetrator is of Paraguayan nationality. The principle of universal jurisdiction is also part of his country’s case law, he said, noting that judgement 195 of the Paraguay Supreme Court establishes the absence of a statute of limitations for crimes such as torture. Unfortunately, in Latin America and the Caribbean, dictatorial regimes persist, stealing hope from their populations, he said, emphasizing the validity of the Universal Declaration of Human Rights.
NATHANIEL KHNG (Singapore), stressing that universal jurisdiction does not apply to all crimes, said that that it is reserved for certain crimes whose abhorrent nature merits its application. The principle is not and should not be the primary basis for the exercise of criminal jurisdiction. “It is a last resort,” he emphasized, adding that it is intended to complement and not supplant other bases of jurisdiction under international law. Furthermore, universal jurisdiction is a principle of customary international law and should not be confused with the exercise of jurisdiction provided for in treaties or the exercise of jurisdiction by international tribunals.
MARTIN GARCIA MORITAN (Argentina), associating himself with the Community of Latin American and Caribbean States (CELAC), said that it is the duty of States to exercise their criminal jurisdiction against the perpetrators of the gravest crimes. That primary responsibility falls to the States where those crimes have been committed or States who have a connection, such as the nationality of the perpetrator or victims. When such States are unwilling, other States may fill the vacuum to ensure that impunity is not permitted. He underscored that the principle is regulated by agreed norms and customary law and is one of the essential components of the international criminal justice system. However, an unlimited universal jurisdiction can generate conflicts of jurisdiction between States, which means that individuals may be subjected to politically motivated prosecutions. He noted his approval with the approach of the Sixth Committee Working Group on the matter, which is working to clarify the different aspects of importance to better understand the concept.
OMER DAHAB FADL MOHAMED (Sudan), associating himself with the Non-Aligned Movement and the African Group, said that he took note of the report of the Secretary-General on the topic (document A/73/123) and that he looked forward to ongoing transparent and inclusive dialogue in the Sixth Committee; it is the most representative forum on the scope and application of universal jurisdiction. The aim of the Working Group is to reach consensus on an issue that is still a subject of consideration and discussion and a matter where opinions diverge greatly, particularly when addressing the scope and definition. The efforts of the General Assembly should focus on the scope of the principle, as well as on conditions to be satisfied to use it. This should be undertaken while respecting the sovereignty of States and their own jurisdictions, as well as their national systems that combat impunity.
ANNETTE ONANGA (Gabon), associating herself with the African Group and the Non-Aligned Movement, said that the Geneva Conventions contained detailed guarantees on human rights and prisoners of war. In addition, the Gabonese Constitution has established criminal accountability of senior State officials. The scope of universal jurisdiction should be limited and it must be complementary; it cannot run counter to the jurisdiction of national courts. Criminal accountability should be first upheld by the country in which the serious crimes were committed. This helps to bolster State sovereignty by enabling them to remain primary custodians of national and international rules. Universal jurisdiction can only be applied when a State does not intend to exercise its jurisdiction, she emphasized.
MICHAL MLYNAR (Slovakia), observing that universal jurisdiction has been a firm part of international law for centuries, noted that it has traditionally been applied over piracy, but recently gained relevance with respect to other crimes like war crimes, genocide and torture. The principle’s application does not cast any doubt on the traditional jurisdictional links based on territoriality or personality. However, in the absence of a truly universal framework for mutual legal assistance and the lack of universal acceptance of the Rome Statute of the International Criminal Court, universal jurisdiction remains an important guarantee against impunity.
AMMAR AL ARSAN (Syria), associating himself with the Non-Aligned Movement and the African group, said that the existence of serious loopholes and irregular practices in international relations make it impossible to achieve the purposes behind the notion of universal jurisdiction. The current world order is unable to maintain rule of law in a fair and just manner because of selectivity and double standards. Expressing concern about the exploitation of universal jurisdiction, he reaffirmed the principal role of the International Court of Justice and rejected the suspicious tendencies of some Governments to broaden the scope of universal jurisdiction in ways that would impair the sovereignty of States. Some delegations continue to promote the “so-called IIIM [International, Impartial and Independent Mechanism]”, he said, adding that the non-consensual General Assembly resolution that established the Mechanism was not based on any legal grounds.
KRISTINA HORNACKOVA (Czech Republic) underscored that she recognized the primary jurisdiction of the territorial State to prosecute and punish grave crimes. However, when a State is unwilling or unable to prosecute, and neither the State of nationality of the perpetrator or the victim is prosecuting such crimes genuinely, every State is entitled to prosecute them without any territorial or personal connection to the crime committed. A strict application of the principle of aut dedere aut judiciare under relevant international treaties, as elucidated in the judgement of the International Court of Justice in the case of Belgium vs. Senegal, together with the application of universal jurisdiction under customary international law, can contribute to deterrence of commission of such crimes and enhance the fight against impunity, she said.
UMASANKAR YEDLA (India) said that those who commit the most serious crimes must be brought to justice and punished. Procedural technicalities, including the lack of jurisdiction, should not come in the way of a State to prosecute offences that all States have condemned. The crime of piracy is a classic example of universal jurisdiction. For centuries, the international community has treated the pirate as an enemy of humankind. The principle of universal jurisdiction, invoked for the prosecution of the crime of piracy, has formed part of customary international law. It is now codified in the United Nations Convention on the Law of the Sea. He underscored that the misuse of the principle of universal jurisdiction should be avoided in respect of acts that do not legally enjoy such jurisdiction; the conceptual and legal clarification of the principle’s meaning is yet to emerge.
ANET PINO RIVERO (Cuba) said that the scope and application of universal jurisdiction is broad ranging. To ensure the principle is not applied when not appropriate the topic should be debated by the General Assembly, the supreme representative body of Member States. The principle should not be used in the politically motivated application by courts in developed countries against persons from developing countries when there is no basis in international treaties. She also condemned politically motivated laws against other States that have harmful effects on international relations. International guidelines should be created to protect international peace and security. It is essential to respect sovereign equality, she said, noting that universal jurisdiction should not be used to the detriment of legal systems that exist throughout the world. Nor should it be used in a selective form for political purposes contrary to international law.
MOHAMED EL SHINAWY (Egypt), associating himself with the Non-Aligned Movement, underlined the importance of universal jurisdiction in combatting impunity. Ongoing discussions are taking place in Egypt to add serious crimes, including crimes against humanity and war crimes, into the national legislations. Universal jurisdiction is complementary to national jurisdiction, which is the primary instrument to prosecute crimes committed on national territory. Greater attention should be afforded to complete legislative reforms on the national and regional levels that respect the principle of national ownership. He stressed the importance of applying the principle independently and without politicization. The relevant rules of international law must be respected, as must the rulings of the International Court of Justice and the immunities enjoyed by presidents of States and high-level officials.
RISHY BUKOREE (Mauritius), associating himself with the Non-Aligned Movement and the African Group, said that universal jurisdiction is a well-established principle in international law. It is essential that the sovereign equality and territorial integrity of States is respected when the principle is applied. Also stressing the importance of abiding by the principle of immunity for Heads of States and Governments, he added that political activism by the judiciary to pick and choose leaders to be investigated and prosecuted creates a poor impression of equality before the law. Reminding delegates that universal jurisdiction is a final recourse for victims of grave international crimes, he highlighted Article 21 of the United Nations Charter and its emphasis on State sovereignty.
ROMI BRAMMER (South Africa), associating herself with the Non-Aligned Movement and the African Group, acknowledged that while universal jurisdiction is an important tool through which impunity can be curbed, there is a lack of uniformity in its application. Her Government has enacted legislation that provides for universal jurisdiction over certain crimes, providing the accused is present in the country to be prosecuted. However, it also allows for anticipatory investigations to be carried out without the accused’s presence. That, however, can place immense burden on criminal justice systems. In order to successfully prosecute the accused, cooperation and support must be provided, including evidence sharing. As such, South Africa is involved in the international initiative to develop a multilateral convention focused on mutual legal assistance and extradition for serious crimes. Universal jurisdiction presents a challenge to State sovereignty and territorial integrity and should be addressed with political sensitivity, she said, also noting that the heavily debated and sensitive topic of immunities from criminal jurisdiction should also be approached with caution.
NIMATULAI BAH-CHANG (Sierra Leone), associating herself with the Non-Aligned Movement and the African Group, said that her country’s domestic law recognizes universal jurisdiction for grave breaches of the Geneva Conventions and Additional Protocol I. Since the Committee took up the issue of universal jurisdiction in 2009, delegations have sought to forge a common understanding of the universality of the principle and to distinguish it from related concepts such as the jurisdiction of international criminal tribunals and the extraterritorial application of national laws. Although some progress had been made over the years, it seems the Committee has reached the point of inertia. She welcomed the decision of the International Law Commission to place this topic on its long-term programme of work. The Commission is positioned to bring its known technical rigor to the question of the “extent of application” of universal jurisdiction and their draft guidelines and draft conclusions on the principle could assist the Sixth Committee. In the same vein, the consideration of this topic in other forums should not negate discussions in the Committee.
PABLO ARROCHA (Mexico), recalling that previous debates had clarified the differences between the principles of universal jurisdiction, international criminal jurisdiction and the obligation to extradite, noted that 117 States have legislation on universal jurisdiction regarding war crimes. In 2017, at least 20 cases have been initiated in national courts based on this principle. However, States diverge in their position when addressing the relationship between universal jurisdiction and the immunity of Heads of States and Governments. For Mexico, he said, this immunity does apply in foreign courts that seek to apply universal jurisdiction but does not apply in the International Criminal Court. He also welcomed the inclusion of this topic on the International Law Commission’s long-term programme of work.
THOMAS AMOLO, Ministry of Foreign Affairs of Kenya, associating with the Non-Aligned Movement and the African Group, reaffirmed his country’s commitment to the rule of law and fighting impunity. While the principle of universal jurisdiction is not new, the scope and application of the principle, on the basis of domestic legal rules and emerging judicial practices, is controversial and a source of legitimate concern. “Universal jurisdiction must not be allowed to become a wildfire, uncontrolled in its spread and destructive of orderly legal processes,” he said, adding that if not carefully defined and regulated within the acceptable norms of international law, the unilateral application of the principle can be abused by States.
ROBERT KAYINAMURA (Rwanda), associating himself with the African Group and the Non-Aligned Movement, said that while the principle of universal jurisdiction has been cited as vital to the fight against impunity, a large number of the key masterminds of the Rwanda 1994 genocide against the Tutsi remain free around the world, enjoying the impunity the principle was intended to end. He commended the countries in Europe, as well as the United States and Canada, which had brought to justice, prosecuted or extradited the most wanted genocide perpetrators and had not allowed their countries to be a safe haven for criminals. On the other hand, some countries have been victims of the abusive misuse of the principle, he said, adding that this trend continues. As a result, the international criminal justice system is in a credibility crisis. The international community must be alert to the motives of some political lawyers and judges that are behind politically motivated universal jurisdiction cases. Some lone judges have consistently disregarded normal international justice mechanisms and accorded themselves the right to extend national jurisdiction to weaker nations, holding them to ransom under the guise of international justice. None have been held accountable for their actions.
LI JIUYE (China) recalled that during past discussions of the Sixth Committee, Member States all acknowledged the importance of fighting impunity and achieving judicial justice. However, they diverged on the applicability of universal jurisdiction and on the conditions required for such application in circumstances other than piracy. So far, there are no widely recognized rules of customary international law on the subject. Universal jurisdiction is neither tantamount to the obligation of aut dedere aut judicare in treaties, nor to jurisdiction of current international judiciary organs expressly mandated by treaties or other legal instruments. Considering the tremendous differences among Member States on the topic, the dire prospects of reaching consensus in the near future and the 2018 decision by the International Law Commission to include the subject in its long-term work programme, he suggested that Member States seriously ponder the necessity of continuing deliberations on the item in the Committee.
RUBEN ESCALANTE (El Salvador), associating himself with CELAC, said that despite the current extent of universal jurisdiction’s scope, he noted the gap between the principle and its effective application. States incorporate it into their domestic legislation in different ways. It is important to focus on national means to implement the principle. That ensures that the national legal entities of States can exercise their jurisdiction when addressing grave crimes against humankind. His Government supports the establishment of clear rules on the reasonable exercise of universal jurisdiction and his country’s Constitution provides that international treaties also constitute domestic laws; they come into force through the provisions of the instrument in question. El Salvador has ratified the Geneva Convention of 1949 and its Protocols that provide for universal jurisdiction regarding grave crimes like torture or inhumane treatment. It has also ratified the Rome Statute, which is a landmark for the exercise of universal jurisdiction by the International Criminal Court for the most serious crimes.
MAXIM MUSIKHIN (Russian Federation) pointed out that the data in the report of the Secretary-General attests to the fundamental divergent approaches that exist on the concept of universal jurisdiction. The arbitrary exercise and abuse of the concept is likely to move the international community away from the ideals of national sovereignty and push it to interference in national affairs. He also noted that it is premature to include this topic in the International Law Commission’s current programme of work, voicing his agreement with the African Group that the forum for discussing the principle should be the Sixth Committee. The exercise of universal jurisdiction should be in line with the norms of customary international law, particularly regarding the immunity of State officials. There are other instruments to combat that issue, he said.
YOUSSEF SALEH IBRAHIM SALEH (Libya), associating himself with the Non-Aligned Movement and the African Group, reaffirmed that the aim of universal jurisdiction is noble. However, it is premature to accept it as international law since, among other reasons, there is a lack of agreement on the type of crime to be included. “Violating the principles of the United Nations Charter will not help the international community to achieve its goal of combating impunity,” he stressed, adding that such misuse would facilitate the politicization of the international judicial system. Libyan citizens are able to access all legal bodies and courts and the trials are fair, he said, adding that the implementation of national laws is proof of the country’s national sovereignty.
HASSAN LASRI (Morocco), noting that universal jurisdiction targets crimes considered the worst in international law, said that it should not deviate from the classic rules of international criminal law. Noting his country’s accession to the Optional Protocol of the Convention Against Torture, he said that the amended and consolidated version of the Moroccan criminal code defines and criminalizes torture and human trafficking. Further, the Government has established national prevention mechanisms to combat those crimes. While Moroccan law does not recognize the principle of universal jurisdiction, it also does not have provisions that hamper its application. Draft criminal code law 10, currently being considered in the Parliament, stipulates the criminalization of three main criminal categories: genocide, crimes against humanity and war crimes. Nevertheless, he emphasized, the exercise of the principle of universal jurisdiction should be rational and in line with international law.
MELUSI M. MASUKU (Eswatini), associating himself with the Non-Aligned Movement and the African Group, said that the principle of universal jurisdiction carries with it noble intent. However, it is not a principle that operates in isolation of, nor to the exclusion of, other international norms and principles. Voicing concern about the apparent selectiveness of its use, he noted that the current application of universal jurisdiction has been influenced heavily by a political slant. A greater interrogation of the uncertain scope and application of the principle and its abuse is needed as there are no agreed international moral standards. Highlighting cultural relativism, he added that it is a fallacy to believe that there is a set of global moral norms and that the courts of a country that wishes to exercise its jurisdiction over a particular individual would know with certainty what those norms might be.
GEORGI PANAYOTOV (Bulgaria) noted the importance of the shared responsibility of national jurisdictions and permanent or ad hoc international courts, despite their somewhat limited field of action. His Government continues to address the relevant issues and call attention to the need for international cooperation in dealing with impunity. On many occasions, European Union member States have pledged and undertaken measures to prevent Europe’s territory from becoming a safe haven for perpetrators of the gravest crimes. There is no doubt that the principle of universal jurisdiction has a role to play in the prosecution of the most heinous crimes of international concern. However, resorting to this principle is still considered a political act which can and does affect international relations. True international justice can only be achieved through dedicated and consistent policy lines focused on preserving common fundamental values.
MARIUS BONGO (Burkina Faso), associating himself with the African Group and the Non-Aligned Movement, underscored that universal jurisdiction is a necessity in combating impunity, adding that his Government is always in favour of initiatives seeking to improve national and international mechanisms to deter these most serious crimes. Such crimes that go unpunished are a threat to peace and security. It is a moral question and a moral duty to combat impunity and ensure justice by punishing the perpetrators of the most serious crimes wherever they are located, as well as to provide reparation to the victims of these crimes. Burkina Faso is a State party to the Statute of Rome. In 2009, it adopted a law determining the jurisdiction and procedures for the implementation of the Rome Statute in its courts. His country would not be a refuge for major criminals seeking a haven to ensure impunity. The application of the principle resides in national laws and the politicization of the principle. Its implementation must be done within a transparent international framework.
JULIAN SIMCOCK (United States) said that, despite the importance of the issue of universal jurisdiction and its long history as a part of international law relating to piracy, basic questions remain as to how jurisdiction should be exercised in relation to universal crimes, as well as States’ views and practices related to the topic. There have been lengthy, thoughtful discussions on a variety of important topics regarding universal jurisdiction since the Sixth Committee took up the issue. The submissions made by States, the work of the Working Group and the reports of the Secretary-General have been extremely useful in helping to identify differences of opinion among States as well as points of consensus.
MARIA SANDE (Uruguay), associating herself with CELAC, said that two world wars were needed to awaken the international community. That led to the establishment of the Nuremberg trials. It was there the concept of universal jurisdiction originated. This concept has evolved particularly since the 1990s and it is an extraordinary tool that can only be used where certain conditions have been met. It is a legal principle that requires a State to prosecute certain crimes, regardless of the place where it was committed or the nationality of the perpetrator or the victim. The basis of the exercise of this principle is the gravity of the crimes committed and how they affect the international community as a whole. The concept has not yet been fully clarified and this hampers its inclusion in domestic legislation, she said.