Speakers Disagree on How, When, Where Universal Jurisdiction Should Be Engaged, as Sixth Committee Takes up Report on Principle
As the Sixth Committee (Legal) commenced its debate on the scope and application of the principle of universal jurisdiction, delegates deliberated on how the principle should be engaged, both nationally and internationally, and under what conditions were necessary when activating national judiciaries.
The report of the Secretary-General, “The scope and application of the principle of universal jurisdiction” (document A/77/186) contains information and observations received from Member States and relevant observers.
The representative of Australia, also speaking for Canada and New Zealand, underscored that universal jurisdiction is an important complementary framework to their national legislation and could also complement the role of the International Criminal Court as a court of last resort. However, she noted that it is the perpetrator’s State of nationality that has a better position to achieve justice due to their access evidence, witnesses and victims.
The representative of Jordan echoed this stance, stressing that the primary responsibility for investigation rests with the territorial or personal jurisdiction as they are better positioned to gather evidence and information and protect witnesses. However, he noted that, should States fail to do so, because of their inability or unwillingness, the cases should be referred to universal jurisdiction, which can be perceived as a “tool box” potentially capable of addressing legislation gaps.
Liechtenstein’s representative, recognizing the important role of national judiciaries, highlighted the successful case of the regional court of Koblenz in Germany that secured convictions against two former Syrian Government officials for crimes against humanity. Underscoring the importance of providing national judiciary systems with adequate support, he called on the Member States to join the Rome Statute and implement it in their national criminal codes.
In that regard, the representative of Germany described how his country exercised universal jurisdiction under the Code of Crimes against International Law for genocide, crimes against humanity and war crimes. Such crimes should be tried by international tribunals. However, if the applicable complementarity criteria are met, German courts work on a national level. German prosecutors were currently running over 100 investigations into international crimes, he said, highlighting several cases, including the Higher Regional Court in Koblenz.
However, Colombia’s delegate, taking a different stance, said that the principle of universal jurisdiction is only applicable when it is expressly included in a treaty when the person tried is within the geographic limits of the State, despite the fact that the crime was not committed there. The principle has been enshrined in various binding international treaties and in multiple judicial cooperation treaties, she said, noting that States follow diverse practices in defining the scope of the concept and its application.
Nonetheless, the Republic of Korea, its representative said, has incorporated the principle of universal jurisdiction into domestic legislation by allowing for the prosecution of certain crimes committed by foreign nationals that did not take place on its territory. Detailing the scope of legislation, he said that it is extending criminal liability for human trafficking and providing punishment for the damage of ships and sea structures, among others.
Conversely, the representative of India pointed out that piracy on the high seas was only crime in which claims of universal jurisdiction is undisputed. Although international conventions provided a basis for some sort of universal jurisdiction applicable between their State parties, she questioned whether such convention-based jurisdiction could be converted into a customary rule applicable to all the States whether or not they are party to those conventions.
Cuba’s representative underscored that universal jurisdiction cannot be used to disadvantage the integrity or values of various legal systems around the world, nor to weaken respect for national jurisdiction. He expressed concern over the undue use of the universal jurisdiction in unilateral, selective and politically motivated exercise of jurisdiction of the courts of developed countries against nationals or legal persons of developing countries.
Pakistan’s delegate, spotlighting fundamental divergences over the nature, scope and application of the principle, said that it was not a primary form of jurisdiction and should be only exercised in exceptional circumstances and subordinate to national and territorial jurisdiction. She also noted that universal jurisdiction cannot be exercised in isolation from other principles of international law, such as sovereignty and territorial integrity, nor used as a license with which to undermine State sovereignty.
Burkina Faso’s delegate asserted that, as an exception to the principle of territoriality, universal jurisdiction is the “last defence against barbarity”. Observing that the principle of universal jurisdiction remains dependent on national laws and regulations, he urged a focused discussion on how to harmonize cooperation between States to combat impunity more effectively.
Also speaking today were representatives of Iran (for the Non-Aligned Movement), Sweden (also for Denmark, Finland, Iceland and Norway), Singapore, United States, Mexico, Egypt, El Salvador, China, Brazil, Slovakia, Czech Republic, Sierra Leone, Slovenia, Saudi Arabia, Cameroon, United Kingdom, Russian Federation, Sri Lanka, Myanmar, South Africa, Senegal, Ethiopia, Venezuela, United Arab Emirates and the Netherlands. A representative of the European Union, in its capacity as observer, also spoke.
The Sixth Committee will next meet at 10 a.m. on Thursday, 13 October, to conclude its debate on the scope and application of the principle of universal jurisdiction and begin consideration of the responsibility of States for internationally wrongful acts.
Scope and Application of the Principle of Universal Jurisdiction
MOHAMMAD GHORBANPOUR NAJAFABADI (Iran), speaking for the Non-Aligned Movement, said that the involvement of incumbent high-ranking officials who enjoy immunity should be addressed in conformity with international law. However the exercise of criminal jurisdiction by national courts violates the principle of the sovereignty of States. Recognizing questions and controversies concerning universal jurisdiction, including understanding the range of crimes that fall under it and the conditions for its application, he expressed concern over the implications of the application of universal jurisdiction on the immunity of States officials and on the sovereignty of the States concerned. He, thus, called for further clarification to prevent any misapplication or improper utilization of the principle and cautioned against the unwarranted expansion of the crimes.
He underscored that universal jurisdiction shall not replace other jurisdictional bases, namely territoriality and nationality, and only assert it among the most serious crimes. Expansion of the principle to include anything less than the most heinous crimes could risk calling into question its very legitimacy. Moreover, it cannot be exercised in isolation or to the exclusion of other relevant rules and principles of international law, including not only State sovereignty and the territorial integrity but also the immunity of State officials from foreign criminal jurisdiction. Spotlighting the group’s readiness to share information and practices with other States, he noted that it was premature to request the International Law Commission to undertake a study on the different aspects of universal jurisdiction.
SIMONA POPAN, representative of the European Union, in its capacity as observer, underlined that universal jurisdiction enables a State to prosecute perpetrators of the most serious international crimes regardless of where the crimes may have been committed. However, the primary responsibility for investigating a crime and prosecuting its perpetrators lies with the State or States with a direct link to the crime perpetrated. States should criminalize all core crimes in their national law. Recognizing that universal jurisdiction is one of many tools that can assist in preventing international crime, she noted that through “EU Action Plan on Human Rights and Democracy 2020-2024” the bloc aims to prevent violations of human rights and combat intolerance, harassment and violence based on ethnic origin among other crimes. The Union also set up a European network for the investigation and prosecution of genocide, crimes against humanity and war crimes entitled “Genocide Network”, in efforts to support national authorities in investigation and prosecution.
She went on to say that the European Union Agency for Criminal Justice Cooperation identified key factors for successful investigations and prosecutions of core international crimes, including legislative frameworks defining core international crimes into national law; setting up specialized units or appointments of staff trained to deal with international crimes; and allocation of adequate human, financial and material resources. Further, the victim-centred approach and victims protection should be “tailor made”. In this spirit, special attention must be given to victims seeking justice for sexual and gender-based crimes. She also underscored that regarding channelling investigative efforts through the joint investigative teams, cooperation and coordination is essential between different investigations to avoid multiple interviews of the same victims, thus mitigating the risk of re-traumatization.
JULIA FIELDING (Sweden), also speaking for Denmark, Finland, Iceland and Norway, pointed out that all the countries for whom she speaks have incorporated the principle of universal jurisdiction into national law by allowing domestic prosecution of the most serious crimes of international concern, regardless of where the conduct occurred or the nationality of the perpetrator. Encouraging States that have not yet done so to incorporate this principle into domestic law, she said that the primary responsibility for investigating and prosecuting serious international crimes rests with the State in which that conduct occurs, or the State of nationality of the accused. Such States generally have the best access to evidence and witnesses, and the trial will also have more legitimacy and impact, she said.
However, she emphasized that, when States do not take legal action, the exercise of universal jurisdiction by other States can serve as an important tool to ensure accountability, provide redress for victims and limit impunity. On this point, she highlighted a steady increase in prosecutions in European national courts against State and non-State actors for international crimes in Syria, based on universal jurisdiction. Further, several countries have opened investigations under the principle on crimes committed in Ukraine following the Russian Federation’s aggression. while recognizing that challenges to the effective exercise of the principle of universal jurisdiction may exist, she warned against developing an exhaustive list of crimes to which the principle would apply.
ALEXANDRA HUTCHISON (Australia), also speaking for Canada and New Zealand, said universal jurisdiction vested in every State the competence to exercise, on behalf of the international community, criminal jurisdiction over those individuals responsible for the most serious crimes, regardless of where the conduct occurred or the nationality of perpetrators or victims. Such crimes were well-established in customary international law, include piracy, genocide, war crimes, crimes against humanity, slavery and torture. “Our dialogue on universal jurisdiction should focus on ensuring that no perpetrator of the most serious international crimes goes unpunished,” she stressed, adding that it must be consistent with the rule of law, the right to a fair trial and be free from political motivation, discrimination and arbitrary application, among others. Noting that the primary responsibility laid with the State of nationality of the accused, she said that those States were often in the best position to achieve justice, given their access to evidence, witnesses and victims.
However, many perpetrators go unpunished for a number of reasons, including their cross-border movement and States’ lack of resources to undertake complex investigations and prosecutions, she continued. In such circumstances, universal jurisdiction was an important complementary framework. Universal jurisdiction could also complement the role of the International Criminal Court as a court of last resort. In this way, it could strengthen the international accountability framework and put perpetrators on notice that they will be held to account. She also stressed that universal jurisdiction is particularly important in cases where the Court does not have jurisdiction, including in the absence of a referral by the Security Council of the most serious crimes under international law. In such contexts, the exercise of universal jurisdiction demonstrates how the international community can cooperate to bring about justice, she said, spotlighting cases in Germany of Syrian nationals and members of Islamic State in Iraq and the Levant (ISIL), also known as Da’esh.
YONG-ERN NATHANIEL KHNG (Singapore) emphasized that universal jurisdiction is not, and should not be, the primary basis for the exercise of criminal jurisdiction by States. It should only be invoked as a last resort, in situations where no State is able or willing to exercise other established bases for jurisdiction, including the principles of territoriality and nationality. Further, universal jurisdiction should only be exercised with respect to particularly grave crimes of interest to, or affecting, the international community as a whole. He went on to say that the principle is one of customary international law and, therefore, should be distinguished from the exercise of jurisdiction provided for in treaties. He added that universal jurisdiction cannot be exercised in isolation from – or to the exclusion of – other applicable principles of international law, including the immunity of State officials from foreign criminal jurisdiction, State sovereignty and territorial integrity.
ALAA NAYEF ZAID Al-EDWAN (Jordan), associating himself with the Non-Aligned Movement, noted that perpetrators should be tried notwithstanding their nationality before the courts of the State party of the territorial jurisdiction. Otherwise, the accused should be extradited to the respective State party. The effective implementation of such obligations requires them to include the list of grave violations in their national legislation and prosecute those upon occurrence. He underscored that primary responsibility for investigation rests with the territorial jurisdiction or with personal jurisdiction as they are better positioned to gather evidence and information and protect witnesses. However, should States fail to do so due to their inability or unwillingness, the cases should be referred to universal jurisdiction. He described the principle as a part of a “toolbox” that should be employed to address legislation gaps and expressed support in referring the topic to the International Law Commission to solicit its opinion in this regard.
ORDUZ DURAN (Colombia), said that treaties ratified by her country which contain clauses related to universal jurisdiction are applied in the country’s laws in line with its Constitution. The principle of universal jurisdiction is only applicable when it is expressly included in a treaty and when the person tried is within the geographic limits of the State, despite the fact that the crime was not committed there. Thus, universal jurisdiction has been enshrined in various binding international treaties and in multiple judicial cooperation treaties. Colombia also signed various treaties that recognize expressly universal jurisdiction for the trying and punishment of genocide, torture and apartheid and drugs trafficking, among others. Noting diverse practices of States in the definition of the concept’s scope and application, she welcomed the inclusion of the topic in the International Law Commission’s work programme and noted that her country will actively participate in the sessions of the working group in the framework of the Sixth Committee.
RABIA IJAZ (Pakistan), associating herself with the Non-Aligned Movement, said that fundamental divergences over the nature, scope and application of the principle of universal jurisdiction have “cast a shadow” over efforts to arrive at common understanding on this issue. Discussions on the principle’s scope and application must consider customary international law and opinion juris. She went on to stress that universal jurisdiction is not a primary form of jurisdiction but is only exercised in exceptional circumstances and subordinate to national and territorial jurisdiction. The State in whose territory a crime was allegedly committed has the priority to prosecute. Only in cases where such a State is unwilling or unable can another State proceed with prosecution. This is in line with the principle of complementarity, which has been duly recognized by international courts. She added that universal jurisdiction cannot be exercised in isolation from other principles of international law, such as sovereignty and territorial integrity, nor used as a license with which to undermine State sovereignty.
SINA ALAVI (Liechtenstein) commended the accomplishments of national judiciaries invoking the principle universal jurisdiction, noting that German courts have been champions of universal jurisdiction. He expressed appreciation to the higher regional court of Koblenz for securing convictions against two former Syrian government officials for crimes against humanity. This watershed decision was supported by the United Nations-mandated International, Impartial and Independent Mechanism for Syria, that help prepare case files for prosecutions in courts that have jurisdiction over crimes committed in Syria, irrespective of the affiliation of the perpetrators. Turning to the nullum crimen sine lege principle, he called on Member States to join the Rome Statute and implement it into their national criminal codes, including the ratification of the Kampala amendments on the crime of aggression. He further underscored that national judiciaries should be supported with adequate resources, adding that he would welcome the International Law Commission to focus on this topic.
MARK SIMONOFF (United States) said that, despite the importance of this issue and its long history as part of international law relating to piracy, basic questions remain regarding how jurisdiction should be exercised in relation to universal crimes. State submissions to date on this topic, the continued efforts of the relevant working group in the Sixth Committee, and the Secretary-General’s reports on the matter have been valuable in helping to identify differences of opinion and points of consensus among States on this issue. He said he was interested in further exploring issues related to the practical application of universal jurisdiction and would continue to analyse the contributions of other States and organizations. He also welcomed continued consideration of this issue and input from more States regarding their own practice.
NATALIA JIMÉNEZ ALEGRÍA (Mexico), noted that progress has been made to improve the understanding of the universal jurisdiction. However, some conceptual issues require clarification. Referring to the subsidiary nature of the jurisdiction in relation to the territorial State, she spotlighted a fundamental distinction between universal jurisdiction and extraterritorial types of jurisdictions, traditionally based on criminal legislation of countries. She also highlighted a difference between the universal jurisdiction and the principles such as aut dedere aut judicare and international criminal jurisdiction. On subsidiarity, she noted that national courts must keep a prerogative to exercise their jurisdiction, meaning that the universal jurisdiction should only be applied when the State is unwilling or lacks capacity to do so, and when the International Criminal Court does not have a jurisdiction to hear the case. She also referred to the application of the universal jurisdiction in absentia, noting that the presence or absence of the incriminated person on the territory of a country rests on the implementation this country’s jurisdiction.
MICHAEL HASENAU (Germany) said that German prosecutors exercise universal jurisdiction under the Code of Crimes against International Law for genocide, crimes against humanity and war crimes. Although such crimes should be tried by international tribunals, including the International Criminal Court, if the applicable complementarity criteria are met, the Code of Crimes allows Germany’s courts to work on a national level. In March, the Federal Public Prosecutor General initiated an investigation on war crimes committed in Ukraine due to the aggression by the Russian Federation. This was later extended to crimes against humanity; currently evidence is being gathered, including statements by Ukrainian refugees. Among other cases, in January the Higher Regional Court in Koblenz sentenced a senior officer of the General Syrian Intelligence Service to life imprisonment for crimes against humanity. The Cumulative Prosecution has also been implemented, holding foreign fighters and former members of Da’esh returning to Germany accountable for war crimes, crimes against humanity or genocide. German prosecutors are currently running over 100 investigations into international crimes. There is no safe haven for perpetrators of international crimes against criminal prosecution in Germany, he said, adding: “Justice will be served for the victims and survivors.”
AHMED ABDELAZIZ AHMED ELGHARIB (Egypt), associating himself with the Non-Aligned Movement, said that universal jurisdiction, is complementary to the national jurisdiction where crimes have been committed, should not substitute the main jurisdiction. Thereby, this principle should be resorted to in cases when the State, where the crime had been committed, is unable or unwilling to exercise its jurisdiction. It is also important to observe the principles of international and customary international law, as well as immunities of State officials, Presidents of States and diplomatic corps. He further cautioned against excessive expansion on the parts of some States’ legislation to end the application of national courts in applying the universality principle on crimes that occur outside of State where traditional norms of exercising of criminal jurisdiction do not exist. He underscored that discussions should seek to achieve consensus and highlighted the importance of achieving consent for international participation with those States where crimes had been committed.
FLORES SOTO (El Salvador) stressed that the principle of universal jurisdiction is fundamental to combating impunity for serious crimes. For the victims of such crimes, it represents a way to guarantee access to justice, the right to truth and comprehensive reparations. The Salvadoran criminal code recognizes the principle of universal jurisdiction. Its application requires neither the concurrence of the principle of active personality nor the presence of the accused on Salvadoran territory. All that is necessary is that the conduct in question must have affected assets or property protected by international law and that such conduct implies a serious impact on universally recognized human rights. Noting that the exercise of universal jurisdiction requires the criminal conduct in question to have been incorporated into a State’s domestic legal framework, she pointed out that Salvadoran criminal law includes, inter alia, provisions on genocide, war crimes, forced disappearance and slavery.
KAI LI (China), emphasizing that the scope and application of universal jurisdiction must be strictly defined, said that, under the principle of sovereign equality, one State’s exercise of jurisdiction should not undermine the sovereignty of others. Universal jurisdiction is exercised in the absence of contact factors – nationality, territory or national security – and, therefore, its application must be limited to exceptional cases to which clearly defined standards apply. He also pointed out that, under customary international law, all States can exercise universal jurisdiction in cases of piracy. However, diverging views remain as to whether the principle can be applied in other situations, and agreement on this point has yet to crystallize in international law. He stressed that the principle must not be abused and that, in exercising universal jurisdiction, States must abide by international-law principles such as sovereign equality, non-interference and immunity.
VINÍCIUS FOX DRUMMOND CANÇADO TRINDADE (Brazil) said that before invoking universal jurisdiction, judicial authorities should first ensure that there are no ongoing investigations in the affected country. Universal jurisdiction and criminal jurisdiction by international tribunals should be complementary. There were also pending questions regarding the relation between universal jurisdiction and other norms, such as the aut dedere aut judicare principle, he said, adding that one of the most contentious issues was the application of universal jurisdiction while upholding the jurisdictional immunities of State officials. The Brazilian Criminal Code only accepts universal jurisdiction in exceptional circumstances and under clear and objective conditions. Brazilian law applies to the crime of genocide even if committed abroad, as long as the perpetrator is a Brazilian national or someone that resides in the Brazilian territory. The exercise of State jurisdiction based on the universal principle should be limited to serious crimes, prescribed in international treaties and only by States parties. The principle should be subsidiary to more direct connecting factors, such as territoriality and nationality. The accused should be necessarily present on the territory of the forum State. Universal jurisdiction should always respect basic principles of criminal law, such as the prohibition of double jeopardy.
MATÚŠ KOŠUTH (Slovakia) noted that in addition to the annual report compiling comments from Governments, it would be beneficial to review all the reports prepared thus far with a view to identify convergences and divergences between States. Since the universal jurisdiction is a legal topic, he underscored that a legal analysis by the International Law Commission would contribute greatly to the alleviation of its sensitivities. His delegation has continuously voiced its support for the application of universal jurisdiction over crimes of concern to the international community as a whole. In the absence of universal acceptance of the Rome Statute and a truly universal framework for mutual legal assistance, he highlighted that universal jurisdiction remains the guarantee of accountability for perpetrators of such crimes. Following the full-scale Russian military aggression with a consequence of a “vast number of atrocities committed by Russian troops”, he said that Slovakia has launched a domestic investigation into crimes against humanity and war crimes committed in Ukraine based on universal jurisdiction.
MAREK ZUKAL (Czech Republic) said that when prosecution does not take place in the State of nationality, for whatever reason, and when jurisdiction of international courts, such as the International Criminal Court cannot be exercised, for whatever reason, universal jurisdiction is the only tool left. The concept was enabling some States to prosecute serious crimes committed in Syria and delivered justice to some of the victims of murder, torture, rape, and other inhumane acts committed during the armed conflict in that country. Thus, universal jurisdiction enables States to exercise their criminal jurisdiction over a crime irrespective of the nationality of its perpetrator and its victim or of the place where the crime has been committed. However, there are still differences among States on certain aspects of the exercise of universal jurisdiction, and he urged the issue be referred to the International Law Commission. “It is time for this Committee to show its commitment to strengthening its interaction with the ILC [Commission],” he stressed, adding that after the Commission has concluded its work, it will be up to the Sixth Committee, again, to discuss the outcome and consider any action deemed appropriate.
MORA FONSECA (Cuba), associating himself with the Non-Aligned Movement, said that universal jurisdiction cannot be used to disadvantage the integrity or values of various legal systems around the world, nor to weaken respect for national jurisdiction. It should also not be used selectively with political purposes in mind. Its application by national courts should be based on full respect for the principles of sovereign equality, political independence and non-interference in the internal affairs. He further expressed deep-rooted concern over the undue use of the universal jurisdiction in unilateral, selective and politically motivated exercise of jurisdiction of the courts of developed countries against nationals or legal persons of developing countries. He therefore condemned the enactment, at the national level, of laws of this nature against other States, which has grave effects on international relations. He noted that Cuba’s legal system has substantive criminal laws that provide for the possibility of criminal prosecution and punishment of Cuban citizens, foreign citizens or Stateless persons if the act committed is a crime against humanity, human dignity or collective health, or if the crime committed can be tried under international treaties.
ALAN EBUN GEORGE (Sierra Leone), aligning himself with the statement to be delivered by the African Group, expressed concern that this agenda item has not progressed substantially in the Sixth Committee after more than a decade of debates, despite annual reports by the Secretary-General confirming increased State practice based on the universality principle. Progress can be made, however, if the Sixth Committee mandates the Secretary-General to carry out a thorough study of the 12 reports on this topic to date. This would facilitate the identification of specific topics on which broad agreement exists; those issues where there are gaps in agreement; and general trends in the debate thus far. Expressing regret that a similar proposal, advanced by his country and Rwanda, was not agreed to in the seventy-sixth session, he expressed hope that such agreement will be reached this session. He also urged that the African Group’s primary concern – the abuse or misuse of the principle of universal jurisdiction – be fully reflected in the operative part of the resolution on this agenda item.
PETRA LANGERHOLC (Slovenia), aligning herself with the European Union, said that, following the aggression on Ukraine, the principle of universal jurisdiction has been invoked by an unprecedented number of States in the fight against impunity for the most heinous international crimes. In this regard, she urged all States to assist courts at the national, as well as international level, in prosecuting serious international crimes through cooperation. In order to ensure an effective application of universal jurisdiction, gaps in national laws should be filled by establishing effective multilateral mechanisms for judicial cooperation and mutual assistance in criminal matters. The international community must step together as one to promote the cause of justice by acting against individuals who may not otherwise be held accountable, particularly in case of crimes that shock the conscience of all humanity. She highlighted the initiative for the adoption of a new convention on mutual legal assistance and cooperation between States with the aim of improving the effectiveness of the investigation and prosecution of core crimes at the national level. A diplomatic conference will take place in Slovenia in May 2023, she added.
NAIF ABDULKARIM A. ALZAHRANI (Saudi Arabia), associating himself with the Non-Aligned Movement, said that the objective of the principle of universal jurisdiction – fighting impunity – remains valid, and that all countries should cooperate to achieve and apply justice. However, the norms and rules applicable to judicial proceedings under this principle must be clear, as should be the mechanism used to identify the crimes whose perpetrators can be brought to justice through the exercise of universal jurisdiction. These should also be consistent with the principles of the Charter of the United Nations and International law, particularly those of sovereign equality and immunity of State officials. A violation of these principles will not lead to justice, he said, condemning any attempt by States to violate the same in their national legislation. He added that, in considering this topic, the Sixth Committee should examine State practice.
ZACHARIE SERGE RAOUL NYANID (Cameroon), said that the principle of universal jurisdiction remains controversial in its current framing and noted that it should be evoked and invoked with caution. He reiterated unreserved support for the fight against impunity, but also expressed concern over the use of universal jurisdiction by some States to judge any serious crime committed abroad, regardless of the location and the nationality of the perpetrator. He also pointed to the application of the universal jurisdiction to representatives of States with immunities, urging that the principle not be misused in this regard. He underscored that he would not imagine questioning ratione personae of the highest officials of the State during their term, referring to the “stability of the State” and resorting to the use of diplomatic protection. He further noted that his country paid particular attention to the behaviour of its nationals, having enshrined in its criminal procedural code provisions that provide jurisdiction for national courts to hear crimes committed by them.
JONATHAN SAMUEL HOLLIS (United Kingdom), noting the continued lack of international consensus about the nature, scope and application of universal jurisdiction, spotlighted the differences between the principle and jurisdiction of international judicial mechanisms along with other categories of extra-territorial jurisdiction. He also pointed out significant overlaps between universal jurisdiction and “extradite or prosecute” regimes and noted the practical constraints on delivering justice through universal jurisdiction. Spotlighting the primacy of the territorial approach to jurisdiction, he underscored that there is only a small number of offences for which the courts of his country can exercise universal jurisdiction in absence of an apparent link between the crime and the country. Questions as to whether universal jurisdiction should apply to a particular crime should be approached collaboratively between States through treaties, with a focus on what would effectively contribute to addressing the crimes in question. He, thus, spotlighted merit in reaching shared views in respect of the definitional issues.
ALEXANDER S. PROSKURYAKOV (Russian Federation) stressed that the Sixth Committee must take a cautious approach to the principle of universal jurisdiction until precise, universally recognized consensus is established on its scope and application. Noting that the Secretary-General’s report on the topic confirms the absence of a single understanding of this principle among States, he said that State exercise of universal jurisdiction must correspond to obligations under international law, particularly the principle of immunity of senior officials. States and the international community have other, less-contentious instruments to fight impunity, and – pointing out that States have repeatedly voiced the same positions – he said that it will be difficult to make progress in the Committee. He went on to recall the circumstances under which this issue ended up on the Committee’s agenda following a request by the African Group, noting that, under the pretext of exercising universal jurisdiction, Western courts ignored the immunity of State officials. The Committee’s task, therefore, is not to strengthen the principle but, rather, arrive at a consensus approach to prevent its abuse for political purposes.
Mr. MEDAH (Burkina Faso) said that the principle of universal jurisdiction is one of the most appropriate ways to combat impunity for violent crimes that hinder building societies and achieving sustainable development. As an exception to the principle of territoriality, universal jurisdiction is the “last defence against barbarity”, he stressed, noting that his country is committed to this principle through its criminal and criminal-procedure codes. National courts have jurisdiction over international crimes such as war crimes, genocide and crimes against humanity, regardless of the venue or perpetrators. Observing that the principle of universal jurisdiction remains dependent on national laws and regulations, he urged a focused discussion on how to harmonize cooperation between States to combat impunity more effectively. He added that, to find consensus on the scope and application of the principle, its exercise must be limited to serious crimes such as terrorism, torture and human trafficking, and it should only be applied when the State with primary jurisdiction is unwilling or unable to prosecute perpetrators.
PAHALA RALLAGE SANATHANA SUGEESHWARA GUNARATNA (Sri Lanka) said that if national courts exercise universal jurisdiction appropriately, they vindicate not only their own interests and values but also those of the international community. He noted that in the wake of mass atrocities and of oppressive rule, national judicial systems have often been unable or unwilling to prosecute serious crimes, leading to establishment of international criminal tribunals. However, the primary burden of prosecuting the alleged perpetrators will continue to reside with national legal systems. An imprudent or untimely exercise of universal jurisdiction could disrupt the quest for peace and national reconciliation in nations struggling to recover from violent conflict or political oppression. Spotlighting the report of the African Union and the European Union on this matter, he underscored that this principle remains an important means to reduce inequality of international justice, particularly where officials from more powerful States or those protected by powerful States are less vulnerable to justice than those with weaker Governments.
KAJAL BHAT (India), associating herself with the Non-Aligned Movement, said that, under universal jurisdiction, a State can claim jurisdiction over an offence irrespective of the place of its commission or nationality of the offender or victim, and thus without any link whatsoever between that State and the offence or the offender. Under general international law, piracy on the high seas is the only crime in which claims of universal jurisdiction is undisputed; a pirate is considered as a hostishumani generis — an enemy of all mankind. With certain serious crimes like genocide, war crimes, crimes against humanity, apartheid and torture, international conventions have provided a basis for some sort of universal jurisdiction which is applicable between the States parties to those treaties. The question is whether this convention-based jurisdiction could be converted into a customary rule applicable to all the States whether or not they are party to those conventions. “We do not think so,” she said. Citing the President of the International Court of Justice, Judge Gilbert Guillaume in the case between the Democratic Republic of Congo and Belgium, she quoted: “International law does not accept universal jurisdiction; still less does it accept universal jurisdiction in absentia.”
KYAW MOE TUN (Myanmar), while expressing concern over the potential abuse of the principle of universal jurisdiction, stressed that the international community must clarify its scope and application on a consensual basis. Failure to do so would undermine not only the principles of the Charter of the United Nations, but also those of international law. Detailing the suffering of the people of Myanmar at the hands of the military junta, he stressed that establishing the principle of universal jurisdiction at the international level for certain grave crimes would be highly preferable and complementary. The international community must practice this principle in good faith and apply it wherever States are unable or unwilling to exercise proper law through existing jurisdiction. It is especially needed, he pointed out, when there is a lack of decisive action from relevant, established international mechanisms – such as the Security Council – to save innocent people from atrocities. He went on to welcome ongoing efforts to bring Myanmar’s unwanted and unlawful military leadership – perpetrators of war crimes and crimes against humanity – to justice through the application of universal jurisdiction.
Ms. MOTSEPE (South Africa) welcomed the broad consensus, reflected in the informal working paper, around the criteria for exercising universal jurisdiction – namely, that the principle should not be applied in a politically motivated, arbitrary or selective way. The primary responsibility for the investigation and prosecution of international crimes lies with the State where such crimes were committed or with the State of nationality, and the principle of universal jurisdiction applies only when such States are unwilling or unable to prosecute. She pointed out, however, that international crimes often “live up to their name” by presenting cross-border challenges, such as difficulty in accessing witnesses and evidence. Thus, there is a need for frameworks to enable States to render mutual legal assistance to one another in the investigation and prosecution of these crimes. She added that, with this important practical consideration in mind, her country supported the initiative on negotiating and adopting a draft convention relating to international cooperation and prosecution for genocide, crimes against humanity and war crimes.
ABDOU NDOYE (Senegal) said that his country integrated the principle of universal jurisdiction into its domestic legal system, granting its courts competency to hear war crimes, crimes against humanity and the crimes of genocide, as well as terrorist acts. He asserted that the legitimacy and credibility of universal jurisdiction depends highly on its application in accordance with fundamental principles of complementarity. Therefore, the principle can only be invoked by an unequivocal refusal of competent national authorities to investigate alleged criminal acts. Recognizing existing obstacles to the effective application of the principle of universal jurisdiction and given the development of transnational organized crime, universal jurisdiction could be a very effective way to combat impunity. He further stressed the importance of continuing the debate on the need to adjust the modalities for exercising universal jurisdiction in order to avoid any political difficulties that its implementation engenders.
MEKONNEN DEMISSIE (Ethiopia) noted that criminal law of his country has long adopted the principle of universal jurisdiction for international crimes prohibited by respective treaties. As stipulated in the criminal law, when crimes are committed outside of the country, universal jurisdiction applies if the crime was committed against international law or when it constitutes an international crime specified in national legislation, international treaty or convention to which his country adheres. Moreover, the national criminal law applies to any person who committed a crime outside of the country against an Ethiopian national or towards any Ethiopian national, given that a criminal was not persecuted in the country where the crime had been committed. He noted that the universal jurisdiction shall be applied as a measure of last resort and in a way that complements the inherent mandate of domestic courts. He underscored that the primary responsibility for prosecuting such crimes rests with the States where the crime has been committed.
JHON GUERRA SANSONETTI (Venezuela), associating himself with the Non-Aligned Movement, said that, while Venezuela was in favour of combating impunity, the principles of the Charter of the United Nations – particularly those of sovereign equality and non-interference – must prevail in any judicial proceeding. Universal jurisdiction should be exercised by recognized international courts, must continue to be supplementary in nature and should only be applied to avoid impunity in cases where national courts cannot or will not exercise jurisdiction. Recalling that the undue use of the principle against African officials led the African Group to request the inclusion of this agenda item in 2009, he spotlighted the increasing trend of establishing independent fact-finding mechanisms. This is an arbitrary, illegitimate exercise of universal jurisdiction, and represents the “continuation of a regime-change strategy through the instrumentalization of justice as a weapon of aggression”, he stressed. Such an approach will continue to cause chaos, suffering and destruction around the world and jeopardize the rule of law at the international level. Other, less-controversial tools to combat impunity for serious international crimes exist, he pointed out.
Mr. ALAJEELI (United Arab Emirates), highlighting the need to account for differences between legal systems while discussing this principle, said that universal jurisdiction must only be invoked in cases of specific, grave crimes that require proceedings that fall outside of the usual scope of national laws. The principle is complementary to the jurisdiction of States where such crimes are committed, and it does not enable departure from the principles of the Charter of the United Nations or the undermining of State sovereignty. Further, it must not be used arbitrarily or politically against other countries or Heads of State and Government. He added that, for its part, the United Arab Emirates will continue to participate in discussions on this topic in the Sixth Committee, with an aim to elucidate the points of contention and consensus across legal systems in this area.
CHOI TAEEUN (Republic of Korea), while noting that the principle of universal jurisdiction is an important, effective tool in the fight against impunity, emphasized that it must be exercised in good faith and that it should not be used to advance political goals. He pointed out that his country has incorporated the principle of universal jurisdiction into domestic legislation by allowing the prosecution of certain crimes committed by foreign nationals that did not take place on its territory. This includes legislation extending criminal liability for human trafficking; implementing the Rome Statute of the International Criminal Court, as well as General Assembly and Security Council resolutions relating to terrorism; and providing punishment for the damage of ships and sea structures. He added that his country continues to explore topics related to the practical application of universal jurisdiction, and will contribute to further discussions on its nature, scope and limits.
NYNKE DIEUWKE STAAL (Netherlands) said that in her country the International Crimes Act of 2003 was the most relevant piece of legislation concerning universal jurisdiction, as it codifies crimes against humanity in the national law. However, the act does not provide full unlimited jurisdiction over international crimes or disabling national judicial authorities from opening an investigation into alleged international crimes committed abroad by foreigners against non-nationals if the suspect is not present in the country. Moreover, investigations into a general situation are not possible, unless the victim and/or the alleged perpetrator are Dutch nationals. She underscored that local authorities are therefore only competent to investigate universal jurisdiction cases if the suspect is present on the territory of the State during the investigation. In this regard, double criminality does not serve as a prerequisite for the investigation or prosecution of international crimes.