Debate Reveals Rift in Speakers’ Understanding of Universal Jurisdiction Scope, Application, as Sixth Committee Takes Up Report on Principle
As the Sixth Committee (Legal) commenced its consideration of the scope and application of the principle of universal jurisdiction today, the debate revealed a rift in speakers’ understanding of its interaction with national legal frameworks and the possible risk that the perpetrators of the most heinous crimes might escape justice.
Before the Committee was the report of the Secretary-General, “The scope and application of the principle of universal jurisdiction” (document A/78/130) which contains information and observations received from Member States and relevant observers.
With many situations of massive and systematic violations of human rights around the world, the delegate of Costa Rica underscored that the application of this principle is more necessary than ever. “At stake is the imperative of justice for the victims of the most heinous crimes and the commitment of the international community to fight impunity,” he said.
In that regard, ensuring accountability for such crimes is not only a deterrent, but also a key element of reconciliation processes, Ireland’s delegate pointed out. Expressing concern that, with too much technical discussion, the Sixth Committee might lose sight of practical and concrete aspects, he recalled that universal jurisdiction allows a State to assert jurisdiction over an offence irrespective of where it was committed, the nationality of the accused and the victim or any other link with the prosecuting State.
Nonetheless, stressed Canada’s representative, also speaking for Australia and New Zealand, the primary responsibility for investigating and prosecuting serious international crimes rests with the State in the territory of which the crime was alleged to have occurred, or the State of nationality of the accused. Given their access to evidence, witnesses and victims, they are best placed to achieve justice.
However, the delegate of Lithuania, speaking also for Estonia and Latvia, pointed out: “…if these States are unwilling or unable to bring perpetrators of crimes to account, other States that have no direct connection to the crime should fill the gap on the basis of universal jurisdiction.” In addition, States should adopt national legislation to support universal jurisdiction for such crimes, he stressed.
Still, while Argentina’s justice has, on several occasions, closed the gap by exercising this principle in cases of most serious international crimes, that country’s representative warned that, if unlimited in nature, universal jurisdiction would give rise to conflicts of jurisdictions among States and could lead to possible abuses of justice as well as give rise to politically motivated prosecutions.
The delegate of Uganda, speaking for the African Group, recalled that, due to the principle’s uncertain scope and application, as well as its abuse, the Group requested in 2009 that the topic be included on the Sixth Committee’s agenda. Observing the lack of progress in addressing its misuse and abuse, he voiced concern that judges in non-African States apply it to Africans without the consent of their States and outside of the international cooperation framework. The Sixth Committee must address this inclination.
“Universal jurisdiction”, noted Sri Lanka’s representative, “holds out the promise of greater justice, but the jurisprudence of universal jurisdiction is disparate, disjointed and poorly understood.” Agreeing that this weapon against impunity is potentially beset by incoherence, confusion and, at times, uneven justice, he called for clearer and sounder standards to be crafted to guide national courts, thus helping to close the gap in law enforcement that has favoured perpetrators of serious crimes under international law.
Adding to that, Liechtenstein’s delegate emphasized: “The more national judiciaries carry out their responsibilities in line with the principle of universal jurisdiction, the less the burden on our international justice system.” She welcomed the encouraging developments on the principle and, in this regard, commended German courts in championing the principle by prosecuting atrocity crimes committed in Syria.
In that regard, the delegate of Germany reported on several judgments delivered on crimes committed against the Yazidi community, also noting that last year, the Federal Court of Justice confirmed the first ever conviction of a Da’esh member and the country’s prosecutors are running over 100 investigations into international crimes.
Taking a different stance, the delegate of Belarus emphasized that the obligation to apply universal jurisdiction can only arise on the basis of a universal international treaty, adding that recently the world witnessed increasing measures to ensure its broadest possible application. This is at odds with the fundamental principle of international law — the principle of sovereign equality of States.
Recognizing that over the past years, progress towards a common understanding of universal jurisdiction’s scope has halted, the delegate of Czech Republic, speaking also for Austria and Slovakia, suggested that the International Law Commission provide a legal analysis which would iron out differences on the principle’s definition, scope and application. “This analysis would be without prejudice to the final decision on the topic,” he stressed, adding that it would bring legal clarity and certainty.
At the outset of the meeting, Dennis Francis (Trinidad and Tobago), President of the General Assembly, told the Sixth Committee that its work is central to upholding peace, justice and the rule of law, as the international community strives to ensure that the legal framework remains robust and adaptable to the evolving needs of the temporarily beleaguered multilateral system. "In view of the unprecedented daunting challenges before us”, he emphasized that the Committee’s role in producing stability, clarity and predictability is more critical than ever.
The Sixth Committee will next meet at 10 a.m. on Monday, 16 October, to conclude its debate on the scope and application of the principle of universal jurisdiction and begin consideration of the report of the United Nations Commission on International Trade Law on the work of its fifty-sixth session, to be followed by discussing new requests for observer status.
President of General Assembly
DENNIS FRANCIS (Trinidad and Tobago), President of the General Assembly, underscored that the work of the Sixth Committee (Legal) is central to upholding peace, justice and the rule of law, as the international community strives to ensure that the legal framework remains robust and adaptable to the evolving needs of the temporarily beleaguered multilateral system. Detailing crises around the world, he stressed that “in view of the unprecedented daunting challenges before us”, the Committee’s role in producing stability, clarity and predictability is more critical than ever.
More so, with the devastating impact of climate change, the Committee’s deliberations on the protection of persons in the event of disasters and other related issues are particularly important, he pointed out. Related to that is the existential threat posed by sea-level rise. While the International Law Commission is still considering that topic, it is incumbent upon the Sixth Committee to also continue discussions on the legal implications of this phenomenon, he noted.
“We must ensure that the General Assembly and its Main Committees, including the Sixth Committee, create adequate space to ponder over and address these vexing challenges, including the implications for international law,” he emphasized. Against this backdrop, he announced the convening of an informal plenary meeting with States and independent experts on 3 November.
He went on to say that, across the Sixth Committee’s broad programme of work, States should uphold the Charter of the United Nations and ensure respect for international law. Thus, the Committee should establish conditions under which justice and adherence to international obligations, arising from treaties and other sources of international law, are maintained and honoured. Also calling on delegations to engage in consensus-building, he underscored that such a practice is especially important as it reflects the principle of sovereign equality, with all perspectives heard and accommodated to the extent possible.
Scope and Application of Universal Jurisdiction
BAHRAM HEIDARI (Iran), speaking for the Non-Aligned Movement, said that the principles enshrined in the United Nations Charter — particularly sovereign equality and non-interference in internal affairs — should be strictly observed during any judicial proceedings, including the exercise of universal jurisdiction. Further, the immunity of State officials — deeply rooted in the Charter and firmly established in international law — should be fully respected. Although universal jurisdiction provides a tool for the prosecution of perpetrators of certain serious crimes, questions and concerns remain. On that, he stressed that the invocation of universal jurisdiction against some of the Movement’s member States — in violation of the principle of immunity of State officials before the courts of other States — has generated significant concerns over its legal and political implications. Further clarification is needed to prevent any misapplication or improper use of universal jurisdiction, he said.
He went on to reiterate that universal jurisdiction shall not replace other jurisdictional bases — namely, territoriality and nationality — and must only be asserted in the context of the most serious crimes. Moreover, it cannot be exercised in isolation or to the exclusion of other relevant rules and principles of international law — including State sovereignty, territorial integrity and the immunity of State officials from foreign criminal jurisdiction. While noting that the Movement’s member States remain open to sharing information and practices with other countries on this topic, he said that it is premature — at this stage of discussion — to request the International Law Commission to undertake a study of the principle. The legitimacy and credibility of the use of universal jurisdiction, he added, “would be ensured by its responsible and judicious application consistent with international law”.
MARVIN IKONDERE (Uganda), speaking for the African Group and associating himself with the Non-Aligned Movement, recalled that the abuse of universal jurisdiction in relation to African officials caused the African Group to request in February 2009 the inclusion of an additional item on this issue on the agenda of the General Assembly’s sixty-third session. The African Union — although it respects the principle of universal jurisdiction — was concerned about its uncertain scope and application, as well as its abuse. To that end, in 2009, a resolution “The scope and application of the principle of universal jurisdiction” was introduced and this topic has been discussed in the Sixth Committee since then. Observing the lack of progress in addressing the misuse and abuse of this principle, he noted that its scope remains uncertain. He also reiterated his concern that the applicability of universal jurisdiction pertains to the indictments by individual judges in non-African States, which focus on Heads of State and other senior officials that enjoy immunity.
Further, he expressed support for the revision of the Secretary-General's previous reports to identify convergences and gaps in the States’ practices. The first step will be for the Sixth Committee to include language reflecting the diversity of views in relation to the abuse and misuse of universal jurisdiction, he said, noting that the Committee must address the inclination of non-African States to apply it on Africans outside of the multilateral processes without the consent of African States, and outside of the safeguards of cooperation within the international system. More so, universal jurisdiction should be complementary to the national jurisdiction of the country concerned, while agreed norms must be established regarding its scope and application, he asserted.
HAYLEY-ANN MARK (Saint Vincent and the Grenadines), speaking on behalf of the Community of Latin American and Caribbean States (CELAC), noted the progress made by the Working Group in its years of work, moving from a very concise roadmap to a combined set of elements on each of the three pillars, and now to a full set of policy indicators covering the three pillars. In this regard, she recalled that universal jurisdiction is an exceptional tool of international law, for the exercise of criminal jurisdiction, which seeks to fight impunity and strengthen justice. International law defines its scope of application and enables States to exercise it. She further welcomed that, after Committee discussions and information provided by States in their reports, several delegations have reiterated that universal jurisdiction should not be confused with the exercise of international criminal jurisdiction, or with the obligation to extradite or prosecute.
An important group of States has clearly indicated the different legal nature of such jurisdictions, notwithstanding that they complement efforts in the fight against impunity, she continued, adding that this reflects the Community’s member States’ understanding on the subject, which is in line with the relevant applicable laws and the diverse set of obligations of each State under international law, as well as with the observance of the rule of law at the national and international levels. Welcoming the Commission’s decision to include this item on its long-term programme of work, she said that a Commission study of this topic would likely help achieve more progress in clarifying certain legal aspects of the principle under international law. This would be particularly useful as the Commission is currently examining several issues linked to the universal jurisdiction principle.
SIMONA POPAN, representative of the European Union, in its capacity as observer, said that the bloc and its member States support all efforts towards strengthening the current international legal framework on the prevention, prosecution and adjudication of the most serious crimes under international law. There cannot be impunity for these criminals anywhere in the world, she said, adding that universal jurisdiction is an important tool to promote international accountability. While the primary responsibility to investigate a crime lies with the State with a direct link to the crime, universal jurisdiction permits a State to exercise jurisdiction over an individual act despite the absence of any specific link of nationality or territoriality between that State and the offence.
Adding that universal jurisdiction ought to be governed by transparent rules, she also reiterated that preventive efforts should be at the centre of discussions on the scope and application of the principle of universal jurisdiction. To that end, the Union has set up the Genocide Network, a European network of focal points for the investigation and prosecution of these crimes that supports national authorities in investigating and prosecuting genocide, war crimes and crimes against humanity and ensuring that persons responsible for core international crimes face justice.
RYTIS PAULAUSKAS (Lithuania), speaking also for Estonia and Latvia and aligning himself with the European Union, stressed that the primary responsibility to prosecute perpetrators rests within those States on whose territory the crimes were committed. “However, if these States are unwilling or unable to bring perpetrators of crimes to account, other States that have no direct connection to the crime should fill the gap on the basis of universal jurisdiction,” he emphasized, adding that universal jurisdiction is important to ensure accountability for the worst crimes. He encouraged States to adopt national legislation to support universal jurisdiction for such crimes, regardless of the citizenship and place of residence of the perpetrator or the territory. “The Baltic States have adopted such national legislation. Moreover, we have already applied universal jurisdiction envisaged in it to open an investigation on crimes that have allegedly been committed in and against Ukraine,” he said.
Citing reports of heinous crimes being perpetrated in Ukraine as a consequence of the Russian aggression, he said that these crimes, including the crime of aggression, will be investigated and, after due process before an independent court of law, punished by the International Criminal Court and a special international tribunal for the crime of aggression against Ukraine. In the meantime, the exercise of universal jurisdiction by competent organs of individual States can contribute to delivering justice to victims, closing the impunity gap and preventing further commitment of crimes, he said, adding: “We believe that referring the topic of universal jurisdiction to the International Law Commission would bolster progress in our discussions and advance the proper application of this principle.”
ALEXANDER AGNELLO (Canada), also speaking for Australia and New Zealand, underscored that, as a fundamental principle of international law, universal jurisdiction empowers States to prosecute, on behalf of the international community, those responsible for the most serious international crimes. Those crimes are well established in customary international law and include piracy, genocide, war crimes, crimes against humanity, slavery and torture. It is in the interests of the international community as well as victims and survivors, to ensure that such crimes are prevented and their perpetrators brought to justice. Universal jurisdiction provides an essential tool in that regard, applying regardless of where the conduct occurs, the nationality of the perpetrator or victim(s), or any other link between the crime and the prosecuting State. However, it must be exercised in good faith and in line with the rule of law and fair trial, free from political motivation, discrimination and arbitrary application, he said.
More so, universal jurisdiction must operate in accordance with laws on diplomatic relations and privileges and immunities, he continued. Yet, the primary responsibility for investigating and prosecuting serious international crimes rests with the State in the territory of which the crime was alleged to have occurred, or the State of nationality of the accused. Given their access to evidence, witnesses and victims, they are best placed to achieve justice. Universal jurisdiction is an important complementary mechanism that can fill a jurisdictional gap when the territorial State is unwilling or unable to exercise jurisdiction. As Canada, New Zealand and Australia have incorporated universal jurisdiction into their domestic laws, he encouraged other States to follow suit. Spotlighting the recent judgments of Austrian courts against Syrian nationals for terrorism-related acts committed abroad, he noted that this testifies of the importance of universal jurisdiction to fight impunity where the International Criminal Court does not have jurisdiction.
JULIA FIELDING (Sweden), also speaking for Denmark, Finland, Iceland and Norway, cautioned against developing an exhaustive list of crimes to which universal jurisdiction would apply. Rather, dialogue should focus on ensuring that no perpetrators of the most serious international crimes go unpunished, as accountability for such crimes is a fundamental part of international law. She pointed out that, while States bear the primary responsibility to investigate and prosecute crimes committed in their jurisdictions, “such crimes continue to be committed with impunity”. When States do not take legal action, the exercise of universal jurisdiction by other States can serve as an important tool for ensuring accountability, providing redress to victims and limiting impunity.
She went on to say that the exercise of universal jurisdiction contributes to implementing the principle of complementarity under the Rome Statute of the International Criminal Court. When States concerned do not take legal action — or are either unable or unwilling to prosecute — the Court may provide an avenue for prosecution. She also noted that, where the Court does not have jurisdiction, the exercise of universal jurisdiction can help close the gap in the international legal order by allowing third States to prosecute the most serious international crimes. Reporting that the countries for whom she speaks have incorporated universal jurisdiction into their domestic laws, she encouraged other States to do the same so that perpetrators cannot seek haven anywhere in the world.
MAREK ZUKAL (Czech Republic), also speaking for Austria and Slovakia, said that universal jurisdiction is a tool that can help deliver justice to victims, prevent further crimes and close the impunity gaps in keeping with the guarantees of a fair trial, due process and other applicable norms of international law. Recognizing that over the past years the discussions have stalled and the progress towards a common understanding of universal jurisdiction’s scope has halted, he proposed “two avenues” to reinvigorate the deliberations, first by taking stock of views and submissions presented so far on the topic and, second by requesting the International Law Commission to provide the Sixth Committee with a legal analysis of the principle.
He also emphasized that the Secretary-General’s report should be published well in advance before the Committee’s next year session to ensure meaningful discussions, also noting that the Commission’s legal analysis would iron out differences on the definition, scope and application of universal jurisdiction. “This analysis would be without prejudice to the final decision on the topic,” he stressed, emphasizing that it could also bring legal clarity and certainty. In this context, he invited the Commission to include the topic of universal jurisdiction in its short-term programme of work.
SURIYA CHINDAWONGSE (Thailand) noted that universal jurisdiction is a generally accepted principle of international law, though States differ on its definition, scope, application and limits. Commending the Secretary-General’s report, he said that Thailand will submit an information paper on the jurisdiction of Thai courts regarding cases involving certain offences committed outside its territory that have no link to Thailand, the Government or Thai nationals. This includes Section 7 of the Thai Penal Code, which provides the Thai Court with extraterritorial jurisdiction over acts of terrorism, counterfeiting, sex trafficking and piracy. Such crimes have been widely accepted internationally as heinous crimes that all States will need to suppress regardless of where, and by whom, the crimes were committed. Universal jurisdiction must be defined and complied with according to the Charter’s principles and other international principles, he emphasized while underscoring that State sovereignty is important. In addition, universal jurisdiction should be used as a complementary option to other principles of jurisdiction, he said.
MERHABA HASLER (Liechtenstein) welcomed the encouraging developments being made on the principle. “German courts, in particular, have been a champion of universal jurisdiction,” she said, commending their work pursuing atrocity cases committed in Syria, as well as the work of the International, Impartial and Independent Mechanism for Syria and the efforts of other similar United Nations mandated accountability mechanisms. Citing discussions on pooled universal jurisdiction, wherein national courts collaborate in addressing the most serious crimes under international law, she called upon all Member States that have not yet done so to join the Rome Statute. “The more national judiciaries carry out their responsibilities in line with the principle of universal jurisdiction, the less the burden on our international justice system,” she pointed out. She also called for the use of all justice tools to end impunity for the core international crimes, including the crime of aggression, genocide, war crimes and crimes against humanity.
PEDRO MUNIZ PINTO SLOBODA (Brazil), associating himself with CELAC, noted that the Secretary-General’s report confirms that State practice on that matter is not uniform. States with the closest links to the crime always have jurisdictional priority to hold perpetrators accountable, which should be considered when drafting clauses on the obligation to prosecute or extradite. Before invoking universal jurisdiction, judicial authorities should confirm the absence of ongoing investigations in the States with direct relation to the crime, suspects or victims. The exercise of State jurisdiction based solely on the universal principle should be limited to serious crimes prescribed in treaties and only by State parties. A custody State should seek the cooperation of States with primary jurisdiction and the accused should be present within the territory of the forum State. Universal jurisdiction should always respect the basic principles of criminal law, sovereign equality among States and non-intervention in internal affairs, he noted.
ELIZABETH MARYANNE GROSSO (United States), noting the importance of this topic and its long history as part of international law relating to piracy, said that basic questions remain about how jurisdiction should be exercised in relation to universal crimes. “We remain interested,” she said, in further exploring issues related to the practical application of universal jurisdiction, noting that her delegation will continue analysing the contributions of other States and organizations. In this context, she spotlighted the recent amendment of her country’s War Crimes Act, which expanded jurisdiction over the offences listed in the Act to an offender who is present in the United States — regardless of the nationality of the victim or offender. She added that her delegation welcomes the Committee’s consideration of this issue and the input of more States regarding their own practices.
MICHAEL HASENAU (Germany) said that, in 2022, the German Code of Crimes against International Law came into force, allowing German authorities to prosecute genocide, crimes against humanity and war crimes in accordance with universal jurisdiction. In 2023, the Federal Ministry of Justice presented a bill on the advancement of international criminal law to close impunity gaps and strengthen victims’ rights, aiming to simplify their cumulative representation in courtrooms and providing courtroom interpretation for foreign media. Several judgments have been delivered on crimes committed against the Yazidi community, including the landmark judgement of November 2021, convicting the former Iraqi member of Da’esh for a lifelong sentence for abusing a Yazidi woman and her daughter as slaves. More so, in 2022, the Federal Court of Justice confirmed the first ever conviction of a Da’esh member. In the aftermath of the Russian Federation’s invasion of Ukraine, the Federal Prosecutor General initiated an investigation into war crimes, later extended to crimes against humanity, he reported, spotlighting that his country’s prosecutors are running over 100 investigations into international crimes.
MELINDA VITTAY (Hungary), commending the Secretary-General’s report and noting that her delegation provided comments to that report, observed that there is a constant and steady evolving judicial practice regarding the application of the principle. This growing practice gives States the opportunity to observe the use of safeguards when applying universal jurisdiction, she said, adding that the principle must always come into play as a last resort. In those cases, carefully crafted legal restraints must be observed. She also emphasized that universal jurisdiction must only come into play in the case of the most heinous international crimes, where the territorial State is unable or unwilling to prosecute. As an additional national safeguard in Hungary, criminal proceedings, on the basis of the principle, can only be initiated by the order of the Prosecutor General. This designation ensures that it is the highest law enforcement official with the greatest expertise who meticulously reviews every potential case. A failure to obtain an order from the Prosecutor General qualifies as a grave procedural error and entails dismissal of the case.
PAVEL EVSEENKO (Belarus) said that his country has always been in favour of the need to punish impunity and ensure the inevitability of punishment for crimes committed. However, he stressed that universal jurisdiction can only apply to certain categories of crimes, in relation to the prosecution for which there are general rules of international law arising from universal international treaties and customary international law. A broad interpretation of universal jurisdiction by extending it to any crimes will be at odds with the fundamental principle of international law — the principle of sovereign equality of States. He spotlighted the shortcomings caused by the unreasonable use of universal jurisdiction for political purposes and cited the immunities of officials. “The international legal obligation to try on the territory of a given State those guilty of committing international crime can only arise on the basis of a universal international treaty,” he said, adding that recently there were increasing measures seen to ensure the broadest possible application of the principle.
YARDEN RUBINSHTEIN (Israel) expressed regret that she cannot address the topic without discussing the incomprehensible horrific events of the past few days, which are still ongoing. The immoral, cruel, barbaric and murderous terrorist organization Hamas has killed 1,300 Israelis and wounded over 3,500, including civilians from many other countries. It has also taken hostage men, women, children and the elderly into Gaza. These horrific actions against the civilian population constitute grave war crimes and crimes against humanity. “The inhumane atrocities are apparent from the rubble that remains and cries out to the heavens,” she stressed. The surviving civilians shared their horror stories as to how they survived and described the cruel and barbaric massacre that took place. Those responsible must be held accountable for their actions, she said, expressing gratitude to the international community for supporting her country during this anguishing time.
MATS JACOBS (Netherlands), aligning himself with the European Union, said that universal jurisdiction is an important tool in the fight against impunity for the most serious crimes under international law. For the Netherlands, the most relevant legislation on this topic is the 2003 International Crimes Act, which allows national authorities to investigate and prosecute crimes covered by the Act when they have been committed abroad by foreign nationals. However, the Act does not provide for unlimited jurisdiction in this regard. National authorities cannot open an investigation into alleged international crimes committed abroad by foreigners against non-nationals without the suspect having been identified and present in the Netherlands. He also reported that, in addition to the Act, the national criminal code provides for the exercise of universal jurisdiction over the crime of piracy committed on the high seas. Expressing support for the Commission’s study on universal jurisdiction, he said his delegation awaits its results.
Mr. HEIDARI (Iran), associating himself with the Non-Aligned Movement, highlighted the concerns of some International Court of Justice’s judges regarding the “judicial chaos” that would likely arise if universal jurisdiction was conferred upon the courts of every State in the world to prosecute such crimes as raised in the “Arrest Warrant” — Democratic Republic of the Congo v. Belgium — case in 2000. Stressing that “universal jurisdiction in absentia is unknown to international conventional law”, he expressed concern about its selective and arbitrary application for the benefit of specific States. He said he views universal jurisdiction as a treaty-based exception in exercising Iran’s national criminal jurisdiction, noting that it shall be complementary to other bases of criminal jurisdiction and cannot be exercised in isolation or to the exclusion of other principles and rules. Pointing to the divergence of views and lack of unanimous States practices, he said that further examination of this principle by the Commission would not produce satisfactory results.
PETER MOHAN MAITHRI PIERIS (Sri Lanka) underscored that “universal jurisdiction holds out the promise of greater justice, but the jurisprudence of universal jurisdiction is disparate, disjointed and poorly understood”. Thus, this weapon against impunity is potentially beset by incoherence, confusion and, at times, uneven justice. In the wake of mass atrocities and oppressive rule, national judicial systems have often been unable or unwilling to prosecute serious crimes under international law, resulting in international criminal tribunals being established. Enhancing national courts’ proper exercise of universal jurisdiction will help close the gap in law enforcement that has favoured perpetrators of serious crimes under international law. Crafting clearer and sounder principles to guide national courts’ exercise of universal jurisdiction should help to punish, and thereby deter and prevent, these heinous crimes. Yet the international community must guard against improper exercises of criminal jurisdiction, including universal jurisdiction, as it may be used merely to harass political opponents or misuse the law, he said.
ABDOU NDOYE (Senegal), aligning himself with the African Group, said that his country believes that combatting impunity for the most heinous crimes should be at the very heart of the international community's action. “No country in the world should be a safe haven for the perpetrators of the most serious crimes,” he said, adding that the principle of universal jurisdiction is one of the most effective means for deterring and acting against the worst atrocities, in particular those defined in the Rome Statute. Since the exercise of universal jurisdiction by Member States remains vital to combat the impunity for mass atrocities, he noted that his country included this into its domestic law and Senegalese courts have jurisdiction to try war crimes, crimes against humanity and genocide, as well as acts of terrorism. He also underlined that universal jurisdiction can only be invoked when a State is unable to act or does not want to investigate extremely serious crimes committed on its territory.
PABLO ADRIÁN ARROCHA OLABUENAGA (Mexico) noted that universal jurisdiction could prevent impunity for the most serious crimes. For its exercise to be as effective as possible, it is important to further explore its subsidiary nature in relation to the jurisdiction of the territorial State or the fundamental distinctions between universal jurisdiction, on the one hand, and extraterritorial jurisdiction and the principle of aut dedere aut judicare, on the other hand. This tool must be called into play early when a State is unwilling or unable to act or when the International Criminal Court does not have jurisdiction, with national courts retaining the prerogative to exercise jurisdiction. He also called on the International Law Commission to consider the topic in its current programme of work. In addition to the technical and legal clarifications, this would demonstrate the Commission’s consideration for legitimate concerns of States and thereby strengthen its relationship with the Sixth Committee, he said.
JONATHAN SAMUEL HOLLIS (United Kingdom) noted the practical constraints on delivering justice through the exercise of universal jurisdiction. The primacy of the territorial approach to jurisdiction reflects the reality that the authorities of the State in whose territory an offence is committed are generally best placed to prosecute that offence. This, he said, “is not least because of the obvious advantages in securing the evidence and witnesses necessary for a successful prosecution”. Reporting that national courts can exercise universal jurisdiction over only a small number of offences where there is no apparent link between the crime and the United Kingdom, he said that questions as to whether such jurisdiction should apply to a particular crime are best approached collaboratively between States through treaties. Further, there is merit in reaching shared views on definitional issues and, to this end, the United Kingdom stands ready to contribute to further discussions in the Committee, he said.
MARTÍN JUAN MAINERO (Argentina) said that universal jurisdiction — if unlimited in nature — would give rise to conflicts of jurisdictions among States and could lead to possible abuses of justice. It could also give rise to politically motivated prosecutions. In this regard, he welcomed the inclusion of this item on the Commission’s long-term work programme as it should help to clarify certain pertinent aspects. He recalled that Argentina’s justice has on several occasions exercised this principle for the crimes of genocide, war crimes, crimes against humanity and serious violations of human rights, pointing out that the judicial practice is applied in a subsidiary fashion conforming to the principle of territoriality and personality. Ruling aside that there are no investigations underway in the countries involved or that the International Court of Justice is not investigating, he said his delegation is willing to examine this matter within the Sixth Committee to achieve real progress.
GUSTAVO ADOLFO RAMÍREZ BACA (Costa Rica) said this important agenda item has not achieved the progress needed, a fate of many of the Committee agenda items. “More than a progressive development of international law, it seems that we are experiencing its stagnation,” he said. With the many situations of massive and systematic violations of human rights around the world, the application of the principle of universal jurisdiction is more necessary than ever. “At stake is the imperative of justice for the victims of the most heinous crimes and the commitment of the international community to fight impunity,” he said. Impunity for the most serious crimes of international concern is unacceptable and unjustifiable, particularly as there are more mechanisms for legal cooperation to combat it. He also underlined the principle of complementarity of international criminal law, emphasizing that international justice does not displace national justice, it complements it. While each State has the primary obligation to enforce justice, when this does not happen universal jurisdiction must be activated. “Impunity eats away at the foundations of the social contract that unites us,” he warned.
PETRA LANGERHOLC (Slovenia), aligning herself with the European Union, said that universal jurisdiction is an invaluable tool for ensuring accountability, providing redress for victims and preventing impunity for crimes that concern the broader international community. “National judicial authorities have increasingly invoked universal jurisdiction to launch investigations with regard to the atrocities in several countries and have successfully exercised judicial proceedings on this basis,” she said, reminding that 68 States adopted the Ljubljana-The Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes and other International Crimes. “The convention will serve as a tool that will strengthen the common framework of substantive criminal law provisions and international cooperation tools, thus allowing its States parties to efficiently act against individuals who may not otherwise be held accountable for the most heinous crimes,” she stressed, inviting all States to join the Convention signing in The Hague on 14 and 15 February 2024.
JAMES KIRK (Ireland) noted that with too much technical discussion, the Sixth Committee can lose sight of the practical and concrete aspects of the subjects debated. Ensuring accountability for international crimes is not only a deterrent but also a key element of reconciliation processes. Universal jurisdiction allows a State to assert jurisdiction over an offence irrespective of the place where it was committed, the nationality of the accused, the nationality of the victim or any other link with the prosecuting State. While the exercise of extraterritorial jurisdiction of any type is exceptional in Ireland, its approach, framed by its Constitution, provides for its exercise in accordance with the generally accepted principles of international law. More so, as the Irish laws do not allow for trials in absentia, the exercise of any type of jurisdiction — including universal — requires the presence of the alleged perpetrator within the territory of Ireland, he said.
HUSSEIN OSSAMA HUSSEIN ABDELRHMAN ROSHDY (Egypt), associating himself with the Non-Aligned Movement and the African Group, stressed the importance of fighting impunity, enforcing international law and developing such law to “be compatible with new developments”. It is also important to abide by the principles of customary international law, particularly those with respect for State sovereignty, non-interference in internal affairs and the immunity of senior State officials. Stressing that the exercise of universal jurisdiction should be supplementary and complementary to that of national jurisdiction — not an alternative thereto — he said it should only be invoked in cases where the State in which a crime was committed is unwilling or unable to exercise its jurisdiction. He added that no timelines should be imposed for discussions on this topic in the Committee so that “consultations can culminate in the desired outcome”.
MARVIN IKONDERE (Uganda), associating himself with the African Group and the Non-Aligned Movement, said that the main responsibility for exercising universal jurisdiction lies with the State where the crime took place and underlined the need for observing national sovereignty and territorial integrity of States. This principle should be approached with sensitivity to avoid its selective application, he stressed, noting that it should be exercised in exceptional circumstances subordinate to the territorial and national jurisdictions. Domestic legal remedies must be given priority; only in the case of a State being unwilling or unable to prosecute, can another State proceed with the act. Highlighting the need for a detailed analysis and opinio juris to identify the existence of the rule of law of universal jurisdiction over a particular crime, he said that it cannot be exercised in isolation. Also stressing the importance of establishing agreed norms of the scope and application of the principle, he said that it must be exercised in good faith to avoid its misuse.
MUHAMMAD USMAN IQBAL JADOON (Pakistan) said the principal of universal jurisdiction is not a primary form of jurisdiction, but to be invoked only under exceptional circumstances. “Universal jurisdiction is supplementary to territorial and national jurisdictions, not a replacement for them,” he said. Emphasis should be placed on domestic legal remedies, which should always be the first line of response. Universal jurisdiction should only apply to severe crimes, such as war crimes, crimes against humanity and genocide, which have international repercussions. Obligations to extradite or prosecute individuals under treaty agreements should not be misconstrued, or used to imply, treaty-based universal jurisdiction. Universal jurisdiction should unquestionably be invoked, especially in instances where crimes are committed in regions subjects to foreign occupation. This is imperative considering the obligations laid out under the Fourth Geneva Convention [Geneva Convention relative to the Protection of Civilian Persons in Time of War]. The principle of universal jurisdiction should be applicable for the purpose of helping the International Court of Justice resolve disputes on the Security Council’s agenda, he added.
AMMAR MOHAMMED MAHMOUD MOHAMMED (Sudan), aligning himself with the Non-Aligned Movement and the African Group, said that national jurisdiction should be given priority over universal jurisdiction, as the latter is complementary and not an alternative to the former. “I have to stress that the State where the crime is committed and the State of nationality of the offender should have the jurisdiction over the crime and they should bear the primary responsibility for the prosecution of those offenders,” he said, urging the Committee to continue discussing this vital topic until consensus is reached. “Our common goal is upholding the rule of law all over the world and applying this principle without abuse or misuse,” he stated.
ALEXANDER S. PROSKURYAKOV (Russian Federation), emphasizing that his country is committed to combatting impunity for the most serious crimes under international law, stated: “We note the importance of the principle of universal jurisdiction.” However, the legal contours of this concept are nebulous, he pointed out, calling for the compliance with customary international law, especially related to the immunities of State officials. “Arbitrarily invoking universal jurisdiction, without even getting into the cases of outright abuses of this concept, risks complicating relations between States,” he warned, urging the Committee not to forget that States and the international community have other, less contentious tools to combat impunity for the most serious crimes under international law. “No consensus in the Committee means that we cannot yet discuss the crafting of unified standards and criteria for the application of universal jurisdiction,” he said. Also referring to the anti-Russian remarks made by some delegations, he said the “collective West” was abusing this concept.
ARIANNA CARRAL CASTELO (Cuba), associating herself with the Non-Aligned Movement and CELAC, underscored that universal jurisdiction cannot be used to undermine existing legal systems or the exercise of national jurisdiction. Further, it must not be used in a selective, political way, and application of the principle by national courts must fully respect those of sovereign equality, political independence and non-interference in the internal affairs of other States. Such principles of international law “constitute a boundary” to the use of universal jurisdiction, she said, the exercise of which must be subsidiary to national jurisdiction. She also expressed concern over the undue exercise of universal jurisdiction in a unilateral, selective and politically motivated manner by courts of developed countries against persons from developing ones. Immunity for Heads of State, diplomatic personnel and other high-level officials under international law must not be questioned or violated, she added.
ZACHARIE SERGE RAOUL NYANID (Cameroon) said that the misuse of universal jurisdiction can result in the conflict of procedures, raids on sovereignty and other “unacceptable tricks”. Drawing attention to the General Assembly’s resolution 64/117, he said that, through the language pursuant by international law, States expressed their willingness to maintain the Westphalian Order. This should help them to converge on the scope of universal jurisdiction, he stressed, also noting that this principle is akin to diplomatic protection and linked to the States’ powers and capacity to prosecute their nationals who are perpetrators of crimes, regardless of their place of residence. He expressed concern about the attempts to make a “norm out of disorder” by giving States the power to punish certain kinds of offences regardless of where they were committed, the nationality of the perpetrator or the victims. These attempts would transform the sovereignty of States and international stability into a “sacrificial lamb on the altar of international public policy”, he emphasized. To this end, he expressed reservations about some States that are legislating their laws apply to foreign citizens who committed crimes, including outside of their territory.
LI LINLIN (China) said the use of universal jurisdiction must be carefully managed within existing international treaty mechanisms to help avoid impunity. It is a comprehensive issue that encompasses legal, political and diplomatic dimensions and must be carefully managed to avoid any abuses, particularly since there is no international consensus on the scope of universal jurisdiction. So far, there is only a high degree of agreement on its use over piracy. Differences on its application over other crimes persist. “It is far from being a widely accepted rule of international law,” he added. Universal jurisdiction must be applied with a prudent attitude and respect for the principles of sovereignty. There must be a connection between the case in question and the State in question and it must be applied without prejudice. More so, the principles of the Charter must be applied, he stressed, adding universal jurisdiction should not be politicized in the name of combatting impunity.
Right of Reply
The representative of Syria, speaking in exercise of the right of reply, said that Liechtenstein’s delegate devoted her statement to “making accusations regarding a matter pertaining to the sovereignty of my country”. He urged her to listen closely to statements made by other delegations regarding the importance of non-interference in the internal affairs of other States, underscoring: “There is consensus on this in this room.” Also noting that Liechtenstein’s delegate welcomed efforts by courts in neighbouring countries, he urged her to “hone in” on courts in her own country, particularly regarding cases of “enormous fiscal fraud” relating to organized crime and corruption.