Legal Committee Delegates See Principle of Universal Law as Safeguard against Impunity for Major Crimes; Some Caution on Risk of Abuse
Legal Committee Delegates See Principle of Universal Law as Safeguard against Impunity for Major Crimes; Some Caution on Risk of Abuse
|Department of Public Information • News and Media Division • New York|
Sixty-fourth General Assembly
12th Meeting (AM)
Legal Committee Delegates See Principle of Universal Law as Safeguard
against Impunity for Major Crimes; Some Caution on Risk of Abuse
Texts Approved on Administration of Justice at United Nations
Acting without a vote, the Sixth Committee (Legal) this morning approved a resolution on the administration of justice at the United Nations while also opening debate on the scope and application of the principle of universal jurisdiction.
By the resolution, the Assembly would adopt the rules of procedure of both the United Nations Dispute Tribunal and the United Nations Appeals Tribunal, the new two-tiered formal mechanism for the administration of justice implemented earlier this year to operate alongside the more informal system centred on the Ombudsman’s Office. Also approved was a decision that would have the Assembly approve of the Legal Committee continuing to consider outstanding legal aspects of the issue in collaboration with the Fifth Committee (Administrative and Budgetary).
When discussion began on the principle of universal jurisdiction, Iran’s representative, speaking for the Non-Aligned Movement, said the decisions and judgements of the International Court of Justice and the work of the International Law Commission could be helpful for a discussion. There should be no unwarranted expansion of the crimes covered, he warned.
The representative of Costa Rica said the principle should be updated to reflect modern situations and crimes. The Geneva Conventions had been the first to obligate States to prosecute certain crimes, regardless of where they occurred. The sixtieth anniversary of those Conventions was the right time for the update.
Sudan’s representative said he was concerned about “abusive exercise” of universal jurisdiction by non-African States against African leaders. There was no consensus on scope, applicability of legal norms, rules of evidence or safeguards regarding the principle. Diplomatic immunity was a cardinal principle of customary international law. Redefinition could lead to “legal anarchy”. It could also undermine political will to sustain humane norms of international behaviour.
Noting that universal jurisdiction was an academic topic as yet and not a legal norm, China’s representative said he understood and sympathized with the legitimate concerns of African States, which should be addressed in a timely manner through discussion and exchange of ideas. That was the way to prevent abuse of the principle of universal jurisdiction, and to establish a common understanding and definition.
Stating that the principle was an important tool in upholding international law, taking action against heinous crimes and preventing impunity, Belgium’s representative cautioned that it had to be handled carefully. It must be exercised only when the State in question lacked either the political will or the judicial tools to bring to justice the perpetrators of serious crimes.
Labelling the principle a “safety net” when countries were unable to act, Kenya’s representative said the principle was distinct from the International Criminal Court’s jurisdiction, which was limited to crimes committed after July 2002. Given that the Rome Statute had not been universally ratified, he said effective implementation of universal jurisdiction was relevant.
Finland’s representative said his country’s criminal code had recognized universal jurisdiction for nearly 50 years, but it had been applied for the first time this year. An individual living in Finland had been arrested when charges of genocide against him appeared on a list published by the country of his nationality. Finnish courts were now abroad hearing witnesses in an experience that supported the decision to prosecute, and reaffirmed a role for Finland in promoting international accountability.
Also speaking today were the representatives of Australia, also for Canada and New Zealand; Tunisia, for the African Group; and Mexico, for the Rio Group.
Addressing the subject in their national capacity were speakers for Switzerland, El Salvador, Swaziland, South Africa, Democratic Republic of the Congo, Guatemala, Slovakia, Thailand, Peru, Norway, United Republic of Tanzania, France, Austria, Germany, Slovenia, Tunisia, Lebanon and Libya.
The Committee will meet again at 10 a.m. tomorrow, Wednesday, 21 October, when debate on the principle of universal jurisdiction is expected to resume.
The Sixth Committee (Legal) met today to resume its consideration of its agenda item on the administration of justice at the United Nations, and also to begin its deliberations on the scope and application of universal jurisdiction. (For background on the administration of justice, see Press Release GA/L/3361 of 5 October.)
In addition to documents previously before the Committee on the administration of justice, the Committee has before it a draft resolution (document A/C.6/64/L.2) by which the General Assembly would adopt the rules of procedure of both the United Nations Dispute Tribunal and the United Nations Appeals Tribunal. Further, by a draft decision (document A/C.6/64/L.3) on the matter, the Assembly would approve of the Committee’s continued consideration of outstanding legal aspects of the issue in collaboration with the Fifth Committee (Administrative and Budgetary).
On the issue on the scope of universal jurisdiction, the Committee had before it a Letter dated 29 June 2009 from the Permanent Representative of the United Republic of Tanzania to the United Nations addressed to the United Nations Secretary‑General (document A/63/237/Rev.1) requesting, on behalf of the Group of African States, the inclusion of an additional item on the subject of the scope of universal jurisdiction. An attached Explanatory Memorandum in Annex 1 and a draft decision to be adopted are attached.
A study requested by a conference of African Union Ministers of Justice and/or Attorneys-Generals on the application and scope of the principle of universal jurisdiction reviewed the jurisprudence of the International Court of Justice, resolutions of the General Assembly and declarations and decisions of the African Union. Although there was no dispute with the principle itself, the African Union was concerned with the question of application and its ad hoc and arbitrary application, particularly towards African leaders.
Also before the Committee is a report of the Advisory Committee on Administrative and Budgetary Questions (A/63/568) regarding the contingent liability reserve for the United Nations Postal Administration.
Report of Working Group on Administration of Justice
ESMAEIL BAHAEI HAMANEH ( Iran), Vice-Chairman of the Sixth Committee (Legal), speaking for GANESON SIVAGURUNATHAN ( Malaysia), Chairman of the Working Group, on the Administration of Justice at the United Nations, delivered an oral report on the outcome of the Working Group’s deliberation. He said the Group held four meetings between 5 and 9 October. The Presidents of the United Nations Appeals Tribunal and the Dispute Tribunal, two judges of the Dispute Tribunal and the Registrar of the Tribunals visited the Working Group to answer various questions about the work of the tribunals and respond to concerns regarding rules of procedure. The Working Group also held informal consultations on other outstanding legal issues.
The Working Group recommended to the Committee that the Committee draft a resolution recommending that the General Assembly adopt the rules of procedure on both Tribunals. It also recommended that the Committee draft a decision to continue working on the outstanding legal aspect of the issue, the text of which is contained in document A/C.6/64/L.3.
The Working Group also recommended that a letter be sent by the Chairman of the Committee to the President of the General Assembly for the attention of the Chairman of the Fifth Committee (Administrative and Budgetary). The letter would identify information and elements, which would need to be covered in reports to the United Nations Secretary-General.
Action on the Working Group on Administration of Justice
The Committee took up the draft resolution on Administration of justice at the United Nations (A/C.6/64/L.2) relating to rules of procedure. It was approved without a vote.
The Committee next took up a draft decision on Administration of justice at the United Nations (A/C.6/64/L.3) relating to legal aspects. It was also approved without a vote.
Statements on Universal Jurisdiction
ANDREW ROSE (Australia), speaking also for Canada and New Zealand, said universal jurisdiction was a long-established principle of international law that vested in States the competence to exercise criminal jurisdiction of those responsible for the most serious crimes of international concern, no matter where those crimes occurred. The principle first developed as customary international law in relation to piracy, to prevent pirates from enjoying impunity or safe haven. It had since been extended to include genocide, war crimes, crimes against humanity, slavery and torture. The nature or exceptional gravity of the crimes rendered their suppression a joint concern for the international community.
He said primary responsibility for investigating and prosecuting serious international crimes rested with the State where the crime occurred. Universal jurisdiction assisted in covering a gap in situations where the territorial State was unable to assert jurisdiction or where the alleged perpetrator had moved to a new territory. All States should incorporate grave crimes into domestic laws. They should also render each other practical assistance to promote the rule of law, and to develop the capacity of domestic criminal justice systems to prosecute grave crimes. It was the front line in the fight against impunity and should be a first priority.
On the rare occasion where a national court had asserted universal jurisdiction, he said, State practice suggested it had been due to a connecting link between the offence and the forum State, for example, the presence of the accused on the territory of the forum State. The national court should always exercise universal jurisdiction, and all forms of extraterritorial jurisdiction, in good faith and in a manner consistent with established principles. The desire to end impunity must not itself generate an abuse of principles.
ADEL BEN LAGHA (Tunisia), on behalf of the African Group, said that while he affirmed the importance of respecting international law norms, there was need for clarification on practical challenges and legal complexities of the principle of universal jurisdiction. The proper application of the principle should also be ensured when interacting with other principles of international law, such as sovereign equality of States and immunity of officials. Still another concern, he said, was that of sovereign-immunity defences, noting that recent cases had hindered proper application of immunity of officials.
The “arbitrary and ad hoc invocation” of universal jurisdiction, he said, particularly regarding African official’s immunity under international law, was of grave concern. This threatened the foundation and tenets of international law. The imprudent exercise of universal jurisdiction could impede efforts for peace and national reconciliation in nations struggling to recover from violent conflict or political oppression. The African Group therefore stressed the importance of establishing standards of prosecutorial fairness and judicial independence when applying universal jurisdiction.
ALEJANDRO ALDAY ( Mexico) speaking for the Rio Group of countries, said the Committee had the opportunity to address universal jurisdiction from a strictly legal standpoint, and within the parameters and basis provided by international law. Recalling that universal jurisdiction was an institution of international law serving to combat impunity and strengthen justice with respect to crimes that affected the international community as a whole. Therefore the State, based on existing norms of international law, had the capacity and duty to exercise universal jurisdiction when relevant.
He said, although, there was not a report or main document that allowed for specific comments on the scope and application of universal jurisdiction, there should be an avoidance of duplication of efforts with other organs and entities within the Organization, for example the International Law Commission, which was also addressing the matter. This issue could be “as wide as the Sixth Committee wishes it to be”, but at this preliminary stage, dialogue and study were required for future consideration.
ESMAEIL BAHAEI HAMANEH (Iran), speaking for the Non-Aligned Movement, said the exercise of criminal jurisdiction by national courts under the principle of universal jurisdiction over officials of other States implicated the most fundamental principle of international law, namely, the sovereignty of States. Immunity of State officials was deeply rooted in the Charter and was firmly established in international law. It should be fully respected.
He said the principle provided a tool for prosecuting the perpetrators of certain serious crimes under international treaties but there were questions and controversies concerning the principle, including with regard to the range of crimes covered and the conditions for application of the principle. The invocation of the principle of universal jurisdiction against some countries of the Non-Aligned Movement, in violation of the principle of the immunity of State officials before the courts of other States had serious legal and political implications. Further clarification was needed to prevent any misapplication or improper resort to the principle.
He said the decisions and judgements of the International Court of Justice and the work of the International Law Commission could be helpful for the discussion. Unwarranted expansion of the crimes covered by the principle jurisdiction should be guarded against. The Non-Aligned Movement would be ready to consider all options and different mechanisms to ensure proper application of the principle, to serve justice without hampering the sovereign rights of States.
PIERRE-YVES MORIER ( Switzerland) said that, in order to try to ensure that serious crimes such as genocide did not go unpunished, his country had provided its judiciary with means to exercise jurisdiction in the absence of traditional links. Universal jurisdiction was exercised only under clearly defined conditions, such as when serious crimes fell under an international agreement to which the country had committed itself. Swiss courts exercise universal jurisdiction only for crimes to the prosecution of which Switzerland had committed itself by international agreement. In addition, the suspect must be present on Swiss territory and extradition to another State with primary jurisdiction must not be envisioned. Thus, Swiss courts, he maintained, exercised universal jurisdiction only in those cases where there was a risk of serious crimes going unpunished. However, he said, since it had been shown that there were differing conceptions of the principle, consideration of the issue should be entrusted to the International Law Commission rather than by a group of experts established within the Sixth Committee; it could then be discussed by legal experts and separated from political considerations.
CLAUDIA VALENZUELA ( El Salvador) said that because universal jurisdiction was a legal item it was appropriate that it be addressed in this Committee. This principle combated impunity and addressed particular crimes that fell under international law or were a contravention of human rights. Because these crimes were covered under international law, States had the capacity and duty to apply jurisdiction, which El Salvador ensured through its national and international legislation and treaties. She said her country was committed to participating in the matter while the Committee continued to define the scope of universal jurisdiction.
JORGE URBINA (Costa Rica), recalling the sixtieth anniversary of the Geneva Conventions which had obligated States to prosecute certain crimes regardless of where they occurred, said the principle of universal jurisdiction must be updated to reflect modern situations and crimes. A report would help the debate. The questions should be sent to the International Law Commission with a request that it issue a report.
In considering the scope, he said, it should be kept in mind that peace was inseparable from justice. As a non-permanent Security Council member, Costa Rica would recommend the elaboration of a “constitutional cluster”, to address the phenomenon of grave crimes to reduce their occurrence and ensure compensation to victims. The case of Sudan and the International Criminal Court could serve as an example. He noted that his country had held a conference last year on transitional justice.
On the scope of the work, he said universal jurisdiction should be applicable to crimes such as systematic torture and forced disappearances. There should be guarantees for the accused and for ensuring witness protection. Absolute jurisdiction should not be allowed, without the accused being present. The death penalty must never be applied in connection with the exercise of universal jurisdiction. Some crimes must be immune from amnesty. A restrictive interpretation of immunities should be applied. The possibility of political manipulation should also be addressed and prevented. The consolidation of an international system of justice was the best way to end impunity.
JOEL NHLEKO ( Swaziland) stressed the importance of clarifying the principle of universal jurisdiction, saying it had “a serious identity crisis” in relationship to the International Court of Justice and the International Criminal Court, where clear legal guidelines were needed for the amount and types of crimes to be tried under it. This was a “grey area” which could be exploited –- and there must be a reprieve from it, since many countries lacked the capacity to try extra-territorial cases. Ways should be found to ultimately eliminate non bis in indem, where one person faced the same criminal charge in multiple countries and the chances of double jeopardy could only increase. In addition, since the use of some national judicial systems was “suspect”, possibly leading to “vendetta laws”, among other abuses, he said there must be a carefully considered international monitoring mechanism. Turning to immunity, he stated that no sitting State official should be a target of indictment under the principle; it was a question of sovereignty and the equality of States.
DIRE TLADI ( South Africa) said that while not questioning the lawfulness of the principle of universal jurisdiction, there were practical challenges and legal complexities that needed clarification in its application.
There was the question, for example, of crimes committed outside the territory of a State which were not linked to that State through the nationality of either the suspect or the victim, and which did not harm the country’s national interest. However, the risk of potential politicization and the selectivity of the application of the principle needed to be thoroughly investigated.
He said he wondered if the principle would allow for world leaders of powerful countries to be “hauled before foreign courts on the basis of universal jurisdiction”. There was also the question of the scope of universal jurisdiction beyond treaty law -– whether, outside of piracy which appeared settled, there were any crimes for which such jurisdiction could be exercised in the absence of a treaty.
Such questions and concerns, he said, were not avoidance of applying the principle, or seeking to obtain impunity for perpetrators of crimes in less powerful countries, but in fact an attempt to ensure the legitimacy of universal jurisdiction.
LIU ZHENMIN ( China) expressed his understanding and sympathy for the legitimate concerns of African States, and urged that these concerns be addressed in a timely manner. Only through discussion and exchanging of ideas on this issue could the abuse of “so-called” universal jurisdiction be prevented, and a common understanding and definition be established. Universal jurisdiction, he continued, was only an academic concept and did not yet constitute a legal norm.
He noted that there was, over the past few decades, an increased obligation to extradite or prosecute as a way of enhancing international cooperation. This was at times invoked as the basis of universal jurisdiction. However, he stressed, this obligation was not equivalent to universal obligation, and applicable only when States were party to a treaty obligation.
He said he was concerned that immunity from jurisdiction by Heads of States and officials should not be comprised through States exercising domestic jurisdiction. Until common understanding of universal jurisdiction and its application could be reached, States should avoid exercising the principle over other States.
ZENON MUKONGO NGAY ( Democratic Republic of the Congo) said the emergence of ad hoc tribunals and the International Criminal Court had broadened the scope of universal jurisdiction; national jurisdictional legislation had drifted somewhat in the process. Some modes of exercising universal jurisdiction had become obsolete, as ad hoc courts had assumed their jurisdictions.
The heart of the matter, he said, was the fight against impunity. International criminal justice against impunity was on the way; criminals would no longer go into easy retirement. The most equitable solution to impunity was for States to exercise national jurisdiction to ensure that perpetrators of great crimes did not get away with those crimes. However, some States had not yet worked prosecution for serious crimes into national legislation, and that complicated relations between States.
He said some order had to be introduced into the work on universal jurisdiction, which became more complicated in light of the question of immunities. What should be done to achieve a better application of the principle of universal jurisdiction? he asked. He suggested that standardization and agreement on common terms would help; the aim should be to achieve international consensus based on proposals regarding legal criteria and modalities.
ANA RODRIGUEZ ( Guatemala) said that unless the principle of universal jurisdiction was based on international justice, the ideals on which the United Nations was founded would be betrayed, especially in the area of human rights. She believed the principle, as a tool of international law, needed to be applied when conventional jurisdiction could not. There were, however, misunderstandings that required clarification; such confusion stemmed not only from States but also from judges.
Further, national courts would be the main forum in which universal jurisdiction would be considered and tested, particularly in terms of justifying the mandatory exercise and strengthening of the mechanism of accountability at all levels. She hoped that by identifying the number of elements that needed clarification, the objectives of universal jurisdiction would further strengthen multilateralism.
ZACHARY MUBURI-MUITA ( Kenya) said the principle of universal jurisdiction acted as a “safety net” when a territorial State was unable to conduct an effective investigation or trial, or both. It also ensured a minimum number of countries where a perpetrator could avoid prosecution. However, this principle was distinct from the work of the International Criminal Court whose jurisdiction was limited to crimes committed after July 2002. Given that the Rome Statute had not been ratified universally, an effective implementation of universal jurisdiction was relevant.
MILOŠ KOTEREC ( Slovakia) said the doctrine of universal jurisdiction which allowed national courts to try cases of the gravest crimes against humanity, regardless of where they were committed, or of the nationality and official status of the perpetrators had been asserted by States under international law, both customary and conventional. In general, members of the international community had accepted that the customary international law permitted the exercise of such a jurisdiction over piracy, the slave trade or trafficking in persons. Under international treaty law, the application was widely recognized for the international crimes of genocide, torture, crimes against humanity or grave breaches of the 1949 Geneva Conventions.
He said universal jurisdiction related primarily to the competence of national courts; the jurisdiction of international criminal courts and tribunals established in the last decades had to be distinguished from universal jurisdiction. He said he did not think it would be feasible to establish an international regulatory body with competence to deal with complaints by individual States against other States’ national exercise of universal jurisdiction; to do so would be incompatible with States’ rights and obligations under national and international law. The goal was to fight against impunity with the aim of ensuring that individuals who committed atrocities were brought to justice.
PRIM MASRINUAN ( Thailand) said the exercise of universal jurisdiction was viewed as the ability of a State court to try persons for crimes committed outside its territory which were not linked to that State by the nationality of the suspect or victims, or by harm to the State’s national interests. State practice varied on the scope of the applicability of universal jurisdiction in international law.
He said Thailand’s legislation provided for universal jurisdiction over piracy. Courts could also exercise extra-territorial criminal jurisdiction over crimes specified in Conventions, such as offences relating to human trafficking and aircraft hijacking. A report on State practice and national legislation should be compiled.
He said the source of the principle should be considered. Some held that universal jurisdiction with respect to serious crimes under international law was part of customary international law. Some courts, however, extended their jurisdiction to include specific crimes under particular Conventions on the basis of universal jurisdiction. Defining the substantive and personal scopes of universal jurisdiction would dispel confusion with treaty-based forms of extraterritorial jurisdiction, or jurisdiction deriving from tribunal obligations. The principle could later be examined in light of other rules of international law.
LUIS CHÁVEZ ( Peru) said that before embarking on a serious discussion on the legal complexities of the scope of the principle, clarification was needed in certain areas. Universal jurisdiction was not international law, but criteria of jurisdiction recognized by international law. Although they shared the same aim ‑‑ to prevent impunity for those who committed international crimes -- it was important they not be confused with each other. It needed to be decided which crimes were subject to universal jurisdiction and which crimes were addressed by treaties and international law. The standard of due process, and its exercise when it involved an individual, was also in need of discussion and clarification.
He spoke of concerns about how the principle would be applied in the case of an individual who was detained after being kidnapped, how sentencing would be enforced and how the rights of the accused would be upheld. The rights of victims must be respected, and they must have access to the process and be able seek redress. Since none of this was based on abstract analysis but on events taking place around the world, he said it was imperative to listen to all Member States regarding the issue.
ÅSMUND ERIKSEN ( Norway) said that one of the major achievements in international relations and in international law over the last decades was the shared understanding that there should be no impunity for serious crimes. There should be no safe haven for those who committed such crimes, and international cooperation was constantly being strengthened, with new measures being taken to ensure that perpetrators of serious crimes were brought to justice.
The exercise of universal criminal jurisdiction by States was an important tool in contributing to the fight against impunity, he added, and it needed to be fully recognized in the debate of the Sixth Committee. The concept of universal jurisdiction was under constant development, and new treaties and State practices, together with the views of international tribunals and scholars would gradually provide more clarity and substance to the principle. Caution was therefore needed to make sure that activities engaged in, without full knowledge, did not prove unfruitful at a later stage.
It was important, he said, not to infringe on the status of independent courts and prosecuting authorities, and the work of the Committee should not overlap that of other bodies. Still, universal jurisdiction was a safety net that could come into play when other jurisdictions were not utilized, and must be applied only in the interest of justice. Any attempt to assert jurisdiction for purely political reasons must be repelled.
TULLY MWAIPOPO (United Republic of Tanzania) said the role of the United Nations in norm setting was essential to the effective implementation of universal jurisdiction. The question, however, was not the principle but the scope of such jurisdiction. It was imperative that clear mechanisms be developed so that impartial and uniform application to all States, without limitations, be ensured. Further, she stated, it was essential that national courts also properly adjudicate cases when a fragile political situation existed or where relevant witnesses and evidence were needed for prosecution.
SHERAZ GASRI ( France) said universal jurisdiction referred to the power of a national judge to prosecute individuals for crimes that were universally agreed to be heinous and offensive to the human conscience in territories that were out of the country. However, the accused person to be prosecuted must be on the territory where the crime was committed and the principle was therefore separate from the obligation to extradite. The exercise of universal jurisdiction should be considered from the perspective of both national and international law, with the objective of preventing impunity while also taking immunities into account. The exercise of judiciary power should be kept in mind, as should the principle that independence of the judiciary was an essential prerequisite for ensuring the rule of law.
KONRAD BÜHLER (Austria) noting the guiding principles for clarifying the scope and meaning of universal jurisdiction, said the focus of such universal jurisdiction was on criminal matters, and did not encompass extraterritorial jurisdiction in civil matters. It related only to a State’s competence to assert its jurisdiction, not to the jurisdiction of international criminal courts and tribunals. It presupposed the absence of a link with the State seeking jurisdiction.
He said further universal jurisdiction could be based either on treaty or customary international law, and it was important to distinguish the different forms of its exercise. The question of immunity is also needed to be distinguished from universal jurisdiction, and to this end he stated that immunity could only be addressed provided a State had jurisdiction under international law. He said universal jurisdiction must be distinguished from the duty to extradite or prosecute, which was covered by many treaties.
CHRISTOPH RETZLAFF ( Germany) said genocide, crimes against humanity and war crimes were the most serious crimes of concern to the international community, and threatened the peace, security and well-being of the world. Putting an end to impunity would therefore contribute both to peace and security and to the prevention of such crimes. Effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.
As for prosecution at a national level, he said Germany firmly believed that the principle of universal jurisdiction was a legitimate and useful tool to avoid impunity. It was the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, and that prosecution of such crimes lay with those States on whose territory the crime was committed, or whose nationals committed or fell victim to it.
However, he added, if a State were not in a position to comply, universal jurisdiction may serve as a complementary safeguard to make sure that international crimes were genuinely prosecuted. A further element to combat impunity for international crimes was the Rome Statute of the International Criminal Court.
ARTO HAAPEA ( Finland) said that since the beginning of the 1990s, the demand for accountability for serious crimes of international concern had gained recognition. Impunity was no longer tolerated by the world community. He said action by national courts was crucial in ensuring perpetrators of serious crimes of international concern were brought to justice. The principle of universal jurisdiction “provided no more than a jurisdictional basis for the national court to act upon a case”. It was not to affect immunities granted under international law nor was it to impede on due process guarantees.
On a national level, he said, universal jurisdiction recognized in his country’s criminal code since the early 1960s, had been applied for the first time this year, when charges for genocide were brought against a person residing in Finland. The individual was arrested once his name appeared on a list of suspects published by his country of nationality. Currently, local Finland courts were sitting abroad to hear witnesses. The experience supported Finland’s decision to undertake this prosecution and reaffirmed its participation in promoting international accountability.
AMANUEL AJAWIN ( Sudan) said he aligned himself with the African Union, which had expressed its discontent with the “abusive exercise of the doctrine of universal jurisdiction by non-African States against African leaders and dignitaries”. That abuse, he added, could endanger not only respect for international law and the conduct of international relations, but it also threatened the political, economic and social development of African States.
He said the principle of universal jurisdiction was still in its early days of legal infancy. There was no international legal consensus as to its scope, applicability of legal norms, rules of evidence or safeguards. The lack of clarity had led the International Court of Justice to reaffirm the rights of diplomatic immunity as a cardinal and well-established principle of customary international law. Any redefinition of diplomatic immunity would amount to reconsidering the norms and practices of international law. That, in turn, could lead to confusion, uncertainty, insecurity and “legal anarchy”.
The classic crimes associated with the principle of universal jurisdiction were piracy and slavery, he said. Then the misconception set in that States that were signatories to various conventions were automatically subject to the principle of universal jurisdiction. The contention was not only fraudulent but it ignored the intention of the convention drafters. They were stating general principles and not laws to be enforced by national courts against others. Excessive reliance on universal jurisdiction could undermine the political will to sustain human norms of international behaviour.
He told the Committee there should be no hurry in the debate; all legal arguments should be exhausted from a clear perception on scope and applicability. Caution must be exercised to prevent the principle from substituting the tyranny of judges for that of Government.
SANJA ŠTIGLIC ( Slovenia), noting that certain international crimes were so harmful and serious that they affected the entire international community, stressed that the “circle of violence” needed to be stopped. When national courts exercised universal jurisdiction appropriately in accordance with internationally recognized standards of due process, they acted to vindicate not merely their own interests and values, but those common to the whole international community.
International tribunals, she said, also played a vital role, especially when national judicial systems were often unable or unwilling to prosecute the offenders of these “grave” crimes. However, given the legal limitations of these international bodies, there was a need for different mechanisms to trigger a jurisdiction. Further, there needed to be an understanding that not every jurisdiction which lay outside national jurisdictions was linked to universal jurisdiction.
ADEL BEN LAGHA ( Tunisia), speaking in his national capacity, said the scope and applicability of the principle of universal jurisdiction outside the conventional context was unclear and needed to be determined. He noted the case in which the International Court of Justice was asked to rule on disputes resulting from the exercise of universal jurisdiction, and said the dissenting opinions which followed the request, were highly indicative of the extent to which the use of universal jurisdiction was “ambiguous and controversial”.
Further, he said, the expansion of the concept beyond treaty confines would require addressing conflicts of jurisdiction and hierarchy of extraterritorial jurisdiction. He pointed out that in recent years there had been an increase of conflict between States concerning jurisdiction, and if norms on universal jurisdiction were not established, such conflict could threaten peace and security between nations, as well as leading to a “significant risk of bias”.
CÉDRIC JANSSENS DE BISTHOVEN ( Belgium) said the principle of universal jurisdiction was an important tool in upholding international law and taking action against heinous crimes and preventing impunity for them. The principle, however, must be handled carefully, and exercised only when the State in question lacked either the political will or the judicial tools to bring to justice the perpetrators of serious crimes. It should be kept in mind that the prosecution of foreigners on the principle of universal jurisdiction was rare. Some calls had been made for an international regulatory body to be established to monitor the exercise of universal jurisdiction to prevent politicization. The proposal went to the principle of judicial independence. Rather, conflicts of jurisdiction should be handled through recourse to existing conflict resolution mechanisms.
ALI KARANOUH ( Lebanon) said that universal jurisdiction was an extremely important and sensitive topic. Because it went beyond the borders of States or nationalities, and its impact on international and national matters, universal jurisdiction required thorough examination. In order to ensure the integrity of its core principle, it needed to be approached scientifically so as to prevent it being used as a political tool. Such clarification would eliminate any confusion of its scope and applicability, especially with regard to the sovereignty of States.
SAMI AL GHADBAN ( Libya) said universal jurisdiction was designed to prevent impunity from grave crimes such as piracy, slavery and crimes against humanity. The expansion of the concept had sometimes indicated selectivity in its approach. Further, the issue of how to approach this issue without affecting the sovereignty of States was critical to upholding international law and the right to development. He expressed regret that some national organs had implemented this principle in ways that contradicted its purpose and he called for the bias elements in the application of the principle to be removed. The debate being held today was in its proper forum, he stated, as it “returned us to the proper path of our discussion”.
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