Legal Committee Is Told ‘Principle of Universal Jurisdiction’ Needs to Be Defined, to Avoid Possible Abuses, Politicization
Legal Committee Is Told ‘Principle of Universal Jurisdiction’ Needs to Be Defined, to Avoid Possible Abuses, Politicization
|Department of Public Information • News and Media Division • New York|
Sixty-fourth General Assembly
13th Meeting (AM)
Legal Committee Is Told ‘Principle of Universal Jurisdiction’ Needs
to Be Defined, to Avoid Possible Abuses, Politicization
‘No Impunity for Grave Crimes’ Called Key Issue; Delegates
Say Further Discussion Should Await Guidance from Member States
As the Sixth Committee (Legal) continued its deliberations today on the principle of “universal jurisdiction”, delegates called for a clear definition of the principle in order to thwart potential misuse, bias and politicizing in its application under the guise of justice being done.
The representative of Rwanda reminded the Committee that very few of the masterminds of his country’s 1994 genocide had been brought to justice under the principle, and that, in fact, a large number of them remained at liberty around the world enjoying impunity. Even with public indictments and the issuance of arrest warrants, witnesses were either recanting testimony or accusing judges of fabricating evidence, despite the existence of factual information.
He called for the ambiguities of universal jurisdiction to be thoroughly addressed so that the principle could not be used to manipulate judicial processes for political ends. To develop such an effective judicial tool, the Secretary-General should be asked to prepare a report on Member States’ views. Aspects to be considered would include the delineation of the scope of crimes covered, as well as the applicability of immunities.
The delegate of Israel said that even in cases where universal jurisdiction was recognized for certain heinous international crimes, such crimes needed to be prosecuted in a jurisdiction that bore extensive and significant links to the crimes committed. Even the case of Nazi war criminal Adolf Eichmann, an often-quoted example of the principle of universal jurisdiction, did not involve a case of prosecution without jurisdictional links.
Senegal’s representative said that although customary law addressed serious crimes, such as piracy, in foreign countries, it was the Geneva Conventions that set down the principle of universal jurisdiction in the form of a treaty. Without a clear definition, applying the principle to new crimes was becoming a source of controversy, and it was necessary that the principle be understood as an exception to the rule, applicable only in special cases of criminal acts. Although it was not to flout other principles, it did not apply to all international crimes.
With national laws being the standard applied, the delegate of Italy noted, the original form of universal jurisdiction was often based on a unilateral “abusive” transformation of national values into universal values. Today the picture was very different. The prosecutors and judges opened proceedings on the basis of universal jurisdiction, often in response to complaints by victims. States had no discretion in identifying those common values and they could not impose national values. In the absence of specific mechanisms, situations needed to be examined case by case.
Liechtenstein’s delegate stated that universal jurisdiction was an important subsidiary tool for ensuring accountability when States could not or would not investigate or prosecute in their national courts. However, in order for any discussion on universal jurisdiction to be successful, Member States needed to “start from the premise of our common goal, the end of impunity for the worst crimes of international concern.”
Also speaking today were the representatives of Indonesia, Iran, United Kingdom, Algeria, Spain, Mexico, Russian Federation, Burkina Faso, United States, Togo, Malaysia, Nigeria and Ethiopia.
The representative of Argentina spoke in the right of reply.
The Committee will meet again at 10 a.m., Friday, 23 October to consider the reports of Working Groups.
The Sixth Committee (Legal) met today to resume its consideration on the scope and application of universal jurisdiction. (For background, see Press Release GA/L/3371 of 20 October.)
HERY SARIPUDIN ( Indonesia) said universal jurisdiction was a legal concept that should be cautiously addressed, since there were conceptual ambiguities and inconsistencies in its application. In particular, inappropriate applications could undermine the fundamental principles of international law, and application to State officials who held immunity under international law could also generate legal and political ramifications.
While the principle of universal jurisdiction was instrumental to the full operation of the obligation to extradite or prosecute, he said, the distinction between the two should be clearly drawn, in that the obligation did not have external reach, since it applied only to State parties to conventions and thus to specific conditions as provided by the conventions.
With that in mind, he said, all conceptual ambiguities should be clarified. The crimes covered should be identified and the conditions for application of universal jurisdiction should be examined. Finally, while promoting the fight against impunity in the framework of international law, it must be kept in mind that the application of universal jurisdiction must respect the principle of the sovereign equality of States. Primary responsibility for prosecuting crimes resided with the State where the crime had occurred. Universal jurisdiction should be invoked only for very limited offences, and as complementary to national systems.
HOSSEIN SADAT MEIDANI ( Iran) said the supporting central argument for authorizing the prosecution of the gravest crimes of universal significance was that “justice shall be done with respect to perpetrators of such crimes.” Not only would this protect the international legal order, but could also prevent future grave acts of the same nature. However, he noted that there was an increasing trend of this doctrine being extended to a wide range of crimes at the expense of established rules of international law, particularly in the case of immunity of State officials from foreign criminal jurisdiction. This in some cases collided with the principle of sovereign equality of States.
He said that in order to lessen controversy, and to avoid misuse, a clear definition of jurisdictional basis needed to be developed. The scope and necessary conditions to apply this jurisdiction required definition in accordance with relevant international treaties that addressed such grave crimes. On a national level, the Iranian legal system only recognized the application of universal jurisdiction for those crimes punishable under international treaties when the perpetrator was found in Iran. He concluded by saying that the proper application of this doctrine would occur in national courts, thus ensuring that double standards, selectivity and impunity not occur.
CATHERINE ADAMS ( United Kingdom) said the principle of universal jurisdiction gave States the right to prosecute crimes in domestic courts in the absence of any link to the prosecuting State. The principle had its origins in customary law and was first accepted in the four Geneva Conventions of 1949. The scope had been extended but still only applied to a limited number of crimes of exceptional gravity. The principle was an important complement to the jurisdiction of international judicial mechanisms, but distinct from them, including that of the Rome Statue of the International Criminal Court.
International justice mechanisms could never prosecute all cases of crimes within their jurisdiction. Prosecutions at the domestic level would continue to be a vital component in pursuing justice for victims of international crimes. The possibility of domestic prosecution in a third State ensured that perpetrators did not evade justice.
Universal jurisdiction must be exercised appropriately and in accordance with international law, she said. Her country’s legislation provided for the principle when it was required to comply with international obligations. Safeguards were in place to ensure that it was exercised responsibly. When competing jurisdictions were involved, disputes should be resolved through established mechanisms. Finally, while prosecutions based on universal jurisdiction were rare, it was a vital weapon in the fight against impunity for the most serious international crimes.
ABDELATIF DEBABECHE ( Algeria) said there were criminal cases in which international courts, in taking up incidents, could act on behalf of the international community. As modern law continued to evolve, specifically in relationship to the definition of extradition, universal jurisdiction was the accepted means in the fight against impunity, especially if the State did not have the legislation to prosecute.
Further, the three African summits noted the “dangerous drift” and a double standard towards the application of universal jurisdiction. This stance was not in opposition to universal jurisdiction, but sought to define the principle and thus to avoid abuses. In developing a framework, the sovereignty of States needed to be respected, with clear parameters of the scope and type of crime that would fall within the jurisdiction. Ultimately, he said, the abuse and selective use of universal jurisdiction impacted small States.
JUAN ANTONIO YÁÑEZ-BARNUEVO ( Spain) said universal jurisdiction had a long tradition in both national and international law relating to crimes that were grave, either because of the severity of the deed or because of the impact of the action on the international community. Piracy and slavery fell into that category and preventing impunity in both cases was an important aim of legislation. Today, genocide was another crime universally viewed as intrinsically venal.
He said the principle of universal jurisdiction based on customary and treaty law had been sent down in various international conventions. There was now a broad range of instruments invoking the principle, including those on humanitarian law, the Geneva Conventions, and those related to fighting terrorism and concerned with human rights.
Spain’s constitution, he said, covered the concept of universal jurisdiction. A series of cases had been brought before the courts and the principle of immunity of Heads of State had been upheld. Legislation was now being revised to allow Spanish judges to take measures in cases of serious crime if no other court or tribunal had started legal proceedings. The intrinsic aim of fighting impunity for serious crimes had been generally espoused.
He said that in any situation where a plurality of jurisdictions applied, friction could arise between national courts and international legal norms. Therefore, the principle and modus operandi of universal jurisdiction must be defined in context of other existing international instruments that were applicable to the field. The objective was to build the appropriate legal framework to ensure that grave crimes were not carried out with impunity.
ALEJANDRO ALDAY ( Mexico) said the Committee’s debate on the principle of universal jurisdiction should be “exclusively framed within the parameters and the basis provided by international law.” This would ensure a thorough consideration from a strictly legal point of view. The principle was there to serve as a complementary mechanism of criminal justice to combat impunity and to strengthen justice at the international level. Insofar as the commission of the crimes in question is a matter of concern for the international community, the States where they take place had the capacity and duty to exercise universal jurisdiction over them.
Further, the development of modern international law allowed for clearer definition of grave crimes, and he noted that international law recognized and provided the legal basis for universal jurisdiction. However, he added, his country was taking a more cautious approach, since it was not always clear when a customary norm allowing a State to exercise universal jurisdiction was or was not present. This situation risked the principle being used discretionally. Universal jurisdiction entailed a State exercising authority based solely on international law and within its competency.
IVAN VOLODIV ( Russian Federation) said the principle of universal jurisdiction must not impinge on international law, nor on principles related to immunity of State officials. Still, the issue of grave crimes being committed by Government officials must be addressed. States must include provisions on the matter in national legislation. The principle of universal jurisdiction must also be clearly distinguished from the obligation to extradite. States must never be in a position of having to choose between violating the principle of immunity or violating human rights. The majority of attempts to exercise the principle of universal jurisdiction had not been successful and had become sources of friction in the international community. National law enforcement agencies and judicial branches must cooperate to bring about justice. In the Committee, alternative ways to prosecute international criminals should be examined. The Committee could consider the matter in light of current national practice.
ADY SCHONMANN ( Israel) said the principle of universal criminal jurisdiction had an important role in strengthening the rule of law, domestically and internationally, but it must be carefully regulated, in order to ensure that it was exercised responsibly and in good faith. As issues of public policy, justice and national interests were ultimately entangled in cases involving universal jurisdiction, it was necessary to ensure that sufficient safeguards and filtering mechanisms were in place. It was indeed necessary to focus first on the scope of universal jurisdiction, she said. Given the lack of uniformity on its substantive interpretation, an exchange of information on State practice would be extremely helpful in identifying the scope of the relevant criminal offences, and in developing best practices to prevent abuse or the misapplication of the principle for political ends.
Despite the widespread support for the principle of universality in the counter-terrorism treaties, she continued, the actual extradition or prosecution of terrorists was predominantly based on bilateral treaties. For its part, Israel had recognized universal jurisdiction for certain limited and particularly heinous international crimes. However, even in such cases, proper consideration of effective justice would dictate that they be prosecuted in a jurisdiction that bore extensive and significant links to the crimes committed. Hence, she said, even the “landmark” case of Nazi war criminal Adolf Eichmann, which was often cited by international scholars as an example of the implementation of the principle of universal jurisdiction, did not involve a case of prosecution without jurisdictional links.
MICHEL KAFANDO ( Burkina Faso) noted that the debate on the principle of universal jurisdiction was occurring during a time when the International Court of Justice was being accused of bias, and he welcomed the “brainstorming” in the Committee on this principle as it was marked by uncertainty. It was important to examine the possibilities for a State to depart from the framework of its national criminal jurisdiction in order to prosecute certain crimes, regardless of where they were committed or the nationality of the perpetrators. There was a risk of undermining fragile gains already reached.
He said that because national judicial systems were responsible for prosecution, it was necessary that the views of Member States on this issue be compiled, and sent to the Secretary-General for inclusion in future reports. Based on the experience of States, the Committee could then make an appropriate proposal. He urged that the issue of universal jurisdiction not be hastily referred to the International Law Commission; the Committee, he stated, was the most appropriate forum discussion.
WELLINGTON WEBB ( United States) said that since definition of the term “universal jurisdiction” remained unsettled, with Member States having different views, discussion in the Committee would probably raise more questions than answers. In the view of his delegation, universal jurisdiction referred to criminal jurisdiction for certain grave offences where a State’s only link to the particular crime was the presence in its territory of the alleged offender, regardless of where the offence took place.
He said United States federal law covered jurisdiction over crimes of serious international concern, such as piracy, torture and genocide. Typically such jurisdiction was exercised only where the alleged perpetrator was physically present in the United States.
He said the United States would like to learn how other Member States defined the term “universal jurisdiction”, and how they had empowered their own domestic courts to exercise it; gathering such information was necessary before any further consideration of the subject.
STEFAN BARRIGA ( Liechtenstein) said that any discussion on universal jurisdiction needed to “start from the premise of our common goal, the end of impunity for the worst crimes of international concern.” The primary responsibility for prosecution rested with the State where those crimes had been committed. In the situations where States could not or would not prosecute, universal jurisdiction was an important subsidiary tool to ensure accountability. Conflicting jurisdiction was a common phenomenon in criminal justice, and international law provided little guidance on how to resolve such conflicts. In cases where States could not resolve such cases, he called for the acceptance of compulsory jurisdiction of the International Court of Justice.
Turning to the International Criminal Court, he said it did not act on the basis of universal jurisdiction, but on the basis of delegated jurisdiction, from State parties or a Security Council referral. The Rome Statute, however, did interact with the principle of universal jurisdiction by overcoming the impunity gap resulting from States’ unwillingness or inability to investigate and prosecute. The International Criminal Court offered the best option to apply the law in an equitable manner, irrespective of political considerations, and it could not be blamed for being unable to deal with cases outside its jurisdiction.
MOSES KENETH BUGINGO RUGEMA ( Rwanda) said the number of speakers on the subject of the principle of universal jurisdiction demonstrated its great significance, both to the conduct of international law and to international relations in general. He would not challenge the legality of the principle, but wished to ensure that it was devoid of abuse or misuse in its application, whether for political or any other ends. In addition, he went on, there was a clear distinction between the universal jurisdiction exercised by a State, and the jurisdiction exercised by international courts and ad hoc tribunals. Finally, there were both legal and political dimensions to the principle of universal jurisdiction, and both of them deserved due consideration in an appropriate forum.
He said the principle had often been cited as vital to the fight against impunity; a large number of “key masterminds” of the 1994 genocide in his country remained at liberty around the world, enjoying the impunity the principle was intended to end. Few had been brought to justice under the principle. There had been public indictments, and arrest warrants issued, but witnesses had recanted testimony, and had even accused judges of fabricating evidence, despite the existence of factual information. Arrest warrants issued against high ranking officials over a period of 10 years in various places had not succeeded in bringing those officials to justice for a number of reasons, including the failure to issue follow-up warrants or the elaboration of indictments in a way that effectively denied the occurrence of genocide.
He said those were some of the manipulations of judicial processes for political ends and some of the ambiguities that needed to be addressed with regard to the principle of universal jurisdiction. The fight against impunity was incumbent on all. Misapplication of the principle threatened to undermine the fight. The Secretary-General should be requested to prepare a report on the views of States so as to define the principle and its exercise, delineate the scope of crimes covered and answer the question of how immunities were related.
KOKOU KPAYEDO ( Togo) said it was an obligation of society to take serious action on certain crimes, and universal jurisdiction could prevent impunity in crimes against humanity. In this regard, there should be established a clear distinction between the competence of international criminal courts and the exercise of universal jurisdiction by individual States, on the basis of their national legislation.
He said there were four factors in jurisdiction recognized by international law: territorial jurisdiction which allowed States to judge crimes committed on their territory; the active principle of nationality where the perpetrator was one of its nationals; “passive personality” which allowed the State to exercise its authority against a non-national whose victim was one of its nationals; and the principle of protection that allowed States to prosecute crimes that affected their vital interests.
Universal jurisdiction also needed to complement domestic courts. To that end, Togo was modernizing its own judicial system through a number of approaches, including the reinforcement of its administration of justice, the modernization of its legislation, and the improvement of access to the judicial system. With regard to its own history, it had established a truth, justice and reconciliation commission for its citizens.
SHAZELINA ZAINUL ABIDIN ( Malaysia) said that as a concept, the principle of universal jurisdiction did provide a utopian solution to combating impunity. However, its universal application seemed somehow “skewed” by considerations other than the pursuit of justice. Member States must agree on the parameters, scope and exemptions from universal jurisdiction, especially with regard to immunity and amnesty.
She said it was vital to make a distinction between mandatory universal jurisdictions, stemming from treaty obligation, and permissive universal jurisdictions, which usually arose from customary international law. Although all Member States agreed that, in principle, certain crimes posing a threat to global interests had to fall under universal jurisdiction, those countries had nonetheless not agreed on which crimes could be deemed more punishable than others. That, she said, was why it was crucial for Member States to delineate the parameters of universal jurisdiction, an endeavour to which her delegation remained committed.
PAUL BADJI ( Senegal) said the controversy with respect to the doctrine of universal jurisdiction was an indication of the tension created because of the lack of a definition of the principle, or a set of precise rules as a guide to its application.
Both uncontrolled and unregulated application of the principle, as well as ambiguities in its scope, should be addressed by establishing benchmarks for a common understanding. The approach should clarify both the scope and the limits on applying the principle in a way that did not diminish the objective of the principle, aimed at ensuring that serious crimes were not committed with impunity and that their perpetrators were prosecuted.
He said it was generally accepted that customary law addressed serious crimes in foreign countries, crimes such as piracy. The Geneva Conventions had for the first time set down the principle in the form of a treaty. The extension of the principle to apply to new crimes had become a source of controversy that must be cleared up through a clear definition of the principle. Furthermore, the principle did not apply to all international crimes and it should not flout other principles.
It should be applied, he said, in accordance with established doctrines and with State laws, which were ground in international customary law. All jurisdictional immunities must be taken into account with the acknowledgement that the effectiveness of jurisdiction was founded in international law; applying double standards would only weaken the doctrine and make it harder to achieve the aim of ending impunity.
B.A. ADEYEMI (Nigeria), aligning his country with the statement delivered on behalf of the Africa Group, said that Nigeria and Africa were not averse to the rule of law and international criminal justice. Without those two intricately linked pillars for global peace and security, there could be no economic growth and development. He called for proper guidelines that would apply the “The Scope and Application of the Principle of Universal Jurisdiction” globally, so as to forestall abuse. Preparing a comprehensive report that drew on the views of Member States would be helpful, as a basis for further discussion on the topic at the General Assembly’s next session.
SALVATORE ZAPPALA ( Italy) said the notion of universal jurisdiction originally implied the process whereby national judicial authorities exercised civil or criminal jurisdiction over foreigners from outside the State where the action occurred. With national laws being the standard applied, that form of universal jurisdiction was often based on a unilateral “abusive” transformation of national values into universal values. Today the picture was very different in that prosecutors and judges opened proceedings on the basis of universal jurisdiction, often in response to complaints by victims.
The process took place, he continued, on the basis of specific rules enshrining common values protected through international provisions. States had no discretion in identifying those common values and they could not impose merely national values. Those values were protected by international treaties and rules of customary international law with special character. Some rules authorised States to exercise jurisdiction and others imposed obligations to prosecute. Abuses in application of the notion of international jurisdiction were possible, of course, and they could include the opening of proceedings for offences that did not amount to international crimes. He said that in the absence of specific mechanisms, situations needed to be examined on a case-by-case basis. Disputes over jurisdiction should be handled in the ordinary way of settling disputes between States. In considering the subject, the gravity of the crimes to be addressed should be taken into account. Alleged risks of abuses should be weighed against the lessons of history and the reality that impunity still existed.
RETA ALEMU NEGA ( Ethiopia) said the debate on the principle of universal jurisdiction was crucial in reaching common ground. However, his country deplored the unregulated and arbitrary use of the principles, particularly in the issuing of arrest warrants against African officials by national courts outside Africa. Those actions, influenced by ulterior motives, led to misunderstanding and created “apathy” in international relations.
He supported the view of the African Union that the expansive approach taken on the scope and application of universal jurisdiction would endanger international law. The warrants of arrests against African senior officials disregarded their functional immunity and undermined the sovereignty of States. In order to create a definition of universal jurisdiction, there needed to be a clear distinction between the legal and the political challenges of the principle.
Statement in Right of Reply
The delegate of Argentina reserved its position to respond to the statement made by the representative of Israel.
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