Delegations Urge Clear Rules to Avoid Abuse of Universal Jurisdiction Principle, Seek Further Guidance from International Law Commission

17 October 2012
GA/L/3441

Delegations Urge Clear Rules to Avoid Abuse of Universal Jurisdiction Principle, Seek Further Guidance from International Law Commission

17 October 2012
General Assembly
GA/L/3441
Department of Public Information • News and Media Division • New York

Sixty-seventh General Assembly

Sixth Committee

12th Meeting (PM)

Delegations Urge Clear Rules to Avoid Abuse of Universal Jurisdiction Principle,

Seek Further Guidance from International Law Commission

 

General Assembly President Calls Legal

Committee ‘Frontline Guardian’ of United Nations Charter

Asserting that the Sixth Committee (Legal) was the frontline guardian of the Organization’s Charter, Vuk Jeremić, President of the General Assembly, told its delegates today that international law was the backbone of effective multilateral relations.

That point, he said, had been made evident in the recent high-level meeting on the rule of law.  The historic meeting confirmed that international law could not been seen as utopian with little relevance to international affairs.  To the contrary, it served States’ interests and prevented them from finding recourse in war.

The Committee then commenced its debate on the scope and application of the principle of universal jurisdiction, with Senegal’s representative pointing out that international rules were needed to prevent universal jurisdiction from being applied in a haphazard way.  Without those rules, States would not be swayed to accept the principle.

Discussions on that principle had reached their limit in the Sixth Committee, said the Czech Republic’s delegate.  Because the Committee was a political body and the International Law Commission an expert one, it was more appropriate for the Commission to study the topic further.

Universal jurisdiction, said Argentina’s delegate, had helped to significantly close the impunity gap, making it key to the international justice system.  If not carefully applied, though, it could cause friction, particularly when exercised by developed States over nationals of developing countries.  She reiterated the call for clear rules to both guide its application and its delineation from the principle aut dedere aut judicare.

However, Egypt’s representative, speaking for the African Group, said measures that would end the abuse, and political manipulation of universal jurisdiction by judges and politicians from States outside Africa were needed.  He pressed for a moratorium on all pending arrest warrants and prosecutions filed against African leaders or other high-ranking officials until discussions at the United Nations were concluded and recommendations made.

Piracy on the high seas was the only crime over which claims of universal jurisdiction were undisputed, the delegate of India pointed out.  Criminals should not go scot-free because of procedural technicalities.  Still, although international treaties had provided for universal jurisdiction over other serious crimes, he questioned whether jurisdiction in certain treaties could be extended to a wider range of offences.

Noting the divergent views and practices, the evolving nature of the principle, and new substance being given to it, Norway’s representative urged a cautious approach be taken by the Committee.  Without clear international consensus, she suggested a compilation of best practices be sent to Member States.

In organizational matters, the Committee elected Dire Tladi ( South Africa) to chair the working group on criminal accountability of United Nations officials and experts on mission.

Also speaking today were representatives of Chile (also for the Community of Latin American and Caribbean States), Iran (for the Non-Aligned Movement), New Zealand (also for Canada and Australia), Belarus, Ethiopia, Republic of Korea, El Salvador, Sudan, Algeria, Cuba, Tunisia, Mexico, Democratic Republic of the Congo, Congo, Lesotho and Nigeria.

The Committee will meet again Thursday, 18 October, at 10 a.m. to continue its debate on universal jurisdiction.

Background

The Sixth Committee (Legal) met today to take up the scope and application of the principle of universal jurisdiction.

For its consideration, the Committee had before it the Secretary-General’s report on the topic (document A/67/116), which contains information from Member States and relevant observers on relevant applicable international treaties, their domestic legal rules and judicial practice, and a synopsis of issues raised by Governments and observers for possible discussion.

The report states that a variety of issues were raised, including the need for an international regulation in the application of universal jurisdiction, the establishment of criteria for its application, and criteria to determine its compatibility with the Charter of the United Nations.  It was also necessary to ensure that such application would not violate immunity granted to Heads of State, diplomatic personnel and other incumbent high-ranking officials, or violate the principle of sovereign equality of all States.  In addition, there was a need to identify crimes subject to universal jurisdiction and the circumstances under which it could be invoked.

The report contains responses from Cuba, El Salvador, Finland, Ghana, Kuwait, Panama, Sweden and Viet Nam.  A response was also received from the Organization for the Prohibition of Chemical Weapons.

Before the Committee was the Secretary-General’s report on the topic in 2011 (documents A/66/93 and A/66/93/Add.1).  (For background, see Press Release GA/L/3415 of 12 October 2011.)

Also before the Committee was the Secretary-General’s report on the topic in 2010 (document A/65/181).  (For background, see Press Release GA/L/3390 of 12 October 2010.)

Statement by General Assembly President

VUK JEREMIĆ, President of the General Assembly, said that the Sixth Committee was a frontline guardian of the Organization’s Charter and the corpus of international law.  The recent historic high-level meeting held on the rule of law confirmed that international law must not be seen as utopian with little relevance to international affairs.  To the contrary, it served States’ interests and prevented them from finding recourse in war.  The rule of law, in that way, was the backbone of effective multilateral relations.

Well aware of growing threats to the territorial integrity of Member States in all parts of the world, he stressed that the messages delivered by world leaders at that high-level meeting were of utmost importance.  Those leaders had underscored that respect for the rule of law was essential to establishing peace in aftermath of conflicts and would engender respect for human rights and progress towards development.  Pronouncements made at the meeting had begged for follow-up processes linked to State sovereignty and national ownership in upholding the rule of law, including fighting corruption, which he called “one of most cancerous practices that affected economic growth and development”, and the Secretary-General’s efforts towards linking the rule of law with the United Nations’ three pillars.

Turning to increased State support for the International Criminal Court, he said that, although such support had grown, many States had raised the issue of enhancing the Court’s objectivity.  To be effective, international courts and the corpus of law they interpreted had to be objective.  In that regard, the work of the International Court of Justice had earned strong support among Member States and many States would soon accept its jurisdiction.

Terrorism, he said in his final remarks, was one of the most alarming elements of the new global reality.  The capability to cause gross harm, once exclusively in the hands of States, was becoming within the reach of non-State actors.  In that regard, terrorist acts represented one of the most pernicious dangers to lasting peace.  Regarding the Secretary-General’s report on the topic, he was interested to hear about the Committee’s deliberations on the recommendations contained therein.  Noting the utility of the Global Counter-Terrorism Strategy, he urged the Committee to finalize the comprehensive convention on terrorism.  Praising Rohan Perera for his role as Chair of the working group on the matter, he said that “through our cooperation, we would send a clear message to those who finance, plan and engage in acts of terrorism that the world was united against them”.

Statements on Universal Jurisdiction

OCTAVIO ERRÁZURIZ (Chile), speaking for the Community of Latin American and Caribbean States (CELAC), said that the Committee’s focus on universal jurisdiction was at a stage that required dialogue, as well as the study of applicable international regulations.  Within the framework of the relevant working group on the matter, the Committee should be able to advance on points at which a common understanding had been developed and identify other matters which required deeper study.  In that regard, it would be productive to focus this session’s discussions on those elements addressed in the “informal working notes from the chair”.

International law, he said, defined the scope of the application of universal jurisdiction and enabled States to exercise it.  However, several delegations had urged that universal jurisdiction not be confused with the exercise of international criminal jurisdiction or with the “obligation to extradite or prosecute”.  States had clearly indicated that they were different legal institutions, but were complementary to the goal of ending impunity.

ESHAGH AL HABIB (Iran), speaking for the Non-Aligned Movement, said although universal jurisdiction provided a tool to prosecute the perpetrators of certain serious crimes under international treaties, there were questions and controversies related to it, including the range of crimes that would fall under its jurisdiction, as well as conditions for its application.  The application of universal jurisdiction on the immunity of States’ officials and, consequently, on the sovereignty of the States, had alarming implications.  As well, the invocation of universal jurisdiction against some member countries of the Movement had generated concerns over its legal and political connotations.

He also noted the African Union’s decision during its nineteenth session, which inter alia had reiterated its commitment to fight impunity.  The Union had called upon all concerned States to respect international law, particularly the immunity of State officials when applying universal jurisdiction, and to search for a durable resolution to its abuse.

He said further clarification was needed to prevent any misapplication or improper resort to universal jurisdiction.  The decisions and judgments of the International Court of Justice and the work of the International Law Commission were among the sources which might be useful in the Committee’s decisions.  He also cautioned against the unwarranted expansion of the crimes under universal jurisdiction.

ALICE REVELL (New Zealand), speaking also for Australia and Canada, said that universal jurisdiction conferred upon States the ability to exercise criminal jurisdiction over those individuals responsible for the most serious crimes of international concern, irrespective of where that conduct occurred, the nationality of the perpetrator or any other links between the crime and the prosecuting State.  The State in which the crimes were committed benefited most from the transparency of the trial and the accountability of a verdict and was usually best placed to see justice was served.

As well, she continued, universal jurisdiction provided a complementary mechanism to ensure that those accused were held accountable when the territorial State was unable or unwilling to exercise jurisdiction.  Universal jurisdiction, in that regard, should always be exercised in good faith and in a manner consistent with other principles of international law.  Australia, Canada and New Zealand had long recognized universal jurisdiction over serious international crimes, and she, therefore, applauded those States that had incorporated that same practice into their domestic legislation and encouraged others to do the same.

IBRAHIM SALEM ( Egypt), speaking for the African Group, said the African Union Constitutive Act provided the Union with the right to intervene, at the request of any member State, in situations of genocide, war crimes and crimes against humanity.  Furthermore, African States had adopted progressive human rights instruments, including optional protocols that permitted individual complaints or grievance procedures against their own Governments, in addition to reporting obligations honoured by the African States under various United Nations human rights treaties.

Recalling the view expressed by the International Court of Justice that immunity for Heads of State should not be put to question or be re-examined, he said there was concern about the abuse of universal jurisdiction by non-African States, noting that it was a development that could endanger international law and the fight against impunity.  Some non-African States and domestic courts in certain non-African countries had sought to justify their arbitrary or unilateral application of or interpretation of universal jurisdiction on customary international law.  In that regard, he underscored that “a State which relied on a purported international custom practised by States must, generally speaking, demonstrate to the satisfaction of the Court that the alleged custom had become so established as to be legally binding on the other party”.

Further, he said African countries and like-minded States around the world had urged adoption of measures to put an end to the abuse and political manipulation of universal jurisdiction by judges and politicians from States outside Africa, including the violation of the principle of the immunity of Heads of State under international law.  Reiterating the call by the African Heads of State and Government, he urged that a moratorium be imposed on all pending arrest warrants and prosecution filed against African leaders or other high-ranking officials, until discussions at the United Nations were concluded and proper recommendations were made.

YURY NIKOLAICHIK (Belarus), drawing attention to the complex interaction between national legislation and international law, said universal jurisdiction in certain cases should take precedence and enable the application of the rule of law.  Acts under universal jurisdiction should include crimes against peace, war crimes, crimes against humanity and piracy.  It was also necessary to bear in mind that currently quasi-universal jurisdiction had been strengthened in other international conventions.

Given that in international law, absolute jurisdiction was quite contradictory in character, he said universal jurisdiction should not conflict with the principles of State sovereignty and non-interference in internal matters.  Discussions should aim to eradicate shortcomings and not be politicized.  Noting that there had been shortcomings in the implementation of universal jurisdiction, he underscored that ensuring the rule of law was absolutely crucial in international relations.  Perpetrators must be prosecuted in line with States’ obligations and domestic legislation.  Stressing the need to find a good balance between the universal jurisdiction and State sovereignty, he said it was important to have impartial discussions to find mutually acceptable solutions.

YIBZA AYNEKULLU ( Ethiopia) said he appreciated international efforts to eliminate safe havens for those who had committed serious international crimes.  However, ambiguity still existed as to which crimes and offences constituted crimes under international law, and to whom universal jurisdiction could be applied.  The different approaches pursued by different countries had resulted in subjective application of the principle, which had undermined a common way of fighting impunity.

Since there was no widespread State practice on universal jurisdiction, he said, those exercising it should take utmost care.  Under the principle, international organizations were customarily bound to immunities as were State officials working in their national capacity.  Pointing out that the principle of universal jurisdiction was enshrined in the criminal code of Ethiopia, he said his country attached significant value to the principal, but emphasized that it should be applied with special care so as not to abuse or disguise it.

MOON JIHYE ( Republic of Korea) said although it seemed that consensus had been reached on piracy and war crimes as crimes that would fall under universal jurisdiction, there remained a need to determine if others, such as terrorism, did as well.  The application of universal jurisdiction had great legal complexity because it was linked to many practical questions, including on whom and how it should be exercised.

The principle of universal jurisdiction should not be politically misused, she said.  There should be a clear process in its application, which should be regulated to ensure any exercise of universal jurisdiction conformed to international law and was consistent with the rule of law.  She suggested that possibilities be explored, including asking legal experts of the International Law Commission to advise on the scope and application of the principle.

PETR VÁLEK ( Czech Republic) said that statements made both during the high-level meeting on the rule of law and today’s debate were proof that the issue of universal jurisdiction remained relevant for United Nations membership.  The scope and application of the principle, in his view, was a legal question rather than a political one.  In that regard, the topic should be referred to the International Law Commission for study.  Although the working group established on the topic during the Assembly’s last session managed to produce an informal paper, the discussion within the Committee had clearly demonstrated its limits.

He went on to say that there had not enough time to clarify the scope and application of the principle.  Furthermore, the Sixth Committee was a political body while the International Law Commission was an expert body.  Thus, the appropriate time for the Commission to study the matter was now.  His delegation was ready to participate in the working group’s meetings.  However, it would not support any further development of the informal paper that suggested the establishment of an international mechanism that would have the power to interfere with national criminal proceedings initiated on the basis of universal jurisdiction.

JOAQUÍN ALEXANDER MAZA MARTELLI ( El Salvador), stressing the “individuality of universal jurisdiction”, said it was a principle with its own character, and where its application of criminal law depended exclusively on the nature of crime.  In that regard, in order to apply universal jurisdiction, it was not necessary for the crime to have been committed in the State conducting the trial, or if victims were in that same State.  “Individuality” did not imply that universal jurisdiction should become the general rule when major international crimes were committed, as this could only be exercised as a last resort.  As well, the State where the crime was committed was the best State to initiate proceedings, gather evidence and ensure that punishment was appropriate, as well as allow victims to make appropriate appeals in an effective manner.

Although the Secretary-General’s report showed acceptance of universal jurisdiction by a considerable number of States, he said various aspects still required greater detail and analysis.  There was a need to go beyond the principle of universal jurisdiction and to concentrate on actual aspects of scope and application.  In that regard, it would be useful to examine rights or basic guarantees that should govern the process of universal jurisdiction, including reparation for victims that aspired to justice.  Concluding, he said that El Salvador had informed the Secretary-General that its criminal code had transferred the crime of torture under the title that regulated crimes against humanity.

ABDOU SALAM DIALLO ( Senegal) said that, in the absence of a common perception of precise rules that governed the implementation of universal jurisdiction, its disorderly application would have negative effects on the international community.  Previous debates on the principle had not led to a common understanding of the idea or to an approach in which its scope and limits had been clearly defined.

Recalling that universal jurisdiction had been instituted to pursue crimes of piracy, he said its application could not violate other principles of international law, including the immunity of State officials, a principle which had its origins in international customary law.  Respect for universal jurisdiction, in other words, could only reside in respect for international law.  Until a common system of application could be agreed upon, countries could not be swayed to accept the principle.  Further, the necessity for it being regulated arose from the need to avoid its real and potential abuse.  Conclusions of the International Law Commission, in that regard, would help delegations to gain a better understanding of the issues.

JOSÉ ANTONIO GONZALEZ ( Chile), speaking in his national capacity, said his country believed that universal jurisdiction should be applied only to serious crimes defined by international law.  His delegation recognized the principle specifically in cases of piracy, established formally in the United Nations Convention on the Law of the Sea.  Nonetheless, the concept could sometimes be applied on the basis of international law and, more specifically, in international treaty law in order to end impunity for serious crimes.

He said certain common elements could be found that would be acceptable to States and could govern the concept of universal jurisdiction.  Citing the principle of territoriality, the courts of the State where a crime had occurred must first assume jurisdiction to investigate the crimes and punish those responsible.  Also, in order for universal jurisdiction to apply, a State’s competence to exercise such jurisdiction must be established in a broadly accepted international treaty.

Consequently, he said, universal jurisdiction should not be based exclusively on the domestic legislation of the State.  In this regard, it was important to ensure that a State not proceed to exercise its jurisdiction unless the State that should normally exercise jurisdiction could not be prepared to carry out the investigation or prosecution or could actually be unable to do so.

Mr. ABUSABIB ( Sudan) noted that the topic at hand was not a new one for the Sixth Committee or for the international law community in general.  The attempt to expand the scope of universal jurisdiction, which had been established for crimes of piracy, had provoked numerous reservations.  Although continued discussion was welcomed, he said that those deliberations should be conducted within a limited framework and should recognize State sovereignty, independence and respect for non-interference in their internal affairs.  The principle was supplemental to national jurisdiction of States, which held the right to consider crimes occurring in their territories.  One State should not seek to apply the principle of universal jurisdiction unilaterally without an understanding of the States where the offences had been committed or without the agreement of those States from which the alleged perpetrators were nationals.

Since the definition of crimes for which universal jurisdiction could be applied was left to the determination of individual States, he said that States could then expand the scope of crimes defined as most serious.  That trend had led to uneven application of the principle from one State to another.  Echoing the views of various African leaders on the matter, he said there were double standards in the principle’s understanding and application.  In the advisory opinions of the International Court of Justice, there was proof of the principle’s subjective application.  In more than one case, those accused were high-level African officials, and such application was in violation of international conventions protecting heads of State.  African leaders had, therefore, rejected the application of the principle, which had become political in nature.  Continued work on the matter was welcome, with the view of combating impunity for the most serious crimes, while protecting the sovereignty of States, as well as their high-level officials and leaders.

FARID DAHMANE ( Algeria) said combating impunity was a legal requirement and a moral imperative.  Universal jurisdiction should be exercised in good faith, in conformity with international law principles and be used only as a last resort, when other effective judicial procedures were not present.  In that regard, it was necessary to define the types of crimes that would fall under universal jurisdiction.  Determination of scope and application should bear in mind the nature of crimes and offences.

There appeared to be broad agreement, he noted, on the principle’s application to piracy.  The application to crimes against humanity, torture, and slavery also appeared to have the broad support of Member States.  Nonetheless additional attention should be given to better delineate the principle and define how it should be implemented.

He said the Secretary-General’s report showed that different States disagreed on the degree of expansion, as well as on conditions for implementation.  Although it was necessary to underscore nuance between scope and application of universal justice by domestic courts and acceptance of principles in international courts, it was crucial to restore the legal dimension of the principle in two cases affecting the credibility, in the eyes of Member States, of the International Court of Justice.  His country supported the establishment of a working group to examine the subject.

OSCAR LEÓN GONZÁLEZ ( Cuba) said the scope and application of the principle should be debated by all States within the framework of the General Assembly.  Inappropriate use of the principle, specifically in its manipulation for political and discriminatory purposes, had negative effects on the rule of law and international relations.  The Secretary-General’s reports on the matter were clear examples of the negative use of the principle.  Examples mentioned in those reports included use of the principle by courts of developed countries against the citizens of developing countries.

The scope and application of the principle, he stated, should be limited to absolute respect for the sovereignty and jurisdiction of Member States and with respect to the immunity of high-ranking officials.  The issuing of indictments and arrest warrants against such officials undermined the sovereign equality of States.  Expressing concern about the unilateral application of the principle by national courts, he condemned politically motivated applications.  Any international regulation of the principle should ensure that those who applied it consider the laws of the State where the crime had been committed and of which the alleged perpetrator was a national.  Furthermore, its application should be limited to exceptional circumstances and only for crimes against humanity.

NOUR ZARROUK BOUMIZA ( Tunisia) said that in a world where States were increasingly interdependent, the application of universal jurisdiction enabled the international community to bring an end to serious crimes that harmed human dignity.  That principle, however, had to be exerted within the principles of the Charter and applied responsibly without abuse or selectivity.  She called for a shared definition of the principle and a determination of its scope and application.  The nub of the issue had led to the expression of different points of view on the implementation of the principle and the types of crime for which it could be applied.  It was, therefore, necessary to think about the principle further to arrive at its shared definition.

International judicial bodies, she said, had a crucial role to play in consolidating the work of the international community towards ending impunity and promoting peace and justice.  The International Criminal Court had been established as a way to better implement international humanitarian law, and the many countries that had acceded to the Rome Statute, including her own, showed the respect it had gained.  However, a prevention mechanism needed to be in place, such an independent and rigorous international constitutional court whose rulings would be respected and complemented by national and international bodies when the law was breached.

MARIANA SALAZAR ( Mexico) said it was important that the issue under discussion be submitted to the International Law Commission at the appropriate time, noting that the Commission, tasked with the development and the codification of international law, was best charged to study the matter.  Further, the work of the Working Group should be based on defining the scope and content of application.

MELANIE PAONI TUPA (Democratic Republic of Congo) said States were not inclined to include universal jurisdiction in their laws due to an absence of clarity on how to apply the principle, and the difficulties in implementing it.  Thus, the working group must help define clear rules to enable the application of universal jurisdiction.  Further, such rules must be universal in nature and conform to international customary law.  Torture and war crimes should not go unpunished, but preconditions for consensus were needed in order to facilitate exercise of the principle.

She then recalled 30 senior representatives of foreign States, most of whom were from the southern hemisphere, who were in office or no longer in office, and who had been subject of universal jurisdiction.  If each of the United Nations’ States exerted jurisdiction in those cases, “there would be a monstrous cacophony taking place”, she said.  Therefore, it was necessary to establish order in the context of immunity, as it would be difficult for a State applying universal jurisdiction to go against immunity granted by a third country.  It would be interesting, she said in conclusion, to look at the law adopted by the African Union during its nineteenth Summit in July of this year that enabled its member States to adjust national legislation to try perpetrators of international crime at the national level.

ERNEST TCHILOEMBA TCHITEMBO ( Congo) said the principle of universal jurisdiction was an important question in terms of theory and philosophy of law and politics, as well as the practice of international and national juridical institutions.  The complexity of the matter was exhibited each time the Sixth Committee discussed the matter.  In that regard, he pointed out progress made by the working group in adopting a methodology for consideration of the topic.

Application of the principle, he said, should not be confused with the applicability of decisions made by national courts over crimes that had occurred within their territories.  Nor should the principle be confused with the application of international criminal jurisdiction, the obligation to extradite or prosecute or the complementarity of the International Criminal Court.  Despite significant differences in national practice, there were a broad range of questions to work towards legal certitude.

The working group, he continued, should address problems that might arise when a national court exercised jurisdiction over another State that was not linked to the first State by any agreement or treaty.  The definition of the application and scope of universal jurisdiction, therefore, had to be defined in international legal instruments.  That definition should include a list of crimes for which the principle applied, including those stipulated in the Geneva Conventions, as well as three more categories of grave crimes:  rape; violence against children; and slavery of human beings.

In addition, he said, the definition should include conditions for exercising universal jurisdiction that were not duplicative with those of other international criminal justice bodies or other institutions.  Further, national legal particularities should not prevail over international mechanisms of that same nature.  Cooperation with existing international courts would reinforce international justice and the international legal order.

MAFIRAOANE MOTANYANE ( Lesotho), noting the perception that universal jurisdiction was selectively applied, abused or misused, said the importance of a universally agreed definition of the concept could not be overemphasized.  Such a definition would prevent, under the guise of administering justice, its potential misuse, bias, and politicization of its application.  “The unwarranted use of the principle had the potential to give rise to a new tyranny — a tyranny of judges,” he stated.  In that regard, due caution must always be exercised every time the principle was to be invoked.

Moreover, he continued, its unjustified use could have negative effects on the rule of law at the international level, as well as on international relations.  It was, therefore, important to ensure that the sovereignty and national integrity of other States was always observed in the application of the concept.  Equally important was the need to ensure that the application of universal jurisdiction did not violate the immunity granted to certain office bearers under international law.

He said that universal jurisdiction authorized States to take measures to prosecute perpetrators of the gravest crimes of universal concern, regardless of the location of the commission or the nationality of the offender or the victim.  Furthermore, no State could exercise its criminal jurisdiction over crimes committed in the territory of another State unless there was a nexus with either the offender or victim, or if the crime was universally recognized or was established under a treaty and the territorial State was unwilling or unable to carry out the prosecution.  That principle was an accepted legal basis envisaged in a number of international treaties and also crystallized into customary law.  Therefore, the scope of universal jurisdiction, as well as the conditions for its application, should be identified in accordance with the relevant provisions of each treaty.

Concerning the view that universal jurisdiction should not be confused with the “obligation to prosecute or extradite” (aut dedere aut juducare), he said that, although the aim of both concepts was to combat impunity for certain types of crimes established in international legal instruments, a clear distinction must be made between them.  He welcomed efforts by the International Law Commission in that regard and expressed hope that it would continue to “pave the way for a common understanding” of universal jurisdiction.

DEREK OBRIEN ( India) said a criminal should not go scot-free because of the procedural technicalities, including the lack of jurisdiction.  The term “jurisdiction” referred first to rule-making and second to rule-enforcing.  Theories behind jurisdiction, including territoriality, required a connection between the State asserting jurisdiction and the offence.  Universal jurisdiction, however, arose from a new and different type of jurisdictional theory — universality — which lacked proper legal backing at both the national and international levels.  That principle assumed that each State had an interest in exercising jurisdiction to prosecute offences which all nations had condemned.  The rationale for such a principle was in the nature of the offences, which affected the interest of all States, even when they were unrelated to the State assuming jurisdiction.

Piracy on the high seas, he said, was the only such crime over which claims of universal jurisdiction was undisputed under international law.  In the case of other grave crimes, international treaties, including the Geneva Conventions and the Apartheid Convention, had provided for universal jurisdiction.  That begged the question of whether jurisdiction in certain treaties could be extended to commonly exercisable jurisdiction for a wider range of offences.  Issues with extending universal jurisdiction centred on the principle’s relationship with laws relating to immunity, pardoning and amnesty, as well as harmonization with domestic laws.  Several treaties obliged States to either try a criminal or hand over that person for trial to a party that was willing to do so.  That obligation to “either extradite or prosecute” should not be confused with universal jurisdiction, he warned.

ANNIKEN ENERSEN (Norway) said that, while it fully recognized that issues of immunity could be relevant for a discussion on the instigation of criminal proceedings against officials of other States, the Committee should refrain from a pursuing a discussion on immunity under the current agenda item.  The issue of immunity as an obstacle to a court considering a case would only arise after the court has established its jurisdiction.  Any discussion relating to immunity would, therefore, be qualitatively different from a discussion about the principle of universal jurisdiction, and could derail or confuse the discussion of the latter.  In addition, questions of immunity could arise in relation to any type of jurisdiction, not only universal jurisdiction.  Further, discussion of immunity for State officials could prejudice the ongoing consideration of that topic by the International Law Commission.

Concerning universal jurisdiction’s scope, she said there was a need to adopt a cautious approach to the Committee’s deliberations.  There were divergent views and differing State practices as to which crimes universal jurisdiction applied.  Also, the scope of universal jurisdiction was constantly evolving.  New treaties, State practice, and international tribunals and scholars were shedding more light on the principle and giving it more substance.  Noting that it would be unwise to seek consensus on a list of crimes to which universal jurisdiction could be applied, she suggested identification of important core crimes over which universal jurisdiction had already been established by a number of States.

Concerning the application of the principle, she said that prosecution based on universal jurisdiction seldom occurred in practice.  Relevant national authorities often were reluctant to investigate and prosecute crimes committed by foreigners abroad due to the complexity and costs of such proceedings.  In order to avoid situations of misuse, certain national procedural issues could be addressed.  In that regard, a discussion on the development of procedural or organizational best practices for the application of universal jurisdiction could be compiled and sent to Member States.  Further, her country would also be willing to discuss measures to strengthen international assistance in relation to the application of universal jurisdiction, she said in conclusion.

FERNANDA MILLICAY (Argentina), describing the principle of universal jurisdiction as an additional tool for the exercise of criminal jurisdiction, said that the principle had contributed significantly to closing the impunity gap, making it one of the key components of the international justice system.  Its limitless application, however, could lead to conflicts of jurisdiction between States, to subjecting individuals to procedural abuses, or to politically motivated judicial prosecutions.  As well, its imprudent exercise could create friction among States, if it were to be perceived as a tool for interfering in the internal affairs of other countries or as some kind of hegemonic jurisdiction exercised by some developed States against nationals of developing countries.  Clear rules would ensure its reasonable exercise.

Due to the complexity of the matter, she said, the relevant working group should take a step-by-step approach in its examination, first clarifying the concept and not ruling out its consideration by the International Law Commission.  The principle was often confused with other jurisdictional concepts, such as aut dedere aut judicare.  While the purpose of the latter was to prevent impunity when extradition of the alleged perpetrator was not granted by the required State, universal jurisdiction constituted in itself a basis for exercise of jurisdiction grounded in the nature of the offence.

Although the explicit inclusion of universal jurisdiction in international conventions was limited, she said, more treaties implicitly allowed for States to apply for universal jurisdiction in their national legislation.  The principle aut dedere aut judicare, on the other hand, could be found in most multilateral treaties dealing with transnational crime.  That meant that treaties implicitly allowing for universal jurisdiction provided, at the same time, for the application of aut dedere aut judicare.  An examination of universal jurisdiction by the working group, she concluded, should explore the principle’s relationship with other topics.

GRACE EYOMA ( Nigeria) said that universal jurisdiction was an indisputably important tenet of international law, ensuring that perpetrators of the most heinous crimes be held accountable.  The increasingly challenging times for the international community had contributed to the copious clamour for safety, security and methods to strengthen the principle’s application.

In that regard, she said it was necessary to define the principle and its scope to ensure its unbiased application and prevent its selective application or exploitation of the law for settling political scores.  To that end, she expressed hope that the working group would engage in robust discussions on the topic.

“The time has come for us to narrow our views and agree on real substance, especially as it concerns the assertion of criminal jurisdiction by a State for certain grave offenses,” she stated.  Further clarification and consensus-building would not only strengthen the application of universal jurisdiction, but would, most importantly, give legitimacy and credibility to its usage.

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For information media • not an official record
For information media. Not an official record.