As Debate Concludes, Delegates Stress Universal Jurisdiction Should Be Last Resort in Combat against Impunity
As Debate Concludes, Delegates Stress Universal Jurisdiction Should Be Last Resort in Combat against Impunity
|Department of Public Information • News and Media Division • New York|
Sixty-seventh General Assembly
13th Meeting (AM)
As Debate Concludes, Delegates Stress Universal Jurisdiction
Should Be Last Resort in Combat against Impunity
Although universal jurisdiction served to fight impunity, it should only be used in exceptional circumstances when other means of justice had been exhausted, delegates told the Sixth Committee (Legal) today as it concluded its debate on the scope and application of the principle of universal jurisdiction.
States could only turn to the principle of universal jurisdiction or international criminal tribunals when other States had failed to act, said Malaysia’s delegate. Although there was no need to internationally regulate the principle, it should always be applied with care and caution.
To the contrary, Mozambique’s delegate said that international regulation would rightly establish not only criteria for exercising universal jurisdiction, but its compatibility with international law. Seriously concerned about the principle’s abuse, he said certain African leaders had been the target of individual judges, namely from European countries.
Reflecting the sentiments of other speakers, Sri Lanka’s representative warned against eager, selective and political use of the principle, which undermined the sovereignty of States and eroded the immunity of high-ranking officials. Universal jurisdiction was still evolving within the international justice system and involved complex legal, political and diplomatic issues.
Iran’s delegate said there was no quick way to merge different opinions on the topic. He called for a step-by-step approach to reach consensus on criteria for both the principle’s scope and application. It was still questionable, however, whether the Sixth Committee should, in fact, engage in a sort of codification of related international law, and if so, how far it should go in that regard.
Examining the concept of universal jurisdiction required great circumspection, said the delegate of the Russian Federation, and the difference in States’ views made progress difficult. Although it would be challenging to proceed with the topic based on available information, he expressed support for continued discussion in the working group.
Also speaking today were representatives of Angola, South Africa, China, Botswana, Austria, Bangladesh, United States, Peru, Brazil, Israel, Azerbaijan and the International Committee of the Red Cross.
The Committee will meet again Friday, 19 October, at 10 a.m. to receive an oral report on the informal consultations on the administration of justice at the United Nations.
The Sixth Committee (Legal) met today to conclude its debate on the scope and application of the principle of universal jurisdiction (for background, see Press Release GA/L/3441).
ISMAEL ABRAÃO GASPAR MARTINS ( Angola) underscored the uniqueness of the African Union; it had a clear and unequivocal mandate to fight impunity. He stressed, however, that the application of the principle should be limited by absolute respect for the sovereignty and national jurisdiction of States and should not be applied in such a way that it diminished respect for national jurisdiction.
Principles in the United Nations Charter, he continued, must be respected during judicial proceedings. Universal jurisdiction must be subsidiary to the actions taken at the national level. Further, it should not be applied when national courts were investigating and prosecuting the accused. As well, the principle should be applied only when there was no other way to prevent impunity. Its application should not violate the immunity granted under international law to Heads of State, diplomatic personnel and other incumbent high-ranking official.
Universal jurisdiction, he continued, must not be confused with international criminal jurisdiction, which was exercised by international criminal tribunals. Pointing out that the 33 African States party to the Statute constituted the largest regional block, he said that the fact the majority of African countries supported the establishment of the Court reinforced their commitment to the rule of law at the national and international levels. Concluding, he said the exercise of universal jurisdiction should not be arbitrary and should not be used to fulfil interests other than those of justice.
TANIA STEENKAMP (South Africa) stated that the question of the principle of universal jurisdiction was not about its validity, but rather its application and scope. Expressing hope that the Sixth Committee’s work on the topic would result in greater clarity and agreement among States, she said that the principle should be applied in an exceptional and supplementary manner. It should be limited to cases where the State in which the alleged atrocities occurred and the State of nationality of the alleged perpetrator were unable or unwilling to investigate and prosecute. Moreover, its application should be limited to a small amount of crimes as designated by the international community.
On the question of immunity, she said it would become necessary to consider its scope. At this stage, her country was willing to consider all options to expedite work on the topic, including its consideration by the International Law Commission. In that regard, she trusted that the work of the Committee would contribute to a legal regime where the principle was exercised in line with agreed parameters and guidelines, in a manner that brought justice to the victims of grave offences such as slavery, genocide, war crimes and crimes against humanity.
ANTÓNIO GUMENDE (Mozambique) said the issue of universal jurisdiction was of great concern to all Member States, but particularly to African States which had been the major target of some individual judges, namely from European countries. Alarmed with some courts’ unilateral prosecutions of certain African leaders, he urged all Member States to reflect on the issue and consider its political and legal implications. Any unilateral application of the principle would endanger and disrupt the world’s whole legal system.
Calling for the principle’s application to be regulated at the international level, he said such regulation should establish criteria and compatibility with relevant international law instruments and the United Nations’ Charter. The international community must also identify those crimes that would be subject to universal jurisdiction and in which circumstances they could be invoked.
Urging that the principle be applied with much caution and within a well-established legal framework, he said it could only gain universal acceptance if its application obeyed international law, particularly the sovereign equality of all States, non-interference in the internal affairs of other States and the immunity of State officials. Recognizing the value of the principle when applied in such a way, his country was open to sharing relevant information and practices.
MIKHAIL PETROSYAN ( Russian Federation) said that while his country considered universal jurisdiction an important tool to combat impunity, a great deal of circumspection was needed in dealing with it. Noting that there had been instances where criminal courts had invoked or even abused the principle, resulting in tensions between States, he said there were other less controversial instruments available. It was important that the implementation of universal jurisdiction took into account rules of customary international law on immunity for State officials. Any attempt to extend universal jurisdiction at the international level by limiting immunity of individuals in foreign courts was not in the interest of justice.
He said the Committee’s discussions in recent years had offered real contributions to clarify the theoretical and practical aspects of implementation of the principle. Owing to the Secretariat, the Committee had a clear understanding how States viewed universal jurisdiction. The principle was also given consideration in the International Law Commission in its discussion of immunity of officials and the obligation aut dedere aut judicare.
However, the difference in views made it difficult to achieve progress on the matter, he went on to say. There was no consensus on whether it was a good idea to continue working on the issue, even with the possible involvement of experts and academics. Unfortunately, regardless of the many new aspects that had enriched the Committee’s discussion, over the last year, he had not seen new developments. Thus, it would be difficult to consider moving forward on the item based on available information. Nonetheless, he believed efforts to find a common view had not been exhausted and in that regard, he looked forward to discussions of the item in the Working Group.
REN XIAOXIA ( China) recalled that for the past three years the Sixth Committee had debated the scope and application of universal jurisdiction. A working group had been set up to examine the matter further, and States had shared their different views on the matter. She was of the view that such continued deliberations would be conducive to bridging the gap between different stances.
Outlining several important guidelines and observations on the topic, she said that the principle had to be deciphered from the rule of “extradite or prosecute”. Piracy on the high seas was the only crime for which States had the right to exercise universal jurisdiction under international law; other than that, States held divergent positions on whether the principle could be applied in other circumstances.
She said the principle should only be applied over crimes against the common interests of the international community and provided for by international treaties. Further, priority should be given to territorial, personal or protective jurisdiction, with respect to international rules on immunity as well as the fundamental principles of international law. Clarifying the meaning of the principle and defining its scope would have an important impact on preventing its politically motivated abuse and contributing to the stable and healthy development of international relations.
DIMPHO MOGAMI ( Botswana) said any more time lost in stalemate on a common understanding of universal jurisdiction could only undermine the very critical fabric of the rule of law at the international level. The lack of an acceptable definition and parameters governing its application had inevitably led to concerns around its abuse. The principle remained complex, interlaced in politics and legal intricacies. In that regard, he said there was a need for an intergovernmental process to “unlock the gridlock”.
He said his country strongly opposed any form of selectivity in the principle’s application. Further, its arbitrary application should be avoided at all costs for the safeguard and guarantee of the rule of law at the international level. The rationale for that principle stemmed from the need to ensure that serious crimes did not go unpunished. The objective was to fight impunity and to ensure the prosecution of individuals who were suspected of having committed serious crimes, including crimes against humanity.
He went on to say that impunity could never be abetted. In the absence of a common and agreed definition and scope of the application of the principle, all States should fully investigate serious crimes and war crimes that were allegedly committed by their nationals or by members of their armed forces, or committed in their territory, and afford justice for victims.
CATHERINE QUIDENUS ( Austria) said the principle had given rise to many discussions among lawyers, diplomats and in civil society. It had raised various concerns and was sometimes cause for international tensions. While she expressed support for the basic idea of universal jurisdiction, she noted a considerable amount of confusion and misapprehension with regard to the concept.
Thorough substantive discussion could be very useful, she said. Although the chair of the working group on universal jurisdiction, Ambassador Ulibarri, should be commended, the Sixth Committee was not the right forum for discussing such a highly complex legal topic, and one which needed a scientific analysis to clarify misunderstandings. The International Law Commission should therefore embark on the topic.
MOHAMMAD SARWAR MAHMOOD ( Bangladesh) said universal jurisdiction could be a useful apparatus to prosecute the perpetrators of several heinous crimes under international treaties. However, it was necessary to be cautious about potential misuse for political or other purposes. The Committee’s ongoing discussions on the principle’s scope and application were going in the right direction. In that regard, he supported the decision to form a working group under its current session to continue to undertake a thorough discussion of the item.
His country, he stated, respected universally recognized principles. However, in applying universal jurisdiction, the principles enshrined in the United Nations Charter, in particular the sovereign equality and political independence of States and non-interference in the internal affairs of States must be followed. Further, the scope and application of universal jurisdiction should take into consideration respect for the sovereignty and national jurisdiction of sovereign Member States. Extreme care should be taken to ensure the principle’s application did not violate the immunity granted under international law to Heads of State, diplomatic personnel and other high-level officials.
PALITHA KOHONA ( Sri Lanka) said universal jurisdiction was still an evolving segment of international justice and involved complex issues of a legal, political and diplomatic nature. Noting divergent views of States on the principle’s scope and application, he said some national courts had, with growing frequency, begun to exercise the principle, causing some countries to enact legislation to rein in such developments.
He said precipitate, selective and arbitrary application of the concept would not assist in its consolidation. In applying the principle, respect for international law norms was important, as was international consensus on how it should be applied. This was a matter that the International Law Commission could begin to examine. He underscored that the principle’s eager, selective and political use may undermine the principle of the sovereign equality of States and erode the immunity of State officials and diplomatic agents.
The principle should not, he continued, be exercised in another jurisdiction when the judicial mechanisms of the country were in the process of addressing an infraction. The primary responsibility in carrying out investigations and prosecutions, in that regard, rested with States where the crimes had been committed. It was disturbing that the principle was being advanced in a few jurisdictions and by certain judges without significant input from the majority of countries. Calling for checks and balances on use of the principle, he said he was pleased that several countries had tightened their legislation on arrest warrants, and had in place the need for official consent to be obtained before an arrest warrant would be issued.
STEVEN HILL ( United States) said that, despite the importance of the issue at hand and its long history as part of international law relating to piracy, basic questions remained on how jurisdiction should be exercised in relation to universal crimes and States’ relevant views and practices. Work undertaken by the Committee thus far had highlighted numerous issues associated with universal jurisdiction, including its definition and scope, and its relationship to treaty-based obligations and to the law of immunity, as well as a need to ensure that decisions to invoke the principle were undertaken in an appropriate manner. He said questions about the principle’s practical application, such as the circumstances under which and how often it was invoked, also merited further examination.
FRANCISCO RAMIREZ ( Peru) said his country’s penal code obliged it to reprimand criminal conduct consistent with international treaties. Further, it allowed it to carry out universal jurisdiction over crimes that were covered under treaties to which Peru was a party and where universal jurisdiction was included. Examples of those included the Geneva Convention of 1949 and its Convention against Torture.
He said the Sixth Committee was the appropriate forum to address the scope and principle of universal jurisdiction. In that regard, his country supported the inclusion of the item in the Committee’s agenda. However, to continue the discussions, it was appropriate to obtain the assistance of the International Law Commission, as the topic required that body’s legal input. For example, certain provisions in the Commission’s report addressed some aspects of the current item and reflected comments of several Member States. Therefore, the Commission’s study could make it possible to adopt a more ordered approach on the issue.
ESMAEIL BAGHAEI HAMANEH ( Iran) said that a common understanding of the principle had yet to be developed. There was no short method to fix the differences in opinion. A step-by-step approach was the only way in which consensually agreed criteria could be reached for both the scope and the application of the principle. The key question would be whether the Committee should, in fact, engage in a sort of codification of related international law, and if so, how far it should go in that regard.
Describing Iran’s legal system, he said Iranian courts exercised jurisdiction for any offence committed on Iranian territory, its territorial waters and air space. Also, any person, Iranian or foreigner, who had committed crimes listed in the country’s penal code, outside of Iran, and then had returned to Iran, would be prosecuted under Iranian law. Likewise, any Iranian national who committed an offence outside Iran would be prosecuted in a like manner, provided that the person had not been prosecuted in the State where the crime had been committed. The Iranian legal system, however, did not include express legislation concerning universal jurisdiction.
He said the main concern raised with regard to the concept was that its application in certain cases might contravene some aspects of international law, specifically those related to immunity. The exercise of criminal jurisdiction over foreign nationals should be unbiased and in good faith, and should not violate any immunities granted under international law. Citing the opinions of some judges of the International Court of Justice, he said that in their view, the exceptional cases where international treaties provided for universal jurisdiction applied only if the alleged offender was present on the territory.
LEANDRO VIEIRA SILVA ( Brazil) said his delegation supported an incremental approach to the current discussions, noting that the working group’s first step should continue towards finding an acceptable definition of universal jurisdiction. The working group should also address other matters, such as the types of crimes that would require the application of the principle, as well as its subsidiary character vis-à-vis territorial and personality jurisdictions. Concerning other aspects, he said it was advisable to avoid the establishment of prosecution procedures in multiple fora in order to maximize the possibility of a conviction. Also, it was premature to address adoption of uniform standards at the international level on the subject.
In his country, he said, criminal legislation had adopted the principle of territoriality as the basis for exercising criminal jurisdiction. However, it also took into account the principles of active nationality and passive personality. Universal jurisdiction could be exerted by the national tribunals in relation to the crime of genocide and crimes to which Brazil was obliged to address under treaties and conventions. Under the country’s legal framework, it was necessary to enact legislation to enable the exercise of universal jurisdiction. It was not possible to exercise the principle over a crime under customary international law alone because the lack of specific legislation would result in a violation of the principle of legality. As a party to the Rome Statute, his country was introducing international crimes into domestic law.
ADY SCHONMANN ( Israel) said that a distinction existed between universal jurisdiction and the treaty-based obligation to “extradite or prosecute”. Additionally, universal jurisdiction was a complementary mechanism of last resort and States with primary jurisdictional links should have priority in carrying out investigations and prosecutions. States had rightly and increasingly instituted certain safeguards concerning the principle to ensure its reasonable exercise, including limiting the right to initiate criminal proceedings to the public prosecution authority, or requiring the authorization of a senior legal official before initiating an investigation on the basis of universal jurisdiction. Responsible exercise of the principle was an important instrument of international criminal justice, which enhanced the rule of law. As such, she said, the working group should obtain information from additional States about their practice.
FARID JAFAROV ( Azerbaijan) said his country had ratified a number of international instruments that supplemented the domestic provisions in the application of universal jurisdiction. It had also incorporated the application of the principle into its national legislation. According to its criminal code, national courts had the jurisdiction over certain crimes committed abroad, regardless of the nationality of the perpetrators. The scope of that application included, among others, the grave violations of international humanitarian and human rights law, as well as crimes covered in the international treaties to which his country was a party.
He said the primary responsibility lied within States themselves to comply with their obligations to end impunity and to thoroughly investigate and prosecute persons responsible for the serious violations of international law. In doing so, States could then prevent violations, avoid recurrence and seek sustainable peace, justice, truth and reconciliation. Further, universal jurisdiction should be regarded as a supplementary tool, when the State where the crime had occurred or the State of nationality of an alleged perpetrator or the victim was unable or unwilling to prosecute the crime. In conclusion, he encouraged the working group to continue its deliberations on the issue.
MOHAMED DUSUKI MOKHTAR ( Malaysia) said the issue before the Committee was a sensitive one that inevitably touched on the matter of sovereignty and required the utmost balancing act. Although his country was not in favour of an international regulation on the exercise of universal jurisdiction, the principle should be applied with care and caution. Without proper understanding, legal and judicial safeguards, the principle might be used to encroach on State sovereignty and could be seen as a neo-colonial intervention.
It was also misleading, he said, to assert that universal jurisdiction was established by treaties in all instances and specifically for offences such as terrorism and drug trafficking. A closer examination of those treaties revealed that State parties were under mandatory duty to establish criminal jurisdiction on the basis of nationality and territoriality. Furthermore, universal jurisdiction should not be confused with that of aut dedere aut judicare.
Universal jurisdiction, he stressed, was not the only avenue for fighting impunity. The classic grounds of criminal jurisdiction, such as territorial and personal jurisdiction, should remain the main consideration. Only in the event of State inaction was the recourse to universal jurisdiction or international criminal tribunals appropriate. For full application of the principle, he said, a proper national legal framework and resources must be in place.
JOY ELYAHOU, International Committee of the Red Cross (ICRC)) said States had demonstrated a trend towards the obligation to exercise universal jurisdiction over the most serious international crimes. Such actions reflected a unanimous rejection of those crimes and a willingness to prevent and tackle impunity beyond their borders. The principle was central to international humanitarian law. Under the Geneva Convention of 1949, States had a legal obligation to search for persons alleged to have committed “grave breaches” and to bring those persons before their own courts, regardless of nationality and where the crime was committed. That obligation demanded an active approach. States had a duty to act as soon as they became aware that a person who had committed a grave breach had entered their territory.
She went on to say that other international instruments placed a similar obligation on States to vest some form of the principle in their courts over crimes covered by international treaties. State practice had helped to consolidate a customary rule whereby they were entitled to endow their courts with universal jurisdiction over war crimes. When States incorporated those crimes into their domestic legislation, they tended not to make a distinction between the various bases of jurisdiction that could apply in order to try such crimes themselves.
Despite challenges in implementation, she said she was encouraged by the emergence of positive practices, such as States’ efforts to centralize and customize their knowledge. A national strategy to improve criminal investigation and prosecution, including the invocation of universal jurisdiction, must include a comprehensive approach to protecting witnesses and victims. Further, the principle should not be viewed in isolation as it was not the only way to tackle impunity for international crimes. It was part of a broader system that aimed to enhance the deterrent effect of punitive measures and stop the occurrence of international crimes.
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