|Department of Public Information • News and Media Division • New York|
Sixty-eighth General Assembly
12th & 13th meetings (AM & PM)
Programme of Assistance’s Future Threatened by Lack of Adequate Funding,
Sixth Committee Told as Debate Concludes
Divergent Views Evident over Scope, Application of Universal Jurisdiction
Lack of adequate and reliable funding could threaten the future of the Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law, the Secretary of the Advisory Committee cautioned Sixth Committee delegates as deliberations on the subject began.
Virginia Morris said that while the Codification Division had, through creative budgetary measures, overcome many challenges in implementing the Programme of Assistance’s activities, it continued to face a serious and critical need for funding. “This is the crucial issue that is before you today,” she stressed.
A case in point was that of the Audiovisual Library which, she said, offered, free of charge, high quality international law training and research materials to an unlimited number of lawyers around the world via the internet. To date, the Library had been accessed by more than a million different computers and mobile devices in all 193 Member States.
Given that the rule of law was a core focus of the United Nations, that service was more crucial than ever, she said. However, voluntary contributions had dramatically decreased over the last year. Thus, three Library staff members were in danger of losing their jobs. That would mean the end of the Audiovisual Library, she stated.
Speakers, also calling for more stable funding from both voluntary contributions and the regular budget, highlighted the importance of the regional courses on international law, with several ruing the recent cancellation of the Asia Pacific course because of a lack of funding. Uruguay’s representative, noting that his country would be hosting his region’s first course in almost a decade, said that it was difficult for developing countries to provide 25 to 30 per cent of the costs required of the host country.
Costa Rica’s representative also pointed out that the Programme’s provision of professional development was often the only opportunity for lawyers and judges who lived in countries that lacked those resources to develop their skills. Echoing that, the representative of Brazil said that at a time when the rule of law had gained prominence at the United Nations, it was paradoxical that there was a continuous lack of funding for the Programme whose main purpose was to foster that principle.
As the Sixth Committee began its debate on universal jurisdiction, Canada’s delegate, speaking also for Australia and New Zealand, said that the application of universal jurisdiction was justified regardless of where the conduct occurred or the nationality of the perpetrator and required no other links between the crime and the prosecuting State.
At the same time, speaking for the African Group, Egypt’s representative said that although universal jurisdiction’s purpose was to ensure that individuals who committed grave offences were brought to justice, its concern laid in the abuse of the principle by the domestic courts of non-African States ‑ a development that endangered international law and the fight against impunity.
Other speakers today on the Programme of Assistance were representatives of the Lao People’s Democratic Republic (on behalf of Association of Southeast Asian Nations), Cuba (on behalf of the Community of Latin American and Caribbean States (CELAC)), Egypt (on behalf of the African Group), Fiji (on behalf of the Group of 77 and China), Thailand, Ethiopia, South Africa, United States, Argentina, Malaysia, Portugal, Chile, Eritrea, United Republic of Tanzania, Kenya, Russian Federation, Ireland and Israel.
A representative of the Delegation of the European Union also spoke on the Programme of Assistance.
Speaking on the topic of universal jurisdiction were representatives of Iran (on behalf of the Non-Aligned Movement), Cuba (on behalf of CELAC), Switzerland (also on behalf of Liechtenstein), Algeria, Belarus, Ethiopia, South Africa, United States, Norway, Qatar, Guatemala, Argentina, Malaysia, Republic of Korea, Brazil, Chile, India, Sri Lanka, Peru, Singapore, Finland, Czech Republic, China, Tunisia, Austria, Rwanda, Russian Federation and Poland.
An official of the International Committee of the Red Cross (ICRC) also spoke on universal jurisdiction.
The Sixth Committee will next meet 10 a.m. Thursday, 18 October, to conclude its consideration of the scope and application of universal jurisdiction.
The Sixth Committee met today to conclude its deliberations on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law (for background, see Press Release GA/L/3460).
It would then take up the scope and application of the principle of universal jurisdiction (document (A/68/113).
Introduction to Programme of Assistance
VIRGINIA MORRIS, Secretary of the Advisory Committee on the Programme of Assistance, said that over the past ten years, the Codification Division had overcome the challenges which had prevented the successful implementation of its activities under the Programme of Assistance except for one — an adequate and reliable method of funding. She stressed to delegates that “This is the crucial issue that is before you today.”
The main challenges faced by the International Law Fellowship Programme, she said, had been the limited number of fellowships funded by the regular budget and, because of space constraints, the limited number of participants. In order to save the regular budget funds being used to pay the United Nations Institute for Training and Research (UNITAR), the Codification Division had decided to perform all administrative functions for the training course. Despite the tremendous burden on the Division, that cost—saving measure had made it possible to pay for 20 fellowships this year, as compared to only 12 fellowships a few years ago. Further, the Carnegie Foundation had generously agreed to provide a larger classroom free of charge beginning in 2014, enabling a greater number of participants in the fellowship programme.
The conclusion of the host country agreement between the United Nations and Uruguay a few weeks ago would also allow the Codification Division to conduct a Regional Course for Latin American and the Caribbean in 2014, the first time in almost a decade. In that regard, the last sentence of paragraph 38 should be deleted as a technical correction. As well, Ethiopia, Thailand and Uruguay had agreed to host the Regional Courses in International Law for their respective regions. Thus, in 2014, the traditional training courses would accommodate 120 Government lawyers and teachers from developing countries, as compared to 20 participants just a few years ago. Nonetheless, the significant increase in the number of participants still did not come close to meeting the rapidly increasing need for international law training around the world.
She then turned to the matter of the Audiovisual Library of International Law, which, she pointed out, had given the United Nations the unprecedented capacity to provide, at a fixed cost of less than one dollar per user per year, high quality international law training and research materials to an unlimited number of lawyers around the world free of charge via the internet. She informed delegates that to date, the Library had been accessed by more than a million different computers and mobile devices in all 193 Member States.
However, she said, in 2003, there were significant delays of up to five years in the issuance of the Division’s legal publications. The Division had decided to address a significant backlog in its publications by preparing its legal publications using desktop publishing software. That decision imposed a heavy burden on the Division that could not be sustained. Hard copy publications were particularly important for lawyers in developing countries who did not have adequate or consistent access to the internet, computers or even electricity. The situation was further exacerbated by the Organization’s decision in 2012 to discontinue sending hard copy publications to libraries and academic institutions in developing countries due to financial constraints.
She said the proposed activities for the next biennium offered the most comprehensive programme for international law training both in the history of the Programme of Assistance and the United Nations. The activities would provide high quality international law training by leading scholars and practitioners and legal systems on virtually every subject of international law, as well as legal publications and training materials for over one million people next year, as compared to 20 people per year just a decade ago.
The report, she said, suggested a possible combination of methods for funding those activities. They included providing the minimum resources required to ensure the continuation of those activities through the regular budget; calling upon developing countries to share a greater burden in covering the cost of traditional training courses that benefited their lawyers; and calling upon developed countries to continue to provide significant funding by means of voluntary contributions. Yet, she emphasized, the positions of three persons who worked on the Library were funded by voluntary contributions. Owing to the significant decline in voluntary contributions this year, they would lose their jobs very soon. That would signify the end of the Audiovisual Library.
SALEUMXAY KOMMASITH (Lao People’s Democratic Republic), speaking for the Association of Southeast Asian Nations (ASEAN), emphasized that the regional courses in international law organized by the Office of Legal Affairs were an excellent platform to further the promotion of the rule of law. Those courses constituted the main component of the Programme of Assistance, offering high-quality training by leading scholars and practitioners and providing an essential forum for participants to share their thoughts and experiences on legal issues in different regional contexts. Thus, it was regrettable that the lack of financial support for the Regional Course in International Law for Asia-Pacific resulted in its recent cancellation.
He called upon Member States and other stakeholders to consider making voluntary contributions to the Programme so that such a course could be possible in 2014-2015. Noting the precarious financial situation of the Programme of Assistance in general, he said that to ensure the Programme’s future the entire funding for the regional courses and the Audiovisual Library should come from the regular budget, as called for in General Assembly resolution A/67/91 requesting the Secretary-General to provide the Programme budget for the biennium 2014-2015. He expressed the hope that request would be heeded.
TANIERIS DIEGUEZ LAO(Cuba), speaking for the Community of Latin American and Caribbean States (CELAC), said that the Programme was a building block to understanding the substantive norms of international law. Its scholarships and regional courses were effective platforms for the teaching and dissemination of international law, benefitting generations of State lawyers worldwide. Expressing hope that the necessary financial resources would be found for the upcoming course in Uruguay and for a second regional course, she praised the Legal Affairs Office for its maintenance of 26 user-friendly websites containing valuable resources in international law.
She stressed the value of publishing the International Court of Justice’s compilations of the summaries and decisions in all official languages as, in many cases, they were the only source for teachers, researchers and students in CELAC countries to access the contents of the Court’s jurisprudence. No effort should be spared in updating that collection and ensuring its widest dissemination. Turning to the question of finances, she noted that the Assembly had called for financing the Programme’s activities. However, no budgetary resources had been requested and voluntary contributions were extremely limited. She joined the Group of 77 and China in calling for the Programme of Assistance to be included in the regular budget.
IBRAHIM SALEM(Egypt), speaking for the African Group, said that because the Organization had placed renewed emphasis on the promotion of the rule of law, the goal of the Programme of Assistance had become even more relevant. Thus, the challenges faced by the Programme urgently needed to be addressed, in particular the financial and other resource constraints identified in the Secretary-General’s report. Expressing concern that voluntary contributions had significantly decreased in recent years, he said such contributions were not a sustainable method for funding the international law regional courses and the Audiovisual Library. There was a dire need to provide a more reliable funding method through the regular budget. He commended the Codification Division for its efforts to strengthen the Programme of Assistance and cut costs. As well, he commended the Ethiopian Government for agreeing to host the regional course on international law in May 2014 and the African Union for its voluntary contribution in that regard.
PETER THOMSON ( Fiji), speaking for the Group of 77 and China, stressed the immense benefits to State officials of both developing and developed countries who utilized the Programme’s regional courses, fellowship programmes and the Audiovisual Library. Expressing deep concern over the financial constraints facing the Programme, he noted that the regional course slated for Uruguay in 2014 had not yet secured funding despite that country’s readiness to supply 25 per cent of the cost. Further, without funds, the Audiovisual Library could be discontinued at the end of this year.
He went on to say that the Foreign Ministers of the Group had recently adopted a Ministerial Declaration stating that all aspects of the Programme should be adequately funded through the regular budget for the biennium 2014-2015, including the regional courses, the Audiovisual Library, teaching materials and publications, and the Amerasinghe Memorial Fellowship on the Law of the Sea. “For a world order based on the rule of law, we need to study, understand, teach and disseminate knowledge of international law,” he stated. That was the main purpose of the Programme, and he urged all Member States to ensure it was provided for from the regular budget.
GILLES MARHIC, Delegation of the European Union, expressing strong support for the Programme of Assistance, said that by providing international law training and resources, it had, over the past 45 years, made an important contribution to the advancement of the rule of law and to the work of the international legal community. He commended the Office of Legal Affairs and the Codification Division, in particular, for its efforts to strengthen and revitalize its activities under the Programme in order to meet the changing needs of the international community in the 21st century. The Programme was an important activity of the United Nations in the area for the benefit of all States, whether developing or developed. As such, he said the Union would give full consideration to how to ensure that the Programme had adequate resources, in order to continue to meet the needs of the international community in the years to come.
ATHIKARN DILOGWATHANA (Thailand), associating her delegation with the Group of 77 and ASEAN, said that the Programme of Assistance contributed to understanding international law and thus the rule of law. The Audiovisual Library allowed wide access to invaluable historical United Nations archives and lectures on international law. In addition the fellowship programmes had allowed generations of legal practitioners from around the globe to advance their knowledge and expertise. She stressed the importance of the regional courses and announced that Thailand would continue to support them in 2014 and 2015. In closing, she said it was vital that the Programme be assured adequate financing. She encouraged States that had not done so to make voluntary contributions.
NEGASH KIBRET (Ethiopia), associating himself with the African Group and the Group 77, said the Programme of Assistance served as a means of strengthening international peace and security. “It is a matter of necessity, not of a choice, to expand the teaching, study and dissemination of international law for its wider appreciation.” In that regard, he called on the United Nations to organize international law regional courses on a regular basis so that lawyers and others in the field in developing countries would be able to keep abreast of international law developments. In light of the significant reductions in voluntary contributions, he concurred that such contributions were not a sustainable method of funding. A more reliable funding method through the allocation of regular budget was essential.
He also noted that his country had hosted the first, second and third United Nations Regional Courses in International Law for the African Region in Addis Ababa. Such courses had played a critical role not only for Africa, but for the rest of the international community. He called upon the Office of Legal Affairs to further enhance its collaboration with the African Union, the United Nations Economic Commission for Africa, the African Institute of International Law and other African legal entities as they aimed to build legal capacities in regional and international engagements.
THEMBILE JOYINI (South Africa), associating his delegation with the Group of 77 and the African Group, expressed support for the Programme, particularly as it related to the development of international law in Africa. He noted that the African Union had contributed to the Programme’s regional courses in Africa and that an African Institute of International Law had been established. The Institute’s objectives were the codification of international law in Africa, contributing to the objectives and principles of the African Union, and the revision of treaties in Africa. In closing, he noted an African Union decision stating that African States should support proper funding of the Programme, including through the regular United Nations budget, a stance his country agreed with.
JOHN R. ARBOGAST ( United States) said his delegation was pleased to participate in the Advisory Committee, noting that it had, in its annual meeting last week, wrestled with the Programme’s funding issues as it had never had to do so before. Through its continuing contribution to educating students and practitioners throughout the world in international law, the Programme had clearly earned continuing, strong support. It was one of many important tools to strengthen the rule of law, person by person, country by country, region by region. He expressed appreciation for the efforts of the Office of Legal Affairs and the Codification Division in the face of limited resources and hoped that the rule of law exercise would serve to produce new opportunities for appropriate resource support for the regional courses in international law, the Audiovisual Library and the Programme’s other valuable activities.
FERNANDA MILLICAY(Argentina), aligning her delegation with CELAC and the Group of 77, said that the Programme’s publications constituted a priceless resource for Member States and expressed deep concern at the cancellation of the regional course for Asia Pacific due to lack of funding. It was also of concern that, for the same reason, a second course for Latin America and the Caribbean had not been confirmed. Highlighting the role of the Amerasinghe Fellowship on the Law of the Sea, she expressed regret that no information on that Fellowship had been included in the Secretary-General’s report. The demand for international law training was increasing and was key to strengthening the rule of law at the international level. “This is a critical session for the Programme of Assistance,” she said, emphasizing that, “Its continuation depends on the decisions we take.” The Programme, with all its components, must receive its financial resources from the regular budget of the Organization.
SHAZANA MOKHTAR ( Malaysia), associating her delegation with the Group of 77, expressed concern that the lack of sufficient funding threatened the continuity of the Programme’s activities in the immediate future. Further, she was disappointed that the regional course for the Asia-Pacific had been cancelled and that the Audiovisual Library was in danger of being discontinued if regular funding were not provided. She said the Programme’s activities in the 2014-2015 biennium should be supported by the funding from the United Nations regular budget as mandated by the General Assembly and called on Member States to continue making voluntary contributions towards the unhindered implementation of the Programme.
JOÃO MIGUEL MADUREIRA(Portugal), associating his delegation with the European Union, stressed the importance of the Audiovisual Library and hoped that it would continue to enlarge its archives as demand grew. He also highlighted the importance of the Programme’s reaching its beneficiaries. That included the need to secure the representation of major legal systems and find the balance among various geographical regions, while bearing in mind the limited resources available. In that regard, he said that voluntary contributions as a funding method for Programme activities was no longer practicable and that funding should come through the regular budget.
JOSÉ ANTONIO GONZALEZ( Chile) said the cancelation of the regional course on international law, which was to be held in Thailand, had shown that voluntary contributions were not a sustainable method of financing. It was thus necessary to provide more stable financing for regional courses on international law as well as for the Audiovisual Library so that both could be financed from the Organization’s regular budget. In that regard, he expressed support for the recommendations in the Secretary-General’s report and called for their adoption by the Sixth Committee.
HELENE AWET WOLDEYOHANNES (Eritrea), aligning her delegation with the African Group and the Group of 77, said that international law was becoming evermore complex, requiring more qualified professionals in specific fields. The contributions of the Programme of Assistance through its teaching and dissemination of legal publications through electronic media was important. While expressing appreciation for the Audiovisual Library as a tool for knowledge which could not be met by traditional training courses, she also expressed the hope that the important regional training courses would continue on a regular basis. In closing she added her voice to the call for establishment of a sustainable financial mechanism for the Programme.
TULLY M. MWAIPOPO (United Republic of Tanzania) expressed support for exploring the possibilities of meeting the Programme’s financial requirements through the regular budget to ensure the continuation of its activities given the resource constraints it faced. The continuation of and further strengthening of international law programmes and training courses around the world served the interest of the international community as a whole. In that regard, she said the Programme’s activities deserved the support of Member States, endorsed the recommendations regarding the continuation of the Programme in 2014-2015 and urged its full financial support through the regular United Nations budget.
JAMES N. WAWERU (Kenya), aligning his delegation with the African Group, said that in the ever changing environment of international law, there was a need to continually build capacity of all practitioners, particularly those from developing countries. He encouraged States to make voluntary contributions to the Programme. However, such contributions were inadequate to fund the Programme sustainably. He urged that adequate resources be provided under the regular budget of the United Nations.
DIANA S. TARATUKHINA( Russian Federation) said her delegation was convinced that the Programme of Assistance on international law was the key factor for encouraging the rule of law internationally, and not the multiple secretariat bodies on the rule of law which had unclear mandates. However, the Programme’s needs and objectives had been ignored due to lack of financing and it was now on the brink of ceasing its activities. She looked forward to resolving the funding issues, considering that clear instructions had been given last year to fund the Programme. Especially when compared to the requirements of rule of law bodies, the budget of the Programme was more than modest.
JOSÉ LUIS CANCELA( Uruguay), aligning his delegation with CELAC, noted that, because no regional course had been held in his region since 2004, his country had offered to host a regional course in 2014. Although it was difficult for developing countries to provide the 25 to 30 per cent of the costs required of the host country, Uruguay had recently signed the memorandum for the agreement with the United Nations. He was then surprised to learn from the report that there were insufficient funds to conduct three regional courses. Expressing regret at the cancellation of the Asia Pacific regional course in Thailand, for which preparations had already been made, he said that must not happen again. Voluntary contributions were clearly insufficient. Resources must come from the Organization’s regular budget.
TREVOR REDMOND ( Ireland), associating himself with the European Union delegation, commended the many activities of the Programme of Assistance, including making available a more user-friendly website. The Programme was the cornerstone of the United Nations efforts to promote international law since 1965, consistently offering courses and training in an open and inclusive manner. A proper understanding of international law had a crucial role to play in furthering the rule of law. For that reason, Ireland had made modest contributions to the Programme over the past several years, including this years. Stressing that a regular commitment to contribute to the Programme was essential to its ability to carry out its functions effectively, he encouraged other States to consider making regular voluntary contributions.
GEORGINA GUILLÉN-GRILLO( Costa Rica), aligning her delegation with CELAC, said the Programme’s provision of professional development to lawyers and judges was often the only opportunity for countries that did not have the resources to do so on their own. The necessary support must be made available to continue such courses. She expressed the hope that there would be sufficient funds for the course in Uruguay in 2014 and for one in Costa Rica in 2015. Further, data attested to the broad use of the Audiovisual Library. The General Assembly had mandated that the courses and the Library be funded. However, the report indicated that had not been done. She called for allocations from the regular budget toward those ends.
OHAD ZEMET ( Israel) said because international law was the cornerstone of peace and security and played a key role in facilitating international relations, his country supported all efforts to enhance the ‘dissemination and wider appreciation of international law’. Commending the accomplishments of the Codification Division, he said it was highly important that international law be learned in a regional context, and in courses that was adapted to the needs of the regional practitioners. He said that he hoped to see such events being held more frequently and in more regions of the world. He also expressed support for the Audiovisual Library as a key tool in providing accessible information to scholars and students worldwide. Hopeful that sufficient funding would be found, he said that Israel, as in previous years and even in light of budgetary constraints, would support the Library’s work with a voluntary contribution of $5,000.
LEANDRO VIEIRA SILVA( Brazil), associating his delegation with CELAC, emphasized the Programme’s contribution to promoting peace through teaching, studying and disseminating international law. At a time when the rule of law at the national and international levels had gained prominence at the United Nations, it was paradoxical that there was a continuous lack of funding for the Programme whose main purpose was to foster the rule of law.
Statements on Universal Jurisdiction
HOSSEIN GHARIBI (Iran), speaking for the Non-Aligned Movement, said that the principles enshrined in the United Nations Charter, particularly the sovereign equality of States as well as non-interference in internal affairs of other States, should be strictly observed in any judicial proceedings. The exercise of criminal jurisdiction by national courts invoking universal jurisdiction over high-ranking officials who enjoyed immunity under international law, violated the sovereignty of States, which was the most fundamental principle of international law. The immunity of State officials should be fully respected.
Universal jurisdiction provided a tool to prosecute the perpetrators of certain serious crimes under international treaties, he continued. Noting controversy as to the range of crimes falling under that jurisdiction, he expressed alarm at the implications of universal jurisdiction’s application on the immunity of State officials and, thus, on the sovereignty of the States concerned. Taking note of the African Union’s decision reiterating, inter alia, its commitment to fight impunity and requesting that arrest warrants issued on the basis of the abuse of the principle of universal jurisdiction not be executed by any M ember State, he said that further clarification was needed. In that regard, the decisions and judgments of the International Court of Justice and the work of the International Law Commission were useful sources for discussion in the Sixth Committee.
TANIERIS DIEGUEZ LAO (Cuba), speaking for CELAC, said the Committee, within the framework of the working group, should be capable of advancing points that had reached a better common understanding, and identifying other matters which required additional review. Discussions during the current session should focus on elements that were addressed in the “Informal working notes from the Chair”.
She noted that several delegations had again expressed, through various means, that universal jurisdiction should not be confused with the exercise of international criminal jurisdiction, or with the “obligation to extradite or prosecute” (aut dedere aut judicare). States had clearly indicated that they were different legal institutions, but complementary to the goal of ending impunity, a stance consistent with the Community’s understanding on the subject.
GILES NORMAN (Canada), also speaking for Australia and New Zealand, said that they had long recognized universal jurisdiction against the most serious international crimes such as genocide, crimes against humanity and war crimes. Application of universal jurisdiction was justified regardless of where the conduct occurred or the nationality of the perpetrator and required no other links between the crime and the prosecuting State.
While the primary responsibility for investigating and prosecuting the most serious international crimes should rest with the State in which the conduct occurred, he stressed that universal jurisdiction provided an important, complementary mechanism to ensure accountability for the most serious crimes where the territorial State is either unable or unwilling to exercise jurisdiction. Thus, individuals who committed such crimes would be unable to find safe haven anywhere in the world. Universal jurisdiction should always be exercised in good faith and in a manner consistent with other principles and rules of international law.
IBRAHIM SALEM (Egypt), speaking for the African Group, said that African States had recognized that universal jurisdiction was a principle of international law whose purpose was to ensure that individuals who committed grave offences did not enjoy impunity and were brought to justice. In that respect, the African Union Constitutive Act provided the Union the right to intervene, at the request of any m ember 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 African States under various United Nations human rights treaties.
The concern of the African Group, he went on to say, focused on the abuse of the principle of universal jurisdiction by the domestic courts of non-African States — a development that endangered international law and the fight against impunity. Some non-African States and their domestic courts had sought to justify their arbitrary or unilateral application or interpretation of the principle on customary international law. However, he reminded those States that it was “trite law” recognized in all principle legal systems and reflected in the International Court of Justice’s jurisprudence and decisions.
A State, he continued, which relied on a purported international custom practiced by States must, in general, demonstrate to the Court’s satisfaction that the alleged custom had become so established so as to be legally binding on the other party. He also called on the international community to adopt measures to end the abuse and political manipulation of the principle of universal jurisdiction by judges and politicians from States outside Africa.
Mr. SILBERSCHMIDT (Switzerland), also speaking for Liechtenstein, noted the great diversity of approaches to universal jurisdiction by Member States. While some had embodied the principle into national legislation, others had not; some established such jurisdiction for a variety of offences, others concentrated on genocide, war crimes and crimes against humanity; and while some saw a danger of abuse, others saw it as a pillar in the fight against impunity for the worst crimes.
More should be done to move the debate forward, he continued. The International Law Commission might be tasked to help find answers to specific questions through analytical studies, such as a study of the exercise of universal jurisdiction by national courts in criminal proceedings. Further a comprehensive legal study analyzing the practical application of the principle would provide a solid base for discussions in that regard. The Commission could lay a foundation towards that aim, drawing on other fields on its agenda, notably on the principle of aut dedere aut judicare.
MOURAD BENMEHIDI ( Algeria), associating himself with the Non-Aligned Movement and the African Group, said the principle of universal jurisdiction should be a complementary mechanism and a measure of last resort. However, during the Extraordinary Summit of the African Union recently held in Addis-Ababa, African leaders noted that the International Criminal Court’s activities during its eleven years of existence had focused exclusively on Africa, while unacceptable situations in other parts of the world had been ignored. International justice must include respect for the sovereignty and national independence of all States. In that regard, he said that the African Summit had decided that, in order to safeguard the constitutional order, stability and integrity of its member States, no charges would commence or continue before any International Court or Tribunal against any serving African Union Head of State or Government or anybody acting or entitled to act in such capacity during their term of office.
Ms. TATARINOVICH (Belarus) stressed the link between national legislation and universal jurisdiction. Currently, the categories of crimes that should come under universal jurisdiction should be crimes against peace, war crimes and piracy. Universal jurisdiction could be considered legitimate when it was used within established lines of international law and the Charter. Otherwise, extraterritorial national legislation could be used. Further, universal jurisdiction was optional and could be implemented if national jurisdictions were ineffective. Underscoring the importance of finding agreement on the components of universal jurisdiction, she proposed establishing a list of areas where there was a consensus on its use and stated her support for convening a working group to that end. She added that it would be constructive to work with the International Law Commission on the matter.
Yidnekachew GEBRE-MESKEL ( Ethiopia), associating himself with the African Group and the Non-Aligned Movement, said the principle of universal jurisdiction was clearly stipulated in Ethiopia’s criminal code. The principle must be exercised in accordance with international law and invoked only as complementary jurisdiction for serious crimes condemned by global community as heinous crime. However, the lack of definition and lack of consensus on offences it covered had made it difficult to find balance between bringing perpetrators to justice and limiting the application of scope.
The subjective consideration of the principle had undermined a common resolve to fight impunity, he pointed out. The African Union Heads of States and Governments had expressed member States’s concerns regarding arrest warrants issued to African Government officials that had violated the immunity handed to them by international law. State sovereignty and the primacy of actions by States on criminal prosecution must be respected. The immunity under which they were entitled must also be considered. In that regard, he called on the General Assembly to urge Member States that, while exercising universal jurisdiction, to refrain from misapplication of the principle and prosecution of African State officials. A resolution limiting the scope and application of the principle of universal jurisdiction must be adopted.
THEMBILE JOYINI ( South Africa) said in recent years, a number of international crimes had been created by multilateral treaties, conferring wide jurisdictional powers upon States and requiring them to prosecute or extradite persons who happened to be present in their countries. The key to determining whether a criminal prosecution or civil case could be brought based on universal jurisdiction would be the laws of a particular country in which the case was brought. In a recent case, South African authorities were under an obligation to investigate and prosecute nationals of another country allegedly responsible for torture of fellow citizens of their country. That confirmed that limited universal jurisdiction applied in South African law, he said, noting that the finding was under appeal. Regarding the general view that universal jurisdiction was key to fighting impunity, he said a number of issues remained unresolved, including the definition of universal jurisdiction, the temporal immunity of Heads of State and the selective and arbitrary application of the principle. “While there is a growing world conviction that impunity will no longer be tolerated,” he said, “a balance must be struck between the need to respect human rights and fight impunity, whilst ensuring the respect for the sovereignty of States.”
ELIZABETH BAGLEY ( United States) said that basic questions remained about how jurisdiction should be exercised in relation to universal crimes and States’ views and practices. She encouraged the Committee to continue its work, especially in exploring the practical application of universal jurisdiction, such as whether or how often it would be invoked, whether alternatives bases of jurisdiction had been relied upon at the same time, and what safeguards were available to prevent inappropriate prosecutions.
ANNIKA ENERSEN ( Norway) cautioned against trying to develop an exhaustive list of crimes for which universal jurisdiction applied, noting that such an approach would entail lengthy and possibly fruitless discussions. Further, the Committee would have to engage in the unprecedented exercise of trying to harmonise Member States’ interpretation of their treaty obligations, which was not the task of the General Assembly. Discussions should focus on organizational and procedural measures to ensure checks and balances in the principle’s application. Learning from best practices in independent prosecutorial offices would help ensure that the principle was being applied only after thorough considerations and that situations of misuse of the principle did not arise.
The Committee, she said, should refrain from pursuing a discussion on immunity for State officials under the current agenda item as that topic did not have particular relevance to universal jurisdiction. Immunity from criminal prosecution could, along with other preconditions from criminal liability, be relevant in cases based on all forms of jurisdiction. That question was under consideration by the International Law Commission, and deliberations in the Committee were not likely to be productive in that context.
MR. AL-GHANIM ( Qatar) said that universal jurisdiction should be studied in the context of international law and instruments crafted in that regard. The working group seized of the matter should define the areas of consensus among States and those that needed further study. Further, crimes that fell within universal jurisdiction should be defined. A balance must be found between universal jurisdiction, equity and the Charter. Calling for work to continue towards defining the scope of the principle, he said that acts of piracy, crimes against humanity, war crimes, and genocide, among others, must fall within that scope.
ANA CRISTINA RODRÍGUEZ PINEDA( Guatemala), associating herself with CELAC and the Non-Aligned Movement, said that it was important to gather the practice of States’ different understanding of the principle. For that reason, after four years of considering of the item, it was time to submit it to the International Law Commission so that a study of the principle within international law could be prepared and then considered at a later session. Since the inclusion of the item in the agenda, States had been invited to provide information, but information had not been sufficient and feedback had been decreasing. Many countries did not have the capacity to try criminal cases in an extraterritorial basis. Duplicative work done by other United Nations bodies would also be avoided. The Sixth Committee ran the risk of losing time and engaging in endless discussion that led nowhere. Noting that it was especially appropriate for further discussion of the subject in the Commission, she expressed interest in the proposal made by Switzerland and Liechtenstein.
MATEO ESTREME ( Argentina), aligning his delegation with CELAC, said that the first step in approaching universal jurisdiction was to clarify it as a concept. The International Law Commission might undertake a study in parallel with the Sixth Committee’s consideration of the issue. To prevent erroneous conclusions, the examination of international treaties, internal legislation and judicial practice must take into account the difference between universal jurisdiction and the principle of aut dedere aut judicare. The latter had been the subject of a study by the Commission, which had some concerns about the distinction between the two concepts. Thus, the working group on the matter should recognize and explore the relationship with other concepts, but focus on the elements characteristic of universal jurisdiction.
NORSHARIN ALIAS ( Malaysia) said the working group should continue to discuss the scope, application and definition of universal jurisdiction. While acknowledging the necessity to punish, deter and condemn crimes that caused enormous human suffering, she emphasized that universal jurisdiction was not the only avenue for fighting impunity. Prosecution in national courts should remain as the primary consideration. Clear criteria defining the concept must be first agreed by the Member States before the matter progressed. There had also not been a constructive discussion on the ultimate goal of the principle. States should exercise care and caution when incorporating universal jurisdiction into national legislation, which should be based on enabling domestic law. Malaysia had in place extra territorial criminal jurisdiction in its legal framework. She reiterated her country’s proposal that since the principle’s scope and application was a legal and technical subject matter, a further in-depth study should be entrusted to the International Law Commission.
YONGHOON CHOI ( Republic of Korea) said that after several years of discussions on the principle, there was common agreement that the most serious crimes of international concern, such as war crimes and piracy, should be subject to the principle of universal jurisdiction. However, many issues remained to be verified. There appeared to be no agreement on the principle in practice at the national level. As well, the scope of crimes to be covered still required further discussion. To move the discussion forward, he suggested that the International Law Commission, as an independent expert body, be asked to make a contribution on the subject, in particular in relation to its work on the principle of aut dedere aut judicare.
LEANDRO VIEIRA SILVA( Brazil) said the exercise of jurisdiction remained a primary responsibility of concerned States. However, ending impunity was an obligation contained in numerous relevant international treaties and a fundamental tool for having a stable, peaceful and just international system. Universal jurisdiction should only be exercised according to international law and principles and be subsidiary in nature to domestic legal systems and limited to specific crimes. He expressed support for an incremental approach to discussions, with the first step being the agreement on a definition, followed by other aspects. One of the most contentious issues remaining was the application of universal jurisdiction and the principle of justice while upholding the jurisdictional immunities of State officials. Member States should show flexibility to permit moving discussions forward.
JOSÉ ANTONIO GONZALEZ( Chile) said there was a need to provide factors that would help organize jurisdictional issues and eliminate discordances in various juridical systems and bodies of law. That would regulate universal jurisdiction by defining its concepts, scopes and areas of application, as well as exceptions. The principle should have a restrictive nature, be exceptionally applied, confined only to the criminal field, and applied only to grave crimes defined by international law. States where events had taken place should first take jurisdiction to investigate and act on them. The principle also could not be exclusively based on a State’s internal legislation. Noting that his delegation was closely following the activities of the working group in its assessment of the current status of the issue, he highlighted the working document presented by Chile to that group in 2011.
MANJEEV SINGH PURI (India), associating his delegation with the Non-Aligned Movement, said that the only crime under general international law that affected the interests of all States and was clearly within the scope of universal jurisdiction was piracy on the high seas. There were international treaties that provided a basis for universal jurisdiction for such crimes as genocide, war crimes, crimes against humanity and torture, among others. The question arose whether jurisdiction provided for specific serious international crimes under certain treaties could be converted into a commonly exercisable jurisdiction, irrespective of whether or not the other State of States were party to those treaties. Among unanswered issues were those relating to the basis of extending and exercising such jurisdiction, relationship to laws on immunity, pardons and amnesty, and harmonization with domestic laws.
NANDUNI HASINTHA GOVINNAGE, Ministry of External Affairs, Sri Lanka, said the principle of universal jurisdiction should not be exercised in a country that was in the process of addressing an infraction. “It is disturbing that in certain instances, judicial officers of countries investigating such cases have proceeded on a unilateral basis, and have ignored decisions of national courts,” she said, adding that when a State chose to exercise the principle in absentia, it must also ensure that certain safeguards were in place to prevent the abuse of the principle. Since several cases invoking universal jurisdiction in the past had deliberately targeted high officials, her country welcomed the fact that certain States had begun to recognize the need to prevent such abuses and had introduced constraints, such as requiring the prior approval of senior State authorities before instituting claims. Further, the practical application of the development of the principle should be guided by international consensus.
GLAUCO SEOANE( Peru) said that in the past his delegation had favoured inclusion of the item on the agenda and trusted that the working group would be able to address the scope of universal jurisdiction. However, the differences that had arisen to date indicated that new juridical inputs were needed. The International Law Commission had already been studying related issues and could be requested to study the issue as well. The Sixth Committee could then benefit from the Commission’s informed perspectives.
RENA LEE ( Singapore) said the principle was not and should not be the primary basis for the exercise of criminal jurisdiction by States. The primary basis for the exercise of criminal jurisdiction by States remained the territoriality and the nationality principles. Universal jurisdiction could not be applied to any and all crimes as determined by national jurisdictions, and should only be applied for particularly heinous crimes that affected the international community and where not doing so would allow the alleged perpetrator to continue to act with impunity. It should not be exercised to the exclusion of other principles of international law, which would continue to be applicable.
SARI MÄKELÄ ( Finland) said that the principle of universal jurisdiction was not a novelty in criminal law. It was generally agreed that international customary law allowed the use of universal jurisdiction with regard to certain international crimes. However, noting the divergent views on the exact scope of the principle, she thought it necessary for the working group to be able to draw on more in-depth analysis before aiming to come to any conclusions in that regard. Given the complexity of the issues relating to both the scope of the principle and to its application, the discussion could benefit from closer study of such issues by the International Law Commission. In that regard, her delegation had taken note with great interest the proposal made by Switzerland as a constructive way forward.
RENATA KLECKOVA ( Czech Republic) said her country distinguished between universal jurisdiction and the obligation aut dedere aut judicare, which was reflected on a national level by the principle of subsidiary universality. No extradition request was needed in the case of universal jurisdiction and, according to international law, there was no prohibition to the effect that States could not extend the application of their laws and the jurisdiction of their courts to persons outside their territory. The Sixth Committee operated as a political body, while the International Law Commission was an expert body, with adequate time for deliberation. The best solution to move forward was a referral to the Commission.
XIANG XIN ( China) said universal jurisdiction was different from both the jurisdiction exercised by international criminal judicial organs and the obligations of a State to extradite or prosecute. Apart from general support for the principle’s use in the case of piracy on the high seas, some States believed that it could also apply to serious violations of the four Geneva Conventions of 1949, while others held the view that some international crimes stipulated in relevant international treaties should be included in the scope of application. The scope of application should first and foremost be based on the practical need of the principle. In establishing and exercising it, States should act within existing international legal frameworks. The priority of territorial, personal and protective jurisdictions of a State must be respected.
NOUR ZARROUK BOUMIZA( Tunisia), noting a need to reach a clear consensus-based definition of that principle, and to define its scopes and limits, said the Sixth Committee and the working group should look at different elements that could be part of universal jurisdiction. Universal jurisdiction was usually complemented by, even if distinct from, the jurisdiction of the International Criminal Court. Eleven years after the Court’s establishment, it had managed to establish itself as a step forward. Nonetheless, the Court only dealt with serious crimes only after they had been committed. There was a need for a mechanism that prevented such acts, and she suggested the establishment of an International Constitutional Court that would be part of the work undertaken by the United Nations as well as regional organizations and would aim to protect human rights and freedoms. It would serve as a body of jurisdiction and evaluate matters to ensure conformity with laws, rules and practices of States around the world to generally accepted principles.
CATHERINE QUIDENUS ( Austria) said that the Sixth Committee was not the right forum for discussing such a highly complex legal topic, which needed scientific analysis in order to avoid certain misunderstandings that still sometimes governed the discussions. She therefore expressed support for requesting the International Law Commission to embark on the topic.
ETIENNE NKERABIGWI(Rwanda), associating himself with the African Group and Non-Aligned Movement, said his country believed in justice and in international justice, but was totally opposed to international judicial imperialism. If universal jurisdiction had been correctly applied, thousands of genocide suspects, including genocide suspects against whom the International Criminal Tribunal for Rwanda had issued arrest warrants, would not be enjoying safe haven in western countries and some African countries. Only a few States, especially Scandinavian countries, had shown any commitment to ensuring that those criminals were brought to justice. Furthermore, instead of judging Rwandan genocidaires who were on their soil, some judges in France and Spain had arrogantly issued arrest warrants against senior officials of the Rwandan Government, not because they had participated in genocide, but had contributed to the libertarian war that halted genocide. He urged the General Assembly to agree on how universal jurisdiction could be used for the sake of justice, instead of impeding key principles of international law. Echoing the position of the African Union, he said the issue of arrest warrants that abused the principle of universal jurisdiction must be stopped.
SERGEY A. LEONIDCHENKO( Russian Federation) said that the legal parameters of the concept of universal jurisdiction were vague and the positions of States had not moved closer. It was necessary to treat the concept with extreme caution regarding its scope and application. Its arbitrary use or abuse was likely to complicate relations between States. Further, it should be used in accordance with customary international law, particularly with regard to immunity. It would be better to use other, less contentious instruments to fight impunity. He also noted that the International Criminal Court had no relation to the issue under discussion. The work of the Committee over the last year had not produced any fundamentally new points to expand the discussion and he saw no real prospects to moving forward.
ZDZISŁAW GALICKI ( Poland) said the question of universal jurisdiction had been considered by other United Nations organs, notably the International Law Commission, which had been working on the principle of aut dedere aut iudicare in close relation with the principle of universal jurisdiction for many years. A careful analysis of the connection between the two was needed to determine whether both principles were present in customary international law. According to the Commission, the principle of universal jurisdiction was instrumental to the full operation of the obligation to extradite or prosecute. What was needed as a basis for general recognition of the principle as a generally binding rule of customary international law was a unified practice. A rule to that effect would be a powerful and effective tool to combat the most serious crimes threatening humanity.
JOY ELYAHOU, International Committee of the Red Cross (ICRC), said that the basis for universal jurisdiction over serious violations of international humanitarian law could be found in treaty law and in customary international humanitarian law. Numerous States had given effect to their obligations in domestic legislation. There were an increasing number of suspected perpetrators of war crimes who had been tried in domestic courts on the basis of universal jurisdiction without the objection of most States with which the accused were affiliated. She emphasized that the aim of applying conditions to universal jurisdiction should be to increase its predictability and effectiveness, rather than to limit its possibilities. Effective protection for victims of armed conflict also required adopting domestic laws for prosecuting those who commit war crimes. To be truly effective all systems for suppressing violations of international humanitarian law must include the principle of universal jurisdiction.
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