Underscoring the importance of moving forward, but disagreeing on the next steps, delegates in the Sixth Committee (Legal) today continued their deliberations on the principle of universal jurisdiction, its application and scope.
As the Committee continued its consideration of the relevant report of the Secretary-General (document A/71/111), Norway’s representative said that attempting to develop an exhaustive list of crimes to which the concept of universal jurisdiction would be apply would not be the best way to move forward. Rather, the discussion would benefit from a focus on the ways in which national jurisdictions organized their prosecutorial offices and how they applied the principle.
Echoing that sentiment, Malaysia’s representative advocated a cautious approach in applying the principle. Given the lack of constructive debate on the list of crimes to which the principle might be applied, it was time for the Committee to consider an in-depth analysis of the comments and information provided by States, or to mandate the International Law Commission to study elements further, he said.
China’s representative, highlighting the “great controversy” surrounding the scope of crimes to which the principle was applicable, offered a different view, pointing out that with the exception of piracy, the scope of crimes considered applicable differed widely between States. The Committee should consider the usefulness of further debate on the topic, she added.
Other delegations stressed the importance of reaching agreement on the principle, with Israel’s representative emphasizing that States should arrive at a definition of universal jurisdiction, as well as a shared understanding of the scope of its application. Viet Nam’s representative said common standards should be developed to ensure the impartial application of the principle of universal jurisdiction.
Morocco’s representative said that while his country’s laws did not recognize universal jurisdiction, its laws squared with the principle, as in legislation criminalizing torture in accordance with the Convention against Torture, and provisions covering crimes against humanity, genocide, and enforced disappearance.
Also speaking today were representatives of Slovenia, Togo, Iran (on behalf of the Non-Aligned Movement), Saudi Arabia, Belarus, Algeria, India, Serbia and Bangladesh.
Taking the floor in the exercise of the right of reply were the representatives of Serbia and Croatia.
The Sixth Committee will reconvene at 10 a.m. on Friday, 14 October, to continue its consideration of the scope and application of universal jurisdiction. It is also expected to begin discussion of the “Report of the Special Committee on the Charter of the United Nations” and on the “Strengthening of the Role of the Organization”.
PETRA LANGERHOLC (Slovenia) said jurisdiction was a significant principle of international law which could offer an important alternative to impunity, as recently seen in the trial before the Extraordinary African Chambers of the Senegalese courts. Slovenia shared the view that universal criminal jurisdiction was based on the “nature of crime regardless of the nexus between the crime and the prosecuting State”, which included the place of perpetration, as well as the nationality of the perpetrator and the victim. The principle of jurisdiction entailed challenges such as evidence collection in the context of inter-State cooperation. Slovenia was actively involved in efforts to improve cooperation and had participated in an initiative to adopt an international instrument on mutual legal assistance and extradition between States for genocide, crimes against humanity and war crimes.
AVIGAIL FRISCH BEN AVRAHAM (Israel) said her country’s Government shared the views of most countries regarding the importance of combating impunity, but States must agree on a definition of universal jurisdiction and a shared understanding of the scope and manner of its application. Criminal jurisdiction should be asserted by States with close jurisdictional links, she said, adding that universal jurisdiction had never been intended as its own independent system of justice but rather as a mechanism of last resort. Too often universal jurisdiction was used primarily to advance a political agenda or attract media attention, rather than to genuinely advance the rule of law. Appropriate safeguards must, therefore, be established in national legal systems to ensure the responsible exercise of universal jurisdiction in appropriate exceptional cases, she said.
FINTAKPA LAMEGA DEKALEGA (Togo), associating himself with the African Group and the Non-Aligned Movement, noted that despite many passionate debates over the years, the Committee had not reached a consensus on the definition and scope of the principle of universal jurisdiction because of the subject’s complexity and sensitivity. The principle should not serve as a pretext for breaching fundamental principles of international law, such as non-intervention and sovereign equality of States, he said, emphasizing that abuse of the principle was unacceptable. Given the high risk of politicizing universal jurisdiction, a strict oversight framework would be needed for applying the principle.
ALI GARSHASHBI (Iran), speaking for the Non-Aligned Movement, stated that the rationale behind the principle of universal jurisdiction seemed to be that the gravity of certain crimes was such that they were considered violations against the international community as a whole. However, proper application of universal jurisdiction required that laws be in place to ensure respect for State sovereignty and immunity for State officials. Member States did not have a common understanding of the principle and its contours, he said, adding that limits and conditions on its implementation were fragmented. Selective and prejudiced application of the principle could also lead to judicial chaos.
ABDULAZIZ AL NASSER (Saudi Arabia) said the intention of universal jurisdiction was to combat impunity. In order to enshrine the principle, judicial procedures must be crystal clear. Citing a law in the United States that authorized citizens to prosecute foreign individuals and Governments, he said it was in violation of the United Nations Charter and international law, emphasizing that the politicization of justice was not to be recommended.
RUSLAN VARANKOV (Belarus), associating himself with the Non-Aligned Movement, said it was disturbing to use universal jurisdiction to circumvent other obligations, like refugees, for example. What was significant about refugees was the due process requirement and the rights of the individuals concerned. The General Assembly should be more active with regard to universal jurisdiction, he said, recommending that the Sixth Committee discuss the principle on a biennial basis.
MEHDI REMAOUN (Algeria), associating himself with the African Group and the Non-Aligned Movement, cited the “exceptional character” of the principle of universal jurisdiction, and called for its application in good faith, “without abuse, politicization and selectivity”. It should be considered a complementary mechanism and a measure of last resort, and could not substitute the primacy of national courts and jurisdictions, he emphasized. Recalling the extraordinary Summit held by the African Union in Addis Ababa, Ethiopia, three years ago, he said the regional bloc had condemned abuse of universal jurisdiction, pointing out that the International Criminal Court had focused almost exclusively on Africa while ignoring unacceptable situations elsewhere around the world.
MOHD RADZI HARUN (Malaysia), said his country had consistently advocated a cautious approach to the application of the principle of universal jurisdiction. Such an approach would enable the international community to narrow the differences between different States while guaranteeing full respect for State sovereignty and territorial integrity. Noting with concern the lack of constructive discussion regarding the list of offences to which the principle might be applicable, he said it was time for the Committee to consider more concrete actions, such as in-depth analysis of the comments and information provided by States and relevant observers, or mandating the International Law Commission to study key elements.
KOTESWARA RAO MADIMI (India) said those who committed crimes should be brought to justice and punished, and that criminals should not get away due to a lack of jurisdiction. Under general international law, piracy on the high seas was the only crime for which universal jurisdiction was respected, while genocide, war crimes and crimes against humanity were dealt with under international treaties and conventions. He stressed the need to avoid unnecessary use of universal jurisdiction.
JI XIAOXUE (China) said the establishment and exercise of the principle of universal jurisdiction should be in accordance with the United Nations Charter and the norms of international law. It should not violate State sovereignty or diplomatic immunity. The principle was complementary in nature, and States should enjoy primary responsibility so as to avoid any overlapping or competing jurisdiction. With the exception of piracy, States had divergent views on whether universal jurisdiction existed in other situations, she said, noting that there were no rules in customary international law in this regard. Noting the “great controversy” surrounding the scope of crimes to which the principle was applicable, she said Member States should think again about the need to continue consideration of that topic.
PHAM BA VIET (Viet Nam), associating himself with the Non-Aligned Movement, said the principle of universal jurisdiction was an important tool for addressing impunity. Viet Nam’s revised Penal Code provided for universal jurisdiction for certain crimes, in accordance with ratified treaties. However, the principle should be applied in accordance with international law, and with full respect for the sovereignty of States. Universal jurisdiction should be exercised only for the prosecution of serious crimes such as genocide, crimes against humanity and war crimes, he said, adding that common standards on its scope and application must be developed to ensure that it was applied in an impartial manner.
ANDREAS MOTZFELDT KRAVIK (Norway) said the Sixth Committee was the most suitable forum for discussing the scope and application of the principle of universal jurisdiction, noting that discussions within the working group had helped clarify the positions of Member States. Noting that some delegations remained concerned about the potential abuse of the principle, he said that attempting to develop an exhaustive list of crimes for which universal jurisdiction would apply would not be a constructive way to move forward. In countries where the principle had already been incorporated into domestic legislation, responsibility for determining the scope and application of the principle in specific cases rested with national prosecutors. Deliberations in the Sixth Committee would benefit from a continued focus on the ways in which national jurisdictions organized their prosecution offices and the way in which those offices applied the principle. An important task would be to identify the appropriate mechanism for ensuring that prosecution offices were independent and free from inappropriate political influence, he said.
BORIS HOLOVKA (Serbia) said that his country’s 2003 Law on the Organization and Competence of Government Authorities in War Crimes Proceedings provided for jurisdiction over war crimes committed in the territory of the former Yugoslavia during the conflict, regardless of the nationality of the suspect or the victim. Serbia would neither amend not repeal that law, he said, noting that Croatia’s representative had claimed that the principle of universal jurisdiction was being used to rewrite history. It was Croatia that was making efforts to sweep aside the crimes committed against the Serbian population during the conflict of the 1990s, as well as those committed by the fascist regime of the Independent State of Croatia during the Second World War.
MASUD BIN MOMEN (Bangladesh) said he saw valid arguments in both the potential strengths and limitations of universal jurisdiction with regard to national and territorial jurisdictions. Bangladesh favoured an approach that was pragmatic and constructive to the extent that universal jurisdiction and national jurisdictions were legally understood to be complementing each other. That pragmatic approach was enshrined in the Rome Statute of the International Criminal Court, he said, noting that the authority vested in the Court should create an obligation for national jurisdictions of States parties to the Statute to address any risk of impunity for mass atrocity crimes. He also noted that the Court’s efforts to transcend national jurisdictions were “susceptible to the vagaries of international and domestic politics”.
MOHAMMED ATLASSI (Morocco), associating himself with the African Group and the Non-Aligned Movement, said the objective of universal jurisdiction was to punish impunity. Morocco’s law did not recognize the principle but it did provide several measures that squared with universal jurisdiction. It criminalized torture, in accordance with the Convention against Torture, and the draft review of Morocco’s Criminal Code provided for crimes against humanity, genocide, and enforced disappearance, he said.
Right of Reply
The representative of Croatia, speaking in exercise of the right of reply, said that the comments by Serbia’s representative were not based on fact or law. That country’s Law on the Organization and Competence of Government Authorities in War Crimes Proceedings had nothing to do with universal jurisdiction since it was neither universal nor politically neutral. While the Law had received some endorsements in the early days, when the international community was hopeful that Serbia would live up to its duty to prosecute war crimes, reputable international experts had expressed doubts about its jurisdictional issues, he noted.
The representative of Serbia said his country was truly committed to a common European future. Expressing concern about Croatia’s “revisionist policies and improper acts”, he said that his country expected the international community to condemn all activities leading to the rehabilitation of fascism, such as the celebration of war criminals and terrorists.
The representative of Croatia invited all delegates to read for themselves the reports of the International Criminal Tribunal for the Former Yugoslavia and the judgements of the International Court of Justice. Noting that trials and other proceedings in Serbia were not monitored by the Tribunal, he said the international community should indeed be concerned about the rehabilitation of policies that had had devastating consequences in the former Yugoslavia.
The representative of Serbia reiterated that the facts spoke for themselves, and invited all colleagues to read the reports.