|Department of Public Information • News and Media Division • New York|
Sixty-sixth General Assembly
12th & 13th Meetings (AM & PM)
Principle of ‘Universal Jurisdiction’ Again Divides Assembly’s Legal Committee
Delegates; Further Guidance Sought from International Law Commission
Aim to Avoid Impunity for Gross Crimes Is Recalled; Concern Expressed
That Broadened Scope May Bring Other Problems, Threaten State Sovereignty
The principle of universal jurisdiction — how and to what extent it should be applied — was the central concern of the Sixth Committee (Legal) today as it reviewed the report of the Secretary-General on the matter and deliberated on its possible misuse and imposition on State sovereignty. Delegates from a large number of Member States took part in the all-day discussion.
The representative of Sri Lanka recalled that universal jurisdiction had originated as a means for maritime States to respond to piracy, with the representative of China noting the exercise of this jurisdiction was appropriate as piracy occurred on the high seas. One of the objectives, it was argued, had been to ensure gross crimes did not escape prosecution, resulting in impunity for the perpetrators.
However, gradual expansion of the principle to include other crimes, such as war crimes and genocide, caused unease among some delegates, including the representative of Sudan who expressed legal reservations. The application of the principle was directly linked to the sovereignty of States, and he noted a double standard in the understanding of the principle and selectivity in its application.
The sentiment was echoed by other delegates, in particular from African Member States. Egypt’s representative spoke of indictments by individual judges in non-African States against only African leaders and officials, which violated their immunity before the courts of other States.
The problem facing the Committee was the “existing uncertainties” of the scope and applicability of the principle, the delegate from Greece stressed. While States had different opinions about the practice, Spain’s representative observed, there was no common understanding of the circumstances and conditions of its application. He welcomed both the future work of the newly-established Working Group and the work of the International Law Commission, which had already begun studying this complex principle and the myriad of related issues.
Speaking on behalf of regional groups were the representatives of Iran for the Non-Aligned Movement, Chile for the Rio Group, Australia (also for Canada and New Zealand), Qatar for the Arab Group, and Kenya for the African Group.
Also speaking in their national capacity were the representatives of Switzerland, Norway, Guatemala, Colombia, El Salvador, Peru, Cuba, Ethiopia, Russian Federation, Democratic Republic of Congo, Swaziland, Belgium, Zambia, Venezuela, Malaysia, Algeria, Senegal, Rwanda, Argentina, Israel, Czech Republic, South Africa, Sweden, Indonesia, Chile, United Kingdom, Finland, Burkina Faso, Kenya, Ireland, Iran, Netherlands, United States, Brazil, Tunisia, Mozambique, Republic of Korea.
The Observer of the International Committee of the Red Cross (ICRC) also spoke.
The Committee meets again at 10 a.m. Friday, 14 October, for discussions on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law.
The Sixth Committee (Legal) met today to take up the scope and application of the principle of universal jurisdiction.
For its consideration, the Committee had before it the Secretary-General’s report on the topic (document A/66/93), an addendum to the report, which includes comments from the Dominican Republic and Cuba (document A/66/93/Add.1) and a resolution of the General Assembly, adopted in January this year (document A/RES/65/33), requesting the Committee continue its work on this matter.
The introduction to the Secretary-General’s report (Section I) indicates that the report is based on information and observations received from Member States and relevant observers. Section II of the report contains information from States on relevant applicable international treaties, their domestic legal rules and judicial practice; Section III contains comments received from observers; and section IV contains a synopsis of issues raised by Governments and observers for possible discussion.
Those entities contributing to Section IV of the report raised a variety of issues, including the need for clear rules governing the application of universal jurisdiction to ensure its reasonable exercise; the necessity of considering rights and guarantees that mark the limits of State power, regardless of where a trial is conducted, once the need to exercise universal jurisdiction becomes apparent; the necessity of devising a framework of reference under international law for the principles of universal jurisdiction to specify under what conditions the State is internationally competent to investigate or prosecute extraterritorial offences; and the need to agree on the extent and applicability of universal jurisdiction within an all-inclusive multilateral arrangement, such as the United Nations.
Responses contained in the report came from these Member States: Argentina, Azerbaijan, Bosnia and Herzegovina, Botswana, Colombia, Cyprus, El Salvador, Lebanon, Lithuania, Paraguay, the Philippines, Slovakia, Slovenia, Spain, Sweden, Switzerland and the United Kingdom.
There were also responses from the following observers: the African Union; the Council of Europe; the International Labour Organization (ILO); the International Maritime Organization (IMO); the Organization for the Prohibition of Chemical Weapons; and the International Committee of the Red Cross (ICRC).
ESMAEIL BAGHAEI HAMANEH ( Iran), speaking for the Non-Aligned Movement, said the sovereignty and political independence of States should be strictly observed during judicial proceedings, when invoking the universal administration of justice. States should respect the principle of non-interference in the internal affairs of other States. The involvement of incumbent high-ranking officials should be dealt with in conformity with international law.
He said the exercise by national courts’ of criminal jurisdiction by invoking universal jurisdiction over high-ranking officials who enjoyed immunity under international law was a violation of State sovereignty; the immunity of State officials should be firmly respected. The invocation of universal jurisdiction against some member countries of the Non-Aligned Movement, in violation of the principle of immunity of State officials before the courts of other States, was of great concern, he said. Further clarification was needed to prevent any misapplication of universal jurisdiction.
He said the decisions of the International Court of Justice and the work of the International Law Commission might be useful to the discussion of the Sixth Committee in this regard. The non-aligned countries cautioned against the unwarranted expansion of crimes under universal jurisdiction. The Movement was ready to consider all options and mechanisms to ensure that the proper application of universal jurisdiction served the interest of justice without hampering the sovereign rights of States.
OCTAVIO ERRÁZURIZ ( Chile), speaking for the Rio Group of countries, said that the framework for the study and analysis of the scope and application of the principle of universal jurisdiction should be within international law and, thus, the work of the Sixth Committee. Work on this topic required dialogue, and the study of applicable international regulations. The working group established for this process was the appropriate setting to engender better understanding, as well as to identify other matters pertinent to this important issue.
He stressed that universal jurisdiction was an institution of international law, and one of “exceptional character” in the fight against impunity and towards the strengthening of justice. Turning to the information provided in State reports, he noted that several delegations had stated that universal jurisdiction should not be confused with the exercise of the international criminal jurisdiction, or with the “obligation to prosecute or extradite” (aut dedere aut judicare). Although States had different legal institutions, these systems were complementary to each other in order to end impunity.
He said it would be productive to discuss procedural aspects, such as the conditions for the exercise of the universal jurisdiction, the relationship between the different criteria for establishing jurisdiction, and the regime of immunity in international law, among others. It was too early to assess the results of the working group. The possibility of the International Law Commission studying this matter in the future should be considered.
SUE ROBERTSON (Australia), also speaking for Canada and New Zealand, said universal jurisdiction conferred on every State the competence to exercise criminal jurisdiction over those responsible for serious crimes of international concern. This would be irrespective of where the conduct occurred, of the nationality of the perpetrator and of any links between the crime and the prosecuting State. Such crimes were likely to occur in all States and it was, therefore, in the interest of all States to ensure their suppression. The territorial State where the crime occurred had the primary responsibility for investigation and prosecution, as that State was usually best placed to gather evidence, secure witnesses and ensure that justice was given to those most affected. Universal jurisdiction should be seen as a complementary tool to ensure that accused persons did not achieve impunity where the territorial State was unable or unwilling to exercise jurisdiction.
She said there was a difference between universal jurisdiction and the treaty-based obligation to extradite or prosecute. “Extradite or prosecute” was usually a mandatory obligation imposed by convention, whereas universal jurisdiction generally provided an entitlement to assert jurisdiction where no other State with a greater jurisdictional nexus was prepared to take action. The Working Group on this matter should seek to delineate between these two related but distinct concepts.
A repeated criticism of universal jurisdiction, she added, was that it was open to being used by States to usurp or contravene sovereign immunity. Any immunities enjoyed by the alleged offender could only be considered by a national court after establishing a basis for jurisdiction. Because universal jurisdiction had, at times, been a basis for jurisdiction in cases where another form of extraterritorial jurisdiction had in fact been applicable, she looked forward to working with the international community to further define the issue.
SAUD AL BIN ALI (Qatar), speaking for the Arab Group, said the prime responsibility for investigating and prosecuting crimes addressed in this context lay within the State, and was covered by the principle of territoriality. This was especially the case with perpetrators crossing boundaries from State to State. Because of the difficult nature of these crimes, States needed to address the matter with goodwill and without politicization.
He said universal jurisdiction was a “deterrent tool” against crimes identified and defined in the relevant international treaties. He noted the resolutions of African Union summits expressing grave concerns about misuse of the principle of universal jurisdiction, and that its application would lead to the violation of immunity of State leaders and officials.
He underscored the report of the Secretary-General which urged that the principle be implemented in goodwill and said he looked forward to working within the Committee to ensure that the principle was not misused.
MACHARIA KAMAU (Kenya), speaking for the African Group, said that, as stated in decisions of many African Union Summits, the purpose of universal jurisdiction was to ensure that individuals who had committed grave offences, such as war crimes and crimes against humanity, did not do so with impunity and were brought to justice. The African Union Constitutive Act provided the right of the Union to intervene with Member States at the request of any other Member State in situations of these grave crimes. However, he stressed the importance of respecting other international law norms in this principle, the application of, including the sovereign equality of States, territorial jurisdiction and immunity of officials existing under customary international law. He said he recalled the view expressed by the International Court of Justice emphasizing that the “cardinal principle of the immunity of heads of States should not be put to question or re-examined”.
Continuing, he said the African Group was concerned with the abuse of the principle by non-African States. As for “arbitrary or unilateral application or interpretation” of the principle on customary international law, he stressed that it was “trite law”, recognized in all legal systems of the world and reflected in the jurisprudence or decisions of the International Court of Justice; a State relying on this must demonstrate to the Court that the alleged custom had become so established that it was legally binding to the other party. He said the African Heads of State and Governments should impose a moratorium on all pending arrest warrants and prosecutions filed against African leaders or other high-ranking officials, until discussions held within the Organization were concluded and proper recommendations could be made.
IBRAHIM SALEM ( Egypt) said the extreme gravity of certain crimes, such as genocide, war crimes, crimes against humanity, slavery and torture, rendered their suppression a joint concern of all members of the international community. The primary responsibility for investigating and prosecuting these crimes rested with the State where the crime occurred. It was when the accused perpetrator moved to another country that universal jurisdiction could be applied to cover jurisdictional gaps. However, questions and controversies remained concerning the application of this principle, including the range of crimes to which it applied and the conditions of such application.
He said that, in his opinion, universal jurisdiction should be implemented as a deterrent for crimes against humanity, war crimes and others derived from international conventions. Identifying the scope and limits of the principle was essential for promoting international criminal justice and avoiding impunity while preserving amicable relations between States. It was important to avoid any abuse, selectivity, double standards or politicization in application of the principle.
While perpetrators of serious crimes should be prosecuted and punished, it was essential that the goal of ending impunity did not generate abuse or bring about conflict with other rules of international law. Welcoming the information submitted by the African Union and included in the Secretary-General’s report, he said he was concerned about the invocation of universal jurisdiction as applied to the indictments by individual judges in non-African States against only African leaders and officials, in violation of their immunity before the courts of other States. Universal jurisdiction had to be exercised in good faith and in full conformity with international law.
NIKOLAS STÜRCHLER ( Switzerland) recognized the fight against impunity as a precondition for sustainable peace, and said he, therefore, supported the efforts of the International Criminal Court to ensure that those responsible for the most serious crimes were punished. The basis on which the Court operated should be as universal as possible. The fight, however, could not be successful unless the States primarily responsible for investigating and prosecuting the perpetrators of international crimes assumed their responsibilities. To prevent crimes that “shocked the conscience of the international community” from going unpunished, Switzerland had adopted legal measures which enabled it to exercise its jurisdiction over certain crimes, even in cases where traditional forms of jurisdiction did not exist.
He said the aim of “universal jurisdiction” was to prevent those guilty of the most serious crimes from avoiding their responsibilities by seeking refuge in another State. Some conventions allowed for States to exercise universal jurisdiction, imposing upon them the obligation to extradite or prosecute. Following the implementation of the Rome Statute, Switzerland amended its criminal code, applying universal jurisdiction to both crimes prosecuted by virtue of an international agreement and to particularly serious crimes proscribed by the international community. Welcoming the establishment of a working group on this matter, he said the International Law Commission should closely examine the issue, particularly to avoid any duplication with its examination of the obligation to extradite or prosecute.
ANNIKEN ENERSEN ( Norway) said that universal jurisdiction, a legal principle ensuring that the most serious crimes of concern to the international community did not go unpunished, was generally applied when neither the State of nationality of the alleged perpetrator or victim, nor the State where the criminal act was committed, exercised jurisdiction over the crime. Its importance as a tool in the fight against impunity for the most serious crimes should be fully recognized.
Noting that views differed as to which crimes the principle of universal jurisdiction applied, she said consensus should not be sought on a list of such crimes since the concept was evolving and gaining greater substance through new treaties, State practice, and the views of international tribunals and scholars.
She said she agreed that the principle should be applied only in the interest of justice and not for political reasons. Procedural or organizational best practices relevant to its application, to be universally recommended, merited consideration. On immunity, she said there were three reasons to refrain from discussing it under this agenda item: first, immunity as an obstacle to a court considering a case on its merits could arise only after jurisdiction had been established; second, questions of immunity could arise with regard to the exercise of any type of jurisdiction; and third, discussion of immunity for State officials might prejudice consideration of the topic, which had also been dealt with by the International Law Commission.
ANA CRISTINA RODRĺGUEZ-PINEDA (Guatemala), taking up procedural matters, said a working group on universal jurisdiction would be useful to clarify issues and would allow the Committee to focus through a well-structured and informed discussion, avoiding political sensitivities generated by the topic. The establishment of this working group showed the Committee’s firm commitment to combat impunity regarding serious crimes of international concern. There were lengthy discussions ahead on which crimes should fall under universal jurisdiction and whether the application of universal jurisdiction was limited to the crimes attributed to it, or also to its origin. The role of national courts should also be discussed.
Turning to the issue of international cooperation, she called for greater harmonization and strengthening of this element to address challenges, such as how to define truth and follow up on arrests, and how to work within diverse national investigation, prosecution and sentencing systems. In spite of preparations made by the Committee over the last two sessions, the issue was still in its preliminary stages of consideration. It was, therefore, important to enter into a well-structured discussion. The working group could formulate recommendations to the Committee so that a resolution could be drawn up if necessary. She felt confident that the issue could progress within the General Assembly; if not, it should be referred to the International Law Commission.
JUAN JOSE QUINTANA ( Colombia) said universal jurisdiction could be a prescriptive jurisdiction or an enforcement jurisdiction. In prescriptive jurisdiction, it was the freedom of a State to summit or refer to domestic criminal law, noting the limits of international law. He noted the different bases of criminal jurisdiction, among them, territorial jurisdiction, the jurisdiction of the reason of protection by the State and universal jurisdiction. He said universal jurisdiction was clearly residual, and was a concept based on the legislation of a State.
He said States had the possibility to extend criminal jurisdiction to certain international crimes; this was where jurisdiction, which was prescriptive, did not involve a customary obligation for a State to prosecute certain crimes, but an option. Further aut dedere aut judicare was included in relevant conventions and linked with customary laws over certain crimes in order to limit impunity. Universal jurisdiction did not necessarily have such a link, and should be distinguished from jurisdiction of international criminal courts, which addressed crimes when national criminal systems failed to prosecute. He stressed that the legality of the claim was dependent on being in harmony with international law and with respect for the individual, even when related to grave crimes against humanity.
JOAQUĺN A. MAZA MARTELLI ( El Salvador) said the fundamental role of universal jurisdiction in combating impunity of perpetrators of crimes against humanity was to allow States to judge serious crimes in the case of failure to act by other States. This was not a general rule, but an exception that should be applied when dealing with grave violations of human rights and international law. To deny the validity of the principle of universal jurisdiction would accept the existence of “zones”, free of all types of control, that would prevail in open “arbitrariness and violation of the primary principles linked to human dignity”. As States were not an end in themselves, universal jurisdiction was the obligation of the international community.
He said the principle of universal jurisdiction had been recognized for years under El Salvador’s criminal code. Several elements were tightly linked to its application. Once the principle was accepted, he said, there would be a criminal process composed of a series of rights and guarantees irrespective of the place where the act had been committed. This phenomenon limited the power of States and obligated the presumption of innocence and the observance of human dignity.
GONZALO BONIFAZ ( Peru) said the discussions of the Working Group needed to be based on the legal aspects of the principle. It was important to avoid targeting specific cases or assume that only specific regions were interested in its jurisdiction. He also noted that because States did not usually have a database that recorded when they exercised universal jurisdiction, that “silence” needed to be considered carefully before making premature conclusions. He also urged that duplication of work, already done in other areas of the Organization, be avoided.
Turning to substantive aspects of the principle he emphasized, among others, that it was a complementary basis for exercising jurisdiction, and that immunity regimes must be strictly considered under the framework of international law. Due process must also be taken into account during international cooperation in criminal matters over the surrendering of the accused to various tribunals. He also stressed that, while the focus needed to be on the criminal aspect of universal jurisdiction, the civil dimension not be put aside.
LESTER DELGADO SÁNCHEZ ( Cuba) said that the principle needed to be discussed in order to avoid its misuse. Relevant international treaties and the Geneva Convention upheld the principle of universal jurisdiction for crimes, among others, considered grave, and crimes against humanity. States had an obligation to search for perpetrators of such crimes to prosecute in their own courts, or to hand over to appropriate courts. However, he rejected the political misuse of this principle, notably by “developed countries acting upon third world countries”. The sovereignty of States and non-interference of States must be respected strictly without any legal proceedings. The immunity of Heads of States should not be violated under this principle.
He said universal jurisdiction should not be confused with claims of criminal jurisdiction beyond a national border as this was a completely different legal framework. Rather, it should be regulated internationally to avoid abuse, and it should take into account that if a country claimed the principle of universal jurisdiction there needed to be consent from the State where the act had been committed, and from the country where the perpetrator came from.
DAFFA-ALLA ELHAG ALI OSMAN ( Sudan) noted that the principle of universal jurisdiction had been linked to piracy in the past; attempts to expand the scope of its application raised legal reservations. Universal jurisdiction was directly linked to the sovereignty of States and the principles of international law. In this regard, it was important to agree upon the definition of the principle and juridical procedures that respected the United Nations Charter, in particular with regard to State sovereignty and non-interference in the internal affairs of States.
Discussing the position of many African leaders on the application of universal jurisdiction, he said they had found double standards in the understanding of the principle and selectivity in its application. In more than one case, which arose under scope of universal jurisdiction as applied by European countries, the suspect was a leader or official from Africa. The International Court of Justice had approved rules governed by international law providing for protection for these officials under international agreements. The European countries were, therefore, not acting under international law, and were applying universal justice with selectivity linked to national interests. Impunity should be fought according to fair rules and understanding, as well as an under international law and judicial systems protecting the sovereignty of States.
YANIT HABTEMARIAM ( Ethiopia) noted the absence of generally accepted definitions of universal jurisdiction and the lack of consensus on the offences. The different approaches had resulted in subjective considerations, which undermined the fight against impunity. The issues involved were “extremely sensitive and highly political”, and abuse could detract from the common resolve to uphold international law, order and security.
She underscored that Member States exercising universal jurisdiction over suspected perpetrators were legally bound to take into account all the immunities to which foreign State officials were entitled; if those persons were entitled to those immunities, States were duty bound to refrain from prosecuting. Thus, the regulation of the scope and application of the principle would avoid arbitrary application.
IGOR A. PANIN ( Russian Federation) spoke of the provisions of international treaties to which his country was party, and upon which his country’s national legislation on crimes against humanity, war crimes and piracy, were based. In reality, such provisions had not been broadly exercised, a situation that was the exception rather than the norm.
He said there were different views on this matter, as seen in the report of the Secretary-General. There were no new findings in the Sixth Committee that could enrich the Committee on this item, and the information from the Secretary-General pointed to a great divergence of views from States. This underscored that arbitrary exercising of the principle, or abuse of the principle, posed a hazard to harmonious relations among States. The exercising of universal jurisdiction must conform to the customary national law and the immunity of officials of States. There were other mechanisms and methods for fighting impunity at both national and international levels. “The crux of the matter is, does our Committee have any real possibility of creating common ground and common positions?”, he asked.
ZENON MUKONGO NGAY (Democratic Republic of Congo) said States were generally not willing to include universal jurisdiction in their domestic legislation and States that had done so were not willing to implement it. This reluctance stemmed from lack of precision regarding the definition of the concept and of the modalities for its application.
Because there were diverse modes of applying universal jurisdiction, he continued, it was probable that the principle would be used in an abusive manner. It was, therefore, necessary to give the Committee’s Working Group on the matter a mandate to define clear rules governing universal jurisdiction that were in alignment with international law.
He said the principle universal jurisdiction did not allow a State to exercise its jurisdiction regardless of any link with the situation. Just because the accused was present in a State, it did not make that State competent to exercise jurisdiction. Although it was true that the obligation to extradite or prosecute was found in a number of multilateral treaties to ensure international cooperation in addressing certain types of crimes, this obligation could not be considered as panacea for implementation of universal jurisdiction, nor a remedy to the shortcomings afflicting such jurisdiction.
Up to 30 Heads of State, most of whom were from the southern hemisphere, had been prosecuted by States exercising universal jurisdiction, he said. If the 194 States that comprised the United Nations exercised the principle, it would lead to great confusion; it was clear that harmonization of terminology and the understanding of the concept were required.
ZWELETHU MNISI ( Swaziland) said that the “Jekyll and Hyde character” of universal jurisdiction had ignited a debate on international law. However, it was the responsibility of each State to uphold the rule of law and fairness, and international law. “Justice is responsibility,” he said, noting that justice could never achieve its impact when “executed with vendetta”. Thus, the extraterritorial judicial intervention from “thousands of miles away” was an “unswerving attack” on sovereignty.
He called for an investigation of the nature of “judicial interventions” and pointed out that suspects were increasingly from the developing world. He questioned whether it was conceivable for a national court in the developing world to institute proceedings of a similar nature on an individual from the developed world. He emphasized past statements of his country’s delegation regarding the immunities of State leaders and officials, stating that the pursuit of these officials was equivalent to indicting a country and its people.
JEAN-CÉDRIC JANSSENS DE BISTHOVEN ( Belgium) said universal jurisdiction was a key tool for States to prosecute the gravest of crimes; pursuant to the Geneva Convention, it was mandatory for States to uphold the principle and prosecute perpetrators of grave crimes who were located on their territories or at the place of their crimes. Because many States exercised the principle in the service of the international community, common ground existed. Therefore it should be possible to create a common framework through the efforts of the Working Group, as well as identify the major issues, which crimes should be included and the relationship between universal jurisdiction and aut dedere aut judicare. He noted that the General Assembly had invited the International Law Commission to prioritize these issues and said its consideration would throw light on the Committee’s work.
KABANDA LOPA CHILEKWA ( Zambia) said that the principle of universal jurisdiction, used in good faith, was a powerful tool for the preservation of the international community’s fundamental values, for the protection and promotion of the rule of law and human rights, and for the advancement of the fight against impunity. She expressed concern at its potential for abuse because of inadequate legal clarity over its scope and application. Universal jurisdiction must not be used as a political weapon, she said, intended to annihilate the sovereignty of weaker States and the legitimate right of State officials to immunity. It was meant “to serve the collective needs of the international community and not the caprices of individual States.”
She said that if States were to apply the principle, a universally acceptable and shared understanding of its application was essential. Any proposed elaboration of universal jurisdiction must be balanced with other principles of international law, such as State sovereignty, sovereign equality of States, immunity of State officials and the rule of law. In addition, any proposed understanding of the scope and application of the principle should obligate States to ensure that it was always exercised in good faith, and that its application was as a last resort. While dedicated to ensuring that those committing offences abhorrent to the international community were answerable for them, it was imperative that Member States had proper domestic legal frameworks in place to facilitate the legitimate exercise of universal jurisdiction.
GLENNA CABELLO DE DABOIN ( Venezuela) said the application and scope of universal jurisdiction still had no legal clarification. For its impartial application, the principle required clear and transparent definitions and mechanisms, to avoid decisions based on biased interpretations that could lead to “interventionist actions”, which violated fundamental principles for the maintenance of peace and security. The principle of universal jurisdiction should reflect general principles of international law, particularly non-interference in States’ internal affairs and respect for State sovereignty. It was important that universal jurisdiction did not require the existence of an effective link through factors of territoriality, nationality or sovereignty with the State exercising its criminal jurisdiction.
She said there were more questions than answers regarding the principle of universal jurisdiction; for example, was the principle a norm or a rule? It was apparent, however, that the principle was based on certain grave crimes, where no State could remain indifferent, so it was, therefore, imperative that international cooperation be enhanced.
FARHANI AHMAD TAJUDDIN ( Malaysia) said there seemed to be a general concurrence that the most serious crimes of international concern were subject to universal jurisdiction because of their “heinous nature”. However, beyond those parameters, the extension of this group of crimes remained unclear. Further, with the exception of piracy, universal jurisdiction applied regardless of whether the international crimes were committed within the territory of a State or in areas beyond the jurisdiction of any States. On piracy, she noted her country’s prosecution of seven Somali pirates captured by the Malaysian armed forces in January of this year for attacking a Malaysian naval vessel; her country had asserted extra-territorial criminal jurisdiction.
She stressed that it was important to establish the conditions that governed the exercise of the principle, and that it was time for the General Assembly to undertake a detailed study of State practice. She called for caution in any attempt to elaborate a new instrument on universal jurisdiction and said the International Law Commission be entrusted with further investigation.
FARID DAHMANE ( Algeria) said universal jurisdiction was a topic proposed by the African Group and was a matter of many clear decisions adopted by the African Union. It needed to be exercised in good faith and in line with international law. To combat impunity was a moral and legal obligation of States, and addressing it involved national and international jurisdictions. In this regard, universal jurisdiction “must be a last recourse” when other principles were impossible to apply in prosecution.
Further, he said, the definition of what types of crime were necessary in order to establish the competency of the principle. There must be respect for the sovereignty of States and immunity of Heads of States. The scope of the principle should be based on the nature of the crime and offences, and in that regard, he pointed out that piracy, among others, was a crime which there was broad consensus for applying the principle.
He said that the reports before the Committee last year and this year showed different views as to the extent of how universal jurisdiction should be extended to a broader list of crimes; the issue needed additional attention, and it was necessary to “deepen the legal dimension”, which would encourage countries to reject double standards.
ABDOU SALAM DIALLO ( Senegal) said the controversy around the application of universal jurisdiction showed the potential for disagreement inherent in the principle. The effects of its unregulated implementation on international relations were evident in the obstacles still in the way of reaching consensus. The term universal jurisdiction along with the scope of its application and its limits needed to be defined to dispel this lack of clarity. It was important to recall that the exercise of defining this term was not to reject universal jurisdiction; rather, it was to ensure the credibility and viability of the concept, since ambiguity surrounding the concept was a source of great misunderstanding.
When applying universal jurisdiction, he said, long-enshrined principles under international law could not be neglected, such as immunity for State officials. Political considerations that nefariously resulted in double standards could only harm the application of universal jurisdiction.
OLIVIER NDUHUNGIREHE ( Rwanda) said that his country was not opposed to the principle in any way, and that it was a subsidiary to territorial jurisdiction. This was very important, especially in light of the past history of Rwanda and the genocide which it experienced. However, the crux of the matter was the abuse of the principle, and this was not coming through in Committee discussions. He cited a case in which the investigatory magistrates of European courts examined evidence, but then ignored verdicts of the national jurisdiction. This was a “flagrant violation on principles of non bis in idem”.
He said there were forty arrest warrants of officials without the rulings being transmitted to his country, and there were no requests for cooperation. This was the abuse his country was constantly decrying. While he stood ready to discuss this in this committee and in the Working Group, in the meantime, he supported the requests for a moratorium on arrest warrants issued “abusively” on heads of States.
He emphasized that the fight against the gravest of crimes was of top priority; thus, the abuse of the principle of universal jurisdiction would endanger the work toward this, and would harm relations between States.
FERNANDA MILLICAY ( Argentina) said that the primary responsibility in carrying out investigation and prosecution lay with the States in which the crimes were committed, or on other States with a connection to the crimes, such as the State of nationality of the perpetrator or victims. When those States could not or were unwilling to prosecute, other States not having a direct link with the offence could close the jurisdictional gap on the basis of universal jurisdiction.
Therefore, universal jurisdiction was not an exceptional tool, but was one of the key components of the international justice system. A limitless universal jurisdiction, however, could lead to conflicts of jurisdiction between States, to subjecting individuals to procedural abuses or even to politically motivated judicial prosecutions. The imprudent exercise of the principle could create friction among States, as it could be perceived as a tool for interfering in the internal affairs of other countries or as some kind of “hegemonic jurisdiction” exercised by some developed States against nationals of developing countries.
Clear rules were needed, she said, notably, the differences between universal jurisdiction and aut dedere aut judicare should be emphasized. While aut dedere aut judicare did not establish the basis for exercising jurisdiction when the required State opted for prosecution by its own judicial authorities, universal jurisdiction constituted, in itself, a basis for the exercise of jurisdiction, grounded in the nature of the offence and irrespective of where it was committed.
ADY SCHONMANN ( Israel) said that checks and balances were essential to ensure that universal jurisdiction be responsibly exercised, and she noted that States reported a practice of requiring the consent of a senior government authority as a prerequisite to the initiation of criminal proceedings based on the principle. On a national level, such indictments based on extraterritorial jurisdiction required the approval of the Attorney General.
She said her country shared the view that the principle was conceptually distinct from the obligation to “extradite or prosecute”, as the latter related to obligations imposed on State Parties pursuant to specific treaty provisions, and did not imply that the offence in question was subject to universal jurisdiction. She urged that the Working Group begin its efforts by focusing on the definition of the concept before delving into other related aspects.
PETR VÁLEK ( Czech Republic) said that because the application and scope of universal jurisdiction was a legal issue, the International Law Commission should study it. It might be useful to clarify the concept. He would not support the proposal to establish an international commission on universal jurisdiction as a subsidiary body of the General Assembly, as suggested by the African Union in the Secretary-General’s report on the matter. This proposal was incompatible with his understanding of a State based on the rule of law, and would run against obligations under international human rights law.
Any involvement of some international executive mechanism in criminal proceedings would inevitably interfere with the independence and impartiality of courts and judges. He reiterated his commitment to participate in the Committee’s Working Group, but believed there would be some risks involved with this process, and he was not certain when the outcome would be.
When the Sixth Committee met again this afternoon, PALITHA KOHONA ( Sri Lanka) said that, as international legal concepts expanded, the principle of universal jurisdiction remained unclear. Its early beginnings had been a means for maritime States to assert jurisdiction over piracy, but through gradual development, these had expanded to encompass other “egregious acts”, including, among others, crimes against humanity, war crimes and genocide. However, he noted that it had also been used to pursue aims which could be seen as being utilized in a selective manner to realize political goals. This could lead to the undermining of the sovereign equality of States and erode the immunity of State officials and diplomatic agents, a situation he urged should be avoided.
He stressed that it was important that the framework for the application of the principle have substantial input from the widest possible sections of the international community so as to avoid arbitrary and “convenient” definitions of jurisdiction. Further, the principle should only be invoked when all other options had been exhausted. When selectively or wrongly invoked, it could lead to “show trials”, consuming time and resources without producing a useful result. In certain instances, such cases had hindered diplomatic dialogue.
GUO XIAOMEI ( China) agued that clearly defining the definition, scope and application of universal jurisdiction bore upon the healthy development of the international legal order and international relations. In China’s view, universal jurisdiction was only an academic concept with no universally accepted definition. Based on the principle of sovereign equality, she said international law recognized the jurisdiction of a State within its own territory, as well as the jurisdictional immunities of a State in another State. States could, on the other hand, exercise jurisdiction over such crimes as piracy that occurred on the high seas. In exercising jurisdiction, a State must respect the immunities another State enjoyed under international law, including the immunities of Heads of States and other officials, diplomatic and consular personnel, and the State and their property.
On the principle of “extradite or prosecute”, she said this was a treaty obligation applicable only to the States party to the treaties concerned. It could not be generalized as universal jurisdiction. When domestic judicial organs of a State abused “so-called universal jurisdiction” and violated the legitimate rights and interests enjoyed by another State under international law, that State should bear corresponding international responsibilities. Pending a clarified understanding of the principle of universal jurisdiction, all States should refrain from exercising jurisdiction over another State in the name of the principle.
DIRE TLADI ( South Africa) said that universal jurisdiction presented a complex legal question “mashed together with difficult issues”. However, he did not think that these principles should be put aside; rather, investigation should not lose sight of their inherent paradoxes. Common agreement about the relevance of the values of universal jurisdiction was not on the validity of the principle, but about its application and scope, in particular with the intersection between universal jurisdiction and immunities of certain high ranking officials.
He said judgments of the International Court of Justice showed contrasts in approaches, where one justice did not address the question of immunities, but focused on the permissibility of exercising universal jurisdiction in absentia, and another judge noted that the two legal principles were not in competition, basing his conclusion on the extent to which the law on immunities could limit the reach of universal jurisdiction. A balance was being sought between the interest of mankind to prevent impunity, and the interest of the community of States to allow them to act freely on the inter-State level without unwarranted interference that should underlie the “endeavours to describe the contours of universal jurisdiction and its relationship to immunities”.
HILDING LUNDKVIST ( Sweden) said the exercise of universal jurisdiction was a matter of national competence, based on international law. It was of utmost importance that the rule of law governed national judicial systems to ensure an impartial and fair trail for all parties involved in investigations or prosecutions of international crimes.
He said that during the three years that the issue had been on the Sixth Committee’s agenda, the Committee had been informed about the practices of Member States and their different understandings of the scope and application of the principle of universal jurisdiction. Further examination of the issue should be dealt with by the International Law Commission within the framework of the Commission’s ongoing examination of the obligation to prosecute or extradite. States had the right, but also an obligation, to either prosecute or extradite persons suspected of having committed crimes that fell within the scope of universal jurisdiction. This obligation, however, would not be implicated without jurisdiction. Universal jurisdiction and this obligation were inextricably linked.
YUSRA KHAN ( Indonesia) said that the principle of universal jurisdiction was based on the notion that certain crimes were so harmful to international interests that States were entitled and obliged to bring proceedings against the perpetrators. It was no surprise that this had become a matter of intense debate, as Member States had various viewpoints and a diversity of legal systems.
One viewpoint held that, although the principle was recognized in treaties and customary international law, when it came to implementation, the national judiciary in many legal systems could not apply universal jurisdiction in the absence of national legislation. In other systems, it was possible for the judiciary to rely directly on treaties and customary international law without waiting for the implementation of legislation. Every State had the right to interpret, as well as to determine whether its national law conformed to its international legal obligations.
He said Indonesia had ratified a number of treaties that might supplement domestic provisions in the application of universal jurisdiction. However, because there was no international consensus to specify other serious crimes other than piracy, which would be covered under the scope of universal jurisdiction, the exercise of the principle should be treaty-based.
MAIRA TELALIAN ( Greece) said that, although there was no general consensus on the exact meaning of universal jurisdiction, it was clear that States shared a common understanding of the gravity of the crimes over which it should be exercised. However, its application needed to be exercised with caution and in good faith in order to avoid abuse and political manipulation. Further, it should be exercised only when the territorial State was unwilling or unable to establish and exercise it jurisdiction and prosecute.
On a national level, she said, Greece had just enacted penal legislation incorporating definitions of the crimes of genocide, crimes against humanity, and war crimes, to name a few, that were consistent with the definitions of crimes in the Rome Statute. Greek court, as well, had jurisdiction over certain crimes committed abroad, including, among others, terrorist activities, piracy, slave trade and trafficking in human beings, regardless of the nationality of the offender and the locally applicable laws.
She said that the problem faced with regard to this principle was the “existing uncertainties” of its scope and applicability. Inadequate or non-existent national legislation on universal jurisdiction, politicization of the issue and the granting of immunity and amnesties by Governments had “stood so far in the way of making this principle an effective tool in the fight against impunity”.
ALENDANDRA QUEZADA ( Chile) said there had been a proliferation of legislation pursuant to which jurisdiction was exercised, in a manner that was not in line with the traditional rules recognized as the bases for such exercise: territory, and the nationality of both offender and, in some cases, the victim. That had created confusion and “ordering elements” were needed to help define the concepts, scope and sphere of the application of the principle of universal jurisdiction. That concept was basically restrictive and should be applied only in the case of serious crimes defined by international law, including piracy.
Nonetheless, he said the concept could be applied on the basis of international law and specifically, international treaty law, with the goal of ending impunity for crimes against humanity, war crimes and genocide, which were so serious as to allow for its exercise. Certain common elements could be found to govern universal jurisdiction. The basic principle to follow in that regard was that of territoriality. In general, the courts of the State in which the crimes occurred must first assume jurisdiction to investigate the crimes and punish the perpetrators. For universal jurisdiction to apply, a State’s competence to exercise it must be established in a broadly accepted international treaty.
DOUGLAS WILSON ( United Kingdom) said the clear aim of universal jurisdiction was to ensure that those who committed some of the most serious international crimes were brought to justice. It had clearly been established for only a small number of specific crimes, including piracy, grave breaches of the Geneva Conventions and other war crimes. International justice mechanisms were never designed to investigate and prosecute all cases of crimes within their jurisdiction. Therefore, prosecutions at the domestic level continued to be a vital component in the pursuit of justice for the victims of international crimes, and the possibility of domestic prosecution in a third State could be a necessary and important tool to ensure that perpetrators of serious crimes not evade justice.
Given the diversity of views, national laws and courts, international mechanisms, such as an all-inclusive multilateral arrangement, might not be possible. However, he continued, it was vital that universal jurisdiction remain available to States as a tool in the fight against impunity for the most serious international crimes and that its use be fully and properly considered where appropriate. For this reason, the United Kingdom tightened its legislation on arrest warrants, and at this time, the Director of Public Prosecutions had to give his or her consent before an arrest warrant was issued in cases where a private prosecutor was seeking an arrest warrant in relation to crimes of universal jurisdiction. This change removed the possibility of abuse of the system of private prosecutions, while at the same time, ensuring that impunity continued to be combated.
SARI MAKELA ( Finland) said that the principle of universal jurisdiction was an important tool in ensuring accountability as it could be used to try cases which could not be tried in the State where the crime was committed or in a State with any link. There were divergent views as to the exact scope of this principle. These included questions, such as whether it was complementary or secondary to other bases of jurisdiction, whether amnesty granted by the State of territoriality barred prosecution by other States, and issues of immunity.
She said Finland found that these legal questions could benefit from closer study by the International Law Commission, which was already considering the issue of the obligation to extradite, as well as that of immunity. Finland did not see any need for the establishment of a new regulatory mechanism for the exercise of universal jurisdiction. States should use existing mechanisms for dispute resolution, in particular, the International Court of Justice.
ANTOINE SOMDAH ( Burkina Faso) underscored the importance of universal jurisdiction as a tool to pursue perpetrators of crimes of the gravest nature, but the views on the principle showed a diversity of opinion on its application. Political difficulties had emerged from the abuse of the principle by different States, and he stressed that it needed to be used in goodwill and in accordance with international law. The misuse of the principle by other national courts was of concern and the indictment of foreign officials, despite immunities, had placed amicable relations between States in jeopardy. The question was complex and needed to be approached in a thorough manner, and the definitions and the misinterpretations of the principle needed to be clarified.
He said his country had ratified the Geneva Convention, but had not exercised the principle of universal jurisdiction. Further, some African States lacked the capacity to do so. In this regard, he called for assistance from the international community to reinforce and help build his country’s capacity on a national level in order to fight crimes against humanity and improve judicial cooperation between States. Despite these needs, however, much progress had been achieved in African States on the national capacity and cooperation between States as an alternative method to universal jurisdiction. The results, he said in conclusion, were proving to be good.
DANIEL WAMBURA ( Kenya) said the diverse opinions on this matter illustrated that it was controversial; if it were not defined and regulated within acceptable norms and other principles of international law, it had the potential of being abused, and a threat to peace and security. The principle was a vital tool combating impunity. However, the primary responsibility and function was within national jurisdiction in all cases, and that extraterritoriality should be invoked only in serious situations. He urged caution in its application as a guard against abuse and misuse.
The social fabric of the international order, he said, was based on sovereignty of State, respect for territorial integrity and peaceful co-existence between States. He urged that these principles, upon which the United Nations and diplomatic relations were built, be upheld without undermining international law, which should be the sole foundation to address global issues. Treaties and conventions had been concluded on an international level, addressing war crimes and piracy, among others. Provisions of these treaties formed Kenya’s national laws.
ROMAN OYARZUN ( Spain) said that, based on the reports of the Secretary General, he could not conclude that universal jurisdiction was applied selectively by States. While States had different opinions about the practice, he highlighted the generally accepted view that it was an efficient instrument against impunity for the most serious crimes. However, there was no common understanding of the circumstances and conditions of its application. Therefore, he looked forward to proposals from the Working Group on methods to be followed in defining the “scope and application of universal jurisdiction”.
It was important to bring the issue before the International Law Commission, as that would enhance technical discussion while reducing political pressure. In addition, that body was already working on the issues of obligation “aut daedere aut iudicare” and the criminal impunity of foreign State officials, both closely connected with the principle of universal jurisdiction.
NUALA Nĺ MHUIRCHEARTAIGH ( Ireland) spoke of the relation between universal jurisdiction, other categories of extra-territorial jurisdiction, the jurisdiction of international criminal tribunals and the question of immunities. However, they should be considered and applied as separate and distinct concepts. Exercise of extraterritorial jurisdiction of any type was an exception under Irish law and the application of universal jurisdiction was possible in only the most limited circumstances, for example, in cases of torture or grave breaches of the Geneva Conventions. Prosecutions were not controlled by the Irish Government, they were dealt with by a statutory office independent of the Government and the police.
On the approach to examining universal jurisdiction, she said she welcomed the establishment of the Committee’s Working Group, but was of the view that the creation of an international commission as a subsidiary to the General Assembly would not be compatible with the purpose or character of universal jurisdiction. Instead, she expressed support for the proposal of Switzerland that the topic be added to the agenda of the International Law Commission, particularly since the Commission was already examining the issues of obligation to extradite or prosecute, and the immunity of State officials from foreign criminal jurisdiction.
ESMAEIL BAGHAEI HAMANEH (Iran) recalled that after three years of consideration of the scope and application of universal jurisdiction, the time was ripe for an overall assessment of the Committee’s achievements in this regard, and clarification of its ultimate goal. He said universal jurisdiction was an exception to the exercise of criminal jurisdiction by national courts. Although universal jurisdiction entitled all States to take measures to prosecute offenders of the gravest international crimes, there was no certainty as to what crimes could be prosecuted. The only crime which could be prosecuted with certainty under universal jurisdiction was piracy. For many legal systems, extraterritorial jurisdiction should come from a multilateral treaty, meaning that only those acts criminalized under treaties to which the concerned State was party could be prosecuted.
Taking up Iran’s domestic policies, he said his country gave primary criminal jurisdiction to the territorial State. Iranian courts were entitled to exercise criminal jurisdiction over certain crimes, irrespective of the location of the crimes or nationality of the alleged offender provided that the crimes had been established under an international treaty to which Iran was party and the alleged offender was present in Iranian territory.
He said State officials of one country enjoyed immunity from criminal jurisdiction of foreign courts, and exercise of criminal jurisdiction should be carried out in accordance with relevant provisions of the treaties in which they were included. In many countries, laws had been amended to ensure the presence of the accused in the State as a necessary condition for exercising criminal jurisdiction.
CETA NOLAND ( Netherlands) said universal jurisdiction was an important tool in the fight against impunity for the most serious crimes under international law and contributed to implementation of the principle of complementarity under the Rome Statute of the International Criminal Court. She suggested potential issues for further research, including whether the accused needed to be present in the State exercising universal jurisdiction, and the relationship between universal jurisdiction and other bases for jurisdiction, including territoriality. She held that international law and existing dispute settlement mechanisms adequately allowed for the resolution of any disputes regarding the exercise of universal jurisdiction and, therefore, saw no merit in the proposed establishment of a new international regulatory body to that end.
On procedural matters, she said that this was a legal topic that should be discussed in a legal context, in preparation for future consideration. If the discussion were not based on a full and proper understanding, it could negatively impact this important tool in the fight against impunity. The International Law Commission might consider the topic further and, if it did, that work might be conducted in conjunction with related topics, such as “Obligation to extradite or prosecute (aut dedere aut judicare)” and “Immunity of State officials from foreign criminal jurisdiction”.
STEVEN HILL ( United States) supported the decision to consider the scope and application of the principle of universal jurisdiction in a working group because the topic was an important, but complicated one. Looking over the reports of the Secretary-General, it was clear that basic questions remained about universal jurisdiction and the views and practices of States related to the topic.
There were some questions that might be examined by the working group, including what was meant when referring to universal jurisdiction; to which crimes did universal jurisdiction apply; and other issues concerning the relationship between universal jurisdiction and treaty-based obligations, and the need to ensure that decisions to invoke it were undertaken in an appropriate manner.
Mr. VIERIA ( Brazil) began by welcoming the establishment of a working group to deal with the principle of universal jurisdiction, which should be carefully analysed to ensure that all principles of international law were fully respected. Universal jurisdiction was one way to achieve accountability and to deny impunity to those accused of serious international crimes. By their gravity, these crimes were ones that “shocked the conscience” of the whole of humanity and constituted egregious violations of international law. The exercise of universal jurisdiction was the responsibility of the State, according to sovereign equality of States at the international level; its exercise could not be arbitrary, nor to fulfil interests other than those of justice.
With respect to further discussions on the matter, he called for an incremental approach. The first step was to find an acceptable definition of universal jurisdiction, and then to agree on the scope of its application. The working group should then address other matters, including the kinds of crimes that might call for the application of universal jurisdiction. It was advisable to have prosecution procedures in multiple forums to maximize the chance of conviction. Additionally, Member States should show some flexibility to allow for agreement on the core elements under consideration, specifically the immunity of foreign officials. It would be premature to adopt uniform international standards on this subject at this time.
NEJMEDDINE LAKHAL ( Tunisia) said an equitable justice system to put an end to impunity was a “noble objective”; ambiguity, however, surrounded the principle of universal jurisdiction, and issues regarding its scope created diverse views from States. Its application must, therefore, be in strict compliance with international law and ensure respect for the sovereignty of States. In this regard, the international community needed to define its scope and application precisely. The principle here was to protect an international human value, as stated in the preamble of the International Court of Justice, that the most serious crimes not go unpunished and that these be addressed first on the national level with the support of the international community.
His delegation called for further reflection on this jurisdiction by “taking on board the legitimate concerns” of Member States. He also called upon the international community to assist his country in the extradition of persons who had committed crimes before the revolution, as well as the reclaiming of national assets which were stolen. Those assets were needed to create a new democracy. This support would show the commitment of the international community to the principles upon which the United Nations was based.
ANTÓNIO GUMENDE ( Mozambique) spoke about the African States concerned with abuses by individual judges from some European States in the application of universal jurisdiction. Those judges were from non-African States, he said, issuing indictments focused primarily on African leaders entitled to immunity under international law. For the effective exercise of universal jurisdiction, States needed to implement legislation providing a clear legal basis in terms of definition and penalties to be imposed on conviction and procedure. States also needed to commit to exercising extraterritorial jurisdiction beyond political motivation.
He said crimes should be defined with a clear set of penalties in accordance with procedure to be followed by domestic law. Political selectivity and double standards should not be practised in the application of universal jurisdiction. The concept of universal jurisdiction could be understood as the power of States to punish certain crimes, regardless of where they were committed and those who had committed them.
The adoption of universal jurisdiction allowed national courts to try foreigners for crimes committed abroad, finding its legitimacy in understanding and universal recognition that such crimes were clearly heinous, vile, disgusting and reprehensible, he said. By strengthening the protection of human rights, the principle could be seen as a complementary device to national institutions for protection.
KYUNG-HOON SUL ( Republic of Korea) said universal jurisdiction was established only for the specific crimes of piracy and war crimes. Universal jurisdiction, however, was an essential mechanism in the fight against impunity. Under current laws, his country had no hindrance in exercising universal jurisdiction, as appropriate, in accordance with the treaties and customary international law incorporating universal jurisdiction.
He said the principle of aut dedere aut judicare was neither equivalent to, nor synonymous with, universal jurisdiction. However, by being a signatory to treaties incorporating the obligation to prosecute or extradite, a State might exercise jurisdiction as appropriate, even if it was unconnected to the crime itself. In that context, the principle of aut detere aut judicare was inextricably linked to universal jurisdiction.
Universal jurisdiction should be applied in a responsible and judicious manner, he said, and the principle should never be used for political purposes. Universal jurisdiction should be exercised in a manner compatible with other existing rules of international law. His country considered it premature to conclude that the time was ripe for the adoption of new international instruments on the issue.
ROBERT M. YOUNG (International Committee of the Red Cross) said it was important that States establish proper sanctions for serious violations of international humanitarian law within their domestic legal frameworks and in accordance with obligations under relevant treaties. The principle of universal jurisdiction contributed to comprehensive deterrence and repression of such violations by States. For war crimes, as defined in the Geneva Conventions, State parties were obliged to search for suspected offenders, regardless of their nationality and the place the offence was committed. States were then required to bring offenders before their own courts or to hand them over to another State party for trial. Other international instruments contained similar obligations for States.
Addressing actions taken by States in this regard, he said several suspects had been prosecuted in national courts for grave breaches other than war crimes, based on extraterritorial jurisdiction. Some States attached conditions to the exercise of universal jurisdiction for these types of crimes; such conditioning factors must aim to increase the predictability of universal jurisdiction and must not unnecessarily restrict the possibility of prosecuting suspected offenders. In that regard, universal jurisdiction was not the only means of fighting impunity; criminal jurisdiction should remain the main tool for doing so. It was only with State inaction that recourse to international criminal tribunals remained a relevant option.
He said the effective protection of war victims required both preventive and enforcement measures, and the principle of universal jurisdiction was one of the tools that could be used to achieve these goals. He appealed to all States to have the proper national legal frameworks in place for the exercise of jurisdiction over these serious crimes. Some States that had taken measures to enact the necessary national legislation seized the opportunity to conduct a thorough review of all of their obligations under international law; this integrated approach was welcome.
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