The scope and application of universal jurisdiction must be clearly defined to avoid abuse of the principle, which could endanger international law, order and security, speakers told the Sixth Committee (Legal) today.
Many delegations called for a way to find consensus on the subject, pointing out that the topic had appeared on the General Assembly’s agenda due to abuse and politicization of the principle, particularly with regard to the African continent.
Burkina Faso’s delegate said that, over the years, universal jurisdiction had become an effective way to combat impunity internationally, and ensure protection of humanity’s common values. The principle waived the habitual rules of classical international law and appealed to the criminal justice of States.
However, Rwanda’s representative said that while her country supported the appropriate use of the principle in good faith, it rejected its abuse and misuse of indictments by European judges against African leaders, subjecting them to the jurisdiction of European States. That was contrary to the sovereign equality and independence of States, and evoked memories of colonialism.
Indeed, Sudan’s representative said that the immunity of Heads of State was not open to question under international law, a stance which the African Union repeatedly reaffirmed in the context of the principle being politicized.
The representative of Democratic Republic of the Congo, however, cautioned that in seeking consensus on its scope and application, “immunity must not be confused with impunity”. Customary law showed that countries claimed immunity for Heads of State under the independence of States, which they represented. Thus, immunity enjoyed by Heads of State resulted from the system of State immunities rather than diplomatic immunities.
Singapore’s representative, noting the divergence of views and the sensitivity and complexity of defining the scope and application of the principle, favoured a step-by-step approach, starting with identification of key areas where there was likely to be general consensus. That stance was supported by the representative of Brazil, who urged that an acceptable definition of the principle be found, and the crimes to which it was applicable be determined.
Norway’s delegate, however, felt that the scope of universal jurisdiction was constantly evolving. Rather than trying to reach consensus on a list of crimes to which it could be applied, discussions should focus on the procedural aspects of the application, with how prosecutors should act independently of political and other external influences.
The representative of Poland said that only general and unified practice could create a basis for widespread recognition of universal jurisdiction as a generally binding rule of customary international law. That would create a powerful tool for the international community to use in combatting the most serious crimes threatening humanity.
Also speaking today on the topic of universal jurisdiction were representatives of Iran (also speaking for the Non-Aligned Movement), Australia (also speaking for Canada and New Zealand), South Africa (speaking for the African Group), Trinidad and Tobago (speaking for Caribbean Community (CARICOM)), Costa Rica (speaking for the Community of Latin American and Caribbean States (CELAC)), Guatemala, Russian Federation, Cuba, Algeria, Israel, Democratic Republic of the Congo, Colombia, Peru, El Salvador, Malaysia, Senegal, Qatar, Switzerland, United States, Thailand, Sri Lanka, China, United Republic of Tanzania, Nigeria, Azerbaijan, Mozambique, India, Belarus, Morocco, Ethiopia, Egypt, Lebanon, Jordan, Viet Nam, Tunisia and Kenya. A representative of International Committee of the Red Cross (ICRC) also spoke.
Also speaking on the United Nations Commission on International Trade Law (UNCITRAL) was a representative of Kuwait, having requested to reopen that agenda item.
The Sixth Committee will next meet at 10 a.m. on Friday, 17 October, to take up the Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law.
The Sixth (Legal) Committee met today to take up consideration of the Secretary-General’s report on The scope and application of the principle of universal jurisdiction (document A/69/174).
HOSSEIN GHARIBI (Iran), speaking for the Non-Aligned Movement, said the sovereign equality of States and non-interference in the eternal affairs of States should be respected in applying the principle of universal jurisdiction. In that regard, the immunity of high-ranking officials should be respected. Not to do so violated the sovereignty of States.
Reminding the Committee that the item had been introduced to its agenda due to the abuse of the principle, in some cases by national courts against officials of other sovereign nations, he said those concerns should be addressed. In addition, there were questions as to the range of crimes falling under universal jurisdiction and conditions for its application. Further clarification from decisions and judgments of the International Court of Justice and the work of the International law Commission might be useful to that discussion.
JULIA O’BRIEN (Australia), speaking also on behalf of Canada and New Zealand, said their domestic legislation had established universal jurisdiction in their domestic courts over the most serious international crimes. She acknowledged those States that had provided for universal jurisdiction in their domestic law, and encouraged those States who had not already done so to do so for that category of crimes. Establishing such jurisdiction sent a unified and unequivocal message to perpetrators, and would-be perpetrators, that grave violations of international humanitarian and human rights law would not be tolerated.
She also encouraged States to cooperate and, consistent with their international obligations and national practice, provide all means of support to each other, including mutual legal assistance to ensure the expedient and effective investigation and prosecution of individuals responsible for grave crimes. Universal jurisdiction, when applied appropriately, was an important tool in the international community’s justice toolbox.
KINGSLEY MAMABOLO (South Africa), speaking for the African Group, said that abuse in the resort to universal jurisdiction, particularly over African officials, had caused the African Group to request the matter be included in the agenda of the sixty-third session of the General Assembly. In addition, the African Union, in recognition of the principle’s purpose of ensuring that individuals who committed grave offences did not enjoy impunity, provided, in its Constitutive Act, for the right of the Union to intervene, at the request of any member State, in situations of genocide, war crimes and crimes against humanity.
However, he stressed the importance of respecting other international norms in its application, including the sovereign equality of States, the territorial jurisdiction, and the immunity of officials existing under customary international law. Furthermore, the International Court of Justice was of the view that the cardinal principle of immunity of Heads of States should not be questioned. He called on the international community to adopt measures to put an end to the abuse and political manipulation of the principle by judges and politicians from States outside Africa, and that warrants of arrest issued on the basis of such abuse should not be executed by any State. The Union had urged its members to use the principle of reciprocity to defend themselves against the abuse of universal jurisdiction.
EDEN CHARLES (Trinidad and Tobago), speaking on behalf of the Caribbean Community (CARICOM), and associating himself with the Community of Latin American and Caribbean States (CELAC) and the Non-Aligned Movement, expressed support for the General Assembly decision to establish a working group within the Sixth Committee, to continue a thorough discussion of the scope and application of universal jurisdiction. He also expressed support for the jurisdiction of the International Criminal Court, noting that a central element of the Rome Statute was the fundamental principle that no one was immune under international law for crimes such as genocide, crimes against humanity, war crimes, and the crime of aggression.
Stressing that the Court’s jurisdiction was complementary to national criminal jurisdictions, he said that such authority was invited only when a State was unwilling or unable to prosecute criminals under its domestic law. In exercising universal jurisdiction, the circumstances under which such applications would be appropriate must be clearly defined. Universal jurisdiction was necessary and justifiable in instances where the crimes committed affected the international community, and national justice systems allowed the perpetrator to continue
GEORGINA GUILLÉN-GRILLO (Costa Rica), speaking for CELAC, said that universal jurisdiction was an institution of international law of exceptional character for the exercise of criminal jurisdiction. It served to fight impunity and strengthen justice.
However, the principle should not be confused with the exercise of international criminal jurisdiction, or with the obligation to extradite or prosecute. Those institutions were of different legal natures, notwithstanding their complementarity for the purposes of fighting impunity. While she could not predict the outcome of the Working Group on the matter, she mentioned the possibility of a future request to the International Law Commission to study the topic.
ANA CRISTINA RODRÍGUEZ PINEDA (Guatemala), associating herself with the Non-Aligned Movement and CELAC, said that since 1998 the International Criminal Court had been entrusted with administering international penal justice on an ongoing basis, leading one to ask where universal jurisdiction now fit in. Although the Court did not exercise universal jurisdiction, the principle did carry out an important function by filling in gaps. Its application therefore was relevant in cases when the Court’s jurisdiction could not be called. It was important to gather information on the practice of Member States and the principle’s various aspects. After consideration of the issue for five years, it was time to refer it to the International Law Commission. Her country was part of a group that had submitted a proposal urging the Commission to study the principle’s status within international law. That proposal would allow the Committee a solid and focused legal basis for consideration, given the insufficiency of feedback received from States, and enable a drafting of clear legal guidelines; avoid duplication of work carried out by other fora in the Organization; and facilitate the adoption of a technical approach. While the principle did have political ramifications, those should not dominate the legal arguments of delegations.
IDREES SAEED (Sudan), associating himself with the Non-Aligned Movement and the African Group, said that further careful and objective study was needed of the principle. Discussion of the matter must take into account the principles of equality of sovereignty and non-intervention of internal affairs of States, and must focus on the scope of application. Furthermore, priority must be given to national jurisdiction. Pointing out that States applied universal jurisdiction differently, he expressed concern at the abuse of its application by some national courts, which rendered it a source of international conflict. The immunity of Heads of State was not open to question under international law, a stance which the African Union repeatedly reaffirmed in the context of the principle being politicized. He cautioned against rushing into a unilateral determination of the scope and jurisdiction of the principle, whose determination should be kept away from politicization, and should adhere to international law, international customary law and the Charter.
MAXIM V. MUSIKHIN (Russian Federation), noting the wide range of views on universal jurisdiction and its implementation, said its main constructs remained significantly eroded. Before applying conditions of implementation and scope, Member States must exercise extreme caution, given that there had been sufficient examples of unilateral use of that principle, which had led to serious complications in inter-State discourse. Implementation should be in line with norms of customary international law, in particular those dealing with the immunity of senior officials of States. To combat impunity for the most serious crimes of international law, other not-so-contentious instruments could be used for the further strengthening of treaty and non-treaty mechanisms of cooperation in international law, such as legal assistance, extradition, exchange of information and cooperation among law enforcement. While he did not object to further discussion, he pointed out that divergent views which had hampered progress on the topic had not gone away. Moving ahead in discussion would be difficult, especially since the Committee could not realistically talk about prospects for implementation. In principle, his delegation did not see the practical utility of formulating them.
TANIERIS DIEGUEZ LAO (Cuba), associating herself with the Non-Aligned Movement and CELAC, said that the primary objective of the General Assembly should be to define the principle’s proper application. She expressed concern at its improper use by the tribunals of developed countries against developing countries, which had a negative effect on international relations. It should be used only in exceptional circumstances as a “stop-gap” measure, and not be used selectively for political purposes in contravention of international law. The Assembly should determine when and against what crimes the principle could be invoked, as well as ensure its compatibility with the Charter. The principle should be restricted to crimes against humanity and invoked only when there were no other means to prosecute the perpetrators of those acts. Furthermore, there must be approval from the country where the crimes were committed or where the perpetrator was a citizen. Its application must only be supplementary to the jurisdiction of States. Absolute immunity for Heads of State, diplomatic personnel and other high level civil servants in office should be beyond question.
MOHAMED SALAH EDDINE BELAID (Algeria), associating himself with the Non-Aligned Movement and the African Group, said his country was strongly concerned about the selective and arbitral applications of universal jurisdiction, particularly when applied without due regard to the requirements of international justice and equality. Its misuse could only negatively impact national and international stability. Selectivity, political motivation and abuse in the principle’s application against only African States by some jurisdictions, especially the International Criminal Court, were the main reasons for holding, in October 2013, an Extraordinary Summit of the African Union in Addis-Ababa. As noted during that Summit, the activities of the Court throughout its eleven years of existence had focused exclusively on Africa, while unacceptable situations in other parts of the world had been, and still were being, ignored. International justice must respect the sovereignty and independence of States, including the African countries.
AMIT HEUMANN (Israel), pointing out divergent views regarding the principle, noted that such stances were reflected in inconsistent definitions of the principle in the national legislation of States. Moreover, there were divergent views on which crimes were subject to application of the principle in national legislation and domestic judicial practices, which, in some instances, included crimes that lacked the basic characteristics inherent to the concept. There was a need to prevent the principle’s abuse by establishing appropriate safeguards in national legal systems, such as requiring that prosecutions based on universal jurisdiction be conducted publicly; approval from high-level officials be sought for its use; and that the accused be present, as well as additional jurisdictional links.
MYRIAM AMAN SOULAMA (Burkina Faso) said the principle of universal jurisdiction over the years had become an effective way to combat impunity internationally, and ensure protection of humanity’s common values. It waived the rules and habitual principles of classical international law and appealed to the criminal justice of States. To be consensual in scope and implementation, universal jurisdiction should take up the most serious international crimes, such as genocide, war crimes, and crimes against humanity. Its implementation should be based on a specific legal base. Each State must domesticate it in order to implement it within its internal judicial system. Differences of opinion on the scope and application should not stop the international community from using classical mechanisms, such as the principle of aut dedere aut judicare, a complementary principle that helped Member States deal with problems related to prosecution.
PATRICK LUNA (Brazil), associating himself with CELAC, said that the principle of sovereign equality was a reminder that the exercise of jurisdiction was a primary responsibility of the State concerned. On the other hand, ending impunity relating to the most serious crimes was an obligation contained in numerous relevant treaties, and was crucial to ensure a rule-based international system. Thus, universal jurisdiction should only be exercised in full respect to international law, and subsidiary to domestic legal systems. It needed to be limited to specific crimes and not be used arbitrarily towards political ends. An acceptable definition of the principle must be found, and the crimes to which it was applicable determined. Noting that the application of universal jurisdiction and the principle of justice while upholding jurisdictional immunities of State officials was a contentious issue, he said it was premature to adopt uniform standards at the international level. Brazil’s legal framework required enactment of national legislation to enable the exercise of universal jurisdiction.
NTUMBA DA SILVA (Democratic Republic of the Congo), associating herself with the African Group and the Non-Aligned Movement, said the Working Group should define clear rules to regulate the implementation of universal jurisdiction. As the principle allowed States to use their jurisdiction regardless of any connection with a situation, it was enough for the accused to be present in a State, in order for that State to judge. If the international community was truly motivated to achieve an equitable solution, it should exercise objectivity. She asked what could be done to achieve better acceptance of universal jurisdiction. In general terms, some uniformity was needed, as well as harmonization of some terms and concepts.
MIGUEL CAMILO RUIZ BLANCO (Colombia), associating himself with the Non-Aligned Movement and CELAC, said that the international legal system recognized five bases for penal jurisdiction, of which universal jurisdiction was the last, clearly making it of a residual nature. The thrust of the concept was the legislative authority of a State to extend its prescriptive jurisdiction when there was no territorial or national linkage. Universal jurisdiction was merely a prescriptive jurisdiction recognized by international law, giving all States the power to investigate and prosecute crimes such as genocide and crimes against humanity, even when the crimes had not been committed on their territory. However, its exercise must be in line with international law and its exercise had the same limitations as any other jurisdiction, requiring a respect for the principles of any other jurisdiction. The Colombian legal system recognized universal jurisdiction as an exception. It was limited to penal jurisdiction and applicable only to serious crimes against international humanitarian law.
GUSTAVO MEZA-CUADRA (Peru), associating himself with the Non-Aligned Movement and CELAC, underscored that there was no uniform criterion on the crimes to which universal jurisdiction should apply, and the sources that regulated its use. The experience of one Member State in cases of piracy on the high seas had shown that universal jurisdiction had traditionally been accepted through international customary law, and subsequently clarified through conventional norms. It seemed useful to assess the application of the principle to other crimes comparable to piracy, and which occurred outside the jurisdiction of coastal States. While the Committee was the appropriate forum for dealing with the principle’s scope and application, in order to move forward on the issue, the Committee should consider the possibility of the International Law Commission studying the issue as well.
RUBÉN ZAMORA (El Salvador) said misunderstandings between universal jurisdiction and other similar concepts, such as aut dedere aut judicare, must be overcome. Universal jurisdiction exclusively concerned the nature of the crime and damage caused. States could not make indiscriminate use of its punitive powers since the State where the crime was committed had primary responsibility for its prosecution, and could best investigate. Therefore, it should only be used in exceptional circumstances. In his country’s domestic legislation, universal jurisdiction provided for the application of penal law to crimes committed outside its jurisdiction when they contravened international covenants or were crimes against human rights. Therefore, the principle was not of use only for specifically named crimes.
NURASHIKIN ISMAIL (Malaysia), associating with the Non-Aligned Movement, said clear criteria defining the principle must be agreed upon before the matter progressed further. He voiced concern over the lack of discussion on the principle’s goal, noting that a uniform view was imperative in avoiding different standards in application. Without proper understanding and legal safeguards, universal jurisdiction could encroach into States’ sovereignty. Any exercise of extra-territorial criminal jurisdiction must be based on enabling domestic law, he said, citing implementation challenges, including in the acquisition of evidence from States, which could impede prosecution in national courts. For prosecuting crimes committed elsewhere, States must have in place effective mutual legal assistance in criminal matters and extradition regimes.
ZDZISLAW GALICKI (Poland) welcomed continued consideration of the principle, even though he accepted the decision of the International Law Commission to conclude the topic aut dedere aut judicare, at least temporarily. As he stated last year, on a national level the principle of territorial jurisdiction or personal jurisdiction was applied, although in limited cases it also applied universal jurisdiction. He welcomed sharing of such practices by States and international organizations, affirming that the Committee was correct to focus on how States applied the principle. Only general and unified practice could create a basis for general recognition of universal jurisdiction as a generally binding rule of customary international law. That, in turn, would create a powerful tool for the international community to use in combatting the most serious crimes threatening humanity.
IBRAHIMA SORY SYLLA (Senegal), associating himself with the African Group and the Non-Aligned Movement, said that the constant evolution of doctrine on international jurisdiction had shown that the immunity of senior officials of a State before foreign criminal courts was based, not on international courtesy, but on the bedrock of international law. Agreement must be reached on a definition of crimes that would fall under universal jurisdiction, and on the conditions of its application, to ensure its non-selective implementation. The international community must agree on a system of international prosecution applicable to all perpetrators of serious crimes, regardless of their nationality. The case with respect to Chad’s former President, Hissene Habre, was illustrative in that area. After a long judicial procedure, the African Union ultimately said Senegal was to judge Mr. Habre on behalf of Africa. Therefore, his country had amended its criminal legislation in 2007 to allow its national courts to become aware of international crimes committed outside Senegalese territory. The Chambres Africaines Extraordinaires had created and placed in Senegalese jurisdiction the capacity to judge Mr. Habre for crimes committed in Chad from 7 June 1982 until 1 December 1990. That judicial procedure had demonstrated that Africa herself could be at the avant garde in the fight against impunity.
MARIA BERGRAM AAS (Norway) said that although universal jurisdiction had gained solid standing as a principle of international criminal law, previous deliberations had revealed differing views on which crimes the principle should apply to. As the scope of universal jurisdiction was constantly evolving, she cautioned against attempts to reach a consensus on a list of crimes to which it could be applied. Instead, discussions should focus on the procedural aspects of the application with how prosecutors should act independently of political and other external influences at the forefront of the debate. It would be relevant to consider how prosecutorial discretion applied to cases based on universal jurisdiction, including how and to whom the competency to decide on universal jurisdiction was bestowed within States. Other elements were whether prosecutorial decisions were made on a collegial basis or not, and to what extent a decision to prosecute cases based on universal jurisdiction could be appealed.
LUKE TANG (Singapore), associating himself with the Non-Aligned Movement, said that universal jurisdiction served mainly to complement other bases of jurisdiction, primarily those of territoriality and nationality. Noting the divergence of views and the sensitivity and complexity of the issue, he favoured a step-by-step approach, starting with identification of key areas where there was likely to be general consensus. He highlighted three concepts of applicability: only to those crimes agreed upon by the international community; never as the primary basis for the exercise of criminal jurisdiction, but only in instances when no State was able or willing to exercise the primary basis of jurisdiction; and never in isolation, but only with other principles of international law. Thus, the primary jurisdiction to enforce would remain the prerogative of the State, having jurisdiction based on territoriality or nationality.
MAKIZA MAURICE GATIEN (Congo), associating himself with the Non-Aligned Movement and the African Group, said that the international community should clearly define universal jurisdiction and determine a list of crimes that would be subject to its application, which in addition to crimes of genocide, war and those against humanity, could also include gross violations of human rights and economic crimes, among others. Conditions authorizing courts to apply universal jurisdiction must be agreed upon by all States. While prosecution of serious crimes was principally the sphere of national courts, the International Criminal Court could stand in when that was not possible. He called for assistance for national capacity-building in that regard. In seeking consensus on the scope and application, he said, “immunity must not be confused with impunity”. No authority should sidestep justice by hiding behind immunities. Customary law showed that countries claimed immunity for Heads of State under the independence of States, which they represented. Thus, immunity enjoyed by Heads of State resulted from the system of State immunities rather than diplomatic immunities.
Mr. AL-SULAITI (Qatar) expressed hope that, given the diverse opinions on the principle’s scope and application, the Working Group would finish identifying points of consensus and those that required further consultation. Balance between the progressive development of universal jurisdiction and respect for the principles of the Charter should be observed. The nature of the crime should determine whether it fell within the scope of universal jurisdiction; crimes of humanity and gross human rights violations should be among those to which universal jurisdiction applied. Gross violations of human rights required the assistance of legal mechanisms in order to deter further commission of such crimes. Otherwise, violations would increase day after day. Stressing that perpetrators were now hiding behind the gaps in international covenants and international law, he said achieving a definition of universal jurisdiction, including its scope, was needed today more than ever.
CHRISTINE ELISABETH LOEW (Switzerland) said that involvement of the International Law Commission was desirable because of the fundamentally juridical nature and technical character of the subject in question, which should be examined at greater depth, primarily by legal specialists. The Commission would not only be able to examine the status of universal jurisdiction with regard to international law as a whole, but also help the international community answer more specific legal questions on the basis of an analytic study. A review of that kind, dedicated to the exercise of universal jurisdiction in criminal procedures by national courts, would provide constructive information to discussions. Universal jurisdiction helped ensure that those guilty of the most serious crimes were brought to justice in cases where no other jurisdiction could apply.
LESLIE KIERNAN (United States) said that basic questions remained about how jurisdiction should be exercised in relation to universal crimes and States’ practices. The submissions by States, the Working Group’s efforts and the Secretary-General’s reports were extremely useful in identifying differences of opinion and points of consensus among States. It would be useful for the Committee to understand whether alternative bases of jurisdiction were relied upon at the same time; how States address competing jurisdictional claims by other States that could have a closer nexus to the underlying criminal act; and if they did so, how national courts had addressed due process challenges. In some States, prosecution based on universal jurisdiction required the authorization by the Government or a Government-designated person. She said she wished to learn what other conditions or safeguards States had instituted with the use of universal jurisdiction, noting that appropriate safeguards should be in place to ensure its responsible use.
KRAIJAKR THIRATAYAKINANT (Thailand), associating himself with the Non-Aligned Movement, underscored that perpetrators of serious crimes who do not fall within universal jurisdiction must, nevertheless, be brought to justice. At the very least, they should be prosecuted by the State on whose territory the crimes were committed or whose nationals were victims of such crimes. While bringing perpetrators of grave crimes to justice was very important, the application of universal jurisdiction in such cases should be founded on a sound legal basis, and not be politically motivated. The legitimacy and credibility of those principles depended upon its consistent application with other principles and rules of international law.
PALITHA T. B. KOHONA (Sri Lanka) said from the principle’s beginnings, primarily as a means for maritime States to assert jurisdiction over piracy, there had been a gradual expansion of its content to encompass other egregious acts such as war crimes, genocide and torture. The expansion had unavoidable implications for a range of other concepts, such as sovereign equality of States, the immunity of State officials for official acts, and when and who was entitled to exercise such jurisdiction. Those issues were still being debated. Some have suggested that the principle had become a political tool clothed in a legal veneer to advance political interests, and that expansion could infringe on diplomatic privileges and immunities. Therefore, more clarification was needed. Universal jurisdiction should not be exercised by another country while judicial mechanisms were already in process in the country where the offense occurred. A clear delineation of both the scope and application of the principle was needed. A consensus-based framework would only serve to strengthen and reinforce its legitimacy.
XIANG XIN (China) said universal jurisdiction was supplementary in nature. Exercise of it must abide by existing principles and rules of international law. The suggestion by certain States that that exercise of the principle must meet certain specific conditions, such as the suspect being within the territory of the exercising State, and non-violation of the obligations of “extradition or prosecution”, required the Committee’s serious study. He noted that, except for a limited number of serious crimes such as piracy on the high-seas, there was no coherence in the positions and practices of States with regard to crimes to which universal jurisdiction was applicable. In those circumstances, the principle should be exercised cautiously in order to prevent abuse of it.
TULLY MWAIPOPO (United Republic of Tanzania), associating herself with the African Group and the Non-Aligned Movement, pointed to the divergent views on the conditions for the exercise of universal jurisdiction, both in principle and in practice. Therefore, States must find common ground on how to implement it as an international legal principle, capable of uniformly guiding their national courts in prosecuting perpetrators. It might be fitting to have input from the International Law Commission. Ultimately, Member States’ agreement on the way forward must remain the linchpin on which the eventual conclusion of the matter would be based. States must agree on a definition of universal jurisdiction and distinguish it from other concepts, such as international criminal jurisdiction, the obligation to “extradite or prosecute”, as well as other related principles and rules of international law.
USMAN SARKI (Nigeria), associating himself with the African Group, stressed the need for a definition of universal jurisdiction to ensure its unbiased application and to resist its selective application, especially for political purposes. It was an important tenet of international law that ensured perpetrators of the most heinous crimes were held accountable. Although views of the topic were diverse, the principle was crucial in the fight against impunity, and should always be exercised in good faith and in accordance with other principles, including, among others, the immunity of officials in exercise of their duties. Universal jurisdiction should only apply where a State was unable or unwilling to prosecute. His Government worked to ensure that the principle was used impartially by the International Criminal Court. Further, the principle should only be used as a last resort and must not be used recklessly by stronger States against weaker States, especially where there was the possibility for national jurisdiction to prevail. In addition, the International Law Commission could be consulted on the matter, due to the principle’s technical nature.
ROVSHAN ISRAFILOV (Azerbaijan), associating himself with the Non-Aligned Movement, said that although a number of international treaties provided for universal jurisdiction regarding various offences, States’ practice was largely limited to such international offences as war crimes, crimes against humanity and crimes against peace. Primary responsibility for investigating and prosecuting serious international crimes lay with the State of territorial jurisdiction. Universal jurisdiction provided a complementary mechanism only when that State was unable or unwilling to exercise jurisdiction. He highlighted the importance of the principle in situations of armed conflict, including those of protracted nature or involving prolonged foreign military occupation. Indeed, past wrongs left unpunished impeded progress towards peace and reconciliation, and could even lead to new conflicts and the commission of new crimes. A thorough legal study of the issue was needed.
ANTONIO GUMENDE (Mozambique), associating himself with the African Group and the Non-Aligned Movement, said the application of universal jurisdiction was of great concern to all Member States, and to African States in particular, since African leaders had been the major target of some individual European judges. The unilateral prosecution of some African leaders by some courts was a clear violation of norms of international law, and had generated “international concerns” over its legal and political consequences. He reiterated the call for a cautious consideration of the political and legal implications of that issue. Any attempt to unilaterally apply the principle was inappropriate, as it would compromise and disrupt the existing international legal system. His country had been advocating the need for the regulation of the principle’s application at the international level. Such regulation should establish the criteria for the principle’s application and for its compatibility with relevant international law instruments, as well as with the Charter. Also, the international community needed to identify the crimes that would be subjected to universal jurisdiction, and in which circumstances they could be invoked.
KOTESWARA RAO (India), associating himself with the Non-Aligned Movement, said the question that arose was whether the jurisdiction, as 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 or States were a party to those treaties. Several issues remained unanswered, including those related to the basis of extending such jurisdiction; the relationship with the law relating to immunity; pardoning and amnesty; and harmonization with the domestic laws. Several treaties obliged States parties either to try a criminal or handover for trial to a party willing to do so. That was the obligation of aut dedere aut judicare, a widely recognized principle, including by the International Court of Justice in the Belgium vs. Senegal case, and should not be confused with or short circuited by universal jurisdiction.
ILYA ADAMOV (Belarus), associating his delegation with the Non-Aligned Movement, said that while universal jurisdiction issues were legal in nature, it was necessary to consider the political aspects. In that regard, a cautious, restrained approach was needed when considering the expansion of the principle’s scope. Universal jurisdiction in the true sense of the term could only be based on norms of international law, be they treaty based or customary law-based, such as in the case of piracy. Criteria for applying it were also quite clear and unambiguous in nature. In that regard, he proposed that universal jurisdiction be applied to crimes against peace, war crimes, crimes against humanity, piracy, human trafficking, and transnational organized crime, such as drug— and arms—trafficking. A unilateral expansion of the principle’s application could not be seen as other than extraterritorial, which contravened the principle of the sovereign equality of States. He welcomed the recent decision of the International Court of Justice with respect to clarifying the aspects of scope and principle. Those decisions applied to concrete situations, and to base wide reaching conclusions on them would be short-sighted.
Mr. LAARSI (Morocco) said that the principle derogated from international criminal law. Under the principle, any State that had subscribed to it under a treaty or convention could assert extraterritorial jurisdiction with regard to the most heinous crimes. On a national platform, articles 704-708 of Morocco’s criminal procedure code, currently in preparation, dealt with crimes outside its territory. The Moroccan legal system was based on territorial or personal jurisdiction. However, there was also nothing that would preclude universal jurisdiction in its legal framework. Pointing out that it was optional, rather than a binding rule, he said it was a preventive measure that could fill gaps in national legal frameworks. Morocco had acceded to the four Geneva Conventions, and had withdrawn its reservation against article 20 of the Convention against Torture. Indeed, the criminalization of certain acts of torture or cruel treatment had been enshrined in the Moroccan Constitution. Its legal framework also set out the primacy of international conventions over national law.
JEANNE D’ARC BYAJE (Rwanda), associating herself with the African Group and the Non-Aligned Movement, commended Member States that had extradited or prosecuted people who participated in the 1994 genocide against the Tutsi. However, she expressed regret that a number of genocide fugitives were still enjoying safe haven in Member States, including nine key genocide fugitives indicted by the International Criminal Tribunal for Rwanda. While her country supported the appropriate use of the principle of universal jurisdiction in good faith, it rejected the abuse and misuse of indictments by non-African judges against African leaders. Indictments issued by European judges against officials of African States had the effect of subjecting the latter to the jurisdiction of European States, contrary to the sovereign equality and independence of States, which evoked memories of colonialism for African States. Noting that the abuse of universal jurisdiction could endanger international law, order and security, she cautioned that it could also set a bad precedent if all countries that were victims of abusive international warrants resorted to the principle of reciprocity in order to defend themselves. She expressed support for the request made by African leaders that warrants of arrest, which were issued on the basis of the abuse of universal jurisdiction, be withdrawn.
YIDNEKACHEW GEBRE-MESKEL ZEWDU (Ethiopia), associating himself with the African Group and the Non-Aligned Movement, said the issues surrounding universal jurisdiction were becoming extremely critical to African countries. On abuse of the principle, he said Heads of State and Governments of member States of the African Union were concerned about the prosecutions instituted and the arrest warrants issued by certain foreign courts against sitting African leaders or other high ranking officials, in violation of the immunity granted to them under international law. Universal jurisdiction must be exercised in tandem with recognized rules of international law. It should be invoked only as a complementary jurisdiction for serious crimes based on their effect on humanity, and take into account the immunities granted to foreign state officials in exercise of their representative functions.
AMR ELHAMAMY (Egypt), associating himself with the Non-Aligned Movement and the African Group, said it was unfortunate that State practice reflected the abuse of the principle of universal jurisdiction by some politicians and legislators of non-African States, tailoring its application to indict some, while acquitting others. That manipulation did not serve justice, but rather affected the credibility of international law and the fight against impunity. In order to prevent abuse of the principle, agreement must be reached on specific safeguards and conditions for the assertion of universal jurisdiction. It should be exercised in good faith and with due regard to other principles of international law. As well, application of it required the consent of a Governmental authority, such as an Attorney General, and the presence of the accused person in the territory where proceedings were taking place.
YOUSSEF HITTI (Lebanon) said that as for the jurisdiction ratione materiae, the international community first had to agree on a list of grave crimes falling under the concept of universal jurisdiction. There had been a growing convergence emanating from the international community regarding piracy, torture, crimes against humanity, genocide, war crimes and ethnic cleaning as constituting the most serious crimes under international law. Their definitions, however, may vary from one State to another, possibly leading to inconsistent applications. Those concerns could be addressed through the establishment of an international convention that would identify and define those crimes. The primary responsibility to prosecute lay with concerned States. Universal jurisdiction must then apply when States were unwilling or unable to fairly and credibly prosecute the alleged perpetrators before a national court. The principle of complementarity would safeguard sovereignty and non-intervention, as well as the principle of ne bis in idem, under which a perpetrator could not be prosecuted before different courts for the same crime. It was high time for the International Law Commission to prepare a study on the scope and application of universal jurisdiction, in order to streamline and reconcile the diverging positions among States.
ALI ABSOUL (Jordan), associating himself with the Non-Aligned Movement, reiterated the importance of reaching an agreement on the principle’s scope and application. He said that due to lack of consensus, it would be appropriate to request a review of the principle’s scope, the study of which would look at the sources of customary international law. In that regard, it would be useful to refer the matter to the International Court of Justice, as doing so would limit any political involvement on the issue.
PHAM THI HUONG (Vietnam), associating herself with the Non-Aligned Movement, said that universal jurisdiction should be limited to the most serious crimes of international concern, including genocide, crimes against humanity, and war crimes, and emphasized that it should be applied in good faith and within a well-founded legal framework. It should be considered a last resort and complementary to other jurisdictions with a stronger link to crimes, such as territorial or national jurisdiction. In cases where the State was able to prosecute such crimes, universal jurisdiction should not be applied. In addition, a State could only exercise universal jurisdiction when the alleged perpetrator was present on its territory. She expressed support for clarification and the development of international standards or guidelines that clearly set out the crimes subject to universal jurisdiction and the conditions under which it could be applied.
NOUR ZARROUK (Tunisia) said universal jurisdiction must be applied strictly within the Charter’s framework and international law. It must be exceptional in nature and applied without abuse or selectivity. Thus, there must be a clear and consensus-based decision in determining the principle’s scope and application. The complexity of the principle had given rise to different views among Member States. The Committee must have more in-depth discussions on various aspects within the Working Group. The principle was a useful complement, although clearly distinct, from international criminal tribunals. Twelve years after being established, the International Criminal Court had proved successful in promoting peace and international justice, and today enjoyed international respect. However, that Court only dealt with crimes after they had been committed. For that reason, her country had proposed the creation of an international constitutional court to be tasked with guaranteeing respect for democratic principles and human rights. The creation of that constitutional court would have the prerogative of ruling on irregular elections, and would provide advice in drafting national constitutions.
HOSSEIN GHARIBI (Iran), associating himself with the Non-Aligned Movement, said that his country viewed universal jurisdiction as a treaty-based exception in exercising criminal jurisdiction. The prevailing principle, however, was territorial jurisdiction, which was key to the sovereign equality of States. There was no specific legislation concerning universal jurisdiction in Iran’s legal system; as well, there did not seem to be precedent in applying it in practice. Iranian courts were entitled to jurisdiction over certain crimes irrespective of where they took place or the nationality of the accused, given the presence of the alleged offender on Iranian territory. He stressed that “extradite or prosecute” provisions of treaties or bilateral agreements were not equivalent to universal jurisdiction. Furthermore, the exercise of criminal jurisdiction over foreign nationals should be unbiased, and in good faith. It should also not be arbitrarily applied, and should respect the immunity granted under international law to incumbent high-ranking Government officials. He warned that leaving interpretation of international crimes to national courts would have adverse effects on the integrity of international law.
JAMES NDIRAGU WAWERU (Kenya), associating himself with the Non-Aligned Movement and the African Group, said the concept of universal jurisdiction should be distinguished from the work of the International Criminal Court, which was complementary to national criminal jurisdiction. However, that Court, in relation to Kenya, interpreted the Rome Statute consistent with a political agenda, which had put the country into a constitutional crisis and had led the President to appoint an acting President in his stead so that he might personally appear, as required by the Court, at the status conferences concluded last week, despite his public duties and in contravention of the Rome Statute. That was unacceptable, and no State should have to endure such circumstances. The current debate on universal jurisdiction was also about the future management of cases of impunity and violence in the world, and the way in which States related to each other within the international justice system. “We should restrain ourselves from adopting a narrow, rigid and agenda driven interpretation of the role of universal jurisdiction and should advocate for an all-inclusive and carefully calibrated system with clear benchmarks, transparency and achievable standards,” he said.
KELLY GEOGHEGAN, International Committee of the Red Cross (ICRC), said universal jurisdiction played a vital role in enforcing international humanitarian law, and said she was pleased that many States had established some form of universal jurisdiction over serious violations of humanitarian laws in their national legal systems. While recognizing States’ desire to better frame the application of universal jurisdiction, she said that the ICRC was convinced that the conditions for opening criminal proceedings, or justifying a refusal to open criminal proceedings, should be clearly defined at the national level. Such conditions should strengthen the effectiveness and predictability of the principle’s use. Given the technical, practical and financial challenges of implementing universal jurisdiction, it was essential that States keep enacting appropriate national legislation to prosecute war crimes, using both national and extraterritorial jurisdiction. That would help deter war crimes and let perpetrators be prosecuted when violations occur.
Statement on the United Nations Commission on International Trade Law
ABDULAZIZ ALIBRAHEEM (Kuwait), noting satisfaction with the finalization of the draft Transparency Convention, stressed the Commission’s role in the administration of justice at the national and international levels. Indeed, UNCITRAL played an increasing role in the field of international trade arbitration. Rule of law must be an integral part of trade relations. A conducive environment to trade and investment, as well as for regulations, must be established, as those were important elements in conflict-prevention. His country attached great importance to the development of electronic legislation which could help combat electronic crimes, which had accounted for hundreds of billions of dollars in losses. His country promoted laws in that regard, and draft legislation had been submitted to its parliament.