Delegates Conclude Their Consideration of Universal Jurisdiction Principle
With global challenges increasing in the face of ever-rising numbers of migrants and refugees, speakers deliberated the balance between the protection of those persons’ human rights and States’ right to ensure national security, as the Sixth Committee took up the matter of expulsion of aliens today.
Referring to the draft articles adopted by the International Law Commission three years ago, delegates also tackled how to incorporate those texts into national or international instruments with several arguing against the Commission’s recommendation to elaborate a convention.
Mexico’s representative drew attention to the national policies adopted recently by some countries, calling them counter to international human rights standards. Emphasizing that national security should not be used arbitrarily to justify expulsion, he called for the strengthening of the international legal system to provide effective protections for the basic human rights of migrants.
Countering that point of view, the United States’ delegate said that there existed well-settled rules of law in broadly ratified human rights and refugee conventions that already provided the legal basis for achieving the key objectives of those draft articles. Cautioning against the risk of confusion, he questioned the Commission’s recommendation to elaborate a convention based on the draft articles.
United Kingdom’s representative also said the draft articles were not suitable for a convention, adding that the subject intruded directly into the domestic sphere of States. States must be able to manage migration for their benefit and secure their borders. If migrants did not comply with the laws of a host State, that State should be able to take appropriate measures.
As well, Indonesia’s delegate said he was not convinced that the current drafts would achieve widespread acceptance by States. It was necessary to strike the right balance between the rights of States and the rights and dignity of aliens. States were becoming more protective, because of issues such as terrorism and national security, he pointed out.
Other delegates identified legal quandaries brought forth by the draft articles, with Singapore’s representative expressing concern over the lack of distinction in the draft articles and its commentaries between “codification” and “progressive development”.
El Salvador’s delegate said that migratory offences should not be treated as crimes, pointing out that article 19 of the draft carried a presumption of detention with respect to all aliens. The draft also did not make any distinction between persons subject to detention proceedings. In addition, the articles overlooked procedural rights of persons subject to detention, he said, stressing that it was first necessary to address those problems.
Concern about the rights of migrants also came up in the Committee’s debate on universal jurisdiction which concluded today, with the Permanent Observer of the Holy See drawing attention to the growing need to consider the application of universal jurisdiction in the context of the migration and refugee crises. Any set of norms developed by the United Nations vis-à-vis universal jurisdiction must be consistent with both the fundamental principles of criminal justice and customary international law, he said.
Universal Jurisdiction was still in its embryonic phase, the representative of Venezuela reminded the Committee, noting also that it was an institution of exceptional nature and should be used only in equally exceptional situations. Given that there was still not much juridical clarity as to its scope and application, she cautioned against interventionist actions and abuse of the principle by politically motivated States.
Rwanda’s delegate also noted the abuse of the principle for political reasons, even as she reaffirmed her faith in the legality of the principle. Universal jurisdiction had often been cited as vital in the fight against impunity. Yet, several of the key masterminds of the 1994 genocide against the Tutsi in her country were still at large, many of them harboured in countries that were permanent members of the Security Council.
A representative of the International Committee of the Red Cross (ICRC) recalled that the 1949 Geneva Convention provided the obligation for States Parties to search for suspected perpetrators of grave breaches, regardless of their nationality and the place of commission of the alleged offence. The Red Cross was playing its part in fighting impunity by supporting States both in strengthening their national criminal legislation and in establishing universal jurisdiction.
Also speaking were representatives of Liechtenstein, Czech Republic, India, Estonia, Malaysia, Democratic Republic of the Congo, Viet Nam, Lebanon, Iran, Morocco, Lesotho, Argentina, Denmark (for the Nordic Countries), Sudan, Saudi Arabia, Iran, and Cuba.
Speaking in exercise of the right of reply was the representative of Syria.
The Sixth Committee will reconvene at 10 a.m. on Friday, 13 October, to continue its consideration of expulsion of aliens.
Scope and Application of Universal Jurisdiction
STEPHEN H. SMITH (United Kingdom) said that universal jurisdiction was distinct from the jurisdiction of international judicial mechanisms established by treaty, including the International Criminal Court. Universal jurisdiction was also distinct from jurisdiction established under treaties in which the State parties established an “extradite or prosecute” regime. As well, it was distinct from the extra-territorial jurisdiction enjoyed as a matter of domestic law by the courts of many States in relation to the extra-territorial conduct of their own citizens or residents. The rationale for establishing such universal jurisdiction included that the most serious international crimes affected the international legal order as a whole, and, as such, should be subject to the jurisdiction of all States. The unique nature of some other criminal offences, such as piracy, attracted universal jurisdiction. The exercise of territorial jurisdiction was not always possible or appropriate, he said, adding that in those cases, universal jurisdiction could be a necessary and important tool.
EMILY PIERCE (United States) said that despite the long history of universal jurisprudence as part of international law relating to piracy, basic questions remained about how the principle should be exercised in relation to universal crimes and States’ practices. Commending the thoughtful discussions and the efforts of the Working Group in helping to identify differences of opinion among States as well as points of consensus, she said that the United States welcomed the Committee’s continued consideration of the issue.
ACHSANUL HABIB (Indonesia), associating herself with the Non-Aligned Movement, said that it was critical to close the legal gap to end impunity and protect the rights of victims, especially given the growing number of atrocities and humanitarian crises. However, the absence of clarity and consensus regarding universal jurisdiction could lead to inappropriate and even abusive application of domestic law towards foreign nationals. Furthermore, universal jurisdiction was not the primary jurisdiction to fight impunity, and it should be exercised on an exceptional basis as complementary to territoriality and nationality jurisdiction.
VALENTINE RUGWABIZA (Rwanda), associating herself with Non-Aligned Movement and the African Group, said that international criminal justice was in “a crisis of credibility”, especially with the latest news regarding the corruption in the International Criminal Court. There were both legal and political elements to consider when discussing universal jurisdiction, she said, reaffirming her faith in the legality of the principle. However, that principle had also been abused for political reasons. Universal jurisdiction had often been cited as vital in the fight against impunity. Yet, several of the key masterminds of the 1994 genocide against the Tutsi in her country were still at large, many of them harboured in countries that were permanent members of the Security Council. Calling for coherence in the calls for justice, she said that international arrest warrants should have the blessing of organizations such as the International Criminal Police Organization (INTERPOL).
JÖRN EIERMANN (Liechtenstein) noted that 124 States, nearly two-thirds of the United Nations membership, had joined the Rome Statute of the International Criminal Court. Yet, the impunity gap remained significant, with many perpetrators operating beyond the Court’s jurisdictional reach. The Security Council was largely unable to fill the void by referring relevant situations of mass atrocities to the International Criminal Court, due to the use or threat of use of veto. The importance of universal jurisdiction had also become evident in the recent past as a response to crimes committed in the context of the armed conflict in Syria. While the resolution referring that situation to the Court had been vetoed in the Council, there were increasing numbers of prosecutions in various European courts against Syrian perpetrators.
KRISTINA HORNACKOVA (Czech Republic) said that the scope and application of the principle of universal jurisdiction should be treated as a prominently legal question. Differences among States should be acknowledged, including presence of the alleged offender in the territory of the State as a condition for exercising universal jurisdiction versus trial in absentia; the need for procedural safeguards in the exercise of universal jurisdiction and their forms; and customary nature of universal jurisdiction, among others. The International Law Commission, as an expert body, was the most suitable place to consider the issue, since it could use its knowledge of closely related topics. Referring the topic to the Commission would also demonstrate the Committee’s commitment to strengthening its interaction with that body, she noted.
YEDLA UMASANKAR (India) said that while fugitive criminals should not be allowed to go unpunished because of procedural technicalities, including lack of jurisdiction, the exercise of universal jurisdiction remained a complex subject. The principle had been codified in the Convention on the Law of the Sea, making piracy on the high seas the only crime over which claims of universal jurisdiction were undisputed under general international law. International treaties provided the basis for the exercise of universal jurisdiction with regard to serious crimes such as genocide, war crime and crimes and against humanity, he said stressing that it was vital to avoid misuse of the principle.
ANNELI LEEGA PIISKOP (Estonia) said that, although she recognized the difficulties that arose when the principles of sovereignty of States, immunity of State officials and subsidiarity were under question, universal jurisdiction was an essential tool in the fight against impunity. Universal jurisdiction should, however, be a last resort and applied in respect to the most heinous international crimes. In addition, to develop an exhaustive list for crimes which universal jurisdiction applied was premature, she noted.
Ms. AHAMAD (Malaysia) said that common consensus and understanding by Member States on the principle at the international level must be achieved. It was concerning that there was still a lack of specific constructive discussion concerning Member States’ list of offences in which universal jurisdiction was applicable. She acknowledged the importance of a continuous fact-finding effort to gain a clearer and better concept on its scope and application. Furthermore, her Government believed that the practical enforcement aspect of the crimes of universal jurisdiction should also be given due consideration, in particular, the process involved in handling physical evidence and testimony provided by witnesses in different jurisdictions.
ZENON MUKONGO NGAY (Democratic Republic of the Congo), associating himself with the Non-Aligned Movement and the African Group, said that the principle of universal jurisdiction was vital to fighting impunity. Yet, recent history showed that the international legal system had suffered from the disorganized and partial application of the principle. Around 30 senior representatives, including Heads of States and Governments, most of them curiously from the Southern hemisphere, had been subjected to prosecution in State courts through the principle of universal jurisdiction, he observed. If each Member State of the United Nations started to exercise the principle, it would result in cacophony. The Sixth Committee should continue to examine the topic, he said, underscoring the need upstream of harmonizing the different bodies, to ensure there was no fragmentation of approaches.
NGUYEN NAM DUONG (Viet Nam), associating himself with the Non-Aligned Movement, said that universal jurisdiction should be defined in line with the United Nations Charter and should only be exercised over the most serious crimes. In addition, it should be exercised by States only when the perpetrator was present in their territory and only after discussion with the States where the perpetrator was from and where the crime had been committed in order to consider the possibility of extradition. The International Law Commission would be a useful resource to help consider work on that issue, he said.
YOUSSEF HITTI (Lebanon) said that, given the application of universal jurisdiction lay in the nature of the crimes committed, it was essential to agree on a common list and definitions of those most serious crimes under international law to which that principle would apply. It was also important to warn against the risk of selectivity and abuse in the application of that principle that could reduce it to a political instrument rather than a legal endeavour.
ABBAS BAGHERPOUR ARDEKANI (Iran) said that in any scheme to implement universal jurisdiction, laws should ensure that the principle of State sovereignty was protected. Due to the sensitivity and complexity of the issue, Member States did not have a consensus on the topic, he said, warning against the selective application of universal jurisdiction. Under Iranian legislation, the pre-requisite for the application of universal jurisdiction was that the crime be recognized as a crime under international law or treaty. Treaties concluded between Iran and other States had the force of domestic law. The principle of territorial jurisdiction was key to the principle of State sovereignty. Universal jurisdiction should be asserted only for the most serious crimes.
MOHAMMED ATLASSI (Morocco), noting that while the aim of universal jurisdiction was to combat impunity, emphasized that it was vital the principle be exercised with full respect to the Charter and the sovereignty and territorial integrity of the States. Moroccan law stipulated a number of measures that went hand-in-glove with the principle, such as the criminalization of torture. The criminal procedural court of his country had stipulated that serious crimes should not be subject to statute of limitations. Universal jurisdiction was an optional principle and not binding. States should use it as a preventive principle to remedy shortcomings in the domestic judicial system.
KELEBONE MAOPE (Lesotho) said that universal jurisdiction reflected the idea that crimes that shocked humanity’s conscience should be of concern to all humankind. It was important to define the scope and application of that principle and the Committee should not lose sight of the task it had before it. The scope and application should be defined to avoid the abuse of the principle. That abuse could damage international law and security. He also voiced his rejection of the misuse and abuse of the principle contrary to the sovereign equality and independence of States.
JOSÉ LUIS FERNANDEZ VALONI (Argentina), associating himself with the Community of Latin American and Caribbean States (CELAC), said that the primary responsibility fell on the territories where the crimes were committed, as well as on States that were linked because of the nationality of the perpetrator. If those States were unable or unwilling to assume jurisdiction, then universal jurisdiction filled that gap. It was therefore an exceptional tool and should be used within the norms of international law. Universal jurisdiction could also lead to conflicts between States or lead to procedural abuse or politically motivated acts. Voicing his support of the Working Group’s approach to take a step-by-step approach that clarified the various issues for a better understanding of the concept, he also said he favoured the proposal that the International Law Commission conduct a study on that issue.
FATIMA FERNANDEZ (Venezuela), associating herself with Non-Aligned Movement and CELAC, said that universal jurisdiction was an institution of exceptional nature and should be used only in equally exceptional situations. Noting that the principle must not be confused with international criminal jurisdiction or the obligation to extradite or prosecute, she said it was essential to continue to study the category of crimes, for which it was applicable; otherwise there might be disproportionate and inappropriate interpretations. Universal jurisdiction was in its embryonic phase, and there was still not much juridical clarity as to its scope and application. Cautioning against interventionist actions, she said that some politically motivated States were seeking to abuse the principle.
CHARLES SABGA, International Committee of the Red Cross (ICRC), noting that the 1949 Geneva Convention provided the obligation for States parties to search for suspected perpetrators of grave breaches, regardless of their nationality and the place of commission of the alleged offence, said that when States did not take legal action, the exercise of universal jurisdiction by other States could serve as an effective mechanism to ensure accountability and limit impunity. ICRC continued to address the issue of preventing and punishing serious violations of international humanitarian law, by supporting States both in strengthening their national criminal legislation and in establishing universal jurisdiction over serious violations.
TOMASZ KRZYSZTOF GRYSA of the Holy See said any set of norms developed by the United Nations vis-à-vis universal jurisdiction must be consistent with both the fundamental principles of criminal justice and customary international law, and firmly rooted in subsidiarity. Particular attention must be given to the jurisdictional immunities of public officials and to the procedural conditions that must be met to set aside such immunities. Much work remained to be done to create a rule-based system for the application of universal justice, he said, highlighting also the growing need to consider the application of the principle in the context of the migration and refugee crises.
Right of Reply
The representative of Syria, speaking in exercise of the right of reply, said that Liechtenstein was promoting a mechanism in Syria that was of no worth. His Government would stand up to those attempts to promote that illegal mechanism. He also noted a documentary he had seen on Netflix about drug trafficking across the world where an official had said that as long as the banks in Liechtenstein continued to hide illegal transfers and launder millions of dollars and Swiss francs, the cocaine trade would never come to an end. He invited the delegate of Liechtenstein and his Government to reflect fully on money laundering and capital flows from gas and oil producing countries. Liechtenstein was laundering money from illegal transfers and using that money to procure weapons for terrorist groups in Syria.
Statements on Expulsion of Aliens
RASMUS J. N. JENSEN (Denmark), also speaking for the Nordic Countries (Finland, Norway, Iceland and Sweden), said that he was still not convinced that the topic needed to be incorporated into a convention. It was an area of law with significant and detailed regional rules, and divergences of opinion on many aspects of the draft articles. That said, the draft articles were a useful description of the challenges in the area of expulsion of aliens.
In light of the current global and regional processes regarding migration, including the work on the Global Compact on Migration, the best approach was to note the work that had been done by the International Law Commission, and to revert to its consideration in some years’ time, he said. A possible future convention or any other type of instrument on expulsion of aliens must be based on and clearly emphasize the obligation of States. Under international law, States were obligated to readmit their own nationals who did not have a legal residence in another country. That obligation applied to both voluntary and forced returns.
PABLO ADRÍAN ARROCHA OLABUENAGA (Mexico) said that in the three years since the International Law Commission had concluded its draft articles on the expulsion of aliens, global challenges in dealing with migrants and refugees had substantially increased. The national policies adopted recently by some countries, which affected Mexican compatriots as well as people from various regions, were absolutely counter to international human rights standards. It was critical to strengthen the international legal system to provide effective protections for the basic human rights of migrants from national policies characterized by discrimination on the basis of ethnicity or nationality. He drew the Committee’s attention to the draft article which emphasized that expulsion should only take place by competent authority through a reasoned decision adopted in conformity with law, consistent with the obligations of the State under international law. He also noted the prohibition against States expelling refugees for reasons of national security or public order. The concept of national security should not be used arbitrarily to justify expulsions prohibited under international law.
ELSADIG ALI SAYED AHMED (Sudan) said that the expulsion of aliens within a State meant selecting between foreigners who were allowed to stay in another country and those who were not. Furthermore, expulsion of aliens was a matter than affected all areas of the world. With regard to the rule of law and the human rights of aliens, the draft articles respected the human rights of aliens and sought a balance of State sovereignty and aliens that were subject to expulsion.
LUKE TANG (Singapore), underscoring that the progressive development of laws and practices related to the expulsion of aliens “must be approached with caution”, said that his Government had consistently expressed its opposition to the expanded principle of non-refoulement articulated in paragraph 2 of draft article 23, which was not reflective of customary international law. “There is no customary international law obligation to the effect that a State that has abolished the death penalty is automatically bound not to expel a person to another State where the death penalty may be imposed,” he said, adding that Singapore had also expressed concern over the lack of distinction, in the draft articles and its commentaries, between “codification” and “progressive development”. The General Assembly should take note of concerns raised and reservations expressed by delegations.
HECTOR ENRIQUE CELARIE LANDAVERDE (El Salvador), said expulsion of aliens was closely bound up with the norms of international law and human rights law and the corresponding obligations of States. The Inter-American Human Rights System had repeatedly noted that States must establish policies and protocols based on the presumption of liberty, that is, the migrant’s right to remain free while migratory proceedings were in process, as opposed to the presumption of detention. Migratory offences should not be treated as crimes, he stressed, pointing out that article 19 of the draft carried a presumption of detention with respect to all aliens. The draft also did not make any distinction between persons subject to detention proceedings. It should take into account the advisory opinion of the Inter-American Court that States should not deprive girls or boys of their liberty if they were with their parents or if they were unaccompanied by their parents. The article also overlooked procedural rights of persons subject to detention, he said, stressing that it was first necessary to address those problems before attaching it as an annex to any resolution.
KRISTINA HORNACKOVA (Czech Republic) reiterated that her preferred final form of the draft articles was their acceptance as legally non-binding guidelines. She said she remained certain that the area of law was sufficiently covered by existing sources of international law. Therefore, it would not be necessary to elaborate a convention on the basis of the draft articles. Nevertheless, she also said she believed that the draft articles represented an important contribution as guidance to States. They also summarized relevant practices and provided a detailed and coherent explanation of current development in the commentary, she added.
MARK A. SIMONOFF (United States), recalling the Commission’s recommendation to elaborate a convention based on the draft articles on expulsion of aliens, said it was still questionable about doing so. There existed well-settled rules of law in broadly ratified human rights and refugee conventions that already provided the legal basis for achieving the key objectives of those draft articles. Furthermore, key aspects of the draft articles risked generating confusion with respect to existing rules of law by combining the same provision elements from those existing rules with elements that reflect proposals for progressive development of the law.
ABDULLAH NASSER ALSHARIF (Saudi Arabia) said that in terms of the expulsion of aliens, State rights stemmed from the sovereign right of States. Any State could take measures to protect itself; that included the expulsion of some aliens. There were guaranteed rights in Saudi Arabia, for example the prohibition of cruel treatment. If aliens posed a threat to the security of the country, then Saudi Arabia respected international laws and pertinent practices in that area, he said.
STEPHEN H. SMITH (United Kingdom), stressing that the subject was difficult, complex and intruded directly into the domestic sphere of States, said it was not suitable for a convention at the present time. The draft did not reflect customary international law. Nor did the content of those draft articles represent the progressive development of international law. The topic was insufficiently developed or coherent for codification. However, the United Kingdom’s own domestic legal framework demonstrated its commitment to the protection of the rights of aliens faced with expulsion. “We consider it should remain the case that individual States should enjoy considerable discretion in this area,” he added. States must be able to manage migration for their benefit and secure their borders. If migrants did not comply with the laws of a host State, that State should be able to take appropriate measures. He also included an annex to his statement which contained detailed comments on the draft articles.
ABBAS BAGHERPOUR ARDEKANI (Iran) said that the matter at hand dealt with both the sovereignty of States and the protection of people. He said that convening a conference to elaborate a convention based on the draft was premature. Not all the provisions of the draft article had a foundation in international treaty law and customary international law. There appeared to be some confusion about the original drafting efforts, whether they were attempts to codify existing laws or attempts to develop those laws. The predominant State practice in the field should have been considered. On the matter of refugees in the draft articles, the approach set out in the commentary was not underpinned by sufficient State practice, he said.
INDIRA GUARDIA GONZALEZ (Cuba), noting the timeliness of the issue, said that in case of an expulsion, it was important to provide prior notification to the receiving State in order to ensure the right to consular representation. Stressing the importance of respect for internal law and the maintenance of public security, she said that it was also necessary to consider readmission of aliens into the expelling State when expulsion was unlawful. Cuban criminal law provided for the expulsion of aliens as penalty in those cases where the court believed that the nature of the crime made it clear that the person remaining in country would be detrimental. It also provided for the expulsion of aliens in cases where the main penalty had already been met.
AHMAD SALEH BAWAZAR (Indonesia) said that it was important to both retain the prerogative rights of States and the rights and dignity of aliens. The draft articles were particularly important with regard to the recent flow of people because of the humanitarian crisis. States were becoming more protective because of issues such as terrorism and national security. He voiced support for the prohibition to resort to expulsions in order to circumvent extradition procedures. There were elements in the draft that broadened the concepts that had already been agreed in other instruments, such as the prohibition of collective expulsions. While the intention was to accommodate recent developments, he said he was not convinced that the current drafts would achieve widespread acceptance by States.