Delegates Remain Divided on Best Forum to Discuss Universal Jurisdiction, as Sixth Committee Continues Debate on Principle

GA/L/3599
16 October 2019
Seventy-fourth Session, 15th & 16th Meeting (PM)

Delegates Remain Divided on Best Forum to Discuss Universal Jurisdiction, as Sixth Committee Continues Debate on Principle

Delegates remained divided on the appropriate forum for continuing discussions on the scope and application of the principle of universal jurisdiction, as the Sixth Committee (Legal) resumed its consideration of the matter today.  (For background, see Press Release GA/L/3598.)

The representative of the Czech Republic stated that defining the scope and application of universal jurisdiction was purely a legal question that should not be influenced by the political considerations present in the Committee’s debates.  An independent expert body – such as the International Law Commission – should afford the topic the thorough legal analysis it warrants. 

Echoing that sentiment, Argentina’s representative welcomed the principle’s inclusion in the Commission’s long-term programme of work.  While universal jurisdiction can be invoked to fill legal gaps and prevent impunity, he cautioned that unlimited application of the principle could create conflict in cases of overlapping State jurisdiction and could result in procedural abuse.  Clear rules were needed, he stressed.

However, Israel’s delegate, while agreeing that the principle needed to be properly defined, stressed that the Sixth Committee was a more appropriate venue for States to continue to discuss their divergent views on the matter because of the Committee’s emphasis on consensus.  The decision to refer the matter to the International Law Commission was both premature and counter-productive.

In a similar vein, the representative of Syria underscored that the Commission should not exercise any role in discussing the controversial principle.  Rejecting the suspicious tendencies of other States’ to expand the scope of universal jurisdiction, he said that the Secretary-General’s report on the matter [document A/74/144] shows that some Governments abuse the principle to serve special interests, rather than to achieve international criminal justice.

The representative of Rwanda, recalling the 1994 genocide against the Tutsi people of his country, commended those Member States that extradited or prosecuted its perpetrators.  Yet, a number of those individuals remain fugitives in other Member States, including nine indicted for genocide by the International Criminal Tribunal for Rwanda.  “There is need to strike the right balance to end the culture of impunity while at the same time establishing safe guards against the potential abuse and misuse of the principle of universal jurisdiction,” he stressed.

Recognizing this need for balance, the representative of South Africa called for political sensitivity and prudence — particularly regarding the question of immunity — as the Committee’s discussions were at an impasse.  To move forward, the International Law Commission could study the principle of universal jurisdiction at a technical level and the Sixth Committee could have political discussions about its abuse and misuse.  These two processes could run in parallel, he suggested.

The Sixth Committee today also concluded its debates on the responsibility of States for internationally wrongful acts and on diplomatic protection.

Also speaking today on the scope and application of the principle of universal jurisdiction were representatives of Slovakia, China, United Kingdom, Sudan, United States, Morocco, Thailand, Mexico, Cuba, Kenya, El Salvador, Mali and the Russian Federation.

The representative of South Africa spoke today on the responsibility of States for internationally wrongful acts and on diplomatic protection.

The Sixth Committee will next meet at 10 a.m. on Thursday, 17 October, to continue its debate on the scope and application of universal jurisdiction and to begin consideration of the administration of justice at the United Nations, as well as the Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization.

Statements on Responsibility of States and Diplomatic Protection

THABO MICHAEL MOLEFE (South Africa) said that the question of a convention on responsibility of States for internationally wrongful acts remains unresolved.  It appears that the draft articles have widespread support, but certain States remain unconvinced that a convention is necessary or that the time is ripe for one.  While his country supports a convention, he observed that the continued debates on whether there is a need for one may be preventing the Committee from engaging in discussions on substantive aspects of the draft articles.  Perhaps the time has come to shift focus to such discussions rather than continue back and forth on whether a convention is appropriate or not, he said.

Turning to diplomatic protection, he said that the principle is a form of implementation of State responsibility.  The two agenda items are interlinked and the discussions surrounding State responsibility will invariably have an impact on the draft articles on diplomatic protection.  Noting his hesitation about the scope of some of the articles, he highlighted draft article 19 which provides that States should give due consideration to the possibility of exercising diplomatic protection.  His country’s courts have found that “there is no obligation on South Africa to provide diplomatic protection, there is only a constitutional duty to rationally apply its mind to the request for diplomatic protection,” he said.

Statements on Scope and Application of Universal Jurisdiction

MATÚŠ KOŠUTH (Slovakia) pointed out that article 5 of the United Nations Convention against Torture, article 7 of the draft articles on prevention and punishment of crimes against humanity and the Secretary-General’s report present strong evidence of the existence and acceptance of the principle of universal jurisdiction.  This principle complements traditional jurisdictional bases of territoriality and personality by closing the impunity gap, particularly in situations where the alleged perpetrators have evaded States having jurisdiction on those grounds.  He urged that a convention on the prevention and punishment of crimes against humanity, the conclusion of a treaty on mutual legal assistance, the application of universal jurisdiction and the strengthening of the International Criminal Court would create a strong legal framework aimed at ensuring accountability.

XU CHI (China) pointed out that international treaties and State practice invoked as the basis for universal jurisdiction have either been based on the obligation of aut dedere aut judicare in treaties or on the exercise of extraterritorial jurisdiction by relevant States.  States asserting jurisdiction already have some connection with the subjects or their offenses and, in other cases, such jurisdiction is that of international judiciary bodies.  None of this represents genuine universal jurisdiction and should not be considered as evidence supporting that principle.  Noting cases where the principle was abused, he stressed that States establishing and exercising universal jurisdiction must comply with the Charter of the United Nations and abide by international law, particularly the principles of sovereign equality and non-interference in internal affairs.

Mr. ZUKAL (Czech Republic) stated that exercising universal jurisdiction did not only mean holding perpetrators of international crimes accountable.  It also meant providing justice for victims and strengthening respect for international law.  Defining the principle’s scope and application is a purely legal question that should not be burdened by the political considerations that are unavoidable in the Sixth Committee.  Further, possible ad infinitum discussions in relevant working groups constrained by time prevented substantive progress on the matter.  An independent expert body such as the International Law Commission would best carry out the thorough legal analysis the topic merits.  He therefore proposed to refer the issue of universal jurisdiction to the Commission to prepare a study on the principle.

ALEJANDRO GUILLERMO VERDIER (Argentina) stressed that the primary responsibility to investigate and prosecute perpetrators of serious international crimes lies with the State of territoriality or with States that have some link to the crime, such as the nationality of the perpetrator or the victims.  If these States are unwilling or unable to exercise jurisdiction, then other States can invoke the principle to fill the gap and prevent impunity.  While he acknowledged the overlap between universal jurisdiction and aut dedere aut judicare, he insisted that these concepts are distinct and should not be confused with one another.  As unlimited application of universal jurisdiction could create conflicts between States’ jurisdiction and could result in procedural abuses, he underlined that the principle needs clear rules.  To this end, he welcomed the topic’s inclusion in the International Law Commission’s long-term programme of work.

SARAH GOLDIE WEISS (Israel) underscored the need to have an agreed-upon, proper definition of universal jurisdiction and a shared understanding of its scope.  However, noting the divergent views on the matter, she said that it was more appropriate for States to continue deliberations in the framework of the Sixth Committee, which operates on the basis of consensus rather than in the International Law Commission.  The decision of the Commission to include this topic in its long-term programme of work was both premature and counter-productive.  Furthermore, the majority of pertinent legal data in this area is confidential and inaccessible to the public which makes identifying relevant State practice a significant challenge, she added.

SUSAN JANE DICKSON (United Kingdom) said her delegation considers the term, universal jurisdiction to refer to national jurisdiction established over a crime irrespective of the location of the alleged crime, the nationality of the alleged perpetrator, the nationality of the victim or other links with the prosecuting State.  It is therefore distinct from the jurisdiction of international judicial mechanisms established by treaty, including that of the International Criminal Court.  Also noting that there are practical constraints on delivering justice by means of exercising universal jurisdiction as well as a diversity of views on its scope and application, she voiced doubt whether this is a topic best addressed by the International Law Commission.

ELSADIG ALI SAYED AHMED (Sudan), associating himself with the Non-Aligned Movement, said that the Sixth Committee is the most representative forum to consider the thorny issues regarding the definition and scope of universal jurisdiction.  Pointing out that the principle does not enjoy consensus, he observed that many countries are implementing it according to their national systems, “as they wish, when they wish”.  This can lead to international crises, especially if applied against people who have immunity, such as Heads of State and Government.  Noting that universal jurisdiction lacks judicial principles regarding its application, as well agreement on the types of crimes for which it can be applied, he stressed that the principle should be subordinate to national jurisdiction.  Reaffirming the African Union’s clear position, he underscored that when applied selectively, the principle can be a tool for international conflict.

AMMAR AL ARSAN (Syria), associating himself with the Non-Aligned Movement, stressed that an examination of the Secretary-General’s reports on universal jurisdiction over the past several years would reveal that some Governments abuse the principle to serve special interests without regard for achieving international criminal justice.  The International Law Commission should not exercise any role in discussing this controversial principle, he emphasized, rejecting the suspicious tendencies of some States to expand the principle’s scope.  He also stated that Syria does not recognize the subpoenas issued by Germany against Syrian officials, as these subpoenas constitute abuse of the principle, are not justified and concern only the German Government, which instead should focus on returning foreign terrorist fighters bearing German nationality.  He also condemned other delegations’ efforts to exploit the Committee’s work to promote the International, Impartial and Independent Mechanism for Syria, which has no legal status or position and is simply an “odd entity collecting so-called evidence” without respect for or recognition of established norms.

JULIAN SIMCOCK (United States) said that, despite the importance of the principle of universal jurisdiction and its long history as part of international law relating to piracy, questions remain about how jurisdiction should be exercised in relation to universal crimes and States’ relevant views and practices.  To date, State submissions, the efforts of the Committee’s working group on the matter and the Secretary-General’s reports have proved valuable in identifying differences of opinion as well as points of consensus.  The United States remains interested in further exploring issues related to the practical application of universal jurisdiction, he added.

HASSAN LASRI (Morocco), calling attention to the working group on universal jurisdiction, encouraged Member States to bolster their exchanges to conduct a clear and constructive dialogue.  His country would work closely with the Secretariat by sharing detailed information and comments on applicable international treaties, domestic laws and the practice of courts.  Universal jurisdiction is an instrument of criminal justice and is complementary to national jurisdiction.  Morocco is committed to battling impunity, he said highlighting the country’s Constitution, including the preambular paragraph which emphasizes human rights, as well as article 3 banning all incitements to hatred and violence.  He also noted that the country acceded to the optional protocol to the United Nations Convention against Torture and established a national prevention mechanism to prevent torture.

NATTHAKIT SINGTO (Thailand), associating himself with the Non-Aligned Movement, emphasized that transboundary crimes such as terrorism, piracy, transnational organized crime and human trafficking should serve as the legal basis for the application of universal jurisdiction.  Further, perpetrators should be prosecuted by the State on whose territory the crimes were committed or by the victims’ State of nationality if the case does not fall within the scope of universal jurisdiction.  The scope of universal jurisdiction needed to be clarified.  As well, the obligation to extradite or prosecute as required by international treaties needed to be differentiated from the principle of universal jurisdiction.  To this end, he welcomed the International Law Commission’s decision to include universal criminal jurisdiction in its long-term programme of work.

PABLO ADRIÁN ARROCHA OLABUENAGA (Mexico) said that, although the majority of States agree that universal jurisdiction is applicable to serious international crimes, many also consider the principle applicable to offenses against the right to health and the environment and other crimes such as corruption and tax evasion.  He stressed that the exercise of the principle should be restricted to international crimes, as the power to prosecute in the absence of a territorial or national link derives from the violation of universally shared valued or erga omnes norms.  Those crimes that overlap with national jurisdiction — particularly those related to transnational crime — should not be subject to universal jurisdiction.  He urged that national courts should be respected as the principle guardians of international values and called for the Committee to continue its debate of the principle and for the International Law Commission to incorporate it into its current programme of work.

ROBERT KAYINAMURA (Rwanda), associating himself with the Non-Aligned Movement and the African Group, commended Member States that extradited or prosecuted people who participated in the 1994 genocide against the Tutsi people of his country.  However, a number of genocide fugitives are still enjoying safe haven in some Member States, including nine key genocide fugitives indicted by the International Criminal Tribunal for Rwanda, he pointed out.  When this item was placed on the Sixth Committee agenda, some countries had been victims of the abusive use and misuse of the principle.  To address that confusion, the African Union adopted the African Model Law on Universal Jurisdiction over International Crimes to assist States to strengthen national legislation.  Rwanda used that law as a template for developing universal jurisdiction.  “There is need to strike the right balance to end the culture of impunity while at the same time establishing safe guards against the potential abuse and misuse of the principle of universal jurisdiction,” he stressed.

Mr. FURDORA (Cuba), associating himself with the Non-Aligned Movement, expressed his country’s unwavering commitment to the international community’s fight against impunity.  However, he also voiced deep-seated alarm about the abuse of the principle, as illustrated by the unilateral and selective exercise of the jurisdiction of the courts of certain developed countries.  Also noting politically motivated laws targeting other States, he encouraged the General Assembly to focus on regulating or creating international guidelines to prevent misuse of universal jurisdiction.  The principle should not be wielded to erode the values of different legal systems around the world and should not be selectively exploited for political purposes.  Further, placing limits on the application of this principle is a mark of respect for the sovereignty of States, he said.

SUSAN W. MWANGI (Kenya), associating herself with the Non-Aligned Movement and the African Group, pointed out that the Committee has been discussing the principle of universal jurisdiction for 10 years.  Noting the divergence concerning the potential for selective and arbitrary application of the principle, she stressed these differences are a clear sign that — if not carefully defined and regulated within the acceptable norms of international law — the unilateral application of universal jurisdiction by States can become subject to abuse.  The basic conceptual, definitional and foundational aspects relating to the principle should be clearly outlined.  To this end, she expressed hope that the International Law Commission could clarify the scope of and propose guidelines for the proper application of the universality principle.

HÉCTOR ENRIQUE JAIME CALDERÓN (El Salvador) stressed that universal jurisdiction plays a vital role in restricting impunity and defending human rights.  The principle is a form of criminal jurisdiction, the exercise of which depends solely on the nature of the crime to which it is applied.  Its purpose is to protect those whose human rights were violated by serious international crimes.  It is important to have a set of norms and standards that create a foundation for applying the principle, and States should work to implement the principle in domestic law.  El Salvador has created a policy for the criminal prosecution of war crimes and crimes against humanity that took place in that country’s armed conflict which provides victims access to justice, the knowledge of what occurred and reparations.  In this way, the State holds itself accountable, he said.

ISSA KONFOUROU (Mali), associating himself with the Non-Aligned Movement and the African Group, said his country is “slowly but surely getting back on its feet since the multidimensional crisis of 2012”.  Urging the international community to combat impunity, in line with General Assembly resolution 73/208, he called the emergence of a universal justice system a godsend.  Universal jurisdiction provides a fundamental tool to ensure accountability for crimes perpetrated by terrorist groups and drug traffickers in his country.  The principle has been incorporated into the domestic legislation of his country, he said, also welcoming the cooperation between his country and the International Criminal Court.

THABO MICHAEL MOLEFE (South Africa) said that while universal jurisdiction plays an important role in ensuring accountability, the principle is not without flaws.  From a practical perspective, there are challenges around cooperation between States, he said, calling for a multilateral convention on mutual legal assistance and extradition.  There are also political challenges because of the non-uniform application and abuse of universal jurisdiction.  Calling for political sensitivity and prudence, especially when approaching the question of immunity, he noted that discussions in the Sixth Committee are reaching an impasse.  It could be useful for the International Law Commission to conduct a study of universal jurisdiction at a technical level, particularly since the topic is already placed on its long-term programme of work.  At the same time, the political discussions about its abuse and misuse are more suitable for the Sixth Committee; therefore the two processes could run in parallel, he said.

ALEXANDER S. PROSKURYAKOV (Russian Federation) pointed out that the Secretary-General’s report demonstrates broad divergence of opinion on the principle and application of universal jurisdiction.  He stressed that States’ application of the principle must be in line with their commitments under international law, particularly with regards to the immunity of State officials.  To combat impunity, he called for existing treaty mechanisms in the area of criminal law to be strengthened to facilitate the exchange of information, interaction between investigative agencies and the expansion of law-enforcement potential.

For information media. Not an official record.