As the Sixth Committee (Legal) concluded its debate on the scope and application of universal jurisdiction today, delegates wrestled with the challenging balance between State sovereignty — along with the primacy of national jurisdiction in prosecuting serious international crimes — and ensuring perpetrators of heinous crimes do not enjoy impunity. (For background, see Press Release GA/L/3641.)
The representative of Rwanda, calling on Member States to “walk the talk” when speaking about universal justice, pointed out that several genocide fugitives — including some indicted by the International Criminal Tribunal for Rwanda — still enjoy haven in some countries. While underscoring that use of the principle of universal jurisdiction must be regulated to prevent its abuse, he noted that the African Union’s model law on the topic provided Rwanda a template for developing legislation on universal jurisdiction that suits his country’s domestic peculiarities.
Costa Rica’s delegate, underlining the responsibility of each State to render justice for victims, also detailed her country’s law in this area. Costa Rica has removed the prohibition against prosecuting its citizens or foreigners for crimes committed outside of national territory in cases of genocide, piracy and trafficking. Domestic law also includes various international crimes among those acts that domestic courts can prosecute and punish. Universal jurisdiction is one of last resort, she added.
Offering an example of such a situation was Myanmar’s representative, who, recalling the recent illegal military coup in his country, said the people of Myanmar are helpless to seek accountability for perpetrators of crimes which had been registered with the International Criminal Court. Further, its courts are incapable of administering justice against the military, which responded to peoples’ desire for democracy and justice with live ammunition, arbitrary detention and enforced disappearances. The principle of universal jurisdiction is the most important means of ending impunity, he stressed.
The representative of Zimbabwe also said that universal jurisdiction must be applied as a last resort, stating that the principle must be exercised as a good-faith, complementary mechanism only in cases where national courts are unwilling or unable to act. National jurisdictions are the custodians of the principle, and universal jurisdiction should only be applied with the consent of the jurisdiction concerned. Further, its misapplication against African officials raised pertinent questions regarding the selective use of universal jurisdiction.
Saudi Arabia’s representative concurred on applying universal jurisdiction only as a last resort, also stressing the importance of accounting for different States’ judicial proceedings and national legislation. The principle must not be used to undermine State sovereignty, she emphasized, and any attempt to impose universal jurisdiction without respect for the equality of all States would be a breach of international law.
The United Kingdom’s delegate pointed out that there are few offenses for which courts in his country can exercise universal jurisdiction when there is no apparent link between the crime and the United Kingdom. The primacy of this territorial approach to jurisdiction reflects the reality that authorities of the State in whose territory the offense was committed are generally best placed to prosecute it. Noting the continued lack of international consensus on universal jurisdiction, he said that questions as to its application are best approached collaboratively between States through treaties.
The representative of the Russian Federation agreed, noting that States have other, less-controversial means with which to combat impunity such as treaty-based mechanisms. He called on States to use these instruments to cooperate on matters such as legal assistance, information exchange, and collaboration among investigative bodies. Pointing to the broad range of views regarding the principle of universal jurisdiction, he said it will be difficult for the Sixth Committee to make progress on this topic based on the materials currently before it.
However, Algeria’s representative said that it is still relevant and necessary for the Sixth Committee to continue examining the principle, noting that referral of this topic to the International Law Commission would be premature at this stage. Deliberations should focus on considering clear rules for the application of universal jurisdiction, along with its scope and definition, to ensure its reasonable exercise and compatibility with international law.
The representative of Zambia pointed out that, while the Sixth Committee is preoccupied with fundamentals, new areas of debate on the principle of universal jurisdiction are brewing among legal scholars. These include to what extent the principle applies to more-covert criminal acts committed outside the context of war. He urged the Committee to make tangible progress on the basics of universal jurisdiction so it can tackle such evolving concerns.
Also speaking on the scope and application of the principle of universal jurisdiction were the representatives of Germany, Cameroon, Sri Lanka, Haiti, Senegal, Morocco, Argentina, Indonesia, Colombia, along with observers for the Holy See and the International Committee of the Red Cross.
The representative of Syria spoke in exercise of the right of reply.
The Sixth Committee will next meet at 10 a.m. on Monday, 25 October, to begin its consideration of the report of the International Law Commission on the work of its seventy-second session.
Scope and Application of Universal Jurisdiction
GEORG CHRISTIAN KLUSSMANN (Germany) said that German prosecutors have exercised universal jurisdiction under the 2002 Code for Crimes against International Law, which also applies to crimes committed outside Germany. Courts are hearing cases involving torture, crimes against humanity and war crimes, committed by members of the Syrian regime and by members of Islamic State of Iraq and the Levant (ISIL/Da’esh). Describing several recent cases, he said that a German court sentenced a member of the Syrian Intelligence Services to four years and six months for abetting crimes against humanity involving the torture of more than 4,000 people. Further trials and convictions included persons associated with Al-Nusra Front and other terrorist organizations in Syria or Iraq, who have returned to Germany. Cumulative prosecution become particularly relevant for addressing acts by spouses of foreign terrorist fighters. In that regard, the court had found that a mother who handed her own child to a Da’esh military training camp had committed the war crime of conscripting or enlisting children. German prosecutors are currently running more than 100 investigations into international crimes. The message is clear: those who commit atrocities will eventually be held accountable. There is no safe haven for perpetrators of international crimes against criminal prosecution in Germany, he said.
KYAW MOE TUN (Myanmar) said the principle of universal jurisdiction is the most important means of ending impunity. In Myanmar, the military staged an illegal coup in February, detaining sitting President U Win Myint, senior Government officials, activists and others. When people came to the streets expressing their desire for democracy and justice, the military responded with live ammunition, arbitrary detentions and enforced disappearances without due process of law. Since the coup, 1,200 people have been murdered, 7,355 arrested and 355 sentenced without a fair trial or right to appeal. The United Nations Independent Investigative Mechanism for Myanmar has indicated the military has committed crimes against humanity, including imprisonment, torture, killings and sexual violence. Adding that the National Unity Government has registered with the International Criminal Court regarding crimes committed in Myanmar since 1 July 2002, he said the people of Myanmar are helpless to seek accountability for perpetrators and its courts incapable of administering justice against the military. Myanmar will continue to work closely with the international community, including the United Nations, the International Criminal Court and regional countries to make the perpetrators accountable, bring justice to victims and strengthen respect for peremptory norms of general international law.
ROBERT KAYINAMURA (Rwanda), associating himself with the African Group and the Non-Aligned Movement, said Member States must “walk the talk” when speaking about universal justice. Several genocide fugitives are still enjoying haven in some Member States, including key genocide fugitives indicted by the International Criminal Tribunal for Rwanda. Noting the lack of cooperation from such Member States, he said agreement must be reached on specific conditions, in order to prevent abuse of the principle. Further, it should be exercised in good faith and with regard to other principles of international law. Due to the potential or disruptive effect of abuse of the principle, it is imperative that disciplines be established regarding its regulation. African countries, through the African Union, adopted the African Model Law on Universal Jurisdiction over International Crimes to assist Member States in adopting and strengthening national legislations. The Model Law provided Rwanda a template for developing legislation on universal jurisdiction that suits his country’s domestic peculiarities, adding that it has the potential to ensure that Rwanda’s laws are harmonized in content, thus minimizing potential clashes, like those brought about by the universal jurisdiction laws in other countries.
ZACHARIE SERGE RAOUL NYANID (Cameroon) spotlighted the delicate, difficult task of striking a balance between sovereign concerns and the need to hold the perpetrators of the worst crimes responsible. While he supported combatting impunity, he expressed concern over certain actors’ understanding and use of this principle. The idea of prosecuting any crime committed abroad — regardless of where it takes place — is an attempt to “sweep away sovereignty” in order to punish perpetrators. He stressed that universal jurisdiction must be exercised while respecting established procedures. Any application of the principle must conform with fundamental tenets of criminal justice, including the right to a fair trial and the presumption of innocence. Further, universal jurisdiction must only be exercised as a last resort, and the functional immunity of public officials should be carefully considered, as such immunity belongs to the State.
PETER MOHAN MAITHRI PIERIS (Sri Lanka) emphasized that the principles enshrined in the Charter of the United Nations — particularly those of State sovereignty and non-interference in the internal affairs of States — should be strictly observed in judicial proceedings. He expressed concern over the misuse of the principle of universal jurisdiction, which must not be used to further the political agendas of certain sectors. Noting that the rule of law “is the edifice of justice,” he emphasized the need to draw a balance between the principle of sovereign equality and the difficult task of bringing the perpetrators of heinous crimes to justice. “Universal jurisdiction is a potent weapon,” he stressed, adding it would “cast all the world’s courts as a net to collect the alleged perpetrators of international law”. It is commonly said to apply to those crimes that shock the conscience of humanity. He cautioned, however, that the interests of “humanity” are difficult to quantify in legal terms, let alone define.
MUKI MUKAFYA BENAS PHIRI (Zambia) pointed out that, while the Sixth Committee is preoccupied with fundamentals, new areas of debate are brewing among legal scholars. Scholars are asking to what extent does universal jurisdiction apply to more covert criminal acts committed outside the context of war. Questions are emerging about whether situations, in which evidence shows that acts are committed as part of a widespread or systematic assault directed against civilian populations at home or abroad, should fall under universal jurisdiction. He urged the Committee to make tangible progress on the basics of universal jurisdiction so it can devote time to tacking these and other evolving concerns. On a national platform, Zambia is committed to upholding the principles and values enshrined in conventions and treaties to which it is a signatory, including the International Criminal Court and the International Residual Mechanism for Criminal Tribunals, he said. The newly elected Government of President Hakainde Hichilema has begun a reform process of the criminal justice system that includes all relevant institutions: the judiciary, legislature, law enforcement agencies and the Zambia Law Development Commission, among others. A primary goal is to develop a more comprehensive legal framework that incorporates key principles of law, including universal jurisdiction.
JONATHAN SAMUEL HOLLIS (United Kingdom), noting the continued lack of international consensus about universal jurisdiction, stressed that the principle refers to jurisdiction over a crime irrespective of its location, the nationality of the alleged perpetrator or victim, or other links between the crime and the prosecuting State. That is distinct from the jurisdiction of international judicial mechanisms and from other categories of extra-territorial jurisdiction. The primacy of the territorial approach reflects the reality that authorities of the State in whose territory an offence is committed are generally best placed to prosecute it, not least because of the obvious advantages in securing evidence and witnesses. Consequently, there are few offences for which United Kingdom courts can exercise universal jurisdiction, when there is no apparent link between the crime and that State. Questions as to whether universal jurisdiction should apply are best approached collaboratively between States through treaties, he said, expressing doubt whether the issues faced by States in this respect are best addressed by the International Law Commission.
NIDAA HUSSAIN ABU-ALI (Saudi Arabia), reaffirming her country’s commitment to ending impunity for serious crimes, said that Saudi Arabia had submitted information on relevant legal and national rules for the Secretary-General’s report relating to the scope and application of universal jurisdiction. Noting differences among States, she stressed the importance of taking into account their judicial proceedings and national legislations. The international community should resort to universal jurisdiction only in cases of serious crimes and when the State where the crime was committed is unable or unwilling to apply its jurisdiction. Stressing that this principle should not be used undermine State sovereignty, she emphasized that any attempt to impose universal jurisdiction, without respect for equality of all States, would be a breach of international law.
ANA LORENA VILLALOBOS BRENES (Costa Rica), stressing the importance of strengthening mechanisms for justice at the national and international levels, emphasized the responsibility of each State to render justice for victims. International instruments, such as the Geneva Conventions and the Rome Statute, establish the duty to prosecute or extradite those who commit such crimes. Universal jurisdiction is a jurisdiction of last resort, she stressed, adding that it must be supplementary to national jurisdiction and not replace it. Her country has been reforming its criminal legislation by doing away with the express prohibition against prosecuting its citizens or foreigners, for crimes committed outside of the national territory, in cases of genocide, piracy and trafficking. Costa Rica also included various international crimes among those acts that can be prosecuted and punished in the country, although they may have been committed elsewhere, she noted.
WISNIQUE PANIER (Haiti) pointed out that debate on universal jurisdiction is not new, with the principle having emerged following the Second World War, due to its recognition in the Geneva Conventions. However, the principle of universal jurisdiction is ambiguous and does not enjoy consensus in the international community, which is understandable as it could be used to dominate or interfere with the internal affairs of States. Nevertheless, some individuals often believe themselves to be above the laws of their own country, which could lead them to commit crimes of exceptional seriousness. He emphasized that nothing can justify this impunity, and therefore it stands to reason that serious or cross-border crimes could lead to foreign courts exercising universal jurisdiction. Judicial cooperation is necessary in such cases, and the principle of universal jurisdiction should only be applied as a last resort, and must not justify any form of “judicial imperialism,” he added.
ABDOU NDOYE (Senegal), associating himself with the Non-Aligned Movement and the African Group, said that the principle of universal jurisdiction is one of the most effective ways of preventing and punishing crimes of the most serious concern to the international community. As the exercise of universal jurisdiction is still necessary to fight impunity for the commission of mass atrocities, Senegal integrated the principle into its domestic law. He emphasized that application of the principle of universal jurisdiction should always be premised on international law, and that the legitimacy and credibility of universal jurisdiction is contingent on its application in accordance with the fundamental principle of complementarity. Given developments in transnational organized crime, he added, universal jurisdiction may be an effective way to combat impunity and discourage criminals from seeking exile to escape prosecution.
EL HASSAN LASRI (Morocco), stressing that universal jurisdiction is a fundamental tool to combat impunity and strengthen international justice, reaffirmed that the principle must be exercised on the basis of good faith. Also emphasizing the need to respect principles of international law, in particular, the sovereignty of States, political independence and non-interference in their domestic affairs, he underscored that the principle cannot be applied except in circumstances where certain States cannot exercise their sovereign rights. Underscoring that this principle must be complementary to the principle of national jurisdiction and should not be a substitute for it, he said it should only be invoked in cases of very serious crimes.
MARTÍN JUAN MAINERO (Argentina) stressed that it is the primary responsibility of States to exercise their criminal jurisdiction against those responsible for serious crimes committed on their territories. Nevertheless, when the States bearing the primary responsibility are unable or do not wish to exercise their jurisdiction, other States that have a direct link with the crime can fill this void on the premise of exercising universal jurisdiction. “What we have here is an instrument that is exceptional in nature and applied subsidiarily,” he stressed, adding that it is regulated by treaty rules and customary law, and should be used in accordance with the rules of international law. Also noting that, while there could be some overlap between the principles of universal jurisdiction and au dedere aut judicare, he said these are distinctly different concepts and should not be conflated. Universal jurisdiction without limitations may lead to jurisdictional disputes between States, he said, welcoming the decision of the International Law Commission to include this item on its long-term agenda.
FRANCIS WINSTON CHANGARA (Zimbabwe), associating himself with the Non-Aligned Movement and the African Group, said that national jurisdictions are the custodians of the principle of universal jurisdiction, which should be exercised only with the consent of the jurisdiction concerned. Apparent misapplication of the principle against African officials raised pertinent questions regarding the selective use of universal jurisdiction. The principle must not create frictions between States or lead to the abuse of due process. Further, it must be exercised in good faith, with due respect for the principles of international law, as a complementary mechanism, and only as a last resort in cases where national courts are unwilling or unable to act. He added that international law does not operate in isolation; rather it requires cooperation between States, law-enforcement organizations and judicial institutions, on matters such as extradition and mutual legal assistance.
MUHAMMAD TAUFAN (Indonesia), associating himself with the Non-Aligned Movement, said that all conceptual ambiguities, regarding the scope and application of the principle, must be clarified. The scope must be limited to only the most heinous crimes and its application must be conducted in accordance with due process of law as a last resort, confined only to circumstances where a State with jurisdiction is unable or unwilling to prosecute. In this regard, universal jurisdiction is different from the obligation to prosecute or extradite, which in many instances has a broader scope, as agreed between States in treaties. The application depends on cooperation with other States, without which no investigation and trial can occur. Indonesia’s Penal Cade stipulates that its criminal jurisdiction may be established towards crimes of, among others, piracy and hijacking, regardless of the location of the crimes or the nationality of the perpetrators or victims, he said, expressing support for continued discussion in the Sixth Committee and for the Secretariat’s efforts to gather information on States’ practices.
ALEXANDER S. PROSKURYAKOV (Russian Federation) noted the broad range of views regarding the concept of universal jurisdiction, which crimes it applies to, in what legal instruments it is reflected and the modalities for its application. Until the international community reaches consensus on at least its scope and application, he cautioned care in invoking this principle; arbitrary use of universal jurisdiction only complicates relations between States. Noting that States have other, less-controversial instruments with which to combat impunity, he called on Member States to use treaty-based mechanisms to cooperate on matters such as legal assistance, information exchange and collaboration among investigative bodies. He also said that — as no new points have emerged to enrich discussion or nudge it in a new direction — it will be difficult for the Sixth Committee to make progress on this topic, based on the materials currently before it.
LUCIA TERESA SOLANO RAMIREZ (Colombia) said that in her country, the principle of universal jurisdiction comes under the Constitution itself, and treaties relating to that clause are applied at the constitutional level. There is no provision explicitly on universal jurisdiction. However, her country’s jurisprudence recognizes it as a treaty-based rule relating to international obligations, with respect to international human rights, humanitarian and criminal law. Given the ways in which the principle is applied, Colombia’s criminal court recognizes the principle of extraterritoriality of criminal law and the principle of double jeopardy. Noting the diversity of practice among States regarding this principle, she stressed that the Sixth Committee should continue to consider it and establish a working group to conduct an exhaustive review of it.
ZAKIA IGHIL (Algeria), associating herself with the Non-Aligned Movement and the African Group, said universal jurisdiction does not replace, nor substitute, the primacy of national courts and jurisdictions to try crimes committed in their territories. Universal jurisdiction should be exercised with due respect to the basic principles of international law, in particular the sovereign equality of States and non-interference in the internal affairs of States. Noting the International Law Commission's decision to include “universal criminal jurisdiction” in its long-term programme of work, she said it is still relevant and necessary for the Sixth Committee to continue to examine this issue in the related Working Group. In that regard, the referral of the topic to the International Law Commission would be premature at this stage. The Committee’s deliberations should focus on considering clear rules for the application of the principle, its scope and definition, in order to ensure its reasonable exercise and compatibility with international law, to prevent any abuse and misuse that does not serve its original purpose.
GABRIELE CACCIA, Permanent Observer for the Holy See, said guidance on the proper ways to exercise universal jurisdiction must foster public trust in the legitimacy of any resulting trials and prevent any claims of bias. As such, efforts to end impunity must be coherent with the core tenets of international law and incorporate protections necessary for fair trials, he said, emphasizing that the severity of the crimes committed undergirds the principle of universal jurisdiction. Criminal justice norms must be in place in all cases where the severity of the crime serves as the basis for jurisdiction, with full respect for the presumption of innocence, principle of legality and the right to due process. Efforts must also reflect a shared understanding of appropriate circumstances for States to invoke universal jurisdiction. The Secretary-General’s related reports reveal significant unity on serious offences and divergences in the scope, he said, adding that universal jurisdiction should be limited to crimes of the gravest concern.
CHRISTOPHER BRADLEY HARLAND, an observer for the International Committee of the Red Cross (ICRC), said that in line with several core international humanitarian law treaties, States have a legal obligation to provide for universal jurisdiction in their national legislation over those war crimes known as “grave breaches”. States must search for persons allegedly involved in the commitment of those crimes and bring such persons before their own courts. In addition, State practice and opinio juris have consolidated a customary rule, whereby States have a right to vest their courts with universal jurisdiction, over serious violations of international humanitarian law. Noting that States have increasingly recognized the principle of universal jurisdiction as an important means to end impunity for the commission of serious violations of humanitarian law, he pointed to an increase in the ratifications of relevant treaties. Detailing ICRC’s assistance to States’ efforts in enacting appropriate legislation to respond to such serious violations, he drew attention to the launch this year of an manual, specifically addressed to judicial authorities.
Right of Reply
The representative of Syria, speaking in exercise of the right of reply, responding to Germany’s delegate, said the words “Syrian regime” denoted a lack of respect. Perhaps that representative is unfamiliar with the rules of procedure or perhaps he has been instructed to use that word to deliberately undermine the legitimacy of the Syrian Government, he said, noting that his country is a founding member of the United Nations. Germany was unable to carry out its political agenda in Syria, he said, adding that the Government of Germany is living under an illusion. Regarding that delegate’s allegation about Syria’s use of chemical weapons, he invited the German colleague to go to the First Committee and referred to the hundreds of correspondences from the Syrian Government to the United Nations about the use of chemical weapons by armed military groups.