Frustration with a lack of meaningful progress and divisions over the appropriate scope and application of universal jurisdiction permeated the discussion in the Sixth Committee (Legal) today, as delegates took up the report of the Secretary‑General, “The scope and application of the principle of universal jurisdiction” (document A/75/151).
The representative of Haiti touched on the balancing act between competing interests that formed the crux of disagreement on the matter — that, while nothing in the world can justify the cruelty or impunity of certain individuals who believe themselves above the law, the principle of universal jurisdiction must only be applied as a last resort to address prosecutorial gaps in the State in which the crime occurred. Universal jurisdiction must never facilitate judicial imperialism, he stressed.
However, Burkina Faso’s delegate urged that the exercise of universal jurisdiction to fight impunity was an issue of morality. The principle provided the last line of defense against barbary and offered many victims their only opportunity to be heard. This principle must apply to those gravest of international crimes that challenge the collective conscience of States, he added.
To that point, the representative of Germany detailed her country’s application of universal jurisdiction, spotlighting ongoing trials in Germany, including one on members of Syria’s intelligence services accused of torture, and another regarding a German national allegedly involved with Islamic State of the Levant and Iraq (ISIL/Da’esh) who caused the death of a Yazidi girl. “The message is clear: those who commit atrocities cannot feel safe. They will eventually be held accountable,” she said.
Iran’s representative, speaking for the Non-Aligned Movement, illustrated the counterpoint to the application of the principle, stressing that national prosecution under the auspices of universal jurisdiction of high-ranking officials given immunity under international law violates the sovereignty of States. He urged the Sixth Committee to remember the reason that this item was included on its agenda — to address the uncertain scope and application of this principle, as well as its abuse.
The representative of South Africa, speaking for the African Group, pointed out that, though discussion on this issue began in 2009, the tiny steps the Committee had taken collectively over the past 10 years undermines the importance of the topic. Highlighting the abuse of universal jurisdiction, particularly in relation to African officials, he called on the Committee to address the inclination of non-African States to apply this principle to Africans, without consent or cooperation.
To guard against any unjustified application, Singapore’s representative suggested a thorough analysis of State practice and opinio juris to determine if a particular crime is subject to universal jurisdiction. This form of jurisdiction must not be exercised in isolation from, nor to the exclusion of, other principles of international law, such as the immunity of State officials and State sovereignty, she said.
Sierra Leone’s representative — also concerned with the lack of substantial progress after a decade of discussion — observed that prospects for progress appeared to become slimmer each year. To resolve lingering disagreement, he proposed, among other things, that at least one policy question regarding the topic be taken up in the Sixth Committee’s Working Group this year. As well, the International Law Commission should produce a report to guide next year’s discussion addressing the principle’s definition, scope and status under international law.
The Sixth Committee will next meet at 3 p.m. on Wednesday, 4 November, to conclude its consideration of the scope and application of the principle of universal jurisdiction and to begin debate on the status of the protocols additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts.
Scope and Application of Universal Jurisdiction
The representative of Iran, speaking for the Non‑Aligned Movement, said that the exercise of criminal jurisdiction by national courts under the auspices of universal jurisdiction over high‑ranking officials who enjoyed immunity under international law violates the sovereignty of States. The immunity of State officials was deeply rooted in the Charter of the United Nations, firmly established in international law and should be fully respected. He urged the Committee to remember the context in which this item was included on the agenda —to address the uncertain scope and application of the principle, as well as its abuse in February 2009. Further clarification was needed to prevent any misapplication or improper resort to universal jurisdiction, he stressed, adding that this principle should not replace other jurisdictional bases and should only be asserted for the most serious crimes.
The representative of South Africa, speaking for the African Group, underscored the importance of the agenda item to the Group and spotlighted the abuse of the principle of universal jurisdiction, particularly in relation to African officials. Recalling that the item was included in the agenda of the sixty‑fourth session of the General Assembly in 2009 and then allocated to the Sixth Committee, he said that the length of time the Committee has intensively debated this topic and the tiny steps collectively taken over 10 years undermines its importance. During that time, the Sixth Committee has failed to address the real concern that necessitated the addition of the topic to its agenda. African Member States as well as the African Union Commission have submitted information and observations on applicable international treaties and have actively participated in the Working Group. The Sixth Committee must take steps to address the inclination of non‑African States to apply the principle on Africans, without the consent of the African State and outside the safeguards of cooperation within the international system. Emphasizing the importance of consent and cooperation within the multilateral system, he noted that universal jurisdiction should also be complementary to the national jurisdiction of the country of concern. Further, it should not be applied in a manner inconsistent with the principles of international law or customary international law, including non-intervention in the internal affairs of a State as well as diplomatic immunities, he stressed.
The representative of Sweden, also speaking for Denmark, Finland, Iceland and Norway, said that universal jurisdiction served as an effective mechanism to ensure accountability and provide justice for victims. All States should assist courts at national and international levels in prosecuting serious global crimes through cooperation. This approach has been demonstrated in several cases being pursued in German and Swedish courts against individuals linked to State and non‑State actors for atrocities in Syria, most of them on the basis of universal jurisdiction. However, because of the potential abuse of the principle, she urged caution against developing an exhaustive list of crimes for which universal jurisdiction would apply. To advance the application of universal jurisdiction, States should adopt national legislation based on the Rome Statute of the International Criminal Court, ensuring direct prosecution of crimes under the jurisdiction of the Court, namely the most serious crimes of concern to the international community, and a more effective cooperation framework with international courts.
The representative of Canada, also speaking for Australia and New Zealand, said that it was in the international community’s interests to ensure that the most serious international crimes are prevented and that perpetrators are held to account. Australia, Canada and New Zealand have all incorporated the principle of universal jurisdiction into their domestic legislation, she said, encouraging others who have not yet done so to follow suit. She welcomed the recent start of legal proceedings under the principle, including Germany’s prosecution of two Syrian nationals for alleged crimes against humanity committed in Syria. Highlighting the Secretary‑General’s report on Member States’ understanding of the scope and application of universal jurisdiction, including their national legal rules and judicial practice, she said: “By working cooperatively and collaboratively, we can ensure that perpetrators of such grave crimes do not receive safe haven anywhere in the world.”
The representative of Singapore said that a thorough and robust analysis of State practice and opinio juris should be undertaken to determine if a crime is subject to universal jurisdiction, thus helping to guard against any unjustified application or extension of the principle. Universal jurisdiction cannot be exercised in isolation from, or to the exclusion of, other principles of international law, including the principles of immunity of State officials from foreign criminal jurisdiction, State sovereignty, and territorial integrity. Further, universal jurisdiction is a principle of customary international law and it should be distinguished from the exercise of jurisdiction provided for in treaties or the exercise of jurisdiction by international tribunals. “We should keep in mind that each of these different scenarios has its own specific set of juridical bases, rationales, objectives and considerations,” she said.
The representative of Syria, associating himself with the Non‑Aligned Movement, said that serious gaps in State application of universal jurisdiction affects the implementation of the principle. Noting the politicization of this issue by certain Member States, he expressed his rejection of attempts to unjustly broaden the principle’s application. He also voiced his opposition to the International, Impartial and Independent Mechanism in Syria, stressing that the General Assembly does not have the mandate to create this kind of entity, formed outside of Security Council mandate and without the approval of the Syrian Government. In addition, any information that comes from this mechanism cannot be part of future legal measures. The United Nations should focus its resources on tackling the pandemic rather than funding this unlawful and imbalanced mechanism, he said, warning that the entity could spread to other States in a similarly illegal and unjust fashion.
The representative of the Philippines, associating herself with the Non‑Aligned Movement, noted the divergence and lack of consensus among Member States on the definition, scope and application of the principle of universal jurisdiction. The principle, grounded on the imperative need to preserve international order, is considered part of Philippine law, she said. However, because it is exceptional, its scope and application must be limited and clearly defined. Immunity of State officials, in particular, must be preserved and respected, she said, cautioning that unrestrained invocation and abuse of the exercise of universal jurisdiction only undermines the principle. Encouraging the Committee and the Working Group to continue their consideration, she said the process of defining the scope and application of the principle should be State‑led and discussions should remain in the Sixth Committee, rather than being referred to the International Law Commission.
The representative of the United States, recalling the origins of the principle of universal jurisdiction in relation to piracy, said that basic questions remained regarding how to exercise the principle. He also expressed further uncertainty as to the principle’s definition, scope and application, but welcomed further exploration of issues relating to its practical application. More States should share information regarding their practice in this area, he added.
The representative of El Salvador said that universal jurisdiction constitutes a transcendental element for reducing impunity for serious crimes. It is vital to ensure that victims have access to justice, truth and comprehensive reparations, he said, adding that his country has a solid legal framework which regulates the application of the principle. Highlighting article 10 of El Salvador’s criminal code, which deals with an independent application of universal jurisdiction, he pointed to the definition established in the Princeton Principles on universal jurisdiction according to which certain crimes are so harmful for international interests that States are authorized and even obliged to take legal action against them. As well, his country’s Office of the Prosecutor has developed a policy of criminal prosecution of war crimes and crimes against humanity that have occurred in the context of armed conflict, he noted.
The representative of Sierra Leone, aligning himself with the Africa Group, expressed concern that the concept of universal jurisdiction had failed to substantially progress after over a decade of discussions in the Sixth Committee. In fact, prospects for progress appeared to become slimmer each year, as the Committee was not carrying out substantive discussions of the legal issues. After studying the road map prepared by previous Chairs of the Working Group on this topic, he suggested that the Sixth Committee take up at least one policy question regarding the topic in the Working Group this year. The Committee should also mandate the Secretary‑General to carry out a thorough study of materials already collected on universal jurisdiction. In addition, the General Assembly should review the topic’s debate over the past 10 years. This would help identify specific topics of broad agreement as well as issues with gaps in agreement. Lastly, the International Law Commission should provide a report to assist in guiding next year’s discussions in the Sixth Committee by addressing what is meant by the concept of universal jurisdiction, what it includes, what it lacks and whether it is considered a principle under international law, he said.
The representative of Sudan, associating himself with the Non‑Aligned Movement and the African Group, stated that this controversial issue requires further consideration. Many countries attempt to apply this principle according to their own national systems, he observed. However, as there was no global consensus, that approach will lead to a crisis regarding the principle’s application. It was important to avoid erroneous application and politicization of universal jurisdiction, which should be exercised only when no other jurisdictional bases exist. Further, this principle must not replace other rules, must focus on only the gravest of crimes and must not be practiced independent of other rules of international law, including State sovereignty, territorial integrity and the immunity of State officials. He called for continued dialogue in the Committee to attain a single, sound application of the principle.
The representative of Malaysia, noting he had consistently provided comments and relevant information on the issue since its introduction in 2009, said the principle should go through in‑depth legal analysis to achieve common consensus by all Member States. Yet, Member States have provided minimal responses, whether on the scope and application of universal jurisdiction, relevant applicable international treaties or their national legal rules and judicial practice. The Sixth Committee should analyse the reasons behind the lack of responses, he said, observing that it had been considering the matter for more than a decade. In addition, the International Law Commission should lead the way in steering discussions the right direction, particularly on the principle’s scope and application. In that way, Member States will be able to express their broader views on major issues.
The representative of Cuba expressed deep concern about the improper use of the principle of universal jurisdiction by courts in developed countries against natural or legal persons in developing countries. For that reason, she said she condemned the promulgation, at the national level, of politically‑motivated laws against other States. For its part, the General Assembly should aim to regulate or to create international guidelines to avert improper use of the principle of universal jurisdiction and to preserve international peace and security. She added that when the principle of universal jurisdiction is applied by national courts, other principles concerning sovereign equality, political independence and non‑interference in the internal affairs of States must be fully respected. Full immunity of acting Heads of State, diplomatic personnel and other high‑ranking officials, granted by virtue of international law, should not be subject to question.
The representative of the Russian Federation, noting the importance of universal jurisdiction as an accountability tool, said the Secretary‑General’s report shows how it is interpreted in different States, to which crimes it applies and what modalities are used for its implementation. There is a wide divergence of views on this concept, he noted, cautioning States against treating it arbitrarily. “We have before us many examples where the universal use of universal jurisdiction has led to seriously complicated relations between States,” he said, adding that the implementation of universal jurisdiction must be in line with obligations under international law. Calling for further strengthening of treaty mechanisms for cooperation on criminal justice, he spotlighted the need for collaboration in legal assistance and exchange of information. Also pointing to diverging views hindering the Committee’s work on the topic, he questioned the possibility of bringing States’ positions closer together and drawing up single standards for universal jurisdiction.
The representative of Senegal, noting that universal jurisdiction is one of the main tools that prevent grave violations of international law, said his country has integrated this into its domestic legal toolkit. He also noted domestic laws against money laundering and the financing of terrorism and pointed to his country’s accession to several international instruments which apply to topics that could call for the application of universal jurisdiction. Further, Senegal has a legal framework that would confer upon national criminal courts jurisdiction over acts committed abroad, whatever the nationality of the perpetrators, as long as they reside on its territory and it has been decided not to extradite them. His country’s commitment to international justice does not stop with the adoption of appropriate legal frameworks, he said, stressing that the application of the principle must always be underpinned by international law. Universal jurisdiction must be applied non-selectively and in good faith, he said, adding that the legitimacy and credibility of universal jurisdiction are very much dependent on that.
The representative of Burkina Faso, associating himself with the African Group and Non‑Aligned Movement, urged that the application of universal jurisdiction is one of the most appropriate mechanisms with which to fight impunity, as the principle provides the last line of defence against barbary and offers many victims their only opportunity to be heard. The exercise of this principle is an issue of morality, he stressed, and its effective application requires that deficiencies in national legislation be addressed through multilateral measures. To this end, he called for harmonization within an international instrument on the matter, adding that the principle of universal jurisdiction must pertain to the gravest of international crimes that challenge the collective conscience of States, such as terrorism and the financing thereof.
The representative of Germany said that her country’s Code for Crimes against International Law also applies to crimes committed outside Germany, regardless of the nationality of the victim or perpetrator or any other connections to Germany. Since 2011, the Federal Prosecutor General has run a structural investigation concerning crimes against humanity and war crimes regarding acts committed by members of the Syrian Regime, resulting in several trials. One trial concerning crimes against humanity began 23 April 2020 against two members of Syria’s intelligence services, with one charged with overseeing the torture of more than 4000 persons. A German national is currently being tried for her alleged involvement in war crimes while she was a member of Islamic State of the Levant and Iraq (ISIL/Da’esh), causing the death of a young Yazidi girl. As well, a foreign national has been extradited to Germany to face charges of genocide for crimes committed against the Yazidi community in Iraq. Some of the cases may not be cases of universal jurisdiction because of a person’s German nationality, she observed. However, they have led to interesting developments regarding the application of international criminal law. German prosecutors are currently running more than 100 investigations into international crimes. “The message is clear: those who commit atrocities cannot feel safe. They will eventually be held accountable,” she said.
The representative of Cameroon, stating that the principle of universal jurisdiction must be invoked with care, expressed concern that its current meaning contemplates trying any crime committed abroad, regardless of the nationality of the perpetrator or victim. The principle is meant to fight impunity and can only be implemented when a State lacks the capacity to exercise its sovereign right to try perpetrators of certain crimes, she said. Further, universal jurisdiction must complement the principle of national jurisdiction, should only be invoked for the gravest of crimes and should not be exploited for political ends. The application of universal jurisdiction remains a “sticking point because of what can be concealed behind it,” she noted.
The representative of Algeria said the international community has a shared responsibility to combat heinous crimes. However, the political and selective use of the principle of universal jurisdiction does not serve justice, she stressed. On the contrary, that approach affected the credibility of international law and undermined the objective of global justice. Voicing concern about the abuse and misuse of universal jurisdiction, particularly when applied without due regard to the requirements of international justice and equality, she underscored the importance of international law, in particular, the principles of sovereign equality of States, political independence, non‑interference in the internal affairs of States and the immunity of heads of State and Government. Further, this principle of exceptional nature must be considered a complementary mechanism and a measure of last resort which can neither replace nor substitute the primacy of national courts, she said, adding that the referral of the topic to the International Law Commission would be premature.
The representative of Haiti pointed out that some individuals believe themselves to be above the law because of their political position or economic status and, thus, freely commit crimes against their citizens. Nothing in the world can justify this cruelty or impunity. However, the application of the principle of universal jurisdiction should be the last resort to tackle gaps in the judicial systems of the countries in which such crimes occurred and should never justify judicial imperialism. He expressed support for the harmonization of national law and international legal instruments relating to this issue and urged further discussion in the Sixth Committee to clarify remaining ambiguities.
Also speaking today were the representatives of India, Venezuela, Slovakia, Brazil, Czech Republic, Israel, Egypt, Paraguay, Mexico, Viet Nam, Saudi Arabia, China, Costa Rica, Slovenia, United Kingdom, Zimbabwe, Indonesia and Nigeria, as well as an observer for the Holy See.