Debate Reveals Rift in Speakers’ Understanding of Universal Jurisdiction Scope, Application, as Sixth Committee Takes Up Report on Principle
As the Sixth Committee (Legal) commenced its consideration of the scope and application of the principle of universal jurisdiction today, the debate revealed a rift in speakers’ understanding of its interaction with national legal frameworks and the possible risk that the perpetrators of the most heinous crimes might escape justice.
Before the Committee was the report of the Secretary-General, “The scope and application of the principle of universal jurisdiction” (document A/78/130) which contains information and observations received from Member States and relevant observers.
With many situations of massive and systematic violations of human rights around the world, the delegate of Costa Rica underscored that the application of this principle is more necessary than ever. “At stake is the imperative of justice for the victims of the most heinous crimes and the commitment of the international community to fight impunity,” he said.
In that regard, ensuring accountability for such crimes is not only a deterrent, but also a key element of reconciliation processes, Ireland’s delegate pointed out. Expressing concern that, with too much technical discussion, the Sixth Committee might lose sight of practical and concrete aspects, he recalled that universal jurisdiction allows a State to assert jurisdiction over an offence irrespective of where it was committed, the nationality of the accused and the victim or any other link with the prosecuting State.
Nonetheless, stressed Canada’s representative, also speaking for Australia and New Zealand, the primary responsibility for investigating and prosecuting serious international crimes rests with the State in the territory of which the crime was alleged to have occurred, or the State of nationality of the accused. Given their access to evidence, witnesses and victims, they are best placed to achieve justice.
However, the delegate of Lithuania, speaking also for Estonia and Latvia, pointed out: “…if these States are unwilling or unable to bring perpetrators of crimes to account, other States that have no direct connection to the crime should fill the gap on the basis of universal jurisdiction.” In addition, States should adopt national legislation to support universal jurisdiction for such crimes, he stressed.
Still, while Argentina’s justice has, on several occasions, closed the gap by exercising this principle in cases of most serious international crimes, that country’s representative warned that, if unlimited in nature, universal jurisdiction would give rise to conflicts of jurisdictions among States and could lead to possible abuses of justice as well as give rise to politically motivated prosecutions.
The delegate of Uganda, speaking for the African Group, recalled that, due to the principle’s uncertain scope and application, as well as its abuse, the Group requested in 2009 that the topic be included on the Sixth Committee’s agenda. Observing the lack of progress in addressing its misuse and abuse, he voiced concern that judges in non-African States apply it to Africans without the consent of their States and outside of the international cooperation framework. The Sixth Committee must address this inclination.
“Universal jurisdiction”, noted Sri Lanka’s representative, “holds out the promise of greater justice, but the jurisprudence of universal jurisdiction is disparate, disjointed and poorly understood.” Agreeing that this weapon against impunity is potentially beset by incoherence, confusion and, at times, uneven justice, he called for clearer and sounder standards to be crafted to guide national courts, thus helping to close the gap in law enforcement that has favoured perpetrators of serious crimes under international law.
Adding to that, Liechtenstein’s delegate emphasized: “The more national judiciaries carry out their responsibilities in line with the principle of universal jurisdiction, the less the burden on our international justice system.” She welcomed the encouraging developments on the principle and, in this regard, commended German courts in championing the principle by prosecuting atrocity crimes committed in Syria.
In that regard, the delegate of Germany reported on several judgments delivered on crimes committed against the Yazidi community, also noting that last year, the Federal Court of Justice confirmed the first ever conviction of a Da’esh member and the country’s prosecutors are running over 100 investigations into international crimes.
Taking a different stance, the delegate of Belarus emphasized that the obligation to apply universal jurisdiction can only arise on the basis of a universal international treaty, adding that recently the world witnessed increasing measures to ensure its broadest possible application. This is at odds with the fundamental principle of international law — the principle of sovereign equality of States.
Recognizing that over the past years, progress towards a common understanding of universal jurisdiction’s scope has halted, the delegate of Czech Republic, speaking also for Austria and Slovakia, suggested that the International Law Commission provide a legal analysis which would iron out differences on the principle’s definition, scope and application. “This analysis would be without prejudice to the final decision on the topic,” he stressed, adding that it would bring legal clarity and certainty.
At the outset of the meeting, Dennis Francis (Trinidad and Tobago), President of the General Assembly, told the Sixth Committee that its work is central to upholding peace, justice and the rule of law, as the international community strives to ensure that the legal framework remains robust and adaptable to the evolving needs of the temporarily beleaguered multilateral system. "In view of the unprecedented daunting challenges before us”, he emphasized that the Committee’s role in producing stability, clarity and predictability is more critical than ever.
The Sixth Committee will next meet at 10 a.m. on Monday, 16 October, to conclude its debate on the scope and application of the principle of universal jurisdiction and begin consideration of the report of the United Nations Commission on International Trade Law on the work of its fifty-sixth session, to be followed by discussing new requests for observer status......
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