Applicability of Universal Jurisdiction
By Lakshman I. Keerthisinghe
“Universal jurisdiction allows states or international organisations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused’s nationality, country of residence, or any other relation with the prosecuting entity”
United Nations Human Rights Commissioner M. Bachelet refers to universal jurisdiction in her report on Sri Lanka at the 46th Sessions of the UNHRC. At its seventieth session, the United Nations General Assembly invited Member States and relevant observers, as appropriate, to submit information and observations on the scope and application of universal jurisdiction, including, information on the relevant applicable international treaties and their national legal rules and judicial practice, and requested the Secretary-General to submit to the Assembly at its seventy-first session a report based on such information and observations. This item was included in the provisional agenda of the sixty-fourth session of the General Assembly, in 2009, at the request of the United Republic of Tanzania on behalf of the Group of African States. This article attempts to present the concept in a nutshell.
During the general debate, statements were made by the representatives of the Dominican Republic (on behalf of the Community of Latin American and Caribbean States (CELAC)), Iran (on behalf of the Non-Aligned Movement (NAM)), South Africa (on behalf of the African Group), Trinidad and Tobago (on behalf of the Caribbean Community (CARICOM)), Canada (also on behalf of Australia and Canada (CANZ)), Cuba, Czechia, Qatar, El Salvador, Peru, Sudan, Russian Federation, Burkina Faso, Lebanon, Zambia, Poland, Croatia, Venezuela (Bolivarian Republic of), Mexico, Singapore, United Kingdom, United States, Brazil, Nigeria, Slovenia, Israel, Togo, Iran. Saudi Arabia, Belarus, Algeria, Malaysia, India, China, Viet Nam, Norway, Serbia, Bangladesh, Morocco and Paraguay. Serbia and Croatia made statements in exercise of the right to reply. Statements were made by the observers for the Holy See and the International Committee of the Red Cross.
In their general comments, delegations welcomed the annual report of the Secretary-General (A/71/111) and acknowledged that universal jurisdiction was an important principle of international law aimed at combating impunity and bringing justice to victims. They underlined how the fight against impunity is a fundamental objective shared by the whole international community. In this regard, some delegations stressed that the challenges posed by heinous crimes must be addressed at many levels, Parallels were drawn by several delegations between the principle of universal jurisdiction and other principles in international justice, including between universal jurisdiction and international criminal judicial mechanisms and the principle of aut dedere aut judicare. (either extradite or prosecute). Some delegations also highlighted the differences between universal jurisdiction and extraterritorial jurisdiction, including as exercised by national Courts over a State’s own nationals as in Sri Lanka.
As regards the application of universal jurisdiction, delegations reaffirmed their concern with respect to the potential abuse or manipulation of the principle. Several delegations stressed that the principle must be applied in accordance with the Charter of the United Nations and international legal norms, including the sovereign equality of States, territorial integrity and the non-interference in the internal affairs of States. The need to avoid arbitrary or selective application of the principle, in order to avoid its political manipulation or exploitation, was also emphasised.
The delegate from China LI JIUYE recalled that Universal jurisdiction is neither tantamount to the obligation of aut dedere aut judicare in treaties, nor to jurisdiction of current international judiciary organs expressly mandated by treaties or other legal instruments. Considering the tremendous differences among Member States on the topic, the dire prospects of reaching consensus in the near future and the 2018 decision by the International Law Commission to include the subject in its long-term work programme, he suggested that Member States seriously ponder the necessity of continuing deliberations on the item in the Committee
Umasankar Yedla (India) said that those who commit the most serious crimes must be brought to justice and punished. The crime of piracy is a classic example of universal jurisdiction. For centuries, the international community has treated the piracy as an enemy of humankind. Principle of universal jurisdiction, invoked for prosecution of the crime of piracy, has formed part of customary international law. It is now codified in United Nations Convention on the Law of the Sea. He underscored that the misuse of the principle of universal jurisdiction should be avoided in respect of acts that do not legally enjoy such jurisdiction; the conceptual and legal clarification of principle’s meaning is yet to emerge
In conclusion, it must be noted that Six Committee speakers warned that without a clear definition, Universal Jurisdiction Principle risks misuse and abuse as seen in the report of the UN Human Rights Commissioner M. Bachelet against Sri Lanka, which is a sovereign state with its own established legal system and Courts.
The writer is an Attorney-at-Law with LLB, LLM, MPhil.(Colombo)[email protected]