12 October 2011: Sixth Committee Agenda item 84 The scope and application of the principle of Universal Jurisdiction. Statement of the Argentine delegation
Argentina welcomes the fact that the Sixth Committee once again addresses the scope and application of the principle of universal jurisdiction -included in the Agenda of the General Assembly at its 64th Session-, as it is an institution of public international law that demands legal rigour.
My delegation aligns itself with the intervention on Chile on behalf of the Rio Group.
We also recognize the Secretariat for preparing the Report contained in document A/66/93 and its Add.1. Also, we thank the Secretariat for preparing the information documents A/C.6/66/WG.3/INF.1 and INF.2, that contain a compilation of international treaties and decisions of international tribunals relevant for the principle of universal jurisdiction, and which were requested by virtue of paragraph 4 of the Report of the Sixth Committee (A/65/474). That is the initial objective basis that, among other elements, will have to be exmained at the Working Group.
At present, it is universally accepted that the most serious crimes of international concern cannot remain unpunished and, in that spirit, international law confirms that it is the duty of all States to exercise their criminal jurisdiction against the perpetrators.
The primary responsibility in carrying out investigation and prosecution is on the States in which territories the crimes were committed, or on other States having a connection with such crimes, such as the State of nationality of the perpetrator or the State of nationality of the victims. Nevertheless, in certain circumstances, when those States cannot or are unwilling to prosecute, other States not having a direct link with the offence could close such jurisdictional gap on the basis of universal jurisdiction. Therefore, it can be said that universal jurisdiction is an additional tool of an exceptional nature for the exercise of criminal jurisdiction that contributes significantly to closing the impunity gap. This function of universal jurisdiction makes it one of the key components of the international criminal justice system. Universal jurisdiction derives from international law norms, which are the ones that allow its exercise.
But we must also have in mind that a limitless universal jurisdiction could lead to conflicts of jurisdiction between States, to subjecting individuals to procedural abuses or even to politically motivated judicial prosecutions. There is also the risk that an imprudent exercise of universal jurisdiction could create frictions among States, as it could be perceived as a tool for interfering in the internal affairs of other countries or as some kind of hegemonic jurisdiction exercised by some developed States against nationals of developing countries.
Argentina believes that clear rules would ensure a reasonable exercise of universal jurisdiction, in particular taking into account that there are certain “myths” or erroneous interpretations around this principle.
Argentina presented its comments to the Secretary General. In those comments, we suggested that the Working Group of the Sixth Committee should address, among others: the concept of universal jurisdiction, the status of universal jurisdiction in international law -including the legislative and judicial practice of States-, and the conditions under which it is to be exercised.
Due to the complexity of the issue, Argentina is of the view that the examination of the issue at the Working Group should follow a “step by step” aproach, in which, as a first step, we should aim at clarifying the concept of universal jurisdiction. In this “step by step” approach, nevertheless, my country does not rule out the possibility of requesting the issue to be sent to the International Law Commission.
Regarding the concept, universal jurisdiction is usually confused with other jurisdictional concepts, such as the complementarity principle or the aut dedere aut judicare principle; and its is also usually associated –not always correctly- in an indissoluble manner with other concepts, such as jus cogens or obligatio erga omnes. Among them, it is relevant at this stage to point out the differences between universal jurisdiction and the principle aut dedere aut judicare, as they are both being currently examined at the United Nations.
Although in some cases there could be some overlap between these two notions, from a strictly theoretical standpoint, they are not identical notions. The purpose of the principle aut dedere aut judicare is to prevent impunity when extradition of the alleged perpetrator is not granted by the required State. The principle aut dedere aut judicare does not establish per se what basis for jurisdiction should be exercised when the required State opts for prosecution by its own judicial authorities. Opposite to that, universal jurisdiction constitutes in itself a basis for the exercise of jurisdiction, which is grounded only on the nature of the offence, irrespective of where it was committed, of the nationality of the victim or that of the alleged offender, or of any other connection with the national interests of the State exercising jurisdiction. Therefore, it is accepted that the principle aut dedere aut judicare can overlap with universal jurisdiction in the case of a State not having any conection with the offence other than the mere presence of the alleged offender in its territory, and which in accordance with the principle aut dedere aut judicare opts for not granting extradition, and also decides to prosecute -in which case the basis for jurisdiction cannot be other than the principle of universal jurisdiction-. Only in this case there is an overlap between both concepts, that is to say, this is the case in which universal jurisdiction plays a decisive role in the full application of the aut dedere aut judicare principle.
To prevent erroneous conclusions, therefore, the examination of international treaties, internal legislation and judicial practice must take into account this difference between universal jurisdiction and the aut dedere aut judicare principle.
The express inclusion of universal jurisdiction in an explicit manner in international conventional law is limited. Among the multilateral treaties providing for universal jurisdiction there are the 1949 Geneva Conventions (articles 49, 50, 129, 146, respectively), the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (art. 28), the United Nations Convention on the Law of the Sea (art. 105), and the International Convention on the Suppression and Punishment of the crime of Apartheid (art. V).
Other treaties implicitly allow for the exercise of universal jurisdiction by providing, for example, that “[t]his Convention does not exclude any criminal jurisdiction exercised in accordance with national law”. Therefore, treaties implicitly allow States to provide for universal jurisdiction in their national legislation. Provisions of this sort are contained, among others, in the following multilateral treaties: the 1963 Convention on Offences and Certain Other Acts Committed on Board of Aircraft, the 1970 Convention on the Unlawful Seizure of Aircraft, the 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, the 1988 Protocol for the Suppression of Unawful Acts against the Safety of Fixed Platforms located in the Continental Shelf, the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, the 1979 International Convention against the Taking of Hostages, the 1994 Convention on the Safety of United Nations and Associated Personnel, the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the 2006 International Convention for the Protection of All Persons from Enforced Disappearance.
Regarding the aut dedere aut judicare principle, it can be found in most multilateral treaties dealing with trasnational crime. That is the case of the thirteen international conventions against terrorism, the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, the 2000 United Nations Convention against Transnational Organized Crime and the 2003 United Nations Convention against Corruption, among others.
It must be borne in mind that the treaties implicitly allowing the exercise of universal jurisdiction provide at the same time for the application of the aut dedere aut judicare principle.
Having made reference to the distinction between universal jurisdiction and the aut dedere aut judicare principle, it is relevant to point out that the latter is the subject of study by the International Law Commission. Also at the International Law Commission, there was the concern about setting a clear distinction between both concepts, and despite recognizing that both coexist in some cases, the ILC decided to focus on the aut dedere aut judicare principle, not on universal jurisdiction. Along the same lines, we believe that the examination of universal jurisdiction by the Working Group established pursuant to General Assembly Resolution 65/33, should recognize and explore the relationship with other concepts, but focusing on the elements that are characteristic of universal jurisdiction.
I would like to reiterate the disposition of my delegation to continue the consideration of this issue and to make every effort for making progress within the parameters for the examination of issues that characterize the work of the Sixth Committee.
Misión Permanente Argentina ante las Naciones Unidas