The scope and application of the principle of universal jurisdiction
United Nations, General Assembly, 65th session, Sixth Committee, item 86, statement by the ICRC, New York, 15 October 2010
The ICRC welcomes the interest of the Sixth Committee and the Secretary-General in the scope and application of the principle of universal jurisdiction.
This subject is highly relevant for the effective enforcement of international humanitarian law. Thus the ICRC takes a keen interest in this subject. Today, we would like to briefly recall with Member States the principles governing the exercise of jurisdiction over serious violations of humanitarian law (i.e. war crimes).
For more than 60 years, the Geneva Conventions of 1949 have required States to establish and to exercise universal jurisdiction over the grave breaches defined in these Conventions. Indeed, the Geneva Conventions provide that High Contracting Parties are under an obligation to search for suspected offenders, regardless of their nationality and of the place of the offence, and either to bring them before their own courts or hand them over to another High Contracting Party for trial.
This rule was established in 1949, in the aftermath of the Second World War, when States together sought to ensure that persons who commit grave breaches of the Geneva Conventions should not find a safe haven anywhere. That consensus is even wider today as the Geneva Conventions are universally ratified. With that ratification comes the obligation to establish and to exercise universal jurisdiction over grave breaches. This applies to all states. For States party to Additional Protocol I, the same obligations extend to the grave breaches defined in that Protocol.
The ICRC is encouraged that numerous States have given effect to their obligations in their national legislation. These laws have not remained only theoretical. A number of suspects have been prosecuted in national courts in several States for grave breaches on the basis of universal jurisdiction. But all States are under the obligation to faithfully implement the Geneva Conventions and to establish universal jurisdiction over grave breaches in their own legal order. Regrettably, this is still not the case today.
Furthermore, State practice has confirmed the customary principle that States may also establish universal jurisdiction over other war crimes, war crimes that are additional to the grave breaches of the Geneva Conventions and Additional Protocol I. This includes for example other war crimes recognized in the ICC Statute and those existing under customary law.
Of course, universal jurisdiction is not the only avenue for fighting impunity. In fact, the traditional or classic bases of criminal jurisdiction – personal and territorial jurisdiction – should and will likely remain the main tools for doing so. On this basis, States must investigate war crimes allegedly committed by their nationals or by members of their armed forces, or committed on their territory, and, where appropriate, prosecute the suspects. Universal jurisdiction exists only as a measure of last resort, to make sure that ultimately no one can escape justice.
The effective protection of war victims requires the effective implementation of humanitarian law. And the effective implementation of humanitarian law requires both preventive and enforcement measures. The enforcement of humanitarian law and the fight against impunity must be further advanced through the adoption of appropriate national legislation to permit prosecution of perpetrators of grave breaches and other war crimes, with the proper jurisdictional framework.
The ICRC thus takes this opportunity to call upon all States to ensure that they have the proper national legal framework in place. This will allow them to play their role, if and when required, to enforce humanitarian law and to contribute to the protection of war victims worldwide. The concept of universal jurisdiction is part and parcel of this legal framework. It is a concept that is firmly rooted in humanitarian law. It remains critical to close the impunity gap for war crimes, including grave breaches of the Geneva Conventions.
The ICRC will continue to follow with interest the discussion on this topic in the Sixth Committee. We stand ready to contribute to future discussions, as well as to the future reports of the Secretary-General on the matter. As always, here at the UN the ICRC is available to discuss these matters further with States or groups of States.