The scope and application of the principle of universal jurisdiction – ICRC statement to the United Nations, 2011
United Nations, General Assembly, 66th session, Sixth Committee, item 84 of the agenda, statement by the ICRC, New York, 12 October 2011.
The ICRC welcomes the continued interest of the Sixth Committee and the Secretary-General in the scope and application of the principle of universal jurisdiction. We also take note, with appreciation, of the most recent report prepared by the Secretary-General on this issue (A/66/93), to which the ICRC contributed.
The ICRC attaches particular importance to the establishment by States of proper sanctions for serious violations of international humanitarian law (IHL) within their domestic legal framework, in accordance with their obligations under relevant treaties. The principle of universal jurisdiction contributes to comprehensive deterrence and repression of such violations by States. It is a concept firmly rooted in international humanitarian law. Today, the ICRC would like to reiterate the international humanitarian law bases governing universal jurisdiction, and the national measures that States are required to take in this regard.
The 1949 Geneva Conventions provide for mandatory universal jurisdiction over the grave breaches defined in these Conventions, as we have emphasised in our contribution to the most recent report of the Secretary-General. For such grave breaches, which are war crimes, States parties are obliged to search for suspected offenders, regardless of their nationality and the place of commission of the alleged offence, and either bring them before their own courts or hand them over to another State party for trial. Additional Protocol I extends this obligation to the grave breaches defined in that Protocol.
Other international instruments, such as the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict or the 2006 International Convention for the Protection of All Persons from Enforced Disappearance, contain a similar obligation for States parties to vest some form of extraterritorial jurisdiction in their national courts over the crimes these treaties codify, including when they are committed in armed conflict.
State practice has also confirmed as a norm of customary international law the right of States to attach universal jurisdiction to all war crimes other than grave breaches. This includes serious violations of common Art. 3 of the Geneva Conventions and Additional Protocol II committed in non-international armed conflicts and other war crimes such as those included in the Statute of the International Criminal Court. The ICRC was pleased to observe that many States took this approach when implementing at the domestic level the principle of complementarity on which the Statute of the International Criminal Court rests.
It was also encouraging for us to note that numerous States have given effect in practice to their obligations in national legislation. Indeed, several suspects have been prosecuted in national courts for grave breaches or other war crimes. These prosecutions were based on some form of extraterritorial jurisdiction, regardless of the type of armed conflict in which the crimes were committed.
The ICRC has also noted that, when establishing universal jurisdiction for war crimes in their national legal order, some States chose to attach conditions to the exercise of this type of jurisdiction. For instance, some States require the presence of the accused before proceedings are instituted; others subject the exercise of universal jurisdiction to prosecutorial discretion. While recognising that States may wish to impose such conditions, the ICRC believes that, in each context, such conditioning factors must be aimed at increasing the predictability of universal jurisdiction and must not unnecessarily restrict the possibility of prosecuting suspected offenders.
The ICRC also wishes to stress that universal jurisdiction is not the only avenue for fighting impunity. The classic bases of criminal jurisdiction, i.e. territorial and personal jurisdiction, should remain the main tools for doing so. Accordingly, and as a priority, States must investigate and, where appropriate, prosecute war crimes allegedly committed on their territory or by their own nationals. It is only in case of their inaction that universal jurisdiction or recourse to international criminal tribunals remain relevant options to make sure that war crimes do not go unpunished and to avoid an impunity gap.
The effective protection of war victims requires both preventive and enforcement measures. The adoption of appropriate national legislation with the appropriate jurisdictional framework combines preventive and enforcement aspects. Such legislation may contribute to effectively deterring serious violations of international humanitarian law before they are committed and permit the prosecution of perpetrators when violations have occurred. The principle of universal jurisdiction is one of the tools to achieve these goals.
The ICRC reiterates its appeal to all States to ensure that they have the proper national legal framework in place and to provide for the necessary resources for its full application. We also note that some of those States that took measures to enact the necessary national legislation seized the opportunity to conduct a thorough review of all their obligations under international humanitarian law. We warmly welcome such an integrated approach towards the implementation of international humanitarian law. The ICRC Advisory Service on IHL has provided technical support, advice and documentation to States in this regard, and will continue to remain at their disposal.
The ICRC will continue to follow, with interest, the discussion on this topic in the Sixth Committee. We are available to discuss these matters further with States or groups of States here at the UN, and we stand ready to contribute to future discussions of these matters.