The scope and application of the principle of universal jurisdiction: ICRC statement to the United Nations, 2015

15 October 2015

United Nations, General Assembly, 70th session, Sixth Committee, item 86 of the agenda, statement by the ICRC, New York, October 2015.

The International Committee of the Red Cross (ICRC) welcomes the continued interest of the United Nations General Assembly, through the work of the Sixth Committee and the Secretary-General, in the scope and application of the principle of universal jurisdiction. We take note, with appreciation, of the most recent report prepared by the Secretary-General on this issue, to which the ICRC contributed.

The principle of universal jurisdiction remains one of the key tools for ensuring the prevention and repression of serious violations of international humanitarian law (IHL).

This obligation demands an active approach. If States are aware that persons who have allegedly committed a serious violation of IHL are present on their territory or in places under their jurisdiction, it is their responsibility to ensure that they are investigated, prosecuted and brought to trial.

The "grave breaches" regime laid down in the four Geneva Conventions of 1949 and their Additional Protocol I of 1977 stipulates that States Parties have a legal obligation to search for persons alleged to have committed, or to have ordered to be committed, those violations of the Conventions and the Protocol defined as grave breaches. States are also required to bring such persons, regardless of their nationality, before their own courts, or hand them over for trial by another State Party concerned.

Other international instruments place a similar obligation on States Parties to vest, in their courts, some form of universal jurisdiction over serious violations of the rules they contain. These instruments include the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Second Protocol of 1999, 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.

In addition, State practice and opinio juris have helped to consolidate a customary rule whereby States can vest their courts with universal jurisdiction over other serious violations of IHL. These include, in particular, serious violations of Article 3 common to the four Geneva Conventions of 1949 and of Additional Protocol II of 1977, as well as other war crimes, such as those listed in Article 8 of the 1998 Statute of the International Criminal Court.

With the aim of enhancing respect for IHL, the ICRC continues to promote the prevention of serious violations of IHL and the implementation of adequate sanction mechanisms, with an emphasis on universal jurisdiction. It also offers legal and technical assistance to States in the incorporation of serious violations of IHL and other international crimes into national criminal law and procedure. In addition, the ICRC develops technical documents, such as the Manual on Domestic Implementation of IHLand model legislation, whichserve as practical tools to assist policymakers, legislators, judges and other interested parties in the implementation of IHL, in general, and the repression of serious violations of IHL and the application of universal jurisdiction, more specifically.

Such initiatives are in keeping with Resolution 2 of the 31st International Conference of the Red Cross and Red Crescent of 2011, which refers to the four-year Action Plan for the Implementation of IHL - an objective of which is to improve the incorporation and repression by States of serious violations of IHL.

In this regard, the ICRC has identified more than 100 States that have established some form of universal jurisdiction over war crimes in their national legal order and has made such information available in its National Implementation Database. While, in 2014 and 2015, some States limited the exercise of universal jurisdiction in their territory, others adopted domestic legislation criminalizing serious violations of IHL and providing for universal jurisdiction over such crimes perpetrated beyond their borders.

States have the primary responsibility for investigating allegations and prosecuting alleged perpetrators of serious violations of IHL. When they do not take legal action based on other grounds of jurisdiction (the territoriality principle, the active or passive personality principle or the protective principle), the assertion of universal jurisdiction can serve as an effective mechanism to ensure accountability and limit impunity.

While the ICRC recognizes the possible legal, technical and practical challenges relating to the effective exercise of universal jurisdiction, it strongly encourages States to find ways to overcome them. It further calls upon States to enact appropriate legislation to respond to serious violations of IHL on the basis of all principles of jurisdiction – including universal jurisdiction.

In conclusion, the ICRC will continue to follow, with great interest, the discussion on this topic and related issues in the Sixth Committee and other United Nations fora and remains available to engage with and support States' efforts in preventing, repressing and responding to serious violations of IHL.