The scope and application of the principle of universal jurisdiction: ICRC statement to the United Nations, 2012
United Nations, General Assembly, 67th session, Sixth Committee, item 84 of the agenda, statement by the ICRC, New York, 18 October 2012.
The International Committee of the Red Cross (ICRC) applauds the importance attached by the Sixth Committee to the principle of universal jurisdiction. The Committee has already demonstrated its commitment to this principle by establishing a working group that is tasked with further assessing the scope and application of the principle of universal jurisdiction. The ICRC welcomes the Secretary-General's most recent report on this issue, which sets out in detail the information and observations submitted by States and relevant observers concerning applicable international treaties and pertinent domestic legal rules and judicial practice.
The ICRC notes that the contributions made by States, at the request of the Secretary-General, show a trend towards recognition of the obligation to exercise a form of universal jurisdiction over the most serious international crimes. This reflects the unanimous rejection of such crimes. The ICRC acknowledges that States have shown their willingness, as members of the international community, to contribute to preventing and tackling impunity for those crimes beyond their borders. This trend implies a resounding endorsement of the conclusions of the Third Universal Meeting of National Committees for the Implementation of International Humanitarian Law, held in Geneva in October 2010 by the ICRC, and of later developments. The analysis of these developments has provided us with additional insight and promising avenues to explore. We would like to share three key points with you.
Firstly, the ICRC reiterates that universal jurisdiction is central to the system set forth in the main texts of international humanitarian law designed to prevent and repress the most serious violations of that body of law. For instance, the "grave breaches" regime laid down in the four Geneva Conventions of 1949 and their Additional Protocol I of 1977 stipulates that States have a legal obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons before their own courts, regardless of the nationality of these persons and of where the crime was committed. This obligation demands an active approach; the ICRC has always stressed that States have a duty to act as soon as they become aware that a person who has committed a grave breach has entered their territory.
Secondly, other international instruments place a similar obligation on States to vest some form of universal jurisdiction in their courts over the crimes covered by international treaties such as the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, 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 (which came into force in December 2010). This obligation also extends to crimes committed in armed conflict.
Thirdly, State practice has helped to consolidate a customary rule whereby States are entitled to endow their courts with universal jurisdiction over war crimes. These crimes include serious violations of Article 3 common to the four Geneva Conventions of 1949 and to Additional Protocol II of 1977 and other crimes set forth in the Statute of the International Criminal Court, whether they occur in international or non-international armed conflicts. On this latter point, the ICRC is pleased to note that, when States incorporate the crimes set forth in the Statute in their domestic legislation, in order to be in a position to try such crimes themselves, they do not tend to make a distinction between the various bases of jurisdiction that could apply. They apply the same in all cases, including universal jurisdiction.
The ICRC is aware of the major challenges associated with the implementation of universal jurisdiction, whether technical, legal, practical or in terms of resources. Nevertheless, it is encouraged by the emergence of positive practices that have successfully overcome those obstacles. For example, it has noted that, in order to be in a position to tackle international crimes, several States have opted to centralize and specialize their know-how at each stage of the process, whether this involves prosecution, police, immigration or legal authorities, or international judicial cooperation and assistance services. Some States have even set up specialized units with a specific mandate to investigate and prosecute perpetrators of international crimes. The ICRC cannot stress enough that a national strategy to improve the investigation and prosecution of these crimes, including by invoking the principle of universal jurisdiction, must include a comprehensive approach to protecting witnesses and victims.
As the ICRC has reminded this Committee in the past, universal jurisdiction is not the only way to tackle impunity for international crimes. We maintain this position. Universal jurisdiction should not be seen in isolation; it is part of a wider system that aims to enhance the deterrent effect of punitive measures and thus halt the commission of international crimes. The ICRC also shares the view that universal jurisdiction should only be exercised in the last instance, when courts that could base their actions on the principles of territoriality or active and passive personality do not have the capacity to do so or decide, for some other reason, not to. The importance of investing in national capacity-building cannot be disputed if one agrees that the courts that are closest to where a crime has been committed should be encouraged to try the case, in full compliance with the applicable provisions of international law. Similarly, it is vital that all parties – States and inter-State organizations alike – make the necessary efforts to guarantee full judicial cooperation and assistance in the prosecution of international crimes and remove any stumbling blocks to this process.
Since its last statement to this distinguished assembly, the ICRC has continued to observe that States choose to place certain conditions or limitations on the exercise of universal jurisdiction. The work of the aforementioned Third Universal Meeting brought to light the preference of States for cases based on universal jurisdiction where there was some kind of nexus. This often takes the form of requiring the suspect to be present in the territory of the State wishing to try the case, or at the very least that the means exist to guarantee his or her presence. The ICRC urges States and the relevant international organizations to continue to discuss this issue.
The ICRC will, as in the past, follow closely the discussions of the Sixth Committee and of its working group on the scope and application of the principle of universal jurisdiction. We are willing to contribute to these discussions and to the Secretary-General's reports on this matter. We reiterate our determination to maintain the support provided by the ICRC Advisory Service on International Humanitarian Law to States that request assistance.