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Geddis, Elana --- "“Moving Forward – But Where is it Heading?” A Comment on Developments in the UN Sixth Committee’s Discussions on Universal Jurisdiction" [2011] NZYbkIntLaw 7; (2011) 9 New Zealand Yearbook of International Law 203

Last Updated: 13 July 2015

“MOVING FORWARD – BUT WHERE IS IT HEADING?” A COMMENT ON DEVELOPMENTS IN THE UN SIXTH COMMITTEE’S DISCUSSIONS ON UNIVERSAL JURISDICTION

Elana Geddis*

2011 saw the Sixth (Legal) Committee of the United Nations (UN) take a significant step forward in its work in relation to the scope and application of the principle of universal jurisdiction.1 The Committee agreed not only to continue its “thorough discussion” of the topic, but also identified the methodological and substantive parameters within which the discussion would be conducted. In UN terms, that is heady progress indeed. But where is it going, and what might it mean for New Zealand?

The item “the scope and application of the principle of universal jurisdiction” was placed on the General Assembly agenda by agreement in 2009, at the request of the African Group. The original requested name for the item, “Abuse of the principle of universal jurisdiction”,2 was subsequently reformulated in a revised request expressed in considerably more diplomatic terms.3 Nevertheless, an explanatory memorandum attached to the revised request4 made the underlying motivation of the agenda item all too clear. Clearly emboldened by the 2002 decision of the International Court of Justice in the Arrest Warrant case,5 paragraph 5 of that memorandum noted:

While the African Union fully subscribes to and supports the principle of universal jurisdiction within the context of fighting impunity as well as the need to punish perpetrators of genocide, crimes against humanity and war crimes, it is, however, concerned about its ad hoc and arbitrary application, particularly towards African leaders.

From the outset therefore, it has been clear that the objective of securing the Sixth Committee’s consideration of universal jurisdiction was not to provide an opportunity for a dispassionate analysis of the current status of the principle, but to protect a direct political self-interest.

Since 2009, the item has worked its way through the usual procedural labyrinth with some efficiency: step 1, secure the agenda item; step 2, secure the continuation of the agenda item; step 3, establish a Working Group to discuss the item in detail; step 4, refine the Working Group’s mandate with more precision to better direct discussions towards the intended outcome. In 2009, the African Group was successful in securing agreement within the Sixth Committee that the item would continue on the agenda the following year and the Secretary-General was directed to prepare a report.6 In 2010, the African Group succeeded in securing the establishment of a Working Group to “undertake a thorough discussion of the scope and application of universal jurisdiction”.7 And in 2011, there was again success in renewing and refining the Working Group’s mandate to steer its future work in the desired direction.8

Although many States, including New Zealand, have pushed their political barrows through those steps in the past, it is unusual within the Sixth Committee for items to be initiated and driven by the African Group. Most of the Sixth Committee’s substantive agenda items (observer applications aside) have historically filtered to the Committee from the International Law Commission or have represented policy initiatives from developed western States. African States are more often left playing a peripheral or defensive role in the Committee’s work. Given the numerical muscle of the African Group within the UN membership,9 this initiative has seen the European Union (EU) and other developed States pushed onto the back foot and forced to adopt an unfamiliarly defensive position. That is an experience with which they have become increasingly familiar in the General Assembly’s Second10 and Third11 Committees, but hitherto has been much less common in the collegial Sixth.

Although, as is common practice, negotiations in the Working Group were conducted in the context of “informal consultations” and therefore not formally recorded, a general sense of the discussions was provided by an oral report by its Chair.12 In addition, an unusually clear impression of countries’ views emerges from the Secretary-General’s reports13 and the formal debate under the item in the Sixth Committee.14 That debate revealed a high level of preparation and coordination on behalf of the African Group, which had clearly taken pains to build support amongst developing States more broadly.

The tone of the debate was set from the outset with the opening statement delivered by Iran on behalf of the Non-Aligned Movement (“NAM”),15 followed shortly by similar statements on behalf of the Arab16 and African Groups.17 Although the membership of those three groups intersects and overlaps significantly18 the optics and political impact of three such large groups intervening on the same side of the debate would not have been lost on anyone following the discussion. The strong level of interest on the part of individual delegations was underscored by the fact that 15 African States, as well as NAM members Iran,19 Malaysia,20 Indonesia21 and Sri Lanka,22 also intervened in their own right. China, which typically intervenes only on issues of direct significance to it, also spoke in support of the African Group’s position.23

Those statements emphasised the same key messages. While paying their deepest respects to the need to end impunity for international crimes such as genocide and war crimes, these States emphasised that the primary responsibility for prosecution lay with the State in which the crimes had been committed. Universal jurisdiction was at the most a complementary mechanism. States stressed that the lack of an international consensus regarding the definition, scope and conditions for exercise of universal jurisdiction had left the principle open to abuse and politicisation. Further, the exercise of universal jurisdiction carried with it the potential for conflict with “established” international law principles, including the hallowed trinity of the independence and sovereign equality of States, non-interference in domestic affairs, and the immunity of Heads of State and other State officials. “In order to strike the right balance between strengthening international criminal justice and ending impunity on one hand and preserving friendly relations between States on the other”,24 it was therefore necessary to reach a common understanding as to the application and scope of the principle, “with a view to arriving at a sustainable solution for avoiding its abuses”.25

Beneath this surface cohesion there was, however, some variation in tone amongst the statements on this side of the debate, even amongst the African Group. Several statements were overtly political, explicitly referring to the “selective” application of the principle against African leaders;26 some pointing the finger directly at courts in the EU27 and the “solipsism of empire”.28 Several even went so far as to call for a moratorium on the exercise of universal jurisdiction while the Working Group carried out its work.29 A vehement statement from Sudan extended into an attack on the exercise of international criminal jurisdiction more generally, deliberately seeking to obscure the distinction between universal jurisdiction and the jurisdiction of the International Criminal Court.30 The Democratic Republic of Congo, in contrast, explicitly reinforced the continuing role of universal jurisdiction separate to that of the International Criminal Court.31 Swaziland also made the point that “the cloak of immunity” could not preclude indictments stemming from grave violations of human rights law.32

One of the most categorical statements was that of China, which appeared to question the application of universal jurisdiction to any crimes other than piracy, and issued an express warning that treaty obligations to extradite or prosecute could not be used to infer the existence of a broader definition of universal jurisdiction.33 Sri Lanka34 and Malaysia35 also expressed similar views. Self-interest can also create strange bedfellows and, although significantly different in tone, there was relatively little difference in substance between the statement of the Arab Group and that of Israel;36 a double irony, given the role Israeli courts have played in the development of the principle of universal jurisdiction in the past,37 although not a surprising one given that Israeli officials have more recently tended to find themselves on the receiving end of the principle.38

In contrast to that well-orchestrated effort, the “other side” of the debate appeared considerably more fragmented and less powerful. CANZ (“Canada, Australia and New Zealand”),39 nine EU States,40 Norway41 and Switzerland42 spoke to express caution about the project being proposed. They emphasised the importance of the principle of universal jurisdiction in combating the worst international crimes. Questions regarding the scope and application of the principle should be addressed in legal not political terms, and should not be confused with other sources of jurisdiction (such as the obligation to extradite or prosecute under treaty) nor the issue of immunity of State officials. Given their technical legal nature and the diversity of views amongst States, consideration of the issues was better carried out in the first instance by the International Law Commission.

No common EU statement was delivered, reflecting an internal procedural debate arising from the enhanced participation rights granted to the EU in May 2011 following the Lisbon Treaty.43 Standing as it did in stark contrast to the consistent practice in previous years, the absence of a common statement undercut the weight of the individual contributions made by EU members and drew attention to any nuances of difference between them. Although aligned in their core substance, there was certainly a marked difference between the spirited defence of the exercise of universal jurisdiction in the statements of Belgium44 and Spain,45 for example, and the rather tepid acknowledgement of the principle in the statement of the United Kingdom.46

The views of the Rio Group47 reflected something of a “half-way house”, perhaps not surprising given the not-so-distant history of most of its members. The Rio Group statement,48 and those of individual members,49 exhibited considerably more openness to the benefits of attempting to define the scope and application of the principle, and the role of the Working Group in that regard. Several individual members raised concerns very similar to those of African States, emphasising the need to respect the immunity of Heads of State and officials, and the primary jurisdiction of the State in whose territory crimes had been committed.50

The key procedural outcome of the Committee’s deliberations was the adoption by the General Assembly of a resolution renewing the mandate of the Committee’s Working Group “to continue to undertake a thorough discussion of the scope and application of universal jurisdiction”.51 That resolution requires much reading between the lines. The mandate of the Working Group is expressed in the broadest of terms, committing States only to a “thorough discussion” with no particular outcome.52 Similarly, the preliminary paragraphs of the resolution refer to the need for a “better understanding” rather than “definition” of the scope and application of universal jurisdiction, again implying that no legal instrument will be developed.53 Although the battle to deflect the issue to the International Law Commission was not won, the war has not been lost. The resolution specifically provides that the Sixth Committee’s consideration shall be “without prejudice to the consideration of this topic and related issues in other forums of the United Nations”, undoubtedly a veiled reference to the Commission.54

The most significant aspect of the resolution lurks in footnote 3 which, in delightful UN-ese, states: “The Working Group will take into account the informal working paper of the Working Group at the Sixty-sixth session”.55 That Working Paper, although not formally adopted as a recommendation of the Working Group, nevertheless clearly represents a carefully calibrated attempt to reflect the broad outlines of agreement amongst delegates. It contains two elements: first, an outline of the methodology that the Working Group will follow; and second, a summary of the issues to be discussed.

The agreements reached with respect to the methodology to be adopted by the Working Group reflect some success in avoiding the politicisation of discussions as much as possible. Paragraph I.1 requires that discussions will focus on the specific issues identified in the second part of the Working Paper. Paragraph I.2 provides that the Working Group “will follow a step-by-step methodological approach”. Discussions “will be framed within reasonable limits” (paragraph I.3), and “will concentrate on legal matters” (paragraph I.5). The sources to be considered are identified, although not in a prescriptive fashion, to include: international treaties; customary international law; national legislation and court decisions; international court decisions; and “other frameworks and/or sources” (paragraph I.6). Matters of context, overlapping and/or interaction among different issues will be taken into account “when appropriate” (paragraph I.4).

The proponents of the item were significantly more successful in terms of the issues identified for discussion. The Working Paper identifies three clusters of issues. First, “definition of the concept of universal jurisdiction”, including its “role and purpose”, “relevant components” and “distinction from other related concepts” (paragraph II.1). Second, “scope of universal jurisdiction”, namely the crimes to which it applies (paragraph II.2). And third, “application”, including conditions for application, criteria for exercising jurisdiction, procedural aspects, role of national judicial systems, interaction with other concepts of international law, and international assistance and cooperation (paragraph II.3). Interestingly, despite the number of States who expressly referred to them during the debates, “immunities” are not expressly listed, although they can be presumed to fall within the rather general reference to “other concepts of international law”.

Although the Working Paper does not commit the discussions to any outcome, the mere opening up of such issues risks driving the debate in a way that strong proponents of the principle are likely to find uncomfortable. Although the Sixth Committee and its Working Groups typically operate by consensus, the force of numbers on the side of the African Group will inevitably be a factor in shaping the direction of the Working Group’s work.

The suggestion of several delegations to refer the issue to the International Law Commission was clearly an attempt to avoid that scenario. Since the earliest days of the organisation, the General Assembly has delegated its Charter responsibilities of considering the progressive development and codification of international law56 to the Commission,57 “recognising the desirability of establishing a commission composed of persons of recognized competence in international law and representing as a whole the chief forms of civilization and the basic legal systems of the world”.58 In doing so, it deliberately decided that the consideration of such questions should be passed out of the hands of the direct representatives of States and returned to them only at such point that the Commission had been able to reach its learned view as to what the law either was, or ought to be.59 Allowing issues to rest with the International Law Commission for appropriate reflection and fermentation thus sought to mitigate the influence of political self-interest in the development of international law.

That model has worked with some considerable success across the six decades since the Commission was established, with many notable achievements.60 However, legal issues never exist in a vacuum. They always have direct political implications which even the most learned international publicists and experienced practitioners cannot reason away. Even where a topic has been submitted to the Commission, States have often simply bided their time, firmly uncovering the politics from the Commission’s legal cloak once the issue has emerged from the Commission.61 Equally often, where interests run particularly high, States have chosen to side-step the Commission entirely to develop norms through direct negotiation amongst themselves. New Zealand itself has twice taken that approach in an attempt to secure enhanced legal protection for UN and associated personnel, an issue about which its government felt passionate, but which many developing States deeply resented.62

The African Group’s decision to bring its concerns direct to the Sixth Committee, without submitting the issue for prior “ripening” consideration by the Commission is a natural step in this trajectory. It can even be seen as a healthy sign of maturity and increased engagement in the Committee’s work.

There is undoubtedly still considerable ambiguity as to the scope and application of universal jurisdiction. Although attempts have been made to distil the concept by scholars and jurists,63 its existence beyond the long- recognised crime of piracy, and potentially also war crimes and crimes against peace and humanity, remains under debate.64 The varying opinions expressed in the Arrest Warrant case demonstrate that that debate exists even at the highest international judicial level.65 Differing domestic approaches to conditions surrounding the exercise of jurisdiction (such as the necessity of the presence of the accused) only add to that ambiguity.

In such circumstances of uncertainty there is some truth to the African Group’s argument that the exercise of universal jurisdiction inevitably carries with it the potential to destabilise relations between States. There is arguably therefore value in attempting to reach an expression of the principle with which States themselves (and not only theorists or NGOs) can be comfortable.

But the injection of such a politicised issue into the otherwise rarefied atmosphere of the Sixth Committee could be seen in a less positive light. Although such debates are well familiar in other of the General Assembly’s main committees, the Sixth Committee has traditionally prided itself on its strong tradition of operating only by consensus and its ability to address fundamentally divergent political positions on the basis of a shared legal language.66 Bringing the issue to the Committee in such overtly political terms leaves the African Group open to the criticism that the accused are simply seeking to write the rules for (or, rather, to avoid) their own trial.

However, such is the inevitable consequence of the international participatory democracy that is the UN General Assembly. It is a central jurisprudential feature of international law that the subjects of the law also play a direct role in determining what that law is. As much as that might be criticised and disparaged, it has also been the system’s consistent strength across time. The instinctive criticism that the initiative is a dangerous and abusive attempt by some African States to protect their own self-interest has to be considered against that reality.

If properly approached, a broad discussion of the principle of universal jurisdiction, even as it might expose differences of view, could in fact serve to strengthen the foundations of the principle by reaffirming those elements on which broad agreement exists. As much as the statements in the Sixth Committee debate exposed a difference of political views and objectives, certain key points did not appear to be in dispute.67 With the exception of a few extreme outliers, statements did not challenge the validity of universal jurisdiction as a principle and generally acknowledged its importance in combating impunity for the gravest international crimes. Delegations were also united in emphasising the need for universal jurisdiction to be exercised in good faith and in accordance with international law. There was also a general recognition that the State in whose territory the crimes had been committed was generally best placed to prosecute them and universal jurisdiction was either complementary or supplementary to that territorial jurisdiction. The differences that emerged relating to the precise crimes to which the principle applied, the specific conditions for its exercise and the intersection with legal immunities reflect real legal differences that do exist, even amongst States with similar legal and political traditions. Rather than being a “restriction” of the principle, an ability to agree on only a reasonably narrow core of elements would in fact simply be an accurate reflection of its evolving nature; so long as the divergence of views on other questions is acknowledged and properly recorded.

With the Working Group now a reality, New Zealand is best served by participating fully in its work in order to ensure that its discussions provide a genuine dialogue. The issue is one on which New Zealand is well-placed to demonstrate its long-standing ability to approach issues of difference in a constructive and open-minded way. With a strong historical commitment to the international rule of law, particularly international criminal law, and no skin in the game, New Zealand is ideally suited to be able to make a meaningful contribution to the debate. And, of course, an open-handed willingness to engage with an issue of such importance to African States could only burnish New Zealand’s credentials as it works towards the Security Council elections in 2014.

* - LLB (Hons), LLM (Harvard). Elana Geddis is a former Deputy Director of the Legal Division at the New Zealand Ministry of Foreign Affairs and Trade, and was New Zealand’s delegate to the Sixth Committee of the General Assembly of the United Nations from 2001 to 2004. She currently works as a barrister at Harbour Chambers, Wellington, practising in public, administrative and international law. The author is grateful to Ms Alice Revell for her comments on an earlier draft. The views expressed, and any errors contained, in this comment are purely the author’s own.

1 - The principle of universal jurisdiction has been defined as: “the competence of the state to prosecute alleged offenders and to punish them if convicted, irrespective of the place of commission of the crime and regardless of any link of active or passive nationality or other grounds of jurisdiction recognised by international law.” Malcom N Shaw International Law (6th ed, Cambridge University Press, Cambridge, 2008) at 668.

2 - Letter dated 3 February 2009 from the Permanent Representative of the United Republic of Tanzania to the United Nations addressed to the Secretary-General A/63/237 (2009).

3 - Letter dated 29 June 2009 from the Permanent Representative of the United Republic of Tanzania to the United Nations addressed to the Secretary-General A/63/237/Rev.1 (2009).

4 - Ibid, at Annex I.

5 - Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits and Admissibility and Jurisdiction) [2002] ICJ Rep 3 [“Arrest Warrant case”].

6 - The Scope and Application of the Principle of Universal Jurisdiction GA Res 64/117, A/ Res/64/117 (2009).

7 - The Scope and Application of the Principle of Universal Jurisdiction GA Res 65/33, A/Res/65/33 (2010) at operative paragraph 5.

8 - The Scope and Application of the Principle of Universal Jurisdiction GA Res 66/103, A/ Res/66/103 (2011) [“Resolution 66/103”].

9 - 54 of the 193 member States of the United Nations are members of the African Group.

10 - The Second Committee (Economic and Financial Committee) is concerned with economic questions.

11 - The Third Committee (Social, Humanitarian and Cultural Committee) deals with social and humanitarian issues.

12 - See statement of the delegate of Costa Rica (Chair of the Working Group) A/C.6/66/SR.17 at [13]-[25].

13 - The Scope and Application of the Principle of Universal Jurisdiction, Report of the Secretary- General A/66/93 and Add.1 (2011); The Scope and Application of the Principle of Universal Jurisdiction, Report of the Secretary-General prepared on the basis of comments and observations of Governments A/65/181 (2010).

14 - See the Summary Records of the 12th and 13th meetings of the Sixth Committee held on 12 October 2011, A/C.6/66/SR.12 and A/C.6/66/SR.13.

15 - A/C.6/66SR.12 at [1]-[3].

16 - Statement of the delegate of Qatar on behalf of the Arab Group A/C.6/66/SR.12 at [9]-[11].

17 - Statement of the delegate of Kenya on behalf of the African Group A/C.6/66/SR.12 at [12]- [14].

18 - Algeria, Egypt, and Tunisia, for example, are members of all three.

19 - A/C.6/66/SR.13 at [42]-[45].

20 - A/C.6/66/SR.12 at [61]-[64].

21 - A/C.6/66/SR.13 at [14].

22 - Ibid, at [1]-[4].

23 - Ibid, at [5]-[6].

24 - Statement by the delegate of Qatar on behalf of the Arab Group, above n 16, at [10].

25 - Ibid, at [11].

26 - See for example statement by the delegate of Kenya on behalf of the African Group, above n 17, at [13]-[14]; statement by the delegate of Ethiopia A/C.6/66/SR.12 at [38].

27 - See, for example, statement by the delegate of Mozambique A/C.6/66/SR.13 at [56].

28 - Statement by the delegate of South Africa, ibid, at [7].

29 - See for example statement by the delegate of Rwanda, ibid, at [56], supported by the statement of China, ibid, at [6].

30 - A/C.6/66/SR.12 at [35]-[37].

31 - Ibid, at [46].

32 - Ibid, at [51].

33 - A/C.6/66/SR.13 at [5].

34 - Ibid, at [1]-[3].

35 - A/C.6/66/SR.12 at [61]-[64].

36 - Ibid. at [74]-[75].

37 - See Attorney-General of Israel v Eichmann (1962) 36 ILR 5 and 277.

38 - See, for example, the decision of the Belgian Court of Cassation in HSA et al v SA et al, No P.02. II 34. F/1, 12 February 2003.

39 - A/C.6/66/SR.12 at [6]-[8].

40 - See statements by the delegates of the Czech Republic, Sweden, Greece, United Kingdom, Finland, Spain, Ireland, Netherlands, Belgium, A/C.6/66/SR.12 and A/C.6/66/SR.13.

41 - A/C.6/66/SR.12 at [19]-[21].

42 - Ibid, at [16]-[18].

43 - See Participation of the European Union in the work of the United Nations GA Res 65/276, A/ RES/65/276 (2011).

44 - A/C.6/66/SR.12 at [52]-[53].

45 - A/C.6/66/SR.13 at [37]-[39].

46 - Ibid, at [24]-[26].

47 - A political grouping of 23 Latin American and some Caribbean States, which often speaks with a common voice in United Nations meetings. Its membership in 2011 comprised: Argentina, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Uruguay, Venezuela.

48 - Statement by the delegate of Chile on behalf of the Rio Group, A/C.6/66/SR.12 at [4-5].

49 - See statements by the delegates of Guatemala, Colombia, El Salvador, Peru, Cuba, Venezuela, Argentina, Chile and Brazil A/C.6/66/SR.12 and A/C.6/66/SR.13.

50 - See for example statements by the delegates of Colombia, Venezuela and Chile, A/C.6/66/ SR.12 and A/C.6/66/SR.13.

51 - Resolution 66/103, above n 8, at operative paragraph 2.

52 - As compared, for example, with the mandate entrusted to the Sixth Committee Working Group under General Assembly resolution 66/105 “with a view to finalising the draft comprehensive convention on international terrorism”: Measures to Eliminate International Terrorism GA Res 66/105, A/Res/66/105 (2011) at operative paragraph 24.

53 - Resolution 66/103, above n 8, at preliminary paragraph 4.

54 - Ibid, at operative paragraph 2.

55 - Informal Paper of the Working Group A/C.6/66/WG.3/1 (2011).

56 - Charter of the United Nations, art 13(1) .

57 - Establishment of an International Law Commission GA Res 174, II (1947).

58 - At preliminary paragraph 3.

59 - Statute of the International Law Commission GA Res 174, II (1947) as subsequently amended, at art 16 and arts 20-25.

60 - See generally the detailed discussion of the Commission’s work and achievements contained in United Nations International Law Commission The Work of the International Law Commission (7th ed, vol 1, 2007, United Nations, New York).

61 - See, for example, the extended diplomatic negotiations consequent on the Commission’s production of a draft statute for an international criminal court in 1994.

62 - For a useful summary of New Zealand’s initiatives in developing the United Nations Convention on the Safety of United Nations and Associated Personnel 1994 and its subsequent Optional Protocol adopted in 2005 see Mahnoush H Arsanjani “Convention on the Safety of United Nations and Associated Personnel” (2009) United Nations Audiovisual Library of International Law <http://untreaty.un.org/cod/avl/ha/csunap/csunap.html> .

63 - See, for example, the Macedo (ed) Princeton Principles on Universal Jurisdiction (Program in Law and Public Affairs, Princeton, 2001) and the resolution adopted by the Institute of International Law Universal Criminal Jurisdiction with Regard to the Crime of Genocide, Crimes Against Humanity and War Crimes Institute of International Law, XVIIth Commission (2005).

64 - See, for example, the discussion in Shaw, above n 1, at 668-673.

65 - Arrest Warrant case, above n 5.

66 - The annual spirited exchanges between Syria, Lebanon, and Israel under the item “Measures to eliminate international terrorism” and the Committee’s high-tension consideration of the item “International convention against the reproductive cloning of human beings” in 2002 and 2003 stand out as exceptions.

67 - See statement by the Chair of the Working Group, above n 12, at [18].