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Ministry Statements and Speeches 2009

Sixth Committee, The scope and application of the principle of universal jurisdiction

Statement by Mr Andrew Rose Counsellor and Legal Adviser of Australia to the United Nations, 20 October 2009

Mr Chair

I have the honour to speak on behalf of Canada, Australia and New Zealand. CANZ welcomes this opportunity to discuss the scope and application of the principle of universal jurisdiction.

We thank the African Group for its constructive efforts in bringing us together to consider this important topic. We also thank the delegations of Liechtenstein and Tanzania for hosting a helpful panel discussion on universal jurisdiction earlier this month. This panel discussion helped to clarify the principle of universal jurisdiction by distinguishing it from what it is not - including the application of nationality or passive personality jurisdiction, or the exercise of jurisdiction by international criminal tribunals.

Mr Chair

Universal jurisdiction is a long-established principle of international law. It vests in every State the competence to exercise, on behalf of the international community, criminal jurisdiction over those individuals responsible for the most serious crimes of international concern, no matter where those crimes occur. The principle first developed at customary international law in relation to piracy to prevent pirates from enjoying impunity or safe haven. It has since been extended to include genocide, war crimes, crimes against humanity, slavery and torture.

The nature or exceptional gravity of these crimes renders their suppression a joint concern of all members of the international community. The principle of universal jurisdiction is an important mechanism through which the international community aims to ensure that individuals who commit these crimes do not enjoy safe haven anywhere in the world.

Mr Chair

Primary responsibility for investigating and prosecuting serious international crimes, as with all crimes, rests with the State where the crime occurs. Where the territorial State establishes effective legal frameworks to prosecute and punish these crimes, the need for other States to assert jurisdiction is, as a practical matter, diminished. The territorial State is best placed to obtain evidence, secure witnesses and enforce sentences. And perhaps most importantly, it is also well placed to ensure that the ‘justice message’ is delivered to affected communities.

However, it is a fact that many such crimes go unpunished, including through the movement of the accused to another country. Universal jurisdiction assists to cover that jurisdictional gap. With that in mind, we call upon all States to incorporate grave crimes into their domestic laws. We further call upon all States to provide each other with practical assistance to promote the rule of law and develop the capacity of domestic criminal justice systems to prosecute grave crimes. This is the front line in the fight against impunity and it should be our first priority.

Mr Chair

Universal jurisdiction has a place in our collective system of criminal justice as a complementary mechanism to ensure an end to impunity.

On the rare occasion where a national court has asserted universal jurisdiction, State practice suggests that this has usually been due to a connecting link between the offence and the forum State, for example the presence of the accused on the territory of the forum State.

The national court should always exercise universal jurisdiction – and indeed all forms of extraterritorial jurisdiction – in good faith and in a manner consistent with other principles and rules of international law. This is essential to ensure that the desire to end impunity does not in itself generate an abuse of the principle.

National courts should at all times observe the minimum fair trial guarantees, including the right of the accused to be tried in his or her presence and without delay. Judicial independence and impartiality must be maintained to ensure that the principle is not manipulated for political ends.

In order to prevent impunity for these crimes, we encourage States, consistent with their international obligations and domestic practices, to cooperate to provide all available means of assistance, including mutual assistance, in order to ensure sufficient evidence for prosecution. By cooperating with national courts in prosecutions involving universal jurisdiction we all further our shared aim to end impunity.

Mr Chair

The CANZ Group looks forward to working with other member States to ensure that the perpetrators of grave crimes do not enjoy safe haven.

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