Statement by Ambassador H.E. Dr. Palitha T.B. Kohona
Permanent Representative of Sri Lanka to the United Nations

Sixth Committee
66th Session of the United Nations General Assembly

Agenda Item 84 :
The Scope and Application of the Principle of
Universal Jurisdiction

12th October, 2011

My delegation aligns itself with the statement made on behalf of the Non-Aligned Movement by Iran.  We thank the Secretary-General for the reports A/66/93 and its Add.1 and A/C/6/66/WG.3/INF.1 and     INF 2.

As international legal concepts expand, we remain in relatively unclear territory when discussing the principle of universal jurisdiction.  The substance of this concept is still being expanded.  From its early beginnings, primarily as a means for maritime States to assert jurisdiction over acts of piracy, gradual developments have seen the expansion of the content of universal jurisdiction to encompass other egregious acts such as war crimes, genocide and torture. The application of this concept, with unavoidable implications for the sovereign equality of states, still continues to be debated.   Therefore, it is only reasonable to expect that we further explore the practical application of the concept of universal jurisdiction. 

In practice, the principle of universal jurisdiction has been used lately to pursue aims with little regard to the purposes that were originally associated with it. Unfortunately, it has been applied selectively and arbitrarily.  This development is not desirable. The ready use of this principle in a selective manner to realize blatant political goals that may have the effect of undermining the principle of sovereign equality of States and erode the immunity of state officials and diplomatic agents, must be avoided.  My delegation wishes to express concern about any arbitrary and unilateral expansion of the scope and application of the concept, which indeed could be tantamount to an abuse of the principle, at times by non-state advocacy groups, that may ultimately result in weakening the principles applicable to inter-state relations and the principle of universal jurisdiction itself. It is vital that the development of the principle of universal jurisdiction, especially its practical application be guided by international consensus and not through advocacy action of parties with short term and narrow objectives.

It is disturbing that the principal of universal jurisdiction is sought to be applied by a small number of jurisdictions and certain judges without significant input from the vast majority of the countries of the international community. Arbitrary and convenient definitions of jurisdiction will create uncertainty and detract from time tested concepts relating to the immunity of states, of high state officials, the sovereign equality of states as well as the political independence of states and noninterference in the internal affairs of other states. It is most important that the framework for the application of a principle of this nature should have substantial input from the widest possible cross section of the international community.  We agree that the International Law Commission should have a role in examining this topic. 

The universal jurisdiction principle, due to certain inherent disadvantages, should only be invoked when all other options have been exhausted. Used to achieve the wrong goals, it has the potential to cause more harm than good. Perhaps the most challenging aspect of the application of the principle of universal jurisdiction is its encroachment on the sovereign equality of states enshrined in the UN Charter itself. For example, a basic rule of customary international law is the exhaustion all local remedies. In addition, the country where the alleged infringements occurred would be the best suited to prosecute such crimes due to the ease of access to evidence and the proximity to the aggrieved.  

Therefore, the principle of universal jurisdiction should not be exercised in another jurisdiction when the judicial mechanisms of the country are in the process of addressing an infraction. Otherwise, it will result in second guessing the capacity and ability of the government and the judiciary of the state where the infraction occurred and thereby placing strains on relations between states. When a state chooses to exercise universal jurisdiction in absentia, it must also ensure that certain safeguards are in place to prevent the abuse of the principle.  

The universal jurisdiction principle, if wrongly or selectively invoked, can lead to ‘show trials’ that consume a significant amount of time and resources, and which ultimately do not produce a useful result. Often the targets are chosen to maximize media exposure and to ensure that even before the accused sets foot in a court, he or she is tried and found guilty in the court of public opinion. Several such cases in the past have purposefully targeted high officials and have hindered diplomatic dialogue. Such attacks on officials are a deliberate attempt to publicly erode legitimacy that is the foundation of democratically elected governments. We are also concerned about targeting of diplomatic agents who enjoy full immunity in bilateral and multi lateral fora in an attempt to test the scope of diplomatic privileges and immunities. 

In conclusion, my delegation observes that certain States have begun to recognize the need to prevent the abuse of the principle of universal jurisdiction and have introduced constraints such as requiring the prior approval of senior state authorities before claims can be instituted. We welcome this development. 

Thank You, Mr. Chairman.

 

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