STATEMENT BY MR. DAVID LOW, DELEGATE TO THE 71st SESSION OF THE UNITED NATIONS GENERAL ASSEMBLY, ON AGENDA ITEM 85, ON THE SCOPE AND APPLICATION OF THE PRINCIPLE OF UNIVERSAL JURISDICTION, SIXTH COMMITTEE, 11 OCTOBER 2016

1.       Mr. Chairman, Singapore associates itself with the statement delivered by the Islamic Republic of Iran on behalf of the Non-Aligned Movement (NAM).  We would also like to thank the Secretary-General for his report on this agenda item (A/71/111).

2.       The principle of universal jurisdiction is an important weapon in the international community’s arsenal for the fight against impunity.  This basis of jurisdiction is well-established in customary international law.  It is based on the recognition that there are certain crimes which are so heinous, the commission of which strike at the very foundation of our humanity, that their suppression is a joint concern of the entire international community.  In such situations, it is the shared responsibility of every State to ensure that the perpetrators of such crimes do not go unpunished.  The existence of the principle of universal jurisdiction signals the international community’s firm commitment that impunity will never be tolerated, and provides States with the legal means by which to ensure that no acts of impunity can escape punishment by virtue of a lacuna in the law.

3.       Mr. Chairman, the existence and objective of the principle is clear.  However, there is less clarity on its precise scope and application.  Ahead of the discussions of the Working Group at this session, it would be useful to set out a number of points to allow us to see the issues surrounding this topic in context.

4.       First, the scope of the principle must be closely connected to its objective.  Universal jurisdiction should only be asserted for the most serious and abhorrent crimes that affect the international community as a whole, and which the international community has generally agreed are crimes for which the application of the principle of universal jurisdiction would be appropriate.  An unwarranted expansion of the principle to include anything less than the most heinous crimes would be a distortion of the purpose for which the principle was developed, and call into question its legitimacy.  We must not allow this to happen.  It bears repeating that, like other principles of customary international law, the question of which crimes may attract universal jurisdiction must be adjudged by the criteria of state practice and opinio juris.  In this regard, we note the useful discussions of the Working Group at the 69th session in relation to a preliminary list of crimes that may attract universal jurisdiction which was compiled by the Chair of the Working Group.  We look forward to continuing the discussions on the underlying rationale and approach for the inclusion of crimes within this list.

5.       Secondly, it must be remembered that the principle of universal jurisdiction is not the only tool which is available to fight impunity.  As I mentioned earlier, it is part of a wider arsenal of legal tools.  Universal jurisdiction is not and should not be seen as the primary basis for the exercise of criminal jurisdiction.  It complements the other established bases of jurisdiction, such as the territoriality and nationality principles.  The principle ensures that no lacuna of the law exists which perpetrators may slip through.  It does not replace other jurisdictional bases.  Universal jurisdiction should only be asserted in cases where no State is able or willing to exercise jurisdiction under established principles of international law.  This is an important criterion which prevents the principle of universal jurisdiction from being abused.

6.       Thirdly, the principle of universal jurisdiction exists within a larger international legal order.  Other rules and principles of international law can and often will intersect with the application of universal jurisdiction.  The principle therefore cannot be exercised in isolation, or to the exclusion of other relevant rules and principles of international law.  Depending on the facts of each case, this can include the principles of State sovereignty and the territorial integrity of States; the immunity of State officials from foreign criminal jurisdiction; and international comity.  The manner in which universal jurisdiction is asserted must also involve consideration of issues such as good faith, due process, transparency, the separation of powers, and prosecutorial discretion; as well as regard for practical matters involving the collection and preservation of evidence, availability and attendance of witnesses, and rules of procedure, to name but a few.  How, and to what extent, all of these important facets are taken into account in the application of universal jurisdiction is a complex and sensitive question, and bears further detailed discussions.

7.       Fourthly, there is a distinction between the exercise of universal jurisdiction, which is a principle of customary international law, and the exercise of jurisdiction as provided for in treaties or the exercise of jurisdiction by international tribunals constituted under specific treaty regimes.  The latter two are separate scenarios, and the principle of universal jurisdiction should not be confused with them.  Conflating these different scenarios is not helpful, since they each have their own specific set of juridical bases, rationale, objectives, and considerations.

8.       In conclusion, Singapore wishes to reiterate that there is broad agreement about the importance and the objective of the principle of universal jurisdiction.  What is needed now is to build international consensus on when and how we apply this principle.  If universal jurisdiction is to be wielded effectively and credibly in the fight against impunity, it must be exercised in a non-arbitrary manner for crimes of exceptional gravity, in complementarity with other established bases of jurisdiction and principles of international law.  To do otherwise would risk defeating the very object and purpose for which the principle was developed in the first place.

9.       We hope that these are useful points that help to frame the discussions of the Working Group.  We look forward to exchanging views and engaging with other delegations on this very important topic.

10.     Thank you, Mr. Chairman.

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