Mr. Chairman,

Israel considers the principle of universal criminal jurisdiction to be an important tool with a role to play in strengthening the rule of law domestically and internationally. This principle allows, under certain conditions, national authorities to investigate and  – where appropriate – to bring to trial persons who have committed the most serious international crimes, irrespective of where such crimes were committed, by whom, or against whom. It complements the primary responsibility of the State whose nationals are suspected of committing such crimes, and thus, conditioned on the fact that this state is unwilling or unable to exercise its responsibility to do so.

It is these very same considerations that require that the exercise of universal jurisdiction be carefully regulated in order to ensure that universal jurisdiction is exercised in good faith and responsibly. Furthermore, as issues of public policy, justice and national interest are intimately entangled in cases involving universal jurisdiction, it is necessary to ensure that sufficient national safeguards and domestic filtering mechanisms are in place.

Given the existing legal, conceptual and procedural uncertainties and controversy in the interpretation of this principle in different jurisdictions, and in view of the inconsistent State practice, as well as the existing confusion between this notion and other principles such as aut dedere aut judicare (to extradite or prosecute), it is appropriate and, indeed necessary, to first focus on the definition and scope of universal jurisdiction, as a prerequisite to the consideration of this topic, and prior to future assessment of the practical and concrete aspects relating to the potential applicability and inapplicability of universal jurisdiction.

In other words, given the lack of uniformity in the substantive interpretation and the procedural application of this concept, Israel believes that the exchange of information on State practice would be extremely helpful and warranted at this stage. Such exchange could both help identify the scope of the relevant criminal offenses, and also be useful in developing best practices in order to prevent the abuse or misapplication of the principle for political ends.

In this regard, despite the recognition by States of the importance of accountability, it is interesting to note that despite the widespread support for the principle of universality in the counter-terrorism treaties, for example, which contain the obligation to extradite or prosecute as an important element, in practice, however, the actual extradition or prosecution of terrorists is predominantly based on bilateral treaties and not on the multilateral counter-terrorism treaties, some of which entered into force thirty and forty years ago.

Israel, for its part, has recognized universal jurisdiction for certain limited and particularly heinous international crimes, both in its legislation, such as the 1950 Crime of Genocide (Prevention and Punishment) Law, and in its ratification of international conventions.

But even in such cases, proper consideration of effective justice would dictate that such cases be prosecuted in a jurisdiction which bears extensive and significant links to the crimes committed. Hence, even the landmark case of the Nazi war criminal Eichmann  which is often cited by international scholars as an example of the implementation of the principle of universal jurisdiction did not involve a case of prosecution without jurisdictional links.

Finally, Mr. Chairman, in order to ensure the credibility and indeed, the legitimacy, of universal jurisdiction, it is essential that proper safeguards are in place, to help deter potential abuse, as well as to ensure due process guarantees, in order to avoid, among other things, proceedings in absentia of the accused. Under Israeli law, for example, all indictments based on extraterritorial jurisdiction require the approval of the Attorney General whose determination is made while considering, inter alia, the public interest.

While Israel is of the view that it is still premature to consider a specific outcome to this session, we intend to follow with interest the discussion over this topic in the Committee.