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Sixty-fourth session

The scope and application of the principle of universal jurisdiction (agenda item 84)

Summary of work

Background

This item was included in the agenda of the sixty-fourth session of the General Assembly (in 2009), at the request of the United Republic of Tanzania (on behalf of the African Group (A/63/237/Rev.1)) and was allocated to the Sixth Committee (Decision 63/568).

Consideration at the sixty-fourth session

Statements were made by the representatives of: Australia (also on behalf of Canada and New Zealand); Tunisia (on behalf of the African Group); Mexico (on behalf of the Rio Group); Iran (Islamic Republic of) (on behalf of the Non-Aligned Movement); Switzerland; El Salvador; Costa Rica; Swaziland; South Africa; China; Democratic Republic of the Congo; Guatemala; Kenya; Slovakia; Thailand; Peru; Norway; Tanzania; France; Austria; Germany; Finland; Sudan; Slovenia; Tunisia; Belgium; Lebanon and the Libyan Arab Jamahiriya; Indonesia, Iran (Islamic Republic of), the United Kingdom, Algeria, Spain, Mexico, the Russian Federation, Israel, Burkina Faso, the United States of America, Liechtenstein, Rwanda, Togo, Malaysia, Senegal, Nigeria, Italy and Ethiopia. Argentina made a statement in the exercise of its right of reply.

In their general observations, most delegations affirmed that the principle of universal jurisdiction was enshrined in international law and constituted an important tool in the fight against impunity for serious international crimes. Several delegations, however, stated that caution should be exercised in addressing this topic, as there were still many ambiguities and inconsistencies in its application. Several delegations pointed out that the purpose of the debate in the Committee was not to question the legitimacy universal jurisdiction, but rather to strengthen the principle by defining its scope and application.

Delegations expressed differing views as to the scope of universal jurisdiction. Some delegations stated that it was uncertain whether the principle had become part of customary international law, whereas some other delegations held that that was the case. With regard to the crimes covered under the principle of jurisdiction, some delegations considered that the principle covered crimes both under treaty law, such as war crimes and torture, and other international crimes, such as genocide and crimes against humanity. Some other delegations cautioned against an unwarranted expansion of the crimes covered under universal jurisdiction. Delegations also expressed differing views as to whether the principle required that there be a link between the offender and the State exercising jurisdiction (such as presence in the territory of the State). Several delegations emphasized universal jurisdiction should be exercised in a subsidiary manner, when the State in which the alleged crimes took place was unable or unwilling to prosecute the offenders.

With regard to the application of the principle, delegations expressed the view that universal jurisdiction should always be exercised in good faith and in accordance with other principles of international law, including the rule of law, the sovereign equality of States and immunity of State officials. Several delegations expressed concern with regard to the possible politicization of the principle, and the possibility of a unilateral and selective approach in its application. Concern was expressed for the possible application of the principle in cases where there was little understanding of a fragile political situation, and for its selective and unilateral application, which may hinder the development of African States and constitute an infringement of their sovereignty.

As to the future work on this topic, delegations observed that the General Assembly should clearly define the limits of the principle of universal jurisdiction. Some delegations pointed out that while universal jurisdiction was in some ways related to the exercise of jurisdiction by international tribunals, other forms of extraterritorial jurisdiction, the principle of aut dedere aut judicare and the immunity of State officials, it should be clearly distinguished from them. It was argued that it would be necessary to gather information about the practice of Member States and their different understandings of the principle before turning to further consideration of the topic.

Some delegations observed that the related topics of the immunity of State officials and the principle of aut dedere aut judicare were already under consideration by the International Law Commission and that a duplication of work should be avoided. Some delegations suggested that the topic should be referred to the International Law Commission for further consideration. Some other delegations observed that it would be useful that the Secretary-General prepare a report, on the basis of views submitted by Member States, which would serve as a basis for further consideration of the topic by the Committee. The view was expressed that, while the legal aspects of the topic were appropriately addressed in the Sixth Committee, some political aspects should be addressed at the plenary level of the General Assembly.

As to the possible outcome of the consideration of the item by the General Assembly, a call was made for an international mechanism to monitor prosecutions based on the invocation of universal jurisdiction; some delegations, however, expressed concern that such mechanism may infringe upon the principle of the independence of the judiciary. It was suggested that a set of guidelines or standards be developed that would guide national courts in meeting the challenges of prosecuting perpetrators under universal jurisdiction.
Action taken by the Sixth Committee

At the 25th meeting, on 12 November 2009, the representative of Rwanda, on behalf of the Bureau, introduced a draft resolution entitled “The scope and application of the principle of universal jurisdiction” (A/C.6/64/L.18). At the same meeting, the Committee adopted draft resolution A/C.6/64/L.18 without a vote. After the adoption of the draft resolution, the representative of the Sudan made a statement in explanation of position. Under the draft resolution, the General Assembly would request the Secretary-General to invite Member States to submit, before 30 April 2010, information and observations on the scope and application of the principle of universal jurisdiction, including information on the relevant applicable international treaties, their domestic legal rules and judicial practice, and to prepare and submit to the General Assembly, at its sixty-fifth session, a report based on such information and observations. The Assembly would further decide that the Sixth Committee shall continue its consideration of the item, without prejudice to the consideration of related issues in other forums of the United Nations.

This agenda item was subsequently considered at the sixty-fifth session (2010)