The scope and application of the principle of universal jurisdiction
(Agenda item 84)
Authority: resolution 66/103
- Documentation for this item
Summary of work
Background (source: A/67/100)
This item was included in the provisional agenda of the sixty-fourth session of the General Assembly, at the request of the United Republic of Tanzania (A/63/237/Rev.1). The Assembly considered the item at its sixty-fourth and sixty-fifth sessions (resolutions 64/117 and 65/33).
At its sixty-sixth session, the General Assembly took note with appreciation of the report of the Secretary-General prepared on the basis of comments and observations of Governments and relevant observers; and invited Member States and relevant observers, as appropriate, to submit information and observations on the scope and application of universal jurisdiction, including, where appropriate, information on the relevant applicable international treaties, their domestic legal rules and judicial practice, and requested the Secretary-General to prepare and submit to the Assembly, at its sixty-seventh session, a report based on such information and observations. The Assembly decided that the Sixth Committee should continue its consideration of the item, without prejudice to the consideration of the topic and related issues in other forums of the United Nations and that a working group of the Sixth Committee be established, at its sixty-seventh session, to continue to undertake a thorough discussion of the scope and application of universal jurisdiction.It also decided that the Working Group should be open to all Member States and that relevant observers to the Assembly would be invited to participate in the work of the Working Group (resolution 66/103).
Consideration at the sixty-seventh session
The Sixth Committee considered the item at its 12th, 13th, 24th and 25th meetings, on 17 and 18 October and on 9 and 16 November 2012. (A/C.6/67/SR.12, 13, 24 and 25). For the consideration of the item, the Committee had before it the reports of the Secretary-General, submitted to the General Assembly at its sixty-fifth, sixty-sixth and sixty-seventh sessions (A/65/181, A/66/93 and Add.1 and A/67/116).
At its 1st meeting, on 8 October, the Committee established a working group pursuant to General Assembly resolution 66/103 to undertake a thorough discussion of the scope and application of the principle of universal jurisdiction and elected Mr. Eduardo Ulibarri (Costa Rica) as Chair of the Working Group. In accordance with resolution 66/103, the Assembly decided that the Working Group should be open to all Member States and that relevant observers to the General Assembly would be invited to participate in its work. The Working Group held four meetings, on 18, 19 and 25 October. At its 24th meeting, on 9 November, the Committee heard the oral report of the Chair of the Working Group (see A/C.6/67/SR.24)
During the general debate on the item, statements were made by the representatives of: Chile (on behalf of the Community of Latin American and Caribbean States), Iran (Islamic Republic of) (on behalf of the Non-Aligned Movement), New Zealand (also on behalf of Australia and Canada), Egypt (on behalf of the African Group), Belarus, Ethiopia, the Republic of Korea, the Czech Republic, El Salvador, Senegal, Chile, the Sudan, Algeria, Cuba, Tunisia, Mexico, the Democratic Republic of the Congo, the Congo, Lesotho, India, Norway, Argentina, Nigeria, Angola, South Africa, Mozambique, Russian Federation, China, Botswana, Austria, Bangladesh, Sri Lanka, the United States of America, Peru, Iran (Islamic Republic of), Brazil, Israel, Azerbaijan and Malaysia. The observer of the International Committee of the Red Cross also made a statement.
Delegations took note of and welcomed the annual report of the Secretary General (A/67/116) and observed that they continued to follow the agenda item with keen interest. It was generally acknowledged that universal jurisdiction was an important principle in the fight against impunity and that its validity was beyond doubt. Several delegations noted that universal jurisdiction provided a tool to prosecute the perpetrators of certain serious crimes under international law. Some other delegations stated that it was an institution or principle of international law pursuant to which criminal jurisdiction is exercised exceptionally for the purpose of fighting impunity and strengthening justice. Certain delegations drew attention to their laws and practice relevant to universal jurisdiction, and some delegations also drew attention to efforts made at the regional level to advance discussion on this subject. It was reiterated that all States should ensure that they have a proper national legal framework in place, particularly to close the impunity gap for war crimes, including grave breaches under the Geneva Conventions. Some delegations, however, indicated that they did not welcome the creation of uniform standards regarding the principle at the international level. The view was expressed that international regulation of the exercise universal jurisdiction would unduly curb State sovereignty.
With regard to the scope of the principle, delegations highlighted the importance of agreeing on a definition of universal jurisdiction and the need to distinguish it from other related concepts, such as international criminal jurisdiction, the obligation to extradite or prosecute, as well as other related principles and rules of international law. Several delegations also acknowledged existing controversy regarding definition of the principle. In addition, the link between universal jurisdiction and the question of immunity of State officials, in particular heads of State and Government was highlighted. Several delegations expressed the view that there was a delicate balance to be struck between the prevention of impunity and the free exercise of sovereignty by agents of the State, whereby immunity of State officials must be upheld. Several delegations also stated that the exercise of criminal jurisdiction over high-ranking officials who enjoy immunity under international law violates the sovereignty of States, and that a moratorium on all pending arrest warrants filed against certain leaders was needed. It was also noted, however, that discussions on universal jurisdiction should not be taken over by discussions on immunity, given in particular that the latter, which was also implicated with respect to other bases of jurisdiction, may prejudice the Committee’s consideration of the topic.
Concerning the related question of crimes covered by the principle, several delegations noted that the principle covered the most serious or heinous crimes of concern to the international community. Certain delegations also noted, however, the divergence of views on the question of crimes, as reflected in the report of the Secretary-General, except for piracy, and urged the Working Group to focus on this aspect. Some delegations made specific reference to certain crimes in this context, including genocide, crimes against humanity, war crimes, torture and slavery. The view was also expressed that only core crimes should be identified and enumerated; there should be no effort to seek consensus on a comprehensive list of crimes as the typology of crimes is subject to evolution. Some other delegations cautioned against an unwarranted expansion of the list of rimes subject to universal jurisdiction.
As regards the application of the principle, several delegations condemned the selective and arbitrary application of the principle and its possible politicization. Certain delegations expressed the view that the disorderly application of universal jurisdiction has had and continues to risk detrimental implications for international relations. The importance of respecting principles of international law enshrined in the Charter of the United Nations, including the sovereign equality of States, as well as the political independence and non-interference in the internal affairs of other States, was also stressed. It was suggested that it is necessary to address the incongruity that currently exists amongst the various national approaches to universal jurisdiction, and some delegations underlined the importance of conditions for the principle’s application. For example, several delegations noted that the presence of the accused in the territory constitutes a condition for the application of the principle, and some other delegations suggested that prosecution for crimes under universal jurisdiction should require the consent of a public prosecutorial authority. Certain delegations also indicated that the primary responsibility for investigating and prosecuting serious international crimes should always rest with the State in which the conduct occurs, and stressed that universal jurisdiction provides a complementary mechanism to ensure that accused persons are held accountable where the territorial State is unable or unwilling to exercise jurisdiction.
On the future consideration of the agenda item, some delegations acknowledged the beneficial aspects of the establishment of the Working Group of the Sixth Committee on the topic. Some delegations indicated that the Committee is at the stage where more dialogue within the Working Group was required, and issues on which there was common understanding should be identified. Certain delegations reaffirmed the need for the Working Group should adopt a cautious step-by-step approach. In addition, some delegations encouraged flexibility during consideration by the Working Group of the issue of immunities, in particular on the question of whether the nature of a crime affects immunity. The view was also expressed that the item, given its legal complexity, should appropriately be handled by the International law Commission. In terms of timing, some delegations indicated that the item should be referred to the Commission presently, while some other delegations suggested that such a referral should depend on the progress of the Working Group. Several delegations also welcomed the fact the Commission had at its most recent session given priority to related topics, namely, the immunity of State officials from criminal jurisdiction and the obligation to extradite or prosecute.
Action taken by the Sixth Committee
At the 24th meeting, on 9 November 2012, the representative of the Democratic Republic of the Congo, on behalf of the Bureau, introduced a draft resolution entitled “The scope and application of the principle of universal jurisdiction” (A/C.6/67/L.16). At the 25th meeting, on 16 November 2012, the Committee adopted draft resolution A/C.6/67/L.16 without a vote. Under the terms of the draft resolution, the General Assembly would invite Member States and relevant observers, as appropriate, to submit, before 30 April 2013, information and observations on the scope and application of universal jurisdiction, including, where appropriate, information on the relevant applicable international treaties, their domestic legal rules and judicial practice. The Assembly would further request the Secretary-General to prepare and submit to the Assembly, at its sixty-eighth session, a report based on such information and observations. The Assembly would moreover decide that the Sixth Committee shall continue its consideration of the item, without prejudice to the consideration of the topic and related issues in other forums of the United Nations. For this purpose, a working group would be established at the sixty-eighth session to continue to undertake a thorough discussion of the scope and application of universal jurisdiction. The Assembly would decide that the Working Group shall be open to all Member States and that relevant observers to the General Assembly will be invited to participate in the work of the Working Group.
A/67/116 - Full texts of replies
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