The scope and application of the principle of universal jurisdiction (Agenda item 86)
Summary of work
Background (source: A/68/100)
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 to sixty-sixth sessions (resolutions 64/117, 65/33 and 66/103).
At its sixty-seventh 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 and their national legal rules and judicial practice, and requested 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 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 the sixty-eighth session of the Assembly, 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 67/98).
Consideration at the sixty-eighth session
The Sixth Committee considered the item at its 12th, 13th, 14th, 23rd, 28th and 29th meetings, on 17 and 18 October and on 4, 8 and 15 November 2013 (see A/C.6/68/SR.12, 13, 14, 23, 28 and 29). For its 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, sixty-seventh and sixty-eighth sessions (A/65/181, A/66/93 and Add.1, A/67/116 and A/68/113).
At its 2nd meeting, on 7 October, the Committee established a working group pursuant to General Assembly resolution 67/98 to undertake a thorough discussion of the scope and application of the principle of universal jurisdiction and elected Mr. Eduardo Ulibarri (Costa Rica) Chair of the Working Group. In resolution 67/98, 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 three meetings, on 23, 24 and 25 October. At its 23rd meeting, on 4 November, the Sixth Committee heard and took note of the oral report of the Chair of the Working Group (see A/C.6/68/SR.23).
During the general debate on the item, statements were made by the representatives of: Iran (Islamic Republic of) (on behalf of the Non-Aligned Movement), Cuba (on behalf of the Community of Latin American and Caribbean States (CELAC)), Canada (also on behalf of Australia and New Zealand), Egypt (on behalf of the African Group), Switzerland (also on behalf of Liechtenstein), Algeria, Belarus, Ethiopia, South Africa, the United States of America, Norway, Qatar, Guatemala, Argentina, Malaysia, the Republic of Korea, Brazil, Chile, India, Sri Lanka, Peru, Singapore, Finland, the Czech Republic, China, Tunisia, Austria, Rwanda, the Russian Federation, Poland, Israel, Albania, Iran (Islamic Republic of), Cuba, Mozambique, Burkina Faso, Viet Nam, Equatorial Guinea, Kenya, Lesotho, Azerbaijan, Italy, Thailand and Uganda. The observer of the International Committee of the Red Cross also made a statement.
Delegations welcomed the report of the Secretary-General and acknowledged that universal jurisdiction was an important principle of international law, which was aimed at combating impunity. Some delegations stressed that universal jurisdiction was a principle of international law of exceptional character. Some other delegations stated that the principle was a complementary mechanism to ensure accountability for the most serious crimes. The view was also expressed that the principle contributes to strengthening the rule of law at both the national and international level, and that the crimes involved could be viewed as an attack on universal values and the international legal order as a whole. Certain delegations stressed importance of the full respect for principles of sovereignty, sovereign equality of States, and non-intervention. The link between universal jurisdiction and the question of immunity, in particular with regard to the rules on immunity of Heads of State and other State officials, was recalled by most delegations, and the need for respecting such rules when exercising the principle was emphasized. On the other hand, the view was also expressed that the question of immunity was an entirely separate subject. Several delegations also drew attention to their national law and practice in relation to the application of the principle.
With regard to the scope of the principle of universal jurisdiction, delegations noted the core utility of distinguishing the principle from other related concepts, such as international criminal jurisdiction, the obligation to extradite or prosecute, and jus cogens. Several delegations emphasized that customary international law and treaty law should guide the scope of the principle. It was stressed that the focus of work should be on universal criminal jurisdiction.
With respect to the related question of crimes subject to the principle, delegations noted the divergence of views, and highlighted generally the need for efforts to agree on the list of crimes. In this regard, it was observed that there seemed to be a convergence of views on the idea that universal jurisdiction comes into play when fundamental values of interest to the international community as a whole are breached. While delegations generally stressed that piracy falls within universal jurisdiction, several delegations suggested that the principle also applied to the most serious crimes of international concern, including genocide, crimes against humanity and war crimes. While some delegations drew attention to other crimes to which the principle applies, such as torture, reference was also made to slavery, human trafficking, hostage taking and money laundering. Several delegations cautioned however against an unwarranted expansion of the list of crimes. It was also suggested that no exhaustive list of crimes should be developed.
With respect to the application of universal jurisdiction, several delegations emphasized that international law and the Charter of the United Nations must guide the application of the principle. Some delegations insisted that the principle should always be exercised in good faith and in accordance with due process norms under international law. Other delegations cautioned against the possible political manipulation of the principle and suggested the adoption of measures to lead to the cessation of the selective application and potential abuse of the principle. References were made to the decisions of the Assembly of Heads of State and Government of the African Union in this respect, which urged its member States to use the principle of reciprocity to defend themselves against the abuse of the principle of universal jurisdiction.
Some delegations emphasized the necessity of agreeing on conditions for the application of universal jurisdiction. Certain delegations stated that the primary responsibility for investigating and prosecuting serious international crimes lies with the State possessing territorial jurisdiction, and that universal jurisdiction provides a complementary mechanism to ensure that accused persons are held accountable where this State is unable or unwilling to exercise jurisdiction. Some delegations observed that this form of jurisdiction should only be exercised when no other State exercised an alternative form of jurisdiction. The view was also expressed that the approval of the State or States possessing territorial and nationality jurisdiction must be received prior to exercising universal jurisdiction. It was also suggested that the accused should be present in the territory of the State seeking to exercise universal jurisdiction. The role of prosecutorial discretion in the application of the principle was also noted.
On the future consideration of the item, delegations acknowledged the beneficial aspects of the establishment of the Working Group of the Sixth Committee on the item. In this regard, the point was made that work should focus on the codification aspects of the matter. Several delegations suggested the continuation of a step-by-step and flexible approach by the Working Group. Other delegations proposed that some form of contribution from the International Law Commission, including in the form of a study, should be requested at this stage, given the technical nature of the topic and the Commission’s focus on related topics. However, other delegations considered that the Sixth Committee was the appropriate forum for consideration of this topic, and that the possibility of the Commission addressing the issue was in any event not foreclosed. On the question of form, some delegations were in favour of elaborating guidelines or principles on universal jurisdiction.
Action taken by the Sixth Committee
At the 28th meeting, on 8 November, the representative of Togo, on behalf of the Bureau, introduced a draft resolution entitled “The scope and application of the principle of universal jurisdiction” (A/C.6/68/L.17). At its 29th meeting, on 15 November, the Committee adopted draft resolution A/C.6/68/L.17 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 2014, information and observations on the scope and application of universal jurisdiction, including, where appropriate, information on the relevant applicable international treaties, their national legal rules and judicial practice. The Assembly would further request the Secretary-General to prepare and submit to the Assembly, at its sixty-ninth 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-ninth 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/68/113 - Full texts of replies
|Colombia||(Original: Spanish) (English)|
|Cuba||(Original: Spanish) (English)|
|Lebanon||(Original: Arabic) (English)|
|Panama||(Original: Spanish) (English)|
|Spain||(Original: Spanish) (English)|
|Council of Europe||(Original: English)
|International Committee of the Red Cross||(English)|