Sixth Committee (Legal) — 69th session

The scope and application of the principle of universal jurisdiction (Agenda item 83)

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Summary of work

Background (source: A/69/100)

This item was included in the provisional agenda of the sixty-fourth session of the General Assembly, in 2009, 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-seventh sessions (resolutions 64/117, 65/33, 66/103 and 67/98).

At its sixty-eighth 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, 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-ninth session a report based on such information and observations. The Assembly decided that the Sixth Committee would 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 would be established at the sixty-ninth 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 would 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 68/117).

Consideration at the sixty-ninth session

The Sixth Committee considered the item at its 11th, 12th, and 28th meetings, on 15 October and on 7 November 2014 (see A/C.6/69/SR.11,12 and 28). 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, sixty-eighth and sixty-ninth sessions (A/65/181, A/66/93 and Add.1, A/67/116, A/68/113 and A/69/174).

At its 1st meeting, on 7 October, the Committee established a working group pursuant to General Assembly resolution 68/117 to continue to undertake a thorough discussion of the scope and application of the principle of universal jurisdiction. At its 12th meeting, on 15 October, it elected Ms. Georgina Guillén-Grillo (Costa Rica) Chair of the Working Group. In its resolution 68/117, the Assembly 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 its work. The Working Group held three meetings, on 16, 17 and 23 October. At its 28th meeting, on 7 November, the Sixth Committee heard and took note of the oral report of the Chair of the Working Group (see A/C.6/69/SR.28).

During the general debate on the item, statements were made by the representatives of the Islamic Republic of Iran (on behalf of the Non-Aligned Movement (NAM)), Australia (also on behalf of Canada and New Zealand), South Africa (on behalf of the African Group), Trinidad and Tobago (on behalf of the Caribbean Community (CARICOM)), Costa Rica (on behalf of the Community of Latin American and Caribbean States (CELAC)), Guatemala, Sudan, the Russian Federation, Cuba, Algeria, Israel, Burkina Faso, Brazil, the Democratic Republic of the Congo, Colombia. Peru, El Salvador, Malaysia, Poland, Senegal, Norway, Singapore, the Republic of the Congo, Qatar, Switzerland, the United States of America, Thailand, Sri Lanka, China [in English], the United Republic of Tanzania, Nigeria, Azerbaijan, Mozambique, India, Belarus, Morocco, Rwanda, Ethiopia, Egypt, Lebanon, Jordan, Viet Nam, Tunisia, the Islamic Republic of Iran and Kenya. The observer of the International Committee of the Red Cross [in English] also made a statement.

Delegations welcomed the annual report of the Secretary-General (A/69/174) and acknowledged that universal jurisdiction was an important principle of international law, which was aimed at combating impunity and bringing justice to victims. Several delegations viewed the principle as an important complementary mechanism to hold perpetrators to account for the most serious crimes under international law. Some delegations stated that universal jurisdiction was an institution of international law of an exceptional character while other delegations stressed that the principle was a measure of last resort. Several delegations provided definitions of the jurisdictional basis of the principle, focusing on the serious nature of the crimes involved. Some delegations highlighted that the application of the principle was optional and not obligatory. Several delegations drew attention to the need to respect relevant international law instruments, norms and jurisprudence to guide the scope and application of the principle.

Delegations emphasized the need for and importance of cooperation and mutual legal assistance in any application of the principle of universal jurisdiction. Several delegations drew attention to their respective national law and practice in relation to the principle.

As regards the scope of the principle of universal jurisdiction, delegations highlighted the need to distinguish the principle from other related concepts, such as international criminal jurisdiction, the obligation to extradite or prosecute (aut dedere, aut judicare), and jus cogens.

Delegations continued to express divergent views on the range of crimes falling under universal jurisdiction. While some delegations listed specific crimes that were felt to firmly subject to the principle, other delegations reiterated their position that no list of crimes should be elaborated, and other delegations underscored the lack of consensus on what is the scope ratione materiae of the crimes subject to the principle.

As regards the application of universal jurisdiction, delegations reiterated their concern with regard to the abuse of the principle and underlined the need to avoid selectivity or political motivations in its application. Several delegations considered that the arbitrary use of the principle could endanger the international legal order and the fight against impunity. Accordingly, it was stressed that the principle should be applied in accordance with the Charter of the United Nations and international legal norms and principles, including the sovereign equality of States and non-interference in internal affairs of States. Some other delegations emphasized that universal jurisdiction should be applied in good faith and be consistent with other rules of international law, and that there should be respect for due process and fair trial norms. The link between universal jurisdiction and the question of immunity of State officials, in particular of heads of State and high-ranking officials, together with respect therefore, was stressed by several delegations. Some delegations drew parallels between universal jurisdiction and international criminal jurisdiction.

Some delegations emphasized the necessity of establishing conditions for the application of universal jurisdiction. Some delegations stressed that the application of the principle should be based on specific legal provisions in enabling domestic law. Several delegations observed that the primary responsibility for investigating and prosecuting serious international crimes lies with the State of territoriality or the State or nationality. Some delegations stressed that the principle should only be applied when a State was unwilling or unable to exercise these forms of jurisdiction, or when either of these forms of jurisdiction was also present. The view was expressed that approval of the State or States possessing territorial or nationality jurisdiction must be received prior to the principle’s application. Some delegations stated that the presence of the accused in the territory of the State seeking to exercise universal jurisdiction was a precondition to its application, while other delegations suggested this remained a question to be examined. The questions of prosecutorial independence and prosecutorial discretion, as well as the possibility of appealing a decision to prosecute on the basis of universal jurisdiction, were highlighted. A suggestion for a more in-depth analysis of procedural and evidentiary issues involved in the application of the principle was raised.

On the future consideration of the item, delegations acknowledged the benefits of continued discussions on this topic within the Sixth Committee and the Working Group. The view was expressed that the primary role of work of the Sixth Committee was to work towards clear principles for the scope and application of the principle, while some other delegations suggested that the Sixth Committee was unlikely to advance to any universally applicable standards on the principle. In this connection, the proposal was reiterated that a study from the International Law Commission should be requested on this technical legal topic, which could facilitate the drafting of clear guidelines, and focus on national judicial practice with respect to this principle.

Action taken by the Sixth Committee

At the 28th meeting, on 7 November, 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.6/69/L.8). At the same meeting, the Committee adopted draft resolution A/C.6/69/L.8 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 2015, 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 seventieth 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 seventieth 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.

Subsequent action taken by the General Assembly

This agenda item will be considered at the seventieth session (2015).

 

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