Sixth Committee (Legal) — 70th session
The scope and application of the principle of universal jurisdiction (Agenda item 86)
- Authority: resolution 69/124
Documentation
- Reports of the Secretary-General:
A/70/125 | A/69/174 | A/68/113 | A/67/116 | A/66/93 + Add.1 | A/65/181
Summary of work
Background (source: A/70/100)
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 on behalf of the Group of African States (A/63/237/Rev.1). The Assembly considered the item at its sixty-fourth to sixty-eighth sessions (resolutions 64/117, 65/33, 66/103, 67/98 and 68/117).
At its sixty-ninth session, the General Assembly 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 seventieth 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 seventieth session of the Assembly, to continue to undertake a thorough discussion of the scope and application of universal jurisdiction. The Assembly 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 69/124).
Consideration at the seventieth session
The Sixth Committee considered the item at its 12th, 13th, 27th and 28th meetings, on 20 October and on 13 and 16 November 2015 (see A/C.6/70/SR.12, 13, 27 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, sixty-ninth and seventieth sessions (A/65/181, A/66/93 and Add.1, A/67/116, A/68/113, A/69/174 and A/70/125).
At its 1st meeting, on 12 October, the Committee established a working group pursuant to General Assembly resolution 69/124 to continue to undertake a thorough discussion of the scope and application of the principle of universal jurisdiction, and it elected Ms. Georgina Guillén-Grillo (Costa Rica) Chair of the Working Group. In its resolution 69/124, 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 21, 23 and 29 October. At its 27th meeting, on 13 November, the Committee heard and took note of the oral report of the Chair of the Working Group (see A/C.6/70/SR.27).
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), Ecuador (on behalf of the Community of Latin American and Caribbean States (CELAC)), South Africa (on behalf of the African Group), Trinidad and Tobago (on behalf of the Caribbean Community (CARICOM)), New Zealand (also on behalf of Australia and Canada (CANZ)), Peru, Singapore, Cuba, Belarus, Sudan, Qatar, Colombia, Slovenia, Czech Republic, Norway, Switzerland, Serbia, Brazil, Viet Nam, Israel, Algeria, Poland, the United States of America, the Russian Federation, Thailand, the United Kingdom of Great Britain and Northern Ireland, Lebanon, Kenya, India, Islamic Republic of Iran, Bolivarian Republic of Venezuela, China, Burkina Faso, Mozambique, Egypt, Croatia, El Salvador, Morocco and Guatemala. The Observers for the Holy See and the Observer of the International Committee of the Red Cross also made statements.
Delegations welcomed the report of the Secretary-General (A/70/125). Several delegations underlined how the fight against impunity is a fundamental objective shared by the whole international community. Many delegations considered universal jurisdiction to be a well-established principle of international law which was aimed at combating impunity and bringing justice to victims. Several delegations emphasized that universal jurisdiction is a complementary mechanism to hold perpetrators to account for the most serious crimes under international law. A number of delegations underlined the exceptional character of universal jurisdiction; for this reason, according to some delegations, the principle was to be deemed 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 stressed that the application of the principle was mostly optional and not obligatory, while others expressed the position that in some cases the exercise of jurisdiction was in fact an obligation arising from specific treaty provisions.
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 universal jurisdiction, delegations continued to express divergent views on the range of crimes falling under universal jurisdiction. While some delegations set out specific crimes they considered subject to the principle, other delegations underscored that consensus had yet to emerge on what was the scope ratione materiae of the crimes subject to the principle. Several delegations reiterated their view that universal jurisdiction applied to the core crimes including piracy, genocide, crimes against humanity, war crimes, as well as torture. Some delegations drew a distinction between the principle as applicable under customary international law and the principle as applied under specific treaties, to include crimes such as international terrorism, international drug trafficking and illegal arms trafficking; while several other delegations cautioned against the unwarranted expansion of the list of crimes. According to other delegations, it was not necessary nor was it advisable to attempt to agree on a list of crimes. The view was also expressed that a general reference to applicable customary international law and treaty law would be preferable.
Delegations drew parallels between universal jurisdiction and other principles in international justice. Many delegations made distinctions between universal jurisdiction and international criminal tribunals. Several delegations drew distinctions between the principle of universal jurisdiction and the principle of aut dedere aut judicare. Many delegations drew distinctions between the principle and the extraterritorial jurisdiction of national courts over a State’s own nationals.
As regards the application of universal jurisdiction, delegations reiterated their concern with regard to the potential abuse of the principle. Delegations stressed that the principle must be applied in accordance with the Charter of the United Nations and international legal norms, including the sovereign equality of States, territorial integrity and the non-interference in the internal affairs of States, and underlined the need to avoid selective or arbitrary motivations in its application, to avoid its political manipulation or exploitation. Several delegations emphasized that universal jurisdiction should be applied in good faith and be consistent with other rules of international law. The link between universal jurisdiction and the question of immunity of State officials, in particular Heads of State and high-ranking State officials, was highlighted by several delegations. Several delegations stressed that the exercise of criminal jurisdiction over Heads of State and high-ranking State officials must respect the applicable immunities under international law.
Several delegations emphasized the necessity of establishing conditions for the application of universal jurisdiction. Some delegations stated that the application of the principle was necessary and justifiable when the crimes affect the international community, as a whole. A number of delegations observed that the primary responsibility for investigating and prosecuting serious international crimes lies with the State of territoriality and/or the State of nationality. Some delegations stated that the principle permits States to prosecute and investigate certain crimes when the States of territoriality or nationality (active and passive) are unable or unwilling to do so. The view was expressed that approval of the State or States possessing territorial or nationality jurisdiction must be received prior to the application of the principle. Several delegations drew attention to the importance of prosecutorial independence and prosecutorial discretion; the questions of whether the alleged perpetrator needed to be present in the territory wishing to exercise universal jurisdiction and whether formal consent of the territorial State would be required for the principle’s application; the need to establish appropriate safeguards in national legal systems; the relevance of enabling domestic legislation; and standards for the situation that may arise when States possess overlapping jurisdiction.
On the future consideration of the item, many delegations acknowledged the benefits of continued discussions on this topic within the Sixth Committee and the Working Group. Some delegations suggested that as the agenda item had been first requested with a view to the establishment of guidelines for the application of the principle, it would be productive to begin work on such guidelines. Some delegations deemed it premature at this stage to address the issue of uniform standards at the international level. A number of delegations supported the previously presented proposal that a study from the International Law Commission (ILC) should be requested on this technical legal topic.
Action taken by the Sixth Committee
At the 27th meeting, on 13 November, the representative of Kenya, on behalf of the Bureau, introduced a draft resolution entitled “The scope and application of the principle of universal jurisdiction” (A/C.6/70/L.12). At the 28th meeting, on 16 November, the Committee adopted draft resolution A/C.6/70/L.12 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 29 April 2016, 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 seventy-first 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 seventy-first 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 seventy-first session (2016).
