Sixth Committee (Legal) — 71st session

The scope and application of the principle of universal jurisdiction (Agenda item 85)

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Documentation

Summary of work

Background (source: A/71/100)

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 seventieth sessions (resolutions 64/117, 65/33, 66/103, 67/98, 68/117, 69/124 and 70/119).

At its seventieth 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 seventy-first 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 seventy-first 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 70/119).

Consideration at the seventy-first session

The Sixth Committee considered the item at its 13th, 14th, 15th, 31st and 32nd meetings, on 11, 13 and 14 October and on 4 and 7 November 2016 (A/C.6/71/SR.13, 14, 15, 31 and 32).

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 to seventy-first sessions (A/65/181, A/66/93 and Add.1, A/67/116, A/68/113, A/69/174, A/70/125 and A/71/111).

At its 1st meeting, on 3 October, the Committee established a working group pursuant to General Assembly resolution 70/119 to continue to undertake a thorough discussion of the scope and application of the principle of universal jurisdiction. In its resolution 70/119, 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 13, 14 and 21 October.  At its 31st meeting, on 4 November, the Committee heard and took note of the oral report of the Chair of the Working Group (see A/C.6/71/SR.31).

During the general debate, statements were made by the representatives of the Dominican Republic (on behalf of the Community of Latin American and Caribbean States (CELAC)), Iran (Islamic Republic of) (on behalf of the Non-Aligned Movement (NAM)), South Africa (on behalf of the African Group), Trinidad and Tobago (on behalf of the Caribbean Community (CARICOM)), Canada [in English] (also on behalf of Australia and Canada (CANZ)), Cuba, Czechia, Qatar, El Salvador, Peru, the Sudan, the Russian Federation, Burkina Faso, Lebanon, Zambia, Poland, Croatia, Venezuela (Bolivarian Republic of), Mexico, Singapore, the United Kingdom of Great Britain and Northern Ireland, the United States of America, Brazil, Nigeria, Slovenia, Israel, Togo, Iran (Islamic Republic of), Saudi Arabia, Belarus, Algeria, Malaysia, India, China [in English], Viet Nam, Norway, Serbia, Bangladesh, Morocco and Paraguay. Serbia and Croatia made statements in exercise of the right to reply. Statements were made by the observers for the Holy See and the International Committee of the Red Cross.

In their general comments, delegations welcomed the annual report of the Secretary-General (A/71/111) and acknowledged that universal jurisdiction was an important principle of international law aimed at combating impunity and bringing justice to victims. They underlined how the fight against impunity is a fundamental objective shared by the whole international community. In this regard, some delegations stressed that the challenges posed by heinous crimes must be addressed at many levels, and that the debate on universal jurisdiction was only one element to take into consideration together with other potential deterrent mechanisms. It was also pointed out that the provision of legal aid at the domestic level constituted another potential method of fighting impunity.

Several delegations considered universal jurisdiction to be a well-established principle of international law. It was 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 also underlined the exceptional character of universal jurisdiction, as it departs from common rules on the exercise of criminal jurisdiction. For this reason, some delegations deemed the principle to be a measure of last resort. A number of delegations provided definitions of the jurisdictional basis of the principle, focusing on the serious nature of the crimes involved.

Parallels were drawn by several delegations between the principle of universal jurisdiction and other principles in international justice, including between universal jurisdiction and international criminal judicial mechanisms and the principle of aut dedere aut judicare. Some delegations also highlighted the differences between universal jurisdiction and extraterritorial jurisdiction, including as exercised by national courts over a State’s own nationals.

As regards the scope of universal jurisdiction, delegations noted that consensus on what was the ratione materiae of the crimes subject to the principle of universal jurisdiction had yet to emerge. In this regard, a number of delegations considered that universal jurisdiction applied to the most serious international crimes and provided various examples of such crimes. Some delegations observed that the principle applied to certain serious crimes under international treaties, while some other delegations noted that also customary international law permitted the exercise of the principle over certain crimes. The point was made that a distinction had to be drawn between the principle as applicable under customary international law, which would only concern piracy, and the principle as applied under specific treaties. Some delegations emphasized that the scope of universal jurisdiction, strictly speaking, was established only for a small number of crimes, such as piracy and war crimes; jurisdiction established for other serious crimes were founded on related principles, including the obligation to extradite or prosecute.  The view was also expressed that universal jurisdiction only applied to crimes against humanity. While some delegations cautioned against the establishment of an exhaustive list of crimes, some others stressed that the crimes to which the principle applied should be identified. Caution was also voiced against an unwarranted expansion of the list of crimes beyond the most heinous crimes, since this would distort the purpose of the principle and put its legitimacy into question.

As regards the application of universal jurisdiction, delegations reaffirmed their concern with respect to the potential abuse or manipulation of the principle. Several 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. The need to avoid arbitrary or selective application of the principle, in order to avoid its political manipulation or exploitation, was also emphasized. Several delegations again referred to the various decisions of the African Union addressing this issue, in particular decision 420 (2012). The link between universal jurisdiction and the question of immunity of State officials, in particular heads of State and other high-ranking officials, was stressed by several delegations. In this regard, they underlined that the exercise of criminal jurisdiction over such officials must respect the applicable immunities under international law.

Delegations emphasized the necessity of establishing conditions for the application of universal jurisdiction. In this context, some delegations affirmed that the primary responsibility for investigating and prosecuting serious international crimes should always lie with the State of territoriality.  The view was expressed that the approval of the State or States possessing territorial or nationality jurisdiction must be received prior to the principle’s application, whereas the point was also put forward that consultations with such States was required. It was suggested that criteria be developed to address situations where States possess overlapping jurisdiction. Some delegations restated that universal jurisdiction should be applied in good faith; be consistent with other rules of international law; and respect due process and fair trial norms. The issue of practical matters involving evidence, witnesses, or rules of procedure was also referred to.

A number of delegations emphasized the need for and importance of cooperation and mutual legal assistance in any application of the principle of universal jurisdiction. In this context, the initiative to open negotiations for a treaty focused on mutual legal assistance and extradition between States for the investigation of certain serious crimes was recalled.

The importance of establishing appropriate safeguards in national legal systems (including obtaining the approval from high officials, and the requirement of the presence of the accused) was stressed by some delegations, as well as the importance of prosecutorial independence and prosecutorial discretion.

On the future consideration of the agenda item, a number of delegations acknowledged the benefits of continued discussions on this topic within the Sixth Committee and the Working Group. They referenced prior efforts in the Working Group and suggested that as the agenda item was first requested with a view to establish guidelines for its application, it would be productive to build on previous discussions and begin work on such guidelines during the current session. Whereas the need to have substantive outcomes at the seventy-first session of the Working Group was emphasized by some delegations, an incremental approach of the Working Group and continued discussions concerning the practical application of universal jurisdiction were also considered beneficial by some other delegations. Some delegation questioned, however, whether any real progress could be achieved on this topic in the Sixth Committee and it was suggested that the agenda item should only be examined every two years. It was further observed that discussions of the issue also in other fora, such as the EU Genocide Network, may contribute to the advancement of the work.

A number of delegations supported the previously advanced proposal that a study from the International Law Commission should be requested on this topic. They suggested that the discussions in the current format had been exhausted and that the Committee would still retain final responsibility for the treatment of the topic. While some delegations considered that the Sixth Committee could make substantial contributions to this topic, they also observed that, if no advances could be made during the upcoming meetings of the Working Group, the time may be ripe to consider submitting a request to the Commission to consider aspects of the topic. Several other delegations considered that it would be premature at this stage to request the Commission to undertake a study on the topic and encouraged all Member States to be actively engaged in the discussions to identify the scope and limits of application of universal jurisdiction.

Action taken by the Sixth Committee

At the 31st meeting, on 4 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.6/71/L.23). At its 32nd meeting, on 7 November, the Committee adopted draft resolution A/C.6/71/L.23 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-second 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-second 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-second session (2017).

Full texts of submissions (A/71/111)

State Original submission Translation
Australia English  
Cuba Spanish English
Finland English  
Georgia English  
Spain Spanish English
 
Relevant observer Original submission Translation
African Union English  
ICRC English  

 

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