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On November 7, 2014, the Sixth Committee of the United Nations General Assembly wrapped up discussions of universal jurisdiction with an oral report and informal working paper presented by the Chairwoman of the Working Group on the scope and application of the principle of universal jurisdiction, during the 69th regular session of the General Assembly. [UN Press Release] The principle of universal jurisdiction provides that national courts can prosecute serious international crimes – such as piracy, genocide, or torture – because such crimes affect the international community or international order. The Working Group’s working paper reviews the key areas of debate and attempts to clarify areas of State agreement on the definition and permissible application of universal jurisdiction.
The Sixth Committee adopted without a vote a draft resolution calling for further discussion of the principle at its seventieth session, in recognition of the “need for further consideration towards a better understanding of the scope and application of universal jurisdiction.” Sixth Committee, Draft Resolution 69/L.8, The scope and application of the principle of universal jurisdiction, UN Doc. A/C.6/69/L.8, 30 October 2014.
The Sixth Committee
The Sixth Committee is the principal forum for the discussion of legal questions in the General Assembly which, pursuant to Article 13 of the UN Charter, must “initiate studies and make recommendations” in order to promote “the progressive development of international law and its codification.” All UN Member States are members of the Committee.
The Sixth Committee Working Group’s Informal Working Paper
In her report to the Sixth Committee, Georgina Guillén-Grillo, the Chair of the Working Group, presented an Informal Working Paper, which consolidated the previous findings of the Working Group and was designed to facilitate future discussions on the topic of universal jurisdiction. Sixth Committee, Oral Report of the Chairman of the Working Group, 7 November 2014: The scope and application of the principle of universal jurisdiction, para. 6. The Informal Working Paper does not reflect the consensus of the delegations, who remain free to change their positions. Id. Guillén-Grillo also highlighted key issues and changes from previous informal papers presented by the Working Group. Id. The Informal Working Paper considers the definition, scope, and application of universal jurisdiction.
The Definition of Universal Jurisdiction
The Informal Working Paper breaks the definition of universal jurisdiction into three sub-headings: (a) the role and purpose of universal jurisdiction; (b) relevant components; and (c) distinction from other related concepts. See generally Sixth Committee, Working Group on the scope and application of the principle of Universal Jurisdiction, Informal Working Paper prepared by the Chairperson for discussion in the Working Group (2014).
The purpose of universal jurisdiction has three elements: “to combat impunity,” “to protect the rights of victims,” and “achieving international justice/promoting justice.” Id. at 1. This last element was added in this year’s discussion at the behest of certain delegations. Oral Report of the Chairman of the Working Group at para. 8.
The second definitional element, “relevant components,” describes the “essential elements of a working concept of Universal Jurisdiction.” These are that the principle focuses on criminal, rather than civil, matters, is asserted by domestic courts or tribunals, is “exercised exceptionally/exceptional character” and that it is “[b]ased on the nature of certain crimes under international law, and not any other jurisdictional connection to the State exercising universal jurisdiction.” Informal Working Paper at 1. The Chair of the Working Group drew attention to this last element, which intended to merge two core components of universal jurisdiction identified by delegations: (1) that there are certain international crimes which, by their very nature, justify the exercise of universal jurisdiction, and (2) the distinctive characteristic of universal jurisdiction which does not require the same “jurisdictional connection” – or link to the forum State – as the traditional bases for exercising jurisdiction. Oral Report of the Chairman of the Working Group at para. 9.
The final definitional element of universal jurisdiction addresses the distinction between universal jurisdiction and related principles. This includes the distinction between universal jurisdiction and the jurisdiction of international criminal courts or tribunals, the obligation to extradite or prosecute, and other forms of jurisdiction. Informal Working Paper at 1.
The Scope of Universal Jurisdiction
The scope of universal jurisdiction, as described in the Informal Working Paper, turns on what crimes may trigger the application of universal jurisdiction and remains the subject of “lively and engaging” debate. Oral Report of the Chairman of the Working Group at para. 10.
The Informal Working Paper provides a preliminary list of 12 crimes that may be subject to universal jurisdiction:
- apartheid
- corruption
- crimes against humanity
- crimes against peace/crime of aggression
- enforced disappearances
- genocide
- piracy
- slavery
- terrorism
- torture
- transnational organized crime, and
- war crimes
Informal Working Paper at 2.
The list comes with several caveats. The Chairman of the Working Group emphasized that the list does not reflect the views of all delegations and is subject to further development. Moreover, several States questioned whether it is even appropriate to include a list of crimes subject to universal jurisdiction. Additionally, several States emphasized that discussions related to the scope of universal jurisdiction are not a “matter of preference” but a “matter of rights and/or obligations under treaty law and/or customary international law.” Oral Report of the Chairman of the Working Group at para. 10. That is, these States emphasize that it is not for the Sixth Committee to decide what crimes it would like to see subject to universal jurisdiction. Rather, customary international law and treaty law determine what crimes States have a duty to prosecute on the basis of universal jurisdiction.
Application of the Principle of Universal Jurisdiction
The Working Group’s study of the application of the principle of universal jurisdiction includes five subheadings: (a) conditions for application, (b) jurisdictional criteria, (c) procedural aspects, (d) role of the national judicial systems, (e) interaction with other concepts of international law, and (f) international assistance and cooperation. Informal Working Paper at 2-3.
The sub-headings related to the application of the principle of universal jurisdiction were developed in a previous session of the Sixth Committee, but what elements the sub-headings were intended to include was never clarified. The Chairperson noted the difficulties this ambiguity created, indicating that the sub-headings remain open to interpretation, making it difficult to determine which elements corresponded to which sub-headings. Oral Report of the Chairman of the Working Group at para. 13.
The Working Group moved the elements of good faith and judiciousness from sub-section (a) on the conditions for application, to sub-section (b) on the criteria for exercising jurisdiction. Id. at para. 14. Both sub-section (c) on procedural aspects and (d) on the role of the national courts were reworded in order to achieve greater clarity and consensus. Id. at para. 15.
The most significant revisions were made to sub-section (e) on the interaction between universal jurisdiction and other international law concepts. For example, the element of “state responsibility for abuse” was changed to “[q]uestions of state responsibility for wrongful acts in the exercise of universal jurisdiction including, if appropriate, its abuse.” The revision is meant to reflect the ongoing debate between States as to the potential abuse of universal jurisdiction, which some States view as a “continuous concern.” Id. at para. 16. In addition, “abuse” was added to sub-section (e) as a separate element, further illustrating governments’ concerns about perceived misuse or overuse of the principle. Id.
In concluding her oral report, the Chair asked the delegations to consider whether the Informal Working Paper could be turned into a text to form the basis of future discussion of universal jurisdiction.
The Sixth Committee’s Consideration of Universal Jurisdiction
The Sixth Committee has considered universal jurisdiction every year since 2009, when Tanzania, on behalf of the Group of African States, petitioned the General Assembly to include “[t]he scope and application of the principle of universal jurisdiction” as an agenda item at its sixty-third session. See Letter from the Permanent Representative of the United Republic of Tanzania to the United Nations addressed to the Secretary-General (June 29, 2009), UN Doc. A/63/237/Rev. 1, 23 July 2009.
In an appended explanatory memorandum to the request, Tanzania acknowledged that universal jurisdiction is “well-established in international law” for a “very limited category of offenses,” but cited an ongoing dispute as to its application. Id. at Annex 1, para. 1 and 4. The memorandum outlined the African Union’s support for the principle as a tool to combat impunity for perpetrators of serious international crimes – including genocide, crimes against humanity and war crimes – but cited concerns with what it viewed as “ad hoc and arbitrary application, particularly towards African leaders.” Id. at para. 5.
The General Assembly subsequently asked the Sixth Committee to continue its consideration of the principle of universal jurisdiction in December 2009. See UN General Assembly, Resolution 64/117, The scope and application of the principle of universal jurisdiction, UN Doc. A/RES/64/117, 16 December 2009, para. 2. The following year, at the impetus of the Sixth Committee, the General Assembly established a working group of the Sixth Committee mandated to “undertake a thorough discussion of the scope and application of universal jurisdiction.” UN General Assembly, Resolution 65/33, The scope and application of the principle of universal jurisdiction, UN Doc. A/RES/65/33, 6 December 2010, para 2.
Beginning in 2009, the General Assembly also asked the UN Secretary General to solicit input and observations from Member States on the scope and application of the principle of universal jurisdiction, and to prepare reports with his findings for the consideration of the General Assembly. See UN General Assembly, Resolution 64/117 at para. 1. Since that date, the Secretary General has prepared a report on universal jurisdiction each year, and the Sixth Committee working group has consistently referred to these reports in its discussion of the principle. See, e.g., Sixth Committee, Oral Report of the Chairman of the Working Group, 7 November 2014: The scope and application of the principle of universal jurisdiction, para. 3.
Additional Information
To learn more about this concept or the UN mechanisms for protecting human rights, visit the Universal Jurisdiction and United Nations pages of the IJRC Online Resource Hub.