VZCZCXYZ0004
RR RUEHWEB

DE RUCNDT #1052/01 3221543
ZNR UUUUU ZZH
R 181543Z NOV 09
FM USMISSION USUN NEW YORK
TO SECSTATE WASHDC 7661

UNCLAS USUN NEW YORK 001052 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PREL AORC UNGA
SUBJECT: SIXTH COMMITTEE DELIBERATES OVER PRINCIPLE OF 
UNIVERSAL JURISDICTION 
 
¶1.  Summary:  The Sixth Committee finished general debate on 
Agenda Item 84: The Scope and Application of the Principle of 
Universal Jurisdiction on October 21.  Over forty-five 
delegations took part in the discussions with most agreeing 
that there exists no clear definition of universal 
jurisdiction.  Delegations debated not only on the scope and 
application of universal jurisdiction but also on whether the 
Sixth Committee was the proper forum to consider the issue 
further.  Various (mostly African) Member States criticized 
the improper use and politicization of universal jurisdiction 
and defended the immunity of heads of State and government. 
End Summary. 
 
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REGIONAL GROUP INTERVENTIONS 
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¶2.  Australia, on behalf of Canada, Australia, and New 
Zealand (CANZ), thanked Liechtenstein and Tanzania for 
hosting a recent panel discussion on universal jurisdiction. 
CANZ noted that universal jurisdiction can be used to prevent 
impunity for crimes such as piracy, genocide, war crimes, 
crimes against humanity, slavery, and torture.  According to 
CANZ, universal jurisdiction should be used to cover 
jurisdictional gaps and should be exercised in good faith 
consistent with international law. 
 
¶3.  Tunisia, on behalf of the African Group, warned that 
States should avoid the abuse or politicization of universal 
jurisdiction.  Tunisia referenced several African Union 
resolutions on the alleged abuse of universal jurisdiction in 
targeting African officials.  The African Group asked how 
universal jurisdiction should interact with principles of 
international law such as that of sovereign equality of 
States and immunity of officials.  Tunisia called for a 
definition of universal jurisdiction based on objective 
standards as well as the creation of a mechanism to ensure 
its proper application.  According to Tunisia, the Sixth 
Committee is the best forum to discuss this issue (as opposed 
to the International Law Commission (ILC)). 
 
¶4.  Mexico, representing the Rio Group, contended that 
universal jurisdiction is exceptional in nature.  Mexico 
noted that a State had the duty and capacity to exercise 
universal jurisdiction when relevant.  The Rio Group welcomed 
the debate, however preliminary, of universal jurisdiction in 
the Sixth Committee but warned of a duplication of efforts as 
the ILC is reviewing a related issue - the obligation to 
extradite or prosecute. 
 
¶5.  Iran, on behalf of the Non-Aligned Movement (NAM), said 
that the principles of sovereign equality of States and 
non-interference in internal affairs should be strictly 
observed.  The NAM expressed concern with use of universal 
jurisdiction to prosecute officials with immunity and 
commented that judgments and analysis from the International 
Court of Justice (ICJ) and the ILC on the subject will prove 
helpful to the Sixth Committee while debating this issue. 
The NAM stated it was open to considering mechanisms to 
ensure the proper application of universal jurisdiction. 
 
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COMMON THEMES 
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¶6.  Every intervention during the debate noted the confusion 
over the definition, applicability, and scope of universal 
jurisdiction.  As Swaziland put it, "universal jurisdiction 
has a serious identity crisis."  Many delegations began their 
interventions by providing a definition of what they refer to 
as universal jurisdiction.  For example, Switzerland only 
exercises universal jurisdiction when 1) the crime is of a 
serious nature covered under an international agreement, 2) 
the person suspected of the crime is present on Swiss 
territory, and 3) it does not extradite the person for 
criminal prosecution to another State with primary 
jurisdiction.  Norway, however, defines the concept as "a 
state's institution of criminal proceedings against a person 
who is not a national of that state, for an alleged crime (of 
a serious nature) committed outside the territory of that 
State."  According to Norway, the authority to exercise 
universal jurisdiction would be based on treaty or customary 
international law.  Also, there was some inconsistency in 
which crimes States believe may be prosecuted using universal 
jurisdiction.  For example, some States said that only 
slavery and piracy are subject to universal jurisdiction 
while others consider that genocide, torture, war crimes, and 
crimes against humanity may also be prosecuted under 
universal jurisdiction. 
 
¶7.  Some States stated that they consider universal 
jurisdiction an accepted part of international law (e.g. El 
Salvador, Guatemala, Germany, and Finland) and can be applied 
 
 
to certain grave crimes, while others (e.g. China) contended 
otherwise.  China went so far as to say that universal 
jurisdiction was "only an academic concept" and did not yet 
constitute an international legal norm.  In numerous 
interventions, States, such as Mexico, described universal 
jurisdiction as a "complementary mechanism of criminal 
justice to combat impunity and strengthen justice at the 
international level." 
 
¶8.  Regardless of the definition or scope, States advocated 
against the politicization of universal jurisdiction.  Only a 
handful of African States expressed the need for a mechanism 
to ensure its uniform application.  Many said that that the 
concept of universal jurisdiction is distinct from the 
jurisdiction of international courts or tribunals. 
 
¶9.  Several Member States (e.g. Swaziland, China, Sudan, 
Indonesia, Iran, and Russia) reminded the Sixth Committee 
members that the immunity of heads of State must be respected 
when applying universal jurisdiction.  Similarly, some 
African States reaffirmed the three African Union resolutions 
criticizing the abuse of universal jurisdiction. 
 
¶10.  Another point of contention in the debate centered on 
which forum should tackle universal jurisdiction.  Several 
countries (e.g. China, Guatemala, Slovakia, Finland, Mexico, 
and Burkina Faso) argued that the Sixth Committee was the 
proper venue while others (e.g. Costa Rica, Switzerland, 
Liechtenstein, and Peru) made the case for the ILC to review 
universal jurisdiction.  Some felt that the Secretary-General 
should generate a report on universal jurisdiction including 
examples of States' domestic law and practice. 
 
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NOTABLE INTERVENTIONS 
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¶11.  Austria acknowledged the confusion over the scope of 
universal jurisdiction.  It noted the wide spectrum of 
definitions of the term, from a breach of international law 
to an encroachment on sovereignty to an important tool to 
combat impunity.  Austria defined universal jurisdiction 
according to the definition of the Institut de Droit 
International in Krakow and offered the following seven 
guiding principles: 1) universal jurisdiction refers to 
criminal matters; 2) universal jurisdiction only relates to 
the competence of the state to assert jurisdiction, not 
international criminal courts or tribunals; 3) universal 
jurisdiction presupposes the absence of a link with the State 
asserting jurisdiction; 4) universal jurisdiction may either 
be based on treaty or customary international law; 5) it is 
important to distinguish the different forms of exercise of 
jurisdiction; 6) universal jurisdiction must be distinguished 
from questions of immunity; and 7) universal jurisdiction is 
different from the duty to extradite or prosecute. 
 
¶12.  Sudan disparaged universal jurisdiction saying it 
represented an erosion of States' commitment to the U.N. 
Charter.  In addition, Sudan complained about the selective 
use of universal jurisdiction, observing that States used 
double standards in its application.  Sudan warned that its 
abuse could threaten the political and economic development 
of African States.  According to Sudan, universal 
jurisdiction may only be exercised against slavery and 
piracy.  Sudan quoted Henry Kissinger's article entitled "The 
Pitfalls of Universal Jurisdiction," when urging extreme 
caution over its use. 
 
¶13.  The United States observed that the definition of 
universal jurisdiction remains "unsettled," and encouraged 
the exchange of information about the practice among Member 
States as the United States was interested in how other 
States defined the principle. 
 
¶14.  Finland differentiated between universal jurisdiction 
and the ICC.  It argued that universal jurisdiction falls 
under international customary law with regard to certain 
international crimes and that it is reflected in treaty law. 
Finland explained that while universal jurisdiction and the 
obligation to extradite or prosecute are two separate 
principles, they are closely related and recommended 
discussing this relationship with the ILC.  Finland closed by 
citing this year's case that charged a person residing in 
Finland with genocide under universal jurisdiction.  Both the 
Finnish Ministers of Foreign Affairs and Justice affirmed 
Finland's competence in this case and investigators have 
traveled outside of Finland to collect evidence. 
 
¶15.  Spain noted the long history of universal jurisdiction 
as a basis for prosecuting grave crimes and preventing 
impunity and the number of international instruments 
referencing universal jurisdiction (e.g. the Geneva 
Convention and Additional Protocols, the Torture Convention, 
 
 
and the Montreal Convention).  Spain described recent 
domestic legislative reforms intended to regularize the use 
of universal jurisdiction.  The new law provides that Spanish 
judges may investigate grave international crimes if they 
have not been prosecuted or investigated effectively 
elsewhere and the accused is present in Spain or there are 
Spanish victims.  Spain also emphasized the need to more 
precisely define and describe the modus operandi of universal 
jurisdiction and encouraged the consideration of the analysis 
and proposals of experts. 
 
¶16.  On November 12, the Sixth Committee recommended to the 
General Assembly the adoption of a brief resolution on 
universal jurisdiction.  The resolution (a) requests that the 
Secretary-General of the United Nations invite Member States 
to submit information and observations on the scope and 
application of the principle of universal jurisdiction; (b) 
requests that the Secretary-General prepare and submit a 
report based on such information and observations; (c) 
decides that the Sixth Committee shall continue its 
consideration of the issue without prejudice to the 
consideration of related issues in other UN forums; and (d) 
decides to include the issue on the agenda of next year's 
sixty-fifth session. 
Wolff