Is Amnesty Overcounting the Number of Universal Jurisdiction States?

Not long ago, Amnesty International released an updated version of its massive study “Universal Jursidiction: A Preliminary Survey of Legislation Around the World.” The report concluded, inter alia, that 86% of the world’s states exercise universal jurisdiction over at least one kind of international crime. (Most commonly, war crimes.)

In a post today at Just Security, my friend and regular sparring partner Ryan Goodman suggests that Amnesty’s number “may be significantly inflated” (emphasis added):

Here’s what troubles me: Amnesty International appears to count states as having enacted universal jurisdiction if the state is a party to the Rome Statute for the International Criminal Court or, more precisely, if the state has adopted a form of implementing legislation along with ratification of the treaty. Amnesty makes that decision on the stated assumption that the Rome Statute implicitly requires member states to adopt universal jurisdiction corresponding to its core crimes.

As Ryan rightly points out, the Rome Statute is neither based on universal jurisdiction nor requires states that implement it to adopt universal jurisdiction. That said, I do not believe Amnesty is doing what Ryan says it is — considering a state to have universal jurisdiction over a crime simply because it has incorporate the Rome Statute into its domestic legislation. In defense of that claim, Ryan cites a paragraph from the study’s methodology section (p. 9):

Crimes defined in national law, with reference to treaties.

In some instances, the state has defined a crime under international law, such as genocide, as a crime in national law and provided that its courts have jurisdiction over crimes in treaties it has ratified (some provisions do not specify that the treaty has to have been ratified). In those instances, the state would have jurisdiction not only over crimes in aut dedere aut judicare treaties, but treaties like the Convention for the Prevention and Punishment of the Crime of Genocide (Genocide Convention) and the Rome Statute of the International Criminal Court (Rome Statute) that do not contain an express obligation to exercise universal jurisdiction, although they may contain an implied obligation to do so. Annex I indicates that the state has jurisdiction over the relevant crime (YES).

This paragraph is not a picture of clarity, but Amnesty does not seem to be suggesting that implementing the Rome Statute simpliciter is enough to consider a state to have universal jurisdiction over the international crimes therein. What the paragraph says, I think, is that some states adopt universal jurisdiction legislation that does not specifically mention international crimes (e.g., State X shall have universal jurisdiction over genocide), but instead applies universal jurisdiction to any crime defined in a treaty ratified by that state — a much broader formulation.

More importantly, the report’s country-by-country analysis (Annex II) does not indicate that Amnesty counts a state as a universal jurisdiction state simply because it has incorporated the Rome Statute into its domestic legislation. On the contrary, the report always paraphrases the specific language in domestic legislation that supports the existence of universal jurisdiction. Consider three states — France, Kenya, and South Africa — all of which have incorporated the Rome Statute:

France

– art. 689-11 (anyone may be prosecuted by French courts who habitually resides on French territory and is responsible for one of the crimes within the jurisdiction of the International Criminal Court – genocide, crimes against humanity and war crimes – committed abroad, if the acts are punishable in the state where committed or if that state or the state of the person’s nationality is a party to the Rome Statute, provided that the prosecution was requested by the relevant minister, and that this official has verified that the International Criminal Court has expressly declined jurisdiction and that no international criminal court has requested surrender and no state has requested extradition)

Kenya

– International Crimes Act 2008, s. 8 (war crimes in International Crimes Act, s. 6 if the person is, after commission of the offence, present in Kenya) Crimes against humanity: International Crimes Act 2008, s. 8 (crimes against humanity in International Crimes Act 2008, s. 6 if the person is, after commission of the offence, present in Kenya) Genocide: International Crimes Act 2008, s. 8 (genocide in International Crimes Act 1959, s. 6 if the person is, after commission of the offence, present in Kenya)

South Africa

War crimes: ICC Act 2002, ss. 4 and 5 (provided that the person, after the commission of the crime, is present in the territory of the Republic and that the National Director authorises the prosecution) Crimes against humanity: ICC Act 2002, ss. 4 and 5 (see war crimes) Genocide: ICC Act 2002, ss. 4 and 5 (see war crimes)

If there are any Amnesty readers out there, please feel free to settle the dispute!