My Surreply to Ryan Goodman About Universal Jurisdiction

My Surreply to Ryan Goodman About Universal Jurisdiction

In my previous post, I questioned Ryan’s claim that Amnesty International’s totals concerning the number of states exercising universal jurisdiction over at least one international crime “may be significantly inflated.” I pointed out that, contrary to what he was asserting, the report did not count a state simply because it it had incorporated the Rome Statute into its domestic legislation; on the contrary, in every case it identified the specific legislative provision(s) that extended universal jurisdiction over one or more international crimes.

Ryan has replied to my post. Here is the core of his response:

Kevin agrees with one aspect of my argument. He writes, “As Ryan rightly points out, the Rome Statute is neither based on universal jurisdiction nor requires states that implement it to adopt universal jurisdiction.”

Kevin, however, disagrees with another aspect. But this disagreement is based on a misunderstanding of my argument. I accept responsibility as an author for any lack of clarity. Kevin writes, “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.”

Kevin thinks I disagree with that description. But I agree with it.

Ryan does not explain how I misunderstood his argument, and I fail to see how I did. If he does not believe Amnesty is overcounting states in its study by including those that merely incorporate the Rome Statute, what is the basis for his claim that Amnesty’s numbers are “significantly inflated”? After all, the title of his original post is “Counting Universal Jurisdiction States: What’s Wrong with Amnesty International’s Numbers.” And why did he write “Here’s what troubles me: Amnesty International appears to count states as having enacted universal jurisdiction… if the state has adopted a form of implementing legislation along with ratification of the treaty”?

Confused about what I got wrong, I asked Ryan on twitter whether he was withdrawing his claim that Amnesty’s universal-jurisdiction numbers are “significantly inflated.” He said he was not. So he still believes that at least some non-negligible number of states that Amnesty counts in its study do not, in fact, exercise universal jurisdiction over at least one international crime.

That is an empirical claim, and one that Ryan has not supported. He has yet to cite even one state that he believes Amnesty wrongly included in its study — much less enough states to justify his claim that Amnesty’s numbers are “significantly inflated.”

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International Criminal Law, International Human Rights Law, Organizations
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To avoid confusion, it might be useful to distinguish three possible situations: (1) having universal jurisdiction over crimes under CIL [all states do], (2) having legislation with a universal reach, and (3) “exercising” universal jurisdicitonal competencies.  Further, up to around 1826 U.S. courts exercised universal jurisdiciton over some int’l crimes without a statutory form of incorporation (i.e., using international law directly for criminal sanction purposes), although some of the defendants were U.S. nationals (therefore, also implicating nationality jurisdiction but proisectuing int’l crimes).
Additionally, art. 12 of the Rome Statute addresses certain circumstances, but I would not conclude that the ICC does not have a scintila of universal jurisdictional competence behind the delegation of competencies per treaty among the parties to the treaty.  it may be more complicated.