Another Round in the Amnesty-Goodman-Heller Debate over Universal Jurisdiction

by Kevin Jon Heller

At long last, Amnesty has weighed in on the debate between me and Ryan about its methodology for determining whether a state exercises universal jurisdiction over at least one international crime. As I expected, and contrary to Ryan’s claim, Amnesty does not consider it sufficient for a state to have incorporated the Rome Statute into its domestic legislation. On the contrary, it requires the existence of domestic legislation that extends universal jurisdiction over an international crime, whether specifically (“this legislation provides universal jurisdiction over international crime X”) or generically (“this legislation provides universal jurisdiciton over all international crimes defined in ratified treaties”). Here is the key statement from Amnesty’s response:

[T]he above mentioned conclusions are not based on counting “[s]tates 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”. That would be a mistake. For example: Chad, Gabon, Maldivas, Nauru, and Zambia – which are states party to the Rome Statute are enlisted in the report as not providing for universal jurisdiction for any of the crimes defined in the Rome Statute. And Ireland and Liechtenstein – which have ratified the Rome Statute and enacted legislation implementing it into national law — are also both considered as not providing for universal jurisdiction with regard to crimes against humanity and genocide. In sum, Amnesty International considers that the domestic law in these countries has the effect of conferring universal jurisdiction over crimes defined in, for example, the Rome Statute. Therefore Amnesty International are not basing the claim that such countries have universal jurisdiction on the fact of their ratification of the Rome Statute alone but rather on domestic legislation that enacts universal jurisdiction for all crimes in treaties (including for example the Rome Statute) that they have ratified.

Unfortunately, Ryan still insists that Amnesty is overcounting the number of universal jurisdiction states. Here is his response, in relevant part:

In other words, the problem with the coding procedure is that it appears to involve the following two steps:

Step 1: the proposition that the Rome Statute obligates state parties to enact universal jurisdiction for ICC crimes

Step 2: the decision to code a state as having enacted universal jurisdiction if it (a) is a party to the Rome Statute and (b) its domestic law provides for jurisdiction over crimes obligated by international treaty

As I explained in my original post, Step 1 is flawed. The Rome Statute does not include universal jurisdiction, and has no obligation whatsoever for state parties to provide (extraterritorial) jurisdiction for ICC crimes.

I suspect that the reason Amnesty sets forth the two steps as a part of its coding procedure is because it is meaningful – i.e., that it makes a difference in their results. It is difficult to discern, from the Annexes of the study, which particular states might be affected, because the relevant information is not provided.

There are a number of problems with this response. To begin with, there is no “Step 1″ in Amnesty’s analysis. Amnesty’s report does not claim “that the Rome Statute obligates state parties to enact universal jurisdiction for ICC crimes.” On the contrary, it simply says (p. 9) that “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)… do not contain an express obligation to exercise universal jurisdiction, although they may contain an implied obligation to do so.” That statement is incorrect, but the “may” is critical — it indicates (and the rest of the report demonstrates) that the statement is nothing but methodological dicta. Why would Amnesty consider a state to exercise universal jurisdiction on the basis of domestic legislation implementing the Rome Statute when they do not take a categorical position on whether the Rome Statute expressly requires universal jurisdiction? And more importantly, even if they took a categorical position concerning what the Rome Statute requires (which they don’t), why would they be so foolish to assume that states always comply with their treaty obligations? Why would they not look instead at the specific legislation adopted by states that have ratified and incorporated the Rome Statute?

In fact, that is exactly what they do. Ryan’s claim that “[i]t is difficult to discern, from the Annexes of the study, which particular states might be affected, because the relevant information is not provided” is simply false. With regard to each state, Amnesty’s report cites (1) the specific domestic legislation that defines war crimes, crimes against humanity, genocide, and torture, and (2) the specific provisions in the specific domestic legislation that extend (or fail to extend) universal jurisdiction over each of those international crimes. Here, for example, is Ireland (p. 75), which Amnesty cited in its response to Ryan:

Definitions of crimes under international law

War crimes: International Criminal Court Act 1998, s. 3 (grave breaches of the Geneva Conventions and Protocol I); International Criminal Court Act 2006, s. 7 (1) (other war crimes)
Crimes against humanity: International Criminal Court Act 2006, s. 7 (1)
Genocide: International Criminal Court Act 2006, s. 7 (1)
Torture: Torture Act 2000, ss. 2 and 3

Universal jurisdiction

War crimes: International Criminal Court Act 2006, s. 12
Crimes against humanity: International Criminal Court Act 2006 (no provision)
Genocide: International Criminal Court Act 2006 (no provision)
Torture: Torture Act 2000, ss. 2 and 3
Ordinary crimes: No provision found in Irish law

The Ireland entry makes clear that Amnesty does not count a state as exercising universal jurisdiction over international crimes simply because it incorporates the Rome Statute into its domestic law. Ireland is a member of the ICC. Ireland has incorporated the Rome Statute into its domestic law. Yet, as Amnesty correctly notes by citing Section 12 of the International Criminal Court Act 2006, Ireland exercises universal jurisdiction over only one of the three international crimes in the Rome Statute: war crimes.

Ryan’s Step 2 also fails to accurately represent Amnesty’s report. Ryan’s argument — which I believe is the crux of his disagreement with Amnesty — seems to be this: (1) some states provide universal jurisdiction only over international crimes for which a ratified treaty requires them to adopt universal jurisdiction; (2) the Rome Statute does not, contrary to Amnesty’s claim, actually require states to adopt universal jurisdiction over war crimes, crimes against humanity, and genocide; (3) Amnesty’s universal-jurisdiction numbers are thus inflated, because it counts states who have ratified the Rome Statute and adopted universal-jurisdiction legislation in the form of (1).

The problem is that (1) and (3) are both incorrect. States that have general universal jurisdiction provisions — provisions that extend universal jurisdiction over any international crime in a ratified treaty — do not require the treaty in question to obligate the state to exercise universal jurisdiction over a particular international crime. Their legislation simply asks whether the state has ratified a treaty that defines an international crime. No obligation to exercise universal jurisdiction is necessary.

Here is an example: Art. 7 of the Costa Rican Penal Code 2003 not only specifically provides universal jurisdiction over a number of crimes (such as piracy and terrorist financing), it also generically provides universal jurisdiction over officials “who commit other punishable acts against the human rights and international humanitarian law, provided for in the treaties signed by Costa Rica or in this code.” Art. 7 thus requires nothing more than a ratified treaty that defines a crime; it does not require the treaty to obligate Costa Rica to adopt universal jurisdiction over the defined crime.

Art. 689-11 of the French Code of Criminal Procedure functions similarly. It provides, in relevant part, that French courts have universal jurisdiction over “any person who normally resides on the territory of the Republic and who has been guilty abroad of one of the crimes within the jurisdiction of the International Criminal Court in application of the convention defining the Statute of the International Criminal Court signed in Rome on 18 July 1998.” Again, all that matters is that France has ratified the Rome Statute and that the Rome Statute defines specific crimes; whether the Rome Statute requires universal jurisdiction over those crimes is inconsequential.

Finally, consider Art. 11(3) of the Moldovan Criminal Code:

If not convicted in a foreign state, foreign citizens and stateless persons without permanent domiciles in the territory of the Republic of Moldova who commit crimes outside the territory of the Republic of Moldova shall be criminally liable under this Code and shall be subject to criminal liability in the territory of the Republic of Moldova provided that the crimes committed are adverse to the interests of the Republic of Moldova or to the peace and security of humanity, or constitute war crimes including crimes set forth in the international treaties to which the Republic of Moldova is a party.

Moldova’s universal-jurisdiction provision simply requires a ratified treaty defining a crime; it does not require a treaty obligation to exercise universal jurisdiction over that crime. Indeed, the Moldova entry indicates just how methodologically conservative Amnesty has been in the report: it does not include Moldova in the list of states that can exercise universal jurisdiction over crimes against humanity because they are not specifically mentioned in Art. 11(3), even though one could argue that they are “adverse… to the peace and security of humanity,” as they are specifically deemed by the Rome Statute, which Moldova has ratified.

Amnesty’s report specifically cites all of these provisions. And that is not surprising, because the report is a model of careful analysis, regardless of its sloppy and unnecessary statement about the Rome Statute possibly obligating states to exercise universal jurisdiction over international crimes. Most importantly, all of its work can easily be fact-checked — because, again, the report cites all of the relevant domestic legislation in its state-by-state analysis.

You would think that, having written about the report on four separate occasions, Ryan would have successfully identified at least one state that Amnesty wrongly includes in its list of universal-jurisdiction states. That he has not speaks volumes.

NOTE: In fairness, on twitter, Ryan mentioned Moldova as an example of a state that Amnesty has wrongly counted. I have amended the post to discuss the relevant provision, which does not in fact support Ryan’s argument, and inserted “successfully” in the previous paragraph.

http://opiniojuris.org/2013/12/26/amnesty-responds-ryan-goodman-re-universal-jurisdiction/

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