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UN and other Int’l Organizations

OTP Asks for Perisic Reconsideration — On the Basis of Nothing

by Kevin Jon Heller

Fresh from its victory in Sainovic, the ICTY Office of the Prosecutor (OTP) has now asked the Appeals Chamber to reconsider its final judgment in Perisic on the ground that it would be unjust to permit Perisic to remain acquitted. As the legal basis for such reconsideration 11 months after final judgment, the OTP cites…

Precisely nothing.

Which is not surprising, because nothing in the ICTY Statute actually permits such reconsideration. The only provision that deals with reconsideration of Appeals Chamber judgments is Art. 26, which is limited to the discovery of new facts:

Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Tribunal an application for review of the judgement.

Even more problematic for the OTP, the Appeals Chamber specifically rejected reconsideration of final appeals judgments in Zigic, noting that the victims and the accused “are both entitled to certainty and finality of legal judgments.”

Lacking any legal basis for its request, the OTP does what it always does — invite the Appeals Chamber to engage in what Darryl Robinson has called “victim-centered reasoning” and reconsider Perisic anyway. In the OTP’s words, because Perisic was wrongly decided (according to one iteration of the Appeals Chamber), “the interests of justice for the tens of thousands of victims, substantially outweighs Perisic’s interest in finality of proceedings. Justice must be restored to the victims. Reconsideration is the only way to this end.” Put more simply: forget that inconvenient principle of legality. The demands of justice trump the text of the ICTY Statute.

It’s also worth noting a profound irony at the heart of the OTP’s request. It acknowledges Zigic is against it — so it argues that the Appeals Chamber should disregard Zigic in favour of its earlier decision in Celebici, which held, in another classic example of ignoring the text of the ICTY Statute in favor of its supposed “object and purpose” of combating impunity, that the Appeals Chamber’s “inherent jurisdiction” (of course) empowers it to reconsider any decision, no matter when decided, that “has led to an injustice.” In other words, the OTP is asking the Appeals Chamber to ignore a new decision (Zigic) that rejected an old decision (Celebici) in order to apply a new decision (Sainovic) that rejected an old decision (Perisic). Remarkable.

I would like to predict that the Appeals Chamber will consign this motion to the dustbin where it belongs. But who knows? As Marko Milanovic has pointed out, precedent no longer has much meaning for the Appeals Chamber. The outcome of an appeal now largely turns on which judges are randomly assigned to the panel.

I will be speaking soon on Perisic and Sainovic at a conference on the legacy of the ICTY. With each motion like this one, that legacy becomes a bit more tarnished.

UPDATE: Dov Jacobs adds some important points at Spreading the Jam.

Talk About the Imperial Presidency!

by Kevin Jon Heller

President Obama has issued the following memorandum concerning US participation in the UN’s Mali stabilisation mission:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and consistent with section 2005 of the American Servicemembers’ Protection Act of 2002 (22 U.S.C. 7424), concerning the participation of members of the Armed Forces of the United States in certain United Nations peacekeeping and peace enforcement operations, I hereby certify that members of the U.S. Armed Forces participating in the United Nations Multidimensional Integrated Stabilization Mission in Mali are without risk of criminal prosecution or other assertion of jurisdiction by the International Criminal Court (ICC) because the Republic of Mali has entered into an agreement in accordance with Article 98 of the Rome Statute preventing the ICC from proceeding against members of the Armed Forces of the United States present in that country.

This is, of course, completely wrong. At most, the Article 98 agreement between the US and Mali would prohibit the ICC from asking Mali to surrender a US soldier wanted for war crimes. It would not in any way prohibit the Court from prosecuting a US soldier it managed to get its hands on without Mali’s help. (Or even if Mali decided its obligation under the Rome Statute took precedence over its Article 98 agreement with the US and handed a US soldier over despite the agreement.)

I realize Obama is a communist/marxist/fascist/socialist dictator, but he has not yet been crowned King of the ICC. Until he has, the Rome Statute remains more important than his presidential memoranda.

Guest Post: Ghodoosi–Comprehensive Solution to an Agreement: How the New Iran Deal Is Framed Under Iranian Law?

by Farshad Ghodoosi

[Farshad Ghodoosi is a JSD candidate at Yale Law School.]

In continuation of the discussion about the New Iranian Deal started by Duncan Hollis, I decided to take a stab at clarifying the Iranian side of the story.  The new deal, the so-called Geneva Agreement (24 Nov. 2013) and the ensuing implementation agreement (that took effect on Jan 20th, 2014), between Iran and the 5 plus 1 group seems to be more than a joint plan of action. Practically, it attenuates some of the bites of the previous Security Council Resolutions on the Iran Nuclear Program and will create tit-for-tat commitments on both sides. Whether the agreements reached thus far create binding obligations under international law is beyond the scope of this piece and requires further details on the recent –yet unpublished – implementation agreement. However, the drafters of the agreement of Nov. 24th deftly avoided the term “agreement” and instead employed the term “comprehensive solution”.

This choice of term might have been to avoid the formalities of treaty law internationally but also domestically vis-à-vis Iran.  Naming might make a difference under Iranian Law. Generally speaking, the Iranian Constitution seeds skepticism towards international agreements and contracts in the present Iranian legal system. Article 77 declares, “international protocols, treaties, contracts and agreements should be ratified by the Islamic Consultative Assembly (Majlis)”. The Article is very broad and all encompassing. Those hardliners unhappy about the deal in Iran’s parliament are pressing on implementing this article, stating that the agreement needs to be ratified domestically, otherwise it is void of effects. On the other hand, supporters in parliament categorize it as a “preliminary agreement” not requiring parliament approval.

I believe a preliminary agreement is still an agreement and is subject to Article 77 of the Iranian Constitution. If I were in the shoes of the supporters of the deal in the Parliament, I would emphasize the word “comprehensive solution” as it is reflected in the text. The term “comprehensive solution” is not listed in the Article 77 of the Iranian Constitution and therefore would arguably not need parliament approval.

Another hurdle for international agreements is Article 125 of the Iranian Constitution. This Article stipulates that “signing international treaties, protocols, agreements and contracts of the Iranian states with other states and also signing conventions pertaining to international organizations, subsequent to Islamic Consultative Assembly approval, is vested in the President or his legal representative.” The Council of Guardians, the body responsible for interpreting the Constitution, restricts this Article to instances where the international instrument contains “an obligation” or “a contract” (decision March 13, 1983). It handed down its decision in a situation where “a letter of intent” for cooperation was signed between Iran and India while there were doubts whether parliament had to approve it.

Despite the language in the Iranian Constitution, I believe, it is not certain that Articles 77 and 125 make the Iranian legal system a dualist system. In dualist systems, international instruments are devoid of any status in domestic law until ratified through the legislative process. I posit that the matter should be clear in the language of the Constitution. Under Article 77, however, the sanction for non-compliance with the provision is unclear. It does not mention whether non-compliance renders the international agreements ineffectual, or makes them of lower status (similar to regulations) in relation to other domestic laws. Alternatively, it could be simply a ground for impeachment or question from the President. Article 125 also seems only to vest the signing authority on the President to render the international instruments official, and not necessarily dictate their binding nature.  It might sound like a long shot, but I believe, notwithstanding the requirement of parliamentary approval, international agreements could still be invoked and enforced in Iranian domestic law—at least as a contractual agreement between parties. This interpretation makes international agreements and contracts with Iran, most of which are not ratified by parliament, valid and effective under Iranian Law.

I would like to end this post with a separate comment — the absence of any dispute resolution mechanism in the deal. It is indeed not a very smart idea to omit any form of dispute resolution mechanisms. Considering the lack of trust and the history of contention between both sides (especially Iran and the US), any minor disagreement might lead to dismantling the entire agreement and the new rapprochement (as was apparently close to happening in the implementation the Joint Action Plan). There are several potential reasons parties avoided incorporating any dispute resolution mechanism. First and foremost, they probably disliked the idea of handing over such a highly political matter to a judicial body of any sort. Another potential reason was to avoid making the agreement seem like a treaty subject to international law or otherwise a binding instrument. Nonetheless, I believe disagreements over implementing the agreement could have been vested to an arbitral body or a mediation panel at least in an advisory capacity.

Trial Chamber Conditionally Excuses Ruto from Continuous Presence

by Kevin Jon Heller

The decision was given orally, and no written decision is available yet. But here is what The Standard‘s online platform is reporting:

The International Criminal Court has conditionally excused Deputy President William Ruto from continuos presence at trial but with some conditions.

The judges outlined nine conditions during the Wednesday ruling. ICC Presiding Judge Eboe-Osuji in the oral ruling said: “The Chamber hereby conditionally excuses Mr Ruto from continuous presence at trial on the following conditions: As indicated in the new rule 134, a waiver must be filed. That’s one condition. The further conditions are these: in the case, two, when victims present their views and concerns in person, three, the entirety of the delivery of the judgement in the  case, four, the entirety of the sentencing hearing, if  applicable, five, the entirety of the sentencing, if applicable, six, the entirety of the victim impact hearings, if applicable, seven, the entirety of the reparation hearings, if applicable, seven, the first five days of  hearing starting after a judicial recess as set out in regulation 19 B I S of the regulations of the Court, and nine, any other attendance directed by the Chamber either/or other request of a party or participant as decided by the Chamber. The Chamber considers that the attendance of Mr Ruto pursuant to the requirement indicated in condition number  eight, being attendance and first five days of hearing  starting after a judicial recess, will require him to be present for today’s hearing and the next — sorry — starting  tomorrow and the next five days. However, in view of the need for Mr Ruto to deputise for the president of the Republic of Kenya during his absence from the country from the 16 of January 2014, Mr Ruto is excused from presence at  trial on the 16th and the 17th of January 2014. Mr Ruto shall, however, be present for the remainder of  the period indicated under condition number eight”.

Kenya shouldn’t get too excited about the Trial Chamber’s ruling. Remember: the Appeals Chamber reversed the Trial Chamber’s previous decision concerning Ruto’s presence and articulated a very different, and much narrower, interpretation of Art. 63(1) of the Rome Statute. The OTP was never going to win at the trial level; the Appeals Chamber is much more likely to take seriously the differences between Rule 134quater and the multi-part test it previously articulated and to consider whether the Rule is ultra vires.

We shall see.

NOTE: For more on the ruling, please see Alexander’s comment to my previous post. He raises the spectre — skeptically, to be sure — of the Trial Chamber refusing to grant leave to appeal. I agree that’s unlikely, but even the possibility foregrounds the irrationality of permitting a Trial Chamber to decide whether a party can appeal the Trial Chamber’s own adverse decision. Trial Chambers have routinely abused that power, particularly in the context of the legal recharacterization of facts under Regulation 55. I discuss a number of such instances in this essay.

No, the ASP Didn’t Hoodwink Kenya and the AU Concerning RPE 134quater

by Kevin Jon Heller

Standard Digital News, the online platform of The Standard, one of Kenya’s leading newspapers, published a long article yesterday entitled “Did State Parties Hoodwink Kenya, African Union on ICC Attendence?” Here are the opening paragraphs:

KENYA: Did the Rome Statute Assembly of State Parties hoodwink Kenya that the country’s chief executives would be excused from physical presence at their trials? This is the legal question some experts are raising after International Criminal Court Prosecutor Fatou Bensouda unveiled a shocker that Deputy President William Ruto must still show up at the ICC and face his accusers in the courtroom.

The Gambian-born prosecutor maintained that Ruto should not be tried in absentia despite recent amendments by the Assembly of State Parties (ASP) that were lauded by African Union as a major diplomatic victory for Kenya’s indicted leaders.

“The state parties amended the rules out of political pressure but in the end totally hoodwinked Kenya by handing over the discretion to the judges to decide only in exceptional circumstances,” said James Aggrey Mwamu, President of East Africa Law Society.

There is a grain of truth to this complaint: with its obsequious desire to placate Kenya, the ASP certainly didn’t go out of its way to highlight the fact that amending the Rules of Procedure and Evidence (RPE) instead of the Rome Statute left the new rules on presence subject to judicial review. That said, it’s not like the difference between amending the Rome Statute and amending the RPE is some kind of secret; after all, Art. 51(4) of the Rome Statue explicitly provides that “[t]he Rules of Procedure and Evidence, amendments thereto, and any provisional Rule shall be consistent with this Statute,” while Art. 51(5) provides that “[i]n the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.” Presumably, Kenya and the AU have lawyers capable of reading the Rome Statute — so if they believed that the OTP simply had to accept the new rules, they really have no one but themselves to blame.

And, of course, the OTP is challenging Rule 134quater. The motion is here – and it’s one of the best motions to come out of the OTP in quite some time. Two aspects are particularly worth mentioning…

Is the New Iranian Nuclear Deal a Secret Treaty?

by Duncan Hollis

Well, it’s not exactly a secret treaty in the sense that yesterday, the news wires were abuzz about the fact that the United States, Iran and five other world powers concluded an agreement to implement Iran’s earlier November deal on its nuclear program.  But, what’s being held back is the actual text of the deal.  There’s not many details (the only story I found on this was here). Still, at this point it’s not clear whether or not yesterday’s implementing agreement is actually a treaty or just another political commitment like the deal last November?  Assuming it is legally binding, it’s also unclear as to why the text is not being released?  Is this just a temporary delay pending a good scrub by treaty lawyers of the final text and any language/translation issues?  Or, is it that some of the implementation agreements’ contents are being treated as classified by one or more of the participants/parties such that they have no intention of ever releasing the text?

Now, as I’ve written in the past, there’s a tendency among students of international relations to assume that secret treaties died with Woodrow Wilson’s fourteen points of light speech and its admonition for “open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind.”  That view was codified, first in Article 18 of the Treaty of Versailles, and later (in a looser form) in Article 102 of the U.N. Charter (requiring Member States to register and allow to be published ”[e]very treaty and every international agreement” they make with the understanding that unregistered treaties may not be invoked before any organ of the United Nations).  But, as far as international law is concerned, reports of the extinction of secret treaties appear exaggerated.  As D.N. Hutchinson noted here back in 1993, Article 102 is most often honored in the breach, and has little relevance today to determining the legal status of an agreement (the ICJ appears to agree given its holdings in the jurisdictional phase of Qatar v. Bahrain).  Thus, I’m not terribly surprised by the idea that the text of the deal may be secret even if its existence is not (particularly given the ‘nuclear’ subject-matter).  Moreover, I don’t think the fact that Iran and these other States concluded it without making the text publicly available will deny it the status of a treaty under international law.

A more important question may be, given the reality of some significant Congressional hostility to the deal, whether keeping its text secret will prove problematic under U.S. law or the domestic law of any of the other State participants?  I can’t speak to the domestic law of other States, but on the U.S. front, I have my doubts. There are obvious questions as to what legal authority the United States has to conclude this implementation agreement (i.e. is it a sole executive agreement, or does the Obama Administration view some existing legislative authority as sufficient to treat it as a congressional-executive agreement?).  Assuming legal authority to conclude an implementation agreement, however, there is statutory authority for it to be done in secret provided the Executive Branch follows the appropriate procedures under the 1972 Case-Zablocki Act:

The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing), other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President. Any department or agency of the United States Government which enters into any international agreement on behalf of the United States shall transmit to the Department of State the text of such agreement not later than twenty days after such agreement has been signed. (emphasis added)

Simply put, U.S. law accepts and regulates secret treaties and other international agreements. Thus, I don’t think the fact of its secrecy will sway proponents (or opponents) of this deal one way or another.  Even so, I’m curious to know more about the Iranian implementation agreement.  Is it intended to be legally binding or a political commitment?  And, if it’s a treaty, what’s the Executive Branch view as to the legal authority to conclude it short of getting new legislation or going to the Senate under Article II of the Constitution?  I’d welcome comments from readers who know more details here than I do.

Hat Tip:  Orde Kittrie

Why the U.S. State Department Deserves an “F” on their Handling of the Indian Consul Flap

by Julian Ku

It looks like the U.S. and India have worked out a sort-of deal to end the battle over visa-fraud charges brought against India’s deputy consul-general in New York Devyani Khobragade.  Yesterday, a U.S. grand jury indicted Khobragade on the visa-fraud charges, and shortly thereafter, Khobragade was allowed to leave the U.S. for India.  India is now retaliating by demanding the U.S. withdraw a U.S. diplomat from India.

From a purely legal perspective, this is a smart move by the U.S. since even if it had continued with the prosecution, Khobragade would be able to raise a variety of defenses based on her possible status as a diplomat accredited at India’s UN Mission at the time of her arrest, or at least her status at the Mission now.  I think those defenses are decent (though hardly slam-dunk) and, if rejected, would further inflame India as well as create unwelcome precedents for US consuls and diplomats abroad.

Of course, from a diplomatic perspective, it seems clear to me that this prosecution should never have been brought, or at least there should never have been an “arrest” (much less the strip-search).  Why couldn’t the U.S. have indicted her without arresting her, or even just demanded her withdrawal without indicting her?  That is effectively what has happened anyway, except that we also get a crisis in US-India relations like we haven’t had in decades.

I’m putting the blame here almost completely on the U.S. State Department. They (supposedly) had notice that this arrest was going to happen, and they did not take steps to head off a pretty serious diplomatic incident.  Dealing with foreign diplomats is at the heart of what they do.  And they couldn’t have predicted what happened here?  C’mon Secretary Kerry, hold someone responsible!

I’ve just finished my grades from last semester (yes I know, I’m late!).  But I have no problem giving the U.S. State Department an “F” here.

Two Thoughts on Manuel Ventura’s Critique of Specific Direction

by Kevin Jon Heller

Manuel Ventura, the director of the Peace and Justice Initiative, has published two excellent posts at Spreading the Jam (here and here) that criticize the specific-direction requirement — and my defence of it. I cannot possibly address all of the points that Manuel makes, but I do want to respond to his understanding of the role that customary international law plays at the ICTY and his defence of the Special Tribunal for Lebanon’s (STL) analysis of the general definition of terrorism under customary international law.

Custom at the ICTY

As Manuel notes, the Special Court for Sierra Leone (SCSL) rejected Perisic‘s specific-direction requirement because it concluded that the requirement lacked an adequate foundation in customary international law. I criticized the SCSL’s position in a recent post, pointing out that the ICTY did not need to find a customary foundation for the specific-direction requirement:

Ad hoc tribunals are limited to applying customary international law because of the nullem crimen sine lege principle: relying on non-customary principles to convict a defendant would convict a defendant of acts that were not criminal at the time they were committed. The specific-direction requirement, however does not expand criminal liability beyond custom; it narrows it. There is thus no reason why the requirement has to have a customary foundation.

Manuel takes issue with my argument in an interesting way — by insisting that the ICTY can only apply legal principles that have a customary foundation, because customary international law is the only source of law that the Tribunal is empowered to apply:

But, says Kevin Jon Heller here and here, this is all irrelevant, as specific direction need not have a customary law basis since it only serves to narrow criminal responsibility rather than expand it. In his view only in the latter is nullum crimen engaged – the reason why the ICTY was mandated to apply customary international law. However, this view misses an important and very basic point. As he acknowledges, the mandate of the ICTY is to apply custom, and while it is true that nullum crimen is not engaged when criminal liability is contracted rather than expanded, it is also true that in not applying custom the ICTY is not applying the law it was specifically mandated and empowered by the UN Security Council to apply. If specific direction is not custom, then it is still applying something, but it cannot be called customary international law. In other words, it went beyond applying its governing law, and into a realm that is was not expressly empowered to go. In short, if specific direction is not customary, then it acted ultra vires and that is as problematic as a nullum crimen violation. It is not simply a bad policy decision that only engages ‘criminal law theory’.

There are two basic problems with Manuel’s argument. First, it is based on a misunderstanding of the ICTY’s mandate. Manuel claims that the Tribunal is empowered to apply one source of law and only one source of law: custom. But the Secretary-General’s report on SC Res. 808 does not say that. Here is the relevant paragraph about custom (para. 34)…

Why the Muslim Brotherhood (Wrongly) Believes the ICC Can Investigate

by Kevin Jon Heller

Gidon Shaviv called it. The Muslim Brotherhood does indeed believe that it can accept the ICC’s jurisdiction on an ad hoc basis because it is still the legitimate government of Egypt:

Just how successful the ICC action will be is unclear. Egypt is one of the few countries that have not accepted the ICC’s jurisdiction. However, Mr. Dixon and other members of the legal team said the court can act if it receives a declaration from the government accepting the court’s jurisdiction in a particular case. They argued that Mr. Morsi’s government is the still only legitimate ruler in Egypt and it has issued that declaration to the ICC.

“We hope, and we have good reason to believe, that the court will take this declaration seriously,” said John Dugard, a human rights lawyer from South Africa who is involved with the case and who has also worked with the United Nations.

With respect to Dugard, I think the Brotherhood’s efforts are doomed to fail. Had the Morsi government filed its declaration while it was still in power (as in the Cote d’Ivoire situation), that would have been one thing. But it didn’t — and although there are interesting political questions about the legitimacy of the military-led coup/revolution, I don’t think there is much question that the Brotherhood is no longer the government of Egypt. A number of states have condemned the Egyptian military’s actions (see Wikipedia here for a nice rundown pro and con), but none to my knowledge have refused to recognize the Mansour government. And just as importantly, representatives of the Mansour government have continued to represent Egypt at the UN.

Readers who know more about the recognition of governments after coups/revolutions should feel free to weigh in. But even if I’ve understated the legal strength of the Brotherhood’s position, I still find it inconceivable that the OTP will conclude that it has jurisdiction over the situation in Egypt. At the very least, the OTP will likely do what it did with Palestine’s ad hoc declaration — say that the issue is for the Assembly of States Parties, not the Office of the Prosecutor, to resolve.

Good Luck with the ICC, Muslim Brotherhood (Updated)

by Kevin Jon Heller

So this is baffling:

The international legal team representing the Muslim Brotherhood has filed a complaint to the International Criminal Court, reported state-owned media agency MENA.

The team has previously said on 16 August and on 15 November that, following their investigations, they have gathered evidence showing that members of the “military, police and political members of the military regime have committed crimes against humanity”.

[snip]

The Brotherhood’s legal team includes former Director of Public Prosecutions of England and Wales Lord Ken MacDonald, South African International Lawyer and former UN Human Rights Special Rapporteur Professor John Dugard and human rights specialist Michael Mansfield.

A press conference will be held in London on Monday to detail further information concerning the complaint.

I hope the press conference will explain how the ICC has jurisdiction over the situation, given that Egypt has not ratified the Rome Statute. Doesn’t the Brotherhood’s capable legal team know that?

UPDATE: Gidon Shaviv suggests on Twitter that perhaps the Brotherhood will argue that it can accept the ICC’s jurisdiction on an ad hoc basis, because it remains the legitimate government of Egypt. That’s clever, but I would be shocked if the OTP would be willing to wade into that particular political thicket. If it refused to accept Palestine’s ad hoc acceptance, which I think would have been legally more straightforward (Shaviv disagrees), I think there is no chance it would accept the Brotherhood’s.

Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…

by Chris Borgen

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)

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…