Legality Challenge:Repeal "On Universal Jurisdiction"

[Aclion]

Rules broken: Honest Mistake, which as a reminder, covers "factual inaccuracies, misrepresentation, and content that doesn't address the resolution."

Repeal "On Universal Jurisdiction claims that "victims of war crimes and other crimes against humanity are unlikely to receive justice, as (i) even when prosecutions occur, they will likely be in friendly jurisdictions, meaning that they will be slaps on the wrist and (ii) section 3(b) prohibits a second trial, even when punishment is minimal to nonexistent,"

However section 3(b) of On Universal Jurisdiction only applies to defendants if they had already received a fair trial. A trial in which the defendant was never at risk of facing justice in the first place, as described in (i) can hardly be described as fair. The claim that 3(b) prohibits retrial in this instance is therefore false, and by extension the claim that the resolution presents a barrier in victims seek justice is also false.

To paraphrase some ruling I can't be bothered to look up "double jeopardy requires that the defendant must have been in jeopardy in the first place."

Recognizing the moral depravity of war crimes and crimes against humanity,

Believing that such crimes are so heinous that the international community bears a collective responsibility to bring those who are guilty of such crimes to justice,

Concerned, however, about the potential lack of accountability and abuses of power associated with granting criminal jurisdiction to an international court,

Convinced, therefore, that the best means to fulfill this responsibility is to grant individual World Assembly member states the right and obligation to prosecute such individuals,

The General Assembly,

Defines "universal jurisdiction" as the right to claim criminal jurisdiction for a crime allegedly committed by an individual, regardless of where or when the crime was allegedly committed, or the citizenship, nationality, or country of residence of that individual;

Declares that all World Assembly member states have the right to claim universal jurisdiction with respect to any act that constitutes a "crime against humanity" or a "war crime" under World Assembly legislation, or for which universal jurisdiction is implicitly or explicitly recognized under World Assembly legislation;

Requires member states to safely and fairly prosecute individuals suspected of committing an act listed in section 2 in cases where:

the individual is within the territorial jurisdiction of that member state,

the individual has not already been given a fair trial for that crime by another state, and

there is evidence which would lead a reasonably intelligent but cautious person to believe that the individual is guilty of that crime;

Directs member states to ensure that the severity of the sentence assigned to an individual following a conviction of a crime listed in section 2 of this resolution is consistent with the severity of their crime;

Strongly encourages member states to volunteer any evidence relevant to the prosecution of an individual for a crime listed in section 2 of this resolution;

Permits member states to transfer an individual subject to prosecution under section 3 of this resolution to the jurisdiction of another member state that is able and willing to safely and fairly prosecute that individual for the same alleged crime or crimes;

Forbids the World Assembly from preempting a member state's claim to universal jurisdiction under this resolution, including but not limited to through an international criminal court or a substantially similar institution, to the extent permitted by this and previous World Assembly resolutions;

Clarifies that nothing in this resolution grants member states the right to claim universal jurisdiction over individuals that are not currently within the member state's territorial jurisdiction;

Further clarifies that nothing in this resolution precludes the World Assembly from passing further legislation on criminal jurisdiction, international police or judicial cooperation, or extradition.

General Assembly Resolution #312 “On Universal Jurisdiction” (Category: International Security; Strength: Significant) shall be struck out and rendered null and void.

This august World Assembly,

Concerned that the target resolution requires nations to prosecute in section 3, but that the target does not also require that nations provide prosecutors with information they may have, meaning that the target sets up a prosecutorial scheme where nations may be prosecuting persons without a full accounting of the facts,

Observing that section 7 of the target resolution “[f]orbids the World Assembly from preempting a member state’s claim to universal jurisdiction under this resolution, including but not limited to through an international criminal court or a substantially similar institution”,

Seeing that it is patently obvious that this section prohibits the Assembly from establish an international court,

Believing that a lack of such a court means:

there are few prosecutions of war criminals and perpetrators of genocide, since (i) prosecutorial discretion exists from differing interpretations of section 3(c) and (ii) such criminals and perpetrators would not willingly move themselves to jurisdictions which would prosecute them and

victims of war crimes and other crimes against humanity are unlikely to receive justice, as (i) even when prosecutions occur, they will likely be in friendly jurisdictions, meaning that they will be slaps on the wrist and (ii) section 3(b) prohibits a second trial, even when punishment is minimal to nonexistent,

Expressing its malcontent at this state of affairs, where criminality of the worst degree is not punished, where the international rules-based order is unable to deter would-be tyrants from engaging in mass murder or other heinous crimes,

Saddened at the deaths caused by the Assembly’s inability to act and the incredible injustices that the Assembly is unable to take action to right, and

Calling for the creation of an international criminal court to resolve these issues, hereby:

Repeals GA 312 “On Universal Jurisdiction”.

You make now begin complaining about my tardiness in submitting this challenge in order to avoid discussing the merits of the challenge itself. In my defense it is late as I had once again made the mistake of having faith in this body and assumed it would be marked as illegal before it went to vote.

[Auralia]

This challenge is similar to, though not quite the same as, the point I raised in the At Vote thread.

Aclion here argues that 3(b) does not prohibit retrial if the prosecution was a sham. I would argue that 3(b) does not prohibit retrial under any circumstance, because 3(b) is just an exception to a requirement and not a prohibition in its own right. OUJ does not contain any double jeopardy protections; it merely does not force member states to violate double jeopardy prohibitions where they exist.

To be clear, this still means that the resolution at vote is factually inaccurate; there is no sense in which the resolution's claim that "section 3(b) prohibits a second trial" is true.

[Separatist Peoples]

I didn't see this when I told Auralia to file a challenge.

I posted in the thread that I don't read it that expansively. We give repeal arguments a really broad presumption. So long as there is a colorable argument, the repeal argument is good. I'd like to see some other GenSec opinions.

[Auralia]

I didn't see this when I told Auralia to file a challenge.

Well, Aclion and I are arguing subtly different things, I think. I would imagine that you'd prefer to consolidate both claims into a single thread, though, so unless you say otherwise I won't file a second challenge.

I posted in the thread that I don't read it that expansively. We give repeal arguments a really broad presumption. So long as there is a colorable argument, the repeal argument is good. I'd like to see some other GenSec opinions.

Indeed. I certainly think the repeal makes other questionable arguments, which I agree are not actionable, but this to me is a clear case where the repeal asserts something that is flatly untrue -- that OUJ prohibits retrials when it in fact does no such thing.

[Wallenburg]

For what it's worth, I agree that "prohibits the Assembly from establish an international court" has only one reasonable meaning, and that it therefore violates the Honest Mistake rule. 0/6 of an opinion.

[Bears Armed]

Challenge[s] noted. I'll take another look at this.
Oops!
Agreed. GAR #312, clause 3.b, does not prohibit re-trials as the repeal claims.
'Honest mistake'.
Illegal.

1/6

[Auralia]

For what it's worth, I agree that "prohibits the Assembly from establish an international court" has only one reasonable meaning, and that it therefore violates the Honest Mistake rule. 0/6 of an opinion.

I think CD marked the proposal illegal while it was in the queue for this reason.

OUJ does prohibit the World Assembly from establishing an international court, but only if the court preempts member state jurisdiction in cases where the member state claims universal jurisdiction. This is an important condition. If the member state does not claim universal jurisdiction, then the World Assembly can prosecute. As such, I agree "prohibits the Assembly from establish an international court" is too broad a claim, read on its own.

With that said, the repeal does directly quote section 7 of the resolution and its arguments refer to crimes for which member states would have universal jurisdiction. As such, I think we can afford to give "prohibits the Assembly from establish an international court" a more charitable interpretation.

This does not change the fact that the repeal claims that OUJ prohibits retrials, and that there is no possible valid interpretation of that claim.

[Sierra Lyricalia]

Auralia's analysis of the "may not establish an international court" bit is identical to mine - I believe I saw this in the queue after CD marked it illegal, and disagreed for precisely the reasons given above. None of us, however, seem to have seen the 3(b) issue. I won't offer a public opinion on that right this second, but I think we should look hard at it.

[Wallenburg]

Auralia's analysis of the "may not establish an international court" bit is identical to mine - I believe I saw this in the queue after CD marked it illegal, and disagreed for precisely the reasons given above. None of us, however, seem to have seen the 3(b) issue. I won't offer a public opinion on that right this second, but I think we should look hard at it.

I can certainly appreciate the reasoning there, but the target's effects are limited to the prosecution of war crimes and crimes against humanity. The WA is still perfectly capable of establishing international courts to hear cases regarding other crimes.

[United Massachusetts]

For what it's worth, I agree that "prohibits the Assembly from establish an international court" has only one reasonable meaning, and that it therefore violates the Honest Mistake rule. 0/6 of an opinion.

I think CD marked the proposal illegal while it was in the queue for this reason.

OUJ does prohibit the World Assembly from establishing an international court, but only if the court preempts member state jurisdiction in cases where the member state claims universal jurisdiction. This is an important condition. If the member state does not claim universal jurisdiction, then the World Assembly can prosecute. As such, I agree "prohibits the Assembly from establish an international court" is too broad a claim, read on its own.

With that said, the repeal does directly quote section 7 of the resolution and its arguments refer to crimes for which member states would have universal jurisdiction. As such, I think we can afford to give "prohibits the Assembly from establish an international court" a more charitable interpretation.

This does not change the fact that the repeal claims that OUJ prohibits retrials, and that there is no possible valid interpretation of that claim.

I agree with both these assertions, but especially the one regarding retrials. 3b. clearly does not prohibit retrials.

[Bananaistan]

If I'm reading the challenges correctly, it all hinges on the assertion that the sentencing after a trial is complete is the determining factor of fairness. I'm not sure I agree with this assertion. We have GAR#37, Fairness in Criminal Trials, which requires that the conduct of trials must be fair. Also none of the extant resolutions which mention war crimes and crimes against humanity make any requirement regarding sentencing.

I think we can take it as a given that trials are conducted fairly. I don't think we take it as a given that because the sentence may be light we can jump to the conclusion that the trial wasn't fair.

[Aclion]

If I'm reading the challenges correctly, it all hinges on the assertion that the sentencing after a trial is complete is the determining factor of fairness. I'm not sure I agree with this assertion. We have GAR#37, Fairness in Criminal Trials, which requires that the conduct of trials must be fair. Also none of the extant resolutions which mention war crimes and crimes against humanity make any requirement regarding sentencing.

I think we can take it as a given that trials are conducted fairly. I don't think we take it as a given that because the sentence may be light we can jump to the conclusion that the trial wasn't fair.

Regardless this does not address Auralia's challenge, and I believe he is correct. Ultimately it does not matter if the trial is fair or not, 3(b) is an exception to a requirement, not a prohibition as claimed in the repeal.

[Bananaistan]

If I'm reading the challenges correctly, it all hinges on the assertion that the sentencing after a trial is complete is the determining factor of fairness. I'm not sure I agree with this assertion. We have GAR#37, Fairness in Criminal Trials, which requires that the conduct of trials must be fair. Also none of the extant resolutions which mention war crimes and crimes against humanity make any requirement regarding sentencing.

I think we can take it as a given that trials are conducted fairly. I don't think we take it as a given that because the sentence may be light we can jump to the conclusion that the trial wasn't fair.

Regardless this does not address Auralia's challenge, and I believe he is correct. Ultimately it does not matter if the trial is fair or not, 3(b) is an exception to a requirement, not a prohibition as claimed in the repeal.

Correct, my reply you quoted did not address this aspect of the challenge. And it does seem rather open and shut. Section 3 requires member states to try when conditions a, b and c are true. This does not mean that when some or none of a, b and c are true that a member state could not also try the suspect.

[Separatist Peoples]

Regardless this does not address Auralia's challenge, and I believe he is correct. Ultimately it does not matter if the trial is fair or not, 3(b) is an exception to a requirement, not a prohibition as claimed in the repeal.

Correct, my reply you quoted did not address this aspect of the challenge. And it does seem rather open and shut. Section 3 requires member states to try when conditions a, b and c are true. This does not mean that when some or none of a, b and c are true that a member state could not also try the suspect.

On review, I find that Auralia's argument holds water, and I'm tentatively convinced by Aclions.

[Bananaistan]

*** General Assembly Secretariat Decision ***
Challenged Proposal: Repeal "On Universal Jurisdiction"
Date of Decision: 3 September 2018
Decision: Proposal is illegal, 6-0
Rules Applied: Honest mistake

We find the challenged proposal illegal. Bananaistan wrote the majority opinion, joined by Bears Armed, Christian Democrats, Sciongrad, Separatist Peoples and Sierra Lyricalia.

The repeal claims that section 3(b) of the target prohibits a second trial where a suspect has already received a fair trial in another member state. This is incorrect. Section 3 sets out the conditions under which member states are obliged to prosecute suspects, one of the conditions being if a suspect has not already received a fair trial in another member state. The target does not prohibit prosecutions where the three conditions are not met, it renders a prosecution optional in such circumstances.

We find that this forms an honest mistake.

[Imperium Anglorum]

Thank you for the ruling. I hope that the actual opinions do in fact follow.

The exercise has served as a good means to get the people who hold their cards close to show them all off. That should make things easier into the future.

[United Massachusetts]

The exercise has served as a good means to get the people who hold their cards close to show them all off. That should make things easier into the future.

This is on you. Don't deflect the matter.

[Aclion]

The suggestion that this was a play rather then a case of not paying attention is flattering.

[Imperium Anglorum]

The exercise has served as a good means to get the people who hold their cards close to show them all off. That should make things easier into the future.

This is on you. Don't deflect the matter.

Yea, fucking duh. That doesn't change the fact that this does simplify things moving forward. A new repeal will be submitted, and it will likely pass, again. It's not like this ruling has now banned repeals of On Universal Jurisdiction into all eternity.

[Thyerata]

This is on you. Don't deflect the matter.

Yea, fucking duh. That doesn't change the fact that this does simplify things moving forward. A new repeal will be submitted, and it will likely pass, again. It's not like this ruling has now banned repeals of On Universal Jurisdiction into all eternity.

Unfortunately for you Sir, that is exactly what some of us would have liked this ruling to do...

[Separatist Peoples]

Yea, fucking duh. That doesn't change the fact that this does simplify things moving forward. A new repeal will be submitted, and it will likely pass, again. It's not like this ruling has now banned repeals of On Universal Jurisdiction into all eternity.

Unfortunately for you Sir, that is exactly what some of us would have liked this ruling to do...

And some of us would like to win the lottery jackpot every day for a year. And gain the power of flight. And to see the NY Giants get through a single season without being embarrassing.

Unfortunately, wanting impossible things is a condition of humanity. I don't see how it's unfortunate for IA that you want that, because that is literally never a risk to him.

[Bananaistan]

Opinion issued.