[CHALLENGE] Repeal "On Universal Jurisdiction"

[Auralia]

Some specific replies to comments made in this thread:

The target doesn't contemplate an international court for small claims (Judge Gnome Wapner presiding) any more than the repeal does. All the repeal needs is the word "criminal" between "international" and "court" and this isn't even a question.

I wouldn't say that. The World Assembly is still free to try criminal cases for which there is no universal jurisdiction.

You can even establish a major criminal court so long as it specifically does not charge a party with a war crime or a crimes against humanity...

This is correct, I believe, though I think such a court also could not hear appeals for criminal cases related to war crimes and crimes against humanity.

I read a colorable interpretation that says "this section prohibits the Assembly from establishing an international court [by virtue of it's restrictions]" over "this section prohibits the Assembly from establishing an international court [by virtue of an explicit ban]".

OUJ does not prohibit the World Assembly from establishing any international court, only a court that hears or reviews cases for which member states have universal jurisdiction.

[Old Hope]

Ok. I think it's illegal because it says "international court", not "international criminal court". The latter would be acceptable because an international criminal court that cannot rule on the worst things is effectively useless.

[Imperium Anglorum]

The Challenge is correct, if we are to read "establish" to mean creation and "international court" to mean a court that deals with jaywalking. I'm annoyed with the level of pedantry involved, certainly, and I've never read oUJ in the manner which is described, probably because I've always taken an intent-based approach to law. I'll certainly credit Auralia with writing a resolution that is misleading and minimalist in the way which it accomplishes its goal. It's like a sentence coming out of Humphrey in Yes, Minister.

If I were to give an argument for the repeal's not being an HM, then, consider the contextualisation of "court" in the text, in the next paragraph, to "such a court" which has the ability to prosecute war criminals and perpetrators of genocide and provide justice to "victims of war crimes and other crimes against humanity". Interpretation of the meaning of "court" outside of the scope would produce inconsistencies in the text which an interpreter should not purposefully introduce.

About some of the other things coming up in this thread. If you're going to quote it, please subset to the proper area.

Banana says that: "The target prevents the establishment of an international criminal court dealing with war crimes only". Under the arguments which Wally has brought forward, it doesn't. It merely "Forbids the World Assembly from preempting a member state's claim to universal jurisdiction under this resolution", which means that you can create such a court to hear such cases if the nation has abjured its claim to UJ. Pretty much useless, but do-able. Under that, Auralia's hypothetical text "Seeing that it is patently obvious that this section prohibits the Assembly from establishing an international court that prosecutes war crimes and crimes against humanity" would also be illegal.

Liberimery says "the WA court must always allow the nation with jurisdiction the right to have first go at the accused. War Crimes are notorious for being a victor's justice area and involving the WA would raise issues with the WA neutrality". The former is correct. The latter does not follow from the former. And giving nations with UJ the ability to do such a thing would seem to me even less legitimate in the eyes of those who support the accused than an international tribunal.

I don't think Auralia's claim that "the World Assembly is barred from establishing an international court that hears or reviews criminal cases for which member states have universal jurisdiction" is at all true, however, insofar as appellate jurisdiction is different from the original instance. That also happens to be the reading taken by Ard some time in the past.

Old Hope says "Ok. I think it's illegal because it says "international court", not "international criminal court". The latter would be acceptable because an international criminal court that cannot rule on the worst things is effectively useless". But being useless does not mean that it cannot be established, which is the next argument that will come up if such a proposal were submitted.

[Auralia]

I'll certainly credit Auralia with writing a resolution that is misleading and minimalist in the way which it accomplishes its goal. It's like a sentence coming out of Humphrey in Yes, Minister.

It's minimalist, but I don't see how it's misleading. The point was to carve out a subset of criminal jurisdiction and reserve it to member states, and that is exactly what OUJ does.

If I were to give an argument for the repeal's not being an HM, then, consider the contextualisation of "court" in the text, in the next paragraph, to "such a court" which has the ability to prosecutes war criminals and perpetrators of genocide and provide justice to "victims of war crimes and other crimes against humanity". Interpretation of the meaning of "court" outside of the scope would produce inconsistencies in the text which an interpreter should not purposefully introduce.

Interpreting the term "international court" broadly does not introduce internal inconsistencies in your repeal text; the text could simply be addressing specific applications of an international court in greater detail without prejudice to the others. I'm not sure exactly what you had in mind when you wrote the repeal, but it doesn't really matter; the text stands on its own.

It merely "Forbids the World Assembly from preempting a member state's claim to universal jurisdiction under this resolution", which means that you can create such a court to hear such cases if the nation has abjured its claim to UJ. Pretty much useless, but do-able. Under that, Auralia's hypothetical text "Seeing that it is patently obvious that this section prohibits the Assembly from establishing an international court that prosecutes war crimes and crimes against humanity" would also be illegal.

I think this is correct, actually. An improved version of the hypothetical text would be:

Seeing that it is patently obvious that this section prohibits the Assembly from establishing an international court that prosecutes war crimes and crimes against humanity without the authorization of affected member states,

I don't think Auralia's claim that "the World Assembly is barred from establishing an international court that hears or reviews criminal cases for which member states have universal jurisdiction" is at all true, however, insofar as appellate jurisdiction is different from the original instance. That also happens to be the reading taken by Ard some time in the past.

The ruling that is being referred to here is wrong. There is no basis in the text of OUJ for the distinction the mods drew between original and appellate jurisdiction.

[Bears Armed]

Sorry for the short notice on this, but I hadn't really been paying much attention to this proposal.

RULE BROKEN: Honest Mistake

ARGUMENT: "Repeal 'On Universal Jurisdiction'" claims that clause 7 of its target "prohibits the Assembly from establishing an international court" in a "patently obvious" fashion. Clause 7 of the target reads:

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;

This only prohibits the use of an international criminal court to preempt a member state's universal jurisdiction over war crimes and crimes against humanity. It does not outright prohibit the establishment of an international criminal court, as the repeal claims, and certainly not in an obvious manner.

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 establishing an international court,

Believing that a lack of such a court means:

1. there are few prosecutions of war criminals and perpetrators of genocide, since (i) prosecutorial discretion exists, due to differing interpretations of section 3(c) and (ii) such criminals and perpetrators would not willingly move themselves to jurisdictions which would prosecute them and
   
   
2. victims of war crimes and other crimes against humanity are unlikely to receive justice, as even when prosecutions occur, they will likely be in friendly jurisdictions, meaning that they will be slaps on the wrist,

Expressing its discontent at this state of affairs, where criminality of the worst degree is not punished and where the international rules-based order is unable to deter or bring justice to 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 a compulsory, fair, and effective international tribunal to resolve these issues, hereby:

Repeals GA 312 “On Universal Jurisdiction”.

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,

1. 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;
   
2. 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;
   
3. Requires member states to safely and fairly prosecute individuals suspected of committing an act listed in section 2 in cases where:
   
   
   1. the individual is within the territorial jurisdiction of that member state,
      
   2. the individual has not already been given a fair trial for that crime by another state, and
      
   3. there is evidence which would lead a reasonably intelligent but cautious person to believe that the individual is guilty of that crime;
4. 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;
   
5. 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;
   
6. 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;
   
7. 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;
   
8. 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;
   
9. 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.

GenSec is currently 3:1 in agreement with this challenge'a argument that 'On Universal Jurisdiction' does notbar the WA completely from establishing international courts completely -- only limits the potential scope of these -- and for therefore declaring the proposed resolution illegal on the basis of 'Honest Mistake'... and the other two members are currently rather inactive due to RL, so unlikely to give vote in the short time that's left. As less than 16 hours of voting are left, and I myself will have to be offline for most of that time, I have notified the rest of GenSec (in our own forum's thread about this challenge) that unless they object within the next couple of hours I will post a request for the Mods to discard it shortly before going offline.
Sorry, IA.

EDIT: The request has now been posted.

[Frisbeeteria]

GenSec is currently 3:1 in agreement with this challenge'a argument that 'On Universal Jurisdiction' does notbar the WA completely from establishing international courts completely -- only limits the potential scope of these -- and for therefore declaring the proposed resolution illegal on the basis of 'Honest Mistake'... and the other two members are currently rather inactive due to RL, so unlikely to give vote in the short time that's left. As less than 16 hours of voting are left, and I myself will have to be offline for most of that time, I have notified the rest of GenSec (in our own forum's thread about this challenge) that unless they object within the next couple of hours I will post a request for the Mods to discard it shortly before going offline.
Sorry, IA.

EDIT: The request has now been posted.

Having received a legal GenSec response to the Challenge, the proposal has been discarded. It will not be made law regardless of the outcome of the vote.

(FYI: should the situation change in the next 7 hours, the discard can be reversed. Not that we're expecting a reversal, just explaining.)

[Imperium Anglorum]

Will a decision be officially released? I'm updating the database and it'd like to nom nom on a link to an official decision rather than a statement of action.

[Wallenburg]

GenSec is hiding it's backroom deals from the working author. SAD! No more, we're gonna get tough on GenSec! Release the documents!

[Jocospor]

GenSec is hiding it's backroom deals from the working author. SAD! No more, we're gonna get tough on GenSec! Release the documents!

What's this? Oh, don't be ridiculous - GenSec doesn't do any backroom deals!

[Sierra Lyricalia]

*** Opinion of the Secretariat ***

We find the challenged resolution illegal for an Honest Mistake violation. Sierra Lyricalia wrote the majority opinion, joined by Bananaistan and Bears Armed. Separatist Peoples disagreed.

As a result of this decision, the proposed repeal was discarded at vote.

Majority Opinion (3-1):

We are asked to assess the legality of "Repeal 'On Universal Jurisdiction.'" Based on one sentence that could be passed off as mere exaggeration, yet still clearly and undeniably misrepresents its target, we find the proposed repeal illegal for an Honest Mistake violation.

The clause in question reads:

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 establishing an international court,

The intent of the target is clear: no international court shall have the power to prosecute e.g. a war crime if any member nation wishes to do so. Universal jurisdiction over such crimes is a benefit and duty of World Assembly membership, and any nation may assert such jurisdiction. Given the sheer number of member states, it seems to beggar belief that for any alleged war crime there won't be even a single nation ready or willing to do so. But the target resolution does in fact leave that possibility open, and there is the repeal's downfall.

The repeal clause in question is effectively guilty of asserting that the underlined portion of the previous paragraph does not exist or can otherwise be ignored. But technically the target does not prohibit the creation of an international court (and it may not even prohibit such a court from prosecuting a war crime, assuming that of the 20,000+ member nations, not a single one would claim jurisdiction over the crime or its suspect).

While the exaggeration is relatively small, it still glosses over a clear nuance in the meaning of its target. The nuance may go indefinitely without ever being applied, but it does exist. Indeed, the same author's Administrative Compliance Act (co-author credit) establishes a body that is an international court in all but name, albeit one that does not criminally prosecute individuals for alleged war crimes or crimes against humanity.

Therefore the statement that the target totally prohibits any international court is an Honest Mistake, and the proposed repeal is illegal as submitted.