[AT VOTE] Repeal "On Universal Jurisdiction"

[Sierra Lyricalia]

Target

On Universal Jurisdiction
A resolution to improve world security by boosting police and military budgets.

Category: International Security
Strength: Significant
Proposed by: Railana

Description: 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.

Repeal

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 (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 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 an compulsory, fair, and effective international tribunal to resolve these issues, hereby:

Repeals GA 312 “On Universal Jurisdiction”.

Challenge

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."

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.

I'll edit this into a real OP later on, time permitting, but In brief, I believe the challenge holds water and the repeal's claim (that Clause 3(b) of its target positively prohibits any nation from trying a suspect for a war crime for which a biased, kangaroo, or otherwise crappy foreign court previously either acquitted her or gave a disproportionately mild sentence) is unsalvageably untrue and thus breaks the Honest Mistake rule. If anyone has a convincing counterargument I'd love to hear it, but time is short and I doubt if there is one. I believe we need to ask for a Discard.

[Bananaistan]

I second hearing the challenge anyway.

I haven't studied the arguments in detail yet but at a glance I couldn't dismiss it off hand. I will also revert later.

[Bears Armed]

Honest Mistake, Illegal, Agreed.

[Bananaistan]

Right then. I think Auralia's argument is correct.

The claim in the repeal is that section 3(b) prohibits a "retrial" in another member state when the suspect has already been tried in another member state. This is incorrect. Section 3 requires member states to try an individual when the three conditions are true. It does not prohibit a retrial if any of the three conditions are not true.

I vote illegal.

[Separatist Peoples]

Right then. I think Auralia's argument is correct.

The claim in the repeal is that section 3(b) prohibits a "retrial" in another member state when the suspect has already been tried in another member state. This is incorrect. Section 3 requires member states to try an individual when the three conditions are true. It does not prohibit a retrial if any of the three conditions are not true.

I vote illegal.

Samesies.

[Sierra Lyricalia]

I'll make it explicit: I agree, illegal.

[Bananaistan]

So that's 4-0 so far. Definitely illegal. I'll send up a flare and post in the public thread.

[Bananaistan]

Perhaps a short and sweet opinion will be sufficient:

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.

We have not assessed the assertion in the challenge that a trial resulting in minimal punishment cannot be a fair trial.

[Sierra Lyricalia]

We have not assessed the assertion in the challenge that a trial resulting in minimal punishment cannot be a fair trial.

TBF that's less a fresh assertion than an assumption carried over from the repeal itself:

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,

In other words the repeal assumes that all suspects are guilty and that any trial not resulting in a severe sentence is ipso facto illegitimate. The fact that the challenge accepts this assumption is essentially meaningless to the challenge, although the assumption itself may mean that the repeal also contains an implied second honest mistake: as GAR #194 does require any detained person to be presumed innocent pending trial - so if the trial results in acquittal, there is no basis for any WA member or bureau to officially presume guilt at any time. The presumption must be earned with evidence, which any single acquittal or soft treatment is insufficient to constitute by itself.

Regardless, I don't think this part has anything to do with finding the repeal illegal for the honest mistake we've already tagged it with, so it's probably best just to ignore it. If we bring it up at all, it should be in the context of something like "The WA judges trial fairness according to multiple factors; the mere fact than an accused person that 'everyone knows is guilty' was acquitted of a crime is insufficient to prove a claim of judicial turpitude."

[Sierra Lyricalia]

Perhaps a short and sweet opinion will be sufficient:

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.

We have not assessed the assertion in the challenge that a trial resulting in minimal punishment cannot be a fair trial.

Crap, sorry - besides the struck portion, which I spent way too much time on above, I find the rest of this fine. Would sign.

[Bananaistan]

Fair enough. I’ll take that bit out.

Everyone else?

[Bears Armed]

Approved.

[Christian Democrats]

As the only member who marked this proposal illegal in the queue, I also vote illegal.

EDIT: I also sign the opinion.

[Separatist Peoples]

I can John Hancock on with that.

[Sciongrad]

Well past the point I should have noted this, but I sign on to the opinion.

[Bananaistan]

Opinion posted