[CHALLENGE] Repeal "On Universal Jurisdiction"

[Wallenburg]

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.

[Sierra Lyricalia]

Given the target's requirement in Section 3 that member states must prosecute suspects if they have the evidence and the physical custody, what use could such a court have in the field of war crime prosecution that would not inherently pre-empt member states' claims? My instinct says §3 combined with §7 renders the allegation true, as no WA court could ever try a suspect except by preempting the claim of the first member state to get their hands on him. And to the objection that §6 would allow member states voluntary abdication of their claims in favor of such a court, I have to say that can't possibly be true. Much of the intent of the target is specifically to render an international court unnecessary; not only is a prospective court not included in that section (only other member states), it would be the height of absurdity to suggest that this resolution in particular could ever intend to work alongside such a court.

On this basic analysis I believe the repeal is legal.

[Wallenburg]

Given the target's requirement in Section 3 that member states must prosecute suspects if they have the evidence and the physical custody, what use could such a court have in the field of war crime prosecution that would not inherently pre-empt member states' claims? My instinct says §3 combined with §7 renders the allegation true, as no WA court could ever try a suspect except by preempting the claim of the first member state to get their hands on him. And to the objection that §6 would allow member states voluntary abdication of their claims in favor of such a court, I have to say that can't possibly be true. Much of the intent of the target is specifically to render an international court unnecessary; not only is a prospective court not included in that section (only other member states), it would be the height of absurdity to suggest that this resolution in particular could ever intend to work alongside such a court.

On this basic analysis I believe the repeal is legal.

You do realize that crimes other than war crimes and crimes against humanity exist, right?

[Aclion]

Have to agree with Wallenburg here. Regardless of interpretations of clause 3 the prohibition in clause 7 of On Universal Jurisdiction is specific to the universal jurisdiction established in clause 2 that resolution, which is limited to acts recognized by WA legislation as a war crime or a crime against humanity. The World Assembly is still free to establish an international court to adjudicate other matters.

[Waffia]

Given the target's requirement in Section 3 that member states must prosecute suspects if they have the evidence and the physical custody, what use could such a court have in the field of war crime prosecution that would not inherently pre-empt member states' claims? My instinct says §3 combined with §7 renders the allegation true, as no WA court could ever try a suspect except by preempting the claim of the first member state to get their hands on him. And to the objection that §6 would allow member states voluntary abdication of their claims in favor of such a court, I have to say that can't possibly be true. Much of the intent of the target is specifically to render an international court unnecessary; not only is a prospective court not included in that section (only other member states), it would be the height of absurdity to suggest that this resolution in particular could ever intend to work alongside such a court.

On this basic analysis I believe the repeal is legal.

While the target resolution indeed effectively prohibits an international court from prosecuting war criminals, it does not prohibit an international court from prosecuting on any other grounds, nor does it prohibit the establishment of an international court. Whether intentional or not, the repeal is therefore formulated misleadingly.

[Old Hope]

Given the target's requirement in Section 3 that member states must prosecute suspects if they have the evidence and the physical custody, what use could such a court have in the field of war crime prosecution that would not inherently pre-empt member states' claims? My instinct says §3 combined with §7 renders the allegation true, as no WA court could ever try a suspect except by preempting the claim of the first member state to get their hands on him. And to the objection that §6 would allow member states voluntary abdication of their claims in favor of such a court, I have to say that can't possibly be true. Much of the intent of the target is specifically to render an international court unnecessary; not only is a prospective court not included in that section (only other member states), it would be the height of absurdity to suggest that this resolution in particular could ever intend to work alongside such a court.

On this basic analysis I believe the repeal is legal.

While the target resolution indeed effectively prohibits an international court from prosecuting war criminals, it does not prohibit an international court from prosecuting on any other grounds, nor does it prohibit the establishment of an international court. Whether intentional or not, the repeal is therefore formulated misleadingly.

It actually de facto does.
Because every case has the potential to be about crimes against humanity.

[Waffia]

While the target resolution indeed effectively prohibits an international court from prosecuting war criminals, it does not prohibit an international court from prosecuting on any other grounds, nor does it prohibit the establishment of an international court. Whether intentional or not, the repeal is therefore formulated misleadingly.

It actually de facto does.
Because every case has the potential to be about crimes against humanity.

An international court may also deal with general disputes between countries, such as when two countries lay claim on a piece of land, or when mining operations in one country have caused structural damages to buildings in a neighbouring country. It is not clear to me how these cases are related to crimes against humanity or war crimes.

OOC: Consider real-world cases handled by the International Court of Justice such as this one, this one, and this one.

[Jocospor]

It would seem Wallenburg is undoubtedly correct here.

[Bears Armed]

Given the target's requirement in Section 3 that member states must prosecute suspects if they have the evidence and the physical custody, what use could such a court have in the field of war crime prosecution that would not inherently pre-empt member states' claims? My instinct says §3 combined with §7 renders the allegation true, as no WA court could ever try a suspect except by preempting the claim of the first member state to get their hands on him. And to the objection that §6 would allow member states voluntary abdication of their claims in favor of such a court, I have to say that can't possibly be true. Much of the intent of the target is specifically to render an international court unnecessary; not only is a prospective court not included in that section (only other member states), it would be the height of absurdity to suggest that this resolution in particular could ever intend to work alongside such a court.

On this basic analysis I believe the repeal is legal.

You do realize that crimes other than war crimes and crimes against humanity exist, right?

Upon consideration, and having re-read the original resolution again, agreed.
'Honest Mistake'.
Illegal.

[Verdant Haven]

I fully agree with Wallenburg - the present resolution's characterization of the target resolution is plainly inaccurate and misleading, however well-intentioned and inadvertent such error may have been.

[Aclion]

An additional honest mistake. The first preambulatory clause of the repeal refers to the world assembly as august.
It has not been August for some time now. It is in fact now November.

Because every case has the potential to be about crimes against humanity.

No. Because crimes against humanity is explicitly limited to acts recognized as such in an existing resolution.

[Bears Armed]

An additional honest mistake. The first preambulatory clause of the repeal refers to the world assembly as august.
It has not been August for some time now. It is in fact now November.

groooan...

[Bananaistan]

You do realize that crimes other than war crimes and crimes against humanity exist, right?

Upon consideration, and having re-read the original resolution again, agreed.
'Honest Mistake'.
Illegal.

Agreed. The target prevents the establishment of an international criminal court dealing with war crimes only. An international court dealing with other criminal matters and non-criminal matters could be established without contradicting the target. Indeed one could argue that the WA has in fact established an international court without contradicting the target (see GAR#440).

[Sierra Lyricalia]

Given the target's requirement in Section 3 that member states must prosecute suspects if they have the evidence and the physical custody, what use could such a court have in the field of war crime prosecution that would not inherently pre-empt member states' claims? My instinct says §3 combined with §7 renders the allegation true, as no WA court could ever try a suspect except by preempting the claim of the first member state to get their hands on him. And to the objection that §6 would allow member states voluntary abdication of their claims in favor of such a court, I have to say that can't possibly be true. Much of the intent of the target is specifically to render an international court unnecessary; not only is a prospective court not included in that section (only other member states), it would be the height of absurdity to suggest that this resolution in particular could ever intend to work alongside such a court.

On this basic analysis I believe the repeal is legal.

You do realize that crimes other than war crimes and crimes against humanity exist, right?

...I guess? I fail to see the utility of a worldwide Highest Court In The Universe if it can't prosecute those crimes. 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.

On the other hand, I can't find a flaw in the argument. Technically international courts may still be created. Let's be clear, though, the repeal is not stretching anything when it says no war criminal/criminal against humanity can ever come to trial in one. If this is an Honest Mistake it's an extremely piddling one.

[Xanthal]

"Misleading" my foot. Smoke and mirrors is the only reason some of the most consequential resolutions on the books exist.

Let's be clear, the Honest Mistake Rule is about outright lying in your text- intentionally or otherwise- about what a resolution does. If we don't draw that clear line of demarcation the rule becomes a tool for the Secretariat to pull anything it wants to based on a subjective judgment about the author's knowledge/intent or because they decide a text wasn't clear or honest enough about its effects.

[Verdant Haven]

Let's be clear, the Honest Mistake Rule is about outright lying in your text- intentionally or otherwise- about what a resolution does.

How much more outright can a lie be than to base its entire existence on falsehood, and to assert same?

Look at the text of this repeal attempt:

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...

Patently obvious? Patently untrue, more like. Absolutely nothing in the text of the Universal Jurisdiction resolution has anything to do with preventing or blocking the existence of an international court, for this or any purpose.

The legal concept of pre-emption is quite simple. This clause simply means that an ICC could not claim legal superiority and thus invalidate a member state's laws that claim Universal Jurisdiction. It could not tell a member nation that the member nation may not try a crime under Universal Jurisdiction. That is all it means. It does not mean that an ICC could not try a case before, after, or simultaneously to a member state. It does not mean a member state couldn't follow its own laws. It does not mean they can't try similar cases, or can't both have jurisdiction.

If a member state has a law that says murder is acceptable, and the WA declares murder is a crime regardless of national laws, that is pre-emption. If a nation has murder as a crime, it is not pre-emption for the WA to also say murder is a crime, and to have its own court system that is able to try murderers who otherwise slip through the cracks.

This entire repeal appears to be based on a complete misunderstanding of terminology, and emphatically states a falsehood as it's primary argument.

[Separatist Peoples]

SL said it better than I could have. Barring a court's actions is as good as barring the court itself. What you're left with is a meaningless gesture. I would not render so over-technical an interpretation as to invalidate the repeal when it is plainly clear what is meant.

[Aclion]

The court could deal with other, more general human(or ursine) rights violations, trade disputes, territorial disputes, disputes over use of natural resources or responsibility for pollution, international maritime law; really anything that the GA legislates on. The World Assembly could, in fact, establish several international courts, all with important mandates, none of which deal with war crimes or crimes against humanity. Not all international courts are the ICC.

[Separatist Peoples]

Oddly enough, literal meaning and plain meaning are not always the same. I tend toward a plain meaning approach.

[Bananaistan]

What's the difference between the literal meaning and the plain meaning of "this section prohibits the Assembly from establishing an international court"?

[Wallenburg]

...I guess? I fail to see the utility of a worldwide Highest Court In The Universe if it can't prosecute those crimes. The target doesn't contemplate an international court for small claims (Judge Gnome Wapner presiding) any more than the repeal does.

That isn't really the issue at hand, is it? That an international small claims court isn't particularly necessary doesn't mean that it is true that "On Universal Jurisdiction" prohibits the creation of one.

All the repeal needs is the word "criminal" between "international" and "court" and this isn't even a question.

If GenSec is going to abandon the standard textualist approach and start ruling on language that doesn't exist, it should make that clear in an official announcement, because such a practice would have serious ramifications on future rulings.

On the other hand, I can't find a flaw in the argument. Technically international courts may still be created.

So you acknowledge that the claim that OUJ "prohibits the Assembly from establishing an international court" is false, and therefore an Honest Mistake. In that case, I suppose that makes for 3/6 of an opinion against legality.

Let's be clear, though, the repeal is not stretching anything when it says no war criminal/criminal against humanity can ever come to trial in one. If this is an Honest Mistake it's an extremely piddling one.

While that may not follow immediately from the text of OUJ, I agree that in practice the WA is barred from trying such criminals. That's why I didn't challenge that claim, and instead challenged the claim that the WA is barred from trying any criminal.

[Liberimery]

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 OR (possibly) 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.

[Separatist Peoples]

What's the difference between the literal meaning and the plain meaning of "this section prohibits the Assembly from establishing an international court"?

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]".

[Wallenburg]

What's the difference between the literal meaning and the plain meaning of "this section prohibits the Assembly from establishing an international court"?

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]".

Here's the thing, the target does neither.

[Auralia]

For reference, I am the author of OUJ.

My reading of OUJ is that the World Assembly is prohibited from claiming criminal jurisdiction in the context of a crime for which there is universal jurisdiction, as that term is defined in the resolution.

The effect of this prohibition is that the World Assembly is barred from establishing an international court that hears or reviews criminal cases for which member states have universal jurisdiction, including war crimes and crimes against humanity defined under World Assembly law.

Now, IA could have simply written that in a number of ways:

Seeing that it is patently obvious that this section prohibits the Assembly from establishing an international court that hears or reviews criminal cases for which member states have universal jurisdiction,

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,

But he did not. Instead he wrote this:

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

Is that a honest mistake? I don't know. Strictly speaking, it's too broad as written; the World Assembly is not barred from establishing international courts in general. However, one might err on the side of legality given the arguments that follow this clause, which mostly relate to war crimes and crimes against humanity.