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Amnesty International’s Survey on Universal Jurisdiction: A Reply to Kevin Jon Heller

Kevin Jon Heller has a post over at Opinio Juris responding to concerns I raised about Amnesty International’s survey of states that have adopted universal jurisdiction.

Kevin agrees with one aspect of my argument. He writes, “As Ryan rightly points out, the Rome Statute is neither based on universal jurisdiction nor requires states that implement it to adopt universal jurisdiction.”

Kevin, however, disagrees with another aspect. But this disagreement is based on a misunderstanding of my argument. I accept responsibility as an author for any lack of clarity. Kevin writes, “Amnesty does not seem to be suggesting that implementing the Rome Statute simpliciter is enough to consider a state to have universal jurisdiction over the international crimes therein.”

Kevin thinks I disagree with that description. But I agree with it.

What Amnesty does seem to suggest, however, is that a subset of ICC member states – due to a particular form of national implementation of treaties — are universal jurisdiction states.  Those are states where domestic law provides for courts to have jurisdiction over any crime required by treaty. And in this regard Amnesty’s coding is based on the organization’s explicit assumption that the Rome Statute contains an implied “obligation to exercise universal jurisdiction.”

That said, Kevin’s analysis does point to a separate concern that I had not contemplated in my original post.

If Amnesty’s view of the ICC framework were correct – which Kevin and I agree it is not – then one would conclude that all 122 state parties to the Rome Statute have accepted an international legal obligation to exercise universal jurisdiction. This concern is not relevant to questions about Amnesty’s coding methodology (as explained above). But it does mean that Amnesty’s explanation of the Rome Statute creates a false impression of the global acceptance of universal jurisdiction more generally.

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About the Author

is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. Follow him on Twitter (@rgoodlaw).