The Mutual Legal Assistance Treaty for Core Crimes: Filling the Gap?

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Since 2011, work has been underway in the Mutual Legal Assistance Initiative (MLAI) to create a modern, procedural, multilateral treaty on mutual legal assistance and extradition, which better facilitates cooperation between states in the prosecution of international crimes. However, recent drafts of the Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity and War Crimes (The MLA Convention) go far beyond the regulation of inter-state assistance and create domestic regimes requiring the prosecution of alleged perpetrators and redress for victims. A number of Supporting States have voiced concerns regarding the inclusion of wider obligations, arguing that they will make the treaty less attractive and lead to fewer state ratifications. Instead, they advise a return to a ‘pure’ MLA treaty focused on cooperation. As negotiations around the adoption of a new treaty reach a crucial stage as states prepare for a Diplomatic Conference in Ljubljana, Slovenia, this post asks whether, in its current form, the MLA Convention fulfils its original purpose of filling the cooperation gap.

The Cooperation Gap

There is a pressing need for a multilateral instrument that facilitates inter-state cooperation on mutual legal assistance and extradition in the prosecution of international crimes. In recent years there has been a significant increase in domestic prosecutions for international crimes. Prosecuting states frequently require the assistance of others to secure the presence of accused persons or acquire access to evidence, witnesses and assets, and many states require a legal basis for the provision of assistance. There are currently no international or regional treaties designed to enable this cooperation in relation to international crimes. The arrangements within the Genocide Convention and the war crimes provisions of Geneva Convention are rudimentary. There remains no treaty on Crimes Against Humanity. The Statute of the International Criminal Court (ICC) does not contain a regime for cooperation between states. International treaties that do contain more modern cooperation arrangements, such as the UN Convention Against Transnational Organised Crime (UNTOC) and the UN Convention Against Corruption (UNCAC), cannot easily accommodate international crimes within the parameters of their definitions. There is therefore a gap to be filled and it is these inadequacies that the MLAI originally sought to address through the development of technical, procedural tools which would increase the possibilities for and effectiveness of domestic prosecutorial function.

The Draft Treaty

The proposal for a new treaty was initially introduced via the ICC Assembly of States Parties, but the desire to attract support beyond ICC States Parties prompted the Core Group (the states leading the MLAI – Argentina, Belgium, Mongolia, the Netherlands, Senegal and Slovenia) to seek an alternative forum for development of the treaty. Some efforts were made to situate it within the United Nations Commission on Crime Prevention and Criminal Justice (CCPCJ). However, many states considered that this initiative did not fall within the CCPCJ’s mandate and that the crimes concerned were too political. The MLA Initiative has therefore developed as a standalone process.

In December 2018, a draft Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes Against Humanity and War Crimes (the MLA Treaty) was finalised. International consultations among states and civil society were held through two Preparatory Conferences in 2019 and 2020 in the Netherlands. Informal consultations were held virtually in 2021. The first Diplomatic Conference, originally scheduled for June 2020, was postponed due to the COVID-19 pandemic until 2022. The MLA Initiative’s website explains that, at present, it has the support of 76 states. To date, there have been four drafts of the treaty.

The current draft is a significant step forward in developing a basis for inter-state cooperation on international crimes. It lays down provisions for the designation of central authorities, channels and means of communication, and language of requests, all essential elements of effective cooperation systems. On mutual legal assistance, it outlines the purposes for which assistance can be sought, the format of requests, grounds for refusal of assistance, and procedures for execution of requests, confiscation, proceeds of crime, joint investigations and special investigative techniques. It regulates the appearance of persons in the requesting state, hearings by video conference, and the deposition of witnesses in the requested state. Cross border investigations, the use of special investigative techniques, covert investigations and the possibility of electronic and other forms of surveillance are extensively regulated. On extradition, it provides protections under the rule of speciality, formalities and procedures for requests, grounds for refusal, conditional extradition, provisional arrest and transit, regulates re-extradition to third states and the receipt of conflicting requests, and provides a mechanism for seizure and exchange of property. It would seem to fill the cooperation gap.

And yet, there is disquiet. Only half of the draft treaty is concerned with cooperation. Beyond the judicial assistance provisions, it imposes obligations upon states parties to criminalise genocide, crimes against humanity and war crimes under domestic law and to attach penalties. States parties are required to establish jurisdiction when these crimes are committed on their territory, by their nationals or when the victim is a national. Jurisdiction is also to be established if an alleged offender is present on a states party’s territory and is not extradited to another state or surrendered to an international criminal tribunal. The draft contains an aut dedere, aut judicare provision and states parties are required to submit cases concerning international crimes to their competent authorities if the relevant person is not extradited. Domestic measures are required to establish a liability regime for legal persons. Statutes of limitations are not to prevent the provision of judicial cooperation. The treaty requires the creation of systems enabling victims to complain, regulation of their participation in proceedings and the making of reparations. There are 8 Annexes enabling states parties to extend application to a range of other international crimes, including the war crimes amendments under the ICC Statute, aggression, torture and enforced disappearance. It is clear that the MLA Convention has become much more than a technical cooperation instrument and has strayed into what is, traditionally, politically contentious territory.

The Need for Resolution on Scope

 Two very different views have emerged on what the MLA treaty ought to regulate and how it ought to progress. On the one hand, there is a group of states that seek to maintain a narrow focus on the mechanics of inter-state cooperation and use the treaty to develop technical tools to facilitate the extradition of suspects and exchange of information, evidence and assets. On the other, there is a coalition of states, which includes the Core Group and NGOs, that view the MLA treaty as an opportunity to stimulate domestic legislative action on the criminalisation of international crimes, the expansion of jurisdiction over them, and the promotion and protection of victims’ rights in domestic proceedings. For this second group, inter-state cooperation is only part of the treaty content.

The objection of the ‘pure MLA’ group is that for the MLA Convention to truly add value in the fight against impunity, it must be attractive to as many states as possible, including those who are non-States Parties to the ICC and European MLA instruments. They argue that a treaty which imposes obligations to criminalise international crimes will not be ratified by those states, thereby diminishing the value of the Convention overall. Indeed, there should already be concern around the limited appeal of the MLA Convention. Of the 76 Supporting States, only 7 are ICC non-States Parties and more than half are European. There are none from the Middle East and two (Kazakhstan and Mongolia) from Asia. Another treaty ratified predominantly by European states, which already have a range of regional cooperation possibilities, will not remedy the problems associated with an absence of international MLA instruments. At present, the MLA Convention risks becoming the horizontal cooperation arm of the ICC, ratified only by ICC States Parties, albeit fewer than the current 123. This was something the Core Group was initially keen to avoid because confining the agreement between ICC States Parties necessarily limits the scope for cooperation. 

There are already a number of – albeit imperfect – treaty regimes which require states parties to prevent, prosecute and punish international crimes. But, there is no international legal framework that regulates inter-state cooperation in relation to them.  A treaty based on well-established, technical cooperation procedures will, hopefully, be widely accepted by states. In contrast, the additional inclusion of onerous criminalisation and jurisdictional frameworks may be off-putting. To enhance the possibilities for domestic prosecution of international crimes, an internationally attractive instrument that facilitates cooperation across the widest possible range of states is needed. With that in mind, the Core Group should reign in its, albeit laudable, ambitions and create a pure MLA treaty. That should not be seen as a compromise or an inferior solution. Cooperation regimes are essential elements in the investigation and trial of international crimes. Indeed, they are often the key to acquiring the evidence necessary to build cases. If national jurisdictions are to take on more prominent and proactive roles in prosecutions, legal mechanisms, which will enable them to effectively and efficiently share information and evidence and extradite alleged perpetrators, are urgently required. The MLA Convention can be that instrument.

To return to the question of whether the current draft fills the cooperation gap, the answer is that, on paper, yes it does. However, it needs state ratification to fill the gap in practice. The current ‘cooperation-plus’ approach may make that ratification difficult to obtain.

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Anne says

June 13, 2022

What about putting the "plus" of the treaty in an optional protocol which could be either opt-in, as usual, or opt-out in order to "nudge" more states to be part but still safeguard sovereignty?