Fighting against impunity: The Mutual Legal Assistance initiative for domestic prosecution of the most serious crimes

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@Maxime Mariage

During the 16th Assembly of States Parties (ASP16), a side event entitled “Fighting Impunity for the most serious crimes – Strengthening the central role of national jurisdictions” was organized by the Permanent Mission of Belgium to the United Nations and the Permanent Mission of Senegal to the United Nations. It took place on Wednesday, 6 December 2017, and was attended by ICC Prosecutor Fatou Bensouda. The focus of the side-event was a panel discussion on a mutual legal assistance (MLA) initiative. This project aims to elaborate provisions on interstate judicial assistance in order to collect evidence and information on crimes that go beyond national borders, in order to prosecute them effectively.

That side event was followed by another on MLA, held on Thursday, 7 December 2017, and organized by Argentina, Belgium, Mongolia, The Netherlands, Senegal and Slovenia (referred to as the six core states). The side-event was entitled “On the joint initiative for a Multilateral Treaty on Mutual Legal Assistance and Extradition for the most serious International Crimes (crimes of genocide, crimes against humanity and war crimes)”. This idea is rapidly gaining support: 58 States currently support the six core States, and their numbers are increasing. During the side-event presentation, it was said that France and Germany had joined as supporters. In September 2015, they were 48 supporting states, according to the list provided by the Council of Europe (COE). Recently, the COE drafted an explanatory note on the MLA initiative and Parliamentarians for Global Action (PGA) provided a background document.

The side-event highlighted several elements. First, there should be no impunity for the most serious crimes. Second, if States have the primary responsibility to investigate and prosecute the most serious crimes, cooperation is essential in order to accomplish that mission. Indeed, investigations cross national borders, evidence can be all over the world and, therefore, it is inevitable to cooperate with one or more other States. For instance, when a State receives a request from another one related to extradition, hearing of witnesses or wire-tapping suspects, they need to collaborate and exchange information in order to effectively investigate and prosecute, especially when the case presents international elements. In the context of globalization and of modern technology and communication, the need to establish a new multilateral treaty that takes into account new modes of assistance, with the mean to enhance cooperation related to investigation and prosecution of international crimes, is stronger than ever.

The speakers at the side-event addressed an invitation to all States to joint the MLA initiative and to demonstrate their commitment to rule of law while delivering a message against impunity. They indicated that the MLA treaty should include several substantial elements. There should be no renegotiation of the definition of the crimes. The definition shall remain the same as in the Rome Statute of the ICC, even though the concerns of the treaty go beyond. Also, the treaty should include provisions on other international crimes contained in other treaties such as the UN Convention against Transnational Organized Crime. Other specific provisions could be integrated following long-term negotiations, which would be preferable for a preliminary draft text.

At the end of the side-event, the speakers detailed the next steps in the process. Over the next few months, a draft treaty will be created, with the aim of presenting it in March 2018. In June 2018, ideas and thoughts would be collected in order to improve the preliminary text. In the course of Autumn 2018, negotiations should take place, while final negotiations and conclusions are expected during 2019.

During this timeframe, the goal is to pursue dialogue with other States that would like to join the initiative. An information meeting will take place in January 2018, to which NGOs are invited. For instance, Amnesty International was consulted in October 2017 and has already submitted draft principles for the proposed MLA treaty, including that MLA should not occur at the expense of human rights protections. As well, Amnesty has proposed that a set of principles should be included, such as no extradition in case of risk of death penalty, torture or other violation of human rights or the respect of the rights of the victims.

The idea of a MLA treaty on genocide, crimes against humanity and war crimes was also discussed and documented in the conclusions of the 22nd meeting of the Network for investigation and prosecution of genocide, crimes against humanity and war crimes that took place in The Hague, 29-30 March 2017.  The International Prosecutors Association also supports the initiative. This demonstrates the interest of States and civil society actors into a multilateral treaty on interstate cooperation regarding challenges and issues attached to legal assistance requests and extradition for the most serious international crimes.

The MLA initiative first emerged a meeting organized by Belgium, The Netherlands and Slovenia in The Hague in November 2011, during which international legal experts and practioners concluded that existing treaties on core crimes do not contain modern provisions on legal assistance and extradition. They also concluded that there is a gap in the international legal framework in the field on the mutual legal assistance and interstate cooperation. Afterwards, they launched the project and were joined by Argentina, Senegal and Mongolia. At present, all regions of the world are supporting the project. They made a joint statement at the ASP12 about a draft treaty that became a permanent declaration at ASP14. The preparatory conference that focused on launching the negotiations of this multilateral treaty took place in October 2017.

This blog post and Silviana Cocan’s attendance at the 16th Assembly of States Parties in the framework of the Canadian Partnership for International Justice was supported by the Social Sciences and Humanities Research Council of Canada.

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