Emerging Voices: International Cooperation for the Domestic Prosecution of International Crimes

[Sven Pfeiffer is an Associate Expert at the United Nations Office on Drugs and Crime. The views expressed in this post are those of the author, writing in his personal capacity, and do not necessarily reflect the views of the United Nations.]

National authorities are increasingly involved in the fight against impunity for perpetrators of genocide, war crimes and crimes against humanity. Since the entry into force of the ICC statute, many states have enacted new laws or used existing ones to investigate and prosecute these international crimes. As this trend continues, domestic courts increasingly require the cooperation of foreign judicial authorities to gather evidence, interview witnesses or ensure the presence of accused.

Such inter-state cooperation is often impossible in the absence of applicable extradition and mutual legal assistance treaties. The idea that a multilateral convention could fill this legal gap was recently brought to the attention of the UN by several countries, at the initiative of the Netherlands, Belgium and Slovenia. At the 2013 Commission on Crime Prevention and Criminal Justice, these countries called for a discussion on the matter, but not all of its members agreed that the Commission was the right body to deal with genocide, war crimes and crimes against humanity. In this post, I explore the arguments for the proposed convention and identify the most controversial aspects of the proposal, namely the definition of crimes, the extent of domestic jurisdiction and states’ international obligation to prosecute.

Let us first take a closer look at the extent of the legal gap and at how an international cooperation convention could close it. Many countries can extradite and provide mutual legal assistance only on the basis of an international treaty. In addition, even where countries can do so on the basis of their domestic law, treaty provisions may speed up the transmission and execution of requests, e.g. by mandating the establishment of central competent authorities or by establishing minimum requirements concerning the form and content of assistance requests.

Concrete examples for the need of a treaty basis for cooperation were discussed at a side event during the 2013 UN Crime Commission. For instance, in the absence of treaty provisions, Dutch authorities found it difficult to gather evidence from other countries against Frans van Anraad, a Dutch national who was eventually convicted of complicity in war crimes. With reference to proceedings in Uganda against leaders of the Lord’s Resistance Army, it was highlighted that international cooperation was crucial, not only to investigate atrocities or extradite perpetrators operating across national borders, but also to protect witnesses who have fled abroad and to ensure their appearance in court. The difficulties experienced by Rwandan authorities in obtaining extradition of genocide suspects now residing in Europe provide another example (see here).

In practice, identifying applicable treaty provisions that are binding on all would-be cooperating states can be difficult. Multilateral conventions dealing specifically with extradition and mutual legal assistance have a limited, often regional, membership. There is a good chance that the counterpart country is not among the parties to these conventions. On the other hand, conventions relating to international crimes have been more widely ratified, but are not considered as a sufficient legal basis for extradition or mutual legal assistance, as they usually refer back to domestic law or relevant international obligations. For instance, article VII of the Genocide Convention contains the pledge of states parties to grant extradition in cases of genocide, but makes it subject to the condition of being “in accordance with their laws and treaties in force”. (See also common article 49/50/129/146 of the four Geneva Convention of 1949, and article 88 of Additional Protocol I). Neither do the Rome Statute’s provisions on international cooperation provide a legal basis for extradition or mutual legal assistance between states, since they only regulate the relations between the ICC and states parties.

By contrast, more recent UN conventions on issues like torture, enforced disappearances or transnational organized crime contain detailed provisions on mutual legal assistance and extradition, including the option of considering the respective convention as the necessary legal basis for extradition. These conventions follow the “Hague model” of the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft, which aims at avoiding the existence of safe havens by obliging states parties to criminalize and establish jurisdiction over specific offences, as well as to extradite or prosecute alleged offenders.

According to the proponents of an international cooperation convention, such “state-of-the-art” provisions are already widely accepted and could easily be combined with existing definitions of genocide, war crimes and crimes against humanity, which are equally widely accepted – or are they? Although the need for a convention has been characterized as a technical issue, there are at least three aspects that raise legal and political questions.

The first aspect is criminalization. Some harmonization of domestic criminal law is needed in view of the double criminality requirement for extradition, but should the convention incorporate or refer to the definitions of the Rome Statute (and its Kampala amendments)? This may be difficult to accept, especially for non-parties. More importantly, some of these definitions are narrower than customary international law. In order to capture these wider notions or to adapt the language of the Rome Statute to the national legal context, many countries have preferred not to transcribe these definitions into their legislation. Some domestic laws contain reformulated definitions, others also make reference to general international law. Simply copying the Rome Statute definitions into the proposed convention could thus have unintended consequences.

A second, maybe more problematic, aspect is the establishment of domestic jurisdiction. Should the proposed convention envisage universal jurisdiction for international crimes, in line with article 8 of the ILC Draft Code of Crimes against the Peace and Security of Mankind? The ongoing discussions in the General Assembly’s 6th Committee have made clear that the definition, scope and conditions of application of universal jurisdiction are still far from settled. Moreover, there are concerns that universal jurisdiction is “abused” to subject foreign state officials to domestic proceedings in disregard of their immunities. Another important argument is that precedence should be given to the jurisdiction of states where the crimes were committed, which are usually best placed to gather evidence and protect victims, at least when such states are willing and able to exercise their jurisdiction. Adopting the “Hague model” would not resolve this question of hierarchy between different grounds of jurisdiction, but it would limit the scope of universal jurisdiction to cases where the alleged offender is present in the territory. Another question is whether such conditional universal jurisdiction should be obligatory, as in the UN Convention against Torture (UNCAT, art. 5(2)), or optional, as in the UN Convention against Transnational Organized Crime (UNTOC, art. 15(4)). While the latter alternative might address the concerns of some, it could also create conflicting commitments, particularly with regard to existing treaty obligations to bring alleged perpetrators of torture, grave breaches and other international crimes to justice, regardless of their nationality.

This brings us to the final point, which is closely related to jurisdiction and criminalization. Should the proposed convention contain an obligation to prosecute that arises independently from a request for extradition, as is the case for grave breaches under the Geneva Conventions? As confirmed by the ICJ judgment in Belgium v. Senegal (paras. 94-95), also the obligation to prosecute under article 7(1) UNCAT is independent from extradition, which becomes an alternative option if requested. However, other conventions following the “Hague model” contain more traditional variants of aut dedere aut judicare clauses that make the obligation to prosecute conditional on the refusal of a request for extradition (for an overview, see here). Under article 16(10) UNTOC, this obligation is even further restricted, as it is triggered only by refusals on the ground that the alleged perpetrator is a national of the requested state. The question of which variant would be acceptable will to a large degree depend on whether the proposed convention envisages also those international crimes for which there is currently no independent obligation to prosecute under customary or conventional international law. Ultimately, this proposal raises the fundamental issue of transforming the duty to exercise criminal jurisdiction over those responsible for international crimes into a binding obligation.