Some Reflections on the Proposal for a New Mutual Legal Assistance Treaty for International Crimes

[Madaline George, JD, is the Whitney R. Harris World Law Institute Fellow at Washington University School of Law.]

During the 17^th Assembly of States Parties (ASP) to the International Criminal Court (ICC), a side event was hosted on the Mutual Legal Assistance (MLA) Initiative. The side event – The Initiative for a New Multilateral Treaty on Mutual Legal Assistance and Extradition for Domestic Prosecution of the Most Serious International Crimes – was co-hosted by the governments of Argentina, Belgium, Mongolia, the Netherlands, Senegal, and Slovenia (the ‘Core Six States’).

This Initiative emerged in 2011, sparked by the work of the Crimes Against Humanity Initiative, which had discussed an MLA protocol during the course of its work on a new crimes against humanity treaty in 2009 and 2010. The MLA Initiative proposes the adoption of a new treaty on mutual legal assistance to aid in the investigation and prosecution of some the most serious international crimes, including genocide, certain war crimes, and crimes against humanity. The Draft Preliminary Treaty (“MLA 2018 Draft”) which was released in November 2018 does not include aggression, torture, or enforced disappearance. The MLA 2018 Draft has apparently been circulated amongst supporting States but is not yet publically available. (A copy was not provided or made available to participants at the Side Event, but was received by the author from one of the participants in the MLA Initiative’s November conference). At the side event the Core Six States emphasized the role practitioners played in the drafting process, with the goal of developing a treaty that would be useful in practice, and noted that the MLA 2018 Draft draws inspiration from other modern treaties – the U.N. Convention against Transnational Organized Crime and the U.N. Convention against Corruption in particular.

A Second Preparatory Conference on the MLA Initiative will be held with co-sponsoring States on March 11-14, 2019 in the Netherlands. No formal mechanism seemingly exists for input from other States or civil society. The organizers indicated their hope that the Draft would be sent to a Diplomatic Conference following the March meeting.

The Draft and work of the MLA Initiative could enhance the capacity of States to cooperate with each other with respect to the investigation and prosecution of crimes currently with the jurisdiction of the International Criminal Court. This is a positive development. However, the Initiative itself as well as the current text raises some concerns. First, it is not clear what relation an MLA treaty will have to the International Law Commission’s work on articles for a new crimes against humanity treaty, which is expected to be sent to the U.N. General Assembly or a diplomatic conference later this year. An intervention by Austria’s Foreign Minister at the Side Event raised this concern and noted that, politically, it could be difficult to bring two treaties, especially on similar topics, before a national parliament simultaneously. He encouraged the MLA Initiative to work with the ILC to bring these efforts together, rather than working in parallel. Second, a concern was raised about a perceived lack of transparency surrounding the work of the MLA Initiative, resulting in part because it is not working under the auspices of the United Nations – a decision that was questioned by a separate intervention at the Side Event.

Particular articles of the MLA 2018 Draft seemed problematic as well. For example, article 52 of the draft provides for amnesties and pardons for genocide, war crimes, and crimes against humanity, in contravention of customary international law. As the High Commissioner for Human Rights concluded in 2009:

An amnesty that exempted crimes against humanity from punishment and/or civil remedies would also be inconsistent with States parties’ obligations under several comprehensive human rights treaties.

Moreover, decisions from domestic courts and ad hoc tribunals seem to suggest that amnesty for the most serious international crimes cannot be sustained. The Special Court for Sierra Leone unequivocally ruled in the 2004 Lomé Accord Amnesty Decision that amnesties did not bar the prosecution of international crimes before an international or foreign court. (See also the Furundzija Judgment, in which the ICTY found that torture could be prosecuted by a foreign State, international tribunal, or subsequent regime, even if it had been the subject of an amnesty). Indeed, a Dutch Court of Appeal recently found, in a case against a Dutch national for war crimes in Liberia, that

a national amnesty scheme which rules out prosecution concerning war crimes or crimes against humanity, is incompatible with the international obligation to institute prosecution in respect of such crimes.

At the Side Event, representatives of Amnesty International and Parliamentarians for Global Action echoed these concerns regarding article 52.

Another cause for concern is the grounds for refusal. Those currently included in the MLA 2018 Draft seems unnecessarily vague, subjective, and over-inclusive. This is demonstrated by the inclusion of the article 19(b) ground “if the requested State party considers that the execution of the request is likely to prejudice its sovereignty, security, ordre public or other essential interests.” If the goal of achieving an effective tool for inter-State cooperation is to be realized, the grounds for refusal ought to be explicit and narrowly construed.

Other organizations raised concerns related to victims’ rights, human rights safeguards, and suggested that the MLA Initiative should consider adopting broader definitions of the crimes that reflect developments in the law that have occurred since the adoption of the Rome Statute in 1998. In particular, it would be wise to expand the definition of genocide to include other perpetrated groups, remove the restrictive and unnecessary definition of “gender,” and eliminate the problematic jurisdictional threshold from the definition of persecution that it be carried out “in connection with” another act under the jurisdiction of the ICC.

It would seem that a more prudent course of action, given the concerns about possible conflicts between the texts and the capacity of States to consider both at once, might be to sequence the work of the MLA Initiative with the work of the ILC, allowing the work of the International Law Commission (which has been ongoing since 2014) to come to fruition and then build upon the ILC’s product to create a new MLA treaty within the U.N. system. It is worth noting that work on the proposed draft treaty on crimes against humanity has been ongoing for more than a decade, having been negotiated and debated by academics and civil society for years before moving to the International Law Commission. Moreover, the ILC’s work on the topic has increasingly gained the approval of States, as evidenced by the positive reactions to the ILC’s Draft Articles in the Sixth Committee. It would be disappointing if the perception that the MLA Initiative text is in “competition” with the International Law Commission’s work dampened the enthusiasm of States to adopt, decades after the Nuremberg trial and judgment, a new global convention on crimes against humanity.