Symposium on Ljubljana – The Hague Convention on Mutual Legal Assistance: Critical Reflections – Closing the Impunity Gap: The Prospects and Potential of the Ljubljana-The Hague Convention

[Raquel Saavedra is an international human rights attorney specializing in accountability for atrocity crimes and currently serves as an International Legal Adviser for the International Commission of Jurists (ICJ) in the Asia-Pacific region. 

Lina Baddour is an attorney specializing in international criminal and human rights law and policy. She represents clients in international proceedings and serves as a Senior Legal Advisor (consultant) with Global Rights Compliance.]

Lina and Raquel participated in the negotiations of the Ljubljana-The Hague Convention in May 2023 on behalf of Global Rights Compliance and the International Commission of Jurists, respectively. The views expressed in this post are in the authors’ personal capacities.

The Impunity Gap and its Impact

The pursuit of justice for grave crimes under international law has been an enduring and formidable challenge, to say the least. Decades since the international community vowed “never again”, the world continues to witness the perpetration of gross human rights violations and abuses that amount to crimes under international law around the world. Yet, even in the face of international condemnation, many of those responsible for these crimes manage to successfully evade accountability, often while continuing to travel and hold assets abroad. 

The absence of an efficient and effective multi-lateral international cooperation framework to ensure accountability for perpetrators of such crimes has perpetuated this grievous impunity gap. Meanwhile, the lack of accountability has not only posed a significant threat to global peace and security but has yielded dramatic consequences for victims by allowing perpetrators to roam free and undeterred, perpetuating cycles of violence, undermining trust in the very foundation of the rule of law and hampering efforts to achieve lasting peace and reconciliation.

In an effort to tackle this pressing issue, States adopted the Ljubljana-The Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes, and other International Crimes (‘the Ljubljana-The Hague Convention’) on 26 May 2023 in Ljubljana, Slovenia. The adoption followed years of State consultations and two weeks of intense negotiations in which 68 States, seven international organizations, and 10 civil society organizations participated in the negotiations. The result was the landmark development of a common architecture to guide international cooperation in the investigation and prosecution of crimes under international law. 

In a prior symposia post, Vaois Koutralis points out that “[a]lthough the scope of the Convention and its general provisions may attract attention from public international law scholars, it is likely the ‘technical’ provisions of the Convention that will prove more valuable in everyday practice.” Indeed, the Ljubljana-The Hague Convention has the potential to be a pivotal instrument for strengthening accountability and addressing the persistent challenge of impunity because these technical provisions. 

In this post, we explore the potential of the Ljubljana-The Hague Convention in relation to accountability by examining some of the core obligations that underlie its architecture and comment on their potential to facilitate the successful investigation and prosecution of the core crimes under the Convention. Specifically, we focus on three key obligations:

1. Domestic incorporation of genocide, crimes against humanity and war crimes;
2. Establishment and exercise of jurisdiction over suspects; and
3. Cross-border cooperation on investigations, judicial proceedings, and execution of judgments

These obligations, if implemented in accordance with the Convention, can play a crucial role in strengthening domestic legal frameworks and the cross-border cooperation essential to effective investigations, while also closing legal loopholes that have traditionally enabled perpetrators to escape accountability.

The Architecture to Tackle Impunity Through International Cooperation

1. Domestic Incorporation of Genocide, Crimes Against Humanity and War Crimes

States are mandated to criminalize and establish appropriate penalties for the crimes covered by Article 2(1) of the Convention – namely, genocide, crimes against humanity and war crimes as defined by the Rome Statute. Optionally, they may extend the Convention’s application to the crimes listed in the annexes to the Convention, incorporating those crimes that have been codified in the years since the 1998 conclusion of the Rome Statute. While the Convention emphasizes that the domestic definitions of these crimes should, at a minimum, align with the formulations contained in the Rome Statute, States retain the flexibility to adopt more expansive definitions in line with customary international law.

During negotiations, the inclusion of substantive definitions for the crimes posed challenges. States took different positions on the substantive definitions of the crimes and debated the necessity of including definitions in the (typically procedural) MLA context. In the end, the inclusion of the Rome Statute definitions was favored by the majority of States to ensure consistency of legal frameworks between State Parties to the Convention and State Parties to the Rome Statute, as well as consistency of obligations for States Party to both instruments. Beyond this, the inclusion of definitions addressed certain practical issues in implementation of the Convention.

State practice across regions differs significantly with respect to domestic incorporation of the crimes relevant to the Convention and their respective definitions. In several regions, only a limited number of jurisdictions have criminalized genocide, crimes against humanity, or war crimes in domestic law beyond the grave breaches outlined in the Geneva Conventions. This insufficient domestic criminalization may result in a perpetrator evading justice entirely or in a criminal prosecution that fails to adequately reflect the true nature, scope or scale of the crime committed.

Moreover, where a country with domestic criminalization of the above-mentioned crimes under international law seeks mutual legal assistance from a State without corresponding domestic laws, legal complexities or barriers typically arise. Many countries are unwilling to extradite individuals for crimes under international law not recognized as offenses in their own legal systems. Where countries are willing to cooperate, for example on the basis of an existing bilateral mutual legal assistance treaty, evaluations take place on a case-by-case basis, typically requiring the presentation of persuasive legal arguments and substantial evidence to the requested State, itself an extremely lengthy and burdensome process with an uncertain outcome. 

So while traditional mutual legal assistance treaties do not contain substantive definitional provisions, the inclusion of these definitions in the Ljubjana-the Hague Convention serves two critical functions in the fight against impunity. First, by requiring and facilitating domestic criminalization, the Convention empowers victims to report violations within their jurisdictions, as well as, in the jurisdictions of other State Parties, enhancing prospects for effective investigation and potentially prosecution, thereby strengthening the fight against impunity. Second, the coherence established among State Party jurisdictions streamlines legal processes and cooperation in investigating and prosecuting offenders, particularly in cross-border cases, reducing the number of legal challenges that may arise.

2. Establishment and Exercise of Jurisdiction over Persons

Similarly, a fundamental contribution of the Convention to strengthening accountability rests in the clarity and commonality of the framework it provides to States Parties concerning obligations on the establishment and exercise of jurisdiction over persons. Domestic legal frameworks for the investigation and prosecution of crime differ amongst States, with some States retaining territorial or active or passive personality requirements to the exercise of jurisdiction even over crimes under international law. Where domestic legal frameworks extend beyond the traditional personality and territorial bases to allow for universal jurisdiction in respect of certain crimes under international law, in accordance with obligations under customary international law and treaty, gaps and ambiguity as regards the full extent of the obligation may impede action. Still, other States may seek to impose a subsidiarity requirement that can be blind, among other things, to the capacity, resources and/or willingness of the State with a stronger connection to the relevant crime to pursue accountability, irrespective of their obligations under international law to do so. These jurisdictional gaps and ambiguities have long hindered the pursuit of justice for crimes under international law by enabling perpetrators to find safe haven from effective investigation and prosecution, evading accountability by crossing borders or seeking refuge in countries with weaker or more accommodating legal systems.

The Convention combats the prospect of ‘safe havens’ by plainly requiring States Parties to take measures to establish and exercise their jurisdiction when a person alleged to be responsible for genocide, crimes against humanity or war crimes (as defined under the Convention) is present in any territory under their jurisdiction and whenever they do not extradite the alleged perpetrator to another State with jurisdiction or surrender that person to a competent international criminal court or tribunal. Per the Convention’s Articles 8(3) and 14, the requirements endure irrespective of the alleged perpetrator’s nationality, where the crime occurred, and the precise scope of application of the customary international law principle of aut dedere, aut judicare. Moreover, the Convention rejects derogation based on the principle of subsidiarity. 

While in the final hours of negotiations the will of two States prompted the insertion into the Convention of the possibility of a reservation that allows the reserving State to limit its obligation under international law to either extradite or prosecute, the reservation does not allow a State to escape the obligation to establish jurisdiction entirely.  Moreover, the scope of any reservation is limited temporally and by the bounds of the reserving State’s obligations under international law. Furthermore, while the reservation is sure to attract the attention of commentators now and to come, sight should not be lost of the fact that the vast majority of States were overwhelmingly in favor of the progressive language of Article 8(3) without any reservation. 

By establishing consistency among domestic legal frameworks, filling gaps and clarifying jurisdictional ambiguities, the Convention’s framework for the establishment and exercise of jurisdiction has the potential to make a significant contribution towards strengthening accountability and combatting impunity. An exploration of the full implications of these provisions will be dealt in a subsequent post by Pamela Capizzi and Hugo Relva.

3. Cross-border Cooperation on Investigations, Judicial Proceedings and Execution of Judgments

The Convention places significant emphasis on fostering international cooperation and responsibility-sharing in the investigation and prosecution of the covered crimes beyond that which has existed under other multilateral treaties on the topic. In the Convention, States have a clear duty to execute requests for cooperation, requiring them to provide the broadest possible mutual legal assistance in all aspects of investigations, prosecutions, judicial proceedings, and execution of judgments related to the covered crimes.

While this post cannot comprehensively cover all the elements of these obligations due to the detailed nature of the provisions, the significance of this framework cannot be underestimated when viewed as a whole. Often, evidence, suspected perpetrators, victims, witnesses, and proceeds of these crimes are scattered across multiple jurisdictions, making the resolution of these cases reliant on multi-lateral cooperation, in addition to the sharing of resources, specialized knowledge, and collaborative efforts from State Parties with relevant information, evidence, or resources.

Indeed, one noteworthy innovation among these provisions is the opportunity for cross-border observation (see Article 42). For example, these provisions empower law enforcement officers from one State Party to continue observing and monitoring individuals suspected of involvement in Convention-covered crimes, even if they cross international borders into another State Party, where authorization is granted by the territorial State. Authorized officers can follow leads and gather evidence that might otherwise be challenging to obtain when negotiating access on a case-by-case basis. Furthermore, if there is strong evidence that the suspect can lead to the identification of another perpetrator on the territory of another State Party, authorities can seek authorization to extend their observation into this territory. The potential for accountability lies in the ability to track and monitor suspects regardless of their attempts to evade justice through geographical maneuvering.

Additional provisions on cross-border cooperation provide the necessary grease to the wheels of notoriously complex cases and hold the potential to significantly bolster the global capacity to investigate and prosecute suspected perpetrators. The framework’s mechanisms, including mutual legal assistance, extradition, joint investigations and enforcement of judgments, foster the sharing of resources, expertise and intelligence among States. Together, these efforts strengthen the international community’s collective ability to bring perpetrators to justice, decreasing the space in which perpetrators can maneuver to evade accountability.

Conclusion

The adoption of the Ljubljana-The Hague Convention marks a significant milestone in combating impunity for grave crimes under international law. Emphasizing international cooperation and responsibility-sharing, the Convention’s core obligations strengthen accountability practically. Domestic criminalization of crimes covered by the Convention, along with the option to adopt more expansive definitions, ensure victims have legal avenues for reporting offenses, fostering coherence among State Parties.

Establishing jurisdiction over suspects regardless of nationality or territory prevents evasive tactics, while multilateral assistance encourages cooperation in investigations and prosecutions involving evidence and suspects scattered across borders. The provision for cross-border observations empowers law enforcement officers to track suspects internationally, aiding their apprehension and upholding justice.

In conclusion, the Ljubljana-The Hague Convention offers an important tool to combat impunity, fostering collaboration among State Parties in the pursuit of a just and accountable world. As we continue to confront the challenges of ensuring accountability for these heinous offenses, the Convention’s potential to enhance international cooperation remains a promising and pivotal step towards a world where justice prevails over impunity. However, for the Convention to realize its full potential, the onus falls on States to ratify without reservation and effectively implement it, both individually and collectively.