27 Jul Symposium on Ljubljana – The Hague Convention on Mutual Legal Assistance: Critical Reflections – A Historic Step Forward in the Fight Against Impunity for International Crimes
[Pamela Capizzi is the Head of Pool of Legal Expertise at TRIAL International. Hugo Relva is Legal Adviser for Amnesty International (International Secretariat) at the International Justice Team.]
Pamela and Hugo participated in the negotiations of the Ljubljana-The Hague Convention in May 2023 on behalf of TRIAL International and Amnesty International, respectively.
On 26 May 2023, 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 was unanimously adopted by nearly 70 States. Born as an initiative of a few States, the so-called “Core Group”, notably Argentina, Belgium, Mongolia, the Netherlands, Senegal and Slovenia, the Ljubljana-The Hague Convention turns out to be a major new international criminal law treaty containing important human rights law provisions. It aims “to facilitate international cooperation in criminal matters between States Parties with a view to strengthening the fight against impunity” for the most serious crimes (Article 1).
The crimes primarily concerned by the Convention are the crime of genocide, crimes against humanity and a list of war crimes which reproduces almost in its entirety that of the Rome Statute of the International Criminal Court, with the exception of those war crimes linked to subsequent amendments to the Rome Statute itself (Articles 2(1) and 5(4)). However, in accordance with Article 2(2), each State can extend the application of the entire Convention to any of the other international crimes provided for in annexes to the treaty itself. Those are other war crimes, including intentionally using starvation of civilians in a non-international armed conflict (Annex E) and war crimes perpetrated by employing some specific weapons (Annexes A-D), the crimes of torture (Annex F) and enforced disappearance (Annex G), as well as the crime of aggression (Annex H).
This post will focus on a few provisions regulating domestic jurisdiction over those crimes, notably: Article 8 on the establishment of jurisdiction – to be read in conjunction with Article 92(3) on the possibility to formulate a reservation regarding jurisdiction on the basis of the mere presence of the alleged offender – as well as on Article 14(1) on the obligation to extradite or prosecute (aut dedere aut judicare).
Establishing Domestic Jurisdiction over International Crimes
Under the Ljubljana-The Hague Convention, quite unsurprisingly, each State Party has the obligation to establish jurisdiction over all international crimes covered by the treaty “when the crimes are committed in any territory under its jurisdiction or on board a vessel or aircraft registered in that State” (territoriality) and “when the alleged offender is a national of that State” (active personality principle) (Article 8(1)(a)-(b)). On the other hand, States “may take such measures” to provide for their jurisdiction “when the alleged offender is a stateless person who is habitually resident in that State’s territory” and “when the victim is a national of that State” (passive personality principle) (Article 8(2)(a)-(b)).
But when it comes to international crimes, territoriality and active personality principles may not be enough to effectively tackle impunity. Like the International Convention for the Protection of All Persons from Enforced Disappearance (CPED) (Article 9(2)) and the widely ratified Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 5(2)), Article 8(3) of the Ljubljana-The Hague Convention stipulates that:
“Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such crimes in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite the alleged offender to any of the [relevant] States […], or surrender the alleged offender to a competent international criminal court or tribunal” (emphasis added).
In other words, under this new treaty, a State Party will have the duty to establish its jurisdiction on the basis of the mere presence of the alleged perpetrator of international crimes committed outside its territory and not linked to the State by the nationality of the suspect or the victim, or by harm to the State’s own national interests.
No More Safe Havens for Perpetrators of the Most Heinous Crimes: The Obligation to Prosecute or Extradite (aut dedere aut judicare)
Besides providing for the duty to establish jurisdiction on the basis of even short-term, non-habitual presence of the alleged offender on a State Party’s territory, even more interestingly, the Ljubljana-The Hague Convention equally provides for the obligation to exercise it. In this regard, pursuant to Article 14(1):
“The State Party in the territory under whose jurisdiction a person alleged to have committed any crimes to which this Convention applies […], is found shall in the cases contemplated in article 8, if it does not extradite or surrender the person to another State or a competent international criminal court or tribunal, submit the case to its competent authorities for the purposes of prosecution”.
This aut dedere aut judicare provision reproduces mutatis mutandis the one contained in the Convention against Torture (Article 7(1)), as suggested as well by the footnote to the aut dedere aut judicare provision included in the MLA Draft Convention, the text on the basis of which the Ljubljana-The Hague Convention was negotiated. According to the International Court of Justice’s (ICJ) interpretation of Article 7(1) of the Convention against Torture, as spelled out in Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), the State has the obligation “to submit the case to its competent authorities for the purpose of prosecution, irrespective of the existence of a prior request for the extradition of the suspect” (para. 94). In other words, the State has a full obligation to investigate and, if there is sufficient admissible evidence, prosecute the alleged offender found in any territory under its jurisdiction, but it may be relieved of such obligation if it receives a request for extradition and executes it (paras. 94-95). This is the same interpretation previously adopted by the UN Committee against Torture in Suleymane Guengueng et al. v. Senegal (para. 9.7).
Because of its wide scope of application, the aut dedere aut judicare obligation contained in the Ljubljana-The Hague Convention could be a particularly effective instrument in avoiding the creation of safe havens for perpetrators of the most serious crimes. It also constitutes a remarkable development in international law. This is in fact the first time that a potentially universal treaty provides expressly for the aut dedere aut judicare obligation in relation to the crime of genocide and crimes against humanity.
Furthermore, the Convention considerably broadens the list of war crimes covered by a treaty obligation to prosecute or extradite. In this regard, so far, an aut dedere aut judicare obligation based on a treaty exists for “grave breaches” of the 1949 four Geneva Conventions (respectively Articles 49, 50, 129, 146) and the 1977 Additional Protocol I (Article 85), for three “serious violations” of the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (Article 17(1)) and for crimes against United Nations and associated personnel (Article 14 of the Convention on the Safety of United Nations and Associated Personnel).
Besides those war crimes, a treaty obligation to prosecute or extradite regarding other international crimes exists in relation to the crimes of torture and enforced disappearance (Article 7(1) of the Convention against Torture and Article 11(1) of CPED, respectively). In this sense, the Ljubljana-The Hague Convention significantly expands the jurisdiction of States Parties over crimes under international law.
A Limited Possibility to Restrict Jurisdiction Grounded on Mere Presence
Grounding jurisdiction on the mere presence of the alleged offender in a State’s territory was eventually one of the most controversial issue during the two-week negotiation of the Convention in Ljubljana. The final compromise found provides for the possibility of limiting the obligation arising from Article 8(3) and, as a result, from Article 14(1), too. In particular, Article 92(3) states:
“A State may, at the time of signature, ratification, acceptance or approval of or accession to this Convention, formulate a reservation, for renewable periods of three years, based on grounds existing in its domestic law and in accordance with its obligations under international law, limiting the establishment of its jurisdiction under article 8, paragraph 3”.
According to the letter of that provision, there are at least three prerequisites to the possibility of formulating a reservation. Firstly, a reservation to Article 8(3) must be “based on grounds existing in domestic law”. Secondly, the reservation must be in compliance with the State’s “obligations under international law”, which include customary international law. Thirdly, the reservation is only valid for three years at a time. Whilst it can always be renewed for periods of the same duration, arguably, the process is not automatic, and a new reservation must be formulated ex novo. As a result, the possibility to make a reservation is arguably particularly limited. In any case, such reservation can be withdrawn at any time (Article 92(4)).
States’ “Primary Responsibility”
The Ljubljana-The Hague Convention has great potential and can be a remarkable tool in combating impunity for international crimes. Because of its wide scope of application and potentially universal reach, the Convention considerably expands the aut dedere aut judicare obligation under international law. In this sense, it recognizes increased responsibilities to prosecute alleged perpetrators of the most serious crimes, even if no connection to the prosecuting State exists beyond the mere presence on its territory.
As set forth in the Preamble to the Convention, “States have the primary responsibility to investigate […] international crimes […] and to prosecute the alleged offenders of the crimes in question and […] must take all necessary legislative and executive measures to that effect” (para. 3). The Convention will open for signature in February 2024. In order to fulfil their “primary responsibility”, States should promptly sign, ratify and fully implement the Convention, without resorting to the possibility of making the reservation set out in Article 92(3). They have the opportunity, but also the “primary responsibility”, to show their commitment towards the fight against impunity for the most serious crimes.