Symposium on Ljubljana – The Hague Convention on Mutual Legal Assistance: Critical Reflections – Paving the Way for Asset Recovery and Reparations

[Danaé van der Straten Ponthoz is the Head of Advocacy and Policy at the Global Survivors Fund. The views in this post are expressed in the author’s personal capacity. Leanna Burnard was a Legal Advisor at REDRESS during the MLA negotiations. She is now a lawyer with the Global Legal Action Network.]

Introduction

26 May 2023 was a historical day in the fight against impunity for the most serious crimes under international law and reparations for victims. After two weeks of intensive negotiations in Ljubljana between representatives from 71 countries, supported by 7 international organisations and 13 civil society organisations, the Mutual Legal Assistance (MLA) Conference adopted The Ljubljana-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 “MLA Treaty”). 

The MLA Treaty has been one of the most important negotiations in the field of international criminal law since the adoption of the Rome Statute of the International Criminal Court 25 years ago. Repurposing perpetrators’ assets for reparations for victims is an important feature of international criminal law. The incorporation of provisions on asset recovery and reparations in the MLA Treaty is an important step in ensuring that restorative justice is protected and promoted, and paves the way to realise victims’ right to reparation. 

Asset Recovery and Reparations

Victims of international crimes, including genocide, crimes against humanity, and war crimes, have a right to reparation under international law. Reparations, including compensation, rehabilitation, restitution, satisfaction, and guarantees of non-repetition, are critical in helping victims to rebuild their lives. The obligation to provide reparations lies with the perpetrator or State in which the crimes were committed but, duty-bearers are usually unwilling to provide reparations. In such cases, it often falls to other States and humanitarian agencies to provide life-saving support to victims. While this is important and commendable, such assistance is often insufficient and does not amount to adequate and effective reparations for the harm caused. Humanitarian relief also lacks the acknowledgement dimension of reparations. Meanwhile, perpetrators of the most serious international crimes often benefit from war or corrupt economies and accumulate significant wealth which they enjoy in ‘safe havens’ around the world. 

To remedy such blatant injustice, States, victim groups and practitioners are increasingly exploring opportunities to recover assets of perpetrators to be repurposed for reparations – an endeavour which has gathered increased momentum since Russia’s full-scale invasion of Ukraine. For example, in 2022 Canada introduced legal reforms to enable the confiscation of funds frozen under sanctions, and their repurposing for the benefit of victims.  The EU has contemplated imposing a levy on interest made from frozen Russian assets to raise an estimated three billion euros a year to help Ukraine’s recovery from the war. Civil society has also developed innovative proposals to secure funds through perpetrators’ wealth, such as repurposing fine monies, and confiscating frozen assets or assets implicated in sanctions violations. In this context, the MLA Treaty presented a critical opportunity to establish asset recovery practice in the prosecution of international crimes. 

MLA Treaty Provisions on Asset Recovery and Reparations

To illustrate how asset recovery provisions might work in the context of mutual legal assistance for the prosecution of international crimes, let us imagine that Argentina is prosecuting for war crimes a Russian national, with property worth 100 million pounds in the UK. Following his conviction, Argentina would like to ask the UK to freeze and confiscate the property to satisfy a compensation order against the defendant for the benefit of the victims. This was not possible in the original draft text (explored below). However, the negotiations yielded new language to support such cooperation.  

In the final text of the MLA Treaty, asset recovery is encapsulated in Articles 45, 46 and 47, reinforced by Article 83 on victims’ rights. Article 45(1) requires States Parties to comply with a request for confiscation of: 

“the proceeds of crime or property the value of which corresponds to that of such proceeds of crime to which it applies this Convention, including laundered property, or of property, equipment or other instrumentalities used in or destined for use in such crimes, or other property for the purposes of providing reparations to victims in accordance with article 83, paragraph 3, situated in its territory” (emphasis added). 

The addition of “property for the purpose of providing reparations to victims” reflects a significant shift from the original draft, and a huge success for civil society’s campaign. 

Unfortunately, this wording was not added to the remaining relevant provisions, such that they only refer to property which is the proceeds of the crime, or property destined to be used in such crimes. For example, Article 45(2) only requires States Parties to take measures to identify, trace and freeze or seize the proceeds of crime or property destined to be used in such crime. These interim steps before confiscation can be critical in preventing ‘asset flight’ such as where perpetrators dissipate assets among their close associates to evade authorities. Where interim measures are not applicable to property to be confiscated for reparations there is a risk that such assets cannot be protected and preserved for this purpose. Similarly, Article 47(2) requires States Parties to give priority consideration to returning confiscated proceeds of crime to provide compensation to the victims. 

Although the additional language was not included in the subsequent articles on asset recovery, this appears to be an oversight. In light of the clear intent of the drafters to broaden the scope to also include any ‘property for the purpose of providing reparations to victims’, it is necessary for this to be read into relevant provisions where an inconsistency arises. 

One point that is consistent is the caveat that States Parties are only required to comply, “to the greatest extent possible and in accordance with its domestic law.” It is therefore critical that States review as appropriate their domestic legislation to enable them to comply with the asset recovery provisions of the MLA Treaty. 

Negotiating the MLA Treaty

Initial Challenges

While the final text of the MLA Treaty is a positive step for asset recovery and reparations, it required a concerted effort on behalf of civil society to reach this point.  Civil society began raising the matter of asset recovery in the MLA Treaty with the Co-Sponsoring and Supporting States in 2019, though submissions and direct interventions, including at the preparatory conferences.  However, by the commencement of the Diplomatic Conference in Ljubljana, it appeared that the subject had not been properly considered and addressed.

When considering the hypothetical scenario of Argentina’s request to the UK regarding the assets of the Russian national, under the draft articles of the MLA Treaty (41 and 42), this would have been impossible because the only property that could be recovered was the proceeds of crime, or property destined to be used in such crimes. Moreover, the repurposing of such property was limited to returning it to the prior legitimate owner, thereby precluding its use as reparations for victims of international crimes. 

These provisions would not have worked in practice. Indeed, beyond pillage, it is difficult to conceive of circumstances where it could be proved that a perpetrator’s wealth is derived from genocide, crimes against humanity or war crimes, particularly where the wealth has been generated through wide-reaching systems of corruption that are extremely difficult to evidence. Even if it could be proven that the assets were the proceeds of crime, there would be exceedingly few cases where it could be proved that the wealth originally belonged to specific victims, such that it could be returned to them as the prior legitimate owners. 

Accordingly, at the outset of the conference, States risked creating provisions that were rarely, if ever, used, and missing a critical opportunity to fund reparations for victims through perpetrator assets. In order to address this, there were three key challenges to overcome. 

First, there appeared to be a lack of expertise among negotiating State representatives regarding asset recovery and relevant laws. This meant that even where representatives were open to civil society’s proposals in principle, they were reluctant to launch into detailed negotiations or take a clear position without getting instructions from their governments. This was compounded by a general concern among State representatives that finalising the Treaty within two weeks was very ambitious, and there was insufficient time for them to get full instructions on provisions whose relevance was not well understood.

Second, States wanted to keep the MLA Treaty as consistent as possible with other international instruments, including the UN Convention Against Corruption (UNCAC) and the UN Convention on Transnational Organised Crime (UNTOC). Yet, there was a danger in copying and pasting from treaties that have a fundamentally different purpose. UNCAC and UNTOC are about money laundering and corruption. Proceeds of crime falls squarely within their functions. But while crimes against humanity, genocide and war crimes may contribute to the generation of wealth in the context of wide-reaching corruption and abuse, they will rarely (if ever) do so in a way that is direct enough to suggest that the wealth was ‘obtained through’ the crimes to satisfy the stringent legal standards of proving ‘proceeds of crime.’

Third, some States were concerned about the Treaty going beyond the capacity of their domestic legal systems. This was solved by including the words “to the extent possible in its domestic legal system”. The MLA Treaty would thereby at least create the opportunity to enable asset recovery for the purpose of reparations, even where it did not create an obligation.

The Role of Civil Society

It is clear that without civil society’s concerted and persistent efforts, the opportunity for the MLA Treaty to foster the confiscation and repurposing of perpetrators’ assets to fund reparations would not have been seized. It required multiple statements during the plenary meetings, clear examples and written language proposals for the message to start to be heard. We also engaged bilaterally with different State representatives and made direct interventions during the drafting negotiations. The dial finally began to move thanks to interest by representatives from the Netherlands, Australia and Slovakia.

Lessons Learned and Next Steps

The organisers of the conference and participating States should be commended for their openness to civil society involvement, which proved critical beyond the topic of asset recovery and reparations. It was also evident that expertise on niche issues in treaty development is also key, requiring States to ensure sufficient resources are committed to negotiating all aspects of the treaty.

To ensure that victims and States benefit from all the opportunities provided by the MLA Treaty, States must first ratify the MLA Treaty without reservations. They must then assess, and where appropriate, amend, their domestic laws to enable asset tracing, freezing, seizing and confiscation to compensate victims following conviction, and enable them to rebuild their lives in dignity. Doing so will make a significant contribution towards justice and accountability, and ensuring there are no more safe havens for perpetrators.