Symposium on Ljubljana – The Hague Convention on Mutual Legal Assistance: Critical Reflections – Wanted: ‘Widest Adoption Possible’ of the Ljubljana-The Hague Mutual Legal Assistance Convention

[Jennifer Keene-McCann is Senior Law and Policy Advisor with the Asia Justice Coalition secretariat. She attended the MLA Diplomatic Conference in Ljubljana.]

Throughout the diplomatic negotiations on the newly adopted Ljubljana – The Hague Convention,  delegates supported their arguments either for or against changes to the draft by stating they hoped for the ‘widest adoption possible’. As the final version would be reached by consensus, the word ‘adoption’ generally stood in for ‘ratification or accession’. 

Seeking the ‘widest adoption possible’ makes sense, particularly for a treaty that establishes both a foundation and procedure for mutual legal assistance (MLA) in criminal matters related to atrocity crimes. The greater the number of States agreeing to be bound by this Convention, the greater the number of States with the legal basis to cooperate in investigating and/or prosecuting atrocity crimes. The greater number of States cooperating to address atrocity crimes, the less impunity for such crimes can persist. 

Attending as representatives of Asia-based civil society, having the ‘widest adoption possible’ was our goal as well. Asian States were sorely underrepresented at the negotiations; only Mongolia—a member of the State-led effort’s ‘core group’—attended the negotiations with delegates while the Republic of Korea attended as a non-voting but participating ‘observer’. Nevertheless, the Convention represents a significant opportunity for our region to combat impunity for atrocity crimes outside of the Rome Statute system. We also need look no further than the present universal jurisdiction matter in Argentina regarding the Rohingya people of Myanmar to see why greater cooperation addressing atrocity crimes—particularly between so-called Global South countries—is not only needed but manifestly possible. 

Yet, the way in which States appeared to understand the ‘widest adoption possible’ belied different strategies to reach the greatest number of eventual State Parties—one by reducing prescriptive procedural obligations and another reducing substantive obligations. 

Differing Ways to Court Wide Adoption 

The phrase was used most readily in relation to two issues: data protection and domestic jurisdiction. (For a more detailed description of these debates, see here.) 

On data protection, what is now Article 16 on ‘the use and protection of personal data’ began, in the draft Convention, as a much broader ‘protection of information and evidence’. Early in the negotiations, European States raised that additional obligations were needed to be consistent with the relevant European Union Directive 2016/680. The absence of these obligations, they said, put their signatures in doubt. Use of Article 14 of the Second Additional Protocol to the Budapest Convention—a specialized treaty devised to increase cooperation in relation to cybercrime—was proposed, recognizing that non-EU States could be signatories to the Second Additional Protocol too. 

However, non-EU States argued that the proposed cut-and-paste of Article 14—within which there are 15 paragraphs and more than 20 sub-paragraphs—was unnecessarily prescriptive. This prescriptiveness—and for some, the technical resources it would require—could cause fewer non-EU States to sign on. Ultimately, States reached what was said to be a ‘vital minimum’ based on data protection principles. This, it was agreed, would allow EU States to comply with the more restrictive Directive requirements without also applying them to non-EU States. 

On domestic jurisdiction, what is now Article 8(3) requires Parties to establish jurisdiction over alleged offenders merely ‘present’ in ‘any territory under [a State Party’s] jurisdiction’ and where the State Party does not extradite or surrender the alleged offender to another relevant jurisdiction. In practice, it requires Parties to recognise universal jurisdiction for Convention crimes. The draft largely replicated the language of UN Convention against Torture (UNCAT) Article 5(2). Yet, at issue was the Article’s obligatory nature: the draft stated that a State Party ‘shall’ take measures to establish jurisdiction and some States wanted ‘may’. 

Notably, the majority of States in attendance—both European and non-European—supported maintaining ‘shall’. However, the States opposing the obligation repeatedly argued that changing the language from ‘shall’ to ‘may’ was necessary—in fact, it could be a deal breaker. The change would permit States that do not recognize the customary nature of universal jurisdiction for crimes under the Convention to nevertheless join (see debates in the UN General Assembly Sixth (Legal) Committee here, here, and here).  Ultimately, ‘shall’ was retained—and therefore so too was the substantive obligation.

Reading Between the (Red) Lines 

Ostensibly, these are two examples of compromise with the same goal—seeking the greatest number of State Parties possible. However, the context in which States employed the argument differed substantially, raising questions about which Parties were being pursued.

In relation to data protection, both ‘sides’ were seeking an Article by which they could abide. Those arguing for less prescriptive language were seeking to ensure they, and States in their region, would be able to comply with the Convention’s procedural obligations. Naturally, easier compliance with the Convention’s procedural requirements also makes the Convention an easier sell for signature and ratification. 

Reduced procedural obligations—or at least the prescriptiveness of those obligations—could make the Convention an easier sell in our region as well. Regarding anti-corruption, a 2017 Asian Development Bank/OECD study found that resourcing was the greatest obstacle to better regional MLA cooperation. This included a lack of Requested States’ technical knowledge to meet Requesting States’ legal and procedural requirements. Five States in the study, including Sri Lanka and the Philippines, stated that they struggled to comply with requests because they had ‘limited experience with MLA [due to] their size’. Assuming similar constraints will apply in implementing this Convention, reducing procedural obligations to common principles could make signature and implementation more likely. 

Regarding domestic jurisdiction, those arguing to replace ‘shall’ with ‘may’ suggested that States—who would otherwise sign up to a Convention to collectively address impunity—could be dissuaded from signing because of the Article 8(3) obligation. (Notably, the change was most vocally championed by two States that already recognise and exercise universal jurisdiction in their own domestic law.)  Here, States were arguing that the substantive obligations should be lessened to make the Convention more palatable. 

But, again applied to our region, this doesn’t ring true for even non-Rome Statute Asian States—States who are often thought not to engage with the international criminal justice regime. Consider the Member States of the Association of South East Asian Nations who are enduring much of the international scrutiny for continued impunity in Myanmar. Of these, Cambodia, Indonesia, Lao PDR, the Philippines, Thailand, and Vietnam have all either ratified or acceded to UNCAT. By becoming UNCAT State Parties, these seven States showed the political will to be bound by the same obligation in UNCAT as the proposed Article 8(3) MLA obligation. Of these seven States, only one—Cambodia—is a State Party to the Rome Statute. 

In fact, non-Rome Statute Asian States have repeatedly participated in Sixth Committee debates on the scope of universal jurisdiction. Overall, the majority of these States object not to the application of universal jurisdiction for atrocity crimes broadly, but the potential for its use to threaten State sovereignty and the principle of non-interference (see most recently here, here, here, and here). Arguably, such appeals to protect sovereignty and non-interference aren’t in conflict with appeals to joining a Convention that promotes moving justice efforts away from international tribunals and bringing them ‘closer to home’.

Sharing the Load, but With Whom?

As noted above, one interpretation of seeking the ‘widest adoption possible’ is to have a Convention that appeals to the majority of States in general. A diverse coalition of State Parties would ideally result in more States with a domestic legal framework to address atrocity crimes themselves. It would also spread the burden of investigating and prosecuting these crimes beyond—let’s be frank—Europe. 

Although not exclusively, by far the greatest number of universal jurisdiction cases are currently being prosecuted in Europe and European States have evidenced their commitment by resourcing specialized investigative units to do this work. However, Latin American and African States—like Argentina, Brazil, Chile, Ghana, South Africa, and Senegal—have all permitted filing or have heard cases under universal jurisdiction. (Notably, delegates from several of these States were not only vocal, but central to the Convention’s final text.) Furthermore, non-European States particularly across the Global South have showed both the will and capacity to lead the way in addressing impunity—as is the case for crimes against the Rohingya. While many non-European States have yet to dedicate the same resources as Europe (or indeed simply have the resources to dedicate), establishing a broad cooperation framework could lower the financial and technical hurdles to bringing cases under universal jurisdiction. 

In contrast and particularly related to reducing substantive obligations, another interpretation of seeking the ‘widest adoption possible’ is trying to ensure the Convention’s text was palatable for a minority of countries to join—and possibly front the cash necessary to support the Convention’s resourcing needs. This, too, is perhaps understandable: even while interest in international criminal accountability increases in reference to Ukraine, so might reticence about whose responsibility it is to bear the financial and political costs to try these cases. 

However, it’s a less-than-certain strategy to court States that already ‘don’t play ball’ in international criminal law, and watering down substantive obligations won’t make a State already skeptical of obliging itself more likely to join the regime. Instead, in Asia, this approach risks alienating States from joining who are also facing the increasing costs of continued impunity in the neighborhood—States that could benefit from a substantive obligation to exercise jurisdiction under a treaty and the backing of the international community to do so. 

The common goal of seeking the ‘widest adoption possible’ is admirable. Here, the considered, substantive input of States across regions hopefully foreshadows a group of similarly diverse—and numerous—Convention State Parties. As we look towards negotiations on a draft Crimes against Humanity treaty, it’s useful to strategically consider whose adoption is being sought and why. In future negotiations, it’s hoped that delegates will have the courage to believe, as in Ljubljana, that even States absent from the negotiating table will see the value of substantively cooperating against impunity.