Bolstering the fight against impunity through mutual legal assistance outside the ICC framework

What is it about?

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, adopted in May 2023, was accepted as more than a ‘pure’ mutual legal assistance treaty (MLAT, as, in addition to regulating MLA issues, it also addresses substantive international criminal law issues. In this article it is argued that due to this less flexible approach, the Convention may not be as widely accepted as it was intended to be and therefore might fail to achieve its goal to prevent impunity. This article presupposes that a pure MLAT — which concentrates on collaboration between states on procedural aspects of criminal investigations and preparations for prosecution — may be attractive to more states. The article focuses on extradition and discusses how to regulate extradition if the requirement that member states adopt unitary definitions of international core crimes in their domestic laws were omitted from the treaty. It suggests dual criminality and a flexible interpretation of this principle as a basis for extradition of alleged perpetrators of core crimes between states that define the prohibitions on international core crimes differently. The article also addresses ‘the special use’ of dual criminality, which requires a match of jurisdictional bases between the states involved in the process of extradition, and questions whether or not it should serve as a bar to extradition. In this context, the article addresses universal jurisdiction (UJ) and makes proposals to provide states parties with the option to limit extradition requested on the grounds of UJ according to parameters such as complementarity and the involvement of the prosecuting state’s high legal authorities in the prosecution or investigation of the alleged offense.

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Photo by Tingey Injury Law Firm on Unsplash

Photo by Tingey Injury Law Firm on Unsplash

Why is it important?

The fight against impunity is a core component of atrocities prevention. The unfolding atrocities around the world raise the question of what the international community can do to reinforce the fight against perpetrators of atrocities. Mutual legal assistance is a dominant tool at the disposal of criminal law to curb crime, yet, it has not been applied until 2023 in international criminal law. The original aim of the Ljubljana-the Hague convention was to focus on pure mutual legal assistance. Yet, it deviated from this purpose and added obligations on states to comply with substantive international criminal law issues, that are not agreed upon all states. To bolster the fight against impunity, as this article suggests, it is crucial that the convention is amended so as to achieve its primary goal and be attractive to more states.

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