Fisseha Tekle is a legal advisor at Amnesty International with a focus on International Humanitarian Law and International Justice

On 26 May 2023, in Ljubljana, Slovenia, a Diplomatic Conference of delegates from 79 states adopted a landmark Convention: 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 Diplomatic Conference between 15-26 May was also attended by delegates from observer states and civil society organizations. As detailed analyses on the provisions of the Convention and the negotiation process are now emerging, here I discuss some of the significant gains the new treaty offers towards narrowing the accountability gap for crimes under international law, such as genocide, crimes against humanity and war crimes.

Framework for inter-state cooperation in investigation and prosecution

On many occasions – particularly when states exercise any form of extraterritorial jurisdiction over crimes committed outside their own jurisdictions – evidence, victims, and suspects, as well as assets that can be potentially used for reparation for the victims are scattered over two or more states. Yet, domestic laws of several states do not always allow the extradition of suspects or other legal cooperation for various reasons, including based on the nationality of the suspect, the type of the crime, requirements of double criminalisation, or of prima-facie evidence. Conflicts among domestic rules governing the gathering and production of evidence, and seizure, confiscation, and transfer of asset may further complicate the investigation and any potential prosecution. The cumulative effect of these jurisdictional fences is that they frustrate effective investigation and prosecution; thereby enabling impunity for grave crimes.

The Ljubljana-The Hague Convention now provides a global framework for inter-state judicial cooperation to overcome these barriers. According to the Preamble, fighting impunity for crimes covered by the Convention is its main purpose. This is also reaffirmed in its Article 1, which states that the treaty aims to “facilitate international cooperation in criminal matters between States Parties with a view to strengthening the fight against impunity”.

Accordingly, the Convention provides a menu of tools and procedures for domestic legal systems of the states parties to work together at various stages of the criminal justice process. Those include video conferencing; examination of objects and sites; provision of information, evidentiary items and expert evaluations; execution of searches, seizures and confiscations; service of judicial documents; use of special investigative techniques; conducting cross border observations; witness protections; and the extradition of suspects and transfer of sentenced persons, among others. In cases where one jurisdiction requires the existence of a treaty to carry out measures of mutual legal assistance in general, or extradition specifically, but no other bi- or multilateral treaty is applicable, this Convention now is deemed to provide such a legal base under the national law of a state party (Articles 29, 50).

Pushing boundaries

Legal cooperation for the investigation and prosecution of crimes is not unique to the Convention. Multiple international treaties on mutual legal assistance, including the United Nations Convention against Transnational Organized Crime (UNTOC) and the United Nations Convention against Corruption (UNCAC), oblige states parties to provide each other legal assistance in investigation and prosecution of the crimes covered under the respective treaty. There are also region-specific treaties on mutual legal cooperation in criminal matters, such as the European Convention on Mutual Legal Assistance in Criminal Matters, the Inter-American Convention on Mutual Legal Assistance in Criminal Matters, the Association of Southeast Asian Nations Treaty on Mutual Legal Assistance in Criminal Matters, and the African Union Convention on Preventing and Combating

One unique feature of the Ljubljana-The Hague Convention is that it envisages a framework of global cooperation for the investigation and prosecution of crimes under international law, mainly, genocide, crimes against humanity, and war crimes. Moreover, states parties can also opt to extend the application of the Convention to crimes defined in its annexes, such as enforced disappearance, torture, and aggression.

The Convention is a landmark in international justice as it considerably expands the scope of crimes that trigger state obligations to extradite or prosecute (aut dedere aut judicare, Article 14) well beyond those already existing under international treaty law. The Convention on the Prevention and Punishment of the Crime of Genocide does not provide for aut dedere aut judicare obligations on states parties, and there is not yet a finalized international convention on Crimes against Humanity (more below). War crimes committed in violation of the 1977 Additional Protocol II to the 1949 Geneva Conventions also do not trigger the same obligations. However, Article 14 of The Ljubljana – The Hague Convention provides that the aut dedere, aut judicare obligation applies to all crimes covered by the Convention generally, including genocide, crimes against humanity, and war crimes committed in non-international armed conflicts.

Under pre-existing treaty law, states have the obligation to extradite or prosecute for several of the crimes covered in the Convention but not all. Examples of treaties with aut dedere aut judicare provisions are the International Convention for the Protection of All Persons from Enforced Disappearance (Article 11); the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Article 7); and common Articles 49, 50, 129, and 146 to the Geneva Conventions of 1949.  It is noteworthy that Article 9 of the Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission in 1996, a precursor to what later became the Rome Statute of the ICC, required states to extradite or prosecute individuals found in their territory who are suspected of committing the crimes of genocide, crimes against humanity, crimes against United Nations and associated personnel, and war crimes as defined in the Draft Code.

Reparation and judicial assistance

Further, the provisions of the Convention on judicial assistance among states parties for reparation for the victims are patently unique. While there has been steady rise in focus on reparation for victims of crimes under international law among treaties of international justice, the issue of inter-state cooperation for reparation has so far been overlooked.

The Convention is also innovative on victims’ rights. The preamble explicitly recognizes the rights of victims, witnesses and others, their role in the process and their need for protection, as well as their rights to complain, and access to justice and redress. A special part of the convention (Articles 81-83) is dedicated to these groups. The new treaty takes Rule 85 of the Rules of Procedure and Evidence of the Rome Statute as the definition of victims, effectively turning it into a primary treaty rule (Article 81 of the Convention). The duty to provide effective protection is laid out in detail (Article 82), as are victims’ rights to reparation and to participate in proceedings (Article 83). Provisions in Articles 45 and 83 further introduce a new standard by requiring states parties to comply with requests for asset confiscation for the purpose of reparation. States parties are required to enforce extra-territorial judgments and judicial orders for restitution, compensation, or rehabilitation of victims of crimes covered in the Convention. Member states need to reform their laws with a view to ensuring the right to reparation of victims through the enforcement of extra-territorial judgements, and to ensure that victims receive information on ongoing investigations and can access support services.

Norm setting

The Diplomatic Conference on the Ljubljana-The Hague Convention was agreed at a very important juncture for international justice, just when the Draft Convention on Crimes against Humanity is under consideration at the Sixth Committee of the UN General Assembly. Considering the well-established practice in international treaty making to graft legal texts from pre-existing treaty provisions, the drafters of the Crime against Humanity Convention are likely to be inspired by some of the progressive provisions in the Mutual Legal Assistance Convention. In fact, the norm setting potential of the present Convention was a source of unease, and sometimes caused impasses in the negotiation process. Many delegations in the Diplomatic Conference were cautious regarding the implications of potential progresses and setbacks in the Convention that would most likely inform the Draft Convention on Crimes against Humanity. A series of breakaway sessions and compromise proposals by other delegations – such as a sub-paragraph that allows states to suspend the application of a provision for renewable periods of three years – finally saved the Convention.

Next Steps Beyond the progressive elements, the adoption of the Ljubljana – The Hague Convention itself is a significant milestone that paves the way for states to sign, ratify or accede to it.

The Convention will be open for signature for two weeks after the Signing Conference on 14-15, February 2024, in The Hague, Netherlands. Yet, the true impact of the Convention – success in tackling impunity for crimes under international law and ensuring justice for survivors – heavily depends on its worldwide ratification and implementation. This is the next challenge.

Photo: MLA Diplomatic Conference, Liubljana, Slovenia, 15-26 May 2023 (Credit: Ministry of Foreign and European Affairs Slovenia)