I'm pleased to host another guest post by Gillian MacNeil, doctoral student at Queen's who attended the ICC ASP meeting before Christmas (see her previous co-authored post here), funded by a SSHRC Partnership Grant on which I'm a co-investigator.
Eyeing the Gap: Extradition and MLAT Treaties for Core Crimes Prosecutions
The Assembly of States Parties (ASP) of the International Criminal Court (ICC) met in The Hague between 15 and 24 November 2016 for their 15th Annual Session. At a side meeting, states discussed the proposal to create a multilateral mutual assistance and extradition treaty (MLAT) for genocide, war crimes and crimes against humanity. This initiative is being lead by Argentina, Slovenia, Belgium and the Netherlands. One argument in favour of this initiative is that there is a gap in the international legal framework. In this post I will briefly consider this gap. There are some rules which govern mutual legal assistance and extradition for genocide, war crimes and crimes against humanity. To highlight the “gap” I will contrast the relatively few provisions dealing with mutual legal assistance and extradition for those crimes with the much more detailed provisions found in some recent treaties governing other types of offences.
‘Mutual legal assistance’ refers to state cooperation in investigating and prosecuting crimes. Extradition is a legal proceeding through which an individual is transferred from one State to another to face a trial process or serve a previously imposed sentence.
Under the Rome Statute of the International Criminal Court (Rome Statute) the International Criminal Court (ICC) currently has jurisdiction over genocide, war crimes and crimes against humanity (article 5). States parties are obliged to cooperate with the Court (article 86). But the ICC is complementary to national jurisdictions (Article 1). States have the primary obligation to investigate and prosecute genocide, war crimes and crimes against humanity. However the Rome Statute does not contain provisions requiring that states cooperate with each other or detailing rules governing such cooperation.
The Rome Statute is not the only treaty relevant to genocide, war crimes and crimes against humanity. The 1948 Genocide Convention defines genocide and specifies the obligations of States parties. The rules on mutual legal assistance are largely confined to article VII which articulates some basic provisions governing extradition.
Similarly, the Geneva Conventions and the two Additional Protocols of 1977 which regulate the conduct of international and non-international armed conflicts contain detailed provisions but, few rules applicable to mutual legal assistance or extradition. For example, article 146 of the Fourth Geneva Convention requires Parties to criminalize grave breaches of the Convention and to search for persons alleged to have committed grave breaches. A State is also permitted to transfer an alleged violator to another State for prosecution. The provisions of Additional Protocol I are slightly more detailed, imposing obligations to assist with criminal proceedings for grave breaches and a qualified obligation to cooperate on extradition (article 88). Additional Protocol II, governing non-international armed conflicts, has no provisions on mutual legal assistance.
No comprehensive treaty governs crimes against humanity. Existing instruments, like the Rome Statute, the Charter of the International Military Tribunal or the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity contain few or no rules on mutual legal assistance or extradition.
By contrast, the International Convention for the Suppression of Terrorist Bombings requires States to criminalize specific acts defined in the treaty and establishes mandatory and permissive bases of criminal jurisdiction (article 4, article 5, article 6). There are obligations of investigation and requirements to share information with other States having jurisdiction (article 7). States in which an alleged offender is present must submit the case to prosecution or extradite the alleged offender (article 8). The offences are deemed to be extraditable (article 9). Parties are barred from considering the offences to be political (article 11). There are rules governing the transfer of detainees (article 13). There are obligations to cooperate to prevent offences (article 15) and to assist with investigations and criminal or extradition proceedings (article 10).
The provisions governing mutual legal assistance and extradition in the UN Convention Against Transnational Organized Crime (which also apply to its Protocols) and the UN Convention Against Corruption are even more detailed.
As this brief comparison reveals, the instruments governing genocide, war crimes and crimes against humanity are largely lacking in the detailed, mandatory rules which can be found in other criminal law treaties. However, offence-specific treaties do not tell the whole story. The absence of detailed mutual legal assistance or extradition provisions in the treaties governing war crimes, genocide and crimes against humanity are not necessarily evidence of a legal void. States can cooperate to investigate and prosecute those offences. A detailed discussion of State cooperation is beyond the scope of this work; I will focus here on the Canadian example.
States may agree to rules governing cooperation and extradition for genocide, war crimes and crimes against humanity in bilateral mutual legal assistance or extradition treaties. To take one example, The Treaty Between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters enables mutual legal assistance over offences. “Offences” are broadly defined in Article 1 of the Treaty and, under Canadian law, would include genocide, war crimes and crimes against humanity. A 1991 Protocol to the Canada-United States Extradition Treaty re-defined the offences subject to extradition. Extradition is now available for offences punishable by one year of incarceration, or “any greater punishment.” Again, under Canadian law this would include genocide, war crimes and crimes against humanity.
Further, Canada is able to act even in the absence of an existing treaty. Both Canada’s Mutual Legal Assistance in Criminal Matters Act and Extradition Act permit Canada to negotiate ad hoc arrangements or agreements.
So, if States can cooperate to investigate and prosecute genocide, war crimes and crimes against humanity and to extradite offenders, one may wonder why a comprehensive mutual legal assistance and extradition treaty for those offences is needed. One answer may be clarity. A multilateral mutual legal assistance and extradition treaty would clarify and harmonize States’ basic mutual legal assistance and extradition obligations for genocide, war crimes and crimes against humanity. By becoming party to such a treaty, States would affirm not only that cooperation is permissible, but that it is required.