On this International Justice Day, Amnesty International calls on all states to strengthen the system of international justice and the International Criminal Court within it. A new international convention on cooperation on international crimes provides an opportunity to open more routes to justice.
It is apt that on 26 May this year, 25 years after the Rome Statute was adopted, another crucial milestone was placed on the long road leading on from Rome, with the adoption by consensus of The Ljubljana-The Hague Convention on International Cooperation in the Investigation and Prosecution of Genocide, Crimes against Humanity, War Crimes and other International Crimes. This landmark international treaty – also referred to as Mutual Legal Assistance Convention (MLA Convention) – will significantly strengthen cooperation between states in domestic investigations of crimes under international law, including torture and enforced disappearance. The treaty fills a significant gap in the international justice framework, foreseeing the crucial role that national-level investigations and ‘universal jurisdiction’ initiatives must play in the system of international justice if accountability is to be pursued more comprehensively and effectively. It is another historic step towards delivering justice to victims of crimes under international law.
Crucially, the MLA Convention includes a number of ground-breaking provisions, such as a general obligation to either extradite or prosecute (aut dedere aut judicare, Article 14), which has the potential to significantly expand the scope of the concept; a positive definition of the term ‘victims’ and recognition of their rights (Articles 81-83), including to protection, participation, and to pursue and obtain reparation. Future states parties must now ensure these promises are upheld, including by ratifying the Convention and ensuring victims receive information on ongoing investigations and can access support services.
The principal crimes covered by the MLA Convention are transposed directly from the Rome Statute – with the positive exception of removing the problematic definition of ‘gender’ found in the Statute. Further critical articles on victims’ rights and the seizing and freezing of assets for the purposes of reparations (Article 45) were inspired by or are closely mirroring those in the Rome Statute. While this means that in many cases compromises made by states at the 1998 Rome Conference were replicated despite international law progressions over the last 25 years, other provisions in the MLA Convention, for example on giving priority consideration to providing compensation to victims (Article 47(2)), or obliging states to horizontally give effect to restitution, compensation or rehabilitation orders in criminal proceedings (Article 83(3)), may even expand the Rome Statute’s cornerstone elements of victims’ rights. Further, the new treaty signifies an increased emphasis on the duty to provide fair treatment to the accused throughout all processes, including a broad protection against refoulement.
In practical terms, the MLA Convention provides a ‘toolbox’ for states to exercise their jurisdiction and work together at various stages of the criminal justice process. These 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.
The adoption of the MLA Convention, and the increasing recognition by states, the ICC and other international actors that cooperation and complementarity within a broader system of international justice are prerequisites for comprehensive accountability, are very welcome. The unprecedented response of the international community to Russia’s full-scale invasion of Ukraine has shown the potential of a multi-faceted international justice response from the national level to the international, with the ICC playing a vital role in pursuing accountability into those most responsible. Such a robust justice response must serve as the standard for all situations where crimes under international law are committed. Similarly, the complex tapestry of recent international justice responses to the Syrian conflict, or in the Myanmar situation, ranging from cases at the International Court of Justice to Geneva-based investigation mechanisms and national-level prosecutions, demonstrate that the pursuit of international justice must often take place within a broad framework – and wherever possible, recognizing the differences in certain mechanisms’ mandates or legal foundations, pursuant to a coordinated or collaborative accountability strategy, in which cooperation, information and evidence sharing, and capacity-building partnerships are central.
Treaties like the MLA Convention undoubtedly strengthen the framework of international justice, but much more remains to be done. If the adoption of the Rome Statute 25 years ago teaches us one thing, it is that having a successful conference and legislating a forward-looking set of international legal rules are but the first step in a long journey of implementing and enforcing these rules. The Ljubljana conference will only be a footnote in the history of international justice if states do not sign and ratify the treaty after it is opened for signature in early 2024, and thereafter start operationalizing this newly enhanced system of international cooperation to ensure that all perpetrators of international crimes do not find any ‘safe haven’, wherever they go.
For this reason, Amnesty International continues to advocate for a worldwide system of international justice for all, including through: campaigning for the effective operation of the International Criminal Court; calling on states to exercise universal jurisdiction over crimes under international law, which would now be made vastly more possible by the MLA Convention; calling for ad hoc international or hybrid courts for specific conflicts to be established as necessary; strengthening international, regional and national legal standards to more effectively address crimes under international law; and above all, pursuing every means possible to ensure that all victims and survivors can obtain truth, justice and reparation, wherever they are.
A stronger system of international justice is one thing; ensuring that all situations are considered equally within such a framework is another and remains a significant challenge. Selectivity and double standards continue to mark the approaches of some states to international justice, and there is a danger that a ‘strengthened’ architecture of international justice may cement existing hierarchies of state power. With this in mind, the ICC-OTP’s legitimacy and effectiveness depends on not being seen as an instrument of powerful actors, but rather demonstrating – without fear or favour – that it will pursue accountability in situations where perhaps only its intervention will ensure that certain crimes, perpetrators or situations are investigated.
As the Rome Statute moves into its next quarter-century, it is now generally accepted that measures tackling crimes under international law should be victim and survivor-centred. This means that all international justice processes must ensure that they fully realize the rights of all victims to justice, truth and reparation as a fundamental component of meaningful and effective justice. Ensuring victims’ access to justice also means that obstacles to national prosecutions must be reduced. The adoption of the Rome Statute 25 years ago was one seminal leap forward in pursuance of international justice, and the new Ljubljana-The Hague Convention has the potential to be another. But in the end, legislating international frameworks alone will not ensure national governments fulfil their obligations to investigate and prosecute crimes under international law. On this aspect, much more still needs to be done.