20TH SESSION OF THE ASSEMBLY OF STATES PARTIES
8 December 2021
Name of the Event: The MLA Initiative: Towards a new Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity and War Crimes (co-hosted by Argentina, Belgium, Mongolia, the Netherlands, Senegal, and Slovenia)
Name of PILPG Staff: Editimfon Ikpat and Alexandrah Bakker, Research Associates PILPG-NL
Highlights:
The MLA Initiative seeks to address the lack of provisions in international law on interstate cooperation in the domestic prosecution of international crimes. Its aim is to adopt a new multilateral convention outlining modes of mutual legal assistance in the prosecution of genocide, crimes against humanity, and war crimes.
The MLA Initiative, while benefiting from the support of the Office of the Prosecutor of the International Criminal Court, is a separate initiative. It, therefore, embraces both states parties and non-states parties to the Rome Statute.
The Core Group will arrange a final round of virtual informal consultations on the Draft Convention in June 2022, followed by a diplomatic conference for the adoption of the Convention in 2023 in Ljubljana, Slovenia.
Speakers:
Mr. Karim A. A. Khan QC, Prosecutor of the International Criminal Court
Judge Silvia Fernández de Gurmendi, President of the Assembly of States Parties to the Rome Statute of the International Criminal Court
H.E. William Roelants de Stappers, Ambassador and Permanent Representative of Belgium to the International Institutions in The Hague
H.E. Sanja Štiglic, Ambassador of Slovenia to the Netherlands
Summary of the Event:
Keynote speaker Mr. Karim Khan opened the event by expressing his support for the MLA Initiative, describing it as a fortification of the Nuremberg principles. Mr. Khan reminded attendees that the crimes that form the subject-matter of the Draft Convention are not subject to a statute of limitations and that judicial bodies around the world are still pursuing suspected perpetrators of crimes committed several decades ago, for instance in Cambodia. As such, he welcomed the reinforcement of domestic prosecutions of international crimes through the MLA Initiative. Moreover, Mr. Khan shared his appointment of the Special Adviser on Mutual Legal Assistance, Mr. Yoshimitsu Yamauchi of Japan.
To conclude, Mr. Khan shared his vision for how the Office of the Prosecutor could contribute to the effort to improve mutual legal assistance between states prosecuting international crimes. For instance, he expressed a desire to strengthen and develop the technologies used in mutual legal assistance, drawing on his experience from his previous mandate with the Investigative Team to Promote Accountability for Crimes Committed by Da'esh/ISIL (UNITAD). Moreover, he shared that he would explore possibilities within the Office of the Prosecutor to start working with a system of case briefs. He explained that these briefs could be shared with national authorities in the event an ICC case cannot proceed, for instance, due to the death of the accused or due to obstacles to the investigation. As a result, prosecutions of other implicated persons could still continue on the domestic level.
After this presentation, H.E. William Roelands de Stappers gave a brief history of the MLA Initiative. He explained that the Initiative is the result of the observation of a number of states that the existing international legal framework contains a gap, namely the lack of provisions addressing interstate cooperation for the thorough investigation and prosecution of international crimes by states. Unlike some more recent international conventions, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the United Nations Convention against Transnational Organized Crime, H.E. Stappers noted that neither the Convention on the Prevention and Punishment of the Crime of Genocide nor the Geneva Conventions and their Additional Protocols contain provisions on mutual legal assistance. As a result, six states (Argentina, Belgium, Mongolia, the Netherlands, Senegal, and Slovenia - known as the “Core Group”) decided to draft a Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity and War Crimes. The Draft Convention currently has support from 76 states, including non-states parties to the Rome Statute of the International Criminal Court.
The final speaker, H.E. Sanja Štiglic, provided an overview of the plans for the MLA Initiative. Between now and spring 2022, the Core Group will revise the Draft Convention to take into account the comments made by states during the two rounds of virtual informal consultations held in June and November 2021. The Core Group will then arrange for a third and final round of virtual informal consultations in June 2022, which will feature discussions of the scope of the Convention. Finally, the Core Group aims to organize a diplomatic conference in Ljubljana, Slovenia in the spring of 2023. At this conference, the Core Group hopes that states will adopt a definitive version of the Convention.
To conclude the event, a member of the audience asked the Core Group to reflect on the challenges that may arise from the coexistence of ICC states parties and non-states parties within the MLA Initiative. The Core Group responded that the MLA Initiative should be seen to complement the work of the ICC, but not to be a part of it. This is why, for instance, the drafters have avoided making any direct references to the Rome Statute in the Draft Convention. Mr. Khan further stressed the importance of complementarity to the functioning of the ICC, emphasizing that states have a sovereign right to decide if they want to ratify the Rome Statute and sharing his support for any initiative that contributes to the aim of ending impunity for international crimes.