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  • Anushka Pratyush

Shaping a New World Order: An Analysis Of The Ljubljana-Hague Convention

This article is authored by Anushka Pratyush who is in her 7th Semester at Jindal Global Law School, Sonipat.


In a momentous gathering on May 26, 2023, delegations from over 70 nations united in Ljubljana, Slovenia, adopted the long-awaited Mutual Legal Assistance Convention, officially titled ‘The Ljubljana – The Hague Convention on International Cooperation in the Investigation and Prosecution of Genocide, Crimes against Humanity, War Crimes, and other International Crimes’(‘Ljubljana Convention’). The Ljubljana Convention earns its appellation as the ‘Mutual Legal Assistance Convention’ since it serves as a mechanism for domestic law enforcement and judicial systems to exchange information, collaborate on investigations, and streamline efforts to combat impunity for the ‘most severe crimes that concern the global community as a whole.’ After 12 years of negotiations, the Ljubljana Convention is anticipated to be available for signing in the initial quarter of 2024.

This landmark agreement marks a critical juncture for international cooperation in serving as the first major treaty addressing impunity for international crimes since the Rome Statute, twenty-five years ago. This article delves into the landmark Ljubljana Convention, critically evaluating its potential impact on the fight against impunity for international crimes through an analysis of its provisions. While doing so, the articles further evaluate its significance as a model for international cooperation while assessing its merits and demerits.


MERITS

I. Application of the Scope of Ljubljana Convention

The provisions of the Ljubljana Convention become operational when one state party seeks assistance from another state party regarding an investigation or prosecution related to specific international criminal laws, including genocide, crimes against humanity, war crimes, and certain other international offenses. The definitions of these crimes closely mirror those found in the Rome Statute. Furthermore, the Ljubljana Convention comprises several annexes containing supplementary definitions for crimes such as war crimes (Annex A-E), torture (Annex F), enforced disappearance (Annex G), and the crime of aggression (Annex H). States have the option to expand the Ljubljana Convention’s scope to encompass these crimes as well, in accordance with Article 2(2). This expansion only becomes applicable when both the requesting and requested states have chosen to accept these annexes. However, states that have not accepted the annexes can also decide on an ad hoc basis to apply the Ljubljana Convention to these additional crimes (Article 2(2)). Hence, by allowing states to broaden the Ljubljana Convention's scope to encompass additional serious offenses through annexes and permitting ad hoc application, the Ljubljana Convention ensures comprehensive coverage and inclusivity while setting a significant precedent for international cooperation.

II. Asserting Domestic Jurisdiction Authority Over International Crimes

When a country with integrated international crimes seeks legal help from one without equivalent laws, legal complexities arise. Extradition reluctance emerges when international law crimes aren't locally illegal. In contrast, the Ljubljana Convention's definitional clarity empowers cross-border reporting, improves investigations, and streamlines procedures for establishing domestic jurisdiction over transnational cases.

In this regard, under the Ljubljana Convention, each participating country is obligated to establish its jurisdiction over international crimes covered by it, which applies when the crimes occur within the country's territory or involve a vessel or aircraft registered in that country (territoriality principle) (Article 8(1)(a)). It also applies when the alleged perpetrator is a national of that country (active personality principle) (Article 8(1)(a)-(b)). Additionally, states have the option to establish jurisdiction when the alleged perpetrator is stateless but habitually resides within the country's territory, and when the victim is a national of that country (passive personality principle) (Article 8(2)(a)-(b)). However, territoriality and the active personality principle may not always suffice to address international crimes effectively. In this light, the Ljubljana Convention goes further by stipulating that each state must take necessary measures to establish its jurisdiction when the alleged offender is present within its territory but is not extradited to relevant states or surrendered to an international criminal court or tribunal (Article 8(3)).

III. Extradition Obligation Under 'Aut Dedere Aut Judicare' Mandatory

Apart from establishing jurisdiction, the Ljubljana Convention imposes the obligation to exercise that jurisdiction. According to Article 14(1), if a person alleged to have committed international crimes covered by the Ljubljana Convention, is found within a state's territory and the state does not extradite or surrender the person to another state or international criminal court, the state must submit the case to its competent authorities for prosecution. This provision mirrors the aut dedere aut judicare principle found in the Convention against Torture (Article 7(1)), as supported by the footnote number 8 in the Ljubljana Draft Convention. According to the International Court of Justice's interpretation, a state is obligated to submit the case for prosecution regardless of whether there is a prior request for extradition (Belgium v. Senegal, para. 94). This means that the state must investigate and, if there is sufficient evidence, prosecute the alleged offender. However, the state can be relieved of this obligation if it receives an extradition request and complies with it (Belgium v. Senegal, paras. 94-95). In this context, the Ljubljana Convention is significant because it serves as the first potentially universal treaty to explicitly include the aut dedere aut judicare obligation for the crimes of genocide and crimes against humanity. Moreover, it expands the list of war crimes subject to a treaty obligation to prosecute or extradite. Additionally, the Ljubljana Convention safeguards the rights of the accused, allowing refusal under Article 30, if prosecution is discriminatory, the death penalty applies, double jeopardy exists, or there is a risk of torture or unfair trial.

IV. Advancing Universal Access for Right to Reparation to Victims vis-à-vis Article 83

Furthermore, Article 83 of the Ljubljana Convention marks a significant stride in recognizing victims' rights, particularly their extensive entitlement to reparation. This progressive provision departs from the traditional requirement that the state must be directly responsible for the crime, expanding the scope for victims to claim their right to reparation. It stipulates that as long as the crime occurs within a state's jurisdiction or when the state exercises its jurisdiction over the crime, victims' rights to reparation are valid. This means that states can acknowledge and fulfill victims' reparation rights, even in cases where the crime did not occur on their territory, involved their nationals, or was directly attributable to them. Applying a similar rule, Senegal had also established a specialized chamber to address international crimes committed by the former Chadian dictator Hissein Habré, recognizing victims' right to reparation within that court despite the Chadian origin of the perpetrator and victims, and the occurrence of crimes in Chad.

Furthermore, Article 83 maintains a broad interpretation of harm, departing from earlier drafts that limited it to ‘material and moral’ harm. It acknowledges various forms of reparations available to victims of international crimes, including restitution, compensation, and rehabilitation along with other forms of reparation, stating they consist of, ‘but are not limited to,’ the enumerated options (Article 83). This approach offers a flexible framework for addressing victims' reparation rights in diverse contexts.


DEMERITS

V. States' Ambiguous Stance on International Law

However, despite the considerable merits outlined earlier, the Ljubljana Convention frequently includes phrases like ‘subject to its domestic law (Article 83),’ ‘as appropriate (Article 82),’ and ‘to the extent provided in domestic law (Article 83(3)).’ State representatives repeatedly inserted such language, citing their domestic legal systems' limitations in accommodating the Ljubljana Convention's rights and obligations. Moreover, they attempted to introduce their domestic legislation's restrictions into the Ljubljana Convention's text, for instance, by seeking to limit victims' right to reparation to individual claims. This approach disregards established international legal principles by attempting to narrow the scope of rights outlined in the Ljubljana Convention based on states' domestic legislation.

VI. The Impact of States Refraining from Reservations: What's at Stake?

Commencing in January 2024, the Ljubljana Convention will be made available for signatures. However, it necessitates the ratification, acceptance, approval, or accession by a minimum of three states to take effect. It is important to note that the convention would not immediately come into force upon acquiring a third state party; rather, a waiting period of at least three months ensues from the time the third state joins to when the convention becomes operational (Article 87). Further, the Ljubljana Convention allows for reservations to such obligations or renewable three-year periods based on a country's domestic laws and international obligations, limiting the jurisdiction established under Article 8, paragraph 3. However, formulating such a reservation allows alleged offenders to evade justice. This undermines the Ljubljana Convention’s ability to fulfil its goal of facilitating international cooperation among States Parties to combat impunity for crimes like genocide, crimes against humanity, war crimes, and other international offenses, as stated in Article 1.

Conclusion

A crucial demand has existed for a multilateral instrument that streamlines inter-State cooperation in mutual legal assistance and extradition for international crime prosecutions. Before the Ljubljana Convention's adoption, no such global or regional treaty was in place. The Ljubljana Convention provides a crucial instrument for countering impunity, promoting cooperation among State Parties in the quest for an accountable global order. As we grapple with the complexities of holding perpetrators accountable for grave offenses, the Ljubljana Convention's capacity to strengthen international collaboration stands as a hopeful and crucial stride towards a world where justice triumphs over impunity. Nevertheless, to unlock the Ljubljana Convention's complete potential, it is incumbent upon States to ratify it without reservations and to ensure its effective individual and collective implementation.

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