On 27-29 January 2020, PGA participated at the Informal Consultations on the creation of a new Multilateral Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity and War Crimes- also known as the Mutual Legal Assistance (MLA) Convention. The MLA Convention, initiated in 2011 by the Core Group formed by Argentina, Belgium, Mongolia, the Netherlands, Senegal, and Slovenia, is supported by 72 states as of April 2020.
The Consultations organized in the Hague, the Netherlands, were attended by representatives and legal experts from over 70 States and members of civil society and academia. During its interventions, PGA reiterated its longstanding position in support of the initiative. The MLA Convention should, at a minimum, establish the same obligatory mechanisms to support the inter-state cooperation and mutual legal assistance among judicial and law-enforcement authorities to put an end to impunity for international crimes of concern to the international community as a whole, as guaranteed for the crimes of corruption, money laundering and terrorism which fall within the scope of the United Nations (UN) Convention against Transnational Organized Crime and UN Convention against Corruption.
The importance of this initiative cannot be overstated. It was launched to replace outdated or absent international procedural legal framework for mutual legal assistance and extradition for the most serious international crimes. The Convention has the potential to not only significantly improve interstate cooperation in fighting impunity for international crimes and thus ensuring accountability, but also enable States to be better equipped to prevent the commission of international crimes.
While there have been different positions put forward by States, it is of utmost importance that the negotiations on the Convention move forward so that international cooperation in the fight against impunity is reinforced through this new treaty.
PGA’s contributions to the MLA Convention
Through its interventions and inputs, in coordination with other NGOs, PGA has contributed to ensuring a stronger human rights-based approach to mutual legal assistance through:
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Inclusion of the definition of the main core crimes, at a minimum, in line with the Rome Statute of the ICC;
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Removal of the former Article 52 on Pardon, Amnesty, Commutation which provided that “Each State Party may grant pardon, amnesty or commutation of the sentence in accordance with its Constitution or other laws”;
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Inclusion of the crime of aggression in the form of an Annex to the Convention, through which States Parties may choose to apply the MLA Convention to this crime. Other Annexes have also been added to extend the applicability of the Convention to additional international crimes (such as torture and enforced disappearance), as well as expanded definitions of war crimes listed in the MLA draft Convention;
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Expanding and strengthening victims’ rights provisions in the draft MLA Convention;
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Expanding jurisdiction over the crimes covered by the Convention to conditional universal jurisdiction, i.e. applicable to foreign nationals habitually resident or domiciled in the territory of the State in question or present in the territory of the State (which would become the “custodial State”, in line with the jurisdictional provisions of the Convention against Torture)
Prior PGA involvement
14 May 2014: PGA organized a Roundtable discussion at the Parliament of Austria on “Ending Impunity for International Crimes through Multilateral Interstate Cooperation.” The goal of the Roundtable discussion was to allow expert participants to get informed about the initiative, raise concerns, discuss best practices and share their experiences on multilateral state cooperation to fight international crimes.
The Roundtable was organized on the occasion of PGA’s participation at the 23rd session of the Commission on Crime Prevention and Criminal Justice (CCPJ) that took place from 12-16 May 2014 at the United Nations Office for Drugs and Crime in Vienna, Austria. During the Commission meeting, PGA highlighted the benefits of this proposal and reached out to UN Member States to secure their support for the MLA initiative, which was actively opposed in Vienna by certain States.
16- 19 October 2017: PGA participated in the First Preparatory Conference held in Doorn, the Netherlands. PGA raised several points and made suggestions as to the definition of the crimes covered by the draft Convention, encouraging their full alignment with recent developments of international law. PGA also advocated for incorporation of the principles of international criminal law as laid down in the Rome Statute and recommended appropriate forum for negotiations. It supported the conclusion that negotiations on a stand-alone basis would be most advantageous while, at the same time, ways to work in synergy with the United Nations could be explored.
29 November & 5 December 2018: During PGA’s 10th Consultative Assembly of Parliamentarians on the ICC & the Rule of Law held in the Parliament of Ukraine, the Head of the Dutch Government task-force on the MLA addressed the largest global PGA gathering obtaining renewed political support for the new treaty. Such support is now reflected in the Action Plan adopted by the CAP-ICC, which is a blueprint for action for the entire PGA network. At the 17th Assembly of States Parties to the Rome Statute of the International Criminal Court, the governments of Argentina, Belgium, Mongolia, the Netherlands, Senegal, and Slovenia (the ‘Core Six States’) hosted a side-event on the MLA Initiative. During its intervention, PGA expressed its support for the treaty, but highlighted concerns about certain provisions in the draft. In particular, PGA opposed the inclusion of Article 52 which provided for amnesties and pardons for the international crimes covered by the draft treaty, as such recognition is in contravention of customary international law.
11-14 March 2019: PGA participated in the Second Preparatory Conference held in Noordwijk, the Netherlands. PGA supported the expansion of the material jurisdiction of the MLA Convention to guarantee higher protection for victims of gross human rights violations, by including additional crimes in accordance with broad and inclusive definitions in conventional and customary international law, including: torture; enforced disappearance; extrajudicial executions; and the use of biological weapons.
PGA also suggested the inclusion of a legal provision that official capacity should not exempt a perpetrator from criminal responsibility for the crimes covered by the Convention nor constitute a ground for reduction of sentence, thus reaffirming the principle of equality before the law. PGA has reaffirmed its position that customary and statutory international law have evolved to recognise that State officials are not entitled to immunities from arrest and criminal proceedings if charged with the gravest international crimes. Granting immunities to alleged perpetrators could deprive victims of their rights to justice by leaving the authors of these crimes unpunished.
Ways how PGA can provide further assistance to States
PGA, through its parliamentary network, has the ability to foster political will for this treaty and provide technical assistance in implementing it. In particular:
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PGA promotes the conclusion of the MLA treaty through action by its members from parliaments worldwide and supports effective cooperation amongst States.
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Once the treaty will be adopted, the global PGA network will support its universal ratification and will assist parliamentarians in drafting and adopting any domestic legislation as required to enable the MLA treaty to be effectively implemented.
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PGA can review and enhance national law frameworks to enable extradition as required by all treaties to which the States are parties to ensure that appropriate criminal acts are extraditable and to establish jurisdiction over those criminal acts.
All information relating to the MLA Initiative are available on the webpage of the Ministry of Foreign Affairs of the Netherlands: https://www.centruminternationaalrecht.nl/mla-initiative