D. Extradition and Mutual Legal Assistance
1. A Welcome Step in Advance: The Legal Regime in Outline
The Commission deals with extradition and mutual legal assistance in Draft Articles 13 and 14.
A separate annex to the draft articles deals a number of primarily procedural issues related to mutual legal assistance. As Harmen van der Wilt observes in his contribution, the ILC has not steered in new directions in formulating these texts:
87 Supra sub 2. E.
88 States may also wish to consider the establishment of a (voluntary) Trust Fund system building on the experience being gained through practice under the ICC Statute.
Article 44 of the 2003 United Nations Convention against Corruption and Article 16 of the 2000 United Nations Convention against Transnational Organized Crime (hereafter: UNCTOC) have served as a blueprint for Article 13 on extradition, whereas Article 14 on mutual legal assistance largo sensu copies Article 46 of the Corruption Convention and Article 18 of the UNCTOC.89
Draft Article 13 complements the obligation aut dedere aut iudicare proposed in Draft Article 10. This explains why Draft Article 13 does not provide for the obligation to extradite. Under the proposed Convention, each custodial state would retain the right to prosecute domestically.
Only if the state chooses not to do so, will the obligation to extradite arise, but this obligation will then stem from Draft Article 10 rather than from Draft Article 13. It is therefore understandable that Draft Article 13(6) does not touch upon those grounds upon which a requested state may refuse extradition under its national law,90 including the prohibition to extradite nationals.91 The main purpose of Draft Article 13 then is to require states to comply with any possible technical legal hurdles to extradition, such as the requirement of an extradition treaty, so that they will be in a position to fulfil their obligation to extradition under Draft Article 10 in those cases where they do not wish to bring the matter to trial before their own courts.92 The situation is different in the case of legal assistance other than extradition and Draft Article 14(1) accordingly obliges states to ‘afford one another the widest measure of legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by the present draft articles in accordance with this draft article’. This general obligation is elaborated upon in Draft Article 14(3) and this, as van der Wilt explains, is done with an appropriate view to the specific procedural needs in case of proceedings for crimes against humanity.
Taken together, Draft Articles 13 and 14, as well as the annex to the latter provision, do not contain any major innovative features. But, as van der Wilt concludes, they would nonetheless prove to constitute a welcome advance for the inter-State co-operation in dealing with crimes against humanity.
2. Enhancing Mutual Legal Assistance: Two Proposals
89 H.G. van der Wilt, ‘Extradition and Mutual Legal Assistance in the Draft Convention on Crimes Against Humanity’ in this issue of the Journal.
90 Except for the ‘political offence’ exception, which the second paragraph of Draft Art. 13 proposes to exclude.
But this does not change the fact that the State concerned will remain free to prosecute at home.
91 For a thoughtful proposal for improvement in that regard, see van der Wilt’s contribution, supra note 89.
92 2017 ILC Report, supra note 11, § 4, at 100.
Under paragraph 8(b) of the Draft Annex, a request for mutual legal assistance may be refused
‘if the requested State considers that execution of the request is likely to prejudice its sovereignty, security, ordre public or other essential interests’. This would enable a recalcitrant state with very considerable leeway to avoid cooperation. One would therefore hope that the Commission reconsider the matter and follow van der Wilt’s advice to use the more circumscribed language in Article 93(3) of the ICC Statute.
Paragraph 16 of the same Annex does not appear to require a requested state to allow a requesting state to conduct the interview of a witness, who is on the territory on the requested state and does not desire to travel to the requesting state, by video-conference. In view of both the practical importance of taking witness testimony, and the fact that an interview will often be of far greater practical use if conducted by the state in charge of the (main) criminal proceedings, one would have hoped — here again — for a proposal stimulating a more effective co-operation. Such a proposal could have drawn inspiration from the interpretation the ICC has given to Article 93(1)(b) of the ICC Statute.93
Should these two proposals not be taken up, it would be very helpful to include them within the framework of the initiative taken by a number of states to adopt an international treaty on extradition and mutual legal assistance for all crimes under international law.94 Also for this reason, it must be welcomed that Draft Article 14(5) allows for enhanced mutual legal assistance through agreement outside the framework of the proposed convention.
3. Surrender and Other Forms of Vertical Co-operation: A Loophole?
Neither Draft Article 13 nor Draft Article 14 deals with the relationship between states and a competent international criminal court. This omission is probably based on the assumption that such relationship is sufficiently covered by the legal basis on which the competent international criminal court rests. Yet, this is not the case. For example, the co-operation duties under Part 9 of the ICC Statute, which is likely to be the most relevant one in practice, only apply to States party to the Statute. But it would seem consistent with the spirit of the proposed Convention — including, in particular, its triangular obligation aut dedere aut iudicare — to require states that
93 Judgement on the Appeals of William Samoei Ruto and Mr. Joshua Arap Sang against the decision of Trial Chamber V (A) of 17 April 2014 entitled ‘Decision on Prosecutor’s Application for Witness Summonses and resulting Request for State Party Cooperation, Ruto and Sang (ICC-01/09.01/11 OA 7 OA 8), Appeals Chamber, 9 October 2014, § 130.
94 Argentina, Belgium, Mongolia, the Netherlands, Senegal and Slovenia. See Parliamentarians for Global Action, Background Information: Towards a Multilateral Treaty for Mutual Legal Assistance and Extradition for Domestic Prosecution of the Most Serious International Crimes, 2017, available online at www.pgaction.org/pdf/Background-Information-MLA-Initiative.pdf (visited 19 November 2018).
are not party to the ICC Statute also to enable themselves of surrendering a suspect to the ICC or of rendering this Court another form of assistance. Thought should therefore be given as to whether the two draft articles in question could be given such an additional dimension. This could be coupled with an opt-out clause, should certain states not party to the ICC Statute signal that they would find it difficult to join the proposed Convention if it was otherwise.95
E. The Unresolved Question of Immunity Ratione Materiae