Steps forward for international law in Ljubljana and Paris

May 26, 2023, will go down as an important date in the history of international criminal law. On that day, in Ljubljana, a legal initiative born outside the United Nations framework and supported by 80 States – including Switzerland – resulted in a Convention on International Cooperation between States in the investigation and prosecution of international crimes.

The effectiveness of the international system for the prosecution of war crimes and crimes against humanity rests on the fact that it is the duty of every State to bring those responsible for international crimes under its jurisdiction. In an ideal scenario – which is currently not the case – the International Criminal Court based in The Hague – which only intervenes if the competent national state is unable, or unwilling, to prosecute international crimes – would have no work to do.

The cases of war crimes, genocide or crimes against humanity that are tried before national courts often concern atrocities committed on the territory of other countries. This was the case, for example, of the very first case to be tried in Switzerland for crimes against humanity by the Federal Criminal Court, whose appeal decision was handed down this month, and which concerned crimes committed in Liberia, Africa.

International cooperation is essential if the judicial authorities in the country where the accused is being tried are to investigate, hear witnesses, and obtain evidence in the country where the crimes were committed.

However, while up until now there have been treaties to facilitate cooperation between States in matters of organized crime or corruption, there have been none to facilitate cooperation between States in matters of international crimes. The best that could be done was to rely on bilateral agreements between states.

Facilitated judicial cooperation

For example, if country A receives a request for judicial cooperation from country B in connection with a war crimes case, the legislation of country B could require for letters rogatory to be accepted by country B’s embassy in country A. In practice,  a simple request for cooperation can take over a year.

And if country B were to request the extradition of X – a citizen of country B residing in country A and suspected of international crimes – country A could find itself legally unable to extradite X to country B. Indeed, even if the extradition request is sent through the appropriate channels, it may happen that no bilateral extradition treaty has been concluded between countries A and B.

In November 2011, three European states – the Netherlands, Belgium, and Slovenia – decided to meet to consider a solution to this quite problematic situation. This European group was then expanded to include three countries from different continents: Argentina, Senegal, and Mongolia, giving a global dimension to this initiative.

The next steps were taken between 2017 and 2022 in the Netherlands. Preparatory conferences – mostly held virtually due to Covid – brought together over 40 states and representatives of civil society to draw up a draft convention. This process culminated in the Diplomatic Conference held in Ljubljana from May 15 to 26, with the adoption of the Ljubljana-Hague Convention. The Convention will be open for signature by all States for a two-week period in The Hague in 2024, with dates yet to be determined.

Obligation to prosecute

In addition to cooperation between States, the Convention also lays down a fundamental legal principle for the prosecution of the most serious crimes by States in black and white: the obligation aut judicare aut dedere (art. 14 of the Convention). According to this principle, hitherto regarded as customary law, every State has an obligation to prosecute anyone found on its territory who has allegedly committed international crimes. And if a State does not wish to prosecute on its territory, it is then obliged, according to this principle, to hand over the suspected person either to another State or to an international tribunal for prosecution.

This article was hotly debated in Ljubljana, and its adoption was opposed by France and the United Kingdom, both of which attempted to make prosecution optional during the negotiations. Luckily, these attempts were unsuccessful. However, both France and the United Kingdom obtained the right to formulate a reservation on the principle aut judicare aut dedere for a renewable period of three years.

It is also worth noting that French diplomacy, which attempts, as French lawyer Simon Foreman writes, “to ensure the supremacy of realpolitik over law”, now stands in stark contrast to the new approach of the French Cour de Cassation, which issued a long-awaited ruling on May 12, 2023.

Universal jurisdiction in France for crimes committed in Syria

The Court reversed its own ruling of November 24, 2021, which had caused a huge outcry by declaring that the crimes against humanity committed by Bashar al-Assad’s regime could not be prosecuted in France on the grounds that they were not punishable under Syrian law. This new decision means that Syrians in France suspected of involvement in the crimes of the Damascus regime can now be prosecuted.

This new precedent from the Cour de Cassation also loosens a tight “lock” that was often an obstacle to the prosecution of international crimes in France, namely the requirement that the person suspected must have “his habitual residence” in the country. In this case, the Syrian suspect was seeking to have his prosecution quashed on the grounds that he had only come to France for a semester to study, and was in fact living elsewhere.

According to this new ruling by the French Cour de Cassasion, it is possible to have a habitual residence in France but live mainly elsewhere, the criterion being a “sufficient” connection to France, which is not considered, for example, as a simple passage through the territory.

While the criminal prosecution of the most serious crimes continues to be the exception rather than the rule in our world, international law has nevertheless made steps forward in recent weeks in Ljubljana – and in Paris. We can only rejoice.

This article was originally published in French in Le Temps on the 26th of June, 2023
Cover image: the MLA Conference, authored by the Ministry of Foreign and European Affairs