Judicial Cooperation & Mutual Legal Assistance

States are obligated to collaborate with one another in punishing certain crimes that are defined by international criminal law.

The aim of mutual assistance in criminal matters is to prevent criminals from escaping legal prosecution by leaving the territory of the State concerned. This principle is - amongst others- applicable in case of war crimes and crimes against humanity.

The principle of mutual assistance in criminal matters, also referred to as judicial assistance and cooperation, centers around two obligations:

1. the obligation either to prosecute presumed criminals themselves, or;
2. to extradite the accused to the State concerned by the crime committed or to the State that has an interest in pursuing the accused.

Extradition is the act of one State turning over a person who was on its territory to another State, upon the latter’s request. The requesting State makes the claim with the aim of exercising its criminal jurisdiction over the accused. Such mutual cooperation takes place on a case-by-case basis, in the framework of bilateral or multilateral extradition treaties.

Enforced legal basis

The Geneva Conventions establish a reinforced system of mutual assistance in criminal matters. State not only have a choice between prosecution and extradition, but they are also accountable for their commitment to bring such persons, regardless of their nationality, before its own courts and to impose guarantees to ensure that an extradition will not result in impunity for the accused.

Furthermore, the Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity tries to lift some of the obstacles to legal cooperation. It requires that States adopt all domestic measures, legislative or otherwise, that would be necessary to enable the extradition of the persons referred to in the Convention, in accordance with international law.

There is also a UN resolution on the Principles of International Cooperation in the Detection, Arrest, Extradition, and Punishment of Persons Guilty of War Crimes and Crimes against Humanity.

Mutual Assistance and the international tribunals

The tribunals have established a specific mechanism, different from extradition, aimed at alleviating the procedures surrounding the handover of arrested persons: the latter are “transferred” to the Tribunals, as opposed to “extradited.”

The Rome Statute of the International Criminal Court (ICC) also lists the obligations in terms of cooperation and judicial assistance that States Parties must provide to the Court, as well as the practical components of this cooperation.
As is the case for bilateral or multilateral agreements, States are under the obligation to incorporate the provisions and mechanisms of mutual assistance into their national judicial systems in order to cooperate with the ad hoc International Criminal Tribunals and the ICC.

New Initiative

As a practical tool to enable States to both comply with their international obligations and empower their national judiciaries, the Kingdom of the Netherlands, the Kingdom of Belgium and the Republic of Slovenia, propose to set up a modern procedural multilateral treaty on MLA and extradition which would facilitate better practical cooperation between States investigating and prosecuting these crimes