How can the Ljubljana-The Hague Convention help the world and Ukraine in the fight against international crimes?

On May 26, 2023 in Ljubljana (Slovenia), 80 states, including Ukraine, approved the text of the Ljubljana-The Hague MLA Convention on International Cooperation in the Investigation and Prosecution of Genocide, Crimes Against Humanity, War Crimes and Other International Crimes. The Convention will be opened for signature in February 2024 in The Hague.

Why is the Ljubljana-The Hague Convention important?

Since the mid-twentieth century, international law norms have expressly prohibited specific acts. Such acts are crimes under international law. They are the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The international law provisions prohibiting these crimes form a separate branch of international law — international criminal law.

To prosecute and punish crimes under international law, the international community may establish international tribunals. However, the crucial role in implementing international criminal law belongs to states. The initial responsibility for preventing impunity at the national level for crimes covered by international law lies with the individual states. However, fulfilling this duty often proves difficult. Perpetrators of international crimes usually do not obediently wait for justice in the state that was the crime scene or even in their own state but seek “safe havens” in which they can permanently escape investigation and trial. Thus, the prosecution and punishment of those who have committed international crimes often depend on effective international cooperation between states. Such cooperation may involve, among other things, the extradition of suspects from one state to another, the transfer of criminal proceedings from one state to another, and the execution by a state of a sentence passed in another state.

Unfortunately, history shows that international cooperation between states in cases involving crimes under international law is not very efficient. In such cases, states that receive a request for international cooperation often tend to avoid it for various reasons, particularly political ones. For example, the Bolivian authorities have repeatedly rejected France’s requests for the extradition of Klaus Barbie, who was wanted by the French authorities for crimes against humanity committed during the Second World War. Some states, fearing that international cooperation would be ineffective, resorted to measures that violated international law to dispense justice. The clearest example was demonstrated by Israeli intelligence services that delivered from Argentina to Israel in violation of the extradition procedure or, in fact, kidnapped Adolf Eichmann, who had organized the murder of Hungarian Jews during the Second World War.

The Ljubljana-The Hague Convention aims to provide decisive solutions to the problems that, for many decades, have marred international cooperation between states in cases of crimes covered by international law. The Convention, among other things, provides the following obligations for states to cooperate in cases involving the crime of genocide, crimes against humanity, and war crimes (unfortunately, this Convention shall apply to the crime of aggression only in respect of States Parties which have made a special notification under article 2, paragraph 2):

1) Clearly states that the crimes to which this Convention applies shall not be considered as political crimes. This means that one state will not be able to refuse to extradite a suspect of, for example, a war crime to another state solely because the first state considers this crime political by definition, and political crimes are generally not covered by international cooperation between states;

2) Categorically prohibits States Parties from invoking any statute of limitations as a ground for refusing to cooperate;

3) Explicitly requires that a State Party refusing to extradite a person to another state or an international criminal tribunal upon request must itself prosecute that person because of the possible commission of the crime of genocide, crimes against humanity, and war crimes.

There is no doubt that once in force, the Ljubljana-The Hague Convention will be an important stage in implementing international criminal law at the national level.

How can the Ljubljana-The Hague Convention benefit Ukraine?

If signed and ratified, the Convention will open additional venues for Ukraine to prosecute and punish Russian citizens who committed international crimes on Ukrainian territory. Of course, the Convention will not help in punishing alleged perpetrators hiding on Russian territory because Russia did not participate in the preparation of the text of the treaty and is unlikely to join it in the foreseeable future. Anyway, the Convention will make the world much less “safe” for those who decide to go abroad because, on May 26, 2023, the text of the treaty was approved not only by European but also Asian, African, and Latin American states. Therefore, the Convention will presumably open several “paths” for legal actions, which, hopefully, Ukrainian law enforcers will use as effectively as possible.

On the other hand, we should not expect too much from the Ljubljana-The Hague Convention. For example, it can provide minimal help in prosecuting and punishing the perpetrators of the crime of aggression committed against Ukraine by Russian officials because, as mentioned above, while aggression is a crime under international law, the text of the treaty does not impose on States Parties unconditional “hard” obligations concerning this crime. It also does not seem that the Convention will simplify the prosecution and punishment of Russian citizens on the territory of such geographically close to both Ukraine and Russia states as Azerbaijan, Armenia, or Turkey, as these states do not show interest in this international treaty. Eighty states took part in the approval of the text of the Convention, which is undoubtedly a lot, but on the other hand, there are currently 193 UN member states.

In addition, it should be remembered that the Ljubljana-The Hague Convention will not only open up new opportunities for Ukraine but also oblige it to do its homework on improving its national legislation. For example, the Convention requires States Parties to ensure that acts that constitute crimes of genocide, crimes against humanity, and war crimes under international law are criminalized at the national level. Thus, two problems are becoming more relevant. The first is the absence of a separate provision on crimes against humanity in Ukrainian criminal legislation, and the second — is the imperfection of its provisions on war crimes. Both problems could have been solved long ago by the Law of Ukraine, On Amendments to Certain Legislative Acts Concerning the Implementation of the Norms of International Criminal and Humanitarian Law, adopted by parliament on June 7, 2021. Still, the President of Ukraine never signed it.