Mutual Assistance in Criminal Matters
States are under the obligation 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 simply by leaving the territory of the State concerned. This principle is applicable to the pursuit of war crimes and crimes against humanity but also to other categories of crimes that threaten national security, such as terrorism.
The principle of mutual assistance in criminal matters, also referred to as judicial assistance and cooperation, centers around two obligations accepted by States: the obligation either to prosecute presumed criminals themselves or 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.
International Conventions Addressing Mutual Assistance in Criminal Matters
In 1949, the Geneva Conventions established a reinforced system of mutual assistance in criminal matters, which extends beyond making a choice between prosecution and extradition. They then hold each State accountable to its commitment to “bring such persons, regardless of their nationality, before its own courts” and impose guarantees to ensure that an extradition will not result in impunity for the accused (GVI Art. 146, API Art. 88).
In terms of specific rules governing mutual assistance in criminal matters or extradition, however, there are no international conventions that bind all States. Obligations relating to these issues are regulated by bilateral or multilateral treaties, which, by default, create “judicial havens” in countries that have not ratified the treaties. The concrete application of judicial assistance must hence be examined on a case-by-case basis.
To implement this principle, technical agreements must regulate the cooperation between the different national police forces and judicial organs of the States concerned. This collaboration must hence be incorporated into the national criminal laws; otherwise, the international commitment remains a commitment in principle only and cannot be translated into practical judicial procedures.
The Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity, adopted by the General Assembly of the UN on 26 November 1968, tries to lift some of the obstacles to such cooperation. It entered into force in 1970 and had fifty-four States Parties as of April 2013. 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 (Art. 3). ▸ Non-applicability of statutory limitations
Finally, 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 (Resolution 3074 [XXVIII], adopted by the UN General Assembly on 3 December 1973).
Mutual Assistance under International Tribunal Statutes
The Statutes of the two ad hoc International Criminal Tribunals created by the UN set forth an obligation to cooperate and to provide assistance on judicial matters (UN Security Council Resolution 827 of 25 May 1993, Annex S/25704; Art. 29 of ICTY Statute). Among other things, they establish 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 Statute of the International Criminal Court (ICC), adopted on 17 July 1998, 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 (Arts. 72, 86–111 of ICC Statute).
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.
Interpol is the international criminal police organization that intercedes in procedures of mutual assistance in criminal matters. Originally, to safeguard national sovereignty, Article 3 of Interpol’s constitution stated that “it is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character,” meaning that no international cooperation was possible that related to political, military, religious, or racial crimes.
The restriction was lifted through various analogous provisions adopted so that Interpol could act in cases of genocide and in the fight against terrorism and could cooperate with the two International Criminal Tribunals for the Former Yugoslavia and Rwanda in cases of war crimes, crimes against humanity, and genocide as well as with the ICC and United Nations Sactions Committees. Interpol has 190 Member States.
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▸ Impunity ▸ International Criminal Court ▸ International Criminal Tribunals ▸ Non-applicability of statutory limitations ▸ Terrorism ▸ Universal jurisdiction ▸ War crimes/Crimes against humanity ▸ Sanctions Committee
For Additional Information: Bassiouni, Cherif. Introduction to International Criminal Law . Ardsley, NY: Transnational, 2003, chap. 5.
Gilbert, Geoff. Transnational Fugitive Offenders in International Law: Extradition and Other Mechanisms . The Hague: Martinus Nijhoff, 1998.
United Nations. “Manual on the Model Treaty on Extradition and Manual of the Model Treaty on Mutual Assistance in Criminal Matters: An Implementation Guide.” International Review of Criminal Policy , nos. 45 and 46 (1995): 1–55.