Diplomatic negotiations underway this week for landmark treaty on investigating and prosecuting genocide, crimes against humanity, war crimes

(BANGKOK, May 17, 2023)—The Association of Southeast Asian Nations (ASEAN) and other U.N. member states should join and support a new landmark international treaty designed to facilitate the investigation and prosecution of genocide, crimes against humanity, and war crimes, said Fortify Rights today. Diplomatic representatives from more than 70 countries are convening this week in Ljubljana, Slovenia to discuss the adoption of the Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes, and other International Crimes, also known as the Mutual Legal Assistance (MLA) treaty.

As of May 12, 2023, 80 states around the world have expressed support for the MLA treaty. Vietnam is the only ASEAN member state to signal support for the treaty to date.

“States must support this initiative so that individuals responsible for atrocity crimes and threats to international peace and security can no longer evade accountability,” said Matthew Smith, Chief Executive Officer at Fortify Rights. “Impunity for atrocities is a global scourge with far-reaching effects, and this treaty could help to end it.”

On March 20, 2023, Teresa Kok—a member of the Malaysian parliament—called on Malaysia’s Ministry of Foreign Affairs to support the treaty initiative and attend the ongoing diplomatic conference.

To support the treaty, states must first sign an official note verbale voicing their support for the permanent declaration.

The draft treaty acknowledges “that fighting impunity for these crimes is essential for peace, stability and the rule of law,” and it aims to “facilitate international cooperation in criminal matters between States Parties with a view to strengthening the fight against impunity for the crime of genocide, crimes against humanity and war crimes.”  The draft treaty creates a process for states to assist each other to extradite perpetrators, share evidence, and support criminal proceedings if perpetrators of mass atrocities or the effects of such crimes cross borders.

The different kinds of mutual legal assistance mentioned in Article 22 of the draft treaty include: taking evidence or statements, including by video conference; examining objects and sites; providing information, evidentiary items, and expert evaluations; providing documents, including financial records; using special investigative techniques; facilitating voluntary appearances of persons, including detainees; cross-border investigations; measures for witness and victim protection; and any other assistance.

When adopted, the treaty would also provide a legal basis for extradition of individuals believed to be responsible for genocide, crimes against humanity, and war crimes.

“This is precisely the type of international law that the world’s worst criminals would fear,” said Matthew Smith, “and that is reason to support it.”

Argentina, Belgium, Mongolia, The Netherlands, Senegal, and Slovenia organized the meeting on May 15 to 26 as core members of the “MLA Initiative,” a group of states that seek to establish a “multilateral treaty that would provide inter-State cooperation mechanisms for the investigation and prosecution of the most serious international crimes.” Independent from the U.N. system, the MLA Initiative emerged from an expert meeting in November 2011 that identified legal gaps in the legal assistance and extradition processes between states involved in adjudicating genocide, crimes against humanity, and war crimes on a national level. At a preparatory conference in October 2017, the core members of the MLA Initiative and 41 other states agreed unanimously on the need for a multilateral treaty to overcome these gaps. During the second preparatory conference in March 2019, 50 states assessed the draft of the MLA Treaty, agreeing that the proposed law covered “all essential aspects of a modern MLA and Extradition treaty.”

The definitions of genocide, crimes against humanity, and war crimes under the draft treaty are the same as under the Rome Statute for the International Criminal Court (The Rome Statue). However, states signing the MLA treaty do not need to be signatories to the Rome Statute.

On May 10, 2023, ten international human rights organizations published a letter recommending a series of amendments to strengthen the draft treaty and urging states to support the treaty.

In November 2004, ASEAN member states adopted the Treaty on Mutual Legal Assistance in Criminal Matters, which the ASEAN secretariat describes as an initiative “to support and strengthen ASEAN Member States’ effort and capacity to combat transnational crimes and other transnational challenges by enhancing cooperation in law enforcement and mutual legal assistance in criminal matters.” However, the instrument focuses only on “transnational crimes and other transnational challenges . . . in criminal matters” without reference to mass atrocity crimes. ASEAN also lacks a regional human rights court and legal framework to prosecute genocide, crimes against humanity, and war crimes.

Fortify Rights continues to document mass atrocity crimes in Southeast Asia committed with impunity. Most recently, in January 2023, 16 survivors from Myanmar and Fortify Rights provided evidence of atrocity crimes committed by senior Myanmar military generals and others against men, women, and children in Myanmar to the Federal Public Prosecutor General of Germany through a criminal complaint filed under the principle of universal jurisdiction.

Since the Myanmar military launched a coup d’état on February 1, 2021, Fortify Rights and partners have documented crimes against humanity and war crimes committed by the Myanmar military. Fortify Rights has also extensively documented the Rohingya genocide as well as crimes against humanity perpetrated by a transnational criminal syndicate responsible for mass-scale human trafficking from Myanmar and Bangladesh to Thailand and Malaysia.

“While focusing on domestic prosecutions and inter-state cooperation, this treaty could help survivors meaningfully participate in justice processes,” said Matthew Smith. “There’s no defensible reason for any ASEAN state to oppose this initiative.”

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