{"id":28925,"date":"2026-06-23T09:00:43","date_gmt":"2026-06-23T07:00:43","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=28925"},"modified":"2026-06-29T17:45:06","modified_gmt":"2026-06-29T15:45:06","slug":"the-ljubljana-the-hague-convention","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/the-ljubljana-the-hague-convention\/","title":{"rendered":"The Ljubljana-The Hague Convention"},"content":{"rendered":"

In May 2023, The\u00a0Ljubljana-The Hague Convention<\/u><\/a> on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes and other International Crimes (LHC) was adopted. The Convention is intended to remedy the long-standing inter-state \u2018cooperation gap\u2019 around the domestic investigation and prosecution of international crimes \u2013 a gap which has often impeded national proceedings.\u00a0It\u00a0also reflects the wider shift from international to national responsibility currently underway in international criminal justice. As the limitations of the International Criminal Court (ICC) are increasingly exposed, and the Court moves to a new position as \u2018justice hub\u2019<\/u><\/a>, the significance of national prosecutions becomes more apparent. If international crimes are to be consistently addressed, it is essential that national jurisdictions take up the mantle of prosecuting international crimes. Those national investigations and prosecutions must be supported by an effective multilateral cooperation regime.<\/p>\n

The LHC is significant because it creates the first global framework for inter-state judicial cooperation on international crimes\u00a0(Article 1). It also gives ratifying states the technical tools to provide mutual legal assistance in sharing information and evidence, accessing victims, witnesses and assets, and extraditing suspects.<\/p>\n

However, while the LHC is a significant development in international criminal law, its provisions are already known in other contexts. Indeed, the LHC is an exercise in international legal reconstruction in its borrowing from existing treaty regimes to build a new instrument. As a result, its incorporation of large parts of the UN Convention on Transnational Organized Crime<\/u><\/a>\u2019s\u00a0(UNTOC) cooperation regime may thwart rather than enhance cooperation. Under this system, States retain significant control over whether and in which circumstances to provide assistance. In addition, studies<\/u><\/a> show that UNTOC is under-utilised as a basis for cooperation on transnational crimes. This piece argues that the transplanted cooperation regime of the LHC is overly conservative and lacks the innovation required to truly transform cooperation between states in international crimes prosecutions.<\/p>\n

The LHC as a Reconstruction Exercise<\/strong><\/p>\n

The LHC is a product of treaty transplantation.\u00a0In it, the provisions of a variety of international instruments on international crimes and judicial assistance have been reconstructed to create a new treaty facilitating inter-state cooperation. The definitions of genocide, crimes against humanity and war crimes are borrowed from the Rome Statute<\/u><\/a>, the definition of victims comes from the ICC Rules of Procedure and Evidence<\/u><\/a>, and the aut<\/em>\u00a0<\/em>dedere<\/em>\u00a0<\/em>aut<\/em> judicare<\/em> formula is modelled on Article 7 of the Convention against Torture<\/u><\/a>. Provisions on protection of personal data were shaped by the EU\u2019s GDPR Regulation<\/u>s<\/u><\/a> and those on the transfer of sentenced persons were transplanted from the Council of Europe\u2019s Convention on the Transfer of Sentenced <\/u>P<\/u>ersons<\/u><\/a> and its two Additional Protocols.<\/p>\n

However, the most substantial transplantation is the cooperation regime, which is also the primary focus of and motivation behind the LHC. Almost 50 per cent of the mutual legal assistance and extradition provisions come from UNTOC, with the remainder borrowed from a variety of European and other international instruments.\u00a0The mechanics of mutual legal assistance \u2013 the purposes for which assistance can be sought, the format requests should take, how to execute them, many of the grounds for refusal and the processes for confiscation and restitution – are all replications of UNTOC provisions. Those on more specific methods of cooperation, such as hearings by video conference, cross-border observations, covert investigations, and joint investigation teams have been borrowed from the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters<\/u><\/a>. The human rights related grounds for refusal of assistance can be found in the UN Model Treaty on Extradition.<\/u><\/a> The LHC borrows these and makes them grounds for refusal of mutual legal assistance.<\/p>\n

On extradition, matters of scope, legal basis, optional grounds for refusal, extradition of nationals and rules on execution of requests all come from UNTOC. Rules on speciality, re-extradition, provisional arrest, and surrender are borrowed from the European Convention on Extradition<\/u><\/a>. Grounds for refusal are also drawn from this instrument as well as from the UN Model Treaty on extradition. Overall, there are barely any novel or unique cooperation provisions within the LHC, only a repurposing of provisions which already exist in different instruments .<\/p>\n

Borrowing a Sovereignty Centring Model <\/strong><\/p>\n

UNTOC\u2019s wide ratification, state familiarity with its provisions, and similarity in objectives around cooperation enhancement appear\u00a0to make it a logical basis for the LHC\u2019s cooperation regime. However, the UNTOC framework requires relatively little alteration to domestic legal systems<\/u><\/a> and permits states parties to continue to rely on national law and practice.\u00a0As a result, it is considered sovereignty reinforcing<\/u><\/a> rather than sovereignty ceding<\/u><\/a>, which has typically been required in relation to international crimes. This makes the UNTOC regime a poor fit for the LHC.<\/p>\n

Traditional grounds for refusing cooperation are retained in the LHC.\u00a0States can refuse to provide assistance where it is believed that the execution of the request may \u2018prejudice its sovereignty, security, ordre<\/em> public<\/em> or other essential interests\u2019 (Article 30(1)(g)). These grounds are routine across existing Mutual Legal Assistance Treaties,\u00a0however, they are legally ambiguous.\u00a0The lack of transparency<\/u><\/a> around national decision making on mutual legal assistance and extradition requests means that there is no consistent jurisprudence on their meaning or interpretation, making them open to exploitation by states reluctant to cooperate. While international criminal law no longer accepts unilateral assertions of national sovereignty or national security as grounds for refusing assistance to international courts, inter-state assistance in cases involving serious human rights violations has often been refused on those bases. The breadth of information covered by \u2018national security\u2019 and the ease with which states can classify categories of information as relating to it, make this an easy means of avoiding assistance for a state that is unwilling to cooperate. In states that have experienced international crimes, the threat posed by criminal prosecutions to peace and stability is often advanced as an argument against pursuing trials. Such fears may be legitimate or may be fabrications to avoid criminal accountability. Nevertheless, the availability of this ground for refusal provides an uncooperative state with legally permissible grounds for refusing assistance.\u00a0 Yet, it it is unrealistic to suggest that States would agree to forego the ability to refuse assistance on the basis of national security. Even a generally accepted definition, which might restrict its application, seems unlikely.<\/p>\n

Issues such as national security are always thorny. Nonetheless, a more international crimes specific model should have been pursued in the LHC, omitting some of the traditional grounds for refusal of assistance in order to enhance cooperation. This might have aligned more closely with the direction of travel in international criminal law. The ICC cooperation regime, although it does not impose absolute obligations on states parties, only permits refusal of requests in very limited circumstances (Article 93(4)). In addition, all specific forms of cooperation between the ICC and its states parties take place under the overarching obligation to fully cooperate with the Court in its investigations and prosecutions (Article 86). This can be contrasted with UNTOC and the LHC standard where states must provide each other with assistance to \u2018the fullest extent possible under relevant laws\u2019, (UNTOC, Article 18(2); LHC, Article 23(2)), which, of course, includes laws which require or permit the refusal of assistance.<\/p>\n

Two further issues arise out of the wholesale importation of the UNTOC cooperation regime into the LHC. First, the LHC does not address the issue of immunities, standing in stark contrast to\u00a0the ICC Statute and the Draft Articles on Crimes against Humanity<\/u><\/a>. This silence may enable states to refuse assistance on the basis that the sought person is entitled to immunity under customary international law, where they would not be so shielded under the Rome Statute.\u00a0Further, as in UNTOC, there is no requirement under the LHC to judicialize mutual legal assistance and extradition processes. Cooperation procedures are not always, or not exclusively, within the domain of judicial entities and frequently involve executive decision makers and ministers of justice, opening inter-state cooperation to political meddling and corruption. This has been problematic under UNTOC and may well prove to be more so under the LHC where the crimes concerned are arguably more contentious.<\/p>\n

Borrowing a<\/strong>n Under-Used <\/strong>Model<\/strong><\/p>\n

In borrowing the UNTOC regime, the LHC negotiators also appear to have overlooked how little is known about the effectiveness of UNTOC as a basis for cooperation. UNTOC did not have a review mechanism<\/u><\/a> until 2018, and no review process was undertaken until 2020. The resulting lack of data gathering means that little is known about state practice under the Treaty. The review mechanism is running behind schedule, with no country reviews having been published in the years since the mechanism was operationalised. Questions might therefore legitimately be asked about why the LHC borrowed a model about which\u00a0so little is known.<\/p>\n

The scant information that is available suggests that UNTOC is under-utilized<\/u><\/a> as a basis for cooperation due to resource constraints and legal and political barriers at national levels. In developing, small, and transitional states, the administrative, human, and financial resources associated with international cooperation on increasingly complex criminal cases can pose significant challenges.<\/p>\n

This is highlighted in a 2021 UNODC study<\/u><\/a> illustrating UNTOC\u2019s uneven geographical use. States categorised as Western European and Others, and more recently, the Latin America and the Caribbean groups, make frequent use of UNTOC.\u00a0Although, when it comes to cooperation amongst European states themselves, EU or Council of Europe instruments tend to be relied upon due to their detailed procedural frameworks. Conversely, African states and those in the Asia-Pacific make very little use of UNTOC. It is reported<\/u><\/a> that governments of the Global South consider UNTOC a \u2018one-way street\u2019 in which Western governments expect cooperation from them but are not willing to provide judicial assistance in the other direction.<\/p>\n

Some of these issues do not stem directly from the cooperation provisions themselves, but from differences<\/u><\/a> in international human rights law and privacy standards, the requirements of asylum and refugee laws and national prohibitions on the extradition of nationals. No cooperation regime can mitigate entirely those barriers. However, reports that non-European states find many cooperation procedures overly cumbersome and bureaucratic,\u00a0in conjuction with the patchy practice under UNTOC,\u00a0ought to have triggered some disquiet among negotiating parties.<\/p>\n

Already, there should be concern that the LHC is not attracting the global support that is essential to its success.\u00a0 Since 14 February 2024, when the Convention opened for signature, 40 states have signed<\/u><\/a> it. Only Latvia has ratified. 29 of the signatory states, more than 70 per cent, are European. There are five African states, four from Latin America and the Caribbean, and one from Asia. Perhaps unsurprisingly, the signatories are overwhelmingly ICC States Parties. Only Rwanda is not an ICC<\/u> member state<\/u><\/a>.<\/p>\n

Final Thoughts<\/strong><\/p>\n

The reconstructive practice discussed in this piece is relevant to wider debates on the resort to treaty transplantation and the contexts in which it is appropriate. While existing legal provisions may be a logical \u2013 and indeed a necessary – first port of call in the creation of new instruments, their transplantation must be supported by careful consideration of their relevance, suitability and likely effectiveness in the specific context.<\/p>\n

As states move to construct a treaty on crimes against humanity, which will also involve an interstate cooperation regime, they should consider the issues discussed here and the difficulties foreseen\u00a0with transplanting a generic, sovereignty centring cooperation regime which regurgitates existing provisions and retains traditional state centric models. In that Treaty, there is time to consider whether a more innovative cooperation regime, tailored to the specific requirements of international crimes investigations, might be possible. The negotiating states should carefully consider the kinds of cooperation that might be needed to investigate and prosecute crimes against humanity and whether the nature of the crimes justify a re-evaluation of the circumstances in which States can refuse to provide assistance.<\/p>\n

Reconstruction should not simply be a re-deployment of existing provisions in a new context. Rather, reconstruction should involve an element of transformation, where existing regimes can serve as the starting point for the creation of new ones. This must, however, proceed on the\u00a0basis that alteration and development is likely to be required to enable\u00a0existing frameworks and provisions\u00a0to work effectively and efficiently in a different context.<\/p>\n

As for the LHC,\u00a0<\/strong>it remains to be seen whether States will use it with much frequency as a basis for cooperation on international crimes. Work remains to be done on attracting global support and mitigating in practice the issues that have beset UNTOC.<\/p>\n","protected":false},"excerpt":{"rendered":"

In May 2023, The\u00a0Ljubljana-The Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes and other International Crimes (LHC) was adopted. The Convention is intended to remedy the long-standing inter-state \u2018cooperation gap\u2019 around the domestic investigation and prosecution of international crimes \u2013 a gap which […]<\/p>\n","protected":false},"author":35,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[5035,4094],"authors":[8027],"article-categories":[3572],"doi":[],"class_list":["post-28925","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-cooperation","tag-international-criminal-law","authors-alison-bisset","article-categories-symposium"],"acf":{"subline":"Transforming Prosecution of International Crimes through Reconstruction?"},"meta_box":{"doi":"10.17176\/20260623-190039-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/28925","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/35"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=28925"}],"version-history":[{"count":5,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/28925\/revisions"}],"predecessor-version":[{"id":28957,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/28925\/revisions\/28957"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=28925"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=28925"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=28925"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=28925"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=28925"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=28925"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}