CYIL vol. 14 (2023)

EMIL RUFFER CYIL 14 (2023) de Gurmendi from Argentina, a former judge and President of the International Criminal Court (hereinafter as the “ICC”) from 2010 to 2018 and currently serving as the President of the Assembly of the States Parties of the Rome Statute of the ICC, and 5 Vice-Presidents (from Belgium, the Netherlands, Senegal, Slovenia and Mongolia). In addition, a Drafting Committee was established, chaired by the experienced Legal Adviser from the Netherlands, as well as a Credentials Committee, chaired by Mongolia and composed of representatives from Australia, Cyprus and the Czech Republic. The actual detailed discussions of the MLA Convention took place first in three thematic Working Groups, 8 chaired by skilled coordinators, before taken to the level of the plenary. Following debates in the Working Groups, the text was subsequently submitted to the plenary of the Diplomatic Conference for further discussion of any contentious points and for provisional adoption. The delegation of the Czech Republic actively participated in the meetings of all three Working Groups (WG1 covered by the Ministry of Foreign Affairs representatives and WG2 and WG3 by the experts from the Ministry of Justice), as well as in the plenary. In the evening of 26 May 2023, at its 18th plenary session and the final day of the Diplomatic Conference, the text of the MLA was adopted, thanks to the constructive approach of all those closely involved. The structure of the MLA Convention is as follows: PART I. General Provisions, PART II. Central Authorities and Communication, PART III. Mutual Legal Assistance, PART IV. Extradition, PART V. Transfer of Sentenced Persons, PART VI. Victims, Witnesses, Experts and Other Persons, PART VII. Institutional Arrangements, PART VII. Final Provisions, and contains altogether 94 Articles and 8 Annexes (titled A to H). In terms of its substantive scope, the adopted text of the MLA Convention does not fundamentally depart from the draft submitted to the Diplomatic Conference. In terms of its structure and legal obligations it contains, it is essentially the type of treaty that most closely resembles the so-called UN criminal sector conventions. 9 Part I. contains, inter alia , definitions of the range of the most serious crimes under international law to which the Convention applies and to the punishment of which the States Parties undertake to adopt appropriate measures and cooperate among themselves. The provisions in Part I. further include the establishment of rules for the exercise of criminal jurisdiction, the fundamental principle of aut dedere, aut iudicare , as well as the provisions on the optional application of the MLA Convention 10 and establishment of the liability of legal persons for these crimes. The other substantive Parts of the MLA Convention then regulate the various areas of international cooperation in the investigation, prosecution and punishment of these crimes, 8 Working Group 1: Preamble, Part I (General Provisions. incl. jurisdictional and substantive provisions), Part VI (Victims, Witnesses, Experts and Others) and Part VII (Final Provisions), as well as the Annexes; Working Group 2: Part II (Central Authorities and Communication) and Part V (Transfer of Sentenced Persons, incl. execution of sentences); and Working Group 3: Part III (Mutual Legal Assistance) and Part IV (Extradition of offenders). 9 Such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, 10 December 1984) or the United Nations Convention against Transnational Organized Crime (New York, 15 November 2000). 10 Apart from the optional application of the MLA Convention under its Article 6, it is possible to extend the scope of the MLA Convention under its Article 2 (2) to cover other crimes included in Annexes A to H (including the crime of aggression).The extended scope of the MLA Convention would be then applicable only among the States Parties having submitted their respective notifications regarding the same Annex or Annexes.

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