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REPORT ON THE INTERNATIONAL SYMPOSIUM ON COOPERATION AND LEGAL ASSISTANCE FOR THE EFFECTIVE IMPLEMENTATION OF INTERNATIONAL AGREEMENTS, THE HAGUE, 7 - 9 FEBRUARY 2001

1. Introduction

1.1 The Chemical Weapons Convention is intended to be a verifiable comprehensive ban on chemical weapons as an entire category of weapon of mass destruction. As of March 2001, there are 143 parties to the Convention. A further 31 States have signed it and they are, in accordance with Article 18 of the 1969 Vienna Convention on the Law of Treaties, under the interim obligation to refrain from any acts which would defeat the object and purpose of the treaty. Thus the conventional comprehensive ban on chemical weapons under any circumstances has nearly become a universal norm.

1.2 The key question remains, however. Is the ban enforceable? Could or would persons violating the ban anywhere anytime be apprehended and punished? The ability to enforce a ban gives it its true meaning.

1.3 States Parties to the Chemical Weapons Convention are under the obligation to extend their penal legislation to prohibited activities undertaken by their nationals abroad. This increases the probability that States Parties may be faced with the need for legal assistance from another State Party, for example for a prosecution, in accordance with Article VII, paragraph 2, of the Convention. In this context the word "shall" indicates that States Parties are under an obligation to provide such legal cooperation. States Parties to the Chemical Weapons Convention would accordingly need to check whether their domestic legislation and their various treaties concerning different forms of mutual legal assistance concluded with other states will allow for such cooperation, since Article VII, paragraph 2, does not of itself provide an adequate mechanism. There is no single multilateral instrument in place which would enable the 143 States Parties to the Convention, in the absence of the necessary formal undertakings, to afford the necessary legal assistance in each and every such case.

2.1 At the request of the Conference of the States Parties, a symposium was organised on this subject. Over the course of three days in February, the OPCW hosted the International Symposium on Cooperation and Legal Assistance for the Effective Implementation of International Agreements. In implementing the Convention, with its complex and detailed provisions, there is a tendency to focus inward. In the day-to-day work, the Convention, the OPCW, its mandate and its activities easily become a world in itself. This symposium was structured so that, on the crime aspect, focus would be directed outward: to the position enforcement of the Convention must take in national and global efforts to prevent and prosecute crime.

2.2 For this reason the Secretariat sought co-organisers for the symposium, not merely amongst all relevant branches of governments, but also involving the broader participation of universities and specialist research institutes, to consider the practical aspects of the enforcement provisions of the Convention in its wider context under international law. From a more practical point of view, it was thought that States Parties would also benefit from sharing in analysis and discussion of the scope, mechanics and players involved in the various forms of legal cooperation and assistance. Experience and case studies from other international regimes were examined, as well as ad hoc solutions found within the context of current international law. Practitioners in the field presented "lessons learned" from actual investigations, arrests, transfers of prisoners, evidence-gathering, and extraditions. Finally, in this context one unique aspect of the Convention - its stringent confidentiality regime and the special legal issues which this raises - merited attention, as at least some of its implications in this regard still require clarification and resolution.

2.3 The symposium commenced with a series of briefing papers, followed by parallel panels covering the following three subject areas: jurisdictional issues; modalities; and challenges. Speakers addressed each of the factors in the equation: national implementing legislation, the modalities of international cooperation and assistance, the problems that can arise politically or constitutionally in trying to put the modalities into practice, as well as actual situations that are faced in the field in trying to prosecute offenders in an international context. It closed with a roundtable of the Legal Advisers of international organisations to discuss multilateral initiatives for the prevention or prosecution of crime. The final programme is contained in the annex to this report.

2.4 Over 200 participants attended the symposium, including delegates of States Parties from Permanent Representations, Ministries of Justice, Foreign Affairs, Attorneys-General Offices, and other branches of government, police and customs; the Presidents and judges from the International Criminal Tribunal for the former Yugoslavia and the Iran-United States Claims Tribunal; legal advisers and representatives of other international organisations and non-governmental organisations; law professors, students, and members of the media. Nearly 100 requests for sponsorship by the Secretariat were submitted by States Parties in accordance with document S/188/2000 and Add.1, however, the Secretariat was unfortunately only able to fund a limited number due to budgetary constraints.

3. Summary of proceedings

3.1 A detailed Secretariat report on the Symposium will be prepared in due course and the proceedings of the Symposium will eventually be published. In the meantime, some of the points which emerged from the three days of discussions are the following:

(a) In Briefing paper #1, a Policy Advisor from the Economic Investigations Department of the Netherlands Ministry of Finance encouraged the OPCW to recognise the need for States Parties to exchange information among themselves under Article VII, paragraph 2. Cooperation in law enforcement can be conducted on an informal basis, without specific legislative authorisation, to combat serious crime. The mechanisms are already in place in the efforts to fight illicit traffic in narcotics and related precursors under the 1988 United Nations Narcotics Convention. Enforcement of the Chemical Weapons Convention could be integrated into this system, if the political willingness of States Parties exists.

(b) In Briefing paper #2, a professor and leading expert in criminal law from the University of Amsterdam pointed out the trend for legal assistance to increasingly be based on multilateral instruments, not bilateral. For cooperation under the Chemical Weapons Convention, with 143 States Parties, this would be vital to ensure that States Parties would be in a position to cooperate with each and every other State Party. He also highlighted new modalities of legal assistance that are emerging in international law.

(c) In Briefing paper #3, the Head of the Advisory Service from the International Committee of the Red Cross (ICRC) discussed the database of national implementing legislation and case law on international humanitarian law, which will be available on the internet. Implementing legislation for the Chemical Weapons Convention is also being loaded into the ICRC database which will then make it easily available in the public domain. The ICRC Advisory Service is already distributing information on the Convention in their meetings on international humanitarian law and they have a network established for legal technical assistance worldwide.

(d) In Briefing paper #4, the co-Director of the International Criminal Justice and Weapons Control Center of DePaul University College of Law highlighted the dark side of globalisation and high tech: the rise of international crime. It was suggested that cooperation and legal assistance will have to be streamlined in order to cope with this phenomenon.

(e) In Briefing paper #5, Deputy Chief Counsel of the United States Department of Commerce pointed out the stronger law enforcement measures which are apparent in other regimes and lacking under the Chemical Weapons Convention. The establishment of universal jurisdiction for CWC-related crime would be important for effective enforcement.

(f) In the panel on extradition and challenges to administrations in transition, it was interesting to see how States in transition are establishing the mechanisms for cooperation and legal assistance. Efforts to streamline it are being made and the volume of successful cases of legal assistance requests made or responded to is impressive. Emphasis was on the necessity to eliminate the political offence exception for CWC related crimes. The comments of practitioners on the practical aspects of carrying out requests for legal assistance were very useful.

(g) In the panel on concurrent jurisdiction, hypothetical crimes involving chemical weapons were discussed and the bases for jurisdiction examined. The modality for cooperation ("the Rules of the Road") which has successfully been established between the Federal Republic of Yugoslavia and the International Criminal Tribunal for the former Yugoslavia (ICTY) was examined as was the experience of the International Criminal Tribunal for Rwanda and the United Nations Transitional Administration in East Timor.

(h) In the panel on cooperation with or between international organisations, the United Nations experience in establishing international tribunals and mixed international/national tribunals was examined. It was pointed out that the ICTY has no coercive power to enforce the obligation to cooperate and can only report non-cooperation to the United Nations Security Council. Article VII, paragraph 2, leaves States Parties in a similar situation: a case of non-cooperation could only be reported to the Executive Council. One expert with extensive field experience highlighted the overlapping mandates of many groups in the field and pointed out how confusing it can be for victims and witnesses who often do not understand whether they are giving testimony which will be used in court or information which will be used in an NGO or media report. Evidence has been destroyed or rendered inadmissible for use in a court proceeding and witnesses have become frightened by the number of persons trying to interview them. This comment was particularly noted since hypothetically the OPCW could also face this during an investigation of alleged use of chemical weapons.

(i) In the panel on breaches of confidentiality and the exercise of national jurisdiction, the experience of the IAEA was presented as well as a proposal for a universal multilateral treaty to criminalise breaches of confidentiality by international civil servants working under any regime: IAEA safeguards, OPCW inspections, and others. Some of the obstacles which may come up in a civil action or criminal prosecution for a breach of confidentiality were brought forth and deserve further consideration.

(j) In the panel on gathering evidence internationally, the practical aspects of this task, especially in an area undergoing armed conflict, were important to bear in mind. The fact that hypothetically the OPCW could also be found in that same field, taking samples in an investigation alleged use of chemical weapons of which might later become desired evidence in a war crimes trial, is an aspect the Organisation could give further thought to.

(k) In the panel on police cooperation, representatives from the police working at international, European or national level presented papers explaining their daily work with particular focus on the cooperation aspect when solving crimes. Interpol’s practice and insight on intelligence handling at Europol were explained. The Legal Adviser to the Zimbabwe Commissioner of Police provided information on their National Authority and a representative of the Japanese National Research Institute of Police Science gave an overview of the criminal investigations related to the sarin attacks in Japan in 1994 and 1995. An important element in his presentation was that the early detection of sarin resulted in speedy criminal investigations. These details about the single terrorist use of CW in a congested urban setting were very valuable. A request was made for training assistance from the OPCW on the handling of chemicals for enforcement purposes. Preliminary discussions were held between the Secretariat and Interpol on the possible framework for this.

(l) In the panel on transboundary criminal activity, the Legal Advisor of the European Commission pointed out that there is a well established, working system in the European Union. He commented, however, that in each specific instance it only works when there is political will by the Member States concerned and gave examples of the transboundary movement of substances. A representative of Europol Legal Affairs discussed the databases existing among Member States for short notice exchange of information on certain crimes as well as a new proposal for a central unit of judges, public prosecutors and high ranking police officers to support investigations about serious organised crime affecting several Member States.

(m) In the panel on international cooperation in protection against terrorism, Interpol and the United Nations Center for International Crime Prevention outlined their respective initiatives and commentary from academia was provided. Activities in counter-terrorism are receiving sharp attention in today’s world. The limitations of what is achievable is a sobering thought.

(n) The composition of the panel on customs enforcement was very useful: providing the views of a universal organisation (World Customs Organisation), a regional one (Common Market for Eastern and Southern Africa), a national perspective (United States) and an NGO (Harvard-Sussex Program on CBW Armament and Arms Limitation). The common conclusion was reached that effective implementation of the CWC requires a multi-agency approach and discipline to ensure harmonised interpretation and application. A major challenge identified was customs control of all toxic chemicals since the Convention covers all not meeting the general purpose criterion, not just scheduled chemicals. In this panel discussion also took place over whether the Australia Group controls could hamper the transfer of chemicals for purposes not prohibited under the CWC.

(o) In the panel on prosecution of violators of the CWC, three options for new instruments to facilitate prosecution of violators of the Chemical Weapons Convention were tabled: a draft Convention to prohibit biological and chemical weapons under international criminal law; a draft protocol to the CWC relating to Article VII, paragraph 2; and a universal multilateral treaty to criminalise defined breaches of confidentiality.

(p) In the panel on achieving wide adherence to multilateral instruments for judicial cooperation and assistance, the views of practitioners in the multilateral arena on the various aspects of obtaining adherence, meaningful adherence, to multilateral instruments for judicial cooperation and assistance are points which deserve further attention.

(q) In the panel on confidentiality and the protection of national security or confidential business information in judicial proceedings, a comparison of the practice in the ICTY and the future practice of the International Criminal Court was presented and national views on sanctions were discussed. It was also suggested that all cases of breaches of confidentiality could be brought to the OPCW Confidentiality Commission since it offers a specialised, independent and impartial option.

(r) Finally, the roundtable of legal advisers of international organisations established the importance of personal contacts to further initiatives in the prevention or prosecution of crime.

4.1 The fact that this important international symposium was co-organised and hosted by the OPCW at its headquarters in The Hague was a source of great pride and satisfaction to the Secretariat. There can be no doubt that, in the final analysis, the credibility of international agreements depends upon their effective implementation. Cooperation and legal assistance are essential and often complex, elements in the implementation equation. The value of this symposium will be felt, not only by the OPCW and its 143 Member States, in implementing the provisions of the Chemical Weapons Convention, but also by the plethora of other international regimes which are searching out paths to enhancing cooperation and developing a more detailed approach to avenues of legal assistance. The programme for the symposium went to the heart of the necessary implementation measures, with respect to both the preventive and prosecutorial aspects of legal enforcement, and raises issues which entail cooperation between many different agencies of national governments.

4.2 The discussions among such a large and diverse gathering of prosecutors, lawyers, police, customs, academics, and representatives of universal, regional and non-governmental organisations gave perspective and impetus to this issue. One point must be emphasised: the mechanisms for enforcement of international criminal law cannot be advanced on a subject-matter basis. The mechanisms to prevent and prosecute violators are the same, whether it is chemical weapons, drugs, terrorism, or whatever. The issues are common to us all, as should be the solutions.