Legal Assistance Under the Chemical Weapons Convention: A Proposal for an Optional Protocol to the Convention?

A crime by non-State actors involving chemical weapons use, or attempted use, would almost certainly have transnational elements: either the persons, the financing, or the substances involved would have crossed borders in the planning or the aftermath of the crime. The global response to the September attacks on the World Trade Center and the Pentagon demonstrated the extent to which other States can become involved in the investigation of a crime, and in the prevention of further crimes.

The immediate official international responses to those attacks fell to large extent into the category of inter-State mutual legal assistance: requests to surrender suspected accomplices; arrests, searches, and seizures by police in more than 10 countries; the tracing of travel documentation and financial transactions; and the freezing of assets of suspected accomplices. The cooperating authorities in the various jurisdictions acting on such requests normally do so on the basis of bilateral or multilateral agreements covering one or more of these forms of mutual legal assistance. Exceptionally, in the case of the September attacks, the legal basis for the cooperation may have been the United Nations Security Council Chapter VII resolutions aimed at countering terrorism, and the financing of terrorist acts.

To rule out the possibility that criminals might evade the Chemical Weapons Convention (CWC) regime by moving their activities or their physical presence to the territory of another State, Article VII(1)(c) requires States Par ties to extend their penal legislation covering the prohibitions to "any activity prohibited to a State Party under this Convention undertaken anywhere by natural persons, possessing its nationality, in conformity with international law." One State Party, Sweden, has gone beyond this obligation and, in its penal code, has provided that: "A crime against the Convention will be sentenced by Swedish law and at a Swedish court even if the crime is committed abroad and irrespective of the perpetrator's nationality". The Convention's obligation to extend penal legislation extraterritorially increases the probability that States Parties may be faced with the need for legal assistance from another State for prosecuting a crime violating the Convention.

Article VII,Paragraph 2, of the Chemical Weapons Convention

The Convention specifically foresees the possible need for legal assistance. In this respect,Article VII, paragraph 2, of the Convention provides that:

"Each State Party shall cooperate with other States Par ties and afford the appropriate form of legal assistance to facilitate the implementation of the obligations under paragraph 1" [in summary, the prohibitions, enforcement, and the extraterritorial application of penal legislation]. The word "shall" indicates that States, as a Convention obligation, must respond positively to requests for legal assistance; however, the obligation is stated in only the most general terms. What is the possible scope of the obligation "to cooperate with other States Parties and afford the appropriate form of legal assistance", and how would that obligation be carried out in practice?

In prosecuting a crime involving a violation of the Convention or violation of national laws that stem from it, different States may be involved, and may need to make requests for cooperation and legal assistance from other States: (1) the State on whose territory the offence has taken place; (2) the State on whose territory the accused is residing or in custody; (3) the State whose nationality is held by the accused; and (4) the State affected by the offence, or whose natural or legal persons suffered damages from the offence.

Assistance could be requested for the following: (1) in identifying the suspect; (2) in locating and providing the addresses of those involved; (3) in taking testimony or statements in the territory of the requested State(s); (4) in producing or preserving judicial or other documents, records or pieces of evidence; (5) in executing requests for searches and seizures; (6) in serving judicial and administrative documents; (7) in authenticating documents; (8) in transferring proceedings; and (9) in extradition.

Obstacles to Cooperation and Legal Assistance under Article VII, Paragraph 2

Even when two States Parties wish to cooperate and provide legal assistance under Article VII, paragraph 2, obstacles could arise, such as:

(1) inconsistent definitions of the crimes (generally the act must be defined as a crime in similar terms in both jurisdictions);

(2) inconsistent penalties (generally the crime must be a serious one subject to a penalty of at least one year's imprisonment);

(3) the mutual legal assistance agreement in force between the two States may provide for an exception which applies to the case; or

(4) there is no mutual legal assistance agreement in place to provide a legal basis for the jurisdictions to cooperate with each other in the prosecution.

With respect to the first two obstacles, the greatest barrier of all to enforcement may be the slow pace of States Parties to enact the requisite national legislation to implement the Convention. Under the Vienna Convention on the Law of Treaties, failure to enact implementing legislation does not excuse the State from respecting its treaty obligations. Such failure will, however, impair the State's ability to prosecute individuals. The most recent Survey of National Implementing Legislation, published by the OPCW Secretariat in 2001, shows that at present, the legislation enacted by States Parties diverges widely in terms of prohibited activities and penalties. With respect to the third obstacle, mutual legal assistance agreements typically contain two exceptions which would be inappropriate in the case of a crime related to violation of the Convention: the political offence exception, and the fiscal offence exception. Any consideration of whether the political offence exception could be eliminated for chemical weapons offences should take note of the fact that, under the Convention, there would not exist any just cause justifying an act involving chemical weapons. The notion that certain acts are in all cases unjustifiable was incorporated in the 1998 United Nations International Convention for the Suppression of Terrorist Bombings, in which the political offence exception was ruled out. In addition, fiscal offences-those relating to public revenue, e.g. taxes, official fees, customs duties, exchange control-were traditionally not considered to be extraditable offences, the rationale being that fiscal offences in another country did not affect morality in the home jurisdiction. That concept is now changing. In the effort to combat organised crime, and trafficking in drugs and weapons, it is now recognised that money laundering enables the funding of these and other criminal activities. In some cases, the financial trail will be the main one law enforcement can follow. Experts have indicated that illicit trafficking cannot be fought effectively if the economic benefits of crime are not also tackled in parallel.

With respect to the fourth obstacle, there is no customary practice in international cooperation and legal assistance in criminal matters: it is normally prescribed in bilateral treaties, and in a few multilateral instruments. If the legal system of a State Party (either requesting or receiving a request for legal assistance) makes cooperation conditional upon the existence of a treaty, the absence of one will, in practice nationally, act as an effective bar to providing the assistance needed, regardless of the State's international obligation under Article VII, paragraph 2, to provide such assistance. The principle of international cooperation has not yet been consolidated by the adoption of a universal multilateral treaty with uniform rules facilitating all forms of mutual legal assistance. While extradition treaties have long been concluded by States, agreements governing other forms of mutual legal assistance, even covering assistance needed at the pre-judicial stage, are very recent. The development of an approach integrating the various modes of inter-State penal cooperation is beginning at the national and regional
levels, but the pace is slow. Existing bilateral and multilateral agreements are not comprehensive in scope and, in the case of multilateral agreements, reservations have been made to them. In any event, all types of mutual legal assistance are almost never included together in an integrated instrument, and the few integrated instruments are not universally adhered to.

In preparing to implement Article VII, paragraph 2, States Parties to the Convention need to check whether their national law, and their various treaties concerning different forms of mutual legal assistance concluded with the other States Parties, will allow for cooperation. If two States Parties wishing to cooperate do encounter obstacles, only certain other non-judicial coercive techniques may be available, based on comity or cooperation through organisations such as Interpol. Assistance can be granted on an ad hoc basis, on the basis of reciprocity, and can be requested through diplomatic channels. However, diplomatic channels may not meet the demand for expediency, which is especially important in criminal investigations or proceedings. Furthermore, the authorities using those channels will not be in a position to compel testimony or the production of evidence.

The wording of Article VII, paragraph 2, of the Convention itself does not provide any explicit mechanism that would allow the Convention itself to act as a mutual legal assistance instrument.

A Case for an Optional Protocol on Cooperation and Legal Assistance?

One option which could be considered by States Par ties to the Convention is the elaboration of an optional protocol, binding upon the States party to it, enumerating the forms of legal assistance which a State Party will provide, and detailing the procedures for the provision of legal assistance under the Convention. The primary utility of such a protocol would be that it would define the parameters of assistance, and in particular, that it would limit the possible excuses for refusing to give assistance.

A proposal for a draft Optional Protocol to the CWC was presented at the OPCW International Symposium on Cooperation and Legal Assistance in The Hague in February 2001. The text of the draft was drawn from language in other existing instruments. This approach could facilitate the acceptance of the text of the protocol by States: if they have agreed to specific language to fight crime in another subject area, for example for drugs, it could be argued that the same language should also be acceptable to them when fighting an equally serious crime involving chemical weapons offences.

Would States Parties be interested in this initiative? In 1998, the OPCW Secretariat distributed a document drawing attention for the first time to the potential difficulties which could arise in the actual implementation of Article VII, paragraph 2. As a result, the Conference of the States Parties at its Third Session requested the Secretariat to convene a seminar on national implementation and legal cooperation, with a view to enhancing the possibilities for legal assistance amongst States Parties. The Secretariat accordingly organised the International Symposium on Cooperation and Legal Assistance for the Effective Implementation of International Agreements. Following the September attacks on the World Trade Center and the Pentagon, the OPCW Executive Council considered the consequences of those attacks within the context of the Convention, and its Chairman issued a statement:

"The Council appeals to all States Parties to redouble their efforts … to comply fully with their obligations under the Convention, including … the prevention of the diversion and illegal use of chemicals and chemical technologies, and the taking of all necessary measures in accordance with Article VII of the Convention.…

The Council urges the development of further means and measures to provide legislative support and assistance to States Parties for the enactment at the national level of enforceable legal provisions for the effective implementation of the Convention."

The terrorist attacks on the World Trade Center and the Pentagon brought into the limelight the need for international cooperation to combat this form of crime, and highlighted the need for streamlining this process. The United Nations Security Council, acting under Chapter VII, in its resolution 1373 (2001), noted with concern "the close connection between international terrorism and…illegal arms-trafficking, and illegal movement of nuclear, chemical, biological and other potentially deadly materials and, in this regard emphasises the need to enhance coordination of efforts on national, subregional, regional and international levels in order to strengthen a global response to this serious challenge and threat to international security." It decided that all States shall "afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings", and called upon all States to "find ways of intensifying and accelerating
the exchange of operational information, especially regarding … traffic in arms … and the threat posed by the possession of weapons of mass destruction by terrorist groups". The United Nations General Assembly urgently called for "international cooperation to bring to justice the perpetrators, organisers and sponsors of the outrages of 11 September 2001", and "to prevent and eradicate acts of terrorism." Similar emphases on enhanced international cooperation for prevention and punishment of terrorist acts were contained in the Security Council and General Assembly resolutions adopted prior to 11 September.

Finally, the draft Optional Protocol could also contribute to alleviating the practical effect which could possibly arise from the delay by many States Par ties in extending their penal legislation extraterritorially. As mentioned above, Article VII, paragraph 1, of the Convention requires States Parties to extend their penal provisions for chemical weapons offences to their nationals abroad. OPCW surveys, however, show that as few as 15% of States Par ties have done so. This may be because a number of States do not recognise the extraterritorial extension of legislation and thus are encountering a conflict with this treaty obligation under the CWC. Although this conflict does not excuse the State, at
the international level, from meeting its treaty obligation, in the meantime the objective (prosecution of violators of the Convention) can be achieved through the provision of mutual legal assistance to a State that can assert jurisdiction on another basis.

Conclusion

In enforcing the Convention, States Par ties have agreed in Article VII, paragraph 2, that they shall cooperate with other States Par ties, and afford the appropriate form of legal assistance. Since the Convention does not contain the adequate mechanisms to implement that obligation, and an effective network of bilateral or multilateral mutual legal assistance agreements between all 143 States Parties to the Convention does not, and cannot, exist, States Parties may wish to consider a practical solution. The draft Optional Protocol on Cooperation and Legal Assistance is proposed as possibly constituting the simplest solution. Since the language used in the draft Optional Protocol is drawn mainly
from texts adhered to in other instruments by almost all States Parties to the Convention, it should provide a starting point which should be acceptable to them from the outset. In view of the present concern by the international community to prevent and prosecute terrorist acts, the political climate is ripe for the acceptance of the draft Optional Protocol. And since it deals with only one very narrow subject-a very serious one which States Par ties to the Convention have undertaken to criminalise and enforce-the Optional Protocol should not meet with the other barriers States may have encountered in adhering to regional or multilateral mutual legal assistance agreements concerning more general categories of criminal offences.

Notes

1 The text of the proposed draft Optional Protocol will appear in the forthcoming publication of the symposium proceedings and is presently available, upon request, from the Office of the Legal Adviser.

2 Note by the Director-General on Compliance with Article VII: Legislation, Cooperation and Legal Assistance (OPCW doc.CIII/ DG.1/Rev.1, dated 17 November 1998).

3 Report of the Third Session of the Conference of the States Parties (subparagraph 19.3 of OPCW doc. C-III/4, dated 20 November 1998).

4 Report on the International Symposium on Cooperation and Legal Assistance for the Effective Implementation of International Agreements, The Hague, 7-9 February 2001 (S/251/2001, dated 22 March 2001).

5 Statement by the Chairman of the OPCW Executive Council on the Consequences of Terrorist Attacks on 11 September 2001 (OPCW doc. EC-XXVI/3, dated 28 September 2001).

6 UN Security Council resolution 1373 (28 September 2001), subparagraphs 2(f), 3(a) and 4. Emphasis in the original.

7 UNGA resolution 56/1 (12 September 2001), paragraphs 3 and 4.

8 The most recent, for example, are UNGA res. 54/110 and 55/158 and UNSC res. 1269 (1999).

9 Article 27 of the 1969 Vienna Convention on the Law of Treaties.