International Court of Justice

As noted by Australia’s Commonwealth Director of Public Prosecutions, the prevalence of criminal activities and criminal investigations with transnational or international components is ever-increasing.

A result of this trend is the necessity for law enforcement agencies to utilise mechanisms in international law and international relations to locate and access evidence, suspects, and/or proceeds of crime located offshore.

In many instances, different nations cooperate through direct police-to-police (or other law enforcement agency) arrangements.

However, often a more formal mechanism is required. This is particularly the case where coercive law enforcement powers (e.g. carrying out search warrants or seizing suspected proceeds of crime) are needed as part of a particular transnational investigation.

The facilitation of this kind of cooperation is commonly done through treaties on mutual assistance in criminal matters / mutual legal assistance (MLA).

MLA treaties, which are a key component of cooperation between sovereign states in combatting crime, create rights and duties on the contracting parties under international law with respect to such cross-border criminal investigations.


The International Court of Justice and MLA


Djibouti v France: the facts

The International Court of Justice (ICJ), seated in The Hague, was called upon to adjudicate a dispute between Djibouti and France arising out of a bi-lateral MLA treaty between those nations (“the Case Concerning Certain Questions of Mutual Assistance in Criminal Matters”).

The background to the dispute involved the death of a French judge in Djibouti in 1995 in suspicious circumstances. As a result, France opened a judicial investigation into the death and, throughout its course, made a number of requests for assistance to Djibouti pursuant to the 1986 MLA treaty between the two nations. Djibouti complied with these requests for assistance.

Throughout the investigations, a number of Djiboutian government officials were implicated in the judge’s death – a development that resulted in some criticism from Djibouti. This was accompanied by suggestions of Djiboutian officials having improperly influenced witnesses to the French investigations.

In 2004, Djibouti re-opened its own investigation into the Judge’s death and requested, pursuant to the MLA treaty, that France provide it with the record of the French investigation.

Notwithstanding diplomatic communications to the contrary, the relevant French investigating judge denied this request for a number of reasons under French law.

France also contended sending (though Djibouti denied ever receiving) a letter to Djibouti with notification of its inability to comply with the MLA request.


The ICJ’s decision

One of the main legal questions centred on the issue of reciprocity – the concept of quid pro quo that is a core tenant of most agreements in the field of international cooperation between nations.

Djibouti argued that its own prior assistance to France under the MLA treaty in the same matter meant that France was, in essence, legally obligated to return the favour to Djibouti. The ICJ however rejected this argument. The fact that Djibouti had assisted France in matters under the MLA Treaty did not necessarily mean that France had to assist Djibouti in particular matters.

Djibouti also pointed to a provision of the MLA treaty that required requests to be “executed” by judicial authorities. The Court again dismissed Djibouti’s claim in this regard, noting that such an obligation would be subject to the operation of France’s domestic law. The ICJ also found that the reasons for non-assistance given by the French investigating judge – protection of France’s essential interests and a “defence secret” – were valid under the MLA Treaty.

Djibouti’s final argument was that France had violated its obligation under the MLA Treaty to provide Djibouti with reasons for refusing the request for assistance. In this regard, France had only provided Djibouti with a letter with mere notification of its non-compliance with the MLA request. The ICJ found in Djibouti’s favour in this regard, and that France had breached the MLA Treaty.


Implications for interpretation of MLA treaties

The ICJ’s judgment, broadly speaking, appears to confirm the following when considering the interpretation and application of MLA treaties in general:

  • Obligations of reciprocal assistance do not require a strict quid pro quo of cooperation between nations.
  • States are afforded some latitude in making their own determination as to whether exceptions apply which excuse them from providing assistance in particular cases.
  • The obligation to provide assistance pursuant to an MLA treaty will be subject to the operation and application of a state’s own domestic law regarding the provision of such assistance.
  • Procedural aspects of MLA Treaties – such as the giving of reasons – are important obligations in these agreements.


MLA in Australia

Australia is party to 30 bi-lateral MLA treaties with foreign nations. These treaties are incorporated into Australian domestic law as regulations to the Mutual Assistance in Criminal Matters Act 1987 (Cth).

This Act governs the receipt and execution of MLA requests from foreign countries, within Australia, as well as the making of MLA requests by Australia to other nations.

The primary Australian agency that is responsible for incoming and outgoing MLA requests is the Commonwealth Attorney-General’s Department.

Australia’s and its foreign partners’ interpretations of obligations and rights arising out of MLA treaties are no doubt informed by the ICJ’s continually relevant judgment in Djibouti v France.

Nyman Gibson Miralis provides expert advice and representation in cases involving international investigations and mutual legal assistance.

Contact us if you require assistance.