Identifying and Understanding Mutual Legal Assistance Obligations Under International Law: The Case of Afghanistan

Abstract

The rise of transnational crime has been a growing threat to international security and global governance over the last three decades. Transnational crime poses a greater threat to developing countries and conflict-affected states such as Afghanistan. One of the main challenges to any state’s effort to combat transnational crime is its transnational character,often involving activities that cross multiple state boundaries. As a result, a single state acting alone may find it nearly impossible to suppress such crimes without legal assistance from other countries. Further, under international law, states cannot enforce their criminal jurisdiction beyond their national boundaries. These barriers combined with the rise in transnational crime have pushed states to find new ways to encourage and facilitate legal assistance among themselves. Most notably, the UN adopted four major conventions, known as UN Suppression Conventions, including the 2003 UN Convention against Transnational Organized Crime and the 2005 UN Convention against Corruption. To effectively combat transnational crime and facilitate flow of evidence and information, these UN conventions impose a wide range of mutual legal assistance obligations on states parties including Afghanistan.

The purpose of this Article is to identify and analyze Afghanistan’s mutual legal assistance obligations under international law. The Article examines the relevant provisions of the UN Suppression Conventions and delineates at least 17 mutual legal assistance obligations and eight non-mandatory measures for Afghanistan. Additionally, the Article explores and assesses the impacts of Afghanistan’s obligations under the SAARCC Convention on Mutual Legal Assistance in Criminal Matters. Finally, it briefly examines 40 Recommendations from the Financial Action Task Force and analyzes the impacts of mutual legal assistance provisions of the recommendations to states parties and non-states parties. The Article’s analysis may help not only Afghanistan understand, incorporate, and implement its obligations, but will also provide a useful analytical framework for other states parties (particularly developing countries) to understand the UN Suppression Conventions to compare and assess the extent of their compliance with the conventions.