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Reply to Recommendation | Doc. 12958 | 18 June 2012
The obligation of member and observer States of the Council of Europe to co-operate in the prosecution of war crimes
1. The Committee of Ministers has carefully
studied Parliamentary Assembly Recommendation 1953 (2011) on “The
obligation of member and observer States of the Council of Europe
to co-operate in the prosecution of war crimes” (hereinafter referred
to as Assembly recommendation), and has transmitted it to the European
Committee on Crime Problems (CDPC) and the Steering Committee for
Human Rights (CDDH), for information and possible comments. It
shares the Assembly’s opinion that member and observer States of
the Council of Europe must co-operate to counter impunity and to
ensure that those accused of war crimes are brought to justice.
2. The Committee of Ministers notes that all Council of Europe
member States have ratified the European Convention on Extradition.
It invites the member States which have not yet done so to sign
and ratify the other relevant Council of Europe treaties, and in
particular the three Additional Protocols to the European Convention on
Extradition (ETS No. 86, ETS No. 98 and CETS No. 209), without declarations
and reservations limiting their applicability. It also encourages
observer States to take the necessary steps with a view to their
accession to the above-mentioned instruments.
3. The Committee recalls that Article 1 of the Additional Protocol
to the European Convention on Extradition (ETS No. 86), provides
that war crimes and crimes against humanity cannot be qualified
as political offences and, consequently, that war crimes constitute
extraditable offences. In view of the fact that to date, 37 member States
of the Council of Europe have ratified the Protocol, and given the
pertinence of Article 1 regarding the subject matter of Recommendation
1953 (2011), it is not only important that all member States ratify
this Protocol, but also that they withdraw any reservations with
respect to Article 1.
4. In October 2011, the Committee of Ministers transmitted a
draft Fourth Additional Protocol to the European Convention on Extradition,
to the Parliamentary Assembly for an opinion. It has taken note
of the Assembly’s positive opinion and has adopted the instrument
which modernises a number of the Convention’s provisions. When
elaborating the draft protocol, the CDPC was fully aware of the
Assembly’s concerns on this subject (paragraph 1.3 of the Assembly
recommendation).
5. With respect to the Assembly’s recommendation that the Committee
of Ministers instruct the European Committee on Crime Problems and
the Committee of Experts on the Operation of European Conventions
on Co-operation in Criminal Matters to assess – in transparent consultation
with civil society – the application of the aut
dedere aut iudicare principle (extradite or prosecute)
and arrangements to transpose into domestic law the principle of
universal jurisdiction over war crimes and crimes against humanity,
the Committee of Ministers recalls that the principle “extradite
or prosecute” is already enshrined in the European Convention on Extradition.
According to Article 6 paragraph 2 of the Convention, a requested
Party that refuses to extradite a national, shall at the request
of the requesting Party submit the case to its competent authorities
in order that proceedings may be taken.
6. The Committee of Ministers furthermore notes that several
member States of the Council of Europe have acknowledged the principle
of universal jurisdiction. However, there is no international consensus
on the definition and scope of this principle, as the exercise of
universal jurisdiction is in practice often subject to legal limitations
defined in national legislation. Considerable challenges therefore
remain for domestic legal systems to ensure the exercise of universal
jurisdiction efficiently and effectively.
7. The Committee of Ministers therefore considers that the Council
of Europe could reinforce the application of the principle of aut dedere aut judicare as a means
of prosecuting war crimes effectively in cases where universal jurisdiction
cannot be exercised. It also encourages enhancing co-operation
between the member and observer States. The Committee considers
that the standard-setting work in progress on the subject is already
addressing the criminal law and criminal procedural law questions
which arise in relation to the prosecution of war crimes.
8. With regard to paragraph 1.4 of the Assembly recommendation,
the Committee of Ministers draws the attention of the Assembly to
the fact that the terms of reference of the Committee of Experts
on Impunity (DH‑I) of the Steering Committee for Human Rights expired
on 31 December 2010 and that the Guidelines on eradicating impunity
for serious human rights violations were adopted by the Committee
of Ministers on 30 March 2011. The subject of Recommendation 1953
(2011) is taken into account in Guideline XII, which states that
“International co-operation plays a significant role in combating
impunity. In order to prevent and eradicate impunity, States must
fulfil their obligations, notably with regard to mutual legal assistance, prosecutions
and extraditions, in a manner consistent with respect for human
rights, including the principle of “non-refoulement”, and in good
faith. To that end, States are encouraged to intensify their cooperation
beyond their existing obligations.” The Committee of Ministers observes
that even in those exceptional circumstances when the “non-refoulement”
principle may not be claimed, the asylum seeker cannot be expelled,
when such expulsion would put him or her at risk of death penalty,
or torture or inhuman or degrading treatment, or other serious violations
of human rights in accordance with the case law of the European
Court of Human Rights.
9. The Committee of Ministers observes that even though these
Guidelines do not replace other international standards relating
to impunity, such as international criminal law standards, the text
also makes reference to issues such as “Accountability of subordinates”
(Guideline XIII) and “Restrictions and limitations” (Guideline XIV).
Moreover, the reference texts used for the preparation of the guidelines
make reference, with respect to Guideline XII, to States’ obligations
under the European Convention on Extradition and the European Convention
on Mutual Assistance in Criminal Matters, as well as to the United
Nations General Assembly Principles and Guidelines on the Right
to a Remedy and Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International Humanitarian
Law.
10. The Committee of Ministers notes that effective prosecution
of war crimes must be based on lessons of the past, and is a condition
for the tragedy of totalitarian regimes, in any of their forms and
ideologies, never to be repeated. The Committee of Ministers notes
the unacceptability of all attempts aiming at denial of totalitarian regimes,
their crimes or glorification of their perpetrators and collaborators
and attempts to review history. In this context the Committee of
Ministers would like to welcome all initiatives aiming at enhancing
awareness of totalitarian crimes and protecting the memory of their
victims.