1. Introduction
1. The Council of Europe’s role
in conflict prevention and crisis management is defined in its Statute
(ETS No. 1) adopted by the founding European governments in 1949.
2. The Statute of the Council of Europe begins with a preambular
paragraph declaring that “the pursuit of peace based upon justice
and international co-operation is vital for the preservation of
human society and civilisation”. Indeed, the Council of Europe aims
at a structural prevention of conflicts through its multilateral tools,
with the collection and analysis of information on the root causes
of conflicts before they erupt, and the development of conflict
prevention strategies in co-ordination with other international
organisations.
3. Furthermore, according to Article 1 of the Statute, “the aim
of the Council of Europe is to achieve a greater unity between its
Members for the purpose of safeguarding and realising the ideals
and principles which are their common heritage and facilitating
their economic and social progress”. To achieve the aim of greater unity,
the Council of Europe needs to be active in conflict prevention.
4. Finally, while national defence is explicitly excluded from
the scope of responsibility of the Council of Europe, the Organisation
has been active in protecting democratic security. Security is a
wider concept than defence, and rests to a great extent on compliance
with democratic processes, human rights and the rule of law.
5. However, recently, peace in Europe has been fundamentally
challenged. After a gradual decline, the number of armed conflicts
began to rise again in 2010. Some 35 are currently ongoing in the
world. Contributing factors to this rise include the breakdown in
the rule of law, weak State institutions, unsustainable exploitation of
natural resources that fuels climate change, erosion of social welfare,
the weakening of multilateralism and the passivity of the international
community towards emerging threats – all of which might contribute
to the rise of authoritarian regimes.
2. Challenges to democratic security
6. The price of every war will
always be many times higher than that of its prevention. Since the
escalation of the Russian aggression to a full-scale invasion on
24 February 2022, the war has taken, as of 2 April 2023, at least
8 451 lives,
501 of them children,
left 14 156 civilians injured and
10 cities razed to the ground, including Mariupol, Bakhmut, and
Volnovakha.
Over 3 500 schools and other educational
facilities have been either completely destroyed or damaged
and education for over 5 million
children is being disrupted.
Attacks on Ukraine’s health care
system have led to the destruction of at least 218 hospitals and
clinics.
More than 13 million Ukrainians
have been forced to leave their homes behind, with approximately
5 million of them displaced internally within the territory of Ukraine
and around 8 million forced to seek refuge abroad.
7. As the Russian aggression against Ukraine started on 20 February
2014 with the annexation of Crimea and subsequent occupation of
the Donetsk and Luhansk regions, the total death toll must also
include the over 14 000 killed and almost 39 000 injured during
the 8 years leading up to February 2022.
8. These devastating numbers represent the tragedy of individuals,
separated families, and a nation torn. Unfortunately, these numbers
are growing with every day of the ongoing Russian aggression. The
numbers also do not account for the losses and damage within Ukrainian
territories under Russian occupation, where the Russian Federation
blocks access for all independent monitoring missions.
9. The ripple effect of Russia’s crimes in Ukraine extends far
beyond the European continent. As the International Energy Agency
noted, the world is facing its first “truly global energy crisis”
as a result of long-lasting effects of the full-scale Russian invasion
of Ukraine.
Furthermore, Russia has consistently
pursued political and economic weaponisation of its hydrocarbon
trade.
10. Russia continues to block the export of Ukrainian grain. As
a consequence, North Africa and the Middle East are suffering from
severe food shortages. The grain deal, reached on 22 July 2022 with
the facilitation of Türkiye and the United Nations, partially enabled
the export of grain, related food items, and fertilisers, from Ukraine’s
Odesa, Yuzhny, and Chornomorsk ports. However, as the Russian side
constantly disrupts and limits its work, the problem persists. Food
prices have reached their 10-year maximum,
with over 346 million people in
Africa alone being short of food in 2023.
11. The total amount of reconstruction and rebuilding to be done
in Ukraine already ranges from €410 billion
to more than €1 trillion.
As the war rages on, the reconstruction
cost is rising every day. With demining activities alone expected
to take up to 30 years, it will take decades before the post-war
economy returns to normal.
12. To whitewash its crimes, the Russian Federation conducts an
active disinformation campaign against Ukraine and the democratic
world. Russian propaganda is particularly active in the global south,
trying to distort the world’s perception of its unlawful war of
aggression.
Together with malign cyber activities,
attempts to influence public opinion have been a persistent challenge
posed by the Russian aggressive foreign policies, vividly demonstrated
by attempts to interfere in the presidential elections in the US
and France, and the Brexit referendum in the United Kingdom.
With the dissemination of cross-border
online platforms, European citizens become increasingly exposed
to spying activities and disinformation campaigns of authoritarian regimes,
most notably of Russia and China.
13. Russia’s aggression against Ukraine at its various stages
and with its varying extents of atrocities is carefully documented
in the Parliamentary Assembly resolutions and opinion, and the debates
held around them:
Resolution
1988 (2014) “Recent developments in Ukraine: threats to the functioning
of democratic institutions”,
Resolution
2063 (2015) “Consideration of the annulment of the previously ratified
credentials of the delegation of the Russian Federation (follow-up
to paragraph 16 of
Resolution
2034 (2015))”,
Resolution 2133
(2016) “Legal remedies for human rights violations on the Ukrainian
territories outside the control of the Ukrainian authorities”,
Resolution 2132 (2016) “Political consequences of the Russian aggression against Ukraine”,
Resolution 2145 (2017) “The functioning of democratic institutions in Ukraine”,
Resolution 2198 (2018) “Humanitarian consequences of the war in Ukraine”,
Resolution 2292 (2019) “Challenge, on substantive grounds, of the still unratified
credentials of the parliamentary delegation of the Russian Federation”,
Opinion 300 (2022) “Consequences of the Russian Federation's aggression
against Ukraine”,
Resolution
2433 (2022) “Consequences of the Russian Federation’s continued
aggression against Ukraine: role and response of the Council of
Europe”,
Resolution 2436
(2022) “The Russian Federation’s aggression against Ukraine:
ensuring accountability for serious violations of international
humanitarian law and other international crimes”,
Resolution 2448 (2022) “Humanitarian consequences and internal and external
displacement in connection with the aggression of the Russian Federation
against Ukraine”, and
Resolution
2482 (2023) “Legal and human rights aspects of the Russian Federation’s
aggression against Ukraine”.
14. Ukraine is the most recent and one of the most extreme examples
of the limited effectiveness of Council of Europe procedures when
it comes to guaranteeing security as a basic element for the protection
of democracy and human rights, though not the only one.
15. Russia’s aggression against Georgia in 2008 took the lives
of 405 people and displaced 192 000 people. Russia created a frozen
conflict in the region, which it can ignite any time at its convenience
raising it to the level of a full-scale war. The Assembly reacted
with R
esolution 1633 (2008) “The consequences of the war between Georgia and Russia”,
although it blamed both sides for the escalation of tensions. Furthermore,
it noted that the war came as a surprise to most of its members,
thus acknowledging the failure of early warning and other conflict
prevention tools. Tensions and disputes in the Balkans, Northern
Ireland, Cyprus, the Caucasus, and Republic of Moldova are also
serious sources of concern.
16. In 1949, the Council of Europe was created with a vision to
promote peaceful coexistence among nations. The preamble to the
Statute of the Organisation states that “the pursuit of peace based
upon justice and international co-operation is vital for the preservation
of human society and civilisation”. Although the Council of Europe
is not a defence organisation, its mandate is directly linked to
security. The concept of security is a basis for and is composed
of the basic principles of human rights, democracy and the rule
of law. The notion of democratic security, first endorsed by Heads
of State and Government of the Council of Europe at the 1993 Vienna
Summit, is today as relevant as ever.
17. Over the years, the Council of Europe has developed a wide
array of tools to prevent conflicts: confidence-building, early
warning and compliance monitoring, limitation of the rights of wrongdoers, suspension
of membership.
18. Conflict prevention is the obvious and preferable option,
which saves lives and money. However, with such an abundant range
of conflict prevention tools at member States’ disposal, why does
prevention fail?
19. For the Council of Europe to be successful in protecting democratic
security, the rules of the Organisation and its various bodies need
to be revisited and revised. This report builds on previous recommendations
and resolutions as well as on an analysis of historical events and
recent developments in an attempt to offer meaningful changes to
the rules and ways of the Council of Europe, enabling it to act
in good faith and in accordance with the goals set out in its Statute.
20. For this report to have practical meaning, a consistent effort
to strengthen democratic security is needed from our respective
parliaments and governments. This depends on the political will
of each national parliament individually and our Assembly collectively.
To ensure lasting commitment and concerted efforts in a certain area,
Article 15.a of the Statute of the Council of Europe allows the
Committee of Ministers to adopt “a common policy with regard to
particular matters”.
3. Common
democratic security policy
21. The Assembly should recommend
that the Committee of Ministers adopt a common democratic security policy
– a common policy aimed at enhancing the role of the Council of
Europe in conflict prevention and at creating preconditions for
lasting peace. The common democratic security policy shall comprise
the following elements:
- renewing
impetus for preventive action;
- facilitating balanced policy making;
- promoting multilateralism;
- enhancing accountability;
- enforcing the duty to compensate.
22. The Council of Europe should play an active role in reforming
the international democratic security architecture. The Assembly
should be a platform for expression of legitimate expectations of
the peoples of Europe from international organisations. Of course,
the Council of Europe should not interfere with the work of other
multilateral organisations, but rather co-ordinate its member States’
work to improve them and reconcile member States’ views and efforts
on such a reform. With the functioning of such fundamentally important international
organisations as the United Nations and the Organization for Security
and Cooperation (OSCE) in Europe undermined by the obstructive attitude
of one of their members, a supportive role of the Council of Europe
is needed more than ever to uphold international rule of law and
democratic decision making.
23. At the same time, the Council of Europe should have an appropriate
institutional capacity to implement this policy. The Secretary General
of the Council of Europe, supported by a dedicated team of the Secretariat, should
co-ordinate all the processes foreseen by the resolution contained
in this report and ensure that the Council of Europe has an active
voice in matters concerning the reform of the international security architecture.
24. The Secretary General should react to signs of deterioration
in human rights protection or interstate relations by acting as
a proactive mediator, calling for prudence and negotiating a mutually
agreeable solution to the conflict.
25. The Council of Europe has a responsibility to help its member
States to align their positions and co-ordinate their action as
to the implementation of a common democratic security policy.
26. A semi-annual revision of developments, achievements and failures
related to the implementation of the common democratic security
policy of the Council of Europe should be conducted. The revision
could concern all aspects of the resolution contained in this report,
ranging from preventive diplomacy, ensuring accountability and reforming
the United Nations. The revision could serve as a basis for a “democratic
security bulletin”, keeping decision makers and the public well-informed
about the steps taken by the Council of Europe in preventing conflicts
and ensuring democratic security.
27. The Sub-committee on external relations of the Committee on
Political Affairs and Democracy should play an active role in implementing
the common democratic security policy. The sub-committee should
actively promote parliamentary diplomacy and multilateralism, communicate
concerns of citizens of the Council of Europe member States to other
States and international organisations, and promote the Council
of Europe standards and tools worldwide. Its work in these ambits
should be complementary to the implementation of a common democratic
security policy by the Committee of Ministers.
28. The monitoring component of the common democratic security
policy, led by the Secretary General of the Council of Europe, shall
be supported by and co-ordinated with the work of the Committee
on the Honouring of Obligations and Commitments by Member States
of the Council of Europe (Monitoring Committee) and the Commissioner
for Human Rights.
4. Renewing
impetus for preventive action
29. Throughout its 74 years of
history, the Council of Europe has been active in conflict prevention
on the European continent. It has employed a panoply of tools, including
early warning and monitoring, confidence-building and promotion
of common values. A new common democratic security policy will heavily
rely on the improvement of these tools, as well as on the strengthening
of the preventive action by the Council of Europe member States.
4.1. Early
warning
30. The Council of Europe and its
member States must have a sophisticated warning capability in place
to detect democratic backsliding, hate speech and any signs of tensions
and hostility within and between member States.
31. The Council of Europe has achieved significant progress in
observing developments in its member States, especially through
the work of the Monitoring Committee and its Commissioner for Human
Rights.
32. Further improvement could involve accelerating the detection
and warning procedures, introducing an evaluation system of risks
based on a dispute escalation framework and immediate public notification
to the member States and their societies.
33. In this respect, we should reiterate calls for an enhanced
early warning procedure made in
Recommendation 2235 (2022) “Recent challenges to security in Europe: what role
for the Council of Europe?”. The Assembly should also welcome the
reply to this recommendation by the Committee of Ministers which
has indicated that it might consider starting discussions on such
a possible early warning mechanism and call for concrete text-based
discussion of proposals for such a procedure.
4.2. Confidence
building-measures
34. Since its creation, the Council
of Europe has invested heavily in confidence-building by developing
the idea of a “common European heritage”. Building confidence by
promoting this idea is the essence of the 2005 Framework Convention
on the Value of Cultural Heritage for Society (CETS No. 199, the
“Faro Convention”) and the “Technical Co-operation and Consultancy
Programme related to the integrated conservation of cultural heritage”,
which helps to implement the principles of the conventions and the
values of the Organisation on the ground.
35. The Council of Europe, including its Assembly, should ensure
a strong political impetus to increased reliance on confidence-building
measures. Through co-operation with parliamentary assemblies of
the OSCE, the North Atlantic Treaty Organization (NATO) and other
organisations, the Council of Europe should develop a set of confidence-building
measures, including monitoring, and co-operation between members
of civil society.
36. In this context, the Assembly should particularly condemn
the reckless decision of the Russian Federation on 21 February 2023
to suspend its participation in the New Start Treaty on Measures
for the further Reduction and Limitation of Strategic Offensive
Arms.
37. The Assembly should recommend that the Committee of Ministers
continue its confidence-building efforts. Although such measures
alone cannot deter wars, they are an important building block in
overall conflict prevention architecture.
4.3. Duty
to prevent aggression
38. Preventive measures and a duty
to make good use of them are provided under various international rights
protection mechanisms. Most notably, Article 1 of the Convention
on the Prevention and Punishment of the Crime of Genocide defines
the legal obligation to prevent genocide by States signatories to
the Convention. Article 2 of the United Nations Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
imposes a similar duty on States to prevent torture and other kinds
of inhuman and degrading treatment.
39. Article 1 of the UN Charter explicitly calls for effective
collective measures for the prevention and removal of threats to
the peace, and for the suppression of acts of aggression. Depending
on the context, this duty must trigger an obligation upon States
to actively negotiate to prevent escalation. In cases of imminence
of an unprovoked attack, collective defence mechanisms must be mobilised
to urgently provide relevant assistance, including military one,
for potential victims of aggression.
40. Collective defence and security, referred to in Article 51
of the UN Charter, should be made available to all countries and
not just to NATO members. We should encourage a dialogue on the
collective security system to implement provisions of the UN Charter.
41. For 8 years, Ukraine had to exercise self-defence against
the Russian aggression with a very limited set of means at its disposal.
Both prior to 2014 and 2022, a number of foreign intelligence services
were aware of the Russian Federation’s plans of aggression. However,
assistance to Ukraine was insufficient. Had Ukraine been provided
with more significant military assistance before the full-scale
invasion began, it could have served as a potent deterrent against
Russia’s aggressive intentions.
42. The Council of Europe should promote the duty to prevent aggression
as a legal obligation among its member States and facilitate its
implementation through the common democratic security policy.
5. Facilitating
balanced policy making
43. In the early stages of policy
development, deterioration of democratic standards and human rights
can be prevented by timely policy advice and legislative changes.
The European Commission for Democracy through Law (Venice Commission)
has served as an important advisory body and a source of expertise informing
the legislative processes at an early stage of policy development
in many States across the continent.
44. The Council of Europe should intensify its efforts to enhance
the profile of the Venice Commission, to promote its work both inside
the Council of Europe member States and in its external relations,
invite more States to join it as fully-fledged members and make
more active use of requests for its opinions, as well as strengthen
its institutional capacity to react swiftly to such requests and
increase its ability to make impact and to work more actively internationally.
45. International courts can play a similar role. Their advisory
opinions can better inform policy makers and prevent the emergence
of disputes. The power of the European Court of Human Rights to
give advisory opinions could be expanded to respond to concerns
even earlier, at the stage of policy development.
6. Promoting
multilateralism
46. The world should return to
the forgotten spirit of multilateralism and mutually beneficial
co-operation. The prerequisite to this return is strict abidance
by the rules. Rules create a level playing field where every actor
is equal. We also need to rethink the notion of dialogue. International
decision making should be equalised, so that no country can enjoy
a privileged position leading to abuses and imbalances.
6.1. Inter-institutional
co-ordination
47. Often, international institutions
and their bodies, such as the United Nations and its General Assembly, the
Council of Europe, NATO, OSCE and their parliamentary assemblies,
the European Parliament and the Inter-Parliamentary Union, act in
isolation from each other. With little regard for each other’s opinion, governments
and parliaments form fragmented positions and fail to build a concerted
response to aggressions and human rights violations.
48. International organisations should co-ordinate their work
as far as practicable. For this purpose, members of the Parliamentary
Assembly of the Council of Europe could be regularly briefed by
the secretariat as to the recent developments in the United Nations
General Assembly and Security Council, European Parliament, Inter-Parliamentary
Union, NATO and OSCE Parliamentary Assemblies.
6.2. Rethinking
dialogue
49. It is beyond doubt that dialogue
is central to peaceful settlement of disputes. However, sometimes insistence
on compromise leads to equalisation of a victim and an aggressor.
50. In recent years, dialogue has become an end in itself, a panacea
and a harmful cliché. Its misconception did not bring peace to the
European continent. It is worth recalling that the Russian Federation
began a full-scale war despite years of appeasement and despite
being allowed to return to the Parliamentary Assembly of the Council
of Europe in 2019.
51. The open exchange of thoughts is important. However, the international
community does not need an illusion of compromise if international
platforms are misused for disseminating fake news and justifying
wars of aggression. Therefore, rules of all international organisations
should provide for a majority of members deciding to limit a delegation’s
voting and speaking rights if a member gravely violates international
law and the principles of this organisation.
6.3. Adherence
to the rules
52. Respect for the rules, instead
of arbitrary decision making, is central to building and preserving
a healthy multilateral setting, cultivating an atmosphere of peace
and mutual understanding.
53. Unfortunately, in many contexts, we have failed to preserve
this procedural clarity. A vivid example is the UN, where the Russian
Federation was admitted to the UN and its Security Council after
the dissolution of the Soviet Union without a vote under Article
4 of the UN Charter, while it took Yugoslavia, under the very same conditions,
8 years to undergo this procedure. The Assembly should welcome efforts
to draw attention to these inconsistencies undermining the legitimacy
of international institutions, such as Ukrainian Parliament’s Resolution
2787-IX
and the Statement of the Ministry
of Foreign Affairs of Ukraine
on the illegitimacy of the presence
of the Russian Federation in the UN Security Council and in the
United Nations as a whole, already supported by Estonia
and Poland.
54. In 2019, our Assembly, by a majority vote, derogated from
its Rules of Procedure by inviting the parliaments of Council of
Europe member States “which [were] not represented by a delegation
to the Assembly” to present their credentials at the June 2019 part-session.
This derogation embodied an unequal application
of the Rules of Procedure tailor-made for return of the Russian
Federation, an aggressor State, to the Assembly. The consequences
of this dangerous step are well-known. Therefore, it is high time
to make conclusions that rules and their equal application to everyone
are of paramount importance.
6.4. A
more equal and effective UN
55. The UN has failed both to prevent
the Russian aggression and to stop it. The Security Council – the organ
specifically tasked with maintaining international peace and security
– became completely blocked due to the abuse of the right to veto
by the Russian Federation.
56. Therefore, the Assembly should support the proposals voiced
by Emmanuel Macron and Charles Michel expressed during the high-level
debate in the UN General Assembly from 20 to 26 September 2022 –
there should be some events which trigger the suspension of the
right to veto, such as the committing of mass-scale international
crimes or the start of a war of aggression that has been condemned
by the General Assembly.
57. The Assembly should reiterate a call to hold a vote in the
General Assembly to request that the International Court of Justice
issue an advisory opinion on potential limitations of the right
to veto implicit in the Purposes and Principles of the UN Charter
or the general principles of law. This call was mentioned before
in Resolution 2436 (2022) “The Russian Federation’s aggression against
Ukraine: ensuring accountability for serious violations of international
humanitarian law and other international crimes”. Such limitations
could be based on Article 2(2) of the Charter prescribing that in
order to ensure the rights and benefits resulting from membership,
members shall fulfil their obligations in good faith.
58. The General Assembly should play a greater role in the maintenance
of international peace and security. It has a subsidiary responsibility
in this field when the Security Council is blocked. It should use
these powers more actively, which includes recommending collective
action to impose sanctions within the framework of the “Uniting
for Peace” resolutions, creating ad hoc tribunals
for ensuring accountability, deploying peace-keeping forces, and
potentially referring situations to the International Criminal Court.
Promoting a more active role of the General Assembly, which is a
question of legal culture and promoting rather than amending the
law, should become a part of the Council of Europe advocacy efforts
within the framework of the common democratic security policy.
7. Enhancing
accountability
59. Accountability plays the role
of a deterrent. If they know that they will inevitably face the
consequences of their wrongful acts, aggressors will be deterred
from committing any violations.
7.1. Strengthening
international justice
60. International tribunals should
have a broad and compulsory jurisdiction to hold violators of international law
accountable. The more countries recognise international tribunals’
jurisdiction (International Court of Justice, European Court of
Human Rights, International Criminal Court), the less unilateral
outcomes involving escalation and aggression there will be.
61. We need to give a new impetus to the recognition of international
tribunals’ jurisdiction. This conclusion was also reached at the
UN Security Council ministerial debate on the “Promotion and strengthening
of the rule of law in the maintenance of international peace and
security: the rule of law among nations” on 12 January 2023 by the
President of the International Court of Justice Joan E. Donoghue
and University of Oxford Professor Dapo Akande.
62. However, strengthening international justice is certainly
a two-way street. Dealing with the efficiency of international justice,
the speed and the length of the procedure are decisive factors.
Member States should facilitate discussions on streamlining international
justice and take into consideration relevant experience, such as
the practice of setting clear deadlines for the delivery of a decision
incorporated in the World Trade Organization Dispute Settlement
Understanding.
7.2. Expanding
the jurisdiction of the International Criminal Court
63. International criminal law
and accountability are important factors in the general deterrence
system. Currently, the Statute of the International Criminal Court
(ICC) provides for prosecution of four international crimes – the
crime of genocide, crimes against humanity, war crimes, and the
crime of aggression.
64. Accountability for the crime of aggression is significantly
limited by a special jurisdictional regime introduced by the Amendments
to the Rome Statute adopted by the Review Conference in Kampala.
Contrary to other crimes, the crime of aggression can be prosecuted
only if a State whose nationals are perpetrating the crime ratified
the Rome Statute or if the Security Council refers this matter to
the ICC. In many cases, the crime of aggression remains unpunished,
with the aggressor enjoying impunity. The most notable example is
the Russian aggression against Ukraine.
65. Two parallel solutions are necessary. First, the Rome Statute
needs to be amended and the jurisdictional regimes for all four
international crimes have to be harmonised. There is simply no legitimate
reason to create divergent regimes for the gravest international
crimes.
66. Second, the Rome Statute should provide for a power of the
General Assembly, not only the Security Council, to refer situations
to the ICC as the General Assembly has its own, although secondary,
competence in the maintenance of international peace and security.
7.3. Ad
hoc tribunals
67. These solutions, while ensuring
a truly efficient system of accountability, require rigorous planning, significant
efforts and cannot be achieved immediately. However, crimes are
being perpetrated now.
68. Therefore, an additional solution is necessary as a temporary
response to deficiencies of the current system – an
ad hoc tribunal, such as a Special
tribunal for the crime of aggression against Ukraine. Such a tribunal
– whether created through the UN or the Council of Europe – should
reflect the will of the entire international community to hold the
perpetrators accountable.
On this basis, it will be able to
prosecute senior Russian leadership.
69. The format of the tribunal should be fully international as
a hybrid tribunal would raise serious constitutional issues under
Ukrainian law and significantly complicate the prosecution.
The report to Resolution 2482 (2022)
“Legal and human rights aspects of the Russian Federation’s aggression
against Ukraine” supports this position.
70. The Special Tribunal will not interfere with the work of the
ICC, but rather complement and facilitate it.
The Council of Europe should define
all the modalities with the Government of Ukraine and swiftly proceed
to its creation, based on the above-mentioned principles and according
to a mutually agreed roadmap. Engagement of the United Nations is
highly desirable, and its concrete contribution will be determined
based on the possibility to gather support for the creation of such
a tribunal in the General Assembly. The Council of Europe should
use its external contacts to garner support for the Special Tribunal
beyond its membership.
7.4. Economic
sanctions policy
71. Finally, another element of
financial accountability of the aggressor should be harsh sanctions.
While current efforts to weaken Russia’s ability to finance the
war, embodied in 10 EU sanctions packages, are an important step
towards reaching peace, this war could have been avoided had serious
sanctions been imposed immediately after the unlawful annexation
of Crimea or even after Russia’s aggression against Georgia.
72. Therefore, member States of the Council of Europe should consider
proportionate and timely economic restrictive measures as an important
tool for ensuring democratic security.
8. Enforcing
the duty to compensate
73. It is a fundamental principle
of customary international law that States must provide reparation
for their internationally wrongful acts, as affirmed in the case
law of the International Court of Justice and in articles on State
Responsibility for Internationally Wrongful Acts elaborated by the
International Law Commission.
74. If a State violating international law refuses to comply with
the duty to compensate, the international community should enforce
this duty. Confiscation of State-owned assets and assets of private
persons contributing to a violation of international law should
be regarded as a lawful sanction.
75. The Russian Federation refuses to provide compensation to
Ukraine for the colossal damages it has been causing. Therefore,
its assets and assets of oligarchs sanctioned for supporting the
aggression against Ukraine should be confiscated and proceeds from
their sale should be used for Ukraine’s reconstruction.
76. While State-owned assets enjoy sovereign immunity, the latter
is not absolute. Immunity does not mean impunity.
77. Sovereign immunity cannot be used to shield an aggressor State
from facing the consequences of its actions. Every State is entitled
to take countermeasures against the war of aggression. If used for
helping Ukraine’s reconstruction, confiscation of Russian sovereign
reserves and other State-owned assets will be fully proportionate
and compliant with international law.
78. It is worth mentioning that the European Parliament, in its
resolution adopted on 19 January 2023, accepted the possibility
of “denying [Russian sovereign] assets the protections of sovereign
immunity or limiting such protections owing to the gross nature
of these violations”.
79. At the same time, private assets of already sanctioned persons
could be confiscated in a non-conviction-based procedure. The criteria
for applying such a procedure would include proof of support of
aggression and war crimes, respect of property rights, fair trial
and all other human rights of such persons. The European Court of
Human Rights has considered non-conviction-based procedure to be
lawful in several cases, most notably in the Italian mafia cases.
80. Some national jurisdictions have already begun confiscating
Russian assets. Canada approved a sufficiently broad legislation
applying both to the confiscation of State-owned and private assets.
Importantly, the ground for confiscation is being on the sanctions
list for contribution to the Russian aggression against Ukraine.
Assembly Resolution 2434 (2022) “How to put confiscated criminal assets to good use”
calls for the confiscation of assets of Russian citizens and State-owned
enterprises subject to targeted sanctions for their responsibilities
in the war of aggression launched against Ukraine by the Russian
Federation. Plans to introduce confiscation have also been announced
by Estonia.
81. In view of the above, we need to renew our strong political
push for a comprehensive but lawful confiscation. This is a profoundly
just policy – making the aggressor pay for the damage it caused,
building strong tenets of accountability that will outlast this
war and prevent aggressions in the future.
9. Conclusions
82. Most solutions suggested in
this report are well-known and far from new. Yet in consolidating
all of them, this report is expected to be innovative – innovative
in generating new impetus, a new drive for global change. The report
offers a roadmap for the Council of Europe in its democratic security-related
activities.
83. The report promotes a new idea of adopting a common democratic
security policy – a policy seeking to intensify efforts of the Council
of Europe in protecting and strengthening international security.
The policy should ensure a comprehensive use of early warning and
confidence-building measures, improve policy making, ensure accountability
and prevent future conflicts.
84. The mobilisation of efforts in the field of security is fully
justified – there can be no human rights without democratic security.
85. The Council of Europe should promote constructive multilateral
dialogue and contribute to the formation of uniform positions of
its member States on the functioning and reform of other international
organisations. This will allow to build a strong and unified response
to violations of international law.
86. The Council of Europe should promote all efforts aimed at
ensuring accountability for violations of international law, ranging
from strengthening of international justice to eliminating lacunae
in international criminal jurisdiction.
87. Immunity does not mean impunity. Therefore, the Council of
Europe should enforce the duty to provide compensation to the victim
of aggression, including by lawful confiscation of State-owned and
private-owned assets.
88. These steps require a steadfast commitment and a will to overcome
resistance to change. The Council of Europe should fully use its
potential to contribute to the reform of the global security architecture,
as its result will have a direct impact on the democratic security
of the Council of Europe member States.