Report | Doc. 15933 | 27 February 2024

Reparation and reconciliation processes to overcome past conflicts and build a common peaceful future – the question of just and equal redress

Committee on Legal Affairs and Human Rights

Rapporteur : Lord Richard KEEN, United Kingdom, EC/DA

Origin - Reference to committee: Doc. 15676, Reference 4706 of 27 January 2023. 2024 - Second part-session

Summary

The Council of Europe has a clear role to play in improving reconciliation and reparation processes amongst its member States, including by promoting tools aimed at the peaceful resolution of disputes. The report calls for an enhanced role for the Organisation, through the establishment of a mediation process.

Such a process should be accompanied by an improved toolkit and standards for reparation and reconciliation, in order to find remedies and reparations best suited to a given situation. The development of such tools could help to ensure a durable peace for the future and to respond to the needs to victims.

Any mediated approach should be a complement to existing mechanisms, such as the European Court of Human Rights. Such a victim-centred, holistic approach could help to respond better to the needs of victims and to aid in promoting lasting peace.

A. Draft resolution

(open)

1. The Parliamentary Assembly regrets the sad reality that wars and violent conflicts cause great human suffering as well as the destruction of property, homes and the environment.

2. The Assembly emphasises that negotiations and processes seeking to address the damage caused by conflict and move towards reconciliation are crucial for lasting peace through relevant tools under international law, which may vary depending on the context, and may include truth-seeking initiatives, justice, reparations, recognition and guarantees of non-repetition. However, often such processes do not lead to adequate results due to a lack of an acceptable, achievable, enforceable and implementable package towards reconciliation and redress following a conflict. This can create a feeling of injustice which can, in turn, perpetuate conflict or even lead to a resumption of hostilities.

3. The Assembly recalls the terms of the preamble to the Statute of the Council of Europe (ETS No. 1) which stipulates that the States parties are “convinced that the pursuit of peace based upon justice and international co-operation is vital for the preservation of human society and civilisation”. The Organisation is thus well-placed to promote solutions to foster justice, co-operation and peace in Europe.

4. The Assembly notes that notwithstanding the existing tools at the disposal of the Council of Europe to facilitate finding solutions to post-conflict disputes – including through political discourse within the Assembly and within the Committee of Ministers, and through the jurisdiction of the European Court of Human Rights – problems persist. Such tools often do not provide an adequate, enforceable and timely response to the challenges of disputes between member States, particularly following a conflict situation.

5. The Assembly reiterates the important role that courts can play in finding just solutions, whilst regretting that often courts lack jurisdiction, for example due to the doctrine of State immunity; are unable to fully address the overall complexity of the problem, for example due to their remit or limits of the available remedies; or their judgments are not enforced. Even the European Court of Human Rights is a limited tool in achieving reconciliation and reparation following a conflict, given that its remit is restricted to specific human rights violations, given the limited range of remedies available to it, and given the difficulties in enforcing, in particular, just satisfaction judgments in interstate cases. There is thus a strong case for a more effective and more adaptive mechanism for resolving interstate disputes following a conflict between Council of Europe member States, and for improving the enforcement of any awards.

6. The Assembly recognises that the topic of reparation and reconciliation in post-conflict situations can be a highly sensitive matter requiring careful political as well as legal expertise, in order to find solutions that are fair, respect the principles of the rule of law, justice and human rights, promote truth and reconciliation, and safeguard peace. Any approach needs to be firmly based on the principle of State responsibility, under international law. The Assembly also insists that it is particularly important that victims and other affected groups, as well as State actors, are involved in the process of finding adequate solutions that best respond to the needs of those affected. The Assembly underlines the importance of striving to find an acceptable, achievable, enforceable and implementable package that is well-adapted to the context of a particular situation.

7. The Assembly firmly believes that there is therefore a strong case for more action by the Council of Europe, through a mediated process under the auspices of the Organisation, to help to address the conflicts of the past, and to promote reconciliation and reparation in relation to conflicts between Council of Europe member States. It is only by addressing these issues that we can move forward towards peaceful co-operation for the future and thus establish better upstream tools to prevent future conflicts. Such an initiative by the Council of Europe would help to fill a lacuna in the rules-based international order, to make the most of the Organisation’s unique role and to promote regional peace.

8. The Assembly considers that a mediated solution could help to look holistically at resolving highly complex matters between States by involving a neutral third party in finding solutions. In particular, a mediated solution might stand a better chance of securing greater buy-in from States and victims and thus a greater chance of enforcement. A mediator could be chosen from a panel of international mediators or conciliators, perhaps from former Secretaries General of the United Nations or of the Council of Europe, or judges of international renown. Mediated solutions must be achievable, enforceable and implementable.

9. The Assembly considers that a mediation process under the auspices of the Council of Europe should include the following elements:

9.1. A system should be established to enable member States to submit disputes as to reparations and remedies to mediation.

9.2. The Committee of Ministers, the Parliamentary Assembly or the Secretary General of the Council of Europe should be able to initiate this mediation process in the absence of consent by both parties. In the case of the Assembly this could be through a Recommendation.

9.3. The process should apply to matters within the geographic and temporal limits of the Council of Europe. It should only apply to conflicts between States who were not members of the Council of Europe at the relevant time with their express consent. Moreover, for reasons of enforceability, it should not apply to States who are no longer members of the Council of Europe.

9.4. This system should be available for interstate disputes relating to post-conflict situations or other disputes that could risk escalating into tensions.

9.5. This process should also be available for identifying a package of reparations and remedies in relation to interstate cases before the European Court of Human Rights, where a given case could benefit from a broader toolkit for proposing solutions that are better adapted to addressing the complexities of post-conflict situations and the needs of victims.

9.6. The approach should be victim-centred, involving consultation with victims and other affected groups as well as with the States concerned.

9.7. There should be an obligation on member States to engage with a mediation process in good faith. As a matter of propriety, policy and principle, member States should be co-operating with the Council of Europe to resolve issues that impact on the human rights of individuals. This is implicit in the general obligation of States to collaborate sincerely and effectively and to co-operate in good faith, as well as in the specific obligations under the European Convention on Human Rights (ETS No. 5). In particular, the nature of collective enforcement under the Convention implies an obligation of co-operation between States. There should thus be potential repercussions for a State that is considered not to have engaged with the process in good faith.

9.8. There should be a duty on States to co-operate sincerely with the results of mediation and there should be potential consequences for unreasonable failure to do so.

9.9. Much of this can be achieved using the existing legal tools at the disposal of the Council of Europe, such as the Statute, the European Convention on Human rights, and ways of working under those founding instruments, in addition to political and diplomatic pressure using tools at the disposal of the Council of Europe. In a serious case of non-compliance, use of the Complementary joint procedure could be considered, as well as potential suspension where a breach would constitute a serious violation of Article 3 of the Statute of the Council of Europe (namely a serious violation of the principles of the rule of law, human rights and sincere and effective collaboration in the realisation of the aims of the Organisation).

9.10. The Council of Europe should develop an improved toolkit and standards for reparation and reconciliation in order to find solutions that are best adapted to addressing the complexities of a post-conflict situation. Such a toolkit should be non-exhaustive, adaptable to new situations, should avoid a one-size-fits-all approach and should instead offer a number of ideas for potential use in mediated solutions.

10. The Assembly strongly calls on member States to:

10.1. accept the compulsory jurisdiction of relevant international tribunals such as the International Court of Justice in order to facilitate the peaceful resolution of disputes between member States;

10.2. ratify the European Convention for the Peaceful Settlement of Disputes (ETS No. 23), as a useful tool for the settlement of disputes, whether through recourse to the International Court of Justice, the use of conciliation, or recourse to arbitration;

10.3. undertake all necessary actions to establish a functional system of mediation to help resolve disputes between member States by peaceful and democratic means, in full respect for human rights, the rule of law and with the involvement of those affected by a conflict situation, including victim groups.

B. Draft recommendation

(open)

1. Referring to its Resolution... (2024) “Reparation and reconciliation processes to overcome past conflicts and build a common peaceful future – the question of just and equal redress”, the Parliamentary Assembly regrets the great suffering caused by conflicts and lack of adequate effective mechanisms for providing redress. The Assembly considers that part of an improved upstream policy of conflict prevention involves adequately addressing past harms.

2. Recalling that truth-seeking initiatives, justice, reparations, recognition and guarantees of non-repetition are crucial to lasting peace and reconciliation, the Assembly calls on the Committee of Ministers to develop improved mechanisms to this end.

3. The Assembly firmly believes that there is a strong case for increased action by the Council of Europe, through a mediated process under the auspices of the Organisation, to help to address the conflicts of the past, to promote reconciliation and reparation in relation to conflicts between Council of Europe member States, and to ensure a durable peace for the future.

4. The Assembly considers that a mediated solution could help to look contextually and holistically at resolving highly complex matters between States in order to find achievable, enforceable and implementable solutions for the benefit of victims and of lasting peace. Such a mechanism should include the perspective and needs of victims in order to find a just and meaningful solution and should ensure adequate mechanisms for implementing and distributing any awards amongst victims, having regard to both collective and individual interests.

5. The Assembly recommends that the Committee of Ministers undertake work to establish a mediation process under the auspices of the Council of Europe which should include the following elements:

5.1. A system should be established to enable member States to submit disputes as to reparations and remedies to mediation.

5.2. The Committee of Ministers, the Parliamentary Assembly or the Secretary General of the Council of Europe should be able to initiate this mediation process in the absence of consent by both parties. In the case of the Assembly this could be through a Recommendation.

5.3. The process should apply to matters within the geographic and temporal limits of the Council of Europe. It should only apply to conflicts between States who were not members of the Council of Europe at the relevant time with their express consent. Moreover, for reasons of enforceability, it should not apply to States who are no longer members of the Council of Europe.

5.4. This system should be available for interstate disputes relating to post-conflict situations or other disputes that could risk escalating into tensions.

5.5. This process should also be available for identifying a package of reparations and remedies in relation to interstate cases before the European Court of Human Rights, where a given case could benefit from a broader toolkit for proposing solutions that are better adapted to addressing the complexities of post-conflict situations and the needs of victims.

5.6. The approach should be victim-centred, involving consultation with victims and other affected groups as well as with the States concerned.

5.7. There should be an obligation on member States to engage with a mediation process in good faith. As a matter of propriety, policy and principle, member States should be co-operating with the Council of Europe to resolve issues that impact on the human rights of individuals. This is implicit in the general obligation of States to collaborate sincerely and effectively and to co-operate in good faith, as well as in the specific obligations under the European Convention on Human Rights (ETS No. 5). In particular, the nature of collective enforcement under the Convention implies an obligation of co-operation between States. There should thus be potential repercussions for a State that is considered not to have engaged with the process in good faith.

5.8. There should be a duty on States to co-operate sincerely with the results of mediation and there should be potential consequences for unreasonable failure to do so.

5.9. Much of this can be achieved using the existing legal tools at the disposal of the Council of Europe, such as the Statute, the European Convention on Human rights, and ways of working under those founding instruments, in addition to political and diplomatic pressure using tools at the disposal of the Council of Europe. In a serious case of non-compliance, use of the Complementary joint procedure could be considered, as well as potential suspension where a breach would constitute a serious violation of Article 3 of the Statute of the Council of Europe (namely a serious violation of the principles of the rule of law, human rights and sincere and effective collaboration in the realisation of the aims of the Organisation).

5.10. The Council of Europe should develop an improved toolkit and standards for reparation and reconciliation in order to find solutions that are best adapted to addressing the complexities of a post-conflict situation. Such a toolkit should be non-exhaustive, adaptable to new situations, should avoid a one-size-fits-all approach and should instead offer a number of ideas for potential use in mediated solutions.

C. Explanatory memorandum by Lord Keen, rapporteur

(open)

1. Introduction

1. Wars and violent conflict cause great human suffering as well as the destruction of property, homes and the environment. Negotiations between the parties involved on how to deal with the damage caused by the conflict and how to move towards reconciliation are crucial for lasting peace. However, often such discussions do not lead to adequate results and this can create a feeling of injustice which can, in turn, perpetuate conflicts or even lead to a resumption of hostilities.

2. The Council of Europe is one of the principal platforms for promoting dialogue, mutual understanding, peace and justice amongst European countries. Indeed, the preamble to the Statute of the Council of Europe (ETS No. 1) provides that the States parties are “convinced that the pursuit of peace based upon justice and international co-operation is vital for the preservation of human society and civilisation”. The preamble to the European Convention on Human Rights (ETS No. 5) also refers to fundamental freedoms as “the foundation of justice and peace in the world”. Nevertheless, significant threats to peace in Europe remain, and there have been recent calls to develop the Council of Europe’s democratic security policy to “ensure the comprehensive use of early-warning and confidence-building measures, improve policy making, strengthen accountability and prevent future conflicts”.

3. Problems caused by the lack of an acceptable, achievable, enforceable and implementable package towards reconciliation and redress following a conflict continue to hamper good relations between States. Unresolved frozen conflicts persist. There is therefore a strong case for doing more, under the auspices of the Council of Europe, to help to address the conflicts of the past and to ensure a durable peace for the future.

4. Resolution 2515 (2023) recommended that member States “commit to resolving disputes and disagreements through dialogue and diplomacy”, “commit to peaceful settlement of disputes by recognising as compulsory the jurisdiction of international tribunals”, “promote all efforts aimed at ensuring accountability for violations of international law by recognising the jurisdiction of the International Criminal Court”, and “enforce the duty to provide compensation to the victim of aggression, including by lawful confiscation of State-owned and private-owned assets” and that the Assembly should “strengthen elements relating to conflict prevention, conflict resolution and democratic security.”

5. The Committee on Legal Affairs and Human Rights appointed me as rapporteur on 26 April 2023. The committee held a hearing on 11 October 2023, with the participation of Mr Christos Giakoumopoulos, Director General, Directorate General Human Rights and Rule of Law (DG1), Council of Europe; Mr Pablo de Greiff, Director, Center for Human Rights and Global Justice, New York University School of Law; Commissioner, UN Commission of Inquiry on Ukraine; former UN Special Rapporteur for the promotion of truth, justice, reparation and guarantees of non-recurrence (2012-2018); and Mr Igor Cvetkovski, Senior Advisor on Reparations and Transitional Justice, International Organization for Migration, Office in Ukraine.

6. In this explanatory memorandum, I will start by outlining international law and practice relating to reparations, reconciliation, and transitional justice (chapter 2). I will then set out the mechanisms currently available for settling such disputes, including those under the auspices of the Council of Europe (chapter 3). Finally, I will set out the case for a new mediated mechanism under the auspices of the Council of Europe, to assist in the resolution of these disputes (chapter 4).

2. International law and practice relating to reparation, reconciliation, and transitional justice

2.1. The international responsibility of States for internationally wrongful acts and the duty to make full reparation

7. It is well established under customary international law, as clearly set out in the International Law Commission’s Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001 [“ILC draft articles”] that a State is internationally responsible for internationally wrongful acts that are attributable to it.

It is similarly well-established that a State has an obligation to make reparations for such internationally wrongful acts and for harm caused.

8. The obligation placed on the responsible State is to make “full reparation” and, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.

As concerns the proportionality of reparations, “concerns are sometimes expressed that a general principle of reparation of all loss flowing from a breach might lead to reparation which is out of all proportion to the gravity of the breach”, or that “the principle of full reparation may lead to disproportionate and even crippling requirements so far as the responsible State is concerned”.

Such concerns were indeed motivating factors in the reparation settlements negotiated after the First World War and the Second World War which did not seek full reparation. The approach taken in the ILC draft articles is to assess the proportionality within the analysis of each type of reparation and the choice of means of reparation.

However this is not seen as justifying anything less than “full reparation” for the injury caused. “Full reparation” is also what is called for in respect of the damages flowing from the Russian Federation’s war of aggression against Ukraine.

9. Whilst the legal principle is for full reparation, as the International Court of Justice (ICJ) has acknowledged, practice can vary depending on the circumstances and this principle does not necessarily translate into a requirement to pay full compensation to each individual affected: “Against the background of a century of practice in which almost every peace treaty or post-war settlement has involved either a decision not to require the payment of reparations or the use of lump sum settlements and set-off, it is difficult to see that international law contains a rule requiring the payment of full compensation to each and every individual victim as a rule accepted by the international community of States as a whole as one from which no derogation is permitted”.

The practice of the European Court of Human Rights, however, tends to favour a more victim-centred approach,

rather than a broader package of measures to resolve a conflict.

10. The forms of reparation include restitution, compensation and satisfaction, either singly or in combination.

Assurances and guarantees of non-repetition are also recognised as a potential form of remedy. Specific forms of satisfaction include an acknowledgement of the breach, an expression of regret, or a formal apology.

Cessation of the wrongful acts can also be a relevant factor. Investigations into alleged wrong-doing (such as war crimes) can also be part of a package of reparation.

11. The “duty to make reparation is a rule which exists independently of those rules which concern the means by which it is to be effected”.

However, the ability to invoke the responsibility of another State somewhat presupposes an existing means of bringing a claim, whereas in many cases there is no available international mechanism for determining some disputes. Countermeasures may be justified under certain circumstances, notably to induce a State to comply with its obligations under the law of State responsibility, but they must be proportionate to the injury suffered and are subject to certain conditions.

2.2. Practical and legal challenges to agreeing and enforcing reparations: the principle of State immunity

12. Despite these rules and principles requiring reparation for wrongful acts, often there is, however, no independent legal mechanism for enforcing a claim against a state, meaning that claims can fester for years without resolution, in the absence of legal or political means to force a State to the negotiating table. This means that victims can feel ignored and it can give a sense of impunity or lack of accountability. Moreover, there is a certain dichotomy between the principle of full reparation and State practice, which can involve complex negotiations often looking at what is achievable or reasonable in practice, bearing in mind a number of different factors, including reconciliation, peace, reparations, as well as economic, social and other interests.

13. Historically, peace treaties often included provision for reparations (to cover reconstruction, civilian damage and perhaps compensating families bereaved by war) as well as indemnities (often a more punitive settlement, covering, for example, the military costs of the war). However, this often depended on political or military pressure as well as what was practical in the circumstances (for example, much as in civil law, bankrupting a debtor, whether a State, a company or an individual, is unlikely to improve relations or yield to reparation payments). Classic examples are the reparations for First World War and Second World War, which reflected only a proportion of the damage caused and were based on what those responsible could pay.

Nonetheless, much has been written about the lessons to be learned from the reparations of First World War where a State does not approach the payment of civilian damages in good faith and with an acceptance of responsibility for damage caused, as well as about the risks that the issue of reparation can itself risk perpetuating conflict rather than helping towards resolution and reconciliation. The experience of the First World War also highlights the importance of communication as part of any reconciliation and reparation process – thought might therefore be given to communicating clearly on the consequences of war on civilian populations and the reasoning to justify the sum of reparations.

14. Reparations in relation to Second World War were similarly complex given the scale of the human rights violations and the huge impact on civilian populations. Many countries had severely damaged infrastructure as a result of the aggression and had nationals who had suffered human rights violations. Reparations were negotiated in different packages at different times, but “no Allied State received compensation for the full extent of the losses which its people had suffered”.

For individuals affected, whilst the German Federal Compensation Law (Bundesentschädigungsgesetz) compensated German victims of National Socialist persecution, those in other countries that were attacked by Germany and its allies were not entitled to compensation under that law. Issues remain to this day, whether due to differences of opinion over responsibility (for example Poland, alone, was invaded by Germany, Slovakia, Romania and Russia, at various moments in the Second World War) or due to differences of opinion over agreements made (for example, with Russia negotiating a reparation settlement that purportedly covered countries on the Eastern side of the iron curtain, but without those countries necessarily directly benefiting from those reparations or feeling that they had been involved in those negotiations). This has led to arguments that reparations have not been fair or full, with specific individuals feeling that they did not receive adequate compensation, and some continuing to pursue reparations from Germany for losses suffered. Such sentiment can be noted for example in recent attempts in Italy, Greece or Poland to seek reparations from Germany, and a clear feeling of resentment for what is sometimes seen as a lack of responsibility for, and reparation for, past wrongs. However, without German agreement, reparations for such incidents remain legally unobtainable due to, for example, the doctrine of State immunity and the lack of any other means of enforcing the duty on a State to make reparations.

15. The doctrine of State immunity is a general rule of customary international law, solidly rooted in the practice of States, which grants States jurisdictional immunity from any attempted assertion of jurisdiction by the courts of another State.

State immunity derives from the principle of the sovereign equality of States, which is one of the fundamental principles of the international legal order.

The law of State immunity is essentially of a procedural nature. It acts as a barrier to bringing proceedings against a State for any exercise of sovereign power (whether legal or illegal), but does not have any bearing on the merits of a claim. Therefore, even if a State may be immune from the jurisdiction of the courts of a foreign State, this does not affect its international responsibility or its obligation to make reparation.

16. The ICJ has notably concluded that State immunity for acts jure imperii [an exercise of sovereign power] extends to civil proceedings for acts having resulted in death, personal injury or damage to property committed on the territory of the forum State by another State’s armed forces and other State organs during an armed conflict.

Therefore “customary international law continues to require that a State be accorded immunity in proceedings for torts allegedly committed on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict”.

Moreover, the ICJ has also concluded that, in respect of civil proceedings, “under customary international law… a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict”, even in respect of a jus cogens norm.

This follows from the case law of the European Court of Human Rights which also confirms that granting State immunity for breaches of human rights is not a violation of the Convention.

It should be noted that this relates to State immunity in respect of civil proceedings (which is distinct from individual criminal liability for torture, war crimes and crimes against humanity). The doctrine of State immunity also grants States immunity from post-judgment measures of constraint, for example as against property used for governmental purposes that is located in a foreign State, and associated exequatur proceedings.

Having said this, work is currently underway to explore ways of obtaining reparations from the Russian Federation notwithstanding the operation of the principle of State immunity, including through exploring the use of counter-measures and through using the interests of assets that are subject to sanctions. As this work is ongoing in the context of specific reports focussing on the Russian war of aggression against Ukraine, I will not address this further in this report.

2.3. The right to remedies and reparations for individuals: the need for a victim-centred approach

17. Reparations have historically been a matter between States, not involving the individual directly. This is because, traditionally, the individual is not a subject of public international law and thus cannot act in the sphere of international law. Moreover, individuals cannot bring a claim directly against a foreign State in international law. A State can espouse the claim of a national, to seek to hold another State accountable and to seek reparation related to a breach.

However, the individual is not able to make a claim directly and is not necessarily entitled under international law to any specific reparations following such a claim. As the ICJ has said “Where the State receiving funds as part of what was intended as a comprehensive settlement in the aftermath of an armed conflict has elected to use those funds to rebuild its national economy and infrastructure, rather than distributing them to individual victims amongst its nationals; it is difficult to see why the fact that those individuals had not received a share in the money should be a reason for entitling them to claim against the State that had transferred money to their State of nationality.”

The ICJ considered that such disputes might be a topic of further negotiations between the two States concerned.

18. A person can bring a claim (where available) under domestic law in their own State or indeed can bring a claim (where available) under the domestic law of a State against whom it seeks damages or reparations. However, often such legal mechanisms are lacking or unavailable in the domestic law of the individual State – for example because domestic courts may lack jurisdiction, due to the operation of State immunity laws, or because non-nationals may be barred from accessing certain compensation schemes. International law can thus leave an individual victim without an adequate remedy – even where their State of nationality has received reparation. This situation can thus be unsatisfactory for the individual and can lead to a lack of a meaningful resolution if the victims are not adequately involved in finding a solution towards reconciliation and lasting peace. Increasingly, however, practitioners and politicians are realising that if victims’ needs are not addressed, then problems persist. There is now, thus, an increasing recognition of the need for a victim-centred approach to reparation and reconciliation in order for it to work and to contribute to lasting peace and reconciliation.

19. Specific rules of international law do grant individuals rights, such as international human rights law, international humanitarian law (for example in relation to prisoners of war) or law on consular protection.

However, the law has not yet developed to creating an actionable right to reparation for individuals under customary international law.

Exceptionally, specific provisions of international law enable individuals to make claims directly against foreign States, for example, investment treaties may establish arbitration clauses enabling individuals to seek damages against a foreign State for losses. Specific bespoke compensation mechanisms have also been established at times, such as the United Nations Compensation Commission, established to process claims and pay compensation for losses and damage suffered as a direct result of Iraq’s unlawful invasion and occupation of Kuwait in 1990-1991.

20. Human rights treaties, in particular, may establish a mechanism for individual applications against a State responsible for a violation. This is reflected in the approach set out in the UN General assembly Resolution “Basic 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” (UNGA Resolution 60/147).

The Principles annexed to that resolution recall, in particular, that the right to a remedy for victims of human rights violations is a right protected under numerous international and regional treaties relating to international human rights law and international humanitarian law.

The Principles recall the obligation on States to investigate crimes under international law and to prosecute perpetrators, where these are identified. At paragraph 11, the principles set out that remedies for gross violations of international human rights law or serious violations of international humanitarian law include (a) equal and effective access to justice; (b) adequate, effective and prompt reparation for harm suffered; and (c) access to relevant information concerning violations and reparation mechanisms. Paragraph 15 provides that a State “shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law”. It refers in particular to restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. Whilst in practice this is generally done through domestic legal mechanisms, international mechanisms also exist. One of the most developed such mechanisms is, of course, the European Court of Human Rights.

21. An individual, or victim-centred approach, is thus more in line with a human-rights approach and is required for there to be an effective remedy under the European Convention of Human Rights (Article 13). This is reflected, for example, in Council of Europe documents, such as the 2011 Guidelines and reference text on “Eradicating impunity for serious human rights violations” adopted by the Committee of Ministers or recent work on remedies and redress to victims of the Russian military aggression in Ukraine.

There is thus an obligation on member States domestically to provide a means of redress for individuals whose human rights have been violated. In the context of a conflict, however, it can be difficult to oblige the responsible State to create such mechanisms (or to finance such mechanisms operating in the victim State) without their acceptance of responsibility and engagement in the process.

Moreover, there can be differences of opinion as to the type and extent of remedy or reparation required – for example, where resources are limited, should an individual be entitled to full compensation, particular compensation, declaratory relief, or other remedies better adapted to their individual circumstances and needs? Whilst the case law of the European Court of Human Rights has developed certain principles, some of this is left to the respondent State to determine, under the supervision of the Committee of Ministers. Moreover, the approach of the Court can be restricted to specific tools and perhaps does not look at the full range of options that might be available or that might best respond to the needs to the victims.

2.4. Reconciliation and transitional justice

22. Whilst the principle remains one of full reparation, the principle of the effectiveness of the law, and the reality of enforcement of any awards is crucial. Tools such as reconciliation, redress and transitional justice can be part of a package aimed at reconciliation and lasting peace. Such matters can be delicate as it can be difficult to find a solution that is victim-centred, respects human rights, and which also contributes to lasting peace and improved reconciliation between communities. Such solutions tend to feature a set of tools, including truth-seeking initiatives, justice, reparations, recognition and guarantees of non-repetition.

23. The primary aim of reconciliation is to prevent conflicts from re-escalating. Meaningful reconciliation implies building new relationships between parties to the conflict and between the State and the citizen. It often requires time to engage at a community-level and can depend on buy-in from victims. Transitional justice refers to how societies respond to the legacies of massive and serious human rights violations, in order to achieve justice for the victims together with sustainable peace. It can include both judicial and non-judicial mechanisms, such as acknowledgement, memorials, lustration, civic initiatives, investigations, truth-seeking initiatives, as well as reparations to victims (for example financial compensation, restitution of property, guarantee of political or social rights).

There is no one-size-fits-all approach to reconciliation or transitional justice initiatives, but the overall goal is a more peaceful, just and inclusive society.

In order to be successful, initiatives generally should be context-specific, nationally owned, and focused on the needs of victims.

By its nature, transitional justice often takes place outside of State courts, with a number of scholars noting that criminal justice is not always the most appropriate manner of facilitating truth-finding.

There can be tensions between initiatives promoting peace, truth-finding, reconciliation and transitional justice, which often imply a certain level of compromise, and a focus solely on justice which can favour prosecutions and full redress, but may not always be capable of delivering either prosecutions or reparations. As we heard during the committee’s hearing on this topic, ideally, the elements of truth-seeking initiatives, justice, reparations and guarantees of non-repetition will be complementary and not in competition with each-other.

24. Examples of transitional justice initiatives in recent decades tend to combine a mixture of truth-finding commissions and justice initiatives such as prosecutions. However, there can be a tension between initiatives favouring truth-seeking and the uncovering of remains, with those prioritising bringing perpetrators to justice. Amnesties or conditional immunity regimes are sometimes proposed to promote truth-seeking,

but they are controversial, especially where they could prevent responsibility for serious violations.

Similarly, in some countries, limitation or prescription periods on bringing prosecutions act as a barrier to justice. Importantly, such limitation periods should not apply to gross violations of international human rights law or serious violations of international humanitarian law.

Similarly, early releases of prisoners convicted of crimes during a conflict can be seen as a tool for reconciliation, but also as one that can undermine justice and can be felt as an affront by the victims of human rights violations. Prosecutions of some or all of those responsible for human rights violations is usually a central element of transitional justice.

However, there can be some perceived difficulties with prosecutions, particularly where certain crimes were seen to be permitted under a previous regime.

25. One element common to truth-seeking initiatives is to establish a body to investigate what has happened to missing persons and to find their remains. Examples include the National Commission on the Disappeared in respect of people who disappeared during the 1976-1983 military dictatorship in Argentina; the Committee on Missing Persons in Cyprus, in respect of people who went missing during the 1974 Turkish military intervention in Northern Cyprus (an element of the execution of the interstate judgement of the European Court of Human Rights Cyprus v. Turkey); investigations following the 1996-2006 Nepalese Civil War;

the Colombian Commission for the Identification of the Truth, Coexistence and Non-Repetition.

Another example is the Independent Commission for the Location of Victim’s Remains (ICLVR) in relation to 16 people who disappeared during the Troubles in Northern Ireland 1970s–1998. Information given to the commission cannot be used in criminal proceedings, in order to encourage information that can help families to locate the remains of their loved ones. Recent legislation to address Northern Ireland legacy issues continues to be controversial, with proposals involving a controversial conditional immunity from prosecution for anyone who co-operates with the new Independent Commission for Reconciliation and Information Recovery (ICRIR). This is seen as building on the model used in South Africa to favour truth but is accompanied by limitations on bringing new litigation, which has been criticised as unduly limiting access to justice. Tensions persist around the disappeared and truth-finding commissions in finding the correct balance between the pursuit of justice and the need for truth, reconciliation and peace.

3. Mechanisms currently available to promote reconciliation and reparation

3.1. The European Court of Human Rights

26. A number of human rights protected under the European Convention on Human Rights can be relevant in a conflict or post-conflict scenario, including the right to life (Article 2), freedom from torture or inhuman or degrading treatment or punishment (Article 3), the right to private, family life and the home (Article 8), freedom of expression (Article 10)

, the right to an effective remedy for a violation of human rights (Article 13), and the right to peaceful enjoyment of possessions (Article 1 of Protocol No. 1 to the Convention (ETS No. 9)) – amongst others that may apply in particular situations.

27. It is well established under the case law of the European Court of Human Rights that States are under an obligation to undertake adequate investigations in relation to alleged violations of the right to life (Article 2) and the prohibition of torture (Article 3) and that this obligation should include the possibility of identifying and punishing those responsible for such violations.

There are specific requirements as to the quality of investigations. One complexity in conflict situations is that different standards can apply depending on whether a person in a conflict is killed by State actors or non-State actors, which can create difficulties when seeking solutions addressing complex situations in the aftermath of a conflict. The Council of Europe Guidelines on eradicating impunity for serious human rights violations set out what is required by way of investigations and provide that “States should take all appropriate measures to establish accessible and effective mechanisms which ensure that victims of serious human rights violations receive prompt and adequate reparation for the harm suffered. This may include measures of rehabilitation, compensation, satisfaction, restitution and guarantees of non-repetition”.

28. Interstate cases that have been brought, or individual applications relating to conflict-type situations, can help to address and recognise specific human rights violations and award just satisfaction where appropriate. However, judgments in such cases are notoriously difficult to execute.

There are some concerns that the nature of this litigation does not necessarily lend itself to a holistic settlement towards comprehensive reconciliation and reparation following a conflict. Moreover, the restrictions in the types of remedies available can be unsatisfactory to the communities affected, and the lack of enforcement of remedies can lead to revictimization of the applicants as well as creating an affront to the rule of law and the principle of the effectiveness of the law. I have set out below some of the more well-known cases relating to post-conflict situations by way of illustration of how the Court can be used, with differing degrees of success in terms of implementation.

29. Interstate cases often involve displaced people. This has been the case for example with the cases flowing from the conflict between Armenia and Azerbaijan from the early 1990s.

The cases of Chiragov v. Armenia (2015) and Sargsyan v. Azerbaijan (2015) concern the impossibility for displaced persons to gain access to their homes and properties in Nagorno-Karabakh and surrounding areas and the lack of an effective remedy for such displaced people.

Despite recent efforts towards agreement to a memorandum of understanding relating to the payment of just satisfaction to the individuals concerned (possibly via a Council of Europe bank account), signature of such agreements and payments of just satisfaction remain outstanding, over 30 years since the people were displaced and 8 years since the judgments in these cases. Further interstate and individual applications have been made to the European Court of Human Rights in respect of a more recent conflict between the two countries in 2020 which again caused many deaths. Serious concerns remain as to the respect of human rights in the region.

30. Concerningly, the situation of people living in Nagorno-Karabakh worsened during 2022-2023 with severe restrictions on the movement of people, food and other goods to and from the area. There were significant concerns about the humanitarian and human rights situation of those living in Nagorno-Karabakh. Moreover, the Azerbaijani military interventions to take effective control over the local area led to heightened concerns about the welfare of the local population and the risks of abuses of international human rights law, in particular relating to ethnic cleansing, hate speech, destruction of cultural heritage, forced displacements and the use of force against civilian populations. This culminated in the near total exodus of the ethnic Armenian population of Nagorno-Karabakh.

Even more concerningly, the interim measures indicated by the European Court of Human Rights in 2022, calling on Azerbaijan to ensure safe passage through the Lachin Corridor of seriously ill persons in need of medical treatment in Armenia and others who were stranded on the road, have not been respected. Such non respect of the interim measures of the Court, risking the well-being and lives of those living within the Council of Europe geographic space, raises serious concerns for the feasibility of solutions based on the rule of law and respect for the values of the Council of Europe. Furthermore, the provisional measures of the ICJ were similarly not respected.

31. The breakup of former Yugoslavia in the 1990s involved a number of conflicts, with ethnic cleansing, war crimes, genocide, huge numbers of deaths, massive displacements of population across the new borders, as well as complex issues relating to property ownership, including following the splitting up of national banks. The countries of the region only became members of the Council of Europe following the conflict. The European Court of Human Rights has nevertheless been of some use in addressing issues flowing from the conflict, although this has taken time. For example, issues relating to the bank accounts and savings of individuals following the breakup of former Yugoslavia, have been eventually resolved following judgments of the Court,

as have issues relating to individuals who lost their residence rights after Slovenia’s declaration of independence,

or cases concerning the pension rights of those who were displaced following the war

. Recourse to the Court has also been used in cases relating to individuals wishing to access indemnity schemes for war damages.

Cases relating to investigations into deaths and war crimes during the conflict, the fairness of related proceedings, and the treatment of detainees have not been without difficulty.

However significant recent progress has also allowed the supervision of many of those cases to be closed. In other cases friendly settlement has been a useful tool in resolving issues.

Despite huge progress since the 1990s, however, some tensions remain in the region.

For example, Bosnia’s constitution and electoral system continue to maintain a distinction between the three ethnic constituent peoples and the others, in contradiction with numerous judgments of the European Court of Human Rights.

Other cases are still pending implementation, such as the inability for members of the armed forces of Yugoslavia to regain possession of their pre-war apartments in the Federation of Bosnia and Herzegovina.

32. The enforcement of judgments of the European Court of Human Rights can prove difficult in separatist regions. For example, cases relating to the Transnistrian region of the Republic of Moldova have been difficult to enforce. Following a conflict in the early 1990s, the separatist regime has been supported by Russia. Many human rights issues have arisen during the tensions. The individual applications brought before the Court in respect of human rights violations by the de facto Transnistrian authorities have tended to be introduced against Moldova (as the country with territorial jurisdiction), as well as Russia (who the Court has generally found to have effective control over the region given that the de facto Transnistrian authorities rely militarily, economically and politically on Russia).

However enforcement has proven difficult, not least given the necessity of involving Russian, Moldovan and the de facto Transnistrian authorities in finding a solution to often complex issues. Many of these cases, for example the Catan case relating to the Latin-script schools, remain unexecuted.

33. More wide-ranging interstate cases can often be difficult to resolve, not least given the complexity and scale of the issues, differences of opinion as to how best to resolve them (for example between restitution or compensation in respect of property rights), and community tensions which can act as disincentives to finding a workable and practical solution. This can lead to perverse situations where there is little interest in resolving the plight of victims because this feeds into a particular conflict narrative, or a maximalist and unachievable solution is insisted upon, again because perpetuation of the conflict through a dispute on solutions maintains a particular conflictual narrative and political goals. Whilst the plight of victims is often cited as being central to such arguments, such an approach rarely delivers effective solutions for victims in a timely manner and is often a cause for renewed conflict. Finding solutions that are fair, promote reconciliation, respect the principles of justice and human rights and safeguard peace can often feel illusory in such circumstances.

34. The Cyprus v. Turkey interstate case (2001), covered a significant number of human rights violations flowing from the Turkish military intervention in Cyprus in 1974 and the subsequent division of the territory, including investigations into missing persons and the right to life (article 2 of the Convention), property rights (Article 1 of Protocol No. 1), and multiple rights affecting people living in enclaved areas (for example Karpas peninsula/Karpasia). Other individual cases have also related to missing or killed persons,

and property rights.

More recent issues relate to the difficulties in administering a divided territory,

or continued tensions

. Whilst many human rights violations were found in the initial interstate judgment of 2001, it was not until well over a decade later, in 2014, that the Court issued its just satisfaction judgment in which it awarded 90 million euros to be paid from Türkiye to Cyprus, to then be subsequently distributed by the Cypriot Government to affected individuals. A State has 3 months to pay just satisfaction, however, nearly a decade after the judgment, and coming up to 50 years since the initial military intervention, Türkiye has still not paid these damages. These judgments, however, are only part of a wider picture relating to the conflict, including tensions between the communities going back to the 1960s, human rights abuses pre-dating 1974 and various negotiations led by the UN to find a lasting solution.

Work to implement those cases has been slow but has seen some results, with elements involving the progress of the Committee on Missing Persons in Cyprus

and the Immovable Property Commission. However, the piecemeal nature of the Court’s consideration of the totality of the issues involved means that it is but a partial tool in considering what an overall package might look like for addressing the situation.

35. In the Georgia v. Russia interstate case concerning Georgian nationals arrested, detained and expelled from Russia as part of a centralised policy in 2006-2007, the European Court of Human Rights found a violation in a judgment of 2014 and in 2019 awarded a just satisfaction of 10 000 000 euros for the damage suffered by at least 1 500 Georgian nationals. The implementation of that judgment has proved very problematic and the just satisfaction has still not been paid.

36. Both Cyprus v. Turkey and Georgia v. Russia concern interstate cases in which the Court first found violations in a merits judgment, and only many years later awarded just satisfaction in the form of a just satisfaction judgment. It could be useful to explore whether, following a merits judgment in interstate cases, a more mediated or friendly settlement approach might be a useful tool in addressing reparation or just satisfaction in such future cases. Such a friendly settlement approach might yield a more enforceable settlement, with recourse to a wider range of potential reparation tools that might better address the real needs of the victims.

37. The Georgia v. Russian II interstate case relates to the 2008 conflict concerning the break-away regions of South Ossetia and Abkhazia in Georgia.

The European Court of Human Rights considered that Russia had effective control after 12 August 2008 (ceasefire agreement) given its participation in the conflict, and for the ensuing period given the dependence of the administrations of South Ossetia and Abkhazia on the Russian Federation. The Court found violations of the right to life (summary executions and a lack of investigation for killings), mistreatment of prisoners of war, the displacement of civilians and the destruction of property. In its just satisfaction judgment of 2023, the Court awarded just satisfaction sums for the different violations found, that will have to be distributed by the Georgian State to the individual victims concerned. However, as for the previous interstate case relating to Russia, implementation will be difficult, even more so following Russia’s expulsion from the Council of Europe. There are also a number of individual cases pending before the Court relating to this conflict, as well as to similar conflicts in the early 1990s, as well as a fourth interstate case, Georgia v. Russia IV, concerning the administrative borders between these territories.

38. Friendly settlement, combined with monitoring visits, can be a useful means of resolving a potential interstate case even before a merits judgment. For example, the Georgia v. Russia III interstate case concerned the detention of four Georgian children by the de facto authorities of South Ossetia. Following a visit by the Commissioner for Human Rights to the region, the children were released and the case was struck out of the list at the request of the Georgian Government. More might be done to explore how best to resolve interstate issues through friendly settlement and/or the use of other Council of Europe mechanisms.

39. The number of interstate cases pending before the European Court of Human Rights has been growing significantly in recent years and is now occupying a significant amount of Court time, not least given the complexity of the issues. One of the most obvious examples relates to successive violations by Russia, of human rights of people in Ukraine. Since Russia’s illegal annexation of Crimea in 2014, there have been numerous human rights violations such as a crack-down on free speech, illegal kidnappings, displaced persons and the persecutions of Crimean Tatars.

This was shortly followed by an outbreak of violence in the Donetsk and Luhansk regions between Russian-backed separatists and the Ukrainian forces. Despite the involvement of the Organization for Security and Co-operation in Europe (OSCE) and the Minsk Agreements, conflict continued, leading to thousands of dead and wounded as well as millions of displaced persons. The downing of Malaysian Airlines flight MH17 by Russian-backed separatists is but one of many atrocities and human rights violations committed, including arbitrary arrests, ill-treatment, torture, and summary executions

. In February 2022 Russia’s full-scale military invasion of Ukraine led to vast numbers of casualties, millions of refugees, destruction of the environment, war crimes, possible genocide and the devastation of civilian infrastructure. Russia was consequently expelled from the Council of Europe. The devastation is vast and growing, as is the human loss. A Register of Damage has been created, but significant tools will be required to provide remedies and reparations in due course.

Many Ukraine-Russia interstate cases as well as thousands of individual applications are pending before the European Court of Human Rights, dealing with various aspects of the conflict and tensions over the last nine years. As these are the subject of a number of reports of the Assembly already underway, I will not focus on them here. Moreover, given that Russia is no longer a member of the Council of Europe, any mechanism envisaged in this report, for members of the Council of Europe, would not apply to the conflict between Ukraine and the Russian Federation. Nonetheless, it goes without saying that the scale of the damage is considerable and that bespoke mechanisms will almost inevitably be required, in addition to Court judgments, in order to correctly address the issue of reparation.

3.2. Other Council of Europe mechanisms – the role of the political organs

40. Member States of the Council of Europe are committed to “the pursuit of peace based upon justice and international co-operation”.

Democratic security is one way that the Council of Europe contributes to the pursuit of peace and this has long been a theme of Council of Europe work. Democratic security rests to a great extent on compliance with democratic processes, human rights and the rule of law as a means of guaranteeing security in the region.

41. Council of Europe monitoring mechanisms constitute a set of tools to improve these safeguards within member States and thus to provide a level of guarantee for States and citizens that human rights will be respected and that mechanisms exist to enforce those rights, including through seeking reparations and remedies where necessary. There are many such monitoring mechanisms including the European Commission for Democracy through Law (Venice Commission), the Group of States against Corruption (GRECO), the Group of Experts on Action against Trafficking in Human Beings (GRETA). The reports of these bodies can constitute helpful indicators for respect for democracy, the rule of law and human rights and can help to promote durable solutions to protect citizens’ rights. The reports of the Parliamentary Assembly, and in particular of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee), can also be useful in highlighting concerns and in encouraging States to respect their obligations. The Commissioner for Human rights similarly performs a crucial role as watchdog for the Organisation and can help to promote solutions to complex post-conflict challenges.

42. The Secretary General of the Council of Europe can also perform a vital role in seeking to resolve disputes and differences between States to encourage a peaceful solution, deploying a range of measures to facilitate dialogue. Groups of Ambassadors of the Committee of Ministers can also be established to promote dialogue on particularly challenging issues and member States can engage in high-level dialogue. More specifically, the Organisation has taken specific action to support work towards compensation and reparation in specific instances. For example, recent discussions in relation to the Russian aggression against Ukraine have focussed on how to enforce the duty of an aggressor State to provide reparation for the internationally wrongful acts for which they are responsible, including the setting up of a Register of Damage. Current discussions are centring around the financing of reparations, including the confiscation of Russian assets and countermeasures.

43. I should also mention the existence of others tools encouraging the peaceful settlement of disputes, such as the European Convention for the Peaceful Settlement of Disputes. Whilst the remit of this Convention is limited to situations occurring after the entry into force of that Convention in respect of the relevant States, and despite the limited number of ratifications,

it nonetheless provides a mechanism for the settlement of disputes, whether through recourse to the ICJ, the use of conciliation, or recourse to arbitration. A revision of this Convention to enable it to be used in a broader set of circumstances and to make it more appealing to States could perhaps be pursued.

44. A number of tools thus exist to promote dialogue and the finding of solutions. However, a more developed common democratic security policy is needed, which should include elements for enhancing accountability and for enforcing the duty to compensate.

A more structured approach to promoting and supporting reconciliation and reparation within the Council of Europe framework could bring great value to the Organisation, its member States and peace in Europe.

3.3. Other mechanisms available to Council of Europe member States

45. There are both legal and political tools available to member States at the international level. The avenues available in a given case may vary depending on the type of issue. Recourse to the International Court of Justice can be possible, depending on the nature of the dispute and whether or not both States accept the jurisdiction of that Court (whether on an individual basis or due to a jurisdictional clause in a given treaty). The Genocide Convention

is one such example as is the UN Convention for the Elimination of All forms of Racial Discrimination.

Member States have also brought cases relating to maritime delimitation before the ICJ

46. By way of example, in 2021 both Armenia and Azerbaijan brought cases against each other before the ICJ alleging breaches of the UN Convention for the Elimination of All forms of Racial Discrimination. In particular, there were accusations of ethnic cleansing, glorification of racist acts, hate speech, destruction of cultural and historic property, as well as discrimination. These cases are pending. In February 2023 the ICJ indicated provisional measures requiring Azerbaijan to “take all measures at its disposal to ensure unimpeded movement of persons, vehicles and cargo along the Lachin Corridor in both directions.”

Notwithstanding the clear international legal obligation to comply with provisional measures of the ICJ, the Lachin road subsequently remained substantially blocked leading to obvious concerns that such tools are not effective without respect by member States for the rule of law or means to seek to enforce these orders. On 17 November 2023, the ICJ indicated further provisional measures concerning the situation in Nagorno-Karabakh requiring Azerbaijan to ensure that persons who have left the region after 19 September 2023 and who wish to return “are able to do so in a safe, unimpeded and expeditious manner”, to “ensure that persons who remained in Nagorno-Karabakh after 19 September 2023 and who wish to depart are able to do so in a safe, unimpeded and expeditious manner”, and to “ensure that persons who remained in Nagorno-Karabakh after 19 September 2023 or returned to Nagorno-Karabakh and who wish to stay are free from the use of force or intimidation that may cause them to flee”. Provisional measures were also indicated to “protect and preserve registration, identity and private property documents and records” of those who were living in Nagorno-Karabakh earlier this year and to have due regard to those documents in its administrative and legal procedures.

Azerbaijan had to report on steps taken to implement these measures within 8 weeks (by 12 January 2024). It thus remains to be seen as to whether these provisional measures have been respected.

47. In another well-known example of recourse to the ICJ by Council of Europe member States, the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)

the ICJ found that whilst most acts committed by Serbian forces were not accompanied by genocidal intent, the Srebrenica massacre, committed by the army of Respublika Srpska, was a genocide and that Serbia and Montenegro had violated its obligation to prevent this genocide. Moreover, in failing to adequately co-operate with the International Criminal Tribunal for the former Yugoslavia (ICTY) (for example relating to the transfer of Ratko Mladić), Serbia and Montenegro had failed in its obligation to punish those responsible for genocide. In the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), whilst certain material elements of the crime of genocide were found, the ICJ concluded that the genocidal intent was lacking given that the crimes committed by the Serbs against the Croats were aimed at the forced displacement of the population rather than its physical or biological destruction. A genocidal intent on the part of Croats against Serbs was also not found.

48. Specific courts and tribunals can also be of assistance in seeking justice for past wrongs. For example, the International Criminal Court (ICC) can have jurisdiction to prosecute war crimes and other international crimes where the host State is unable or unwilling to do so.

The ICTY is another obvious example of a situation where the gravity of the crimes was such that an international tribunal was considered to be necessary to ensure that a certain level of justice was done and war crimes and other crimes prosecuted in order to address the wrongs of the past and for the communities and countries concerned to reconcile. The ICTY was established by the UN Security Council, to investigate and prosecute war crimes and other international crimes. It recognised certain acts as genocide, notably against the Muslims of Srebrenica,

and determined the existence of a number of war crimes, including systematic massacres of the civilian population, summary executions, extermination, ethnic cleansing, collective and systematic rape, torture, forced labour, inhuman treatment in concentration camps and detention centres, blocking humanitarian aid, sieges, indiscriminate bombardments of towns and villages and hostage-taking of UN soldiers.

49. Recourse to international courts or tribunals can thus be a useful tool in seeking to determine contentious issues from the past and to enable States to address the past and to work towards reconciliation. However, given that recent ICJ provisional measures, which are binding as a matter of international law, have not been respected by Russia or by Azerbaijan, this questions the adherence to the rule of law and to the peaceful resolution of disputes by certain States in the region, as well as the utility of these tools for resolving disputes and for ensuring respect for international law.

50. In terms of political tools, the OSCE and the UN are the two principal organisations engaged in conflict prevention in the region and have developed tools related to reconciliation and reparation. States themselves also engage directly, as does the European Union. The OSCE is the principal regional international organisation focussing on conflict resolution and dispute management. It has several mechanisms for conflict resolution, including monitoring missions for collecting impartial data on conflicts

and conflict resolution mechanisms such as the Trilateral Contact Group on Ukraine, mediation mechanisms in Georgia and Moldova, as well as the Minsk Group in relation to Armenia and Azerbaijan.

Other potential OSCE conflict resolution tools include the Valletta Mechanism

and the Conciliation Commission.

There is no prescribed OSCE-mechanism for conflict resolution per se as the OSCE tends to react to each crisis individually, responding to the political will of the parties to the conflict and other countries involved. However, these political tools tend to focus on immediate resolution of disputes rather than on longer term plans for reconciliation and reparation. Moreover, given the working methods of the OSCE, its capacity to work on a given issue will depend on the political will of all. The presence of the Russian Federation within the OSCE (as for the UN) can limit the ability of the Organisation to act meaningfully in respect of a given topic or situation.

51. Thus, the OSCE evidently has particular expertise relating to conflict resolution within the Council of European geographic space, and all efforts should be made to avoid conflicts between its actions and the actions of the Council of Europe. However, there is arguably a clear role also to be played by the Council of Europe whose expertise lies in justice, human rights and the rule of law – and it is with an eye to this expertise that we might consider whether the Council of Europe could, or indeed should, be doing more in relation to reconciliation and reparation, whilst ensuring that actions in a given situation do not duplicate or run into conflict with the work of the OSCE. In particular, whilst the Council of Europe has a clear role in relation to justice, the rule of law and human rights once the immediate need for conflict resolution has been addressed, as was made clear during the committee hearing on this topic, such work need not wait for a conflict situation to be resolved, but can already be started when tensions are ongoing as a means of helping to resolve them and to move towards solutions based on justice, human rights and the rule of law.

52. The United Nations obviously has a number of tools for conflict resolution, and in specific examples has developed particular tools aiming at reparation mechanisms. Resolutions of the Security Council or the General Assembly are usually required for the establishment of any such a mechanism. One well-developed example is the United Nations Compensation Commission (UNCC) which was established by UN Security Council Resolutions to consider and administer compensation claims following Iraq’s invasion of Kuwait 1990-1991 and Iraq’s consequent liability under international law for any direct losses, damage or injury “as a result of its unlawful invasion and occupation of Kuwait”

. The UNCC was wound up in 2022 having completed its functions. Another well-known example is the United Nations Register of Damage caused by the construction of the wall in the occupied Palestinian territory (UNRoD), which is a subsidiary organ of the UN General Assembly, created by an UNGA Resolution. UNRoD records the damage caused to all natural and legal persons by the building of the wall. This follows the obligation for Israel to compensate natural and legal persons, as set out in the Advisory Opinion of the ICJ.

Other individual resolutions of UN bodies can also support the right of victims to compensation.

53. Other bespoke tools have been developed in respect of specific States, such as those in the Balkans, in order to address reconciliation, truth, and justice and were supported by regional initiatives, with participation of the UN, the OSCE and the European Union. However, civil society has highlighted that many of these initiatives do not include (a) psychological support for victims; (b) the construction of memorials and symbolic monuments; (c) the inclusion of women, minority groups and victims in the decision-making processes of reconciliation and reparation programmes; and (d) domestic indemnity mechanisms for victims.

54. Finally, the possibility of bilaterally negotiated solutions should not be ignored. For example the United Kingdom and the US negotiated with Libya to obtain compensation for victims of the Lockerbie bombing. However other efforts have been less successful in obtaining compensation for Libyan-sponsored terrorism.

4. Conclusions: the case for a new mechanism under the auspices of the Council of Europe to assist in resolving past conflicts and building a common peaceful future

55. The topic of reparation and reconciliation in post-conflict situations can be a highly sensitive matter requiring careful political as well as legal expertise, in order to find solutions that are fair, respect the principles of the rule of law, justice and human rights, promote truth and reconciliation, and safeguard peace.

56. The Council of Europe has some tools to facilitate finding solutions to post-conflict disputes – including through political discourse within the Parliamentary Assembly and within the Committee of Ministers, and through the jurisdiction of the European Court of Human Rights. A significant amount of time can be spent, including within the Council of Europe, on conflict or post-conflict matters that can sometimes seem to be intractable. However a failure to adequately address such matters can hinder peace and prosperity in Europe and thus negatively affect all of us.

57. The situation in Nagorno-Karabakh is perhaps one of the best examples of a need for improved tools to address reconciliation, reparation and redress following conflicts. Whilst the 1990s conflict arose before either State was a member of the Council of Europe, the continued tensions since then have occurred since both States are members of this Organisation and could perhaps have been avoided by improved mechanisms for resolving disputes by peaceful means. Indeed, Azerbaijan has indicated that the military action in 2020 followed the lack of a satisfactory peaceful resolution in the intervening decades. Moreover, the current situation has led to renewed violations of human rights and concerns about ethnic cleansing, combined with the huge displacement of the ethnic Armenian population of the area.

58. There can be tensions between the imperative of peace and reconciliation; the legal obligations on States to pay reparations for internationally wrongful acts for which they are responsible; the duty on States to provide victims of human rights violations with an effective remedy; the practical challenges of agreeing to a package of reconciliation and reparation measures; and the difficulties in delivering effective remedies to individual claimants. Whilst ideally, these objectives can be complementary, this can be challenging to deliver in a given situation. Collecting data on the extent of civilian damage is important to ensuring individual reparation for human rights violations caused by a conflict. However, especially where such damage is very significant, creative solutions may be needed to ensure that victims receive remedies, that reparations are realisable, and that the solutions found will not in themselves be a catalyst or pretext for further conflict.

59. Respect for the rule of law is necessarily a primary imperative of this Organisation and of any search for solutions to these complex problems. Part of respect for the rule of law relates to the principle of the effectiveness of the law, as well as the enforcement of remedies or of settlements. Awarding victims remedies that are unenforceable merely serves to revictimize these individuals. Thought should therefore be given to exploring whether better solutions can be found that respond to the needs of the victims, respect the rule of law, promote reconciliation and redress, and which are also achievable, enforceable and implementable. Reparation therefore may need to be accompanied by other measures, including community-level projects, truth and reconciliation projects, projects aimed at mutual economic co-operation and prosperity, and an adequate communication component to explain the consequences of war and justify any reparations. Moreover, it is important that victims and affected groups are involved in the process of finding adequate solutions that best respond to the needs of those affected.

60. There is a strong case for a mediated process under the auspices of the Council of Europe, to promote reconciliation and reparation in relation to conflicts between Council of Europe member States. It is only by addressing these issues that we can move forward towards peaceful co-operation for the future. Improved tools for achieving reconciliation and resolving reparation for past conflicts would complement the current drive for an improved democratic security policy, with a particular focus on accountability, respect for international law, and reparation. Such a mechanism could, for example, be engaged where a State has committed an internationally wrongful act, such as an act of aggression, State-sponsored terrorism, or widespread human rights violations against a particular population.

61. Whilst Courts can play a vital role in finding just solutions, often a court with jurisdiction is not available (for example due to State immunity) or is unable to fully address the overall complexity of the problem (for example due to its remit or limits of the available remedies). In addition there are often challenges with enforcing the judgments of the European Court of Human Rights. Whilst efforts should be pursued to encourage States to accept the compulsory jurisdiction of relevant international tribunals such as the International Court of Justice or the International Criminal Court, it is additionally worth pursuing alternative mechanisms for improving the peaceful resolution of disputes.

62. The European Court of Human Rights can be a useful tool in addressing specific complaints and in providing remedies for human rights violations occurring during conflicts between Council of Europe member States. However, it is a limited tool in achieving reconciliation and reparation following a conflict. Firstly, it does not allow for an overall or holistic approach to reconciliation and reparation assessment (being restricted to specific human rights violations, with a particular focus on the responsibility being attributable to State actors). Secondly, it has a restrictive array of remedies available to it, – it does not, for example, propose performance of specific acts designed to improve reconciliation or to promote transitional justice.

Thirdly, its just satisfaction awards in complex interstate cases are notoriously difficult to enforce. There is thus a strong case for a more effective and more adaptive mechanism for resolving interstate disputes following a conflict between Council of Europe member States, and for improving the enforcement of any awards.

63. Such a mechanism could be independent of any interstate judgments of the European Court of Human Rights, in order to find a solution to issues of reconciliation and reparation, and could involve a mediator, appointed by the Council of Europe. The somewhat more creative solutions available in a mediation scenario can lend themselves to finding a workable and just solution, compared to the more restrictive, monetised tools that are available to Courts.

64. Such a mechanism should automatically apply to matters within the geographic and temporal limits of the Council of Europe – that is to say where the relevant States were members of the Council of Europe at the relevant time. Whilst the Assembly necessarily needs to be aware of the history of its member States, an acceptable mechanism would probably need to relate to matters falling within the geographic and temporal scope of the Council of Europe. However, we need not necessarily exclude any mechanism established being used in respect of a situation that pre-dates one or both States’ membership of the Council of Europe, in a situation where the use of the mechanism could promote peace and justice and could foster improved relations between Council of Europe member States. In such circumstances any eventual mechanism could potentially be used with the express consent of the parties concerned.

65. There is also scope to consider how a structured mediated process might support the role of the Court in interstate cases by assisting in promoting friendly settlements, and finding reparation solutions that will be more readily enforced. Such tools could be used to facilitate a friendly settlement in an interstate case. For example, it could be a prior requirement for States to attempt mediation before resorting to bringing a post-conflict interstate case before the Court. Additionally, mediation could follow a merits ruling of the Court in an interstate case in order to find a mutually agreeable settlement as to reparations and remedies following the finding of a violation of Convention rights. Specific effort should go into exploring ways in which a mediated solution could be used to address reparation in lieu of a just satisfaction judgment in applicable cases. Additionally, such tools could be used to facilitate the implementation of interstate judgments where significant challenges remain following a judgment of the European Court of Human Rights.

66. I should note that I have not sought to focus on the current situation in Ukraine in this work. This is the focus of other reports under preparation in the Assembly, and specific mechanisms are being established to address this issue, such as the Register of Damage. Moreover, that case is further complicated as the aggressor, the Russian Federation, has ceased to be a member of the Council of Europe. Given the challenges of enforcement, I would propose that any new mechanism should only apply to Council of Europe member States (and so would not apply to the Russian Federation). For these reasons, whilst this experience is highly interesting and instructive, it is perhaps not the focus of a new mediation mechanism for use between current Council of Europe member States.

67. A mediated solution could help to resolve highly complex matters between States. A neutral third party may facilitate finding solutions by looking holistically at a set of complex issues. In particular a mediated solution might stand a better chance of reaching a political settlement of post-conflict situations whilst securing greater buy-in from States and thus greater chance of enforcement. A mediator could be chosen from a panel of international mediators or conciliators, perhaps from former Secretaries General of the United Nations or the Council of Europe, or judges of international renown. The mediation could remain private for consideration by the parties for a certain period of time, to enable progress to be made before any efforts at making the findings public and trying to push forward a solution.

68. In order to facilitate such mediation work, it may be necessary to develop a set of standards for reparation, reconciliation and remedies. A one-size-fits-all approach is unlikely to be fruitful, as a context-specific approach will nearly always be required. However, it could be useful to develop a selection of tools and good practices to be deployed in finding durable solutions for remedies, reconciliation and reparation. This could involve a broad, flexible framework within which a range of options and solutions might be possible. This framework should have the requisite flexibility and creativity to propose a just, workable solution for redress, reconciliation and reparation that is achievable and implementable.

69. The real challenge for promoting a just and equitable settlement following a conflict lies in the capacity to enforce efforts at mediation, as well as to enforce any eventual settlement. Much will therefore depend on the tools that are to be deployed. In some cases a mediation process might be voluntarily submitted to by the States concerned, in others, it might follow a recommendation from one of the organs of the Council of Europe, such as the Parliamentary Assembly, the Committee of Ministers or the Secretary General. I consider that there should be an obligation on member States to engage with a mediation process in good faith and to co-operate sincerely in the implementation of the results, and that there should be potential consequences for a failure of a State to do so.

70. There are also important questions to consider as to the enforceability of the results of such a mechanism. For now, I consider that existing tools can be used for this purpose, such as political and diplomatic pressure of the Council of Europe, the potential use of the complementary joint procedure culminating in suspension where a breach reaches the criteria of Article 8 of the Statute of the Council of Europe. Thus a stark failure to engage with either the process or the outcome of the process could potentially be considered to constitute a serious violation of the principles of the Organisation such as to potentially lead to suspension from the Organisation under Article 8 of the Statute of the Council of Europe. This would not automatically follow, as separate consideration would be needed as to whether the criteria were fulfilled in any given case.

71. Much of the detail will need to be worked out following further expert consideration, so I consider that an unduly prescriptive approach is not necessarily helpful now. However, I think it important that the following elements are included in any eventual mechanism for improving mediated solutions:

a. A system should be established to enable member States to submit disputes as to reparations and remedies to mediation.

b. The Committee of Ministers, the Parliamentary Assembly or the Secretary General of the Council of Europe should be able to initiate this mediation process in the absence of consent by both parties. In the case of the Assembly this could be through a recommendation.

c. The process should apply to matters within the geographic and temporal limits of the Council of Europe. It should only apply to conflicts between States who were not members of the Council of Europe at the relevant time with their express consent. Moreover, for reasons of enforceability, it should not apply to States who are no longer members of the Council of Europe.

d. This system should be available for interstate disputes relating to post-conflict situations or other disputes that could risk escalating into tensions.

e. This process should also be available for identifying a package of reparations and remedies in relation to interstate cases before the European Court of Human Rights, where a given case could benefit from a broader toolkit for proposing solutions that are better adapted to addressing the complexities of post-conflict situations and the needs of victims.

f. The approach should be victim-centred, involving consultation with victims and other affected groups as well as with the States concerned.

g. There should be an obligation on member States to engage with a mediation process in good faith. As a matter of propriety, policy and principle, member States should be co-operating with the Council of Europe to resolve issues that impact on the human rights of individuals. This is implicit in the general obligation of States to collaborate sincerely and effectively and to co-operate in good faith, as well as in the specific obligations under the European Convention on Human Rights. In particular, the nature of collective enforcement under the Convention implies an obligation of co-operation between States. There should thus be potential repercussions for a State that is considered not to have engaged with the process in good faith.

h. There should be a duty on States to co-operate sincerely with the results of mediation and there should be potential consequences for unreasonable failure to do so.

i. Much of this can be achieved using the existing legal tools at the disposal of the Council of Europe, such as the Statute, the European Convention on Human rights, and ways of working under those founding instruments, in addition to political and diplomatic pressure using tools at the disposal of the Council of Europe. In a serious case of non-compliance, use of the Complementary joint procedure could be considered, as well as potential suspension where a breach would constitute a serious violation of Article 3 of the Statute of the Council of Europe (namely a serious violation of the principles of the rule of law, human rights and sincere and effective collaboration in the realisation of the aims of the Organisation).

j. The Council of Europe should develop an improved toolkit and standards for reparation and reconciliation in order to find solutions that are best adapted to addressing the complexities of a post-conflict situation. Such a toolkit should be non-exhaustive, adaptable to new situations, should avoid a one-size-fits-all approach and should instead offer a number of ideas for potential use in mediated solutions.