Doc. 9174

11 July 2001

Respect for international humanitarian law in Europe

Recommendation 1427 (1999)

Reply from the Committee of Ministers

adopted at the 759th meeting of the Ministers’ Deputies (4 July 2001)

1.        The Committee of Ministers has carefully examined Recommendation 1427 (1999) of the parliamentary Assembly on “Respect for international humanitarian law in Europe”. It acknowledges that one of the main aims of international humanitarian law is to provide international protection of certain fundamental human rights – such as the right to physical integrity – which are also safeguarded by criminal law at national level. One of the specific purposes of international humanitarian law is to prevent crimes from being committed during armed conflicts and to punish the perpetrators of such acts, by national or international, ad hoc or permanent courts. These crimes are defined in various international instruments (the Geneva Conventions of 1949 and the Additional Protocols of 1977, the Hague Conventions and the Statute of the International Criminal Tribunal for the former Yugoslavia, the Statute of the International Criminal Tribunal for Rwanda and the Statute of the International Criminal Court). In this respect, the Committee of Ministers appeals for the implementation of the Geneva Conventions, their additional Protocols and the Hague Conventions.

As regards the proposals set out in paragraph 8 i. of the Recommendation:

2.       The Assembly refers to the role the Council of Europe can play in this field. The Committee of Ministers draws attention to the initiatives taken by the Council of Europe’s Commissioner for Human Rights with regard to the application of the European Convention on Human Rights, in accordance with Resolution (99) 50 of the Committee of Ministers, and those taken by the Secretary General, in accordance with Article 52 of the European Convention on Human Rights.

3.       It also draws attention to the existence of Article 33 of the Convention (inter-state cases) and to Protocol No. 6 which subjects the application of the death penalty for acts committed in time of war or of imminent threat of war to various conditions: the state must have adopted a law that provides for capital punishment and may only apply it in the instances laid down in this law and in accordance with its provisions. The Committee of Ministers also recalls Resolution II (parts A and B) adopted at the European Ministerial Conference on Human Rights (Rome, 3-4 November 2000) and the decisions of the Ministers’ Deputies on the follow-up to be given to the texts adopted at that Conference (736th meeting, 10-11 January 2001, item 4.3). The Deputies instructed the Steering Committee for Human Rights (CDDH) to undertake a feasibility study on the question of the protection of human rights during armed conflicts as well as during internal disturbances and tensions, including those resulting from terrorist acts, and to assess the present legal situation, identify possible gaps in the legal protection of the individual and make proposals to fill such gaps (Decision no. 11), and to study the Swedish proposal for a new protocol to the Convention which would exclude the possibility of maintaining the death penalty in respect of acts committed in time of war or of imminent threat of war, and to submit its views on the feasibility of such a new protocol (decision no. 12).

4.       In its programmes of assistance on criminal law reform in member and applicant states, the Council of Europe regularly provides expertise which includes issues of international humanitarian law and is prepared to consider all requests for assistance or training specifically concerning these issues.

5.       The Committee of Ministers is prepared to consider any suggestion concerning the inclusion of compliance with international humanitarian law in its monitoring of the honouring of commitments.

6.       Within their respective mandates, the European Committee on Crime Problems (CDPC) and the Committee of Legal Advisers on Public International Law (CAHDI), regularly follow the development of international criminal jurisdictions, set up for the prosecution, inter alia, of violations of international humanitarian law. They also receive and disseminate texts as draft texts of national legislation and other information on this subject, including agreements drawn up between member states and the International Criminal Tribunal for the Former Yugoslavia (ICTY) and jointly organised in May 2000 a consultation meeting to discuss the implications of the ratification and implementation of the Rome Statute of the International Criminal Court which resulted in the adoption by the participants of a series of significant conclusions. A second consultation meeting will be organised on 13 and 14 September 2001, on the initiative of the Liechtenstein Chair of the Committee of Ministers, with a view to facilitating the ratification of the Rome statute.

As regards the proposals set out in paragraph 8 ii. of the Recommendation:

7.       The Committee of Ministers would welcome any increase in the number of states, including Council of Europe member states, which sign and ratify the instruments in question (sub-paras a. and j). Such an increase would not only improve the effectiveness of these treaties but also encourage states which have not yet ratified them to consider the advisability of doing so. In this connection the Committee strongly encourages governments to support the rapid entry into force of the Rome Statute of the International Criminal Court. In addition, it recalls that the European Convention on the non-applicability of statutory limitation to crimes against humanity and war crimes (item b.), although opened for signature as from 1974, has not yet entered into force.

8.       It is also desirable that governments systematically verify that their legislation complies with these obligations. The setting-up of national interministerial commissions responsible for monitoring compliance with international humanitarian law might also prove to be very effective (sub-paras c. and d.).

9.       The Committee of Ministers shares the Parliamentary Assembly’s view with regard to the measures described in sub-paragraphs e. and g. It invites the governments of the member states to take these measures such as recognising the competence of the International Humanitarian Fact-finding Commission and entrust it with enquiries.

10.       As regards the dissemination of international humanitarian law (sub-para f.), the Committee of Ministers recalls that several treaties impose obligations in this area such as the four Geneva Conventions of 1949 (Articles 47, 48, 127, 144, respectively) and their Additional Protocols of 1977 (Article 83 of Protocol I, Article 19 of Protocol II). The Committee of Ministers welcomes the practical steps which many states have taken to this end, and it considers that such measures ought to be more widely applied, in particular among the armed forces, police and prison staff.

11.       The Committee of Ministers acknowledges the very important role of the International Committee of the Red Cross (sub-para. h.) and invites states to consider increased financial support.

12.       In sub-para. i., the Assembly recommends that countries introduce the aut dedere aut iudicare principle in their national criminal law. This is a complex issue, which is currently being discussed by the CDPC within its present reflection on a new start in co-operation in criminal matters in Europe. Pending this debate, the states wishing to do so could establish a subsidiary competence for their national courts.

13.       The Committee of Ministers wishes to inform the Assembly that Recommendation 1427 (1999) has been drawn to the attention of the governments of member states.