9 September 1999
Respect for international humanitarian law in Europe
Committee on Legal Affairs and Human Rights
Rapporteur: Mrs Anneli Jäätteenmäki, Finland, Liberal, Democratic and Reformers' Group
I. EXPLANATORY MEMORANDUM
A. Recent developments in humanitarian law
1. A little more than one year ago, on 17 July 1998, the statute of the International Criminal Court (ICC) was signed in Rome. This statute defines three of the four categories of crimes for which the court has jurisdiction: genocide, crimes against humanity and war crimes. Talks are now in progress to define the crime of aggression. In its Recommendation 1408 (1999) the Parliamentary Assembly adopted a very firm stance from the outset, requiring member and observer States to support the functioning of the court. It invited member States to ratify the court's statute as soon as possible. It was particularly critical of the exemption clause in Article 124, allowing States parties to escape the court's jurisdiction for seven years in respect of war crimes perpetrated by their nationals or in their territories, which some people regard as a seven-year "licence to kill". It also called on member States to refuse to enter into bilateral agreements with States which were not parties in order to prevent their nationals accused of crimes from being handed over to the court.
2. The primary aim of international co-operation must be the prevention of armed conflict. The second must be to protect civilian populations from the realities of war. That is why, in time of war and in similar situations, international law imposes strict rules on the parties to a conflict. In all civilised communities the use of force is, as a rule, permitted only within certain legal limits. For those who believe that the (international) law must be respected wherever possible, the present situation in Europe is a cause for great concern. The reports of human rights violations and breaches of humanitarian law reaching us from South-East Europe are very worrying. The Assembly - the democratic conscience of the Council of Europe - must insist on observance of the rules of humanitarian law set forth in the Geneva Conventions and the protocols thereto, rules which, among other things, unconditionally ban the killing, mutilation, torture or other inhuman treatment of persons not taking part in hostilities and the taking of hostages. Those rules also stipulate that attacks must not be directed against civilians, that civilians must not be subjected to intentional starvation, and so on.
3. The idea of an international criminal court was launched as far back as 1993 in a report by Ms Gret Haller (Switzerland, SOC) on the establishment of an international court to try serious violations of humanitarian law and the setting up of a transitional mechanism for the protection of human rights in European States not members of the Council of Europe2. This was the Assembly's response, albeit slightly delayed, to the blatant mass violations of human rights committed in the territory of former Yugoslavia.
4. In her report Ms Haller pointed out that the problems of establishing a world court to try serious violations of international humanitarian law arose from the reluctance of certain countries to let violators of international humanitarian law be tried by judges of alien cultural backgrounds and judicial traditions. This led to the proposal that the future world court should be divided into regional chambers - not to allow different human rights standards to be applied but solely to allay any doubts which some countries might have about the idea of an international court.
5. The establishment in 1993 of the ICTY, the international criminal tribunal set up to try persons responsible for serious violations of international humanitarian law committed in the territory of former Yugoslavia since 1 January 1991, followed by the creation of an equivalent court for Rwanda in 1994, and, lastly, the adoption of the statute of the ICC in Rome in 1998 have considerably increased capacity to enforce the full application of international humanitarian law. Nevertheless, the length of proceedings in the ICTY and the fact that arrests have been confined to persons of middle rank or to subordinates are reasons for concern. The ICTY's role is to concentrate on the most serious offences and the highest ranks, whereas the national courts have jurisdiction to try persons accused of war crimes in so far as they are able, for example in the presence of international observers, who might be observers from the Council of Europe. Pending the setting up of the International Criminal Court, every effort must be made to ensure that the ICTY and the International Criminal Tribunal for Rwanda are able to perform their tasks.
6. The Preparatory Commission for the International Criminal Court held meetings from 16 to 26 February 1999 and from 26 July to 13 August 1999 and will be meeting again from 29 November to 17 December 1999. This Commission, which is responsible for settling all the matters remaining outstanding after the conference in Rome, will remain in place until the close of the first session of the Assembly of States parties, which will take place as soon as the statute comes into force. It is hoped that the sixty ratifications needed will be obtained before the beginning of the new millennium. The first country to ratify the statute was Senegal. A developing country is thus showing Europe the way, and this would appear to indicate that the principle of universality of human rights, reasserted by the United Nations Conference on Human Rights in Vienna in June 1993, is now unanimously accepted.
7. On 6 August 1999 the United Nations Secretary General issued a statement on the principles and rules of international humanitarian law to be observed by forces placed under United Nations control and command (ST/SGB/1999/13). It would be a good thing if other international organisations likely to conduct military operations in the course of armed conflicts, especially the Atlantic Alliance, were to allow themselves to be guided by that statement. Dissemination and teaching of humanitarian law within armed forces is not only essential, but also a convention requirement.
B. The establishment of a European protection mechanism
8. The Council of Europe's experience in matters of human rights and humanitarian law is unequalled, not only in the law-making field - with the European Convention on Human Rights and the protocols thereto, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes (ETS No. 82) - but also in operating a mechanism, the European Court of Human Rights, which has proved its worth.
9. The last of the above conventions, which is dated 25 January 1974 and supplements the existing texts, such as the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 and the Geneva Conventions of 1949, has not yet entered into force, and the time has perhaps come to urge States which have not yet done so to ratify it (three ratifications are needed; only one country - the Netherlands - has ratified the convention so far).
10. Europe's recent history is unfortunately rife with violations of international humanitarian law. The fact that grave breaches of human rights have continued in the territory of former Yugoslavia and elsewhere shows how difficult it is to safeguard human rights once an armed conflict has broken out. The international community is therefore fully aware that prevention is of the greatest importance to protection of human rights. The political impact and, above all, the deterrent effect are essential aspects of the International Criminal Court's task of punishing serious violations of international humanitarian law.
11. This is also the message conveyed by Recommendations 1183 (1992) on access by European non-member States to institutions operating under certain Council of Europe conventions relating to human rights, 1204 (1993) on the creation of a transitional mechanism for the protection of human rights for European non-member States of the Council of Europe and 1219 (1993) on establishing a mechanism for the protection of human rights in European States not members of the Council of Europe.
12. The Committee of Ministers took account of the first two of these recommendations in Resolution 93 (6) by providing that the Council of Europe might appoint specially qualified persons to sit on national bodies responsible for enforcing protection of human rights. As to the proposal to establish a European consultative committee for the protection of human rights in European non-member States, made in Recommendation 1219 (1993), the Committee of Ministers decided to adjourn discussion of the establishment of an additional mechanism until it had proof of the European non-member States' interest.
13. Europe was incapable of preventing war in former Yugoslavia. It was only normal that the United Nations should take responsibility for setting up the International Criminal Court. However, prevention is a pressing problem for Europe. The events that have taken place in the Balkans since 1991 show the potential dangers in the human rights sphere which Europe must master as of now. Europe has always been a trailblazer in the field of protection of human rights. Especially this year, which - to borrow the expression used by Mr Jurgens in his report on behalf of the Committee on Migration, Refugees and Demography - marks one of the lowest points in the history of respect for international humanitarian law in Europe, Europe must not abandon that important role.
14. The new mechanism must, in a way, remedy a shortcoming: the fact that it is not possible to open the European Convention on Human Rights for signature and ratification by States not members of the Council of Europe. Rule 55a of the Assembly's Rules of Procedure, which stipulates the conditions to be complied with by European non-member States in order to be granted special guest status, should be amended to include a new condition - that of recognition of the protection mechanism by countries seeking special guest status.
15. The recent charges of genocide and other atrocities brought against perpetrators of war crimes by the ad hoc tribunals for the former Yugoslavia and for Rwanda show the importance of having independent courts capable of translating the international community's loathing of war crimes into judicial action. However, the tribunals' efficiency is further proof that a permanent court is needed to prosecute the perpetrators of crimes against humanity, no matter where these are committed, in situations where the national courts are incapable of taking measures or refuse to do so. The events in Kosovo and elsewhere further strengthen the case for such a court.
16. Since the start of the events in 1991 three million people have been forced out of their homes in the territory of former Yugoslavia, and some 200,000 people have been killed. Serb ethnic cleansing - the plague of Bosnia and Herzegovina - continued in Kosovo, and military intervention was the only means of preventing a new humanitarian disaster. The horrors of the massacres in Srebrenica - which took place only a few miles away from the UN's peace-keeping troops, who were obliged to stand by and do nothing - and in Drenica compel us to take action at a judicial level.
17. International law must be respected, whether the law of war, the law of the 1949 Geneva Convention on protection of civilian populations or that of any other international legal instrument which might be deemed applicable. In this connection, mention should be made of the United Nations Convention on the prohibition of anti-personnel mines of 1997.
18. The Assembly might ask the Council of Europe Commissioner for Human Rights to take steps, under his or her terms of reference, to promote effective observance of international humanitarian law.
19. Where a serious breach of international humanitarian law has been alleged, the burden of proof falls on the competent national or international court in which the person accused is brought to trial. States parties to the Geneva Conventions are obliged either to bring perpetrators of violations before their own courts or to extradite them. The principle of aut dedere aut iudicare must be applied. The obligation to repress grave breaches exists irrespective of the perpetrator's nationality and the place where the offence was committed: this is the very essence of the principle of universal jurisdiction. The Council of Europe must do all that it can to remind member States of their obligations, as the Assembly did recently in its Recommendation … (1999) on European democracies against terrorism.
20. Despite this obligation, States are very reluctant to take their nationals to court and even more so to hand them over to the courts of a country with which they are (or were) in conflict. Countries also have misgivings about bringing perpetrators of breaches of international humanitarian law before judges whose cultural backgrounds differ from their own.
21. There is a pressing need for States to guarantee the dissemination of international humanitarian law and observance thereof. Parliamentary representatives in States members of the Council of Europe have a special responsibility to ensure that national law is adapted to allow effective application of the four Geneva Conventions and the protocols thereto. It is necessary not only to set up national commissions to monitor and enforce compliance with humanitarian law, but also to establish national structures to co-operate with the future International Criminal Court, as provided in that court's statute.
22. I wish to conclude with the following remark, for which there should normally be no need: Human rights and fundamental freedoms are universal and must be respected in all circumstances. It is the role of the Council of Europe to ensure that this principle is not forgotten - even in time of war.
II. AMENDMENTS TABLED BY THE COMMITTEE
23. The Committee on Legal Affairs and Human Rights concurs with the report by the Committee on Migration, Refugees and Demography, but wishes to table the following amendments to the draft recommendation.
Add a new sub-paragraph after paragraph 8 ii.a:
"to sign and ratify the European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes adopted in 1974;"
In sub-paragraph c) of paragraph 8 ii replace the word "monitoring" with the words "monitoring compliance with".
In sub-paragraph d) of paragraph 8 ii insert the words "without prior agreement" between "jurisdiction" and "of the International Fact-Finding Commission".
Add the following sub-paragraph to paragraph 8 ii:
"to introduce the aut dedere aut iudicare1 principle in their criminal law;"
1 That is to say: "either extradite or try".
Add the following sub-paragraph to paragraph 8 ii:
"to sign and ratify as soon as possible the United Nations Convention of 1997 prohibiting anti-personnel mines;"
24. The Committee also proposes the following order:
"Regard being had to its Recommendation … (1999) on respect for international humanitarian law in Europe, the Assembly instructs its Committee on Rules of Procedure and Immunities to amend its Rules of Procedure so as to include respect for international humanitarian law among the conditions for granting observer or special guest status with the Assembly."
Reporting committee: Committee on Migration, Refugees and Demography
Committee for opinion: Committee on Legal Affairs and Human Rights
Reference to committee: Doc 7669 and Reference No. 2125 of 7 November 1996
Opinion approved by the committee on 2 September 1999
Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge
1 See Doc 8462 of the Committee on Migration, Refugees and Demography.
2 See Recommendation 1189 (1992) on the establishment of an international court to judge war crimes and Recommendation 1218 (1993) on establishing an international court to try serious violations of international humanitarian law.