C Explanatory
memorandum by Mr Dorić, rapporteurNote
1 Introduction
1. As noted by the motion for a recommendation,
Note the
Parliamentary Assembly unambiguously declared in 2007 that individual
accountability for war crimes committed during the conflicts on
the territory of the former Yugoslavia “is an indispensable ingredient
in the process of reconciliation for the victims, communities and countries
concerned”.
Note In
order for justice to be done, the Assembly concluded, impunity must
be fought “resolutely”. As part of its Completion Strategy,
Note the
International Criminal Tribunal for the former Yugoslavia (ICTY)
set a cap on the persons and crimes it would prosecute and transferred
the other cases before the competent national jurisdictions.
Note Hence, since 2005, the states on the
territory of the former Yugoslavia (“the states concerned”) bear
the primary responsibility for ensuring accountability for both
individuals and crimes not addressed by ICTY proceedings.
Note
2. The motion repeated the Assembly’s observation that effective
prosecution required co-operation between the states concerned,
reiterating its call that these states remove legal obstacles that
impede justice. In particular,
Resolution 1564 (2007) cited the
ban on extradition of nationals,
Note including
the “misuse of the acquisition of multiple nationality”
Note and transfer of serious
criminal proceedings,
Note as legal obstacles that should
be lifted. As noted by the ICTY Prosecutor
Note and
the European Commission,
Note impediments
to co-operation continue to exist,
Note jeopardising
the effectiveness of the ICTY’s Completion Strategy.
Note The ICTY Prosecutor called on
the states concerned to “urgently address these important issues”
Note while the European Commission
recommended that steps be taken towards extradition agreements covering
war crime cases.
Note
3. Following the above-mentioned recommendations, co-operation
between the prosecutors of several of the states concerned has contributed
to the prosecution of persons accused of war crimes in a state refusing to
extradite its citizens, primarily through the transfer of information
and evidence as well as by overcoming impunity by recognising foreign
judgments.
4. Notwithstanding the primary responsibility of the states concerned,
the motion highlighted that member states and observers of the Council
of Europe also have an obligation to assist in ending impunity because persons
suspected of war crimes have left the territory of the former Yugoslavia
and have found refuge elsewhere in the world. It observed that,
in several cases where a state concerned requested extradition of
a person suspected of war crimes, third countries neither extradited
nor prosecuted the sought person found on their territory.
5. This report examines several aspects of the nature and extent
of the obligation of member states and observers to aid the states
concerned in ensuring accountability for war crimes.
6. First, it presents data provided by several of the states
concerned relating to their war crime extradition requests. In order
to provide an expanded discussion, this report also relies on information
about decisions on extradition requests obtained from public sources.
Member states have been presented with extradition requests from
the states concerned for persons residing in, transiting through,
and visiting their countries, including those on official business
or diplomatic mission as a representative of one of the other states concerned.
7. Second, the report reviews the norms applicable to extradition
requests as set out in Council of Europe treaty law, namely the
European Convention on Extradition (ETS No. 24) (“the convention”)
and its three protocols (ETS No. 86, ETS No. 98 and CETS No. 209),
as well as the reservations lodged thereto by member states. All
member states of the Council of Europe as well as two non-members
Note have
ratified the convention. Thirty-seven member states
Note and
one non-member state
Note have ratified the Additional Protocol
while 40 member states
Note and one non-member
state
Note have
ratified the Second Additional Protocol. None of the five observer
states of the Council of Europe
Note have
ratified either the convention or its protocols. Of note, a Council of
Europe expert body
Note is currently working on
modernising the convention, building on the 2002 “New Start” report
addressing developments in international co-operation in criminal
matters
Note and consistent with recommendations
of an expert report adopted by the European Committee on Crime Problems
(CDPC) in 2006.
Note
8. The convention’s general rule of compulsory extradition is
subject to significant exceptions and conditions as specified in
the convention and protocols. In addition, member states have lodged
numerous reservations
, which
further define how they will evaluate extradition requests, including
the application of other standards or obligations, in particular
humanitarian and human rights concerns. Taken together, these documents
reveal a tension between different approaches by member states to
the principles applicable to extradition and the weight given to
various factors. Namely, while an approach that values ending impunity above
all else would tend to favour extradition regardless of other factors,
an approach that additionally emphasises humanitarian and human
rights concerns related to the accused person would tend to limit extradition.
Note Hence,
the convention and its protocols are subject to different interpretations
by member states. Assessment of a decision rendered on a specific
extradition request could require a country-specific inquiry into
ratification status vis-à-vis the protocols, reservations lodged,
and national law. For requests to non-parties to the convention,
assessment could require examination of national law as well as
any bilateral treaty related to extradition.
9. Both protocols provide for the engagement of the European
Committee on Crime Problems in the settlement of protocol-related
disputes between member states.
Note However,
the convention has no such provision since the CDPC did not exist
when the convention was being prepared.
Note
10. Third, the report examines the impact on extradition of international
treaty law relatedto the
personal immunity from foreign jurisdiction of diplomats and other
state officials. It also notes the related recommendations by the
Secretary General for standard-setting by the Council of Europe
in order to establish exceptions to state immunity in cases of serious
human rights violations focusing on the possibility of waiver.
11. Fourth, it considers the issue of prosecution by third states,
including through the convention mechanism, which must be triggered
by the requesting state, when extradition is refused due to citizenship. However,
the states concerned provided no information as to whether or how
often they requested prosecution by a third country rejecting extradition.
This section further discusses subsequent support by Council of
Europe expert bodies for full use of the principle of aut dedere aut judicare.
12. The report also stresses the fact that, besides the above-mentioned
convention and protocols, there are insufficient respect and implementation
of many other existing conventions and international agreements
in this field. Although the Assembly has on several occasions recommended
that member states ratify the European Convention on the Non-applicability
of Statutory Limitation to Crimes against Humanity and War Crimes
(ETS No. 82),
Note only
five members have done so.
Note Somewhat less than
half of the Council of Europe member states (including all of the
states concerned) have ratified the United Nations convention on
the same issue.
Note Equally important
is co-operation with the International Criminal Court (ICC). Since
its adoption in 1998, the Rome Statute of the ICC has been ratified
by only 108 states. Regrettably, eight Council of Europe member
states and two observer states have not yet ratified it.
13. Finally, the report provides recommendations for possible
follow-up action, given the likelihood that the number of requests
by the states concerned for extradition of war crime suspects, to
each other as well as third countries, will increase in coming years.
2 Data
on war crime extradition requests
14. Information has been provided by the states concerned
relating to their extradition requests for persons suspected of
war crimes.
NoteNote Bosnia
and Herzegovina, “the former Yugoslav Republic of Macedonia” and
Serbia provided numerical as well as other information about extradition
requests.
Note Croatia provided numerical information
about suspects located in third countries, persons under investigation,
charged and convicted, and discussed four specific extradition requests,
three of which were cited in the motion.
Note The information
provided by the states concerned omits extradition requests cited
in public sources, including media and reports by international
organisations. The states concerned did not provide information
about the number of pending international arrest warrants for war
crime suspects, making it difficult to predict the continuing impact
of this issue in third countries. However, based on information
provided by Croatia, it is foreseeable that large numbers of suspects
will be sought in third countries.
Note
1. Total number of extradition requests or international arrest
warrants concerning persons located in various states:
- Bosnia and Herzegovina: 23 extradition
requests;
- Serbia: 4 extradition requests;
- Croatia: 70 persons “located”;
- “The former Yugoslav Republic of Macedonia”: 1 extradition
request.
2. Extradition requests to other states of the former Yugoslavia:
- Bosnia and Herzegovina → 13:Serbia (6); Croatia (5); Montenegro
(1); Slovenia (1);
- Serbia → 1: “the former Yugoslav Republic of Macedonia”
(1);
- Croatia → 29 persons “located” – Serbia (15); Bosnia and
Herzegovina (13); Montenegro (1).
3. Extradition requests to third states (among the states
mentioned only Australia is not a member/observer to the Council
of Europe):
- Bosnia and Herzegovina
→ 10: Netherlands (2); Germany (1); Norway (1); Italy (1); United
States (4); Australia (1);
- Serbia → 3: Norway (1); Austria (1); Italy (1);
- Croatia → 41 persons “located”: United Kingdom (4); Russian
Federation (3); Austria (1); Greece (1); Netherlands (1); Norway
(1); United States (12); Canada (4); Australia (14);
- “The former Yugoslav Republic of Macedonia” → Germany
(1).
15. The rapporteur has unfortunately not yet received
data from all the states of the former Yugoslavia.
16. To date, only five persons have been extradited to Bosnia
and Herzegovina from Serbia and three from the United States,
Note while one person was extradited to Serbia
from Norway and one person to “the former Yugoslav Republic of Macedonia”
from Germany.
17. Public information indicates that at least 40 to 50 persons
were arrested in third countries between 2002 and 2009 on the basis
of extradition requests by Croatia for war crime suspects.
Note At least 21 extraditions were granted
and suspects surrendered including by Greece (2), Italy (1), United
Kingdom (2),
Note Serbia
(2), Germany (4), United States (1), Bulgaria (1), Austria (2),
Bosnia and Herzegovina (2), Switzerland (2), Slovenia (1), and Hungary
(1). Norway granted extradition of one suspect, but surrendered
this individual to Serbia, concluding that the concurrent charges
in Serbia were for more serious crimes. Australia and the Netherlands each
extradited one person accused of war related murders, one with consent.
18. Only Bosnia and Herzegovina provided information about outcomes
after extradition.
Note It also mentioned several
extraditions which were denied for procedural reasons. For example,
Australia did not consider Bosnia and Herzegovina an “extradition
country” for purposes of national law, which designation was subsequently changed.
Note Similarly,
the United States did not extradite a person considered by Bosnia
and Herzegovina as a “suspect,” rather than an “accused”. In both
cases, it would appear that Bosnia and Herzegovina was able to renew
the request.
19. Citizenship of the suspect was the most frequently cited reason
for denial of extradition (see Section 3.6). For example, citizenship
was cited as the basis for denial of extradition in 40% of Bosnia
and Herzegovina’s denied extradition requests. Bosnia and Herzegovina
did not provide any information about when the citizenship of the
other state had been acquired in relation to its extradition request.
Neither did it indicate whether it utilised its option under the
convention to request that the state refusing to extradite its citizen conduct
its own prosecution (see Section 6).
20. At least 14 extraditions requested by Croatia were denied.
Five were denied by Bosnia and Herzegovina, four due to the suspect’s
citizenship and one due to an ongoing proceeding, which concluded
that charges were unfounded. Several countries denied extradition
due to fair trial concerns, including Italy (1)
Note and Austria (1). It appears that three
other extraditions may also have been denied on this basis, including
Austria (2) and Norway (1) (see Section 4.2). Canada rejected an
extradition request after its immigration service denied the government’s
request to vacate refugee status.
Note The
United States denied a request due to the expiration of the statute
of limitations under applicable law and bilateral treaty (see Section
3.4) . Bulgaria denied a request based on diplomatic immunity (see
Section 4) and the Russian Federation denied a request based on
the convention bar against extradition where discriminatory prosecution
is a concern
Note (see Section 3.2). In addition,
Croatia withdrew one international warrant on which a suspect had
been arrested in Bosnia and Herzegovina due to the expiration of
the statute of limitations on the execution of sentence (see Section
3.4).
21. Finally, it should be emphasised that, even when extraditions
were granted, in some cases, the extradition process lasted five
to ten years, or more. This of, course is, of great importance concerning
the needs of organising a trial after so many years.
3 Exceptions to and
conditions on extradition foreseen in the convention
22. While the convention articulates the principle of
compulsory extradition,
Note in combination with its
three protocols, it specifies exceptions to this general rule as
well, as conditions that must be met if extradition is to be granted.
Some convention exceptions are mandatory upon the requisite finding,
such as non-extradition for political offences, discriminatory prosecution
or punishment, certain prior final judgments (
ne
bis in idem), and immunity due to lapse of time. In addition,
the Second Additional Protocol establishes conditions that must
be satisfied by the requesting party before extradition on the basis
of judgments
in absentia.
23. Other convention exceptions are optional at the discretion
of the requested state such as non-extradition of citizens, for
offences committed on its territory, where it is conducting proceedings
for the same offence, or if it decided either not to institute or
to terminate proceedings for the same offence.
24. As a general rule, when extradition is granted, proceedings
in the requesting state are limited to those offences for which
the person was extradited under the rule of speciality.
NoteNote
3.1 Extradition prohibited
for political offences, but international humanitarian law obligation unaltered
25. The convention prohibits extradition for an offence
determined by the requested state to be a political offence or an
offence connected with a political offence.
Note Acknowledging that the
prohibition on extradition for political offences does not affect
the obligation of states under other international conventions,
Note the convention supports
extradition where offences involve violations of the Geneva Conventions
and the Genocide Convention.
Note One
member explicitly declared that political offences do not include
crimes against humanity, violations of the Geneva Conventions and
other international crimes.
Note
26. The convention explicitly excluded the “taking or attempted
taking of the life of a head of state or a member of his family”
from the definition of political offence.
Note Ten members reserved the
option to determine in the light of the circumstances of an individual
case whether such crimes against a head of state constituted a political
offence,
Note while
one member state reserved the option to extradite for such offences
only to state parties to another Council of Europe convention.
Note One
member state declared additional crimes it considered as excluded
from the definition of political offence.
Note
27. The Additional Protocol explicitly excluded crimes against
humanity, violations of the Geneva Conventions, and other violations
of the laws of war from the definition of political offence.
Note During
preparation of the Additional Protocol, some states objected that
it was inappropriate to conclude in advance that certain offences
could never be considered “political offences” and that this question
should be left to the requested state in the light of the facts
of each individual case.
Note Hence,
the Additional Protocol permits members to opt out of this provision
as part of ratification. Among the member states, 40% have either
not ratified the Additional Protocol
Note or,
while ratifying, took advantage of the option to reject this specific
provision.
Note
28. None of the states concerned indicated that extradition requests
had been denied on the grounds that the war crime charges for which
a person was sought were considered political offences by the requested
state. However, Croatia cited two examples in which it identified
the decision denying extradition as “a political one”.
Note
3.2 Extradition prohibited
for discriminatory prosecution or punishment
29. The convention prohibits extradition if the requested
state “has substantial grounds for believing that a request for
extradition for an ordinary offence has been made for the purpose
of prosecuting or punishing a person on account of his race, religion,
nationality or political opinion or that that person’s position
may be prejudiced for any of these reasons”.
Note The convention specifies only two
categories of criminal offences – political offences and ordinary
offences. While war crimes and crimes against humanity are not “ordinary”
in the usual meaning of that word, for the purposes of the convention,
as made explicit by the Additional Protocol, they would in general
be considered ordinary offences, subject to the prohibition against
extradition, which would lead to discriminatory treatment by the
requesting state. Reportedly, the Russian Federation cited this provision
as the basis for denying at least one extradition request by Croatia,
Note which
decision Croatia described as “a political one”.
Note
30. The application of a related standard by Australia – a non-member,
non-observer state – to deny a request for the extradition of an
Australian citizen of Serb national origin for war crimes, sheds
light on the types of factors considered by states concerned about
possible discriminatory treatment by the requesting state after extradition.
Note
3.3 Prior final judgment
for same offences – ne bis in idemNote
31. The convention, read together with the Additional
Protocol, differentiates between final judgments issued by the requesting
state and those issued by a third state for the purposes of determining
the impact of the principle of ne bis
in idem (“not twice for the same”).
32. The convention prohibits extradition if the requested state
has previously passed a final judgment (namely acquittal, pardon,
or conviction)
Note against
the same person in respect of the same offences.
Note For
the purposes of the convention, a “final judgment” indicates that
all means of appeal have been exhausted.
Note A judgment
in absentia is not considered to
be a final judgment
Note (see also Section
3.5). In contrast, extradition is discretionary if the requested
state has decided either not to institute criminal proceedings or
has terminated such proceedings. However, if relevant new facts
subsequently become known, extradition is required unless the requested
state initiates its own proceedings.
Note
33. As a general rule, the Additional Protocol prohibits extradition
if a third state contracting party to the convention previously
issued a final judgment for the same offences, where that judgment
satisfied certain additional conditions.
Note Even where a third state contracting
party has issued a final judgment that meets the additional conditions,
extradition is optional if the offences were committed on the territory
of the requesting state.
Note In
addition, under the Additional Protocol, decisions by third state
contracting parties which preclude or terminate proceedings do not
limit extradition.
Note However, the Additional Protocol’s
“minimum rules” on the impact of third state judgments can be superseded
where national law gives broader effect of
ne
bis in idem to foreign judgments.
Note Similarly, several members reserved
the option under the convention to prohibit or retain discretion
to refuse extradition where final judgments had been issued regarding
the same offences by a third state,
Note some
states further qualifying this by adding that, in the event of a
conviction, the sentence had also to have been served or suspended.
Note More than 20% of the member states
have not ratified the Additional Protocol.
Note
3.4 Extradition prohibited
where immunity due to lapse of time
34. War crimes on the territory of the former Yugoslavia
occurred between ten and twenty years ago. The ICTY concluded its
investigations five years ago. The convention prohibits extradition
where under the law of either the requesting or requested state,
the sought person has become immune from either prosecution or punishment
due to the passage of time.
Note One state reserved the option to refuse
if, given the nature of the offence, extradition after the passage
of time from either the crime or when the person became at large
would be “unjust or oppressive”.
Note
35. Although the Assembly has recommended several times that member
states (and specifically the states concerned) ratify the European
Convention on the Non-applicability of Statutory Limitation to Crimes
against Humanity and War Crimes (ETS No. 82),
Note only
six members have done so.
Note Less than half
of the Council of Europe member states (including all of the states
concerned) have ratified the United Nations convention on the same
issue.
Note
36. Information available from public sources indicates that some
charges and verdicts have apparently lapsed due to the passage of
time.
Note Unfortunately,
these examples suggest that, as the years pass, there could be some
circumstances under which additional extradition requests could
be denied on similar grounds.
3.5 Extradition based
on in absentia judgments requires effective retrial remedy
37. Several member states have been presented with requests
from Croatia to extradite on the basis of a conviction
in absentia. The Second Additional
Protocol permits the requested state to make extradition based on
a judgment
in absentia,
conditional
upon
the receipt of assurances from the requesting state “considered sufficient
to guarantee to the person claimed the right to a retrial which
safeguards the rights of defence”.
Note The requesting state must
ensure “not merely the availability of a remedy by way of retrial
but also the effectiveness of that remedy”.
Note Approximately
20% of the member states have either not ratified the Second Additional Protocol
Note or
rejected this provision.
Note In
addition, several member states lodged reservations specific to judgments
in absentiaNote (see Section 4.2).
38. Decisions by member states in several cases were based on
judgments
in absentia.
Note,
Note,
Note
3.6 Non-extradition
of citizens permitted
39. The convention allows member states to refuse extradition
of their citizens even where national law permits such extradition.
Note Extradition
can be denied on the basis of nationality without a specific reservation or
declaration to the convention.
Note Nonetheless, many members have
lodged declarations or reservations underscoring their refusal to
extradite nationals, retaining discretion to refuse extradition
or otherwise making extradition subject to certain conditions.
Note Several
states indicate more openness to extradition of a national who is
also a national of the requesting state where he or she permanently
resides
Note or on the
basis of reciprocity, including when additional conditions are satisfied.
Note Several
states, while refusing extradition of nationals for enforcement
of criminal penalties, permit extradition upon the condition,
inter alia, that once criminal proceedings
conclude, the citizen is transferred back if a criminal sanction
involving deprivation of liberty is ordered.
Note Croatia recently changed its constitution
to allow its citizens to be extradited to other states when this
is specified in international agreements.
40. As noted above, Assembly
Resolution 1564 (2007) called on
the states concerned to “immediately lift the ban on the extradition
of nationals charged with committing war crimes”.
41. A Council of Europe expert body has acknowledged that the
extradition of nationals “requires both a higher degree of confidence
among the states concerned and the streamlining of the relevant
procedures with a view to guarantee security and foreseeability”.
Note It
notes, however, that the failure to do so presents “the danger to
create impunity where none is intended” (see Section 6).
3.6.1 “National” defined
42. Utilising the option provided by the convention,
Note most member states lodged declarations
specifying their definition of “national”. Some states include only
those persons who have (or would be entitled to) citizenship as
defined by national law,
Note a
few included those with multiple or dual citizenship (including
that of their own country).
Note Other member states define
“nationals” more broadly to also include citizens of specified third
countries, in particular if extradition is sought by a country other
than those named, non-citizens with permanent domicile, foreigners
sufficiently integrated to be subject to in-state prosecution, including without
loss of residence privileges upon conviction, specified non-citizens
who are not citizens of another state, and persons granted political
asylum.
Note
3.6.2 Time of citizenship
determination
43. The convention provides that, as a general rule,
citizenship “shall be determined as at the time of the decision
concerning extradition”.
Note However, the convention
also foresees that the requested state could “first recognise” the
person in question as a citizen after its decision to extradite
but prior to surrender, in which case it would also be entitled
to refuse to extradite on the basis of nationality. The convention
thus permits the acquisition of citizenship during extradition proceedings
for the purpose and/or with the effect of avoiding extradition.
Despite the explicit language of the convention, some states specify
the relevant time period for purposes of determining citizenship,
including the time of the crime,
Note receiving the request for extradition,
Note the
decision on extradition,
Note or surrender.
Note One
state indicated that the time of the crime would not be taken into
account in the determination of citizenship.
Note
44. Noting examples of persons obtaining citizenship in one state
of the former Yugoslavia for the purpose of avoiding extradition
on war crime charges to another of these states, the Assembly previously
urged the states concerned to “carefully examine applications for
nationality and not grant it to anyone indicted for a war crime
in another country”.
Note,
Note Newly
acquired citizenship of other member states has also reportedly
been the basis for denial of extradition, including a case cited
in the motion.
Note The convention provides a mechanism for
seeking prosecution by the state denying extradition on the basis
of citizenship (see Section 6).
3.7 Non-extradition
permitted where pending proceedings for same offence or competing requests
45. The convention allows a requested state to deny extradition
where it has ongoing proceedings for the same offence as that for
which extradition is sought.
Note
46. The convention also addresses the related issue of how a requested
state should resolve concurrent requests from more than one state
for the same person.
Note Such decisions should
be made in the light of all the circumstances, in particular the
relative seriousness and place of commission of the offences, the respective
dates of the requests, the nationality of the person sought, and
the possibility of subsequent extradition to another state. Examples
of concurrent requests based on proceedings in more than one of
the states concerned were reported by the Serbian delegation. The
two denied extraditions reported were in cases in which another
unspecified state also requested extradition and requests were granted.
An extradition request granted by Norway, which involved concurrent
competing requests from Croatia and Serbia, resulted in both requests
being accepted while the person sought was surrendered to Serbia.
Note
47. As noted above, the ICTY Prosecutor recently observed that
“parallel investigations remain a problem where, due to the absence
of a legal basis for co-operation, evidence is held by one country,
but the suspect resides in another country”.
Note This
situation makes it more likely that Council of Europe member states
will be presented with an increasing number of concurrent and competing
requests for extradition from the states concerned.
4 Reservations impose
additional exceptions and conditions
48. As permitted by the convention,
Note contracting
parties have lodged a significant number of reservations
, which further define how they
will evaluate extradition requests. These reservations are primarily
lodged either to the Article 1 obligation to extradite or to the
operation of the convention, although some are also lodged to other
specific provisions. The most common reservations address humanitarian
concerns related to the status of the person sought and human rights
concerns related to the institutions and proceedings in the requesting state.
One state reserves the option to refuse if extradition would be
adverse to its national security/sovereignty.
Note
4.1 Humanitarian bars
to extradition
49. A considerable number of states parties have reserved
the right to deny extradition where it would be likely to have exceptionally
grave/serious consequences (cause particular hardship) for the person
sought.
Note Factors considered
include age (both youth and advanced age), state of health, personal
motivation, or other conditions or circumstances (personal and otherwise),
including those which would make extradition unreasonable or otherwise
incompatible with humanitarian obligations. Several states indicated
that this humanitarian interest would nonetheless be considered
in the light of the nature of the offence and interests of the requesting
state. During the drafting of the convention, a suggestion to include
a provision explicitly foreseeing refusal of extradition for humanitarian
reasons was rejected in favour of allowing states to lodge a reservation.
Note Reservations lodged
by member states largely reflect the language of the rejected proposal.
At least one state reserved the right to deny extradition sought
for persons granted political asylum,
Note whereas, as
discussed above, another member accomplished this same goal by defining
political refugees as nationals.
Note
4.2 Human rights bars
to extraditionNote
50. As part of their review of extradition requests,
a number of states reserve the discretion to assess in the light
of basic human rights guarantees not only the structures and proceedings
of the judiciary in the requesting state but also the quality of
the evidence or charges against the individual suspect. One state
indicated that its Council of Europe human rights obligations would
serve as the prism through which it would give effect to the convention.
Note
4.2.1 Type of tribunal
51. Nearly half of the states parties explicitly limit
extradition to decisions issued and proceedings conducted by an
“ordinary” criminal court. These states prohibit or reserve the
right to refuse extradition for trial by a “special”, “extraordinary”
or “provisional” court (provisionally or exceptionally empowered
to deal with such offences) or ad hoc tribunal,
Note including
one created for that person’s particular case, or summary proceedings,
or for purposes of enforcement of either a detention order or sentence
of such a court.
Note Some states reserve
the right to make extradition conditional upon receiving adequate
assurances from the requesting state that the person will only be
tried in an “ordinary” court.
Note One state,
while countenancing extradition to such a court or for such proceedings,
would nonetheless refuse if there were grounds for supposing that
the proceedings failed to provide minimum fair trial guarantees
to the accused.
Note All war crime proceedings in the
states concerned are conducted by courts authorised by law to preside
over criminal cases, although the type and specific jurisdiction
of the courts vary. As a result, this common reservation should
not represent an obstacle to extradition.
4.2.2 Treatment of the
accused, including death penalty, life sentences, and prison conditions
52. A few states parties reserve the right to refuse
extradition if there are sufficient “grounds for supposing” that
the person sought already was or would be, if extradited, subject
to torture, cruel, inhuman, or degrading treatment or punishment,
Note or
persecution on specified impermissible grounds akin to those cited
in the exception to extradition articulated in Article 3.2 of the
convention.
Note At
least one state reserves the right to refuse extradition if, upon
conviction and imposition of a sentence involving deprivation of
liberty, the person sought would serve his or her sentence in inhuman
conditions.
Note This
is also in line with the case law of the European Court of Human
Rights, which prohibits someone’s extradition to a country where
he or she faces a real risk of being subjected to treatment contrary
to Article 3 of the European Convention on Human Rights.
Note
53. A few states specify that extradition will be refused where,
upon conviction, either a life sentence or the death penalty could
be imposed as punishment.
Note However,
none of the states concerned use either of these punishments for
war crime convictions.
4.2.3 Evidence supporting
the extradition request
54. The convention specifies the procedure for and content
of extradition requests.
Note If
the information is insufficient to render a decision, the requested
state must request additional information and can set a time limit
within which it must be provided.
Note The
importance of adequate information for the purposes of identifying the
person sought is underscored by the Netherlands’ refusal to extradite
to Bosnia and Herzegovina due to mistaken identity.
55. A number of states parties lodged reservations to the provisions
setting out these procedures and further specified the quality of
evidence they require prior to granting an extradition request,
such as evidence (
prima facie or
otherwise) establishing that the person sought has committed the
offence (or a sufficient presumption thereof),
Note or where indicated by special circumstances,
evidence establishing a sufficient presumption of guilt.
Note Several
states parties reserved the option to assess whether the sentence
or arrest warrant was “manifestly ill-founded”.
Note Other states
lodged similar reservations to the general obligation to extradite indicating
that extradition would be granted only if its courts concluded that
the evidence was sufficient to warrant trial in the requested state.
Note
4.2.4 Quality of the
charges or conduct of the requesting state
56. Several states reserve the right to refuse extradition
as “unjust or oppressive” due to the “trivial” nature of the offence
Note or because the accusations against
the sought person were not made in “good faith in the interests
of justice”.
Note
4.2.5 Fair trial standards
57. Some states reserve the right to refuse extradition
if they deem that minimum fair trials standards would either not
be satisfied in prospective proceedings or had not been provided
in prior proceedings. Hence, these states may refuse if the tribunal/proceedings
would not ensure fundamental guarantees in particular the rights of
the defence and conditions “internationally recognised as essential
to the protection of human rights,” including those that must be
afforded to criminal defendants by parties to the European Convention
on Human Rights (ECHR) and its protocols as well as the International
Covenant on Civil and Political Rights.
Note At
least one state reserves the right to refuse extradition when a
sentence is deemed to be based on “manifest error”,
Note while
several indicate specific concern about extraditions for the purposes
of enforcement of a conviction rendered
in
absentia,
Note in particular when no remedy remains
available and the extradition could subject the person to a penalty
without having been able to exercise specific rights of defence
provided by the ECHR
Note (see Section 3.5). Public information
indicates that several extradition requests, including one cited in
the motion, were rejected due to fair trial concerns (Sections 2
and 3.5).
5 Personal immunity
from foreign jurisdiction
58. Diplomats, persons on special mission and certain
high-ranking government officials are shielded from the criminal
jurisdiction of foreign states even when suspected of or charged
with war crimes. Specified officials are provided immunity by international
treaty law to which their states are party, such as the Vienna Convention on
Diplomatic Relations
Note and the New York Convention on Special
Missions.
Note The immunity of officials from
non-party states to the above treaties derives from customary international
law.
Note This
type of personal immunity constitutes a complete procedural defence
to the exercise of criminal jurisdiction, covers public or private
acts committed by limited specified categories of officials while
in office or prior to assuming office, ends with the termination
of the official function, and applies only between sending and receiving
states and third states through which the official transits.
Note
59. As provided by the Vienna Convention on Diplomatic Relations,
the purpose of diplomatic privileges and immunities is “to ensure
the efficient performance of the functions of diplomatic missions
as representing States,” which immunity can be waived only by the
sending state.
Note The
International Court of Justice (ICJ) has observed that the Vienna
Convention on Diplomatic Relations “reflects customary international
law” for the purposes of which immunity is accorded to “ensure the
effective performance of [an official’s] functions on behalf of
their respective States”.
Note The ICJ concluded that, for an official deemed
to enjoy immunity, arrest in a third state on a criminal charge
“clearly” prevents the exercise of official functions. The ICJ considered
the nature of the official’s function in order to determine the
extent of immunity when abroad.
60. Given the inviolability of personal immunity, third states
have limited options in the absence of a waiver of immunity by the
sending state. If allegations of war crimes are known in advance,
the foreign state can request that the official not enter their
territory. If that person is already on its territory, a receiving
state can declare her or him
persona
non grata and request that the individual leave the country
immediately.
Note
61. The ICJ emphasised however that “immunity from jurisdiction
… does not mean that [an official] enjoys impunity in respect of
any crimes [he or she] might have committed”, highlighting that
immunity from criminal jurisdiction and individual criminal responsibility
are “quite separate concepts. While jurisdictional immunity is procedural
in nature, criminal responsibility is a question of substantive
law. Jurisdictional immunity may well bar prosecution for a certain
period or for certain offences; it cannot exonerate the person to
whom it applies from all criminal responsibility”.
Note Accordingly,
prosecution can proceed under certain circumstances: first, ensuring
accountability for crimes committed by officials with personal immunity
from foreign jurisdiction remains the responsibility of the home
state where they enjoy no such immunity. Second, immunity from foreign jurisdiction
ceases if waived by the sending state. Third, after the cessation
of the function that provides immunity, prosecution could be undertaken
by third states that otherwise have jurisdiction for crimes “committed
prior or subsequent to [an official’s] period in office as well
as in respect of acts committed during that period of office in
a private capacity.”
Note
62. Seeking to build on the ICJ’s finding that “immunity does
not equate with impunity”, the Secretary General of the Council
of Europe issued recommendations for standard-setting by the Council
of Europe for the purposes of establishing “clear exceptions to
state immunity in cases of serious human rights abuses”.
Note The goal would
be the adoption of a Council of Europe treaty on state immunity
and serious human rights violations focusing on the possibility
of waivers, including the definition of a procedure for obtaining
waivers in individual cases.
Note For the purposes of determining
the type of cases in which waiver would be considered, the Secretary
General noted that this could be done by reference to international
crimes and/or human rights norms.
63. Extraditions requested by Serbia and Croatia from third countries
where war crime suspects were visiting have been denied on the basis
of personal immunity. For example, in 2009 Bulgaria refused Serbia’s
request to extradite Agim Ceku, a former prime minister of Kosovo,
Note who
had been invited to visit, following similar refusals by other countries
over a period of years.
Note Similarly,
in 2005, Bulgaria denied Croatia’s request to extradite Cedomir
Brankovic who was visiting as part of a military delegation from
Serbia.
Note Information was not
available as to whether any criminal proceedings were undertaken
by the home state.
6 Prosecution by
a foreign state denying extradition
64. The motion reiterates
Recommendation 1427 (1999), which
in the specific context of respect for international humanitarian
law recommended that Council of Europe member states introduce the
aut dedere aut judicare (either
extradite or try)
principle
into their national legislation.
Note In
its 2001 reply, the Committee of Ministers stated that introduction
of this principle into national law was “a complex issue” being
discussed by the CDPC “within its present reflection on a new start
in co-operation in criminal matters in Europe”.
Note In 2002, the “New Start” report
discussed the
aut dedere aut judicare principle
as a means of reconciling sovereignty with transnational justice,
giving examples of how this balance had been met by several states.
Note In late 2005, a
Council of Europe expert body found that the principle of
aut dedere aut judicare “remains
a valid alternative to extradition”.
Note Consequently,
“both as an intermediate solution for facilitating an efficient
transnational justice system and also as an effective tool against
impunity, full use must be made of the principle of
aut dedere aut judicare, taking
at all times into consideration its character of complementarity
to the initial forum”.
Note Neither report provided
information as to the extent to which Council of Europe member and observer
states had incorporated the
aut dedere
aut judicare principle into national law.
65. When extradition is refused due to citizenship, the convention
provides a mechanism for avoiding impunity, which must be initiated
by the state whose request has been rejected. Namely, the requesting
state has the option to ask the requested state to undertake prosecution.
Note If such a request is made, the requested state
is obliged to “submit the case to its competent authorities” for
the purposes of determining whether proceedings are considered “appropriate”.
Note During the drafting
of the convention, a proposal, which would have mandated that a
requested state initiate criminal proceedings upon denial of extradition
due to citizenship, was rejected in favour of leaving this issue
at the discretion of the requesting state. Several States Parties recognise
in declarations the obligation (and intention) to prosecute nationals
for whom extradition is denied for at least some offences committed
abroad, as long as specified conditions are satisfied.
Note The states concerned did not
provide information as to the extent to which they have exercised
this option when confronted with denials of extradition.
66. Between the states concerned, pragmatic co-operation between
national prosecutors in terms of the transfer of information and
evidence has overcome impunity in some cases.
67. Briefly, besides the earlier signed agreements on co-operation
between the national/public prosecutors of the states of the former
Yugoslavia, recently the Supreme National Prosecutor’s Office of
Montenegro, the Croatian National Prosecutor’s Office and the Serbian
Special Prosecutor’s Office for War Crimes have recently signed
special bilateral agreements on co-operation in the prosecution
of war crimes. Croatia has also offered to sign such an agreement
with Bosnia and Herzegovina.
68. As a result of this co-operation, the Croatian Prosecutor
stated that his office had prepared and transferred information
and evidence concerning 24 war crimes to the Serbian Special Prosecutor’s
Office for War Crimes and in the case of one war crime to the Supreme
National Prosecutor’s Office of Montenegro. A total number of 49
persons were suspected of the above-mentioned war crimes but could
not be extradited to Croatia due to citizenship. However, on the
basis of the exchanged evidence and investigations undertaken, five
persons are now awaiting trial in Montenegro and 13 in Serbia. One
person has already been sentenced in Serbia and other cases are
being investigated.
69. The issue of recognition of foreign judgments has also been
revisited by some of the states concerned. In Sarajevo in February
2010, the Ministers of Justice of Bosnia and Herzegovina and Croatia
signed a bilateral agreement recognising foreign judgments and thus
preventing the misuse of multiple nationality in evading punishment
for crimes (including war crimes). In addition, the Croatian minister
stated that Croatia is in the process of amending its constitution
and would soon thereafter be in a position to sign a new agreement
with Bosnia and Herzegovina enabling the extradition of nationals
between the two states. The constitution was amended in June 2010.
70. When extradition is denied for reasons other than citizenship
or territoriality, prosecution by a foreign state would depend upon
the exercise of universal jurisdiction over persons and crimes which
have little or no connection to the state other than presence.
7 Recommendations
71. Assembly
Resolution
1564 (2007) stressed that impunity for war crimes is
not acceptable and that all measures should be undertaken to ensure
that war criminals still at large do not escape justice. The main responsibility
in this respect lies with the states concerned. However, it is clear
that the states concerned cannot fully succeed in combating impunity
when the perpetrators of war crimes are out of their reach in third countries.
The co-operation of all states in combating impunity for war crimes
is therefore crucial.
72. This was also underlined in the United Nations Security Council
Resolution 827 (1993) establishing the ICTY, which states (paragraph
4): “The Security Council decides that all States shall co-operate
fully with the International Tribunal and its organs in accordance
with the present resolution and the Statute of the International
Tribunal and that consequently all States shall take any measures
necessary under domestic law to implement the provision of the present
resolution and the Statute, including the obligation of States to
comply with request for assistance and orders issued by a Trial
Chamber under Article 29 of Statute.”
73. If the efficient prosecution of war crimes is to be ensured,
the same should hold true for co-operation with the states concerned
when the trials take place before their national courts, in particular
in the light of Assembly
Resolution
1564 (2007) (paragraph 15), which expressly confirms
the responsibility of the national courts to take over from the
ICTY and prosecute those responsible for war crimes who have not
yet been brought to justice.
74. The European Convention on Extradition, while allowing extradition
in cases of breach of the Geneva Conventions and international humanitarian
law, does not specifically address the issue of the extradition requirements
where war crimes are concerned. In this respect, given ongoing discussions
pertaining to modernising the convention, it would be useful for
the Assembly to obtain information as to the status and content
of those discussions, as related to the subject of the present report.
The Assembly should also recommend that the Committee of Ministers
advise the appropriate Council of Europe bodies including the Committee
of Experts on the Operation of European Conventions on Co-operation
in Criminal Matters of specific concerns about extradition related
to war crime suspects. In particular, the Assembly could recommend to
the Committee of Ministers that it request that the appropriate
Council of Europe bodies obtain and provide information as to the
extent to which member states have enacted the aut dedere aut judicare principle
and codified universal jurisdiction over war crimes and crimes against
humanity into national law.
75. It would also be of interest to analyse the reasons why Council
of Europe member and observer states have not signed and ratified
the conventions mentioned in the introduction to this report. Although
the Assembly has on several occasions recommended that member states
ratify the European Convention on the Non-applicability of Statutory
Limitation to Crimes against Humanity and War Crimes, only a few
member states have done so. Likewise with the ratification of the
United Nations convention on the same issue and also concerning
the ratification of the Rome Statute of the International Criminal
Court.
76. The Assembly has clearly stated, in respect of the states
concerned, that the bar to extradition of nationals constitutes
a serious obstacle to the course of justice. This report has, however,
confirmed that this restriction is common in the member states of
the Council of Europe.
77. Since citizenship of the suspect is the most frequently cited
reason for denial of extradition, all Council of Europe member states
should be urged to carefully examine applications for nationality
and not grant it to anyone indicted for a war crime in another country.
Furthermore, even when extradition is granted, the process itself
is sometimes extremely long (in some cases more than ten years),
making it more and more difficult to organise a trial after so many
years.
78. For the purposes of the follow-up to
Resolution 1564 (2007), it would
be helpful to obtain information about the status of the reform
of national law in regard to the ban on extradition of nationals
between the states concerned, including the “misuse of the acquisition
of multiple nationality”, and transfer of serious criminal proceedings,
which were identified as legal obstacles that should be lifted.
79. In their discussions of the ICTY Completion Strategy, the
UNSC and ICTY have not taken note of the direct role third countries
have had in the prosecution of war crimes committed in the former
Yugoslavia. The rapporteur believes that the Assembly could highlight
this concern in its resolution and bring it to the attention of
the appropriate representatives of the ICTY and UNSC for possible
reflection in future reports and statements by those bodies.
80. Council of Europe treaty law on mutual co-operation in criminal
matters, including the convention and its protocols, forms part
of the acquis of the European
Union. The rapporteur suggests that, where appropriate, the Assembly
explore possible joint initiatives with the European Parliament
related to enhancing co-operation between European Union member
states and the states concerned. This is a question of growing importance since
the states concerned are no longer a safe haven for war criminals
(see Section 6); the regional “impunity gap” must not be replaced
by an “impunity gap” anywhere else in the world.
81. To date, the information provided by the states concerned
regarding their extradition requests has been limited, especially
with relation to war crimes committed in Kosovo during the 1990s.
However, it is likely that the current scope of requested co-operation
is more extensive than reflected in this report and the future scope and
need for co-operation from Council of Europe members and observers
will likely increase. In order to gain a better understanding, further
information would be needed as well as continued attention to this
issue over time.
82. The rapporteur is of the opinion that this issue merits further
in-depth study by the states concerned and the Assembly. He therefore
proposes that the Assembly remains engaged with this issue (and
intends to draft a new motion for a resolution to this end) and
undertakes further study, including obtaining more extensive information,
especially concerning the issues related to the Council of Europe
and United Nations standards raised above, from all the member and
observer states by the end of 2011, with regard to the following:
- it would be fruitful to fill
in gaps in the information currently available about extradition
requests for war crimes suspects lodged by the states concerned.
Data collection would be facilitated if the states concerned maintained
information specific to extradition requests for war crimes or war-related
crimes separate from other types of extradition requests, as well
as harmonised information on this issue between and among different
bodies in the states concerned;
- in order to have a more complete picture of the possible
future scope of extradition requests, it would be helpful to obtain
information as to the number of international arrest warrants already
issued by each of the states concerned for persons suspected or
convicted of war crimes, or the number of warrants that would be
anticipated in the future. It seems likely that the number of such
pending and future warrants is likely to be in the thousands;
- it would also be useful to obtain information from all
Council of Europe member and observer states that have received
an international arrest warrant for a war crime case concerning
the extent to which it was dealt with, bearing in mind the Assembly
requirements on the particular care that should be given to combating
impunity for war crimes;
- it would be productive to obtain information from the
states concerned as to the extent to which they have used the option
available to them under the convention to request that states that
refuse to extradite due to citizenship conduct the prosecution,
or have used the dispute resolution mechanisms provided by the protocols;
- Council of Europe non-member and observer states should
also be invited to take all necessary measures in combating impunity
for war crimes in accordance with the initiatives of the Assembly
as well as those of the United Nations, especially in implementing
the provisions of Security Council Resolution 827 (1993) on establishing
the ICTY and in accordance with the latter’s statute.
