The obligation of member and observer states of the Council of Europe to co-operate in the prosecution of war crimes
- Parliamentary Assembly
- Assembly debate
on 26 January 2011 (5th and 6th Sittings) (see Doc. 12454, report of the Committee
on Legal Affairs and Human Rights, rapporteur: Mr Dorić). Text adopted
by the Assembly on 26 January 2011 (6th Sitting). See also Recommendation
1 The Parliamentary Assembly recalls,
as emphasised in its Resolution 1564 (2007) on the prosecution of offences
falling within the jurisdiction of the International Criminal Tribunal
for the former Yugoslavia (ICTY), that individual justice and accountability
for war crimes committed in the conflicts that occurred on the territory of
the states of the former Yugoslavia are essential components in
the process of regional reconciliation for the victims, communities
and states concerned. Hence, impunity must be fought resolutely.
2 In line with the Completion Strategy of the ICTY, Resolution
1564 (2007) underlined that the main responsibility to ensure accountability
of the perpetrators lies with the states concerned. In this context,
while reiterating the obligation to fully and effectively co-operate
with the ICTY, the Assembly underlined the importance of effective
domestic war crime trials and co-operation between the countries
concerned in ensuring the effective conduct of justice in the region.
3 The Assembly welcomes, in this context, progress made by the
states of the former Yugoslavia, narrowing the “impunity gap” through
increased co-operation, including the conclusion of agreements on bilateral
extradition and recognition of foreign judgments. The Assembly welcomes,
in particular, the co-operation between national prosecutors who
have concluded special bilateral agreements which have facilitated
the transfer of information and evidence and have proven to be effective.
4 However, it is clear that the states concerned cannot fully
succeed in combating impunity when the alleged perpetrators of war
crimes are out of their reach in third countries. Therefore, other
member and observer states must likewise fight impunity when persons
suspected of war crimes are found on their territories. These persons
must be either extradited or prosecuted in their countries of residence.
5 Consequently, co-operation between all states is essential,
as already underlined in United Nations Security Council Resolution
827 (1993) establishing the ICTY. It is crucial to avoid the regional
impunity gap being replaced by an impunity gap elsewhere in Europe
or in the world.
6 In respect to extradition, the Assembly has clearly stated
that the ban on extradition of nationals constitutes a serious obstacle
to the course of justice. The Assembly welcomes the fact that one
of the states concerned, namely Croatia, has lifted the constitutional
ban on extradition of its nationals. That said, restrictions on
the extradition of nationals are common in member states of the
Council of Europe.
7 Council of Europe treaty law, in particular the European Convention
on Extradition (ETS No. 24) and its three protocols (ETS Nos. 86
and 98 and CETS No. 209) set out the norms applicable to extradition
requests. However, these protocols have not yet been ratified by
all member states and no observer state has ratified either the
convention or its protocols. The general rule of compulsory extradition
is subject to significant exceptions and conditions already specified
in the convention itself and in its protocols. In addition, these instruments
are subject to different interpretations by member states and declarations
and reservations further narrow the scope of their application.
8 Furthermore, it is disappointing that other Council of Europe
and international standards relevant to the fight against impunity
have not been widely accepted. Very few member states have ratified
the 1974 European Convention on the Non-applicability of Statutory
Limitation to Crimes against Humanity and War Crimes (ETS No. 82).
Less than half of the member states have ratified the United Nations
convention on the same issue. Six member states and two observer
states have not yet ratified the Rome Statute of the International
Criminal Court. Eleven member states have not yet ratified the Agreement
on the Privileges and Immunities of the International Criminal Court.
Less than half of the member states have ratified the European Convention
on the International Validity of Criminal Judgments (ETS No. 70).
Even when ratified, these instruments are often subject to various
reservations and restrictive declarations.
9 The Assembly also reiterates its Recommendation 1427 (1999)
on respect for international humanitarian law in Europe, inviting
member states to introduce the principle of aut
dedere aut iudicare (extradite or prosecute)in their national criminal law,
thus allowing for the trial of all perpetrators of war crimes in
the country of their present residence, when there are obstacles
to their extradition to the states where the crimes were committed.
The Assembly urges all member and observer states to:
10.1 take all necessary measures
to combat impunity for war crimes, in accordance with the initiatives of
the Assembly and of the United Nations;
10.2 sign and ratify the conventions and protocols mentioned
in paragraphs 7 and 8 and in its Recommendation 1803 (2007) on the
prosecution of offences falling within the jurisdiction of the International
Criminal Tribunal for the former Yugoslavia (ICTY), and withdraw,
where relevant, declarations and reservations thereto that contravene
the object and purpose of those instruments;
10.3 refrain from granting nationality or refugee status to
a person charged for war crimes in another state;
10.4 examine requests for extradition speedily;
10.5 process requests for extradition for war crimes in good
10.6 introduce – in particular in respect of war crime trials
– the principle of aut dedere aut iudicare
in their national criminal law.
In addition, the Assembly encourages the states concerned
in the region to:
to reform their national legislation by bringing it into line with
international standards and with a view to further facilitating
war crime trials, including the transfer of war trial proceedings;
11.2 pursue effective mutual co-operation in the prosecution
of war crimes, in particular through co-operation of national prosecutors’
offices regarding the transfer of information and legal evidence;
11.3 improve data collection specifically for extradition requests
for war crimes or war-related crimes, as well as for information
on international arrest warrants already issued, in order to correctly
assess the scope of the problem and its possible systematic solution;
11.4 follow the best practices in the region in respect of
lifting the ban on extradition of nationals and recognition of foreign
11.5 remove all remaining legal hindrances to the prosecution
of war crimes, as specified in its Resolution 1564 (2007).
12 The Assembly encourages the ICTY and the United Nations Security
Council to take into account, in the light of the Completion Strategy,
the role played by states other than those directly concerned in
the prosecution of war crimes committed in the former Yugoslavia.
13 The Assembly also encourages the European Union – as the states
concerned wish to commence or have commenced the European Union
accession process – to explore possibilities for enhanced co-operation between
European Union member states and the states concerned in the prosecution
of war crimes, in particular within the European Network of Contact
Points in respect of persons responsible for genocide, crimes against
humanity and war crimes, set up by European Union Council Decision
2002/494/JHA of 13 June 2002.