Reparation and reconciliation processes to overcome past conflicts and build a common peaceful future: the question of just and equal redress
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 26 June 2024 (20th sitting) (see Doc. 15933, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Lord Richard Keen; Doc. 16019, opinion of the Committee on Political Affairs and Democracy, rapporteur:
Mr George Loucaides). Text adopted by
the Assembly on 26 June 2024 (20th sitting).See
also Recommendation 2281
(2024).
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 achieving lasting peace by using relevant tools
under international law, tools which may vary depending on the context
and may include truth-seeking initiatives, justice, reparations,
recognition and guarantees of non-repetition. However, such processes
often do not lead to adequate results due to a lack of an acceptable,
achievable, enforceable and implementable package of measures to
promote 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, “the Statute”), which stipulates
that the States parties are “[c]onvinced 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 problems persist, 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. Such tools often do not provide an adequate, enforceable
and timely response to the challenges of disputes between member
States, particularly following a conflict.
5. The Assembly reiterates the important role that courts can
play in finding just solutions, while regretting that courts often
lack jurisdiction, for example due to the doctrine of State immunity;
that they are unable to fully address the overall complexity of
the problem, for example due to their remit or the limits of the
available remedies; or that their judgments are not enforced. Even
the European Court of Human Rights is a limited tool for achieving
reconciliation and reparation following a conflict, given that its
remit is restricted to specific human rights violations, that is
has a limited range of remedies available to it and that there are
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 States can move forward
towards peaceful co-operation in 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
States look holistically at resolving highly complex matters between
them 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 being enforced. 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. 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 concerning reparations
and remedies to mediation;
9.2 the mediation mechanism should avoid duplication of, or
conflict with, any other existing processes and should not be used
to bypass or undermine such processes, including in the framework of
the United Nations, as well as the procedures before, and the implementation
of judgments of, the European Court of Human Rights;
9.3 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;
9.4 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 that 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 that
are no longer members of the Council of Europe;
9.5 this system should be available for interstate disputes
relating to post-conflict situations or other disputes that risk
escalating into tensions;
9.6 this process should also be available to identify 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 wider range of tools for proposing solutions that are better
adapted to addressing the complexities of post-conflict situations
and the needs of victims;
9.7 the approach should be victim centred, involving consultation
with victims and other affected groups as well as with the States
concerned;
9.8 there should be an obligation on member States to engage
in a mediation process in good faith. As a matter of propriety,
policy and principle, member States should co-operate with the Council
of Europe to resolve issues that have an 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, “the Convention”). 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 in the mediation process in good faith;
9.9 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;
9.10 to a large extent, such a mediation process could be achieved
using the existing legal tools at the disposal of the Council of
Europe, such as the Statute and the European Convention on Human
Rights, and ways of working within the framework of 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 by a member State, 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);
9.11 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
and 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 take all necessary action to establish a functional system
of mediation to help resolve disputes between member States by peaceful
and democratic means, with full respect for human rights and the rule
of law, and with the involvement of those affected by a conflict
situation, including victim groups.
