Appendix to the reply
Opinion of the Committee of Legal Advisers
on Public International Law (CAHDI) on Parliamentary Assembly Recommendation 1803 (2007) on
prosecution of offences falling within the jurisdiction of the International
Criminal Tribunal for the former Yugoslavia (ICTY)
1. On 9 July 2007, the Ministers’ Deputies communicated
Assembly
Recommendation
1803 (2007) to the Committee of Legal Advisers on Public
International Law (CAHDI) for information and possible comments
by 31 October 2007.
2. The CAHDI considered the above-mentioned recommendation and
adopted the following comments at its 34th meeting (Strasbourg,
10-11 September 2007).
3. From the outset the CAHDI concentrated on those aspects which
it thought fell within its scope of competence and did not address
the others, particularly those relating to criminal law, which fall
within the competence of other committees, in particular the CDPC.
4. In
Recommendation
1803 (2007), the Assembly recommended that the Committee
of Ministers:
a invite a number
of Council of Europe member states to sign and/or ratify a series
of Council of Europe treaties relating to international criminal
justice (namely ETS Nos. 24, 70, 73, 82, 99, 116, 167 and 182) aimed
at promoting international co-operation, the fight against impunity
and the protection of victims; and
b encourage member states which had not yet done to consider
signing agreements with the United Nations concerning the execution
of sentences handed down by the International Criminal Tribunal
for the former Yugoslavia (hereafter the ICTY).
5. Regarding the recommendation in paragraph 4.a above, the CAHDI wishes to recall
the Action Plan of the 3rd Summit of the Council of Europe (Warsaw,
May 2005), which calls for full use to be made of the Council of
Europe’s standard-setting potential and for the promotion of the
implementation and further development of the Organisation’s legal
instruments and mechanisms of legal co-operation, and Resolution
No. 5 on the functioning of the Council of Europe conventions on
judicial co-operation in criminal matters, adopted at the 26th Conference
of European Ministers of Justice (Helsinki, April 2005).
6. The CAHDI further wishes to stress the importance of the above-mentioned
conventions and acknowledge the work of the CDPC relating to their
efficient functioning and operation. In particular, the CAHDI notes
the entry into force on 27 June 2003 of the European Convention
on the Non-Applicability of Statutory Limitation to Crimes against
Humanity and War Crimes (ETS No. 082) and the fact that to date
it has been ratified by only three states and signed by a further
two.
7. The CAHDI also contributes to the efficient functioning and
operation of conventions by periodically considering outstanding
reservations to international treaties, including those mentioned
above, in the context of its operation as European Observatory of
Reservations to International Treaties.
8. Regarding the recommendation in paragraph 4.
b above, the CAHDI regularly reviews
developments regarding the international criminal tribunals, including
the ICTY and the ICTR, with a view to promote their work. This should
be seen against the background of the CAHDI’s work in support of
international criminal justice, bearing in mind the relevant texts
of the Parliamentary Assembly
Note and the decisions
of the Committee of Ministers in relation to them.
9. Since 2000, at the initiative of the CAHDI and the CDPC, the
Council of Europe has also organised four consultation meetings
open to member and observer states, to foster exchanges of views
on the implications for Council of Europe member states of ratification
of the Statute of the International Criminal Court (ICC). Although
the consultations focused on the ICC, they also covered aspects
relating to co-operation with the ICTY. The conclusions adopted
at these consultations were brought to the attention of the Committee
of Ministers, which communicated them to the Parliamentary Assembly.
10. In these conclusions, participants have consistently noted
the particular importance for the work of the ICC of appropriate
state support with regard to enforcement of sentences in accordance
with Part 10 of the Rome Statute. The same should be held true in
relation to the ICTY.
11. The CAHDI notes that 10 states have concluded agreements on
the enforcement of sentences of the ICTY all of which are members
of the Council of Europe.
Note The
CAHDI notes that the conclusion of such agreements is voluntary
and would contribute to the pursuance of the objectives underlying
the setting-up of the ICTY, and recalls the position of the Secretary
General of the United Nations that “given the nature of the crimes
in question and the international character of the tribunal, the
enforcement of sentences should take place outside the territory
of the former Yugoslavia. States should be encouraged to declare
their readiness to carry out the enforcement of prison sentences
in accordance with their domestic laws and procedures, under the
supervision of the International Tribunal.”
Note
