D Explanatory memorandum by Mr George
Loucaides, Rapporteur for opinion
1. I wish to welcome the report
on “Reparation and reconciliation processes to overcome past conflicts
and build a common peaceful future – the question of just and equal
redress” presented by Lord Richard Keen (United Kingdom, EC/DA)
on behalf of the Committee on Legal Affairs and Human Rights.
2. The report presents a detailed and well-documented study on
international law and practice relating to reparations, reconciliation
and transitional justice, and offers an analysis of mechanisms currently
available, in the Council of Europe and beyond, for promoting reconciliation
and reparation.
3. Based on this analysis, the report concludes with a need for
introducing a new Council of Europe mediation mechanism to complement
the existing tools aimed at resolving disputes between member States resulting
from past conflicts, and suggests specific elements for such a mechanism.
4. I fully share the view of the rapporteur that the lack of
progress in achieving, through the existing tools, reconciliation
and redress following past violent conflicts between States, including
fair compensation to the victims, may result in a feeling of injustice
and lead to the perpetuation of conflicts or even to a resumption
of hostilities.
5. I also agree with the rapporteur that the Council of Europe
can do more to help overcome the consequences of past conflicts
between member States and to promote reconciliation and reparation
as a basis for preventing possible new conflicts and creating conditions
for peaceful co-operation.
6. At the same time, while fully endorsing the proposal of the
rapporteur to consider establishing a mediation mechanism under
the auspices of the Council of Europe to complete the existing tools
at the disposal of the Organisation to facilitate finding solutions
to post-conflict disputes, I have some reservations as to the specific
parameters of such mechanism as set forth in the draft resolution
and draft recommendation.
7. First, it is necessary to stress that a new mediation mechanism
should not be conceived as a means to short cut, or to circumvent,
the system of the European Convention on Human Rights (ETS No. 5)
and the European Court of Human Rights. In this context, I wish
to express a number of concerns.
8. In particular, paragraph 9.2 of the draft resolution and paragraph
5.2 of the draft recommendation suggest that the mediation process
may be initiated “in the absence of consent by both parties”. One
can imagine a situation where one party decides to request that
the mediation process be initiated with a view to bypassing mediation
efforts already underway.
9. Furthermore, paragraph 65 of the explanatory memorandum suggests
that “… it could be a prior requirement for States to attempt mediation
before resorting to bringing a post-conflict inter-State case before the
European Court of Human Rights.” In my view, such requirement would
be in contradiction with the right of member States to resort to
the Court set forth by Article 33
NoteNote of the European
Convention on Human Rights as revised by Protocol 11 (ETS No. 155),
which is one of the most effective tools at their disposal under
the Convention.
10. More specifically, an obligation to exhaust the mediation
mechanism remedy prior to lodging an application before the Court
would most certainly have an impact on the admissibility of applications
when it comes to complying with the four-month rule (Article 35
paragraph 1 as amended by Protocol No. 15, CETS No. 213) and, as
a result, on the whole procedure.
11. Similarly, a proposal contained in the same paragraph 65 that
the mediation process could be initiated in the framework of the
implementation of Court judgments seems to suggest that such mediation
could be seen as an alternative to the execution of a judgement,
which would be contrary to States’ obligations under Article 46.1
NoteNote of
the European Convention on Human Rights and undermine the effective
implementation of the Court’s judgments.
12. In my view, inter-State cases address mass and serious human
rights violations and cannot be considered merely as “disputes”
between member States. Fundamental human rights violations cannot
be assessed nor addressed through mediation efforts and must remain
under the jurisdiction of the Court. The Court’s judgments should
remain distinct from any sort of mediation process. The latter should
not in any way replace the Court but might only act in its support,
with the consent of all parties involved.
13. More generally, I believe that a mediation process should
only be initiated with the full consent and adherence of both parties
involved. Any attempts to impose a mediation process in the absence
of such consent and adherence may lead to results opposite to those
sought.
14. Accordingly, I am rather pessimistic as to the proposal that
the Committee of Ministers, the Parliamentary Assembly or the Secretary
General of the Council of Europe should be able to decide, acting
on their own, to initiate a mediation process in the absence of
consent by both parties involved as suggested in paragraph 9.2.
of the draft resolution and paragraph 5.2. of the draft recommendation.
I believe that the procedure for initiating a mediation process
needs further consideration.
15. In addition, I find that the proposal that, in case of the
Assembly, the process might be initiated through a recommendation
is contradictory in itself: by its very nature, an Assembly recommendation
is not a decision to act on its own but a request to act addressed
to the Committee of Ministers.
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16. While I subscribe to the call on Council of Europe member
States to ratify the European Convention for the Peaceful Settlement
of Disputes (ETS No. 23) contained in paragraph 10.2. of the draft
recommendation, I must recall that this instrument has been ratified
by only 14 member States since its opening in 1957; 6 more States
have signed, but not ratified it.
17. I also wish to stress that the mediation process suggested
by the report should in no way weaken or duplicate other mediation
efforts made in the framework of the United Nations. It is worth
recalling that, under Article 103
NoteNote of
the United Nations Charter, States’ obligations under that Charter
prevail. Accordingly, in case there is an ongoing process under
the auspices of the United Nations, the proposed Council of Europe mediation
process would not be applicable.
18. In conclusion, I welcome the report presented by the Committee
on Legal Affairs and Human Rights and I endorse the proposal to
consider establishing a mediation mechanism under the auspices of
the Council of Europe to complete the existing tools at the disposal
of the Organisation to facilitate finding solutions to post-conflict
disputes. However, I believe that this proposal requires careful
consideration at expert level. Accordingly, I propose several amendments
to the draft resolution and draft recommendation with a view to making
them less prescriptive and allowing more options to be considered
at expert level, so as to gather the maximum support to this initiative.
