The Assembly recommends that the Committee of Ministers undertake
work to establish a mediation process under the auspices of the
Council of Europe, which should include the following elements:
5.1 a system should be established
to enable member States to submit disputes concerning reparations
and remedies to mediation;
5.2 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;
5.3 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;
5.4 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;
5.5 this system should be available for interstate disputes
relating to post-conflict situations or other disputes that risk
escalating into tensions;
5.6 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;
5.7 the approach should be victim centred, involving consultation
with victims and other affected groups as well as with the States
concerned;
5.8 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;
5.9 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;
5.10 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 of the Council of Europe (ETS No. 1,
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);
5.11 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; it should avoid a one-size-fits-all
approach and should instead offer a number of ideas for potential
use in mediated solutions.
