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Legal Remedies for Victims of “ International Crimes”

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Legal Remedies for Victims of “ International Crimes” Legal Remedies for Victims of “ International Crimes” Fostering an EU Approach To Extraterritorial Jurisdiction FINAL REPORT MARCH 2004 Realised with financial support from: Grotius II programme of the European Commission “[G]enocide, crimes against humanity and war crimes must not go unpunished and [… ] their effective prosecution must be ensured by taking measures at national level and by enhancing international cooperation.” Council Decision 2003/335/JHA, 8 May 2003 “The serious crimes within the jurisdiction of the [International Criminal] Court are of concern to all Member States, which are determined to cooperate for the prevention of those crimes and for putting an end to the impunity of the perpetrators thereof” Council Common Position 2003/444/CFSP, 16 June 2003 “The [International Criminal Court’s] strategy of focussing on those who bear the greatest responsibility for crimes within the jurisdiction of the Court will leave an impunity gap unless national authorities, the international community and the Court work together to ensure that all appropriate means for bringing other perpetrators to justice are used.” Paper on some policy issues before the Office of the Prosecutor, International Criminal Court – Office of the Prosecutor, 2003 TABLE OF CONTENTS I. EXECUTIVE SUMMARY...................................................................................................................... 1 II. THE PROJECT .................................................................................................................................. 2 III. THE NEED FOR JUSTICE FROM A VICTIM’S PERSPECTIVE ...................................................... 2 IV. AIMS AND OBSTACLES AT THE NATIONAL LEVEL.................................................................... 3 A. EU Commitment to Combating Impunity ....................................................................................... 3 Implementation of International Treaties by EU Member States .................................................. 3 The Relationship with the ICC in Prosecuting “International Crimes”........................................... 5 B. Jurisdictional & Procedural Hurdles in Criminal Cases ................................................................. 6 Access to Justice and Executive Discretion.................................................................................. 7 Nexus Requirement, Immunities and Limitation Periods .............................................................. 7 Conflicts of Jurisdiction between States........................................................................................ 9 C. Obstacles in Civil Cases .............................................................................................................. 10 Limitation Periods........................................................................................................................ 10 Immunities ................................................................................................................................... 10 Forum non conveniens................................................................................................................ 11 V. AN EU APPROACH TO EXTRATERRITORIAL JURISDICTION ................................................... 11 A. EU Competence over Substantive Criminal Law......................................................................... 11 Current Framework ..................................................................................................................... 11 Impact of Draft EU Constitution on “International Crimes”.......................................................... 12 B. Extraterritorial Jurisdiction in Council Framework Decisions....................................................... 13 Potential EU Framework Decision on “International Crimes”...................................................... 13 EU Decisions Impacting upon Domestic Procedural Law........................................................... 14 EU Decisions Impacting upon Cross-border Procedural Measures ........................................... 14 C. Cooperation Mechanisms............................................................................................................ 17 Liaison Magistrates ..................................................................................................................... 17 European Judicial Network (EJN) ............................................................................................... 17 Joint Investigation Teams (JIT) ................................................................................................... 17 D. Integrated Mechanisms ............................................................................................................... 17 Europol ........................................................................................................................................ 18 Eurojust ....................................................................................................................................... 19 A European Prosecutor?............................................................................................................. 20 E. Decisions Specifically Dealing with “International Crimes” .......................................................... 20 The “War Crimes Network” ......................................................................................................... 20 Investigation and Prosecution of Genocide, Crimes against Humanity and War Crimes........... 21 F. EU Competence over Civil Law ................................................................................................... 21 Brussels Regulation (on Jurisdiction, Recognition and Enforcement of Judgments) ................. 21 Rome II Regulation (Proposed Regulation on Conflict of Law in Non-contractual Cases)......... 22 VI. EXTERNAL FACTORS............................................................................................................... 22 A. Influence of the United States...................................................................................................... 23 B. Impact of the ICJ.......................................................................................................................... 23 VII. OPTIONS FOR THE WAY FORWARD ...................................................................................... 24 A. Enhancing European Consensus on Combating Impunity.......................................................... 24 B. Enhancing EU Competence over “International Crimes”............................................................. 25 Incorporate “International Crimes” into EU Draft Constitution .................................................... 25 Include “International Crimes” in the 3rd Pillar and Bridge 2nd and 3rd Pillar Initiatives............... 25 C. Establishing Minimum Standards for “International Crimes” ....................................................... 25 Contents of a Framework Decision ............................................................................................. 26 D. Building on Existing EU Cooperation Mechanisms ..................................................................... 28 E. Ensuring Equal Access to Justice and Enforceable Remedies................................................... 28 F. Comparative Study on Law and Practice of EU Member States and Candidate Countries ........ 29 G. Supporting Current Cases........................................................................................................... 29 H. EU Level Counterparts ................................................................................................................ 29 VIII. ANNEXES...................................................................................................................................... 31 A. Elements of a possible Framework Decision on breaches of international human rights and international humanitarian law.......................................................................................................... 31 Core provisions ........................................................................................................................... 31 Further issues.............................................................................................................................. 33 Civil law ....................................................................................................................................... 33 B. Agendas ....................................................................................................................................... 36 Paris Expert Meeting, 16/17 July 2003 ....................................................................................... 36 Brussels Conference, 24/25 November 2003 ............................................................................. 38 C. Law Chart..................................................................................................................................... 41 D. Country Studies ........................................................................................................................... 42 AUSTRIA..................................................................................................................................... 42 BELGIUM ...................................................................................................................................
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