Dear Vice‐President and EU Justice Commissioner Reding,
We are writing in advance of the upcoming 10th meeting of the EU network of contact points in respect of persons responsible for genocide, crimes against humanity, and war crimes (“EU Network”) to urge the European Commission, in particular the Directorate General (“DG”) Justice, to make a firm commitment to the EU Network and to assist Member States in building the capacity necessary for the investigation and prosecution of these crimes.
Established by Council Decision 2002/494 JHA, the Network was created to facilitate and increase cooperation among member states in the investigation and prosecution of crimes under international law. Since its establishment, it has made an important contribution to the fight against impunity for these crimes. The Network will hold its 10th meeting on 28th and 29th April 2011 in The Hague to discuss, inter alia, EU developments in relation to the work of the Network and experiences of Member States in cases relating to crimes under international law.
We consider it to be important that DG Justice plays an active role in these discussions and contributes to the strengthening of the Network’s role in helping to ensure that the European Union does not provide a safe haven to perpetrators of genocide, crimes against humanity, war crimes and other crimes under international law.
1. The EU Network facilitates Member States’ cooperation in the fight against
impunity
Since the first meeting of the EU Network in November 2004, several cases have been successfully prosecuted in the courts of EU Member States. These include two Afghan military officers convicted in The Netherlands of war crimes, an Argentine officer convicted by a Spanish court of crimes against humanity, nine Rwandan nationals convicted by courts in Belgium, The Netherlands, and Finland for torture and war crimes committed during the 1994 genocide, and the convictions in absentia by French courts of one Mauritanian officer and one Tunisian official for torture committed in their respective countries. Several further proceedings are ongoing in these and other European countries. [1]
Of note, EU Member States continue to be confronted with suspects of such crimes, on their territories.
The Network has enabled Member States to share investigative, prosecutorial and trial experiences. This has assisted Member States to conduct more effective investigations and prosecutions of crimes under international law. Contact points have consistently stressed the value of the EU Network as a dedicated forum to discuss and advance regional collaboration and judicial cooperation. In particular, EU Network meetings have enabled national contact points to meet and make bilateral contacts. Since the first meeting of the EU Network, a list of contact points from EU Member States is available, and prosecutors and investigators have contacted colleagues in other EU Member States to seek and exchange information about countries under investigation and to discuss best practices about specific countries. Accordingly, past meetings reflected practical needs of investigators and prosecutors and focussed on investigations and prosecutions of suspects in relation to a specific conflict, such as the 1994 genocide in Rwanda (currently, investigations against genocide suspects are ongoing in a number of EU Member States, including the United Kingdom, Belgium, France, The Netherlands, Sweden, Finland, Denmark and Germany), as well as specific challenges such as the identification of and access to witnesses abroad, witness and victims protection, the international framework for international cooperation and cooperation with the ad hoc tribunals for Rwanda and the former Yugoslavia, the International Criminal Court (ICC) and (non‐) governmental organisations.
Since the first meeting of the EU Network, national capacity within the police and prosecution services of EU Member States to investigate and prosecute crimes under international law has significantly increased. Based on the success of specialized war crimes units in Belgium, Denmark and The Netherlands, similar units were established in Sweden, Germany, Norway (an observer State to the Network) and shall be established in France in the near future. The EU Network is an ideal forum for promoting the work of such units and assisting more EU Member States to establish war crimes units within their police and prosecution services, as further recommended in Article 4 of Council Decision 2003/335/JHA on the investigation and prosecution of genocide, crimes against humanity and war crimes.
The EU Network meetings have furthermore facilitated the exchange of information about national legislation on the prosecution of crimes under international law, practical enforcement advice, and relevant information about successful cases. At the 8th and 9th meeting of the EU Network, contact points established a table of national legislation in place in Member States regarding crimes under international law and on extraterritorial jurisdiction. Contact points who attended the 4th and 5th meetings emphasized that the discussions enhanced mutual cooperation and allowed them to share experiences on how to overcome challenges with respect to, inter alia, the taking of witness testimonies abroad in post conflict countries and the handling of extradition requests from non‐European countries as well as cooperation with (non‐) governmental organisations.
As from July 2011, a permanent secretariat based within Eurojust in The Hague will support the important work of the EU Network. The secretariat, initially staffed with one EU Network Coordinator, will be separate from Eurojust but can draw on its administrative resources, with the EU Network Coordinator being “responsible for setting up, maintaining and improve the Genocide
Network’s information and communication channels[.]...and for supporting the EU Presidency in the organisation of meetings of the Genocide Network.”
2. The future role of the EU Network in supporting EU Member States in the fight against impunity
Successful prosecutions in recent years demonstrate that practitioners are making progress in addressing many of the challenges presented by the investigation and prosecution of crimes under international law. The establishment and existence of the EU Network has played a significant role in that development.
In recent Network meetings, national contact points identified common needs that could be addressed jointly, possibly via action by the EU Network and with the support of the European Commission, to render investigations and prosecutions more effective. These common needs include best practices for victims and witness protection within EU Member States, best practices relating to the identification of witnesses abroad, the confiscation of criminal assets from perpetrators and further training of contact points in the investigation and prosecution of crimes under international law.
Contact points specifically recommended at the last meeting in November 2010 that competent authorities at national level participate actively in the ongoing consultation on victims conducted by the European Commission and to make use of the review of the Council Decision 2002/494 establishing the EU Network to consider introducing “the organisation of meetings of the Network on the basis of at least one meeting every six months and the possibility for ad hoc meetings on specific matters also open to other national experts.”
3. The role of the European Commission, and in particular DG Justice, in supporting Member States in the fight against impunity
Further discussions on the review of Council Decisions 2002/494/JHA and 2003/335/JHA will take place at the upcoming 10th meeting of the EU Network. Together with the establishment of the EU Network secretariat, this presents a unique opportunity for DG Justice to increase its support of and collaboration with the EU Network.
An increasing engagement of DG Justice in the fight against impunity is further warranted by the Stockholm Programme, which explicitly invites the European Commission to “continue to support and promote Union and Member States’ activity against impunity and to fight against crimes of genocide, crimes against humanity and war crimes.” It specifically encourages the promotion of
“cooperation between Member States, third countries and the international tribunals in this field, and in particular the International Criminal Court, and develop exchange of judicial information and best practices in relation to the prosecution of such crimes through the European Network of Contact Points in respect of persons responsible for genocide, crimes against humanity and war crimes.”
The Commission’s Action Plan on the implementation of the Stockholm Programme provides for an evaluation report in 2011 on the implementation of Council Decision 2003/335/JHA on the “investigation and prosecution of genocide, crimes against humanity and war crimes.” The Action Plan also provide for an evaluation of the EU Network.
DG Justice is mandated and ideally positioned to increase Member States’ effectiveness in the fight against impunity for crimes under international law. It has played a vital role in facilitating cooperation in fighting cross border crimes, and actively contributed to the establishment of mechanisms designed to overcome challenges involved, including for instance joint investigation teams. Accordingly, we recommend that DG Justice, in its review and evaluation process of both Council Decisions should:
– analyse the EU Network’s conclusions and consider how best the Commission can contribute to the implementation of contact points’ conclusions. Past meetings identified the possibility for the Commission to provide funding for the training of contact points in the investigation and prosecution of crimes under international law. We suggest that possibilities and conditions for funding available within DG Justice are presented to contact points and civil society organisations present at the upcoming Network meeting, and to assist applicants for such funding;
– ensure that contact points’ recommendations for bi‐annual and ad hoc meetings on specific issues can be integrated into a revised Council decision;
– analyse, in close cooperation with the EU Network coordinator and civil society, EU Member States’ capacity to detect, investigate and, as appropriate prosecute suspects of crimes under international law. As needed, DG Justice should provide assistance to those Member States that have not yet enacted legislation to provide them with jurisdiction over crimes under international law in accordance with international law obligations.
– identify arrangements in place in Member States providing for witness and victims protection in cross border crimes with a view to ensure that these can best be applied in the investigation and prosecution of crimes under international law.
Furthermore, the experiences and lessons learned in fighting cross border crimes on an EU level could be usefully presented to contact points with a view to assess how they could benefit national police and prosecution authorities in the investigation and prosecution of crimes under international law. For instance, contact points at their last meeting in December 2010 concluded that the Network should explore “innovative means of coordination” in regards to parallel investigations being conducted by two or more Member States’ authorities at the same time.
EU Member States are under an obligation to investigate and prosecute crimes under international law. An increasing number of cases involving such crimes within the EU demonstrate that there is a need for all EU institutions, including in particular the European Commission and DG Justice, to encourage and assist Member States in their endeavours to ensure that the EU does not provide a
safe haven to perpetrators of crimes such as genocide and crimes against humanity.
In conclusion, we urge you to ensure that the fight against impunity for such crimes remains part of the DG’s Justice agenda and, through the support of the EU Network, to send a clear message about the EU’s commitment to ending impunity for serious human rights crimes.
We would welcome a meeting with you to further discuss the role DG Justice could usefully play in the fight against impunity generally, and specifically in support of the EU Network.
We thank you for your attention to this important matter.
Yours sincerely,
– Antoine Bernard, Chief Executive Officer, FIDH
– Carla Ferstman, Executive Director, REDRESS
– William R. Pace, Convenor, Coalition for the ICC