WRITTEN QUESTION E-2063/02 by Pere Esteve (ELDR) to the Commission. Harmonised jurisdiction on genocide, crimes against humanity and war crimes.
Date: 2002-07-11
Institutions: European Parliament, Provisional data
Subjects: approximation of laws, crime against humanity, human rights, international criminal law, judicial cooperation, legal cooperation, war crime

C 161 E/12

Official Journal of the European Union

EN

10.7.2003

Answer given by Mr Patten on behalf of the Commission

(2 August 2002)

The Commission is pleased to inform the Honourable Member of the results of his question concerning
the arrest and detention of Tibetans travelling through Nepal.

On 12 July 2002 the EU Heads of Missions in Kathmandu informed the Ministry of Foreign Affairs
(the Joint Secretary, Mr Gyan Chandra Acharya) of their concern at the treatment of Tibetans travelling
through Nepal en route to Tibet from India.

The Ministry of Foreign Affairs informed the Heads of Missions that an ad hoc inter-departmental
committee had been set up with a view to finding a satisfactory solution quickly.

Meanwhile, similar representations were made to the Prime Minister, Mr Sher Bahador Deuba, by the
United States.

Contact between the Commission and the local office of the UNHCR have confirmed the existence of an
unwritten arrangement whereby Tibetans transiting Nepal en route to India are given the status of ‘person
of concern’. This arrangement does not apply to Tibetans returning from India, as it is impossible for the
UNHCR to negotiate the procedures for the return of Tibetans to Tibet with the three countries concerned
(India, Nepal and China).

The Commission is ready to support any further initiative to facilitate a more flexible approach by the
Nepalese authorities which complies with local
laws on the basis of humanitarian considerations and
respect for human rights.

The Commission Delegation and representatives of Member States on the spot are closely following this
case in the hope of an equitable decision by the Government.

The Honourable Member will be informed as soon as possible of further developments.

(2003/C 161 E/013)

WRITTEN QUESTION E-2063/02

by Pere Esteve (ELDR) to the Commission

(11 July 2002)

Subject: Harmonised jurisdiction on genocide, crimes against humanity and war crimes

On 14 February 2002, the International Court of Justice in the Hague ruled that incumbent ministers of
foreign affairs are immune from prosecution for crimes under international law, including crimes against
humanity and war crimes. The ruling impeded Belgium from putting on trial, because of his immunity, a
former foreign minister of the Democratic Republic of the Congo for allegedly killing hundreds of Tutsis in
1998.

I fear that such a view on immunity represents a step backward in the campaign for universal justice and
also undermines the International Criminal Court’s jurisdiction.

The immunity of State officials has already been excluded from international treaties,
including the
Genocide Convention. They are also excluded by the Statutes of the International Criminal Tribunal for
the Former Yugoslavia, the International Criminal Tribunal for Rwanda and the Rome Statute of the
International Criminal Court, which is in force as of 1 July 2002. All of these instruments explicitly
provide that a person’s official capacity is not a bar to prosecution on the grounds of genocide, crimes
against humanity and war crimes. The decision of 14 February is disappointing because it effectively
shields some state officials from prosecution for atrocities. Government ministers who commit crimes
against humanity, genocide, or war crimes are not likely to be prosecuted at home, and the ruling means
they will enjoy impunity abroad as well.

10.7.2003

EN

Official Journal of the European Union

C 161 E/13

The existing Belgian anti-atrocities law is part of a growing trend towards accountability for the worst
international crimes. Prosecutions based on universal
jurisdiction, such as are now possible under the
Belgian law, constitute essential parts of the emerging system of international justice. They help to break
down the wall of immunity with which tyrants and torturers protect themselves in their own countries.

On a global scale, there exists a clear trend in the international community to internationalise the grave
violations of humanitarian law, in line with the recently established International Criminal Court, which
will be able to investigate and prosecute those individuals (including state leaders) accused of crimes
against humanity, genocide and war crimes when national courts are unwilling or unable to do so, and
which expressly rejects any substantive or jurisdictional
immunities. This trend is supported by the
willingness of some countries, like Belgium, to try foreign leaders accused of human rights violations under
their national jurisdiction. Two clear examples of this tendency are the arrest of former Chilean dictator
Augusto Pinochet in the United Kingdom (1999), together with the discussion of a Belgian appeals court
on whether its judges should hear a war crimes case against Israeli Prime Minister Ariel Sharon.

In view of this growing trend and backed by the general principles of law, which were recognised by the
international cooperation in the detection, arrest,
UN General Assembly in the 1973 ‘Principles of
extradition and punishment of persons guilty of war crimes and crimes against humanity’, what does the
European Commission think about the possibility of harmonising juridical practices in EU Member States?
What does it think about strengthening judicial cooperation relating to cases of immunity when it comes
to crimes against humanity, following the lead taken by Belgium?

Answer given by Mr Vitorino on behalf of the Commission

(3 September 2002)

The fight against impunity and in favour of international justice is an integral part of the Union’s human
rights and democratisation policies. The Union has consistently championed the International Criminal
Court (ICC) and continues to strongly support it, as demonstrated by the Union common position adopted
in June 2001 and amended in June 2002 that pursues and supports the early entry into force of the Rome
Statute and the establishment of the Court.

Steps have either been taken or are proposed at Union level that can be expected to bring about a certain
harmonisation of practices in Member States on genocide, crimes against humanity and war crimes (e.g. on
how to react when there is reason to believe that an applicant for a residence permit has participated in
such crimes), and thus to make a positive impact upon cooperation among Member States’ authorities,
thereby increasing the effectiveness of the penal law response to these very serious crimes.

A Council Decision was adopted on 13 June 2002 setting up a network of national contact points in
respect of persons responsible for genocide, crimes against humanity and war crimes (1). A proposal for a
Council Decision on the investigation of war crimes, crimes against humanity and similar serious crimes
has been submitted by Denmark (2) with a view to the further development of cooperation in this area. The
purpose of the proposal is to strengthen the ability of the authorities in the Member States to investigate
and prosecute individuals who have participated in or furthered the committing of these crimes.

However, these initiatives do not particularly target cases where under public international law, the alleged
offender enjoys immunity. Indeed, it would not seem to be very useful to try to reinforce cooperation with
regard to cases where the immunity would rule out prosecution from the start.

(1) OJ L 167, 26.6.2002.
(2) Not yet published in the Official Journal. However, the text of the initiative with explanations is available at:

www.eu2002.dk/news/upload/Danish%20initiatives%20(police%20and%20criminal%20law)2002751912 24.pdf.