National European Courts Prosecute Syrian War Crimes

While the United Nations Security Council seems unable to reach any agreement on referring the Syrian situation to the International Criminal Court or to set up a special tribunal on the ICTY and ICTR models, European courts have started prosecuting Syrian war crimes.

A grieving man in front of a destroyed mosque in Taftanaz after government forces attacked the town on April 3 and 4. ©2012 Robert King/Polaris

A grieving man in front of a destroyed mosque in Taftanaz after government forces attacked the town on April 3 and 4. ©2012 Robert King/Polaris

Prosecutions find legal basis in the genocide legislations adopted by most European countries and providing their courts international jurisdiction. About 15 European states have established units dedicated to investigating and prosecuting war and genocide crimes. Over the past decade, authorities in Europe have launched 1,607 international war crimes cases in domestic jurisdictions, including cases on torture, murder, rape, crimes against humanity and genocide, while another 1,339 are ongoing, according to the European Union judicial cooperation agency Eurojust.

In order to build evidence, European authorities are seeking testimony from some of the hundreds of thousands of refugees fleeing Middle East violence, through screening of migrants’ phones or invitations at arrival to testify. The challenge is to identify perpetrators, who may be European citizens who have joined Islamic State – more than 4,000 European citizens are estimated to have left to fight in Syria, of whom around a third have since returned home – others may be militants who have traveled to Europe from Syria or to Europe last year. “You may have lots of victims or witnesses in one place, but you can’t move with a prosecution until you have a perpetrator in your jurisdiction,” said Matevz Pezdirc of the European Union’s Genocide Network.

With both witnesses and perpetrators on their territory, European prosecutors have already brought some cases. A German citizen is on trial for war crimes after Facebook posts showed him posing alongside decapitated heads. Last year, Swedish courts convicted a Syrian on the basis of a video showing him torturing a fellow combatant.

Annual Report of the Human Rights Review Panel

HRRPThe Human Rights Review Panel (HRRP) has published its Annual Report for the period from 1 January 2015 to 31 December 2015.

The Report contains information on the mandate and procedures of the Panel as well as a detailed account of its activities over the last year. It also reports on the complaints the Panel dealt with in 2015 and the case-law it developed reviewing those cases.

The HRRP’s mandate is to review alleged human rights violations by the European Union Rule of Law Mission in Kosovo (EULEX) in the conduct of its executive mandate. The Panel will look into whether a violation of human rights occurred or not and formulate recommendations for remedial action.

iLawyer Dr. Guénaël Mettraux is a member of the Panel.

The Principle of Ne Bis in Idem in International Law: European Inspiration?

By Myron Phua*

European LawRecent developments in the jurisprudence of both the Court of Justice of the European Union (“CJEU”) and the European Court of Human Rights (“ECtHR”) have demonstrated how international tribunals can collaboratively act to develop the international law principle of ne bis in idem to increase its clout. The ne bis in idem principle exists in Public International Law not as a monolithic rule capable of universal enforcement, but as a rule specific to the jurisdictional regime in which it operates – each differing from the others in scope and content.

The CJEU in Criminal Proceedings Against M. (C-398/12, 5 June 2014) had held, at [37], that ne bis in idem under Article 50 of the European Charter of Fundamental Rights had “… the same meaning and the same scope as the corresponding right” under Article 4, Protocol 7 of the European Convention of Human Rights. This enabled the Court to make two conclusions on the merits of the case in relation to the application of ne bis in idem within EU law under Article 54 Convention Implementing the Schengen Agreement (“CISA”).

First, the Court ruled that, referencing the position under the ECHR as established in Sergey Zolutukhin v. Russia, (no. 14939/03), a ‘non lieu’ ruling by the courts of a given EU Member State was capable of being a final decision which triggered the protection under Article 54 CISA prohibiting subsequent prosecutions in another Member State, regardless of whether “… the exceptional bringing of separate proceedings based on different evidence” remained a possibility. Continue reading

EU and US Object to Republika Srpska Justice Referendum

Yesterday, the Delegation of the European Union (EU) to Bosnia and Herzegovina, joined by the U.S. Ambassador, met with the authorities of the Republika Srpska to share their concerns about the planned referendum on the State-level judicial institutions.

BiH Map

As set up by the Dayton accord, Bosnia and Herzegovina is separated into two entities: a Bosniak-Croat Federation of Bosnia and Hercegovina, and the Bosnian Serb Republic, or Republika Srpska, each with its own president, government, parliament, police and other bodies. In line with its preparation for accession to the EU, the Structure Dialogue on Justice was established in 2011 by the European Commission. The mechanism aims to advance structured relations on the rule of law with potential candidate countries, even prior to the entry into force of the Stabilisation and Association Agreement (SAA) and has been assisting Bosnia and Herzegovina to consolidate an independent, effective, efficient and professional judicial system.

In this context, the EU fears that the organization of a referendum would undermine the sovereignty and stability of Bosnia and Herzegovina, representing “an unconstitutional attempt not to reform but to undermine and weaken those authorities, and would thus pose a direct threat to the sovereignty and security of the country as a whole.” Would the referendum be organized, it would question the ability of Bosnia and Herzegovina to adopt legal binding agreements, such as EU instruments, and to have them respected. For the EU, such a referendum would therefore “seriously harm this country’s EU accession path”.