Fostering an EU approach to serious international crimes

Speech by Baroness Sarah Ludford MEP delivered to Opening speech, Redress and FIDH Conference on national and international responses to serious international crimes on Mon 20th Nov 2006

I wish to extend my thanks to REDRESS and the International Federation for Human Rights for inviting me to open today's conference on this very important subject with such a wide range of eminent professionals.

I would like to congratulate REDRESS and FIDH on this important project and the initiative behind this conference. The next two days will see debates on a broad range of issues:

• This afternoon will be focussed on implementing international law obligations; components of enforcing international criminal justice; and, jurisdiction and admissibility.

• Tomorrow morning will be dedicated to a hearing in the Parliament's Human Rights Sub-Committee on the International Criminal Court and international criminal justice before spending the afternoon looking at 1) the investigation of serious international crimes; 2) prosecuting and defending alleged perpetrators of international crimes; 3) national and EU cooperation; and, 4) a unified European framework.

This conference is both timely and necessary. It is essential that those that perpetrate the most serious crimes of international concern -genocide, crimes against humanity, war crimes and torture - do not enjoy impunity by leaving the jurisdiction in which they have committed their crimes and finding safe haven elesewhere.

Perpetrators of international crimes do not recognise national borders. Likewise, as policy-makers we must ensure that states intensify co-operation between law enforcement and judicial services to get rid of the gaps in jurisdiction which can be easily exploited by such criminals. Impunity can only be tackled through coordinated effort at the national, regional and international levels. European states and the European Union must deliver on their commitment to liberty, respect for human rights and fundamental freedoms and the rule of law.

We live in difficult and insecure times, under a threat both of international terrorism and a misjudged response to it, and with daily headlines about atrocities such as in Darfur. The need to cooperate to build a powerful international justice system is more pressing than ever.

In September 2004, the US State Department concluded, perhaps controversially that the events in Darfur constituted 'genocide'. The International Commission of Inquiry on Darfur determined in January 2005 that massive crimes against humanity had taken place there. Yet, militias and government forces continue to operate within impunity.

In Iraq, at the beginning of this month former President Saddam Hussein was handed down a guilty verdict for crimes against humanity against inhabitants of the Iraqi town of Dujail. Yet there is evidence to suggest his trial has been undermined by serious flaws in proceedings, as Human Rights reminds us today.

The recent conflict between Israel and Lebanon also raises questions regarding violations of international humanitarian law. In a report from September this year, Amnesty International stated that: 'Some serious violations of international humanitarian law (...), are war crimes and give rise to international criminal responsibility for the perpetrators. These crimes are subject to universal jurisdiction (they may be prosecuted by any state in its national courts) and fall within the statute of the International Criminal Court.'

These examples clearly demonstrate the need for an international justice system which ensures full respect for the principles of impartiality, fairness, independence, individual criminal responsibility and effectiveness; we need accountability for the worst human rights violations and we need to put victims and their protection at the centre of this.

Important steps have been taken in developing a global justice system to fight impunity, particularly in the form of the International Criminal Court (ICC). The Rome Statute adopted in 1998 and which entered into force in July 2002 is the main instrument of redress for the most serious crimes, as well as acting as a deterrent.

However, its jurisdiction is limited and, under the system of complementarity set out in the Rome Statute, all states have an obligation to bring to justice those responsible for genocide, crimes against humanity and war crimes. The principle of complementarity demands that efforts are made on a national level to make this possible.

During the 1990s, the international community took unprecedented steps to limit the impunity associated with the horrific crimes of the end of the 20th Century. This has included the creation of international justice mechanisms such as the international tribunals for ex-Yugoslavia and Rwanda, the Special Court for Sierra Leone, and the application of universal jurisdiction to hold perpetrators of the most serious crimes to account.

The tribunals for the former Yugoslavia and Rwanda have made an important contribution to the prosecution of international crimes. The jurisprudence of the tribunals has established important precedents for international criminal law which are key for the fight against impunity. However, these tribunals need strong financial and political support as well as the full cooperation of countries in which crimes have been perpetrated if they are to complete their work successfully by the end of 2010.

On 1 November 2006, 104 states were party to the Rome Statute of the ICC. This is an important number of ratifications, yet universality will remain little more than a long-term objective until the US, China, Turkey, Russia, Japan and the countries of North Africa and the Middle East, amongst others, sign up to the ICC. Ultimately, its success depends on the support of states worldwide.

The ICC, together with national courts, international tribunals, mixed tribunals or other international accountability mechanisms have become a nascent 'system of international justice'.

As a member of the European Parliament's civil liberties, justice and home affairs committee and Liberal Democrat European justice spokeswoman, my main concern is what role the EU should be playing in promoting international justice, in ensuring that the international criminal justice system functions and in closing impunity gaps. What can the EU do to strengthen the rule of law and the protection of human rights worldwide?

The EU has two fundamental roles in promoting reconciliation, justice, peace and security in the world - an external role and an internal role. Let me briefly expand on these two issues.

Externally, the EU has contributed to the fight against impunity through bilateral and regional demarches to foster human rights. In addition to its human rights dialogues and making respect for human rights a cornerstone of its international contractual relations, it has undertaken specific initiatives such as adopting an EU policy towards third countries on torture and other cruel, inhuman or degrading treatment or punishment.

The EU has also used its leverage with third countries to foster support for international justice. For example, EU pressure has contributed to improvements in the countries of the Western Balkans' cooperation with the ICTY. The EU suspended entry talks with Croatia in March 2005 until Croatia intensified its cooperation with the ICTY, and most importantly handed over General Gotovina. Meanwhile, talks remain on hold with Serbia as this country has still failed to arrest war crimes suspect General Mladic. Full cooperation with the Tribunal has been an explicit and fundamental condition for deepening relations between the EU and the Western Balkan countries under the Stabilisation and Association Process. As a member of the European Parliament's delegation for South East Europe, I can testify to just how crucial this process is for people across the Balkans.

In the light of this good record, it is even more puzzling though that we allowed the US to go round the Balkans twisting arms for bilateral immunity agreements..............

Further afield, the EU has played an important role providing financial support to the Special Court for Sierra Leone - indeed, as the European Parliament noted in its resolution on the Special Court for Sierra Leone, EU member states have contributed more than $30 million to support the functioning of the Court. On a diplomatic level, we called on the EU and its member states to build international pressure in order to bring about the extradition of Charles Taylor indicted on 17 counts of war crimes and crimes against humanity for his role in contributing to the death, rape, abduction, and mutilation of thousands of civilians during Sierra Leone's civil war from 1991 to 2002. It was a victory for international justice that Nigeria finally gave up Charles Taylor in March, paving the way for his trial at the ICC.

In the face of hostility from the US, the EU has been a leading force in the establishment and the strengthening of international justice mechanisms such as the ICC. Through its Common Positions and Action Plan the EU has come forward with concrete measures to achieve the objective of worldwide adherence to the Rome Statute and to preserve its integrity from any attempt to undermine its letter and spirit. The EU has also encouraged partner countries to make clear their commitment to the ICC, including a joint commitment to the ICC in the revised Cotonou Agreement signed with the African, Caribbean and Pacific countries last year.

As an active member of the parliament's informal grouping 'Friends of the ICC', I can assure you that through our many resolutions and initiative to include and increase provisions for the ICC in the EU budget, MEPs have been consistent in advocating the establishment, good functioning and worldwide adherence to the ICC and the values enshrined in the Rome Statute.

Finally, I would like to say a few words on the EU's role promoting international justice within the EU. One of the main challenges within the European Union is to ensure that victims' access to justice and the likelihood of perpetrators of international crimes not escaping impunity does not vary depending on the member state in which individuals find themselves. It is imperative that the patchwork of legal systems which makes up the EU does not make the EU a safe haven. Rather, we must work towards a single area of justice.

Important initiatives already undertaken in this respect include:

• The 2002 decision to set a network of contact points in respect of persons responsible for genocide, war crimes and crimes against humanity. This mechanism is designed to assist member states' national authorities to investigate and prosecute the most serious crimes of concern to the international community.

• This has been complemented by the 2003 Council decision on the investigation and prosecution of genocide, crimes against humanity and war crimes, stepping up cooperation between member states' law-enforcement and prosecution services to work effectively in the criminal investigation and prosecution of the actual or suspected perpetrators of these crimes. Regrettably, however, only 4 MSS have complied and set up specialised units, and the lack of Commission powers to enforce this instrument illustrates the weakness of 'Third pillar' measures in this regard.

• The EU can also make a concrete contribution to the fight against impunity, equal access to justice and protection for victims through general judicial cooperation in criminal law. For example, the European Arrest Warrant applies to crimes under the Rome Statute, the European Evidence Warrant should facilitate the exchange of evidence and the Framework decision on the standing of victims in criminal proceedings from 2001 should facilitate access to legal advice and information for victims. Europol, Eurojust and the European Judicial Network can all also contribute to the effort of cooperation

However, initiatives undertaken to date are far too limited - both in scope and number. It is clear that more needs to be done within the European Union and member states must decide if they are willing to put to one side concerns over protecting their national sovereignty in order to build an effective EU response to the most serious of international crimes.

For example, by failing to include in the Hague programme the need for specific EU instruments covering international crimes, the member states effectively prevent the EU institutions from making more headway in this respect.

I remain deeply concerned by the weakness of democratic scrutiny, accountability and judicial oversight in this field. Initiatives under the third pillar of police and judicial co-operation in criminal matters are negotiated secretly through intergovernmental procedures. Thus the directly elected EP has only marginal influence, limited as it is to a consultative role with no real power in the decision-making process. National parliaments get even less of a look in than we do. It is a short-sighted view to imagine that fighting for international justice and the protection of human rights is best served by policy-makers huddling behind closed doors.

The EP has a major role to play in defending and further developing the advances in international justice that we have seen in the 1990s. The EP strongly supports the building of a European area of freedom, security and justice to meet the challenge of globalisation and serious international crime.

However, the EP cares equally strongly about not cutting corners on individual rights.

History will not look back on us kindly if we fail to do everything in our power to ensure that those who commit grave international crimes are punished, and to ensure that our justice procedures and systems are sufficiently robust to act as a strong deterrent. In that context, I should emphasise in conclusion how essential it is that we establish the truth about allegations of European collusion in the US programme of illegal 'extraordinary rendition' and hosting of secret prisons. The EU and its Member States cannot maximise their contribution to catching criminal human rights abusers from around the world while laying under a cloud of suspicion themselves.