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Genocide, crimes against humanity and war crimes: criminal investigation and prosecution

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Genocide, crimes against humanity and war crimes: criminal investigation and prosecution

Outline of the Community (European Union) legislation about Genocide, crimes against humanity and war crimes: criminal investigation and prosecution

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Justice freedom and security > Judicial cooperation in criminal matters

Genocide, crimes against humanity and war crimes: criminal investigation and prosecution

Document or Iniciative

Council Decision 2003/335/JHA of 8 May 2003 on the investigation and prosecution of genocide, crimes against humanity and war crimes.

Summary

The European Union is stepping up cooperation between the Member States’ law-enforcement and prosecution services to work effectively with the criminal investigation and prosecution of the actual or suspected perpetrators of genocide, crimes against humanity and war crimes and those who have been involved in them. The definition of these crimes is taken over from the Statute of the International Criminal Court

  • Genocide: acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such, including killing members of the group, imposing measures intended to prevent births within the group and forcibly transferring children of the group to another group;
  • Crimes against humanity: acts when committed as part of a widespread or systematic attack directed against any civilian population, such as murder, extermination, deportation, torture and rape;
  • War crimes: grave breaches of the Geneva Convention of 12 August 1949 such as wilful killing, torture or inhuman treatment, including biological experiments, destruction of property and taking of hostages.

The Member States are to take the necessary measures in order for the law enforcement authorities to be informed when facts are established which give rise to a suspicion that an applicant for a residence permit has committed such crimes. The authorities may then commence criminal proceedings in a Member State or in international criminal courts. Member States are to assist one another in investigating and prosecuting the crimes. They may set up or designate specialist units within the competent law enforcement authorities to that end.

Member States are to coordinate ongoing efforts to investigate and prosecute persons suspected of having committed or participated in the commission of the relevant crimes. The contact points designated under Decision 2002/494/JHA are to meet at regular intervals with a view to exchanging information about experiences, practices and methods. These meetings may take place in conjunction with meetings within the European Judicial Network.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Decision 2003/335/JHA 14.5.2003 – OJ L 118 of 14.5.2003

Role of the European Union in the multilateral system of the UN

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Role of the European Union in the multilateral system of the UN

Outline of the Community (European Union) legislation about Role of the European Union in the multilateral system of the UN

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These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Development > General development framework

Role of the European Union in the multilateral system of the UN

The EU develops relationships and builds partnerships with third countries and international, regional or global organisations which share its principles and values. It promotes multilateral solutions to global problems, in particular within the framework of the United Nations (UN) (Article 21 of the Treaty on EU).

The EU therefore contributes towards strengthening the effectiveness of the multilateral system and reforming the system of governance of the UN *, for a stronger international society founded on the proper functioning of international institutions and due process of law.

In addition, the European security strategy highlights the fundamental role of the Charter of the United Nations as a framework for international relations and the vital role of the UN Security Council in maintaining peace and global security.

EU participation in the UN system

The EU has had the status of observer member within the UN since 1974. Since the entry into force of the Treaty of Lisbon, the EU has had legal personality and sole capacity to represent the Member States at the UN (Resolution 665/276 of the UN General Assembly). These representation duties are performed by the President of the European Council, the High Representative, the Commission and the EU delegations.

The EU also has an essential role in the development, adoption and implementation of its partner countries’ multilateral commitments.

Finally, the partnership between the EU and the UN is based on political and operational cooperation for the completion of joint programmes and projects. In this respect, the combined financial contribution of the EU and its Member States is one of the main sources of the UN’s budget.

The principal areas of cooperation are as follows:

  • maintaining peace and security in the world, through a full partnership ranging from conflict prevention to reconstruction and peacebuilding. The EU’s contribution takes the form of human and financial resources. In addition, the EU’s foreign and security policy (CFSP) allows an increase in civil and military cooperation. This partnership extends to reform of the security sector, mediation and conflict management capacity, the combating of illicit trafficking in small arms and ammunition, and the promotion of the role of women in peace processes;
  • the promotion of human rights, gender equality and democracy, by defending standards and mechanisms for the protection of human rights, within the UN and through bilateral cooperation. Action in this area concerns, in particular, the rights of women and children, electoral assistance and the strengthening of parliaments, legal systems and civil society;
  • human, economic and social development, particularly by coordinating action in the field of development assistance and humanitarian aid. The fight against poverty and the achievement of the Millennium Development Goals (MDGs) represent priorities for cooperation, including through the UN’s agencies, funds and thematic programmes;
  • environmental protection and tackling climate change, particularly for the adoption of agreements and international conventions, and for the reform of international environmental governance;
  • humanitarian assistance and food aid, in particular through the UN’s special mandate and aid from the EU, which is the largest sponsor of operations undertaken worldwide. The partners are also committed to risk management, assessing the needs of third countries and reform of the humanitarian system;
  • the fight against international and regional threats to security, such as terrorism, the proliferation of small arms and light weapons, organised crime, drug trafficking and money laundering.
Key terms
  • Multilateral governance: a method of organisation of international relations, involving more than two States.
  • System of governance of the UN: a concept defined by the Commission as applying to the main bodies of the UN (the General Assembly, the Economic and Social Council and their subsidiary bodies, the Security Council, the Secretariat), and the programmes, funds and specialised institutions of the United Nations, including the Bretton Woods institutions (the World Bank and the International Monetary Fund).

European and international courts

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European and international courts

Outline of the Community (European Union) legislation about European and international courts

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These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

European and international courts

COURTS OF THE EUROPEAN UNION

The Court of Justice of the EU (CJEU) refers to the whole judicial system of the EU. It is composed of three courts:

  • the Court of Justice;
  • the General Court;
  • the Specialised Courts.

Court of Justice

The Court of Justice has jurisdiction in actions brought by Member States or European institutions. It may also have jurisdiction of last resort in judgments delivered by the General Court. In this case, it rules on the questions of law only and not on the facts of the case.

General Court

The General Court is attached to the Court of Justice and is designed to reduce that Court’s workload.

The General Court has jurisdiction to hear at first instance actions brought by Member States or individuals in the cases provided for by the European Treaties.

Specialised Courts

The Specialised Courts were created by the European Parliament and the Council in accordance with the ordinary legislative procedure. These courts have jurisdiction at first instance in certain categories of action on specific matters.

Different types of action

The CJEU is responsible for ensuring compliance with European law. It has jurisdiction in actions brought by Member States, other European institutions and European citizens. There are several types of procedure:

  • the action for annulment;
  • the proceedings for failure to fulfil an obligation;
  • the proceedings for failure to act;
  • the action for damages;
  • the reference for a preliminary ruling.

INTERNATIONAL COURTS

There is a wide range of courts and tribunals that hear disputes at international level and which have their headquarters on European territory. However, these courts do not come under the auspices of the European Union. They are:

  • the courts of other European organisations, in particular the European Court of Human Rights and the EFTA Court (European Free Trade Association);
  • the courts created under the auspices of the United Nations;
  • the independent dispute settlement bodies of the United Nations.

Courts of other European organisations

Neither the European Court of Human Rights nor the EFTA Court is a European Union institution.

The European Court of Human Rights is an international court set up under the Council of Europe, which currently has 47 Member States. The Court enforces the European Convention on Human Rights, signed on 4 November 1950.

The EFTA Court enforces the Agreement on the European Economic Area (EEA). The Agreement secures freedom of movement of persons, goods, services, etc.

Courts created under the auspices of the United Nations

The Member States of the United Nations have established three Permanent Courts of Justice – the International Court of Justice, the International Criminal Court and the International Tribunal for the Law of the Sea.

The
International Court of Justice

(ICJ). The ICJ was founded by the Charter of the United Nations, signed on 26 June 1945. It is the main judicial body in the United Nations family and has jurisdiction in, among other matters, questions relating to the Charter of the United Nations, the interpretation of international treaties, questions of international law, violations of international law and the nature and extent of compensation in the event of a violation of an obligation under international law. Only States can be parties in cases in the Court. The ICJ sits at The Hague, in the Netherlands.

The
International Criminal Court

(ICC) has the power to try persons who have committed serious crimes of international concern. These crimes include genocide, crimes against humanity, war crimes and the crime of aggression. The ICC sits at The Hague, in the Netherlands.

The International Tribunal for the Law of the Sea is an independent court set up by the United Nations Convention on the Law of the Sea (FR). It has jurisdiction in disputes concerning the interpretation and application of the Convention. The States party to the Convention and natural and legal persons have access to the Tribunal, which sits at Hamburg, in Germany.

Furthermore, the United Nations has created two other non-permanent courts in order to try war crimes and certain genocides:

  • the
    International Criminal Tribunal for the Former Yugoslavia (ICTY):     the ICTY was created to try persons presumed to be responsible for war crimes committed in the Balkans during the conflicts in the 1990s;
  • the
    International Criminal Tribunal for Rwanda (ICTR):     the ICTR was created to try persons presumed to be responsible for acts of genocide and other serious violations of international humanitarian law committed on Rwandan territory between 1 January and 31 December 1994.

United Nations independent dispute-settlement bodies

Apart from the international courts and tribunals, there are several other dispute-settlement bodies, in particular the Permanent Court of Arbitration and the World Trade Organisation (WTO) Dispute Settlement Body.

The
Permanent Court of Arbitration (PCA) is an independent intergovernmental organisation. It administers arbitration and conciliation procedures and committees of inquiry in disputes between Member States, private parties and intergovernmental organisations on the basis of international arbitration regulations. The PCA sits at The Hague, in the Netherlands.

The
World Trade Organization (WTO) Dispute Settlement Body settles disputes in world trade. WTO dispute settlement is governed by the memorandum of agreement signed at Marrakech in 1994 following the Uruguay Round negotiations. The memorandum puts the emphasis on consultation and sets strict deadlines for settling disputes. The WTO is based at Geneva, in Switzerland.

This summary is for information only. It is not intended to interpret or replace the reference document, which remains the only binding legal text.

Conclusion of the United Nations Convention against organised crime

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Conclusion of the United Nations Convention against organised crime

Outline of the Community (European Union) legislation about Conclusion of the United Nations Convention against organised crime

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Justice freedom and security > Fight against organised crime

Conclusion of the United Nations Convention against organised crime

Document or Iniciative

Council Decision 2004/579/EC of 29 April 2004 on the conclusion, on behalf of the European Community, of the United Nations Convention against transnational organised crime [Official Journal L 261, 6.8.2004].

Summary

The Decision is intended solely to enable the European Union to accede to the UN Convention against transnational organised crime and the Protocols supplementing it, which deal specifically with trafficking in persons, especially women and children, criminal organisations involved in illegal immigration and illegal employment, and trafficking in firearms.

The scale of organised crime as a proportion of the world economy is substantial. Its turnover is estimated at around a million million dollars a year. In response to this worrying transnational problem, legislation has been drafted by regional organisations such as the European Community and by international bodies such as the UN.

Main objectives

The main aims of the Convention are as follows.

  • It will harmonise certain criminal offences. This will bring the laws of different countries more closely into line, which will help to make the law clearer. An act which is an offence in one state party to the Convention will then be recognised as an offence in another such state. The Convention lays down a number of universal definitions of concepts in criminal law relating to organised crime, such as participation in an organised criminal group, money laundering, and corruption.
  • It will facilitate cooperation between states in law enforcement matters by establishing procedures for mutual assistance and extradition in a worldwide framework, and for joint investigative bodies.

The Convention pursues an overall objective of combating organised crime, which is an aim supported by the EU. The Hague Programme includes organised crime among cross-border questions to be dealt with as a matter of priority. The Commission has also drawn up a ” strategic concept ” setting out EU priorities and objectives for tackling organised crime.

Content

The content of the Convention has been the subject of much negotiation and a number of decisions on the part of the Member States. The Member States adopted a Joint Position at the end of 2000.

The main difficulty was the division of powers between the EU as such and its Member States. This is an essential question which the Council and the Commission discussed at length before concluding the Convention on behalf of the European Community.

For example, the initial text of the Convention would have recognised that the Community had general competence in matters of money laundering. Following negotiation in the Council this competence was ultimately restricted to the subject matter of the directives on money laundering and public contracts. Measures relating to police and law enforcement cooperation are part of the “third pillar”, and are not ordinarily within the scope of the Community’s powers.

The Member States did agree, however, that the Convention should include provisions on the following points.

  • The Convention requires the states party to it to criminalise certain conduct, in line with the Joint Action on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union. Under the Convention, each State Party is to adopt such legislative and other measures as may be necessary to establish as criminal offences certain acts of participation or complicity directly or indirectly linked to the activities of an organised criminal group. Thus reference is now made to the concept of organised crime to impose heavier penalties for conduct the definition of which has now been harmonised at European level. The Convention brings the penalties for any conduct associated with organised crime more closely into line.
  • The Convention permits the prevention, investigation and prosecution of crime involving participation in an organised criminal group, laundering of the proceeds of crime, corruption, and obstruction of justice.
  • It increases the number of offences relating to money laundering. It calls for a comprehensive domestic regulatory and supervisory regime for banks and non-bank financial institutions and, where appropriate, other bodies particularly susceptible to money laundering. Despite the greater number of offences considered to be associated with money laundering, the fight against money laundering is not within the scope of the ordinary powers of the European Community, and Member States are asked to be guided in this area by the measures set out in the Convention and elsewhere.
  • It provides a number of guarantees for the protection of human rights.

The objectives set by the Council when preparations were being made for the adoption of the Convention have accordingly been complied with, and the Convention can be approved on behalf of the European Community.

Related Acts

Protocol to prevent, suppress and punish trafficking in persons:

Council Decision 2006/619/EC of 24 July 2006 on the conclusion, on behalf of the European Community, of the Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against transnational organised crime concerning the provisions of the Protocol, in so far as the provisions of the Protocol fall within the scope of Part III, Title IV of the Treaty establishing the European Community [Official Journal L 262, 22.9.2006].

Council Decision 2006/618/EC of 24 July 2006 on the conclusion, on behalf of the European Community, of the protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against transnational organised crime concerning the provisions of the Protocol, in so far as the provisions of this Protocol fall within the scope of Articles 179 and 181a of the Treaty establishing the European Community [Official Journal L 262, 22.9.2006].

On 14 February 2000 the Council adopted decisions authorising the Commission to negotiate two draft Protocols supplementing the UN Convention against organised crime:

  • a draft Protocol against the smuggling of migrants by land, sea and air;
  • a draft Protocol to prevent, suppress and punish trafficking in persons, especially women and children.

Protocol on the illicit manufacturing of and trafficking in firearms:

Council Decision 2001/748/EC of 16 October 2001 concerning the signing on behalf of the European Community of the United Nations Protocol on the illicit manufacturing of and trafficking in firearms, their parts, components and ammunition, annexed to the Convention against transnational organised crime [Official Journal L 280, 24.10.2001].
On 31 January 2000, the Council adopted a Common Position on the proposed Protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, supplementing the United Nations Convention against transnational organised crime [Official Journal L 37, 12.2.2000].
The Member States there agreed between themselves on a definition of firearms. They also agreed that further consideration of any question relating to the illicit manufacture of and trafficking in explosives and their use for criminal purposes should await the outcome of a study that was to be carried out by a UN ad hoc expert group. The draft of a Protocol on the illicit manufacturing of and trafficking in firearms was finalised at a meeting of this ad hoc committee in Vienna from 26 February to 2 March 2001. The draft was adopted by the General Assembly of the United Nations on 31 May 2001, and opened to all states for signature from the thirtieth day following its adoption. The EU Member States have said they favour rapid adoption of the Protocol.

United Nations Convention against Corruption

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United Nations Convention against Corruption

Outline of the Community (European Union) legislation about United Nations Convention against Corruption

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Fight against fraud > Fight against corruption

United Nations Convention against Corruption

Document or Iniciative

Council Decision on the signing, on behalf of the European Community, of the United Nations Convention against Corruption.

Summary

At the conference held in Merida (Mexico) from 9 to 11 December 2003, the United Nations Convention against Corruption was opened for signing. At its 2658th session on 10 May 2005, the Council adopted the Commission proposal concerning the signing of the Convention.

The Decision authorises the President of the Council to designate the persons empowered to sign the United Nations Convention on behalf of the European Community. On 15 September 2005, the European Commission and the Council Presidency signed the Convention on behalf of the European Community. The Convention, now known as the Merida Convention, was adopted by the UN General Assembly on 31 October 2003 (Resolution 58/4) and was open for signing until 9 December 2005.

Producing an effective instrument against corruption

In December 2000, the UN General Assembly decided to establish a special committee open to all States for drawing up an effective international legal instrument against corruption (Resolution 55/61). The committee negotiated the Convention between January 2002 and October 2003. The Commission represented the European Community’s interests.

The Commission considers that the objectives set by the Council in its negotiating directives have been attained. The Convention provides for a high standard of preventive and technical assistance measures in matters within the Community’s powers, in particular with regard to the internal market. This includes measures to prevent and to combat money laundering, as well as standards on accounting in the private sector and on transparency and equal access of all candidates for public works supply and service contracts.

As the Member States stated that they would sign the Convention as soon as it was opened for signing in Merida, Mexico (Spain alone of the EU15 not having done so), the Commission asserts that the European Community should also do so. To that end, the Commission proposed that the Presidency of the Council designate the persons empowered to sign the Convention on behalf of the European Community. The Council adopted the Commission proposal without debate.

Fighting corruption: the UN Convention

The purposes of the Convention are to:

  • promote and strengthen measures to prevent and combat corruption more efficiently and effectively;
  • promote, facilitate and support international cooperation and technical assistance;
  • promote integrity, accountability and proper management of public affairs and public property.

It applies to the prevention, investigation and prosecution of corruption and to the freezing, seizure, confiscation and return of the proceeds of offences.

The Convention enumerates in detail the measures to prevent corruption, including the application of prevention policies and practices, the establishment of bodies for that purpose, the application of codes of conduct for public officials and objective criteria for the recruitment and promotion of civil servants, and public procurement. It recommends promoting transparency and accountability in the management of public finances and in the private sector, with tougher accounting and auditing standards. Measures to prevent money-laundering are also provided for, together with measures to secure the independence of the judiciary. Public reporting and the participation of society are encouraged as preventive measures.

Regarding criminalisation, detection and repression, the Convention recommends the State Parties to adopt such legislative and other measures as may be necessary to establish a whole series of criminal offences. These are:

  • corruption of national or foreign public officials and officials of public international organisations;
  • embezzlement, misappropriation or other diversion by a public official of any public or private property;
  • trading in influence;
  • abuse of functions and illicit enrichment.

In all respects, the Convention regards as corruption the offer or acceptance of undue advantages for oneself or for another person or entity.

In the private sector, it calls for the creation of offences of embezzlement and corruption. There would also be offences of laundering the proceeds of crime, handling stolen property, obstructing the administration of justice, and participating in and attempting embezzlement or corruption.

The State Parties are recommended to take the necessary measures to:

  • provide for the liability of legal persons;
  • allow the freezing, seizure and confiscation;
  • protect witnesses, experts and victims;
  • protect reporting persons;
  • tackle the consequences of acts of corruption;
  • ensure that entities or persons who have suffered damage as a result of an act of corruption have the right to initiate legal proceedings for compensation;
  • establish a body or bodies or appoint persons specialised in combating corruption through law enforcement;
  • encourage cooperation with law enforcement authorities;
  • encourage cooperation between national authorities and with the private sector;
  • overcome obstacles that may arise out of the application of bank secrecy laws;
  • take account of the previous convictions of an alleged offender in another State for the purpose of criminal proceedings;
  • establish their jurisdiction over offences committed on their territory, or against them, or by one of their nationals etc.

State Parties are also to take the necessary measures concerning proceedings and penalties against public officials, so as to strike a balance between their immunities and the offences committed by them, including the ensuing consequences.

The Convention devotes a chapter to international cooperation. The State Parties are to cooperate on criminal matters and on matters of extradition and transfer of sentenced persons, in a variety of situations described by the Convention. Mutual judicial assistance is a major item in this chapter and the Convention considers a variety of scenarios to provide for the largest range of possibilities for assistance.

The State Parties can also transfer criminal proceedings when necessary, conduct joint investigations and make use of special investigative techniques such as electronic surveillance. Enforcement authorities are called on to cooperate with each other through more effective channels of communication and cooperation when conducting investigations.

Chapter V concerns asset recovery. The return of assets pursuant to this chapter is a fundamental principle of the Convention. Financial institutions are encouraged to verify the identity of customers and beneficial owners of high-value accounts and to avoid banks that have no physical presence and are not affiliated with a regulated financial group. The chapter further specifies measures to be taken for the direct recovery of assets and the machinery for doing this by means of international cooperation on confiscation. Such assets should be returned in accordance with the rules laid down by the Convention. A financial intelligence unit and bilateral or multilateral agreements or arrangements to enhance the effectiveness of international cooperation are also called for.

State Parties are required to develop specific training programmes and provide one another the widest measure of technical assistance. The collection, exchange and analysis of information on corruption is provided for, as are practical measures to enhance cooperation at various levels, as well as financial and material assistance to support the efforts of developing countries and countries with economies in transition to prevent and fight corruption effectively.

A conference of the State Parties is established to improve their capacity and cooperation, in order to achieve the objectives set forth in the Convention and to promote and review its implementation.

The Convention is open for signature by regional economic integration organisations, provided that at least one Member State of such an organisation has signed it. It is to enter into force on the 90th day after the date of deposit of the 30th instrument of ratification, acceptance, approval or accession.

Related Acts

Council Decision 2008/201/EC of 25 September 2008 on the conclusion, on behalf of the European Community, of the United Nations Convention against Corruption [Official Journal L 287 of 29.10.2008].
With this Decision, the United Nations Convention against Corruption was approved on behalf of the European Community. The Decision authorises the President of the Council to designate the person(s) who shall be empowered to deposit the Community’s instrument of formal confirmation. This instrument is binding on the Community. It consists of a declaration of the Community’s competence regarding matters that are governed by the Convention (Annex II) and of a statement concerning dispute settlement on the interpretation or application of the Convention (Annex III).