9. GENOCIDE AND CRIMES AGAINST HUMANITY
(a)
(23622)
10204/02
(b)
(23805)
11562/02
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Proposal from the Kingdom of Denmark for a draft Council Decision on the investigation and prosecution of genocide, crimes against humanity and war crimes.
Proposal from the Kingdom of Denmark for a draft Council Decision on the investigation and prosecution of genocide, crimes against humanity and war crimes.
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| Legal base: | Articles 30, 31 and 34(2)(c) EU; consultation; unanimity
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| Document originated: | (a) 13 June 2002
(b) 3 October 2002
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| Deposited in Parliament: |
(a) 8 Jul 2002
(b) 30 September 2002 |
| Department: | Home Office
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| Basis of consideration: |
(a) EM of 1 August 2002
(b) EM of 15 October 2002
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| Previous Committee Report:
| None |
| To be discussed in Council:
| JHA Council 28-29 November 2002 |
| Committee's assessment: | Legally and politically important
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| Committee's decision: | Not cleared; further information requested
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Background
9.1 The Council Common Position 2001/443/CFSP of 11 June
2001 on the International Criminal Court[13]
recounted that crimes within the jurisdiction of the Court were
of concern to all Member States and that the Member States were
determined to cooperate in the prevention of such crimes and in
putting an end to the impunity of perpetrators of those crimes.
On 13 June 2002, the Council adopted a Decision setting up a European
network of contact points in respect of persons responsible for
genocide, crimes against humanity and war crimes (Council Decision
2002/494/JHA)[14].
The draft Council Decision
9.2 Document (a) is a proposed draft Council Decision
which aims to enhance the ability of law enforcement authorities
to co-operate in the investigation of and prosecution for genocide,
crimes against humanity and war crimes. It has been superseded
by the current version, document (b), which is the current version
reflecting the outcome of discussions in the relevant Council
working group and the Article 36 Committee[15].
9.3 Article 1 of the revised proposal defines the material
scope of the proposal as being co-operation in the investigation
of and prosecution for genocide, crimes against humanity and war
crimes. The original proposal referred also to 'similar serious
offences, including terrorism' but this has been deleted. The
aim of the Decision is stated to be to 'increase co-operation
between national units in order to maximise the ability of law
enforcement authorities in different Member States to co-operate
effectively'.
9.4 Article 2 is concerned with co-operation between
immigration and law enforcement authorities. It requires Member
States to 'take measures ensuring that the immigration authorities
shall be responsible for informing the law enforcement authorities'
in cases where, in connection with the processing of an application
for a residence permit, facts are established which give rise
to a suspicion that the applicant has committed one of the crimes
referred to in Article 1. Article 1(2) further requires Member
States to take the necessary measures to ensure that the relevant
national law enforcement and immigration authorities are able
to exchange the information 'which they require in order to carry
out their tasks under this provision effectively'.
9.5 Article 3 requires Member States to assist one another
in investigating and prosecuting the crimes referred to in Article
1, but this is to be in accordance with relevant international
agreements and national law. Article 3 further provides for the
provision of information by law enforcement and immigration authorities
in accordance with relevant international agreements and national
law. A recital to the draft Decision (which formerly appeared
as part of Article 2) provides that Member States should 'ensure
that law enforcement and immigration authorities have the appropriate
resources and structures to enable their effective co-operation
and the effective investigation and prosecution of genocide, crimes
against humanity and war crimes'.
9.6 Article 4 requires Member States to 'consider the
need to set up or designate specialist units' within the competent
law enforcement authorities with particular responsibility for
investigating or prosecuting the crimes referred to in Article
1.
9.7 Article 5 requires Member States to coordinate 'ongoing
efforts to investigate and prosecute' persons suspected of the
crimes referred to in Article 1. Article 5(2) requires the contact
points established by Council Decision 2002/494/JHA to meet at
regular intervals with a view to exchanging information about
experiences, practices and methods. Article 5(2) provides that
such meetings may take place in conjunction with meetings of the
European Judicial Network, and that representatives of the International
Criminal Tribunals for the former Yugoslavia and for Rwanda, as
well as representatives from the International Criminal Court,
may attend.
9.8 Article 5bis provides that any exchange of
information or processing of personal data under the Decision
must take place in accordance with international and domestic
data protection legislation.
The Government's view
9.9 In his Explanatory Memorandum of 15 October 2002
the Parliamentary Under-Secretary at the Home Office (Mr Bob Ainsworth)
explains that the proposal will have no significant impact on
UK law, since the immigration authorities may already exchange
data with the police when a serious offence is suspected. The
Minister indicates that the UK would implement those parts of
the Decision which require the exchange of information with other
EU countries by means of existing networks for police and judicial
cooperation.
9.10 The Minister refers to the concerns as to subsidiarity
which he raised in his earlier Explanatory Memorandum of 1 August
2002. On that occasion, the Minister stated that the Government
was not convinced that Articles 2, 3(1) and 4 of the proposal
fully complied with the principle of subsidiarity, since those
provisions were concerned with the exchange of information, and
requiring effective investigation and prosecution within individual
Member States. The Minister explained that the Government was
not sure how this related to the power to facilitate and accelerate
co-operation between Member States and that the Government was
unconvinced that EU-wide action would add value.
9.11 In his most recent Explanatory Memorandum, the Minister
explains that these subsidiarity difficulties have 'eased', because
those parts of Articles 3 and 4 which required Member States to
investigate and prosecute, and to make resources available to
guarantee that this would be effective, have been transferred
to the recitals.
9.12 In relation to Article 2, the Minister stated previously
that the concern over subsidiarity arose because, by requiring
the exchange of information between national immigration and law
enforcement authorities, the proposal sought to regulate Member
States' internal systems. The Minister now states that the purpose
of the instrument has been clarified in Article 1 so as to make
clear that its aim is to improve the ability of law enforcement
authorities to co-operate effectively in investigating the relevant
offences. The Minister also explains that, since Article 2 would
have no practical impact on the UK as the provisions it requires
are already in place, he does not consider that these subsidiarity
concerns 'now have weight'.
9.13 As for the policy implications of the revised proposal,
the Minister explains that the changes which have been made meet
a number of the Government's concerns with the earlier text, and
that the Government can now support the revised text. The Minister
welcomes the deletion of the reference to terrorism in Article
1 and the clarification of the aim of the measure.
9.14 In relation to Article 2, the Minister comments
as follows:
"We can see some advantage to what Article 2 proposes,
as it may increase the amount of information about war crimes
that is available to be exchanged between law enforcement authorities
in the EU. The proposal no longer suggests that law enforcement
authorities be involved in the processing of applications for
residence permits, which reduces the likelihood of its infringing
on immigration policy (which is a matter for Title IV TEC). We
can therefore, support Article 2."
9.15 The Minister notes that the requirement to appoint
coordinators has been deleted from Article 5, this being replaced
by a reference to the contact points established under Council
Decision 2002/494/JHA, and welcomes the provisions of Article
5 bis on data protection.
Conclusion
9.16 We note the Minister's view that his concerns
over subsidiarity have been 'eased' by the revised version of
the proposal. However, we consider that the proposal, and Article
2(1) in particular, interferes with the internal organisation
of Member States' immigration and criminal justice systems.
We do not consider that it is appropriate for an EU instrument
to impose obligations on one part of a Member State's administration
in relation to another, and we ask if the Minister shares this
view.
9.17 We ask the Minister to explain his view that
his subsidiarity concerns over the requirements to investigate
and prosecute and to make resources available to guarantee that
this would be effective, have been 'eased' because these requirements
appear in the recitals rather than in Articles 3 and 4 of the
proposal.
9.18 We also ask the Minister if this proposal serves
any useful purpose which is not already achieved by existing EU
instruments or which could not be achieved by informal cooperation
between the authorities of Member States.
9.19 We clear document (a) on the grounds that it
has been superseded, but we shall hold document (b) under scrutiny
pending the Minister's reply.
13 OJ
No L 155 of 12.6.2001, p.19. Back
14 OJ
No L 167 of 26.6.2002, p.1. Back
15 A
committee of senior officials established under Article 36 EU
to give opinions to the Council. Back
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