Overview of the EU policy framework

• Author: Olympia Bekou
• Pages: 26-36

Policy Department , Directorate-General for External Policies

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future. However, no ratification instrument has been deposited to date, although fifteen AU States have

signed.

The International Court of Justice may also play an important role in the fight against im punity. However,

as the Geneva Conventions do not give it jurisdiction and there is currently no standalone convention on

crimes against humanity, the ICJs contribution is necessarily limited to the crime of genocide. Even though

the ICJ does not decide on individual criminal responsibility, its contribution to accountability includes

issuing provisional measures and decisions regarding State responsibility not just for commission of

genocide, but also for complicity, conspiracy and failure to prevent genocide under the Genocide

Convention. To date, the Court has heard three such cases: in Bosnia and Herzegovina v Serbia and

Montenegro, the Court found that Serbia had not committed, co nspired to commit or been complicit to

genocide, but held that it had violated the obligation to prevent the crime from happening and its

obligation to transfer Ratko Mladić to the ICTY. In Croatia v Serbia, the Court dismissed Croatia’s claim tha t

Serbia committed genocide in its entirety. Finally, at the time of writing, there is an ongoing case, The

Gambia v Myanmar, which will be analysed in the country section on Myanmar (infra Section 4.4.6). Given

the positive contributions made by the ICJ under the Genocide Convention and the potential impact of

cases, as seen in Myanmar, the adoption of a new Convention on the Prevention and Punishment of Crimes

against Humanity, which is currently under discussion in the International Law Commission, would

represent another positive step in the fight against impunity.

3. Overview of the EU policy framework

The EU is recogni sed as one of the strongest supporters of accountability for core international crimes.

Through initiatives aimed at upholding the founding values embedded in Articles 2, 3 and 21 of the Treaty

on the European Union, the EU shows strong diplomatic and practical leadership on human rights and the

rule of law, the observance of international law and the promotion of peace and security. Commitment to

the prevention of core international crimes, accountability and the promotion of international justice

mechanisms are reiterated in the main Common Foreign and Security Policy instruments, such as the

Global Strategy and the Implementation Plan on Security and Defence (EEAS 2016a; Council 2016a).

EU support for international and transitional justice is illustrated in the 2015-2019 Human Rights and

Democracy Action Plan, and the fight against impunity is anticipated to gain further prominence in the

2020-2024 Human Rights and Democracy Action Plan which is under discussion at the time of writing

(Interviews 8, 9; Council 2015a; Commission 2020a). Promoting the fight against impunity is therefore

within the mandate of the EU Special Representative (EUSR) for Human Rights, who promotes the entirety

of the EU’s external human rights agenda, facilitating political dialogues and representing the EU in

multilateral and bilateral fora (Interview Gilmore; Council 2019a). The EUSR also chairs the most sensitive

or challenging Human Rights Dialogues and Consultations which engage the political leadership of third

countries and international organisations on the human rights agenda, including accountability issues

(Interviews Gilmore, 8). The mandate of the EUSR was enhanced by the Council to specifically include

international humanitarian law and international criminal justice after the European Parliament advocated

for a subject specific EUSR to provide similar coordination and advocacy, a proposal that was endorsed by

the representatives of numerous civil society organisations (Parliament 2017a, 2017b; Kreissl-Dörfler;

Council 2019a; Human Rights Watch 2018b; HR/VP 2018a). The concept of a new EUSR had some support

as a figure which could have streamlined internal and external EU action, and the coherence of EU

initiatives amid a growing number of international accountability mechanisms (Interviews Arena, 2).

However, concerns included the potential fragmentation of the EU human rights agenda, meaning others

consider the enhanced mandate of the EUSR for Human Rights a welcome development (Interviews 3, 9).

The recent mandate expansion means its full impact cannot yet be known, but it will be particularly

valuable if it is supported by sufficient specialised human resources (Interview 8, 9).