Input for the research on the use of universal criminal jurisdiction in cases of enforced disappearance

 Submitted by: Dean Bordode Date: September 11th 2024 Word Count: Approximately 3200 words 

Introduction The principle of universal criminal jurisdiction stands as a critical tool in addressing heinous international crimes, particularly enforced disappearance. This legal doctrine allows states to prosecute certain grave offenses regardless of where they occurred or the nationalities of the perpetrators and victims. Its significance lies in its potential to overcome the limitations of conventional legal mechanisms, especially in cases where political constraints, state complicity, or a lack of accountability in the jurisdiction where the crime occurred might otherwise lead to impunity. Enforced disappearance, characterized by the arrest, detention, or abduction of persons by state agents or those acting with state authorization, followed by a refusal to acknowledge the deprivation of liberty, represents a particularly egregious violation of human rights [1]. Its ongoing nature and the profound impact on victims’ families and communities make it a prime candidate for the application of universal jurisdiction. This submission aims to provide a comprehensive analysis of the challenges, legal frameworks, and best practices surrounding the use of universal jurisdiction in tackling cases of enforced disappearance. By examining the complexities involved, from legal hurdles to practical implementation issues, we seek to contribute to the ongoing dialogue on strengthening international justice mechanisms. 1. Legal Framework The legal foundation for universal criminal jurisdiction in cases of enforced disappearance is rooted in both international treaties and customary international law. Key instruments include: 1. The International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED): Adopted in 2006, this convention explicitly calls on states to exercise universal jurisdiction over the crime of enforced disappearance [2]. 2. The Rome Statute of the International Criminal Court: While not directly invoking universal jurisdiction, it recognizes enforced disappearance as a crime against humanity when committed as part of a widespread or systematic attack against civilians. 3. The Inter-American Convention on Forced Disappearance of Persons: This regional instrument also promotes the exercise of universal jurisdiction among its signatories. National implementation of these international obligations varies significantly. Some countries have incorporated comprehensive universal jurisdiction provisions into their domestic law: - Spain: The Organic Law on the Judiciary (Article 23.4) allowed for broad application of universal jurisdiction until reforms in 2014 limited its scope. - Germany: The Code of Crimes against International Law (Völkerstrafgesetzbuch) enables German courts to prosecute international crimes committed abroad. - Belgium: The Act Concerning the Punishment of Grave Breaches of International Humanitarian Law initially provided for absolute universal jurisdiction but was later amended to require a link to Belgium. Challenges: 1. Legal Fragmentation: The inconsistent implementation of universal jurisdiction across national legal systems creates a patchwork of approaches, making it difficult to pursue cross-border justice systematically. 2. Conditional vs. Absolute Jurisdiction: While some states require the presence of the accused in their territory to initiate proceedings (conditional universal jurisdiction), others allow for in absentia prosecutions (absolute universal jurisdiction). This disparity can lead to forum shopping and uneven application of justice. 3. Immunities: The tension between universal jurisdiction and the immunities afforded to certain state officials under international law remains a significant obstacle. The International Court of Justice’s ruling in the case of the Democratic Republic of the Congo v. Belgium (2002) highlighted this conflict, affirming that sitting foreign ministers enjoy immunity from foreign criminal jurisdiction [3]. 4. Retroactivity: Questions about the retroactive application of universal jurisdiction laws, especially in cases of enforced disappearance that may have occurred before the enactment of relevant legislation, pose legal and ethical challenges. 2. Competent Authorities The effective implementation of universal jurisdiction requires specialized structures within national legal systems. Countries have adopted various models: 1. Dedicated War Crimes Units: - Germany: The Central Office for the Investigation of National Socialist Crimes, established in 1958, has evolved to handle a broader range of international crimes [4]. - The Netherlands: The International Crimes Team within the Dutch National Police works in conjunction with a specialized prosecution unit. 2. Specialized Courts: - Uganda: The International Crimes Division of the High Court has jurisdiction over genocide, war crimes, and crimes against humanity. - Senegal: The Extraordinary African Chambers were established within the Senegalese court system to try international crimes committed in Chad under Hissène Habré’s regime. 3. Prosecutorial Discretion: - France: The Paris Prosecutor’s Office includes a unit dedicated to crimes against humanity, allowing for centralized expertise in handling complex international cases. Best Practices: 1. Centralization of Expertise: Concentrating resources and knowledge in specialized units enhances the capacity to handle the complexities of international crimes. 2. Interdisciplinary Teams: Combining legal experts with investigators, forensic specialists, and cultural liaisons improves the quality of investigations and prosecutions. 3. International Cooperation: Establishing formal and informal networks between national authorities facilitates information sharing and mutual legal assistance. Challenges: 1. Resource Constraints: Many countries lack the financial and human resources to establish and maintain specialized units for international crimes.2. Political Interference: The sensitive nature of cases involving enforced disappearance, often implicating state actors, can lead to political pressure on investigative and prosecutorial authorities. 3. Jurisdictional Conflicts: When multiple countries assert jurisdiction over the same case, coordinating investigations and avoiding duplication of efforts becomes crucial. 3. Procedural Peculiarities and Hurdles The prosecution of enforced disappearances under universal jurisdiction presents unique procedural challenges: 1. Evidence Gathering: - Cross-Border Investigations: Collecting evidence from foreign jurisdictions often requires complex diplomatic negotiations and mutual legal assistance treaties. - Forensic Challenges: The nature of enforced disappearances, involving concealment of victims’ fates, necessitates specialized forensic expertise, including in exhumations and DNA analysis. 2. Temporal Aspects: - Continuous Crime: The ongoing nature of enforced disappearance raises questions about the application of statutes of limitations and the jurisdiction of courts established after the initial act of disappearance. 3. State Cooperation: - Access to Archives: Investigating historical cases often requires access to classified state archives, which may be restricted or sanitized. - Extradition: The political nature of many enforced disappearance cases can complicate extradition proceedings, as seen in the case of former Peruvian President Alberto Fujimori. Best Practices: 1. Structural Investigations: Focusing on patterns of disappearances rather than isolated incidents can help establish the systematic nature of the crime and implicate higher-level perpetrators. 2. Use of Technology: Employing satellite imagery, database analysis, and other technological tools can assist in corroborating witness testimony and identifying potential burial sites. 3. Complementarity: Coordinating efforts between national jurisdictions and international bodies like the ICC can maximize resources and avoid conflicts of jurisdiction. Case Study: The Pinochet Case The attempted prosecution of former Chilean dictator Augusto Pinochet in Spain represents a landmark in the application of universal jurisdiction. Spanish Judge Baltasar Garzón’s indictment of Pinochet in 1998 for crimes including enforced disappearance set a precedent for holding former heads of state accountable. Although Pinochet was ultimately not extradited to Spain, the case catalyzed domestic prosecutions in Chile and inspired similar actions worldwide [5]. Challenges: 1. Evidentiary Standards: The high evidentiary thresholds required in criminal proceedings can be difficult to meet in cases of enforced disappearance, especially when key evidence may be located in uncooperative jurisdictions. 2. Statutes of Limitations: While enforced disappearance is considered a continuous crime under international law, not all domestic legal systems recognize this concept, potentially barring prosecution of historical cases. 3. Ne Bis in Idem (Double Jeopardy): Coordinating prosecutions across multiple jurisdictions to avoid double jeopardy concerns while ensuring accountability remains a complex challenge. 4. Victims’ Participation The involvement of victims and their families is crucial in cases of enforced disappearance, not only for evidentiary purposes but also to ensure that justice serves its restorative function: 1. Legal Standing: - Argentina: The “querella” system allows victims and their representatives to participate actively in criminal proceedings, including the ability to present evidence and question witnesses. - ICC: The Rome Statute provides for victim participation and representation, setting a standard for victim involvement in international criminal proceedings. 2. Protective Measures: - Witness Protection Programs: Countries like Colombia have developed comprehensive witness protection schemes, crucial in cases involving state-sponsored crimes. - Anonymous Testimony: Some jurisdictions allow for anonymity of witnesses in court proceedings to protect them from reprisals. 3. Reparations: - Comprehensive Reparations: The Inter-American Court of Human Rights has developed a rich jurisprudence on reparations for victims of enforced disappearance, including measures of satisfaction and guarantees of non-repetition. Best Practices: 1. Victim-Centered Approach: Prioritizing the needs and perspectives of victims throughout the legal process, from investigation to sentencing. 2. Psychological Support: Providing ongoing psychological assistance to victims and witnesses, recognizing the traumatic nature of enforced disappearance cases. 3. Cultural Sensitivity: Ensuring that legal proceedings respect the cultural and religious practices of victims, particularly in cases involving indigenous communities. Case Study: The Sepur Zarco Case, Guatemala This landmark case, which resulted in the conviction of two former military officers for crimes against humanity including sexual violence and enforced disappearance, exemplifies the power of victim participation. The testimony of 15 Q’eqchi’ women was central to the prosecution, supported by a network of civil society organizations that provided psychosocial support and ensured cultural appropriateness throughout the proceedings [6]. Challenges: 1. Security Risks: Victims and witnesses in enforced disappearance cases often face severe security risks, including threats and acts of intimidation. 2. Re-traumatization: The legal process, particularly cross-examination, can re-traumatize victims and their families if not handled sensitively. 3. Resource Limitations: Ensuring meaningful participation of victims, especially from marginalized communities, requires significant financial and logistical resources that may strain the capacities of legal systems. 5. Role of Non-State Actors While state actions and judicial processes are central to addressing enforced disappearances, the role of non-state actors in both perpetrating these crimes and combating impunity is increasingly significant: 1. Non-State Armed Groups: - In conflict zones, non-state armed groups have been implicated in enforced disappearances, complicating the application of universal jurisdiction which traditionally focuses on state actors. - Example: The actions of groups like ISIS/ISIL in Syria and Iraq have led to numerous enforced disappearances, challenging the international legal framework [7]. 2. Civil Society Organizations: - NGOs play a crucial role in documenting cases, supporting victims, and advocating for accountability. - The International Coalition Against Enforced Disappearances (ICAED) coordinates efforts globally to combat enforced disappearances. 3. Truth Commissions: - While not judicial bodies, truth commissions can complement universal jurisdiction efforts by uncovering patterns of abuse and preserving evidence. - The Commission for Historical Clarification in Guatemala, for instance, documented numerous cases of enforced disappearance, laying groundwork for later prosecutions. Challenges: - Engaging non-state armed groups in accountability processes without legitimizing their actions. - Ensuring the safety and credibility of civil society actors involved in sensitive investigations. 6. Technological Advancements and Forensic Innovations Technological advancements are significantly impacting the investigation and prosecution of enforced disappearance cases: 1. DNA Databases: - The creation of DNA databases of missing persons and their relatives has revolutionized identification processes. - Argentina’s National Genetic Data Bank, established to identify children of the disappeared, serves as a model for other countries [8]. 2. Satellite Imagery: - Advanced satellite technology allows for the identification and monitoring of potential detention sites and mass graves. - Organizations like Amnesty International have used satellite imagery to document prison camps in North Korea. 3. Digital Evidence: - Social media posts, encrypted communications, and digital records are increasingly crucial in building cases. - Challenges include verifying the authenticity of digital evidence and navigating privacy laws across jurisdictions. 4. AI and Machine Learning: - Emerging AI technologies can assist in pattern recognition and processing large volumes of data, potentially uncovering previously undetected cases or links between cases. Challenges: - Ensuring the admissibility of technologically derived evidence in court proceedings. - Addressing the digital divide that may limit access to these technologies in certain jurisdictions. 7. International Cooperation and Capacity Building Effective application of universal jurisdiction in enforced disappearance cases requires robust international cooperation: 1. Interpol’s Role: - Interpol’s database and Red Notice system play a vital role in tracking suspects across borders. - The organization’s capacity-building programs help national law enforcement agencies develop skills in investigating international crimes. 2. Regional Cooperation Mechanisms: - The European Network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes (Genocide Network) facilitates cooperation between EU member states [9]. - The Inter-American System, including the Court and Commission, has developed significant jurisprudence on enforced disappearances. 3. Capacity Building Initiatives: - Programs like the ICC’s Legal Tools Project provide resources and training to national jurisdictions. - The United Nations Office on Drugs and Crime (UNODC) offers technical assistance to states in implementing the International Convention for the Protection of All Persons from Enforced Disappearance. 4. Knowledge Sharing Platforms: - The development of secure, international databases for sharing information on cases, suspects, and best practices. Regular international conferences and workshops for practitioners to exchange experiences and strategies. Challenges: - Overcoming political reluctance to cooperate in sensitive cases involving state officials. - Harmonizing different legal systems and evidentiary standards to facilitate smoother cooperation. Conclusion The application of universal criminal jurisdiction in cases of enforced disappearance represents a powerful tool in the fight against impunity. However, its effective implementation requires overcoming significant legal, procedural, and practical challenges. By strengthening international cooperation, harmonizing legal standards, and centering the experiences of victims, the global community can enhance the efficacy of universal jurisdiction as a mechanism for accountability. Key recommendations for improving the use of universal jurisdiction in enforced disappearance cases include: 1. Legislative reforms to incorporate comprehensive universal jurisdiction provisions into domestic law, explicitly addressing the continuous nature of enforced disappearance. 2. Establishment of specialized units within national legal systems to handle international crimes, equipped with interdisciplinary expertise. 3. Development of robust international cooperation mechanisms, including streamlined mutual legal assistance processes and joint investigative teams. 4. Implementation of victim-centered approaches that prioritize protection, participation, and reparation throughout the legal process. 5. Investment in capacity-building programs to enhance the ability of national judiciaries to handle complex international cases 6. Invest in and leverage technological advancements in forensic science and data analysis to strengthen investigations and evidence gathering. 7. Enhance international cooperation mechanisms, including capacity-building initiatives and knowledge-sharing platforms, to support states in effectively implementing universal jurisdiction. 8. Recognize and support the role of civil society organizations in documenting cases and advocating for accountability. 9. Develop strategies to address enforced disappearances perpetrated by non-state armed groups, ensuring that universal jurisdiction can be effectively applied to these cases. As we continue to refine and expand the application of universal jurisdiction to cases of enforced disappearance, it is crucial to adopt a multifaceted approach that combines legal innovation, technological advancement, and international cooperation. By doing so, we can hope to close the impunity gap and provide justice and closure to the countless victims and families affected by this egregious crime. References [1] United Nations. (2006). International Convention for the Protection of All Persons from Enforced Disappearance. Treaty Series, 2716, 3. [2] Citroni, G. (2016). The Specialist Chambers of Kosovo: The Applicable Law and the Special Challenges Related to the Crime of Enforced Disappearance. Journal of International Criminal Justice, 14(1), 123-143. [3] International Court of Justice. (2002). Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium). I.C.J. Reports 2002, p. 3. [4] Langer, M. (2015). Universal Jurisdiction is Not Disappearing: The Shift from ‘Global Enforcer’ to ‘No Safe Haven’ Universal Jurisdiction. Journal of International Criminal Justice, 13(2), 245-256. Roht-Arriaza, N. (2001). The Pinochet Precedent and Universal Jurisdiction. New England Law Review, 35(2), 311-319. 

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