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II. Challenges and Responses—Making Universal Jurisdiction a Reality

From the initial complaint to the conclusion of the trial and any appeal, cases involving universal jurisdiction present special demands on police, prosecutors, defense counsel and courts.  Because the acts in question will have occurred in a foreign country, and often many years earlier, cases rarely arise in the manner to which local authorities are accustomed—such as through a victim simply reporting to a police station. 

Investigators and prosecutors may lack familiarity with both the historical and political context of the alleged crime, and the applicable international law.  Witnesses may be dispersed across several countries, or the state in which the crime was committed may decline to cooperate with investigative requests.  For similar reasons, a defendant may also face considerable problems gaining access to witnesses or evidence that exculpates him or her. 

Despite these and other difficulties, cases have been opened and have proceeded to trial and conviction.  These developments have generally occurred where law enforcement and judicial authorities in the relevant countries have made an organizational and institutional commitment to take potential universal jurisdiction cases seriously.  This section reviews some of the key hurdles that have arisen in the exercise of universal jurisdiction by national authorities, and considers the strategies adopted by some national authorities to overcome them.

A. Notification and Complaint Mechanisms

1. Immigration Authorities

In its decision of May 8, 2003, the EU Council observed that “Member States are being confronted on a regular basis with persons who were involved in such crimes and who are trying to enter and reside in the European Union.”¹⁵  The preponderance of cases that have proceeded to trial under universal jurisdiction laws in Belgium, the Netherlands, Denmark and the United Kingdom have involved perpetrators who entered as asylum applicants, in the aftermath of a change of government or civil conflict in the territory where the crime was committed.  Asylum seekers who are victims of an international crime may well be seeking refugee status alongside individuals whom they recognize as perpetrators.  In some cases, suspected perpetrators may unwittingly disclose information which suggests a basis for further investigation into whether they have been involved in a serious crime—for example, the individual might disclose that he was an army officer or militia member, as part of his refugee application. 

Immigration authorities thus play a potentially vital role in alerting national police and judicial authorities to the presence of suspected perpetrators of international crimes.  In the case of some countries examined in this report, immigration authorities have embraced this potential by adopting policies and procedures for reviewing visa and asylum applications in order to identify information suggesting involvement in international crimes, and for referring these cases to police and prosecutorial authorities. In Denmark, the Netherlands and Norway, the immigration authorities have taken the initiative of creating a specialized department that reviews asylum and visa applicants whose applications contain information suggesting involvement in international crimes.  These departments maintain a list of suspects according to certain criteria, including previous employment, and after cross-checking the information with a list of suspects issued by international tribunals.¹⁶ This approach has been a key trigger for the exercise of universal jurisdiction in these three countries, and prosecutorial authorities there have so far received the majority of their cases through referral by immigration authorities.¹⁷

In the Netherlands, for example, asylum seekers are screened by the Immigration and Naturalization Service (IND), which has a special unit dealing exclusively with suspected “1F” cases.¹⁸ When an asylum seeker’s claim is rejected on the grounds of alleged involvement in an international crime, the file is then sent to the prosecution authorities. One criterion that can place an asylum seeker on the list of 1F files is his or her former profession: in an October 2005 case that saw two Afghan nationals convicted of war crimes,¹⁹ the accused were placed on the list because of their former rank as generals in the Afghan army.  In Denmark, immigration authorities and the Danish Red Cross work in conjunction to distribute pamphlets among asylum seekers explaining to them in six languages other than Danish (Albanian, Arabic, Dari, French, English and Bosnian-Croatian-Serbian) where and with whom they can file a complaint if they are the victim of an international crime or have knowledge of a perpetrator in Denmark.  The United Kingdom has recently established a special office within the Home Office’s Immigration and Naturalization Department (UK IND) dealing exclusively with allegations of international crimes committed by British visa applicants and asylum seekers. Approximately twelve cases have already been referred to the UK police,²⁰ and this number is expected to increase once screening guidelines are created for the UK IND as a whole. 

The picture is different in the other four countries surveyed for this report. Although Belgium has prosecuted several asylum applicants from Rwanda for their role in the Rwandan genocide, it has not instituted formal arrangements for notification and cooperation between immigration authorities and prosecutorial authorities.  Spain, France and Germany have similarly not taken steps that might ensure cooperation and notification.

Countries face the risk that they may become a safe haven for suspected perpetrators of international crimes unless they give consideration to formalizing and strengthening mechanisms of cooperation and information exchange between immigration authorities and prosecutorial authorities, in respect of suspected perpetrators of international crimes who apply for visas or refugee status.  The practice of the Netherlands, Norway, Denmark and the United Kingdom strongly suggests specialized departmental units can be highly effective in both screening applicants and deepening awareness among frontline immigration officers about what kinds of information could alert them to an applicant’s possible involvement in an international crime.  Regularized procedures for referring suspected cases to prosecutorial authorities ensure that the necessary legal expertise is engaged at an early stage, reducing the risk that possible perpetrators can enter a country undetected.

2. Private Complaints

Landmark universal jurisdiction cases, such as the opening of a prosecution against Augusto Pinochet in Spain and the request for his extradition from the United Kingdom, and a Belgian court’s indictment and extradition request for former Chadian dictator Hissène Habré, have been initiated through complaints lodged by private parties.  These cases have arisen in civil law jurisdictions, many of which have a legal tradition of expressly permitting privately-initiated criminal prosecutions.  Under these legal systems, private petitioners—usually victims and nongovernmental organizations (NGOs)—file criminal complaints against an alleged perpetrator by submitting them directly to an investigating judge or prosecutor.  Victims and NGOs are frequently the principal sources of evidence or of witnesses that could establish responsibility for the crime alleged. Those countries in which private petitioners have been instrumental in bringing about prosecutions under universal jurisdiction laws also tend to be countries where immigration authorities are relatively inactive in notifying police authorities about potential suspects. 

Private petitions have been the driving force behind universal jurisdiction-based cases in Spain, usually in the face of opposition by the prosecutorial authorities themselves.²¹  In the Spanish system, petitioners lodge an acción popular directly with an investigative judge. This judge, once seized of the matter, determines whether there is sufficient evidence to open an investigation, and is empowered to order necessary steps (such as the deposing of witnesses) to enable the investigation to proceed. Generally, in such a system, the investigative judge will rule whether there is sufficient evidence, once the investigation is completed, for the case to proceed to trial.²²  The acción popular procedure was the basis for the international arrest warrant in the Pinochet case; the indictment, prosecution and conviction in Spain of former Argentine military officer Adolfo Scilingo; and the successful extradition from Mexico of former Argentine military officer Manuel Cavallo.²³  The latter were both charged, inter alia, with crimes against humanity.

In France and Belgium, private petitioners have initiated almost all complaints. Belgium’s two major criminal trials involving universal jurisdiction—both concerning participants in the Rwandan genocide—were the result of complaints lodged with prosecutors by parties civiles.  Similar to the Spanish acción popular, a constitution de parties civiles seizes an investigative judge of the case irrespective of the wishes of the prosecutor. All cases lodged thus far under French universal jurisdiction laws have been brought by parties civiles.

Revisions to Belgium’s universal jurisdiction laws in 2003 curtailed the right of parties civiles to complain directly to an investigative judge, and placed the decision to open a prosecution in the hands of federal prosecution authorities.²⁴  The revisions were spurred by concerns that private petitioners were misusing the procedure to make political claims.²⁵  The proposed French law implementing the ICC Statute would remove the right of parties civiles to file complaints concerning international crimes directly with a juge d’instruction, leaving the decision to initiate a prosecution entirely with prosecutorial authorities.²⁶

Somewhat unusually for a common law country, UK law permits private individuals to request an arrest warrant directly from a magistrate (district judge) in instances where the police fail to investigate an allegation that a crime has been committed.²⁷  On September 10, 2005, based on evidence presented by a UK law firm acting on behalf of a Palestinian human rights NGO, Senior District Judge Timothy Workman issued the first ever warrant under the UK’s Geneva Conventions Act 1957 against retired Israeli General Doron Almog.  The warrant sought Almog’s arrest for his alleged participation in grave breaches of the Geneva Conventions in Israeli-occupied Gaza, where he had been a commander.  Almog arrived at Heathrow Airport the following day, but did not disembark from his flight after he was informed of the existence of the warrant. He returned to Israel before the Metropolitan Police could execute the warrant.  Both the UK Prime Minister and Foreign Secretary apologized to their Israeli counterparts concerning the incident, and consideration is now being given to amending the Prosecution of Offences Act 1985 to preclude private parties from applying for arrest warrants in relation to international crimes.²⁸

Private party-initiated complaints are indispensable in bringing suspected perpetrators to the attention of judicial authorities where police and prosecutorial authorities may lack the political will to pursue certain cases because of concern about coming into conflict with the foreign policy positions of the executive.  The complicated reality of cases involving universal jurisdiction is that legitimate complaints may sometimes implicate nationals of countries with which the state whose universal jurisdiction laws are invoked has close relations. But the rule of law requires the consistent and principled application of the relevant legal rules, never more so than in respect of laws concerning the gravest crimes known to international law.  States should not engage in law reform to prevent the instigation of prosecutions simply because such cases might be politically inconvenient.  Bona fide concerns about the vexatious or frivolous use of private party-initiated cases may be well-founded, but could be managed through adequate judicial supervision, or the requirement that a certain level of reasonable suspicion be met before an investigation can proceed or an arrest warrant can be issued.  Curtailing private party-initiated complaints seriously endangers the fragile, recent progress in the exercise of universal jurisdiction in Europe.

B.  Developing Expertise in Prosecuting International Crimes

1.   Specialized Units

One obstacle to the successful investigation and prosecution of international crimes is the relative lack of familiarity with investigating and prosecuting such cases among domestic law enforcement agencies whose work principally involves domestic offenses. Prosecutions under universal jurisdiction may seem daunting and resource-intensive for a variety of reasons: they involve not only criminal offenses with which domestic prosecutors have little experience, but also the prospects of extraterritorial investigations, language barriers, the need to understand the historical and political context in which the alleged crimes occurred, and the gathering of evidence to prove elements of crimes that may be of a type never adjudicated in a country’s domestic courts. 

Some of the countries examined in this report have responded to these challenges by creating units within police and prosecutorial authorities that specialize in the investigation and prosecution of transnational crimes, including universal jurisdiction cases. According to interviews with law enforcement officials and prosecutors from countries that have created specialized units, such units allow the concentration of experience and information about investigating and prosecuting international crimes.²⁹  This, in turn, enhances the efficiency and proficiency of investigations, and allows the continuous accumulation of expertise concerning universal jurisdiction prosecutions. 

Denmark, the Netherlands, Norway, and to a lesser extent the UK, have created specialized units within the police and prosecution services to handle international crimes cases.³⁰ Prosecutors and investigators with experience either in complex crime cases or international criminal law form part of these units, and some training in international criminal law is also being undertaken.³¹  Denmark has set up a unit composed of both prosecutors and investigators, thereby combining legal expertise and practical investigative expertise.  According to Danish officials, the combination of these two forms of expertise improves their ability to quickly decide whether to investigate a complaint.  Specialized units in the countries mentioned above include not only investigators and prosecutors, but also translators, military analysts, historians and anthropologists, on an as-needed basis.³²  In Belgium, a special police unit was created in 1998 to deal exclusively with international crimes, following an increase in complaints based on universal jurisdiction.  While a specialized team of investigative judges has not been formally created in Belgium, in practice universal jurisdiction cases are transferred to a handful of judges who have accumulated considerable experience in the relevant issues.³³

The creation of specialized units in these jurisdictions suggests an institutional commitment to taking potential universal jurisdiction cases seriously.  Such units are also mandated as an initiative by the EU Council decision “on the investigation and prosecution of genocide, crimes against humanity and war crimes,”³⁴ which urges EU member states to “consider the need to set up or designate specialist units… with particular responsibility for investigating and… prosecuting the crimes in question.”  The efficacy of such units seems borne out in the recent experience of investigation and prosecution: with the exception of two cases where private parties played the leading role (Scilingo in Spain, and Ely Ould Dah in France), ³⁵ all convictions in universal jurisdiction cases since 2001 have been in cases handled by specialized units. 

The absence of such units in Spain and France³⁶ is particularly striking, because both countries’ courts have been active in trying universal jurisdiction cases brought by private petitioners.  As noted above, the private petition mechanism has been integral to the exercise of universal jurisdiction in Europe.  Private parties are frequently the primary source of information and evidence in universal jurisdiction cases brought in Spanish courts.  At the same time, private petitioners cannot be relied upon as the sole means by which universal jurisdiction laws are invoked: private petitioners do not have the investigative resources and expertise of police authorities or the ability to seek official cooperation from third states. Exercising universal jurisdiction only where private parties are active and well-organized means that allegations concerning international crimes will not be consistently investigated, and the relevant expertise cannot become assimilated into the “institutional memory” of police and prosecutorial authorities.  In short, relying solely of private parties to investigate and pursue universal jurisdiction guarantees that universal jurisdiction will be exercised in an ad hoc and intermittent manner. 

French officials involved in the investigation of universal jurisdiction cases noted that “special units” have been created within the Paris judicial district in order to prosecute terrorism, organized crime, crimes against children and public health-related crimes.  These units have four investigating judges each, three dedicated administrative assistants, and a number of experts.  No such unit has been created in relation to international crimes, even though all cases concerning the Rwanda genocide have been allocated to the Paris district by a decision of the Cour de Cassation in 2001.³⁷  Individual investigative judges in the Paris district are left to manage such cases on their own, without either expert assistance or additional administrative support.³⁸  The lack of resources significantly slows the progress of universal jurisdiction cases and makes extraterritorial investigations impossible at the present time.³⁹ When a universal jurisdiction case involving, for example, alleged participation in the Rwandan genocide is one of “one hundred ongoing cases” on a judge’s docket, French officials told us that “[the cases] can’t move ahead.”⁴⁰  Officials involved in these investigations attribute the lack of resources, and the failure to create a dedicated task force for universal jurisdiction cases, to the absence of political will on the part of French authorities to take these cases seriously.

Where neither a specialized unit nor aprivate petition mechanism exist, the prospects for the effective exercise of universal jurisdiction laws are likely to be quite poor. This is presently the case in Germany which, despite exemplary universal jurisdiction legislation, has not devoted adequate resources to investigating and prosecuting international crimes.⁴¹  Currently, Germany has one investigator within the Federal Police Force who is working on international crimes on a day-to-day basis.⁴² The problem of a lack of resources is both a cause and effect of the federal prosecutor’s restrictive approach to investigating international crimes, which has meant that no investigations have been opened since the adoption of the new law in 2002 and thus no demand has been generated for an increase in resources.  As detailed below, the prosecutor has adopted an unusually wide definition of immunity when considering a complaint against a former head of state,⁴³ and particularly narrow approaches to the notions of “subsidiarity”⁴⁴ and of whether an investigation was possible.⁴⁵

Consistent with the EU Council’s decision, Human Rights Watch urges those countries that have not created a specialized unit to consider doing so, in order to institutionalize their legal commitment to prosecuting international crimes.

2.   Investigations

a. Domestic investigations

The challenges posed by investigating an international crime that occurred outside the state where the prosecution occurs are myriad.  However, interviews with police officers and lawyers who have successfully prosecuted such cases indicate that those challenges are far from insurmountable.  Initial information about a suspect or alleged criminal act can be gleaned from open sources, including human rights NGO reports and intergovernmental organizations.⁴⁶  When victims and diaspora communities are present in the country where officials are conducting the investigation, potential witnesses may also be located without extraterritorial investigations, or located with the assistance of private petitioners.⁴⁷  Indeed, if the suspect is present on the forum state’s territory (as a refugee or visa holder), conventional methods of surveillance, interrogation and search and seizure of evidence can be employed.⁴⁸  Members of the diplomatic corps who have been posted in the country where the crimes allegedly occurred have also been interviewed as a source of background and historical information.⁴⁹

b. Extraterritorial investigations

The practice of specialized units that have taken universal jurisdiction cases to trial shows that extraterritorial investigations are feasible, and have been undertaken in order to obtain evidence necessary to secure a conviction.  The factors that affect a unit’s ability to investigate in a foreign state include the number of complaints concerning that state⁵⁰ and, most significantly, whether cooperation can be expected from the foreign state and whether the security of the investigators and potential witnesses can be assured.⁵¹  In a majority of cases resulting in the prosecution and conviction of an international crime, members of specialized units have undertaken investigations in the state where the crime occurred. For example, all six convictions in the two trials of participants in the Rwandan genocide were built on investigations carried out in Rwanda by the special Belgian police unit that deals exclusively with international crimes.  The Belgian unit’s investigators also undertook missions to Chad, Ghana and Togo to investigate universal jurisdiction cases.  In the case of Faryadi Zardad, an Afghan militia leader ultimately convicted of acts of torture and hostage-taking that had taken place in Afghanistan in the 1990s, British investigators traveled to Afghanistan on nine occasions to locate and interview witnesses.  Prosecutors also accompanied the British investigators on some missions, in order to ensure that the information needed by the prosecution was collected and to assess the challenges that may be faced by witnesses and victims in Afghanistan if they testified in the case.⁵²  According to Dutch investigators, the majority of evidence used in the two successful universal jurisdiction prosecutions in the Netherlands was collected abroad.⁵³

Extraterritorial investigations are undoubtedly resource-intensive,⁵⁴ and pose particular challenges in terms of security, logistics and cooperation.  The exercise of investigative and judicial authority on the territory of a foreign state is commonly achieved through a mutual legal assistance treaty, and letters rogatory.  In order to be effective, these mechanisms require extensive cooperation both within the government agencies of the forum state, and between the forum state and the territorial state.  Securing this cooperation can be time consuming and legally complex, as each party to a mutual legal assistance treaty has its own domestic procedures for requesting and affording the cooperation promised under the treaty.  For example, a police authority’s request to undertake investigations in a foreign state may first have to be referred to the Foreign Ministry and Ministry of Justice of the forum state,⁵⁵ which will determine whether the mutual assistance arrangements with the territorial state should be invoked.  According to investigators who have used mutual assistance arrangements, each ministry that vets the request applies its own (legal and political) criteria for determining whether the request should be transmitted to the territorial state.⁵⁶  Once a decision to transmit the request is made, investigators must then await a reply from the territorial state.  In one instance, the Dutch war crimes unit had to wait a year to receive a reply to their letter rogatory from a country they asked for assistance.⁵⁷ Because a letter rogatory sent by Belgian authorities to their counterparts in Guatemala was not sufficiently precise with regard to questions to be asked to witnesses, the Belgian authorities had to wait one-and-a-half years and send several letters rogatory before they could start investigating in Guatemala.⁵⁸

Mutual legal assistance arrangements are complex and can result in lengthy delays in the investigative process. Nevertheless, investigators interviewed by Human Rights Watch indicated that, once the formalities had been completed, local authorities in the territorial state did afford the necessary cooperation to enable the investigation to proceed in most cases.  Investigators have sometimes reduced the delays involved in an extraterritorial investigation by making extensive use of the consular or embassy staff of their home country in the country where the crime was committed.  For example, Dutch investigators used the offices of embassy staff in several countries to contact local officials and potential witnesses, and explore possible investigative leads.⁵⁹ During the investigation in the Zardad case, British investigators obtained cooperation with Afghan authorities through the British embassy in Kabul, and the assistance of embassy staff was engaged to find and approach witnesses.⁶⁰  The British embassy also liaised with the United States military and secured their assistance when investigators needed to travel to parts of Afghanistan that were under U.S. military control.⁶¹

In order to locate witnesses during extraterritorial investigations, Belgian, British, Dutch and Danish investigators interviewed by Human Rights Watch stated that they generally began by getting leads from members of diaspora communities in the forum state. In other instances, the complainants themselves proved to be the first point of reference for finding witnesses. British investigators aired television and radio spots in Afghanistan, explaining their inquiry and encouraging witnesses to come forward,⁶² while Belgian authorities cooperated closely with local authorities in locating witnesses in Rwanda.⁶³

Investigators from several countries noted that documentary and physical evidence concerning the crime was difficult or even impossible to secure,⁶⁴ making witness evidence the principal basis upon which a case was built.  The credibility of witnesses thus became a paramount concern for some investigators, and several practitioners with experience in extraterritorial investigators noted that translation problems hampered their ability to assess the reliability of a potential witness’s statement. Belgian investigators who traveled to Rwanda relied on local authorities to question witnesses in the local language, Kinyarwanda, and commented that it was often difficult to determine whether a question was being accurately put to the witness.⁶⁵ When on one occasion British investigators hired a translator in Afghanistan, they discovered upon returning to the UK that the translations were inaccurate, forcing them to make another trip to Afghanistan with a professional translator in order to re-take the statements.⁶⁶

c. Extraterritorial investigations and the accused’s right to a fair trial

Extraterritorial investigations pose a particular set of challenges for an accused person’s ability to mount an effective defense.  Minimum fair trial guarantees that must be respected in any trial in EU member states include “equality of arms,”⁶⁷  and the right to confront and examine witnesses.⁶⁸  “Equality of arms” refers to the principle that every party to a case must be afforded a reasonable opportunity to present his or her case under conditions that do not place the party at a substantial disadvantage vis-à-vis the opponent.⁶⁹  This includes not only equality in presenting arguments, but also equality in being able to present evidence.  The defendant’s right to confront and examine witnesses against him or her is a fundamental fair trial guarantee applicable to both common law and civil law systems.  It is essential to test the credibility of witnesses and their evidence.  The right requires that an accused should be given “adequate and proper opportunity to challenge and question a witness against him, either at the time the witness makes his statement or at some later stage in the proceedings.”⁷⁰  Ensuring these fair trial guarantees in the context of a universal jurisdiction case, where most witnesses and evidence for and against the defendant may be outside the country, may require additional efforts on the part of judicial authorities.

In adversarial systems, such as the UK, the defendant is largely responsible for the collection of exculpatory evidence (although prosecutors are usually obliged to disclose such evidence if they come across it).  Hence, the practical ability of a defense lawyer to travel to the forum state and investigate on behalf of the accused is crucial.  In Zardad, the defendant was assisted by legal aid, and legal aid did extend to enabling his defense lawyer on three occasions to accompany the prosecution to Afghanistan to supervise identification parades and conduct investigations.⁷¹ In civil law systems, at the pre-trial stage an investigative judge usually assumes principal responsibility for gathering both inculpatory and exculpatory evidence.⁷² Thus the costs of enabling defense lawyers to be present during extraterritorial investigations were not borne by judicial authorities or legal aid in most of the cases examined by Human Rights Watch.⁷³  According to practitioners interviewed by Human Rights Watch, defense lawyers can instead review the statements taken by the investigative judge and apply to the court for further investigative acts to be undertaken by the judge on behalf of the defendant.  Where a defense lawyer has questions that he or she wishes to pose to a witness, he or she may be able to request the investigative judge to return to the forum state to ask the questions or interview other witnesses nominated by the defense.⁷⁴  The pre-trial stage is a critical one in some civil law systems, because the dossier of evidence prepared by the investigative judge is the principal basis for the trial court’s evaluation of the facts; in some national systems, not all witnesses examined by an investigative judge at the pre-trial stage need be examined at the trial stage.

The civil law system’s investigative judge does play a critical role in preserving the rights of the accused.  However, the inability of defense lawyers to attend at the examination of witnesses located outside the country or conduct extraterritorial investigations raises a risk of violating the fair trial guarantee that an accused be able to confront and examine witnesses against him and compel the attendance of witnesses in his favor, on the same terms as those against him.⁷⁵  Where a witness is examined by an investigative judge in the absence of defense counsel, and that witness is not examined at trial but his or her evidence is relied upon, the accused will have been deprived of his or her right to confront the witness.  Allowing defense lawyers to pose written questions given in advance to an investigative judge who travels to the forum state may not be an adequate substitute, particularly as the defense lawyer cannot observe the demeanor of the witness—an essential aspect of testing credibility.  Moreover, if defense lawyers do not have the resources to conduct investigations in the territorial state at all, their practical ability to test evidence will be limited.

Even where the defense is able to conduct private investigations or accompany other judicial authorities during extraterritorial investigations, obtaining evidence for the defense may be particularly difficult.  Indeed, there were no witnesses for the defense in the Zardad case, and only a very limited number in other universal jurisdiction cases in the Netherlands or the first Rwanda trial in Belgium.⁷⁶ Defense witnesses may fear to come forward on behalf of the defendant, especially if the latter belongs to a group that has fallen from power or now opposes the current government in the territorial state. In the second Rwanda trial in Belgium in May-June 2005, the lawyer for one defendant expressed this dilemma by arguing that it might be difficult for a witness from Rwanda to support the accused because the witness would have to speak a “truth that is different from the truth of the current government in power.”⁷⁷  Witness protection or other protective measures that may be made available to inculpatory witnesses (such as the option of testifying by video-link at the forum state’s embassy or diplomatic compound) should thus also be made available on equal terms to exculpatory witnesses.

Prosecutions for crimes against humanity, genocide and war crimes thus pose a special challenge to basic fair trial guarantees. Given the risks outlined above to an accused’s fair trial rights, judicial authorities need to take all appropriate measures—within the context of the national legal system—to facilitate defense counsel’s ability to effectively prepare a defense.

3. Witness Testimony and Witness Protection

Faced with key witnesses residing outside the country in which the trial will occur, investigators and judicial authorities have adopted a variety of measures to take their testimonies.  In the case of a Ugandan national prosecuted in Denmark under universal jurisdiction laws, a prosecutor, defense lawyer and judge traveled to Uganda to take videotaped witness testimony, which was then shown to a Danish court.⁷⁸ In the two Belgian trials concerning the Rwandan genocide, most witnesses were physically transported to Belgium to give evidence in person, and a minority—usually witnesses for the defense—testified via video-link.⁷⁹ British prosecuting authorities used the British embassy in Kabul as the venue for forty witnesses in the Zardad case to give evidence via video-link to a London court.  When the first Zardad trial resulted in a hung jury, prosecutors decided that a small number of key witnesses would be flown to the United Kingdom to give evidence in person.⁸⁰

A commonly cited concern among governmental authorities is that witnesses brought to testify from the territorial state may seek asylum in the forum state.  In principle, it is difficult to see why this should be an obstacle to obtaining the witness’s testimony: if the witness has a well-founded fear of persecution arising out of their participation in the prosecution, and the witness’s evidence is significant for the case, prosecutorial authorities must give due consideration to whether they should facilitate the witness’s relocation, by enabling her or him to claim asylum, or through other arrangements.  Where the concern is that unfounded or vexatious asylum claims are likely, experience suggests that video-link testimony can be an effective substitute for transporting the witness to the forum state.

In light of the fraught political contexts in which international crimes are often committed—civil wars, coup d’états, ethnic conflicts—witnesses can be expected to face real threats to their and their families’ well-being by becoming involved in a prosecution.  Investigators interviewed by Human Rights Watch noted that the very visibility of their investigations in the territorial state might increase the risks to victims and witnesses by attracting unwanted attentions.  For example, when Belgian investigators were seen together with a victim in her local community in Rwanda, she was subsequently forced to leave her community due to threats.⁸¹  In an effort to reduce visibility, Dutch and British investigators took statements in secure or neutral places such as embassies and United Nations (UN) compounds and placed emphasis on not being seen together with witnesses in public.⁸² In some instances witnesses were given pretexts that might explain their visit to a foreign embassy to anyone who asked.  Other precautionary measures used included equipping witnesses with mobile phones while the authorities were investigating in the relevant country, and providing funds for a witness to leave the country for a certain period of time.⁸³ 

Ultimately, however, the prosecutorial and judicial authorities pursuing the case do not have law enforcement powers in the territorial state, and thus their direct capacity to protect witnesses is limited and often wholly dependent on the law enforcement authorities of the territorial state.  Prosecutors from various countries interviewed by Human Rights Watch generally noted the limits they faced in the ability to directly protect witnesses after the case was over, but none had received reports of subsequent threats to witnesses.  Nevertheless, it seems crucial that judicial authorities have the practical capacity to monitor the welfare of at-risk witnesses and respond to threats, particularly if there are reasons to believe that local witness protection capacity is limited or non-existent.  Maintaining links established during the investigation with local contacts and NGOs in the territorial state allows for a continuing flow of information about potential threats. This vigilance must be applied equally to both prosecution and defense witnesses.  Governmental authorities of the forum state must ensure the capacity to relocate gravely threatened witnesses, either to the forum state or to a safe third state, with the latter’s agreement.

4. International Cooperation and Information Exchange

With sufficient international coordination and cooperation, universal jurisdiction prosecutions can be an essential part of a safety net against impunity, denying safe havens to perpetrators of international crimes. While several treaty provisions⁸⁴ oblige states parties to cooperate in the investigation of international crimes—such as article 88 of the First Additional Protocol⁸⁵ to the Geneva Conventions and article 9 of the Convention against Torture⁸⁶—practical mechanisms for information and exchange have been largely absent.

The EU Council’s decision to create a “Network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes” (“the Network”)⁸⁷ in 2002 marked a first step in increasing cooperation in the investigation and prosecution of international crimes.  The Network was intended to increase effective cooperation and the exchange of information between national practitioners prosecuting international crimes.  Another Council decision, from 2003, provides for regular meetings of the Network to exchange information about experiences, practices and methods. ⁸⁸  Although the first meeting of the Network was not held until November 2004, the Network has met three times to date, and according to investigators and prosecutors interviewed by Human Rights Watch it has become an important tool for the cooperation of investigators and judicial officials alike, with the potential to render the investigation and prosecution of international crimes more effective.⁸⁹ The meetings have enabled investigators to make important bilateral contacts and to exchange information regarding national legislation and its practical enforcement.  British and Danish investigators relied on information from contact points before conducting extraterritorial investigations, and Norwegian officials met with investigators from the Dutch, Danish and British unit when setting up the Norwegian specialized unit.⁹⁰

Officials from countries examined in this report noted that the Network was a useful forum to discuss sensitive issues in a confidential setting, and could advance police and judicial cooperation among specialized units created by some EU member states.  The fact that mutual legal assistance among the twenty-five member states is constantly being streamlined makes the EU a natural forum for this kind of cooperation.  The Network could also concentrate information and experience on lessons learned with regard to cooperation requests, witness protection and obtaining evidence. In interviews with Human Rights Watch, practitioners have emphasized that the Network should focus on the lessons learned by different national authorities.  Human Rights Watch urges EU member states to organize meetings of the Network regularly and under each Presidency.⁹¹ In the long term, the EU member states need to ensure that the Network has the necessary resources, including a coordinator to organize meetings, and who could serve as a focal point for countries involved in the investigation or prosecution of international crimes.

An increase in universal jurisdiction prosecutions prompted Interpol in 2004 to organize Expert Meetings on international crimes, bringing together delegates from over ninety countries to improve coordination and information sharing.  The meetings, two of which have taken place to date, are supplemented by a Working Group that addresses, in a smaller setting, the objective discussed at the Expert meetings.⁹²  The Interpol initiative, which has the potential to reach Interpol’s 184 member states, is an important cooperation mechanism that fulfills functions similar to the Network, but with an emphasis on investigative aspects. Interpol is in the process of setting up a database containing information on past and ongoing investigations of international crimes in different countries, thereby enabling practitioners to know which countries have experience in the investigation of a particular crime committed in a particular country. An effective database will avoid duplicating investigative efforts and further streamline the investigation process. If countries make information available to the database, it could significantly assist the investigation of international crimes. Human Rights Watch encourages Interpol member countries to contribute relevant expertise and information to the database on a continuous basis.