Legal tools against impunity: understanding and exercising universal jurisdiction.

 

This session aimed to explore universal jurisdiction (UJ) as a tool to combat impunity. Panelists commented on several ongoing and concluded cases concerning enforced disappearances. The discussed proceedings took place in various countries, including Argentina, Switzerland, France, and Germany regarding crimes committed in Belarus, The Gambia, Syria, Ukraine. Discussions explored the evolution of UJ, practical solutions, and the balance between pursuing local justice mechanisms and resorting to UJ as a last measure. 

Common themes: 

• A timely moment for universal jurisdiction and enforced disappearance cases: There appears to be a significant moment for UJ in the context of enforced disappearances. In Switzerland, ongoing proceedings concern the very first UJ case related to enforced disappearances. In France, a groundbreaking judgment was issued in 2024, and in Germany, the law on enforced disappearances was recently amended. These developments indicate that now is an opportune time to discuss and advance UJ proceedings concerning enforced disappearances. 

• Legal and procedural challenges: The session highlighted challenges in applying UJ to enforced disappearances, such as the lack of a clear and consistent legal definition of enforced disappearance across jurisdictions. Aligning definitions would ensure consistency across international and national legal systems in addressing such cases, which often suffer from definitional ambiguities. Additionally, legal frameworks need to provide the possibility to exercise UJ. Securing evidence, especially in cross-border contexts, represents another hurdle, as exemplified by the Harauski case in Switzerland involving a Belarussian military officer. 

• The crucial role of families and civil society organizations: The panel clearly demonstrated the critical role of civil society organizations, victim groups and families in initiating UJ cases, collecting evidence, locating suspects, supporting families and advocating for justice, particularly in the absence of State action. However, the discussion also emphasized the need to advance efforts to ensure the formal recognition of families’ rights within UJ proceedings. Moreover, discussions highlighted the ongoing necessity of civil society’s advocacy and support in such cases, stressing the importance of providing adequate financial and legal resources to facilitate their pursuit.

 • Raising awareness about UJ and enforced disappearances: opportunities and risks As there are still very few examples of UJ proceedings dealing with enforced disappearances, raising awareness remains crucial. Affected families, who often provide critical testimonies that initiate and sustain proceedings, need to be informed about the possibilities of UJ but also about the risks. While UJ provides an avenue for justice, victims must be informed about its limitations and the potential outcomes, the risks of reprisals and potential threats, as well as the psychological toll it places on them. Besides, legal professionals including judges, prosecutors and lawyers responsible for such cases must understand the unique nature of enforced disappearances. 

• The necessity of international cooperation; For UJ proceedings to be effective, mutual cooperation between countries is essential, as shown in cases in Syria and Ukraine. Typically, there is no access to the country where the enforced disappearances occurred, but other countries or institutions might possess relevant information. A notable example is the International, Impartial, and Independent Mechanism (IIIM), which collects and provides evidence to assist in the investigation and prosecution of persons responsible for the most serious crimes under international law committed in Syria since March 2011. This mechanism supports prosecutions worldwide, helping to advance cases, including those related to UJ. 

• Narratives about enforced disappearances: While panelists highlighted the challenges related to the UJ proceedings discussed, these cases have succeeded in creating a space to reveal the truth about enforced disappearances in the respective countries. Enforced disappearances are inherently conducted and maintained in secrecy. UJ proceedings provide a platform to bring attention to these acts, even when they are still denied in the countries where they were committed.

Recommendations for action 

• Adopting clear legal frameworks: One of the key recommendations emerging from the session is the urgent need for States that have not done so yet to criminalize enforced disappearance in line with the CED Convention definition, adopt consistent legal definitions of enforced disappearance across jurisdictions and provide the possibility to exercise universal jurisdiction. The international community, particularly through UN bodies, can contribute to updating and harmonizing the legal frameworks governing enforced disappearance cases under UJ.

 • Ensuring family and civil society participation and providing related support - Civil society organizations and victim groups play a critical role in initiating UJ cases and supporting families and should therefore be provided with the necessary financial and legal resources. - Families should also be provided with adequate support, which implies granting access to the prosecuting country, offering interpretation services and providing psychological support. 

• Raising awareness of legal professionals: Judges, prosecutors and lawyers working on enforced disappearance cases should be provided with specialized training on the complexities of enforced disappearances and UJ and its impact on families involved in the proceedings. 

• Strengthening international: cooperation International collaboration should be strengthened to share evidence and best practices and allocate sufficient financial and human resources to support UJ prosecutions, including through the establishment of specialized units. Civil society expertises.