The year 2020 will remain in memories, by and large, as a period unlike any other. The covid-19 pandemic has turned around countless lives, and continues to do so as we write these lines. State institutions worldwide, including judicial bodies, have had to drastically change their functioning and priorities. With so many activities coming to a brutal halt, have cases related to universal jurisdiction (UJ) also stalled? Luckily, far from it.
While the pandemic has had an impact on UJ cases, it has been more of a reorganization than a complete halt. As the next pages show, many cases did move forward and new suspects were brought to justice. Put differently, even a global health crisis did not imperil the use of UJ across the world –proof, if ever it was needed, of the solidity of the progress made in the last years (see previous UJARs for details).
“Past the first few weeks in spring when the whole world was taken aback, the judicial community has rapidly adapted” summarizes Valérie Paulet, Legal Consultant at TRIAL International and Editor of the UJAR. “Prosecutors, judges and NGOs reacted quickly and developed creative ways of carrying out their work. Their agility and the extra effort they put in must be saluted.”
Strengthening remote investigations
Unsurprisingly, field investigations were considerably limited by national lockdowns and movement restrictions. Even when international travel was allowed between lockdowns, fact-finding missions require a freedom of movement on the ground that could hardly be met. Some ongoing investigations which relied on the capacity of witnesses, victims, investigators and judges to travel abroad either slowed down or stalled. Countries were not equally affected, as the German example below demonstrates.
NGOs in particular, whose investigations rely on flexibility and adaptability, had to find new ways of getting in touch with victims and witnesses. “We relied even more heavily than before on our networks”, explains Bénédict De Moerloose, Head of International Investigations and Litigation at TRIAL International. “Local partners initiated contact with victims and witnesses and created an initial bond, then we would meet them via secure video calls. A certain level of trust was already there. On the plus side, it brought us even closer to our collaborators in the field.”
Remote meetings presented other advantages: victims and witnesses could talk from their homes, reducing risks of being overheard or followed. Being in a familiar space was also comforting for vulnerable individuals, who could share their experiences in a safe environment. In some instances, the objects or souvenirs surrounding them in their homes prompted memories that helped to establish facts. Likewise, a new emphasis was put on complementary investigative methods, such as satellite imagery and online tracking.
Security, the cornerstone of remote investigations
On the investigators’ side, online interviews meant they could speak to witnesses spread throughout the world in a single day, speeding up their work considerably. This came with a sine qua non: additional efforts were made to ensure understanding, consent and, of course, the utmost security for interviewees.
Guaranteeing the confidentiality of remote discussions has always been a primary concern, but the pandemic has encouraged all actors to go even further. Both NGOs and domestic authorities have taken unprecedented measures to ensure all communications were safe and confidential. Yet this is merely the tip of the iceberg: as the pandemic sweeps across the globe, it is unlikely that interviews will be carried out face-to-face again in the near future. All professionals must prepare to keep up these efforts in the long run. And security, especially online, is never permanently acquired. Despite rapid adaptations, investigations unquestionably slowed down in 2020. The number of trials, on the other hand, was remarkable in spite of the exceptional circumstances.
Reaping the efforts from previous years
Eighteen new cases went to trial in 2020, bringing the total to 30 ongoing trials. What is perhaps the most prominent trial in recent years opened in Germany against Syrians Anwar R. and Eyad A. (see p. 48). It made the international headlines and was unanimously hailed as a significant step against impunity for State crimes. Other high-profile cases include Fabien Neretsé in Belgium, Roger Lumbala in France and Alieu Kosiah in Switzerland.
For Christian Ritscher, a German Federal Public Prosecutor: “2020 was definitely a year of trials, in which the investigative efforts of the previous years have come together.” On the other hand, the International Federation of Human Rights (FIDH) regrets that cases in France were hit by many more delays, explained precisely because investigations had been slacking for years. Most of the cases opened in 2020 could move forward thanks to fact-finding and evidence- gathering missions conducted beforehand. The pandemic and its consequences have emphasized the need for investigations to be conducted as swiftly and thoroughly as possible so that the cases can move ahead when/if the context evolves. This lesson also applies to investigations in unstable zones, which may become inaccessible within a matter of days.
In some instances, the public health crisis has resulted in the provisional liberation of suspects (see e.g., Mahamat Nouri, p. 38). Although this publication highlights the progress in fighting impunity, there is no doubt that the rights of the accused are equally important to building credible justice: “All legal actors have at heart the fairness and efficiency of justice, including the authors of the UJAR. The purpose is not to punish indiscriminately, and certainly not to bypass the rights of the defense in order to do so”, says Valérie Paulet. No shortcuts, no cutting corners.
Similarly, in a context where contact is synonymous with danger, summonses to court had to be vetted as absolutely necessary. Prosecuting authorities have had to weigh even more carefully than usual which acts–or whose presence–could not be done without. With fewer people allowed in the courtroom and limitations on victims’ and witness’ travels, a case-by-case set-up had to be defined for each hearing.
This is a cautious approach that has paid off: in the trial against Anwar R. and Eyad A. in Germany, just one of the 52 trial days had to be cancelled due to a covid-19 suspicion. Much like “traditional” security parameters, the do no harm principle extended to anticontamination measures and prevailed even in the most sensitive cases.
The year 2020 has been a sobering one. Sanitary considerations have been added to the many difficulties of using universal jurisdiction. Despite all this, the cases presented in this UJAR prove that States have risen to the challenge and that justice will not keel.