Many voices have heralded the increased use of universal jurisdiction and extraterritorial jurisdiction (UJ/ETJ) cases – prosecutions brought in a country for crimes committed abroad – in domestic courts as an increasingly useful tool in the fight against impunity. The cases have been described as filling widening accountability gaps, providing the only meaningful path for some survivors, and even becoming the “structural backbone of international criminal justice.” The United States has succeeded in securing accountability through the mechanism of UJ/ETJ, which I witnessed firsthand as Deputy Chief of the human rights portfolio at the Human Rights and Special Prosecutions Section of the U.S. Department of Justice supervising the teams that obtained a criminal conviction of Gambian torturer Michael Correa; the war crimes indictments of four Russian-affiliated military personnel for offenses in Ukraine, and Syrian officials for the abuses of Syrian and American prisoners; and most recently, the indictments of former Syrian prison official Samir Alsheikh, which ultimately resulted in his conviction at trial and sentencing in September to 60 years in prison. There were additional victories for accountability across the globe with the use of UJ/ETJ, including recent convictions secured in Finland, Germany and Sweden.
These successes are only possible with the cooperation of courageous and tenacious survivors of atrocity crimes. Access to, and support of, those brave individuals willing to share their stories of horrendous treatment are often only possible through the tireless efforts of civil society organizations. These organizations play a crucial role in UJ/ETJ prosecutions and improve accountability efforts in innumerable ways, including by making referrals to and sharing potential evidence with prosecuting authorities, initiating legal proceedings, and representing victims during criminal trials.
Despite the laudable rise of UJ/ETJ cases, there are simply not enough of them. Widespread calls to expand these prosecutions abound, as do suggestions on how to do so. They include demands from academics, civil society leaders, and even the International Committee of the Red Cross for countries hosting UJ/ETJ prosecutions to offer more political support for these prosecutions, set up new war crimes units, increase the training and resources of existing units, and strengthen national legislation to enhance the use of universal jurisdiction.
Undoubtedly, those ideas would improve the effectiveness of seeking justice through UJ/ETJ cases, and they are worthwhile recommendations. And certainly, no one doubts that the responsibility to seek accountability for atrocity crimes lies with the States. But realistically, those changes – if they are successful – will be measured in months, if not years. State action can be notoriously slow, and if the increase in prosecutions that the larger human rights community seeks is left entirely to the action of national governments, those working for accountability may be waiting a very long time. But there are things that civil society organizations can do now to increase the likelihood of more UJ/ETJ prosecutions.
How Thinking Like a Prosecutor Can Help CSOs Provide a Boost Now
Eurojust’s Genocide Network and PacificJust, a newer organization extending those efforts to the Pacific Rim, host meetings for personnel of national authorities investigating core international crimes to exchange experiences and best practices. Over my six years at the U.S. Department of Justice overseeing human rights prosecutions, I spent many weeks at such conferences with fellow war crimes prosecutors and law enforcement agents. On these occasions, we had dozens of conversations celebrating investigative wins, brainstorming evidentiary leads, and bemoaning our collective inability to bring more prosecutions. While we complimented the exceptional work and dedication of civil society organizations that brought us evidentiary packages, one area of concern that often came up was how the material provided all too often was insufficient to justify the opening of a formal investigation.
Recently, I had the opportunity to hear the perspective of one human rights leader on this issue. Antonia Mulvey, Founder and Executive Director of Legal Action Worldwide (LAW), an independent civil society organization that helps survivors of human rights violations pursue justice, acknowledged, “Most civil society submissions have a detailed summary of the alleged conduct and usually the identity of either the victim or perpetrator (or both) involved in an atrocity crime. But often, there’s not much else.” She explained that at LAW their experience has taught them that “a stronger submission is not necessarily a longer one. Instead, stronger submissions require thinking from the outset about what a prosecutor will actually need to act. At LAW, we have increasingly built that thinking into our work. Civil society can make a prosecutor’s decision easier by presenting not simply an allegation, but a realistic route from the evidence already available to an investigation, and potentially to a courtroom.” This is exactly the evolution that will help boost the number of investigations national authorities will consider opening.
Articulating a roadmap to a successful case is critical. Before a prosecutor can commit the personnel and resources for a full-scale investigation, she must see a route to a viable criminal case. In the United States, for example, a prosecutor should bring charges only when she believes it is more likely than not that the admissible evidence will be sufficient to obtain and sustain a conviction. Allegations of egregious human rights violations abound, and not all of them have the possibility of becoming criminal cases. A case needs an identified and chargeable perpetrator, victims and witnesses willing to testify at trial, evidence corroborating the atrocity alleged, and enough information to defeat the defenses the accused will raise. If an investigation’s prospects are not apparent at the beginning, national authorities will, and should, focus their limited resources on allegations more likely to produce justice for victims.
This isn’t a demand for what does not exist. Since beginning to work with human rights organizations this year following my resignation from the Department of Justice last fall, I have seen how much evidence civil society organizations hold. Often, though certainly not always, such evidence could support a prosecution. But the organization holding it may not recognize that, because recognizing it often takes prosecutorial or courtroom experience.
While the international community waits for States to strengthen legislation and increase war-crimes-specific prosecutorial bodies, civil society can immediately boost the number of UJ/ETJ cases opened around the globe by giving national authorities fuller evidentiary packages, built the way a prosecutor thinks.
Better Submissions Result in More Open Cases
How can that be done? In addition to summarizing the evidence of the atrocity crime at issue, civil society organizations should aim to include corroboration of the offenses of the perpetrator or account of the victim already in their possession. They should also identify the investigative leads they can see and explain why each is likely to be fruitful. To be clear – no one expects civil society to perform the work of law enforcement authorities. Most national authorities, for important reasons, prefer that they not. For example, civil society organizations should not take detailed accounts from survivors and witnesses, which could both hamper future prosecutions and harm vulnerable and traumatized individuals. Nor should they conduct multiple interviews of survivors or witnesses to learn more specifics regarding the events. However, by analyzing information already in the organization’s possession with a prosecutorial lens, submissions could be greatly enhanced.
The existence of corroboration is essential to the success of any prosecution. Civil society organizations should inform law enforcement agents and prosecutors from day one whether there are any eyewitnesses or earwitnesses to the atrocities, medical records reflecting victims’ injuries, photographs or videos related to the events or aftermath, or satellite imagery corroborating the layout of the location as described in witnesses’ accounts. Furthermore, disclose any statements made by the alleged perpetrator about the crimes to others or online; reliable open-source materials that can confirm the affiliation and/or rank of the proposed defendant; or witnesses that can confirm nicknames used by the perpetrator.
Most importantly – and most often missing from civil society’s evidentiary packages – is evidence or information to rebut the most common defenses asserted by atrocity perpetrators: duress, fabrication, mistake of identity, or collateral damage. When reviewing leads from any source, war crimes prosecutors are not just evaluating whether they can prove that the crime occurred. More often than not, that is the easy part. The most challenging consideration is whether the prosecutor can combat the inevitable defenses. Helping national authorities understand why the obvious defenses do not withstand scrutiny is a crucial element of an opening decision that too often is left unanswered in civil society organizations’ submissions.
For example, in the face of a fabrication defense, have witnesses with similar accounts lived in separate locations unable to compare stories? If the perpetrator will likely claim duress (and is in a forum where it is available), was the threat to him immediate, and did he have a way out? Can the defendant credibly claim that the entire allegation has been fabricated, and, if so, does the victim have scarring or medical evidence confirming that the physical abuse occurred? For crimes committed during military operations, is there reason to believe that online chatter or overheard orders exist showing that the perpetrators intended to target the victims?
Civil society organizations should have a prosecutorial mindset – or work with others that do – when evaluating their collection of materials. Certainly, some civil society organizations already excel at this task. But there may be even more potential value to the information in the possession of many civil society organizations than they realize. The more thorough, specific, and detailed the evidentiary packages that civil society compiles, the better opportunity they give national authorities to advocate to their superiors that the matter is worth the office’s limited resources to open and begin investigating.
In Support of Righteous Prosecutors
The world has unquestionably changed over the last 18 months. Justice systems have taken a hit. One analysis estimates that USDOJ has lost over 6,000 years’ worth of agency expertise due to firings or resignations as a result of politicization and the overall numbers of staff have plummeted. The rule of law is facing escalating challenges around the world, and civil liberties groups warn of erosion or regression of the rule of law in several European countries. According to Human Rights Watch, “the global human rights system is in peril.” Against this backdrop, it is not hard to understand why civil society may harbor reservations about collaborating with some national authorities.
“The answer is not to stop sharing evidence,” Mulvey said while we discussed how organizations can navigate this new environment, “but to be deliberate about who receives it. Civil society can judge an authority on things they can observe: whether its war crime unit is still staffed, whether it has protected witnesses in the past, whether it has kept faith with the organizations that referred cases to it, and whether it has actually brought prosecutions.” I couldn’t agree with her more.
The way forward is following the time-tested path that those seeking justice have long pursued: Work with trusted entities and people, engage familiar faces with a strong track record, and share materials with committed prosecutors and law enforcement agents around the globe whose dedication to the cause of justice can be measured in the results they have obtained on behalf of the most vulnerable victims. They are out there. I have worked with them on joint investigative teams, collaborated with their offices to secure indictments, watched them present torture victims’ accounts at trial, and heard firsthand of the obstacles they overcame to secure convictions. Despite the significant setbacks justice departments have suffered of late, many of the most tenacious, dedicated civil servants I have ever encountered remain, and they are eager to receive evidentiary leads that will justify opening human rights investigations.
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Universal and extraterritorial jurisdiction cases have been a key element of accountability efforts around the globe, and expanding State capacity and will to pursue such cases, while important, will also take time. In the meantime and in parallel, if civil society organizations are looking to what they can do tomorrow, one solution is clear: By providing national authorities with more specific, corroborated, and detailed evidence – evaluated through a prosecutorial lens – civil society will empower national authorities to increase their investigations and prosecutions of atrocity crimes on behalf of victims and survivors.
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