Problematising Universal Jurisdiction: Closed Expert Workshop

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London School of Economics/City Law School

5th October 2018

Dr Ellie Smith, a Principal Associate of GSDM, joined a closed expert workshop on 5th October 2018, to discuss challenges relating to the successful domestic prosecution of international crimes through the principle of universal jurisdiction. The workshop was co-convened by the London School of Economics and City Law School, and included senior war crime prosecutors from across Europe, as well as representatives from the Metropolitan Police.

Some time was spent exploring areas of commonality as well as divergence between different European regimes in their approaches to war crimes prosecution. The question of ‘trigger’ in France, for example, was regarded as especially problematic, where a prosecution for torture under the principle of universal jurisdiction was feasible, but not in respect of war crimes or genocide. There were also differences between regimes in relation to the presence requirement. Whether, for example, it was sufficient for an accused to be physically present within the territory of the Prosecuting State, or if a more substantive relationship – such as regular domicile or residence – was needed before a prosecution could be triggered.

Participants highlighted the evidential challenges in bringing a domestic prosecution under the principle of universal jurisdiction including, in particular, lack of access to crime scenes in the country where offences were allegedly committed, and limited access to witnesses, particularly where their provision of evidence might put them at risk in their home State. It was noted in this regard that unlike the prosecution of crimes committed within the territory of the prosecuting State, authorities were unable to provide any witness protection measures for witnesses overseas in universal jurisdiction cases.

In additional to evidential issues, participants noted that they very often needed to work in collaboration with NGOs with a presence in the State where an alleged crime took place. Participants observed that there were significant advantages to the involvement of NGOs, including their ability, in some cases, to make referrals to prosecuting authorities, to conduct initial and ongoing evidence collection, to provide some element of protection in the individual’s home State, and to chaperone witnesses to the Prosecuting State. Workshop participants also, however, identified specific challenges that can arise as a result of NGO engagement. These might include, for instance, the generation of multiple victim statements and hence the potential for conflicting statements, related issues of interview fatigue in the victim, the application of different (lesser) evidential standards in the collection of evidence, and the problematic handling of physical evidence.

The issue of victim trauma was also discussed, and it was noted that, given the nature of crimes typically forming the substance of universal jurisdiction actions, the likelihood of trauma in victims was relatively high. Ellie delivered a presentation that outlined a number of psychological trauma symptoms and the potential effects of those symptoms on a victim’s memory and evidence.

Dr Ellie Smith is a Principal Associate of GSDM, with a background in International Criminal Law, International Human Rights and International Humanitarian Law, with a particular expertise of working with trauma.

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