March 12-13, Brisbane (AEDT)

Universal jurisdiction enables national courts to prosecute individuals for serious international crimes regardless of where the crime was committed or the nationality of the perpetrator or victim. There can be many barriers to investigating and prosecuting core international crimes in national courts, including accessing and managing witnesses and victims.

Uniqueness of Identifying Witnesses and Victims

Identifying witnesses and victims in cases involving core international crimes is uniquely challenging due to the scale, context, and complexity of the crimes. Unlike domestic criminal cases, these crimes often occur in conflict zones, involve mass atrocities, and are characterized by systematic targeting of specific groups. As such, witnesses and victims may be displaced, traumatized, or fearful of reprisals, making them difficult to locate and engage. Furthermore, the transnational nature of international crimes requires investigators to navigate multiple jurisdictions, cultural contexts, and legal frameworks to effectively identify and protect individuals willing to provide testimony.

Firstly, witnesses and victims provide essential firsthand accounts that can substantiate allegations of war crimes, crimes against humanity, or genocide. In national courts exercising universal jurisdiction, these testimonies are pivotal in establishing a credible narrative of events, especially when the physical evidence is limited or inaccessible. By documenting the experiences of victims and witnesses, prosecutors can piece together a comprehensive account of the crimes, identify perpetrators, and demonstrate the widespread or systematic nature of the offenses.

Additionally, the identification of victims is instrumental in establishing the elements of international crimes. For instance, in cases of genocide, it is necessary to demonstrate that the perpetrators targeted a particular group based on nationality, ethnicity, race, or religion. Identifying the victims by these characteristics helps to substantiate the specific intent required for genocide. Similarly, in cases of crimes against humanity, national courts must demonstrate that attacks were directed against a civilian population as part of a widespread or systematic campaign. Thus, identifying and verifying the status of victims is crucial to establishing the contextual elements of these crimes.

However, identifying witnesses and victims in universal jurisdiction cases presents significant challenges. Often, witnesses and victims are located in conflict zones, refugee camps, or jurisdictions with limited cooperation with the prosecuting state. Additionally, cultural, linguistic, and logistical barriers can impede effective communication and evidence collection. Moreover, witnesses and victims may fear reprisals from perpetrators, their supporters, or even authorities in their home countries. As such, national courts must adopt robust protective measures, including anonymity protocols, relocation programs, and psychological support services to mitigate risks and encourage participation.

Furthermore, national courts exercising universal jurisdiction face the additional challenge of securing the credibility and admissibility of witness testimonies. Defence teams may attempt to discredit witnesses by questioning their motives or highlighting inconsistencies in their accounts. Therefore, investigators and prosecutors must rigorously vet and corroborate witness statements to ensure reliability. In some instances, national courts may also collaborate with international organizations, NGOs, or investigative bodies to collect and verify evidence, including witness testimonies, thereby enhancing the credibility of the prosecution’s case.

Another critical aspect of identifying witnesses and victims in universal jurisdiction cases is the impact on transitional justice and reparations. The inclusion of victims as participants in the judicial process not only affirms their agency and dignity but also fosters a sense of justice and accountability. Testimonies from victims can serve as a historical record of atrocities, contributing to truth-telling, memorialization, and societal reconciliation. Additionally, identifying victims is necessary for reparations programs, as national courts may order compensation, restitution, or rehabilitation for survivors of war crimes, crimes against humanity, or genocide.

Additionally, working with diaspora communities can provide valuable insights and access to witnesses and victims who have fled conflict zones or repressive regimes. Diaspora networks can serve as crucial points of contact, facilitating outreach and helping to locate individuals willing to provide testimony in universal jurisdiction cases.

The key lessons learned regarding the identification of witnesses and victims in the context of accountability for core international crimes under universal jurisdiction are:

1. Proactive Outreach and Network Building: Identifying witnesses and victims requires proactive engagement with diaspora communities, NGOs, and civil society organizations that have established trust and access within affected populations, particularly those displaced across multiple jurisdictions.

2. Integrated Protection Mechanisms: Implementing comprehensive protection strategies, including anonymity protocols, relocation assistance, and psychological support, is crucial to mitigating risks of retaliation and ensuring witness cooperation in universal jurisdiction cases.

3. Cultural and Linguistic Sensitivity: Employing culturally appropriate and trauma-informed communication approaches is vital to effectively engaging victims and witnesses, particularly those who have experienced severe trauma or stigmatization.

4. Evidence Corroboration and Verification: Given the likelihood of cross-border evidence gathering, ensuring the credibility of witness statements through rigorous verification and corroboration with documentary, forensic, and testimonial evidence is essential to strengthening prosecutions.

5. Data Security and Confidentiality: Maintaining secure data management practices, including stringent confidentiality protocols and restricted access, is imperative to protecting witness identities and safeguarding sensitive information that could compromise ongoing investigations.

6. The importance of CSO/NGOs: Civil Society Organisations (CSOs) and Non-Government Organisations (NGOs) can play an invaluable role in identifying key witnesses. Nonetheless, CSOs and NGOs must ensure that they don’t record statements.

In conclusion, the identification of witnesses and victims also underscores the broader objectives of universal jurisdiction – to prevent impunity and reinforce the rule of law. By holding perpetrators accountable regardless of their location, national courts demonstrate a commitment to international justice and the protection of fundamental human rights. This approach also sends a powerful message that atrocities will not be tolerated and that victims will have an opportunity to seek justice even when their home countries are unwilling or unable to prosecute the crimes.

Unique Considerations in Managing Witnesses and Victims

Managing witnesses and victims in cases involving core international crimes requires tailored approaches that consider the complex dynamics of conflict, displacement, and trauma. Unlike conventional criminal cases, international crimes often involve large numbers of victims and witnesses spread across multiple jurisdictions. This necessitates comprehensive strategies that address the following key considerations:

1. Trauma and Psychological Support: Many witnesses and victims have experienced severe trauma, including sexual violence, torture, or witnessing mass atrocities. Providing access to psychological counselling and trauma-informed support is crucial to ensuring that testimonies are not re-traumatizing and that witnesses are able to provide coherent, reliable accounts.

2. Security and Protection: Ensuring the safety of witnesses and victims is a priority, particularly in cases where perpetrators retain power or influence. Protective measures may include anonymity, allocation of a pseudonym for evidence purposes, late disclosure of statement/s, relocation programs, and secure communication channels to prevent retaliation or intimidation.

3. Cultural and Contextual Sensitivity: Effective management requires cultural competence, including the use of trained interpreters and culturally appropriate interviewing techniques. Recognizing cultural norms and potential stigmatization, particularly for survivors of sexual violence, is vital to gaining cooperation and minimizing harm.

4. Coordination with NGOs and Civil Society: Partnering with NGOs and civil society organizations can facilitate identification and engagement with witnesses and victims, particularly those in refugee camps or displaced communities. These organizations can provide critical logistical support, help build trust, and bridge communication gaps.

5. Data Management and Confidentiality: Maintaining secure and confidential records of witness and victim statements is essential to safeguarding their identities and preserving the integrity of the evidence. This includes implementing robust data protection protocols and restricting access to sensitive information.

In conclusion, the identification of witnesses and victims is a fundamental aspect of prosecuting core international crimes under universal jurisdiction. It not only strengthens the evidentiary basis for prosecution but also upholds the principles of accountability, justice, and reparations. National courts must, therefore, adopt comprehensive and victim-centred strategies to effectively identify, protect, and support witnesses and victims in pursuit of international justice.