Make way for Justice #3 Universal Jurisdiction Annual Review 2017 #UJAR 1 Syria conflict ©AFP TABLE OF CONTENTS Table of contents 2 Closing the net on impunity 3 Key findings 4 Argentina 5 Austria 8 Belgium 10 Finland 12 France 16 Germany 29 Senegal 38 Spain 41 Sweden 45 Switzerland 53 The Netherlands 58 The United Kingdom 60 The United States of America 64 Universal jurisdiction at a glance 67 2016 cases overview 69 Who we are 71 Keys Syrian cases Upcoming cases Passive personality cases Active personality cases 2 CLOSING THE NET ON IMPUNITY Five years of conflict, hundreds of thousands of dead. In Syria, large-scale war crimes are committed in all impunity. The international community has proved incapable to prevent the bombing of humanitarian convoys and medical Ffacilities, the starvation of civilians and the use of chemical weapons. Effective prosecution of these crimes has been repeatedly impeded at the international level : the idea of a hybrid tribunal has never seen the light of day, while referral to the International Criminal Court (ICC) has been vetoed by China and Russia, both perma- nent members of the United Nations Security Council. Is this synonymous with a judicial deadlock for victims ? Not necessarily, as justice is taking an audacious path: universal jurisdiction. Throughout 2016, authorities in Austria, Finland, France, Germany and Sweden have brought charges for alleged crimes in Syria. Investigations are ongoing in Norway, Switzerland and The Netherlands. Last year alone, 11 Syrian cases have seen significant judicial advances, including 3 convictions for war crimes. The movement is here to stay The advances of universal jurisdiction go beyond crimes committed in Syria. In 2016, 13 countries cases opened 47 cases based on the principle – 7 more than the previous year, and 10 more than in 2014. Despite constant attacks, universal jurisdiction continues to be a significant tool in the fight against impunity. For victims, it is often the only way to justice. While this tendency is very encouraging, we cannot rest on our laurels. If 47 suspects were investigated, prosecuted or judged in 2016, how many more are walking free ? And while 11 Syrian suspects were arrested or prosecuted in 2016, all of them were low-to mid-level perpetrators. High-ranking suspects predominantly remain protected by powerful political allies. These challenges will not be overcome until specialised units in charge of these cases receive sufficient means. The coming years will bring great opportunities for domestic courts to step up their efforts and assert their jurisdiction. The International Criminal Tribunals have estab- lished a transition mechanism (MICT) to help national jurisdictions take over the prose- cution of international crimes committed in the former Yugoslavia and in Rwanda. The recently created mechanism on crimes committed in Syria will have a similar mission. The establishment of these institutions sends a strong signal to domestic jurisdictions worldwide : closing the net on impunity is in your hands. Philip Grant TRIAL International Director 2 3 KEY FINDINGS cases of universal charges jurisdiction in 47 14 of torture 13 charges countries 6 of genocide charges of crimes 31 15 against humanity of these cases are ongoing, including charges four at the trial of war crimes stage have jumped up by 55% cases under 7 21investigation cases in appeals 4 cases at the trial stage 30% increase from last year While every effort has been made to ensure the accuracy of the information presented in each case, readers are invited to alert the author to any inaccuracies or updates on the information cited. The author would like to remind that any person charged by national or international authorities is presumed innocent until proven guilty. 4 ARGENTINA 5 © Fundacion para la Justicia y el Estado Democratico de Derecho ARGENTINA JUDICIAL DEVELOPPMENT FRANCO DICTATORsHIP CAse Context Ongoing proceedings in Argentina against former Spanish officials and other actors of the Franco dictatorship for alleged serious crimes under international law committed in Spain between 1936 and 1977. suspects Former Spanish officials and other actors of the Franco dictatorship (including González Pacheco, former police officer, Jesús Muñecas Aguilar, former captain of the civil guard and former government ministers Rodolfo Martín Villa and Jose Utrera Molina) Country of residence of suspects Spain Charges Crimes against humanity, including torture, extrajudicial killings and enforced disappearances Developpments in 2016 On 19 January 2016, the corpse of Timoteo Mendieta was exhumed. The mass grave contained approximately 22 bodies. Bone and teeth samples from the skeletons, along with saliva swabs from relatives, were sent to Argentina to be tested in order to establish their identities. Timoteo Mendieta’s remains were not identified in this mass grave. Further exhumations are expected to take place. The initial case filed on 14 April 2010 has been expanded to include additional complaints. An international women’s organisation based in Spain, Women’s link Worldwide, filed a complaint with the Argentinean court on 16 March 2016, calling for the investigation into systematic gender-based crimes committed against women during the Franco regime. In August 2016, Judge Servini de Cubría opened an investigation into the death of Spanish poet Federico García Lorca, pursuant to a complaint filed by the Spanish Association for the Recuperation of Historical Memory (Asociación para la Recuperación de la Memoria Histórica). García Lorca is believed to have been executed during the Civil War in 1936. Current status Under investigation Procedure in spain In December 2006, the Spanish investigating judge Baltasar Garzón opened an investigation into allegations of crimes against humanity committed during the Franco dictatorship. In October 2008, he ruled that the 1977 Spanish law granting amnesty for crimes committed during the Franco dictatorship did not apply owing to the nature of the crimes. However, the Supreme Court overturned this decision, while Judge Baltasar > 6 Garzón was judged for prevarication for his alleged unfair interpretation of the amnesty law. He was finally acquitted but the amnesty law remains applicable, and the crimes committed by the Franco dictatorship cannot be investigated or prosecuted in Spain. Procedure in Argentina On 14 April 2010, Spanish and Argentinean human rights organisations filed a criminal complaint with the Argentinean investigating judge Servini de Cubría on behalf of Spanish victims. On 18 September 2013, the Argentinean judge issued arrest warrants against four former officials of the Franco dictatorship (including González Pacheco and Jesús Muñecas Aguilar) and requested their extradition for crimes against humanity, including acts of torture allegedly committed in Spain between July 1936 and June 1977. On 24 April 2014, the Spanish National Court (Audiencia Nacional, Sala de lo Penal) rejected an extradition request issued on 18 September 2013 by Judge Servini de Cubría against González Pacheco and Jesús Muñecas Aguilar. On 30 October 2014, notwithstanding the Court’s decision, the Argentinean investigating judge issued detention orders against twenty of the accused in order to request their extradition to Argentina. In 2015, the Argentinean judge Servini de Cubría sent a second rogatory commission to the local tribunal of Guadalajara in Spain, requesting the exhumation of the corpse of Timoteo Mendieta, who was reportedly executed in 1939. It also provided for a DNA test of his daughter, Ascensión Mendieta, victim and plaintiff in the case. On 24 November 2015, the Tribunal of Guadalajara authorized the exhumation which started on 19 January 2016.. Read more about the franco dictatorship case 7 AUSTRIA 8 © Bill Dickinson Torture Cell AUSTRIA JUDICIAL DEVELOPPMENT syRIA : 27-yeAR OlD ARResTeD IN TIROl Based on information from asylum seekers, a young syrian national was arrested in Tirol on 17 June 2016 for allegedly killing wounded Syrian army soldiers while fighting in the country’s civil war. The defendant, a former member of the rebel group Farouq Brigades, is accused of executing several government soldiers who were severely in- jured during battles near Homs in 2013 and 2014. He reportedly confessed to the killings initially but later retracted his confession. On 10 November 2016, the suspect was formally charged with 20 counts of murder with terrorist intent, which is punishable by life imprisonment. The trial is scheduled to take place before the Regional Court of Innsbruck in early 2017. 9 BELGIUM 10 © Guy Oliver BELGIUM JUDICIAL DEVELOPPMENT MICHel DesAeDeleeR Context Closed proceedings against a dual Belgian/American citizen allegedly implicated in en- slavement and the looting of “blood diamonds” in Sierra Leone, between 1999 and 2001. suspects Businessman Country of residence of suspects United-States of America Charges Enslavement as a crime against humanity and looting as a war crime Developpments in 2016 On 28 September 2016, Michel Desaedeleer died in custody in Belgium. On the same day, the Belgian press reported that he was to be formally charged within the next few weeks, and his trial likely would have begun in early 2017. It would have been the first trial to deal with international crimes allegedly committed in connection with the “blood diamonds” trade. Current status Closed Facts During the civil war in Sierra Leone, Michel Desaedeleer allegedly participated, with the Revolutionary