Universal jurisdiction in cases of enforced disappearance: new study by the UN Working Group
Recently, the United Nations Working Group on Enforced or Involuntary Disappearances published a highly significant study on universal criminal jurisdiction in cases of enforced disappearance. The report examines the normative foundations, practical and political challenges in its application, as well as the situation in various countries, including Spain.
The debate on universal jurisdiction in cases of enforced disappearance is not new. As early as 2002, Professor Manfred Nowak, serving as the independent expert tasked with examining the legal framework in this area, emphasized that, given that the protection of international criminal law would only apply in exceptional cases, universal jurisdiction —applied in clearly defined cases of enforced disappearance and accompanied by appropriate sanctions— would constitute the most effective measure to prevent this crime in the future.
The new study by the Working Group challenges the widespread assumption that only States party to certain international treaties are required to apply universal jurisdiction. On the contrary, it recalls that the prohibition of enforced disappearance is a norm of ius cogens. Consequently, all States—regardless of their treaty commitments—have an obligation to adopt the necessary measures to prevent impunity, either by exercising their own criminal jurisdiction or by cooperating with other States that do so or attempt to do so.
In this regard, Article 14 of the Declaration on the Protection of All Persons from Enforced Disappearance provides a clear basis for universal jurisdiction, establishing that any person allegedly responsible for this crime must be prosecuted in the State where they are found, unless extradited to another State exercising jurisdiction in accordance with international law. This directly links to the principle of aut dedere aut judicare, which imposes on States the obligation to extradite or prosecute and, in practice, requires the incorporation of universal jurisdiction into domestic legislation.
The study notes that, despite its legal recognition, proceedings based on universal jurisdiction in cases of enforced disappearance remain very rare, due to multiple obstacles. These include the lack of autonomous criminalization of the crime in many legal systems, restrictive definitions that exclude acts that de facto constitute the offense, the treatment of enforced disappearances as ancillary crimes rather than autonomous offenses, the application of personal or functional immunities for high-ranking officials, as well as accusations of selectivity, political instrumentalization, and perpetuation of neo-colonial dynamics.
To overcome these limitations, the Working Group recommends that States criminalize enforced disappearance as an autonomous offense, adopt legislation covering all forms of individual criminal liability, incorporate the principle of aut dedere aut judicare, remove procedural obstacles such as statutes of limitation, amnesty laws, or immunities, establish specialized units with adequate resources for the investigation and prosecution of international crimes under universal jurisdiction, strengthen international cooperation through joint investigations and evidence-sharing, ensure the protection of witnesses, relatives, and defense counsel, secure the effective and dignified participation of victims, and foster the role of civil society and victims’ associations in promoting processes based on universal jurisdiction.
With regard to Spain, enforced disappearance is criminalized as a crime against humanity under Article 607 bis of the Criminal Code, while Organic Law 1/2014, which amended the Organic Law of the Judiciary, provides for universal jurisdiction in Article 23.4. However, this definition has been interpreted restrictively in relation to enforced disappearances, alongside a progressive narrowing of the scope of universal jurisdiction in general, which shifted from an absolute to a conditional model.
As a result, there have been no convictions for enforced disappearance in Spain under universal jurisdiction. A paradigmatic example is the 2005 judgment of the Audiencia Nacional against Adolfo Scilingo, convicted of crimes against humanity committed during the Argentine dictatorship. Although there was strong evidence of enforced disappearances, these were not recognized as such in the ruling. Similarly, the 2017 complaint against nine high-level Syrian military and government officials for the disappearance of Abdulmeumen Alhaj Hamdo in 2013 was dismissed by the Audiencia Nacional due to lack of jurisdiction. This decision was later upheld by the Constitutional Court in 2019, which adopted a restrictive interpretation of the victim status in cases of enforced disappearance.
The Working Group’s study confirms that universal jurisdiction remains an indispensable tool to combat impunity in cases of enforced disappearance, even though its practical application faces legal, political, and structural obstacles.
In the Spanish context, legislative setbacks and restrictive jurisprudence have limited the possibility of delivering justice in cross-border cases. The pending challenge is therefore to reaffirm the commitment to universal jurisdiction as a tool against impunity for one of the most serious and persistent crimes of our time.
