Three years after Russia started its full-scale invasion of Ukraine, the widespread activation of common and different types of extraterritorial jurisdiction to prosecute worldwide crimes dedicated within the conflict requires an analysis. What has been achieved to date and what might be executed higher? Regardless of the said dedication of Ukraine’s allies to enhance the justice efforts in Ukraine and on the Worldwide Felony Courtroom (ICC) domestically, surprisingly few concrete achievements are identified. To make sure accountability, a extra proactive method to common jurisdiction (UJ) primarily based on a sensible evaluation of Ukraine’s home capacities is required.
As Russia continues its aggressive conflict, the listing of worldwide crimes allegedly dedicated in its course retains rising: assaults on civilian infrastructure, torture and killing of civilians, enforced disappearances, arbitrary detention, deportation of youngsters, ill-treatment of prisoners of conflict, environmental crimes, and conflict-related sexual violence. To fight impunity for these crimes, Ukraine is in search of accountability domestically, as is the ICC internationally. As a part of these efforts, Ukraine has tried greater than 100 alleged perpetrators, most of them in absentia, and the ICC has issued six arrest warrants, together with for President Putin and former Defence Minister Shoigu.
Nevertheless, the pursuit of justice will not be restricted to those two fora. In an unprecedented dedication to justice, a big variety of states have launched extraterritorial legal investigations into core worldwide crimes dedicated within the context of the full-scale invasion. 14 EU Member States and a number of other non-EU international locations, reminiscent of Canada and the USA, have reportedly taken this step. The activation of UJ alongside the ICC, home proceedings in Ukraine and different investigative initiatives is a brand new and welcome improvement: Up to now, UJ has primarily been used when no different cures had been accessible. The primary trial for Syrian state torture, for instance, needed to happen in Germany, as a result of the ICC lacked jurisdiction and the Assad regime was evidently unwilling to prosecute its personal brokers. Nonetheless, the parallelism of investigations within the present scenario raises questions of subsidiarity and complementarity: how to make sure that the efforts in Ukraine and on the ICC are neither duplicated nor substituted, however moderately complemented, with UJ filling current accountability gaps? Sadly, a take a look at the established order means that the continuing UJ investigations don’t sufficiently fulfil this complementary position.
The established order of extraterritorial prosecutions of worldwide crimes dedicated throughout Russia’s full-scale invasion
Primarily based on publicly accessible info, states primarily seem like pursuing a two-pronged method to extraterritorial investigations. On the one hand, legislation enforcement companies safe proof that’s of their rapid attain by taking testimony from Ukrainian refugees who’ve settled on their territory. However, they examine crimes dedicated towards their very own residents in Ukraine on the idea of the passive persona precept.
Greater than six million Ukrainians have fled their nation for security, many bringing with them reminiscences of the atrocities inflicted on them or their relations by Russia’s aggression. To protect these reminiscences as proof, many states have known as on witnesses and survivors to testify about their experiences and share related supplies. In lower than three weeks after the full-scale invasion started, Poland introduced having collected greater than 300 testimonies, Lithuania reportedly interviewed 423 witnesses and acknowledged 125 as victims by January 2024, and by February 2024, Germany had collected greater than 500 leads on conflict crimes in Ukraine and interviewed greater than 160 witnesses. Equally, international locations reminiscent of Sweden, Switzerland and the Czech Republic have introduced plans to gather refugee testimonies after February 2022, and others could also be added to this listing.
Nevertheless, such bulletins and figures alone present little details about the evidentiary worth, scope and meant use of the testimonies collected, and these parameters are prone to fluctuate from nation to nation. Some states, reminiscent of Poland, Lithuania and Latvia, have solely just lately begun to analyze worldwide crimes dedicated overseas, whereas others, reminiscent of Germany and Sweden, have long-established conflict crimes models and a observe file of profitable prosecutions. And whereas the latter two have broad variations of UJ, different states, reminiscent of Switzerland and France, require the presence and even the routine residence of the suspect inside the nation with the intention to provoke an investigation that doesn’t contain crimes by or towards their nationals. These institutional constraints clearly have an effect on the outcomes we are able to anticipate within the present scenario and make it tough to find out whether or not states are ready to research these refugee testimonies to establish patterns and perpetrators and to collect further proof to construct circumstances towards particular suspects.
Nevertheless, whereas we are able to assume that EU Member States share these witness statements, not less than partially, by Eurojust and Europol or, the place related, as members of the Joint Investigation Staff, nearly all of international locations appear to be leaning in direction of a mode of restricted engagement except their very own nationals are affected by against the law. A minimum of, it’s largely in such circumstances that perpetrator-specific investigations have been introduced: France has reportedly opened investigations into ten circumstances of crimes towards its residents, together with journalists and humanitarian employees. In July 2023, the German Federal Prosecutor, opened a primary person-specific investigation into the taking pictures of civilians in Hostomel, with one of many victims being a German nationwide. In December 2023, the US justice division filed the primary ever expenses underneath the U.S. conflict crimes statute towards 4 Russia-affiliated troopers for torture and illegal detainment of a US nationwide. Polish investigators have reportedly recognized 30 crimes circumstances, however given Poland’s restricted software of UJ, it seems unlikely that this quantity refers to perpetrator-specific investigations. Lithuania is investigating the homicide of Lithuanian filmmaker Mantas Kvedaravičius and has summoned three suspects to seem in court docket. A notable exception is the case of Voislav Torden, a Russian citizen who was arrested at Helsinki airport in 2023 and is at the moment on trial in Finland for conflict crimes allegedly dedicated towards Ukrainian troopers as a part of a paramilitary group in japanese Ukraine in 2014.
Past these circumstances, nonetheless, there are not any identified systematic efforts by third states to formally prosecute particular person suspects, and states seem reluctant to intrude in circumstances that Ukraine is investigating. A legal grievance filed by the European Middle for Constitutional and Human Rights (ECCHR) and Ukrainian Authorized Advisory Group (ULAG) on behalf of a survivor of conflict-related sexual violence in Germany is a working example: Provided that Ukraine had already opened a trial in absentia towards one of many suspects and that they weren’t current on German territory, the German Federal Prosecutor argued that an investigation in Germany would haven’t any added worth, regardless of the dearth of prosecution of crimes towards humanity and commanders. Utilizing the terminology coined by Máximo Langer, we are able to summarize that, except passive persona circumstances, states seem like unwilling to undertake a ‘international enforcer method’, preferring as a substitute a ‘no secure haven’ method, whereby they won’t provoke formal proceedings towards particular suspects except they journey to their territory.
Analysis – are UJ investigations efficient sufficient?
When assessing the effectiveness of UJ proceedings within the present scenario, one factor should be made clear from the outset: UJ has by no means been significantly efficient in bringing perpetrators of worldwide crimes to justice rapidly. For instance, the primary Syria torture trial talked about above started some eight years after the crimes had been dedicated, and prosecution was solely doable as a result of the defendants had sought refuge in Germany after abandoning their positions within the regime.
Lack of entry to perpetrators, difficulties in gathering proof and political issues are all components that play a task in investigations into crimes dedicated throughout Russia’s conflict of aggression. The suspension of the EU-Russia visa facilitation settlement, EU, US and different journey bans on senior Russian officers and navy personnel, and the general public announcement of legal investigations have made it unlikely that vital numbers of suspects from Russia or the separatist areas would at the moment enter the territory of these states prepared to attempt them. And whereas a few of these people might journey to different international locations, reminiscent of Serbia, Turkey and the United Arab Emirates, it appears unbelievable for political causes that any of those international locations would readily fulfil their authorized obligation to extradite or prosecute them. Towards this background, it’s unsurprising, albeit irritating, that no suspects of worldwide crimes allegedly dedicated by Russian forces in the course of the full-scale invasion have been dropped at justice outdoors Ukraine. However whereas profitable prosecutions rely to a big extent on exterior components reminiscent of suspects coming inside attain of prosecutors, the steadiness of the Putin regime and the course of the conflict, you will need to be as ready as doable for any alternatives which will come up.
To find out whether or not the UJ measures taken are enough to realize this objective, it’s obligatory to take a look at the justice ecosystem as a complete, and extra particularly on the justice efforts inside Ukraine and on the ICC. The query of what position UJ can and may play in complementing the prosecutorial actions of those two actors is inextricably linked to their means to stop impunity. So far as the ICC is worried, the reply is kind of apparent: As evidenced by the six arrest warrants issued to date, the Courtroom is prone to deliver solely a handful of circumstances towards high-level perpetrators, leaving a variety of doable crimes dedicated by low- to mid-level suspects unaddressed. That is all of the extra true in mild of the current US sanctions imposed on the ICC, which threaten the functioning of the Courtroom as a complete. Nevertheless, so far as Ukrainian home investigations are involved, the scenario is rather more sophisticated: The Ukrainian Felony Process Code (article 214) requires that each legal incident be registered, which explains the massive variety of circumstances opened and theoretically implies that each alleged worldwide crime dedicated within the battle will probably be investigated by Ukraine in a technique or one other.
Towards this background, the above-mentioned main concentrate on passive persona circumstances could seem cheap for not less than two causes: In some international locations, reminiscent of France, it’s the solely jurisdictional foundation on which an investigation may be launched underneath the given circumstances. And from the standpoint of subsidiarity, it is smart as a result of such circumstances have a private hyperlink to the investigating state by the overseas nationality of the sufferer, which distinguishes them from nearly all of circumstances affecting solely Ukrainian nationals. Additionally, the broad and never essentially structured assortment of witness statements from refugees overseas is useful from a subsidiarity perspective: Since these folks have left Ukraine and can’t inform their tales to home investigators, you will need to be sure that their accounts aren’t misplaced or ignored. Nevertheless, as essential as these measures are, it will be improper to conclude from the truth that Ukraine theoretically prosecutes all different circumstances domestically that UJ has no position to play past these efforts. A sensible evaluation of the home system reveals the necessity for a extra proactive software of UJ.
Shortcomings of the Ukrainian home system – why do states have to step up their efforts?
Ukraine is commonly put in distinction with battle conditions the place there’s little to no political will and capability to prosecute grave crimes in nationwide courts. But, such a comparability may be deceptive. Certainly, Ukrainians are making immense efforts to manage justice within the context of the armed battle, and particularly because the full-scale invasion the worldwide group has been offering vital help to strengthen the potential of the home system. Nevertheless, it’s nonetheless removed from being totally able to making certain justice for the big variety of severe crimes resulting from its incomplete authorized framework, lack of assets and human capital, expertise and experience, in addition to safety threats within the context of an ongoing conflict.
As of February 2025, greater than 151000 proceedings have been opened on alleged violations of the legal guidelines and customs of conflict that happened after February 2022. The precise variety of grave crimes dedicated might in the end differ, since this file is a mirrored image of an method talked about earlier – to register each incident which doesn’t all the time quantity to a grave crime, and a few of these proceedings could also be joined later. On the similar time, a big variety of atrocities is but to be uncovered resulting from an absence of entry to info and territories underneath Russian management. Nevertheless, it’s illustrative of the scope and scale of violations and, respectively, the workload that’s at the moment weighing on the home justice system`s shoulders.
Legislative shortcomings current a further problem: As detailed by ULAG’s Wants Evaluation Report, Ukrainian laws doesn’t present the required toolkit for the efficient investigation and prosecution of worldwide crimes in accordance with the pursuits of the victims. Whereas Ukraine has develop into a full State Get together to the Rome Statute because the publication of the report and has launched beforehand lacking provisions on command duty and crimes towards humanity as a part of the implementation course of, it’s debated whether or not these provisions can and ought to be utilized retroactively. Though the jurisprudence of the European Courtroom of Human Rights (ECtHR) explicitly permits this in sure circumstances (see right here and right here), each the Ukrainian Structure and the Felony Code (CCU) prohibit the retroactive software of legal guidelines that criminalise an act or enhance legal legal responsibility, and it has not been decided whether or not this home prohibition additionally applies to legal provisions which have a transparent authorized foundation in worldwide legislation. Within the absence of a ruling by the Ukrainian Constitutional Courtroom and legislative clarification by the Verkhovna Rada on this situation, this uncertainty stays. In consequence, an unlimited variety of incidents – such because the case of conflict-related sexual violence talked about above – might stay with out correct classification and due to this fact prosecution for the interval previous to October 2024, when the amendments got here into pressure. In fact, Ukraine should still be capable to prosecute a few of these incidents underneath beforehand current provisions, reminiscent of Article 438 CCU, which broadly criminalises violations of the legal guidelines of conflict, and even odd crimes provisions, however each don’t all the time adequately seize the character of the injustices dedicated. Whereas reliance on “odd” modes of legal responsibility can assist guarantee accountability in lots of circumstances, command duty extends this legal responsibility by criminalizing the failure of superiors to stop their forces from committing against the law or to punish its fee. Furthermore, there’s a actual threat that the categorisation of crimes will stay imprecise if an excessive amount of reliance is positioned on home crimes, as evidenced by the widespread software of Article 258 of the CCU (act of terrorism) to alleged conflict crimes in japanese Ukraine previous to the full-scale invasion. This usually obscured the character of the armed battle and thus the essence of the acts in query (ULAG, Wants Evaluation Report, pp. 15).
There’s additionally a plethora of procedural imperfections undermining the standard of justice processes in Ukraine. There’s at the moment no efficient program for sufferer and witness safety in place, placing the latter in nice hazard and disincentivizing them to take part in proceedings (ULAG, Wants Evaluation Report, pp. 97). Additionally, the dearth of enough guidelines for the dealing with of open supply info and intelligence knowledge, along with incomplete guidelines and tips for the dealing with of different kinds of info, limits the probabilities of utilizing them as legally admissible and related proof in a approach that will adjust to worldwide requirements (see ULAG, Wants Evaluation Report, pp. 66).
The overwhelming majority of proceedings are tried in absentia. One might contemplate this case not very best, however comprehensible, particularly within the context of an ongoing armed battle. Nevertheless, Ukrainian requirements for in absentia proceedings don’t at the moment align with these set out within the European Conference on Human Rights (ULAG, Wants Evaluation Report, pp. 79). For instance, there isn’t a proper to retrial if the suspect seems earlier than the court docket, and the method of informing the suspect additionally requires substantial enhancements. Doable violations of the proper to a good trial elevate issues in regards to the legality of such proceedings, and will ultimately result in verdicts being challenged within the ECtHR, dissatisfaction amongst victims themselves, in addition to unwillingness on the a part of third international locations to adjust to such judgments and arrest warrants. Current refusals by Finland, Austria and France to extradite suspects to Ukraine exhibit that human rights issues can successfully stop the acceptance of Ukrainian judicial selections.
Along with these authorized obstacles, different institutional challenges make the work of investigators, prosecutors and judges much more tough. There’s a vital scarcity of execs, acute safety dangers and an absence of operational assets, which is all of the extra drastic when put within the context of the heavy workload described above. Specialists lack related expertise and experience in working with grave crimes in accordance with worldwide requirements (ULAG, Wants Evaluation Report, pp. 104). Whereas there are lots of coaching alternatives, they usually stay fragmented and indifferent from the context on the bottom, which makes it more durable to implement the obtained data in follow.
Breaking a vicious cycle: learn how to strengthen the justice structure for Ukraine
Given these limitations of the Ukrainian home system, there’s a clear want for different states to maneuver past passive persona circumstances with the intention to obtain the said objective of stopping impunity. To keep away from accountability gaps, the intention ought to be to construct circumstances towards these high- and mid-level perpetrators who’re unlikely to be the main target of an ICC investigation. Particular emphasis ought to be positioned on the investigation of crimes towards humanity with the intention to tackle the systematic nature of the assault on the Ukrainian civilian inhabitants – particularly with regard to violations dedicated earlier than October 2024, when Ukrainian laws didn’t enable for his or her prosecution. Slightly than limiting UJ to a “no secure haven” method, the intention ought to be to situation arrest warrants in circumstances the place the required authorized threshold may be met, with the intention to enhance the chance that suspects will probably be arrested. Regardless of the present difficulties in apprehending needed individuals, political developments can rapidly change this case and quick motion would then be important.
Nevertheless, it’s clear that extra honesty, cooperation, political will and assets are wanted for UJ to play this position. A part of the reluctance to make use of UJ extra proactively could also be resulting from comprehensible issues about interfering in Ukraine’s inside affairs, so a transparent name for help by UJ is required from Ukrainian officers. On a sensible stage, there’s a have to additional develop options for the continual change of proof, as refugee testimonies, NGO submissions and OSINT alone gained’t all the time present the data wanted to construct a powerful UJ case. On the legislative stage, reforms are wanted in lots of international locations to make UJ extra extensively relevant, for instance by eradicating necessities that restrict investigations to suspects current on a state’s territory.
Crucially, all of this doesn’t imply that the Ukrainian home system shouldn’t be supported, fairly the opposite. UJ remains to be to be understood as complementary to prosecutions by Ukraine. To enhance home capacities and make sure the correct implementation of worldwide requirements, there’s a want for additional efforts within the type of legislative reforms, worldwide help and coaching, primarily based on an intensive evaluation of precise wants.
Given the restrictions of all current mechanisms (home system, ICC, UJ), it will even be prudent to think about the creation of an advert hoc justice and accountability mechanism (ULAG, Wants Evaluation Report, pp. 185) to finish the justice structure for Ukraine. A hybrid (combined, internationalized) court docket mandated to prosecute all core worldwide crimes and staffed with Ukrainian and overseas specialists, might function a devoted resolution with enough legitimacy and obligatory capability to reinforce the long-term potential of the Ukrainian home system by shut cooperation between native and worldwide parts. Nevertheless, this feature is but to be correctly thought of on the decision-making stage, as evidenced by the current development within the course of of creating a particular tribunal, targeted solely on the crime of aggression. Much like states’ reluctance to make use of UJ extra proactively, this restricted focus is partly resulting from a misperception of Ukraine’s home capability to make sure accountability for the opposite core crimes. The US sanctions towards the ICC underscore the necessity to make sure that the justice structure for Ukraine consists of strong, efficient and bonafide parts that may face up to political turbulences, particularly within the context of doable peace negotiations. UJ has an essential position to play on this. With a view to notice its potential, states ought to transfer in direction of a extra energetic software of this precept in relation to alleged crimes dedicated in Russia’s conflict of aggression.
