Written by Anandi Sweere and Isabelle Schneidewind
Since 2014, Russia has constantly undertaken efforts to gain influence and dominance over Ukraine. By supporting the illegal armed groups such as the Donetsk People's Republic (DPR) and the Luhansk People's Republic (LPR) politically and with arms supplies, Russia is interfering in the country in violation of international law.
In February of this year, the situation escalated into a full-scale invasion of Ukraine. This current invasion was justified by Putin with alleged claims of genocide in the Ukrainian regions of Luhansk and Donetsk supposedly perpetrated by the Kiev regime. On 21 February 2022, Putin recognized the DPR and LPR as sovereign and independent. Putin claimed that in order to protect the population in these regions from humiliation and genocide, a special military operation was launched. However, these assumptions by Putin are not based on any evidence and can be seen as a pretext to gain power over Ukraine with serious human rights violations. In particular, reports from the Office of the United Nations High Commissioner for Human Rights make it clear that such a situation did not in fact exist (para 21).
Since then, Ukraine has been the victim of constant attacks and the world is wondering how to hold Russia accountable for its crimes.
Holding perpetrators of international crimes accountable is essential as international crimes are considered to be the gravest and most serious violations of international law. The core international crimes are genocide, war crimes and crimes against humanity. These crimes are considered so grave that it also harms all of humanity and therefore the whole international community should work to hold those who commit them accountable.
The main legal body relevant for holding perpetrators of international crimes accountable is international criminal law. One way to prosecute alleged perpetrators of international crimes is in international courts and tribunals. The International Criminal Court (ICC) can prosecute those who have committed any of those crimes as put down in the Rome Statute. Similarly, special international tribunals like the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have been created to prosecute perpetrators of certain international crimes.
However, there is also a limit to what these international courts and tribunals can do. For example, the ICC only prosecutes those seen as having the greatest responsibility like the highest commanders or heads of states, it only prosecutes those from States that have ratified or accepted the Rome Statute, and only in situations where the State itself is unwilling or unable to prosecute the perpetrator. This is a very high threshold and as a result, only a very limited number of people are prosecuted before the ICC.
Yet, an interesting option remains: to prosecute international crimes domestically based on the principle of universal jurisdiction.
Universal jurisdiction
Universal jurisdiction would allow States to prosecute anyone who committed international crimes, regardless of their nationality or where the crime was committed. Normally for a State to have jurisdiction over a crime there has to be a direct link, either the perpetrator or victim is a national or the crime itself was committed on the State’s territory. However, when certain international law treaties were drafted it was considered that some crimes are so grave that any State has a stake in holding those who commit the crimes accountable. For example, with regards to war crimes, all four Geneva Conventions, the conventions that contain the laws of armed conflict, have a provision that requires States to enact domestic legislation that criminalizes the grave breaches of the Geneva Conventions. The Geneva Conventions have been universally ratified and are thus applicable to all States. Moreover, the Geneva Conventions provides that:
“Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed [grave breaches of the 1949 Geneva Conventions], and shall bring such persons, regardless of their nationality, before its own courts.”
It clearly obliges any state that has ratified the Geneva Conventions to find and prosecute people who have committed war crimes, regardless of their nationality. As the Geneva Conventions are applicable to all States, this means that technically all states would have the possibility to domestically prosecute anyone who committed a war crime.
Incorporation in Domestic Law
However, it is still dependent on whether states have domestically enacted legislation that criminalizes international crimes and that would allow the domestic courts to have universal jurisdiction. This is another step States have to take after ratifying the relevant international treaties that would actually allow the domestic courts to hear these cases.
According to a report by Amnesty International 163 out of the 193 UN Member States have a possibility to exercise universal jurisdiction over certain international crimes legislated domestically. However, only around 16 States have actually domestically brought cases through universal jurisdiction and these are predominantly European countries like Belgium, Spain, France, Germany and The Netherlands. Moreover, most States that have this legislation do require some link between them and the accused. For example, in The Netherlands, the accused has to be present on the territory before a domestic court can have jurisdiction. A famous recent example of the use of universal jurisdiction was the conviction of a Syrian colonel by a German court for having committed crimes against humanity and torture in a prison in Syria.
For the following analysis, we will consider the potential domestic prosecution of the crimes committed by Russia's attacks on Ukraine and its difficulties in The Netherlands, Germany and France. In all three countries, universal jurisdiction is already anchored in the domestic legal system. The states in question also have adopted the crimes of international law nationally. The Dutch International Crimes Act (ICA), the German International Criminal Code (VStGB) and the French Criminal Code (FCC) regulate the core international crimes. These are countries that have employed universal jurisdiction before and are therefore interesting to consider.
A Crime of Aggression?
Russia has taken military action against Ukraine without provocation. This could be prosecuted as a crime of aggression, which also applies in the German legal system. Aggression in international and German understanding consists of planning, initiating or executing a large-scale and serious act of aggression using military force. Russia argues that the invasion of Ukraine is justified because it says that Ukraine is committing genocide. Even if this would constitute fair grounds to justify acts of aggression, courts would still have to investigate whether it is true that Ukraine is committing genocide for this argument to be considered.
However, the German judiciary only has jurisdiction in the case of a crime of aggression if the perpetrator is a German or the offense is directed against Germany. The offense of war of aggression is not contained in French or Dutch law, so also no national prosecution is possible there. This means that Putin, as the initiator of the war of aggression, cannot be held responsible in these states.
What About War Crimes and Crimes against Humanity?
Since its invasion of Ukraine in February, Russia has committed a lot of indiscriminate attacks and such against civilian targets by using cluster munitions, bombing or shelling. In controlled areas of Russian forces, the situation is characterized by sexual assaults, killings and other acts of violence. By the end of April, a total of 6,800 civilian buildings had been destroyed, 5,830 Ukrainians were victims of crime and 2,729 were killed.
These injuries could be domestically prosecuted as war crimes and crimes against humanity. The former term refers to attacks on civilians and civilian objects in armed conflicts and thus protects those who are not involved in the fighting in wars. Examples include the bombing of civilian homes, looting or executions of civilians. Crimes against humanity are individual acts that are also directed against individuals, regardless of their nationality or ethnicity, and are usually committed as part of a large-scale attack, but can also be committed in peacetime. Covered are acts such as killing, torture, enslavement, deportation, imprisonment or rape.
The Netherlands, Germany and France regulate these crimes in their national legal systems. However, France provides limitations to universal jurisdiction for the crimes that fall within the ICC's jurisdiction. For example, the suspect must be domiciled in France and there is subsidiarity vis-à-vis other jurisdictions. Under German international criminal law, on the other hand, this offence falls under German jurisdiction, even without a domestic connection. In The Netherlands, to establish universal jurisdiction under Dutch law for these crimes, the accused has to be present on the territory of The Netherlands before a prosecution can be started. These crimes committed by Russian individuals can therefore only be prosecuted in Germany without a national link.
Conclusion
The principle of universal jurisdiction adds extra potential for the prosecution of those who have committed crimes in Ukraine. Apart from the International Criminal Court and a potential international tribunal, this allows any State who has the relevant domestic legislation to prosecute those who committed the crimes. When looking at legislation in France, Germany and The Netherlands, it seems that it would be difficult based on this principle to prosecute Russian actors for the international crime of aggression. However, crimes against humanity and war crimes can potentially be brought before these domestic courts. Ensuring that those who have committed crimes in Ukraine are held accountable and to make sure that impunity will not prevail, all avenues will have to be explored and be relevant. Universal jurisdiction may play an important part in this.