The current challenges of the legal response to international crimes of persons under the control of the Russian aggressor have exacerbated the issue of the application of mechanisms of universal jurisdiction in the global legal dimension and in relation to the Ukrainian legal system and aspects of comparative jurisprudence, in particular regarding the crimes of the occupiers committed in the occupied Crimea.
Investigations of relevant crimes in the national criminal jurisdiction during the last two years have been announced by the authorities of Estonia, Lithuania, Germany, France, Sweden and other countries.
It is relevant in a situation where there is still no information about systematic court decisions in Ukrainian criminal proceedings regarding aggression, ecocide and genocide, and there is an accumulation of decisions regarding war crimes in accordance with Article 438 of the Criminal Code of Ukraine regarding violations of the laws and customs of war. Anna Prykhodko, an expert of our Association, candidate of sciences, investigated the situation, according to the approbation carried out in “Law of Ukraine”.
Currently, it is clear that the existing proceedings at the International Criminal Court will probably not cover all persons who have committed relevant international crimes, and there is currently still a doctrinal and political discussion on the creation of a special tribunal for the crime of aggression.
The January decision of the UN International Court of Justice in the case “Ukraine v. Russia” regarding the International Convention on the Elimination of All Forms of Racial Discrimination and the International Convention on the Fight against the Financing of Terrorism on the events that preceded the large-scale Russian invasion shows that not all aspects of the responsibility of the aggressor can be resolved on the corresponding interstate level [1].
For a long period after the emergence of the phenomenon of universal jurisdiction, the study of the international and comparative legal dimension of this concept was mentioned only by individual Ukrainian researchers, among whom such authors as Borys Babin [2], Olexander Bazov [3], Kateryna Gaidei [4], Olexandra Chubinidze [5] and others. Among other things, the theses of Chubinidze on the differences in the application of universal jurisdiction in international and national law, and on the need to unify the understanding of subjects who can be held accountable through its application.
It is also interesting to point on Borys Babin’s refutation the attempts to use the principle of universal jurisdiction by Russian punitive structures and propaganda regarding the events in Ukraine in 2014-2015, as part of the Russia’s judicial aggression and as an element of the general Russian aggression against Ukraine. However, these articles were written before the large-scale Russian aggression and they do not reflect the current cases, which are being conducted in European countries regarding the relevant crimes.
Thus, the purpose of the article is to outline the reflection of the category of universal jurisdiction in international law and in the modern practice of European countries, primarily in relation to cases committed in Ukraine by Russia-controlled persons; the tasks of this essay are to carry out a corresponding comparative analysis and correlation of the announced proceedings with each other and to work out a forecast of their further development.
Let us note that despite doctrinal references to contractual norms, currently the international legal dimension of universal jurisdiction is not specified even at the resolution level.
The doctrinal definition of universal jurisdiction, proposed in 2001 by Amnesty International, in document IOR 53/003/2001, is defined as the ability of a court of any state to try persons for crimes committed outside its territory who are not related to the state by citizenship suspect or victims or damage to the state’s own national interests. The UN International Law Commission [6] provides for a similar and, moreover, preliminary interpretation of universal jurisdiction.
The European Union later defined universal criminal jurisdiction at the level of analytical documents as the assertion by one state of its jurisdiction over crimes, that were allegedly committed on the territory of another state by citizens of another state against citizens of another state, if the alleged crime does not pose a direct threat to the vital interests of the state exercising jurisdiction [7].
The first documents in this area, namely the Princeton Principles on Universal Jurisdiction, provided by Canada and the Netherlands to the UN Secretariat in 2001 [8] and the document “Universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes” proposed in 2005 by the Institute of International Law for a global discussion [9], became only an impetus for the relevant expert activity of the UN.
The actual item entitled “The scope and application of the principle of universal jurisdiction” was first included in the agenda of the 64th session of the UN General Assembly in 2005, at the request of Tanzania on behalf of the African Group of States, and this topic became annual and led to a series of resolutions of the General Assembly, namely 64/117, 65/33, 66/103, 67/98, 68/117, 69/124, 70/119, 71/149, 72/120, 73/208, 74/192, 75/142, 76/118 and 77/111, etc. In 2021, the General Assembly decided to establish a working group of its Sixth Committee to continue a thorough discussion of the scope and application of universal jurisdiction and invited it to consider the role and purpose of universal jurisdiction [10].
The level of “global consensus” regarding universal jurisdiction is well demonstrated by the next resolution of the UN General Assembly “The scope and application of the principle of universal jurisdiction” dated December 7, 2023 78/113, which recognized the differences of opinion expressed by states, in particular, concerns about the abuse of the principle of universal jurisdiction or its improper use, and contains a proposal for UN states to submit by April 26, 2024, information and comments on the scope and application of universal jurisdiction, including, depending on the circumstances, information on relevant applicable international treaties, their national legal norms and judicial practice, for the regular report of the UN Secretary General.
However, this resolution of the General Assembly at the same time welcomed the decision of the UN International Law Commission to recommend the inclusion of the topic “Universal Criminal Jurisdiction” in its long-term program of work, and assigned the mentioned working group of the Sixth Committee to consider the issue of relevant elements of the working concept of universal jurisdiction and submit its comments on of this issue [11]. At the same time, according to experts, the number of reports of states received by the Sixth Committee regarding universal jurisdiction remains disappointing, because approximately 50 UN member states periodically submitted relevant reports [6]. It is to be hoped that the crimes of the Russian occupiers, committed in the occupied Crimea, would be reflected in the relevant documents.
However, back in 2009, the European Union’s Expert group on universal jurisdiction came to the conclusion that international law did not give states where crimes were committed unconditional priority in the investigation and prosecution of international crimes. However, the cases that have been held within the framework of universal jurisdiction cover a wide range of national situations, and that some of the cases, that have been cited as alleged evidence of “abuse” of universal jurisdiction, were not even based on universal jurisdiction.
The Expert group emphasized that positive international law does not recognize any hierarchy between the various grounds of jurisdiction it allows. Thus, EU experts note, a state that enjoys universal jurisdiction, for example, in relation to crimes against humanity, does not have any positive legal obligation to give priority in terms of prosecution to the state on whose territory the criminal acts took place, or to the state of nationality of the criminal or the victim [12].
Let us add that, according to Amnesty International, as of the beginning of the Russian aggression in 2014, approximately 145 states of the world, that is, about three quarters of their total number, provided for universal jurisdiction over one or more of the international crimes, while up to 90 states provided such a possibility for crimes that are not international [6].
EU experts add that as of 2009, universal jurisdiction over genocide, crimes against humanity and war crimes in Europe was defined in national law by the criminal laws of Belgium, Czech Republic, Denmark, Finland, France, Germany, Great Britain, Ireland, Luxembourg, the Netherlands, Spain and Sweden. At the time, the exercise of universal jurisdiction was often subject to legal constraints, including the presence of the suspect in the territory of the prosecuting state, either before the start of a criminal investigation or before the start of court proceedings (for example, this was required by the criminal law of Great Britain, Denmark, Ireland, the Netherlands and France).
Certain countries also required the national legal system to obtain authorization from the executive or special judiciary to initiate a specific prosecution based on universal or other extraterritorial jurisdiction, including Belgium, Finland, Ireland, Spain and the United Kingdom [7]. In May 2022, EuroJust noted that the number of new open cases of serious international crimes in Europe increased by 44% from 2016 to 2021″, because the number of facts of investigation and prosecution of crimes of genocide, crimes against humanity and war crimes in 2021 covered in 3,171 cases in Europe, and 1,547 new cases were opened during the year [13].
European experts add that as of December 2022, 78 people have been convicted in Europe for international crimes within the framework of universal jurisdiction since 2015. Experts attribute the increase in statistics to cooperation between the prosecutor’s office and specialized civil society organizations, whose investigative efforts and victim support have been critical to advancing cases. Also, according to European experts, specialized prosecutors are deepening their knowledge of the specifics of investigating international crimes, and courts have been solving a number of important legal issues on an individual basis for many years, but by 2022, only six European countries have created such specialized units [14].
During 2023, more than 20 new verdicts in the format of universal jurisdiction were recorded in the world, but none of them related to the events in Ukraine. However, European experts state that the atrocities committed after the Russian invasion of Ukraine caused an unprecedented mobilization of both national prosecutor’s offices and international institutions, such as the International Criminal Court and regarding the events of Russian aggression at least 11 investigations were opened in Europe and Canada on the basis of universal jurisdiction. It is obvious that these proceedings should also concern the crimes of the occupiers committed in the occupied Crimea.
In addition, the prosecutor’s office of several European countries launched “structural investigations” into the events of Russian aggression, which from the beginning were not directed against specific individuals or incidents, but rather they were intended to collect evidence about crimes committed during the armed conflict in order to give investigators will be able to actively build cases for the benefit of future criminal proceedings [15].
As an example, it is worth citing the statement of the Swedish government, announced in March 2023, that within the framework of universal jurisdiction over serious international crimes from March 2022, the Swedish prosecutor’s office will conduct a structural preliminary investigation of serious war crimes in Ukraine. The purpose of this process was determined to collect evidence that may exist in Sweden, for example, testimonies of Ukrainian refugees; the Swedish government adds that the evidence can then be used in proceedings in Sweden, in the courts of other countries or in the International Criminal Court [16].
As Professor Mark Kersten wrote in the fall of 2022, universal jurisdiction should be part of the solution to solving the mass of atrocities committed in Ukraine. He emphasizes that over the past few years, universal jurisdiction has experienced a renaissance of sorts, especially in Europe, where several states, including France, Sweden, the Netherlands and Germany, have prosecuted alleged perpetrators of atrocities committed during the Syrian civil war, i.e. in a situation where, unlike Ukraine, universal jurisdiction is the only realistic way for Syrian victims and survivors of international crimes to ever see justice [17].
In this format, the specifics of European countries are indicated, which until 2022 did not have experience in the specifics of investigating international crimes, but took legal measures in response to atrocities committed by the aggressor in Ukraine, primarily due to the massive influx of Ukrainian asylum seekers. Since these persons are, among other things, victims of the crimes of the occupiers committed in the occupied Crimea, the Crimean issues will clearly be reflected in such proceedings.
Prosecutors in Poland, Romania, Slovakia and Latvia, among others, are said to have begun gathering testimony to preserve key evidence for future cases. In this dimension, it is added that building a solid evidence base from the very beginning of an armed conflict is certainly encouraging, given that one of the main challenges to the effective exercise of universal jurisdiction is the passage of time, as key witnesses become difficult to find, forget events or die, and documentary and other evidence is lost or destroyed [17].
Professor Kevin J. Heller of the University of Copenhagen states that according to universal jurisdiction, any state with the necessary legislation can prosecute Russian criminals in its national courts. He adds that the first trial of a Russian defendant outside of Ukraine is more likely to take place at the national level than at the International Criminal Court, because many states allow trials in absentia [18].
Mark Kersten notes that states must do more with the resources they have at their disposal and that this means committing to use universal jurisdiction now, for which the highest state authorities in European states must clearly give to understand that if a Russian citizen, suspected of atrocities in Ukraine, gets to their countries, they will prosecute him in their courts. Such an approach, the mentioned author adds, will not be as expensive as previous cases of universal jurisdiction, given the number of states in which investigations regarding Ukraine are ongoing; these states can pool resources, intelligence and evidence to make the exercise of universal jurisdiction more cost-effective [17].
At the same time, a number of human rights organizations refer to the duplication of relevant proceedings in different jurisdictions as the main challenges of the application of universal jurisdiction, as well as the risk of violation of the rights of victims, who, especially in the case of “structural investigations”, will clearly not be able to count on a quick solution to their problems after receiving procedural status [19].
Indeed, the media has information about the decision to apply the approach of universal jurisdiction regarding the circumstances of Russian aggression in Ukraine, which was expressed by the law enforcement and judicial authorities of Estonia [20] Spain [21], Latvia, Lithuania [22]; [23], Germany [24]; [25]; [26], Poland, Romania, Slovakia, Sweden [27]; [28], France [29], etc. [30]. But as of January 2024, there is almost no information in open sources about even the approximate results of relevant investigations, including episodes related to the crimes of the occupiers committed in the occupied Crimea.
But it is already possible to outline the main challenges in this area; they really include a significant risk of duplication of proceedings, which will become a particularly acute issue in the case of indictment of specific individuals, and foresee the most acute challenge regarding the realization of the procedural rights of the victims, since it is also covered by the obligations before the European Convention on Human Rights, which arise in the relevant state apparently after the initiation of a case under the mechanism of universal jurisdiction. In addition, it would be naive to expect that in these cases the aggressor will not act as a large-scale procedural action, which will eventually bring all “acute” cases to the same European Court, and apply illegal forms of influence on the participants in the process and on the court.
In this situation, the absence of a mechanism of universal jurisdiction in the national law of Ukraine is dramatic. In September 2022, commenting on the situation in which four countries, Estonia, Latvia, Lithuania and Germany, opened a war crimes investigation under universal jurisdiction following the full-scale Russian invasion of Ukraine, and in which Spain, Norway, Poland, Slovakia, Sweden, Switzerland declared their intention to start similar investigations, Mykola Pashkovskyi reminded that in Ukraine draft law No. 9438, aimed at extending universal criminal jurisdiction to crimes of aggression, crimes against humanity, war crimes and genocide, was submitted to the Verkhovna Rada of Ukraine in December 2018 and that it was adopted in the first readings in June 2019, but was later cancelled.
In December 2019, a new draft law No. 2689 was presented to the Verkhovna Rada, which contained provisions on universal criminal jurisdiction, and provided that it could be implemented only in those cases when the relevant persons were on the territory of Ukraine [31]. We would like to add that the Agreement on Security Co-operation between between Ukraine and Great Britain dated January 12, 2024 does not explicitly mention universal jurisdiction, this fundamental and precedent act only indicates that the parties “will seek to hold to account those responsible for war crimes and other international crimes committed in or against Ukraine, consistent with international law, including by supporting the work of the Office of the Prosecutor General of Ukraine and the International Criminal Court to ensure allegations of war crimes are fully and fairly investigated by independent, effective and robust legal mechanisms” [32].
But it is precisely such bilateral agreements that have a unique opportunity to additionally regulate aspects of law enforcement cooperation in the format of the implementation of the principle of universal jurisdiction by European countries, in particular, regarding the occupiers’ crimes, committed in the occupied Crimea.
Thus, it is worth emphasizing the following conclusions [33]. The relevant procedural practice of European countries becomes a powerful tool both for the development of the phenomenon of universal jurisdiction at the global level and for ensuring justice in the punishment of Russian criminals, including illegal acts, committed in the occupied Crimea. The main challenges in this area are the need to increase the efficiency of interstate cooperation and to promote the inevitability of punishment in accordance with the conventional obligations of civilized countries of the world.
Additional supranational mechanisms should be implemented to eliminate the risks of duplication of cases; counter-intelligence protection of the court and trial participants against the aggressor’s encroachments; additional guarantees to victims who received procedural status; exchange of evidence base and assistance in carrying out examinations. The format of such interstate cooperation should be embodied in the system of bilateral agreements and within the framework of collective mechanisms, primarily under the auspices of the Council of Europe. The outlined aspects should definitely become the subject of further expert research.
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