Investigations by states under the Principle of Universal Jurisdiction
The implementation of the principle of universal jurisdiction (UJ) has become one the forms of international support for justice related processes in Ukraine. In total, according to official reports, 26 countries have launched investigations into the alleged international crimes as a result of the Russia's full-scale invasion of Ukraine[503].
The principle of universal jurisdiction enables other states to investigate grave international crimes that have been committed beyond their borders. Although it can be a powerful tool for ensuring justice and accountability for the most serious crimes, investigations and prosecution under this principle come with its own set of challenges, rooted not only in the complexity of prosecuting grave crimes, but also country specific legislation and prosecutorial strategies, priorities and capacities of each national justice system. From Ukraine’s perspective the following challenges have already become apparent:
States’ Experience in Prosecuting Grave Crimes
Many states that have opened investigations have not had much experience in investigating and prosecuting grave international crimes. On the one hand, there are states like France, Germany, Sweden, and the Netherlands, that have a developed state practice, methodology, strategies and case law related to war crimes charges, crimes against humanity, and even genocide. These states have dedicated units within their law enforcement agencies that have long been working with cases similar to those being committed in Ukraine and have opened either structural or individual investigations (France, Germany, Lithuania) involving their own nationals as victims.
On the other hand, countries such as Poland, Lithuania, Latvia, and Slovakia, despite having a universal jurisdiction provision in their national legislation, lack a solid practical experience in using it. They mostly focus on collecting information as part of their structural investigations from Ukrainian refugees who temporarily settled in those states. They also have access to Europol, Eurojust where they can all exchange information, use databases and coordinate with one another.
Constraints of the Principle of Universal Jurisdiction Application
Each country has its own set of rules and limitations pertaining to the prosecution of grave international crimes. For instance, some states like France have only opened incidents specific investigations involving French nationals in order to prosecute under the principle France requires for war crimes, crimes against humanity and genocide residence ties with the alleged perpetrator. Same is true for Austria[504]. Switzerland subscribes to the “conditional” or “limited” conception of universal jurisdiction, the exercise of which is subject to two conditions: (a) The presumed offender is in Swiss territory; (b) The presumed offender has not been extradited to another competent jurisdiction[505].
The US now has similar legislation to that of Germany and Sweden following the adoption of the Justice for Victims of War Crimes Act (JVWC) in 2023[506]. The JVWC changed the scope and reach of the United States' ability to prosecute war criminals. There no longer needs to be the US nationality of a victim or a perpetrator link and anybody who commits a war crime anywhere in the world can be prosecuted by the United States if they are present there. The new law also removed the statute of limitations, although without the retroactive effect. There is no possibility of prosecution for crimes against humanity or the crime of aggression as it is only limited to war crimes[507].
Furthermore, the majority of the European, with the exception of France for instance, and the US national criminal law systems do not permit in absentia trials as their greatest risk is failure to ensure the right of an accused to fair trial, hence the requirement of the accused’s presence or nationality or residence link in some jurisdictions to the prosecuting state.
Some states appear to have more progressive UJ laws than others, in principle, allowing the victims to have a direct access to a pre-trial judge through civil party application or requiring only the presence and availability of victims and witnesses to enable the authorities to take direct testimonies. However, the reality differs, in so far as lengths to which states are willing to go to physically secure individual perpetrators to ensure they stand trial there. On the one hand, naturally, it is an issue of available resources but on the other, it is their willingness and intention to dedicate those resources, not only of their units, but of the official and covert police and intelligence networks.
Issue of Resources
Ultimately intention and resources are the driving and ultimate factor when states set the rules and make a call as to whether open investigations under the UJ principle or not. One example, Germany having tested different strategies in various other situations, for instance, when prosecuting members of the ISIS for the crimes against yazidis decided, that unless there was a very good prospect of the execution of an arrest warrant, it will not be opening individual investigations even if the victims reside in Germany and available for investigative actions[508]. Typically units are small and have a very limited capacity, therefore investing in individual investigations as opposed to structural ones that are unlikely to result in successful prosecutions would not be a step states would be willing to take often.
Even structural investigations require substantial resources (time, funding, human resources). For instance, by September 2022, the Minister of Justice of Poland reported that they had already interviewed 1,200 refugees in the country and while the war rages on in Ukraine, the number of victims of and witnesses to the atrocity crimes who continue to flee grows[509]. Therefore, states which collect information from the victims, should also conduct some outreach activities to manage the victims expectations in relation to the prospects of opening investigations based on their reporting of crimes.
Principle of Complementarity and Principle of Universal Jurisdiction
One argument in favour of states applying a universal jurisdiction principle to be more decisive and proactive is that provided they are states parties to the ICC they are expected to act in the spirit of the Rome Statute by adhering to the principle of complementarity. In such a case effective coordination becomes key to managing all the ongoing investigations by different states also vis-a-vis the ICC investigation of the Ukraine situation. There is an obligation in the CCU to investigate every crime[510]. Ukraine opens investigations into every single incident regardless of whether it is being investigated by other states or other institutions. National investigations under the universal jurisdiction principle, therefore should complement both Ukraine’s and the ICC’s efforts in those instances, where both lack capacity. Insufficiencies of the Ukrainian legislative framework means that states’ investigations operate on different levels of quality and capacity altogether and therefore, coordination and cooperation of all states and institutions involved becomes even a greater challenge. Moreover, should investigations under the principle of universal jurisdiction result in successful arrest warrants and Ukraine will decide to request an extradition, there will also be a dilemma of Ukraine’s capacity to ensure impartial, objective and fair trials.
