Poland Explores Implementing Universal Jurisdiction

Victoria Matola

Ukrainian journalist reporting on justice processes

Tuesday, 25 February, 2025

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When Russian tanks began rolling into the streets of her hometown in Ukraine’s Kherson region, T – a woman who cannot be identified for security reasons – began documenting their progress, transmitting photos of the occupation to the Ukrainian authorities.  Shortly after, representatives of Russia’s Federal Security Service (FSB) started harassing her family.

Her husband was detained for questioning; on one occasion, he was held for three days beaten, and his documents confiscated. T and her underage daughter were also arrested and held with other civilians. The daughter faced psychological pressure and T was tortured. On their release, the family immediately fled to occupied Crimea and from there to Poland, where they arrived in early December 2022. 

T's case is one of many that the Helsinki Foundation for Human Rights in Warsaw has documented and submitted to the Polish prosecutor. 

Poland, which has taken in nearly a million refugees since Russia’s began its full-scale invasion of neighbouring Ukraine, is considering implementing universal jurisdiction. This principle of international law allows for the prosecution of foreign nationals for international crimes, such as war crimes, crimes against humanity, genocide or the crime of aggression. All 124 countries that have signed and ratified the Rome Statute, including Poland, are obligated to prosecute those responsible for such crimes.

“As neighbours to Ukraine and Belarus, we see many people fleeing to Poland seeking protection after experiencing persecution and violence, such as torture,” explained Elena Wasylew of the Helsinki Foundation for Human Rights. “Poland’s own history of suffering during World War II reinforces our commitment to an international legal system established to prevent such atrocities from occurring again.”

Wasylew believes the implementation of universal jurisdiction is also crucial because victims have limited opportunities for seeking justice. The ICC is focused on prosecuting top military commanders and senior leaders, and Ukraine’s law enforcement and judicial systems are overwhelmed. 

According to the Ukrainian prosecutor general’s office, over 140,000 investigations into war crimes have been registered.

“Implementing universal jurisdiction is one of the steps that can and should help Ukrainian citizens access justice for war crimes committed against them, particularly those now living outside Ukraine,” said Veronika Plotnikova, head of Ukraine’s Coordination Centre for Support of Victims and Witnesses at the prosecutor general’s office. “Poland has sheltered and supported the largest number of Ukrainians abroad, and the functioning of such a system within its borders can become beneficial in many ways.” 

According to the Justice Beyond Borders project of the Clooney Foundation for Justice, 28 UN member states possess “absolute” universal jurisdiction. This empowers them to prosecute individuals suspected of serious international crimes regardless of the suspect or victim’s nationality, where the crime was committed or the suspect’s location. This form of universal jurisdiction reflects the original intent of the principle that certain crimes are considered to be committed against the international community as a whole.

A number of universal jurisdiction lawsuits are currently under way, including one case in Argentina filed by The Reckoning Project and three in Germany instigated by the Clooney Foundation. 

POLISH JURISPRUDENCE

Poland faces some obstacles to implementing universal jurisdiction on its territory.

Following the full-scale invasion, Poland established a specialised team of three prosecutors within the organised crime division to investigate war crimes in Ukraine.  However, their caseload also includes other criminal cases unrelated to Ukraine, requiring their participation in judicial proceedings, and their authority to investigate is limited to collecting evidence and sharing it with the Ukrainian prosecutor, the ICC or other countries exercising universal jurisdiction. This is because Poland has not developed a policy enabling the justice system to prosecute these cases before domestic courts. 

One issue is that Polish law does not allow for investigations - let alone trials - conducted in absentia. 

According to Poland's criminal procedure code, a suspect must be present when charges are formally presented and cannot waive this right. Moreover, trials for the most serious offences must, at a minimum, commence with the defendant present.

Hanna Kuczyńska, a professor at the Polish Academy of Sciences, posits that, hypothetically, legal proceedings for international crimes can be conducted without the physical presence of the accused, under particular circumstances. 

This would necessitate the proper notification of the accused regarding the hearing date and the legal consequences of non-appearance; an unequivocal waiver of the right to attend the proceedings; the provision of a defence lawyer and the availability of mechanisms for procedural review, such as appeals and retrials enshrined in Polish law.

She further noted that in Poland, several investigations were currently underway based on the principle of universal jurisdiction, for instance in the case of Belarussian citizens.

“The district court in Warsaw in a case involving citizens of Belarus as victims, instructed the Polish prosecutor's office to prosecute and punish Belarusian police and military personnel, who were also the citizens of Belarus,” Kuczyńska said. “These persons were torturing, illegally detaining in degrading conditions and even shooting at Belarusian citizens during protests against the ruling regime.

“The court emphasised that universal jurisdiction, as defined in Article 113 of the Polish criminal code, covering crimes under international treaties, applies. The court stressed that the application of universal jurisdiction in this context is not contingent on the perpetrator's residency within the Republic of Poland.” 

Polish Justice Minister Adam Bodnar, who oversees the public prosecutor's office, has long supported joint investigation and evidence gathering. Bodnar asked the experts of the commission for the codification of criminal law to develop Poland’s policy on universal jurisdiction and propose relevant amendments to the criminal code and criminal procedure code.

“Building mutual trust between Member States begins with ensuring the proper functioning of one’s own system,” he told an informal meeting of EU justice ministers in Warsaw on January 31. “The rule of law and respect for fundamental rights are essential conditions for effective cooperation between countries and addressing shared challenges and threats.” 

Kuczyńska noted that the proposed amendments will stipulate that prosecutions under universal jurisdiction can only proceed with the consent of the prosecutor general, and said she expected the proposals to soon be made public.