Universal Jurisdiction: a Key Tool for Accountability
Germany is at the forefront of prosecuting war crimes under the principle; the hope is that more countries will follow.
Universal jurisdiction as a tool to prosecute war crimes in Ukraine is increasingly gaining traction. It enables national systems to investigate and prosecute individuals for the crimes of aggression, genocide, war crimes and crimes against humanity regardless of their nationality or where the offences were committed. In October 2023, in the first of such cases, the Clooney Foundation for Justice (CFJ) presented three cases to German federal prosecutors, representing 16 survivors and the victims’ families: a missile attack near Odesa that killed 22 people; the execution of four men in the eastern Kharkiv region and a series of killings, torture and acts of sexual violence near Kyiv.
Anya Neistat is legal director of the Docket, a CFJ initiative to bring perpetrators to justice in either international courts or national jurisdictions. She told IWPR Eurasia editor Monica Ellena that universal jurisdiction should not be seen as “particularly scary or politically costly”.
IWPR: The German cases are a judicial milestone - how did you achieve this?
Anya Neistat: In principle, under universal jurisdiction any country should be able to open investigations on the most serious war crimes and bring perpetrators to justice. In reality only a few countries apply it in full. Many have limitations; for example, for France and The Netherlands victims or perpetrators have to be French or Dutch nationals or perpetrators have to be in their national territory. We chose Germany because it is possibly the most experienced in terms of universal jurisdiction, it has a track record of processing cases, for example related to Syria.
What was the process of gathering evidence?
These are just three of the cases we are investigating in Ukraine. Importantly, on one of them we worked closely with Truth Hounds, one of our partners in Ukraine: their contribution was substantial so it made sense to file the case together. All cases are triggered by individual crimes committed against specific people. We start with these individual cases and expand the research to demonstrate that these are part of broader patterns of violations. This is crucial to show that the crimes were systematic, thus amounting to crimes against humanity. And that's what allows us to build cases against commanders.
Was it a specific choice to build cases against mid-level and senior military officers?
A feature of our work in Ukraine is that we seek to fill the gap between the International Criminal Court (ICC) and Ukraine’s national courts. The ICC, whose capacity is limited, seeks accountability at the highest level [in March 2023 it issued an arrest warrant against Russian President Vladimir Putin]. On the other hand, Ukrainian prosecutors are dealing with over 110,000 cases but mostly focus on immediate perpetrators, usually low-ranking soldiers. Ukraine’s criminal law does not have the concept of command responsibility as such, so prosecutors can go to commanders only in very specific circumstances, for example when they have strong evidence of direct orders or can prosecute them as accomplices. Yet it is not as pure as command responsibility as per international law or many countries’ national laws.
Ultimately it is a question of complementarity. The ICC doesn’t have a strong success record but remains very important as the only body that can overcome the diplomatic immunity of top officials. At the same time, we know that Ukraine would have few perpetrators while hundreds of others would walk free unless we file cases elsewhere under universal jurisdiction.
How do you assess the capacity of Ukraine's justice system to process war crime cases?
Ukraine is dealing with a mammoth number of cases, its capacity is clearly overstretched, also considering their limited experience in dealing with war crimes. Ukrainian prosecutors, police and security services are extremely committed and well qualified for the most part. Despite the deficiencies, it's a country with a strong legal system with professionals in forensics, analysis and legal reasoning. The first months were overwhelming and it was extremely difficult for prosecutors and police to coordinate with the military while also working on a criminal investigation. Slowly but surely they are working with patterns of violations as opposed to just individual incidents. One obstacle is the Ukrainian procedure under which any crime, regardless of its gravity, must be registered and go through some process before it's closed. It means that officials would have on their desk a file about a stolen bicycle next to one of a double rape and murder.
How did you include survivors and witnesses in the process?
Survivors are at the centre of our work. It is incredible to see how people in these terrifying circumstances think about abstract notions such as justice.
We represent them but also they're all represented by lawyers in the countries where the cases are filed. In the three German cases, they all have also a German lawyer. This enables them to be properly represented in the national process and have certain rights as parties to the case. However, while legal representation is our main job, depending on the need we provide other support, be it medical, psychological or administrative, for example to get travel documents.
We really try to stay with them throughout the process. The investigation took about a year: we called them regularly, to say that we hadn't forgotten them, that we were working on the case, but it was not ready yet. They were all so patient and supportive. Their trust in us and in the process is what drives us. It is easy to become impersonal when you drown in legal documents and open source, staring at satellite imagery maps and trying to spot details. It's always the survivors, the witnesses who bring us back to the human side of what we do.
The cases are now with Germany’s federal prosecutors in Karlsruhe, where the war crimes court sits. What's happening now?
Prosecutors are processing our documentation, comprising thousands of pages, and we stand ready to provide any additional information. Should they agree with our analysis, they will open a formal investigation and issue international warrants, including to Interpol, to allow the perpetrators’ arrest in case they leave Russia.
Once the formal investigation is open, we’ll facilitate access to survivors and witnesses for official statements. Some are actually in Germany and this contributed to choosing to submit the cases there.
Can Germany lead the way on bringing justice for war crimes, having also in mind cases in the context of the Syrian war?
German prosecutors had significant successes in recent years, also in cases related to Islamic State commanders. They are closely in touch with prosecution offices in other countries. It is a long-term strategy, but if our cases progress they send a signal to other countries that it's not particularly scary or politically costly to change the laws [to bring them in line with Germany’s] and allow a broad application of universal jurisdiction. Outside Europe, Argentina has also been pioneering the application of absolute universal jurisdiction: prosecutors recently opened a case related to Myanmar and we filed one related to Venezuela.
We really want to file in countries that actually have not had universal jurisdiction cases before, for example, Poland or Slovakia or Moldova, which have good laws but have no experience. With millions of Ukrainians now living in Poland it would make a lot of sense for Polish prosecutors to look into what they can do to establish accountability.
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