Criminal litigation against russia for war crimes and crimes against humanity: efficient mechanism to bring the perpetrator to justice

According to data from the Prosecutor General's Office of Ukraine (PGO), as of June 2023, there were 92 thousand registered war crimes committed by the Russian Federation in Ukraine during the full-scale invasion. It is the duty of states as subjects of international law, not their right, to prosecute and bring the Russian Federation - including its political and military command, military personnel, and members of armed forces or other groups under its control - to justice for the international crimes committed in Ukraine. Therefore, the work within the framework of the ICC, national investigation systems, and the formation of a special tribunal is a matter of collective responsibility, not just Ukraine's.

This legal obligation is based on existing norms and principles of international humanitarian law, human rights law, and international criminal law. It includes the principle of non-impunity for international crimes and the obligation to exercise criminal jurisdiction over those responsible for them. Therefore, it is expected that states will take all possible measures to fulfill this international obligation both during armed conflict and in peacetime. 

The most effective and efficient tool to combat war crimes and crimes against humanity committed by the Russian Federation in Ukraine should be the criminal legislation of countries and international criminal law.

In this context, it is crucial to synchronize criminal jurisdictions and mechanisms into a single, efficient functional model. This will ensure cooperation and coordination between relevant national and foreign authorities and international judicial institutions at the stages of evidence collection, investigation, and prosecution. At the same time, it will make it impossible for a person to be prosecuted in several jurisdictions.

Moreover, Ukrainian experience can be used by other states that may have also suffered massive war crimes and crimes against humanity. Bringing to justice those responsible for these grave crimes in Ukraine is primarily the responsibility of the national criminal jurisdiction, including the law enforcement and judicial systems of Ukraine, and rightfully so. At the same time, the involvement of bodies of the international justice system and relevant bodies and criminal law enforcement agencies of foreign countries is necessary due to the seriousness and shocking scale of the crimes committed by the Russian Federation, the jurisdictional immunities of the top leadership of the Russian Federation, and the specifics of the criminal legislation of Ukraine.

At the national criminal jurisdiction level, Ukraine has developed and iterates on a specialized system for prosecuting perpetrators of Russian war crimes on its territory. Over the past year, the law enforcement system (SBU, the PGO and prosecutor's offices, the National Police, and the SBI) has created specialized units, trained and educated relevant specialists in cooperation with international partners, and on top of that joint investigative teams of prosecutors from different countries collect evidence and conduct pre-trial investigations of Russian crimes, including through in absentia investigations. At the level of criminal jurisdiction of other states, national prosecution mechanisms can be effectively used by states that have recognized universal jurisdiction over international crimes.

In international law "universal jurisdiction" means that a country's courts can prosecute people for serious crimes against international law, like genocide, war crimes, crimes against humanity or torture, even if the crimes were committed in another country, regardless by whom or against whom. This is because such crimes harm the international community, and it is the responsibility of nations to prevent and punish them. Therefore, states that have recognized this principle have the means to prosecute those responsible for war crimes and crimes against humanity committed in Ukraine within their justice systems.

At least 21 states are investigating war crimes and crimes against humanity committed in Ukraine during the armed aggression of the Russian Federation. However, the more states of the world that join this process of bringing Russia to justice for crimes committed in Ukraine based on universal criminal jurisdiction, the higher the likelihood of inevitable criminal liability for Russian war criminals, no matter how much time has passed and no matter where they are. According to rough estimates, about 150 states have recognized the principle of universal criminal responsibility, so a much larger number of countries than 21 can and should launch investigations.

From the international legal point of view, the issue of responsibility of the Russian Federation for international crimes committed in Ukraine is also the level and jurisdiction of the institutions of the international justice system. In particular, the International Criminal Court (ICC) is authorized to investigate and prosecute the military and political leadership of the Russian Federation, who gave criminal orders to commit war crimes and crimes against humanity in Ukrainian cities and villages, regardless of their official position. Middle managers who organized the commission of these crimes should also be tried.

The use of ICC mechanisms makes it possible to circumvent the issue of immunities of officials, which is practically impossible at the level of national justice systems. Therefore, it is an important and necessary mechanism within the emerging model. Justice for Ukraine and its population, who have become innocent victims of these unprecedented international crimes committed by the Russian Federation, must be achieved.

An effective model is necessary to use all available mechanisms to bring Russia and all its war criminals to national and international criminal responsibility. Active justice lobbyists and examples for imitation today are the Netherlands, Latvia, Lithuania, Poland, Estonia, USA, UK. And this list should only expand.

This is a guarantee of the prevalence of the rule of law and an indicator of the fulfillment of states' international obligations: to bring to justice those responsible for the most serious international crimes of the twenty-first century. At the same time, important legal instruments that can be supported by states immediately are: the newly created Core International Crimes Evidence Database (CICED), which will facilitate international accounting of Russian crimes in Ukraine and a draft resolution from Ukraine to protect international law, which will soon be represented by the UN General Assembly. If we want to live in a just and peaceful environment, we are obliged to win the war for justice. 

Albina Basysta, International lawyer, non-resident fellow of the Center for Defence Strategies