"Standing up for Justice: Universal Jurisdiction must be part of the Accountability Puzzle in Ukraine"

This op-ed written by Mark Kersten is part of MIGS' Global Parliamentary Alliance Against Atrocity Crimes (GPAAAC) initiative supported by the Konrad Adenauer Stiftung Canada.

The response to the war in Ukraine and the atrocities committed by Russian authorities has been remarkable. During an ongoing pandemic that seized the world’s attention and drained national budgets, dozens of states, international institutions, and civil society organizations answered the call for accountability. Yet one avenue to justice has received far less attention: universal jurisdiction, an important piece of the accountability puzzle that could help not only deliver meaningful justice in the country but re-invigorate global justice efforts more broadly.

Answering the call: Ukraine’s Accountability Landscape

Just days after President Vladimir Putin ordered the invasion of Ukraine, forty states referred the situation in Ukraine to the International Criminal Court (ICC). Many governments subsequently made significant voluntary contributions to the ICC, sending both funding and investigators to help its operations. Numerous states have thrown their support behind a ‘special tribunal’ or hybrid court that would investigate the Russian and Belarussian figures responsible for Moscow’s illegal invasion.

National officers are also investigating the atrocities committed against the Ukrainian people and, at last count, about ten cases have proceeded through Ukraine’s courts. With estimates suggesting that 34,000 war crimes have been documented, more trials are expected soon.

Beyond international courts and Ukraine’s court system, at least twelve countries have opened investigations into atrocities committed during the war: Germany, Spain, Sweden, France, Lithuania, Canada, Poland, Estonia, Latvia, Slovakia, the United States, and the United Kingdom.

The question is: will these – and other states – exercise their universal jurisdiction power?

Universal Jurisdiction as part of the Accountability Puzzle

The doctrine of universal jurisdiction permits foreign states to prosecute alleged perpetrators of international crimes even if the crimes were committed abroad and even if the victims do not reside in the country in question. States differ on whether they need the accused to be present in the state or not.

While universal jurisdiction is not the solution to addressing the panoply of atrocities committed in Ukraine, it should be part of it.

Over the past few years, universal jurisdiction experienced something of a revival, especially in Europe, where several states – including France, Sweden, The Netherlands, and Germany – prosecuted alleged perpetrators of atrocities committed in the Syrian civil war. Unlike Ukraine, the investigation and prosecution of international crimes in Syria has been stymied by geopolitics and a lack of political will. Universal jurisdiction is therefore one of the only realistic avenues for Syria’s victims and survivors of international crimes to ever see justice.

The situation in Ukraine, as suggested above, is different: there is no shortage of actors, money, or interest in seeing Russian war criminals prosecuted. In that context, universal jurisdiction isn’t the only avenue but should be invoked help fill gaps, spread the responsibility for accountability more evenly among states, and set new precedents for inter-state cooperation in international criminal law.

Some of the national investigations opened by Ukraine’s allies are straight-forward; they are endeavouring to investigate crimes and hold perpetrators to account. Others, such as those in Canada and Germany, are “structural investigations”, meaning that they are intended to investigate the context in which atrocities are occurring, but not necessarily identify specific war criminals.

States are able to conduct such investigations in part because of the high number of Ukrainians fleeing the country; many are interviewed, and their testimony of atrocity crimes collected when they travel abroad.

But it is not only refugees and migrants that will make it to these states. In the coming months and years, atrocity perpetrators will also flee Ukraine and Russia, seeking safe harbour and perhaps even traveling under the guise of being refugees or asylum seekers. We know this will happen because it always happens. In 2016, for example, it was estimated that some 200 perpetrators of international crimes – war crimes, crimes against humanity, and genocide – were residing in Canada. In some instances, it was their victims that alerted authorities to their presence.

Will states have the moral courage to use universal jurisdiction?

So, what happens when these alleged perpetrators arrive and are identified?

Theoretically, states with universal jurisdiction as part of their legal regimes can investigate and prosecute those who come onto their territory. But many choose not to.

For a time, universal jurisdiction was popular; it offered a new means by which to tackle atrocity crimes without recourse to international courts. Some trials even went through Western judicial systems, including in Canada where two Rwanda citizens were prosecuted for their role in the 1994 Rwandan Genocide.

But universal jurisdiction trials were seen by many as cumbersome and expensive. The need to interview witnesses and access evidence drove up the cost of trials into the millions of dollars. States like Canada therefore effectively foreswore prosecuting atrocity crimes in Canada, preferring to blend immigration law, public safety, and criminal law in an attempt to deport alleged perpetrators without any guarantee that they would be prosecuted for their alleged crimes once sent packing.

What that meant, in many instances, was that perpetrators lived openly despite public and police knowledge of their role in war crimes and crimes against humanity. In other cases, that has meant alleged perpetrators being deported to states where, rather than facing any adverse consequences, let alone trial, they gained political power.

For years, global accountability advocates have demanded that states re-invent and re-imagine the role of universal jurisdiction in addressing the gaps between the demand for accountability and its supply. Again, in the context of Syria, this has happened – at least to some extent. But more can – and should – be done.

Universal Jurisdiction in Ukraine and Beyond

The ongoing war and humanitarian tragedy in Ukraine has offered some silver-linings to the project of international justice: state cooperation has bolstered the ICC and accountability efforts more generally. But states have to do more with the resources they have at their disposal. That means committing to using universal jurisdiction now. Senior government authorities in states allied with Ukraine should make it abundantly and crystal clear that should a Russian citizen suspected of atrocities in Ukraine make it into their states, they will prosecute them in their courts.

Such an approach would not be as expensive as prior universal jurisdiction cases, given the number of states with ongoing investigations into Ukraine; those states can pool resources, intelligence, and evidence to make the exercise of universal jurisdiction more economical. As Anya Neistat writes, any obstacles to exercising universal in Ukraine “are easy to overcome… There is no shortage of evidence, with many national and international organisations carrying out documentation, supported by Ukrainian citizens themselves, who actively share information through social media and other channels.”

In the field of international criminal law and justice, we too rarely speak to the issue of burden sharing between states and institutions committed to addressing international crimes. We hop from one crisis to another, rarely focusing on what could make the pursuit of international justice more coherent and what could help ‘flatten’ the inordinately uneven access to justice and accountability for mass atrocities.

The scale and nature of crimes committed in Ukraine as well as in far too many other contexts around the world demands an all-hands-on-deck approach. The ICC won’t be enough. National court systems won’t be enough. Special courts capable of investigating and prosecuting the crime of aggression won’t be enough. Nor would the use of universal jurisdiction be sufficient. But together, these approaches and mechanisms offer a more coherent and comprehensive vision of international criminal law as a system capable of addressing international crimes.

As the President of the Association of Lawyers of Ukraine Anna Ogrenchuk writes, universal jurisdiction is “not only a path to justice, but also a certain manifestation of the solidarity” with victims and survivors of mass atrocities.

Mark Kersten is Assistant Professor of Criminology & Criminal Justice at University of the Fraser Valley, and Senior Consultant at the Wayamo Foundation. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).