Waiting for an international tribunal to prosecute Russia’s crimes is counterproductive, but there are measures that countries can do now, argues Tetyana Zhurman, a political science student at Columbia University.
Following the explosion of the Nova Kakhovka dam in Southern Ukraine on June 6 and a reluctant response from international organizations that chose to take a stance of an impartial outsider instead of condemning yet another war crime (1)(2), the question of impunity arose again, causing fears among Ukrainians about the lack of international legal procedures that could hold Russia accountable for its continuous genocidal and now ecocidal acts on the territory of Ukraine.
Mirage of Nuremberg
The hope to establish an international tribunal for Russia’s crime of aggression and bring Vladimir Putin with his associates to The Hague is ambitious; yet, considering the current international law order, nearly impossible to achieve. The International Criminal Court has no jurisdiction over crimes of aggression committed by the states that are not a party to the Rome Statute, Russia being one of such states, and any attempt to push the criminal proceeding through the referral by the UN Security Council would also be blocked by a Russian veto.
The current international law system does not have any recent precedent for prosecuting the crime of aggression, and even the most recent courts created by the UN Security Council to try atrocities in the former Yugoslavia and Rwanda in the 1990s lacked jurisdiction over the crime of aggression. Creating an international tribunal for Russia’s crimes in Ukraine would mean a new precedent and a clear signal that any state, even without being a party to the Rome Statute, can be prosecuted for their crimes when launching military attacks – a precedent that is not likely to be approved by other governments openly skeptical of the ICC, such as the United States, Israel, China, and others.
Will Russia then continue to avoid accountability for its crimes in Ukraine? The ICC arrest warrants issued for Vladimir Putin and Russian Commissioner for Children's Rights Maria Lvova-Belova in March 2023 are based on the accusations of a war crime, more specifically the unlawful deportation of children, but give no account for the crime of aggression as a whole. Neither do they open the ground for criminal proceedings against other Russian political and military leaders responsible for crimes against the civilian population of Ukraine.
Considering the very low chances of creating a Nuremberg-style tribunal to prosecute Russia under the current international law order, only debating about one instead of taking action with already available tools is, therefore, counterproductive. It only gives the perpetrators time to erase evidence against them and underlines impunity.
Universal jurisdiction to prosecute war crimes
This impunity can and must be stopped right now. This can be done by every state individually, without waiting for a unanimous international coalition to create a tribunal for Russia’s war crimes. Universal jurisdiction – a legal principle that allows national courts to assert jurisdiction over offenses regardless of the place where they were committed and the nationality of the perpetrator or the victim – should not be disregarded when it comes to prosecuting Russians for their crimes in Ukraine.
By applying universal jurisdiction, any state can prosecute Russian politicians and military personnel for international crimes in absentia in their national courts. The Lithuanian Prosecutor General’s Office, for example, opened a pre-trial investigation into the aggression, war crimes, and crimes against humanity committed by Russia in Ukraine back in March 2022 and by March 2023 recognized more than 90 people currently based in Lithuania as victims of Russia’s war crimes in Ukraine. Lithuania also took the lead in investigating the murder of filmmaker Mantas Kvedaravičius in Mariupol.
It is important to reiterate, however, that prosecuting war crimes does not require a connection with the persecuting country. In fact, countries bound by international treaties, such as the Convention Against Torture, are obliged to prosecute these crimes regardless of the citizenship of the victim or the alleged perpetrator. Just like Lithuania applied its universal jurisdiction in the past against Alexander Lukashenko’s regime in Belarus in response to torture complaints from Belarusian citizens, it can open a pre-trial investigation against any perpetrator, not even from the leadership ranks, upon complaints from people fleeing the war in Ukraine. These complaints can now be submitted at https://report.epolicija.lt/.
Such actions send a clear message against impunity, instead of delaying investigations in the hope for an international tribunal that might not even come into being.
Universal jurisdiction must become universal, prosecution must start now
While some countries, including Lithuania, have started prosecutions for war crimes under their universal jurisdiction power, many more remain hesitant or do not even consider it as an option. They claim to be anticipating some sort of international tribunal, while in reality are just not ready to take the associated political risk.
Refusing to implement universal jurisdiction, however, only helps impunity to flourish, and not just in the context of Russia’s crimes in Ukraine. First of all, many of the Russian military personnel involved in attacks on Ukrainian civilians are the same people who participated in Russia’s military operations in other countries. As one of such examples, Russian pilots captured in March 2022 after air raids on the city of Chernihiv in northern Ukraine turned out to be the same pilots who launched air strikes on the civilian population of Aleppo in Syria in 2016.
The continuous impunity allowed by national governments who put all their expectations in the hands of the ICC alone only leads to new crimes being committed around the world. Besides, by continuing to neglect universal jurisdiction, world powers show that any state, especially if it is a permanent member of the UN Security Council and not a party to the Rome Statute, may pursue its military goals as they wish without being afraid of serious accountability.
While universal jurisdiction is definitely not a panacea that can bring supreme justice and should not be the only way to prosecute Russians for their war crimes in Ukraine, it is an effective tool countries can use now, while still requesting action from the ICC prosecutors.
Prosecuting Russian war criminals in one country will not deprive them of impunity in other parts of the world; yet, actively pushing for universal jurisdiction at least in some countries may facilitate the ICC’s job of investigating and issuing more arrest warrants as well as keeping track of all the crimes committed by Russia in Ukraine, not just the massive ones reported by the international media.
This, in its turn, will serve as a message that no war crime can be left unpunished. No matter where in the world it is committed and how many “security councils” the perpetrator is chairing.
Tetyana Zhurman is a student from Ukraine pursuing her undergraduate degree in Political Science and Middle Eastern, South Asian & African Studies at Columbia University, with a special interest in history and international law. She is currently interning at ReLex Law Firm in Vilnius.
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