How States Can Prosecute Russia’s Aggression With or Without ‘Universal Jurisdiction’
(Ця стаття також доступна українською мовою тут.)
At the time of the creativity of the moment on international and regional courts that could be created to prosecute crimes of aggression in Ukraine, commentators’ assessments of state-level options have been significantly less robust. During the last accountsinvestigations by national prosecutors outside Ukraine, such as those currently underway in Poland and Lithuaniawere designed as necessarily based on “universal jurisdiction”.
Certainly, some state laws permit assault prosecutions based on universal jurisdiction. But this principle hardly exhausts the legal basis for assault trials in countries other than Ukraine. Such suits could also quite easily be based on the delegation its own bases of criminal jurisdiction through a bilateral or multilateral agreement.
It is widely accepted that states can delegate the criminal jurisdiction they have, either to other states or to an international tribunal (p. 32). In fact, states are party to “many treaties” by which they “delegate their criminal jurisdiction to other states”, Dapo Akande said. Noted.
Just as Ukraine could delegate its territorial jurisdiction to a specially designed court of aggression, as some have suggested, nothing prevents it from delegating that same jurisdiction to one or more states willing to prosecute the crime of aggression on its behalf or in cooperation with the Ukrainian authorities . Ukraine may also delegate the passive personality jurisdiction that allows it to punish crimes committed by foreign nationals against Ukrainian citizens. Once controversial, the Passive Personality Competency “encounters relatively little opposition today” (para. 47), at least with respect to crimes of international concern.
Finally, Ukraine can delegate the competence it has under the protective principle, which is naturally appropriate for crimes committed in Russia which involve the planning and launching of a war against Ukraine. This principle allows States to prosecute “crimes committed by foreigners outside their territory which threaten their vital interests”; so, like Matthew Garrod writing“the raison d’etre of the principle is[…]based on the need to protect the vital interests of the state, including sovereignty, security, political independence and governmental functions” (p. 766).
It is necessary to ask, however, why it is important for foreign states considering cases of aggression to rely on Ukraine’s territorial, passive and/or delegated protective jurisdiction rather than (only) universal jurisdiction. .
Although I think this concern is unwarranted, a doubt whether the crime of aggression falls under universal jurisdiction. In the face of any uncertainty, Ukraine’s delegation of its territorial, passive personality or well-established protective jurisdiction could neutralize any hesitation that other states may have in pursuing cases of aggression arising from the invasion of the Ukraine by Russia.
Of course, other legal issues, including the immunities of potential suspects, could arise in national prosecutions. Indeed, many commentators and political actors now support proposals for the creation of an international tribunal competent to hear part of the aggression (although not only) because such a tribunal could “pierce the veil of immunity of the Head of State”.
Even then, national prosecutors well placed to collect evidence in real time must be confident that they have a solid jurisdictional basis to open an investigation. Poland’s efforts, to take one example, show why this is important. As of March 16, the Polish prosecutor’s office had already heard 300 witnesses, some of whom were able to provide direct evidence of Russian crimes in Ukraine. Obtaining this evidence quickly is vital for future cases, and not just in Polish courts.
The Prosecutor of the International Criminal Court (ICC), who moved quickly to investigate the atrocities, but can not investigating Russian aggression, coordinates with Polish prosecutors to ensure access to evidence for its own prosecution. If an international or regional organization assault tribunal is created to complement the work of the ICC, its prosecutor would also benefit from the evidence collected by state prosecutors before he deteriorates or disappears.
In what could be a harbinger of wider cooperation and formal agreements between the Zelenskyy administration and other states, Lithuania has already joined forces with Poland and Ukraine to establish a Joint Investigation Teamas the Public Prosecutor of Poland described it:
A representative of the Polish prosecutor’s office at Eurojust is actively involved in the work to establish a joint international investigation team (JIT) on the war of aggression and crimes committed by the armed forces of the Russian Federation on the territory of the ‘Ukraine. The first steps in this direction were taken on March 2, 2022, when an extraordinary meeting of representatives of all countries participating in Eurojust was held in the form of a videoconference, with the participation of the Minister of Justice – Prosecutor General Zbigniew Ziobro , the Prosecutor General of Ukraine – Ms. Iryna Wenediktova and the Prosecutor General of Lithuania – Ms. Nidy Grunskiene. During the meeting, on the initiative of Ukraine, Poland and Lithuania, it was decided to create a joint international investigation team in the framework of the investigations opened in these three countries.
It is not a form of universal jurisdiction in which a state asserts its power to prosecute rather than with the consent of a territorial state. Nor is it a case of “common universal jurisdiction” when Ukraine itself is part of the deal. Depending on Ukraine’s agreements with its partners, however, this could form the core of a criminal authority best described as “delegated jurisdiction”.
None of this means that national prosecutions should be brought instead of trials in international or regional courts, far from it. Rather, the fact is that state prosecutors can make a distinct and important contribution in holding Russia accountable.”brutal war against Ukraine.” To this end, they must understand the full extent of their authority to do so.