Universal Criminal Jurisdiction in Ukraine

Four countries – Estonia, Germany, Latvia and Lithuania – opened universal jurisdiction war crimes investigations following the large-scale Russian invasion of Ukraine in 2022. Norway, Poland, Slovakia, Spain, Sweden and Switzerland have declared their intention to open similar investigations.

Mykola Pashkovsky is a member of the Ukrainian Association of International Law and an associate professor at the National Academy of Legal Sciences of the Ukrainian Institute for the Study of Crime. He explained to IWPR issues relating to universal criminal jurisdiction in Ukraine.

IWPR: What is the principle of universal criminal jurisdiction and where does it come from?

Mykola Pashkovsky: Criminal law developed rapidly in the mid-1800s and considered that the fight against crime was not only the task of a state but that of the entire international community. Indeed, a crime committed in one state potentially threatens law and order in any other state. At the time, it was piracy. Regardless of their nationality, where they were held or who owned the ship, any state could start a lawsuit against them. Later, the principle of universal criminal jurisdiction began to be applied to slave trade cases.

The principle of universal criminal jurisdiction was formalized after World War II for crimes of aggression, genocide, war crimes and crimes against humanity. It was recognized in the Geneva Conventions of 1949, which define the rules of war. The conventions give the right to any state to hold any person, regardless of their nationality or place of crime, criminally responsible for committing crimes under international law.

Is this legal principle included in the Criminal Code of Ukraine?

Today, 147 countries have universal jurisdiction in their criminal codes, and Ukraine is one of them. This, in particular, is confirmed by Amnesty International research. Part 1 of Article 8 of the Criminal Code of Ukraine states that “foreigners or stateless persons who do not permanently reside in Ukraine, who have committed criminal offenses outside its borders, are subject to liability in Ukraine under this Code in cases provided for by international treaties”. Still, the problem lies in the interpretation of the phrase “in cases provided for by international treaties” – which treaties, what exactly are the obligations of the State ?

The Attorney General’s office already lists about 41,000 reported war crimes in Ukraine. However, not all of them can be prosecuted by Ukraine, as not all are listed in the Geneva Conventions. Therefore, it is problematic for Ukraine to prosecute all war crimes based on the existing standard of universal criminal jurisdiction in Ukraine’s criminal code. These include, for example, the use of people as human shields, sexual violence as an independent crime, crimes against cultural objects, crimes against humanitarian missions such as the shelling of evacuation buses. They are not yet criminalized in Ukraine.

There are four Geneva Conventions that protect victims of war. Each of these conventions provides for the duty of participating states to prosecute those guilty of gross violations of these conventions, regardless of where the crimes were committed. For now, Ukraine can prosecute war crimes such as willful killing, torture or inhuman treatment, including biological experiments, intentionally causing great suffering or serious injury to body or health, illegal deportation, hostage-taking, etc.

What has Ukraine done to improve the implementation of universal criminal jurisdiction in its code?

A bill submitted under the presidency of Petro Poroshenko aimed at extending universal criminal jurisdiction to the crime of aggression, crimes against humanity, war crimes and genocide.

The relevant bill 9438 was submitted to the Ukrainian parliament in December 2018 and was adopted in the first reading in June 2019. Then in July 2019 parliamentary elections were held and a new Verkhovna Rada [Ukrainian parliament] was elected. As a result, all bills tabled at the previous assembly were cancelled.

In December 2019, a new bill, 2689, was introduced which included the universal criminal jurisdiction provision. There was an interesting point: universal criminal jurisdiction for war crimes could only be implemented in cases where the persons concerned were on the territory of Ukraine. This means that Ukraine could only initiate criminal proceedings against foreigners or stateless persons on Ukrainian territory. On the one hand, it makes the principle more efficient; however, some time elapses between the start of the investigation and the moment an individual is declared a suspect of having committed a crime. This means that within this time window the suspect can leave the territory of Ukraine

The Verkhovna Rada approved it in May 2020, but the bill is still pending presidential approval.

Why is it so long?

It is feared that when criminal legislation changes, if transitional provisions are prescribed without success, some of the crimes committed by the Russian military will be decriminalized. There is a danger that some people who have committed these war crimes will go unpunished. It takes a lot of work to prevent that from happening.

What do international partners think of this delay?

It’s a matter of reputation. Ukraine is trying to get support in the investigations from European states. And they can say, why don’t you develop the institution of universal criminal jurisdiction but try to get help from us? Germany, Spain, Lithuania and Sweden have opened proceedings concerning the possible commission of war crimes on the territory of Ukraine, on the basis of universal criminal jurisdiction. They expect the same from Ukraine.

The Ukrainian legal community is trying to exert public pressure on the Prosecutor General’s Office, the President’s Office and the government to move forward. There is an additional problem because the deadline for the president’s approval has expired, according to Ukrainian law. The Rada will have to start the approval process again.

Is there an example of how Ukraine can now use universal criminal jurisdiction?

In March this year, a Russian air force pilot shot down by Ukrainian armed forces was arrested. He was found to have committed war crimes against civilians in Syria while serving in the Russian military. He can then be prosecuted not only for war crimes committed in Ukraine but also for war crimes committed on the territory of Syria. To do this, Ukraine must make the standard of universal criminal jurisdiction more effective.

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