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Ukraine accused Russia of torture. Here’s how to prosecute those crimes.

Ukraine’s allies can use their own courts to investigate war crimes

- November 22, 2022

Editors’ note: In this archival piece, contributor Kelebogile Zvobgo and colleagues explain what international courts can and cannot do to address allegations of torture. Her analysis was originally published in the Washington Post on November 22, 2022. 

Have Russians tortured Ukrainians – and, if so, who will hold the perpetrators accountable? In the wake of Russia’s February 2022 invasion of Ukraine, torture allegations have been levied by Ukrainian President Volodymyr Zelensky, President Biden, and the E.U. president, among others.

In March 1987, Russia ratified the Convention Against Torture, a U.N. treaty banning states from causing people severe harm (physical or mental) to punish, intimidate or obtain information from them. Three decades later, observers are charging that Russia has flagrantly violated that agreement, and have mentioned possible cases in international courts like the International Court of Justice, International Criminal Court, and European Court of Human Rights.

Each of these has important limitations, as we will explain. But another option has been neglected in most public discussions: prosecutions in other countries’ domestic courts, using the universal jurisdiction concept.

Allegations of torture by Russian soldiers in Ukraine

International human rights organizations like Amnesty International and Human Rights Watch have reported a slate of torture allegations since Russia’s large-scale invasion of Ukraine began in February.

To give just a few examples from Ukraine, 458 civilians died in the town of Bucha during a month-long Russian occupation that ended in April 2022. Almost all the victims showed signs they’d been tortured before death. Concurrently, in Yahidne, according to Human Rights Watch, Russian forces held 350 villagers in a schoolhouse basement for 28 days, with little space, food, or water, and buckets for toilets. Ten people died.

These actions continue. In September 2022, according to Amnesty International, Russian soldiers forced people in occupied territories to vote at gunpoint in a dubious referendum that purportedly showed Ukrainian support for joining Russia.

Meanwhile in Russia, Human Rights Watch reports that antiwar protesters are tortured after arrests. In February and March 2022 alone, 13,500 protesters were arrested. Amnesty International reports that detainees have been electroshocked and waterboarded – which, if proved in court, would constitute torture.

What international courts can and can’t do

The International Court of Justice, International Criminal Court, and European Court of Human rights are the international courts investigating Russian actions in Ukraine. While all three are established by international treaties, each rules on different matters.

The ICJ settles disputes between countries. The ICC prosecutes individuals for grave criminal acts like war crimes. And the ECHR assesses allegations of human rights violations.

These courts are limited in their ability to rule and have their rulings enforced. The ICJ depends on the U.N. Security Council for enforcement. Russia is a permanent member of the council and can veto enforcement efforts.

Ukraine has accepted ICC jurisdiction, allowing the court to investigate atrocities like war crimes and crimes against humanity on Ukrainian territory. But individuals must be in the court’s custody to be tried. Getting Russians to The Hague – Russian President Vladimir Putin, especially – is likely to be difficult.

The ECHR lost jurisdiction over Russia on September 16, 2022, six months after it was expelled from the Council of Europe, but may investigate offenses before this date.

What domestic courts can do

Domestic courts have jurisdiction over a particular matter based on one of any five key doctrines: territory, active personality, passive personality, the protective principle, and universality.

Territory is simple. If a crime is committed within a country’s borders, whether by a domestic or foreign national, domestic courts can typically rule. Ukraine is already putting Russian soldiers on trial for civilian killings within its borders.

Second, under the legal principle of “active personality,” courts can hold their country’s nationals accountable for crimes committed abroad. Russia isn’t likely to prosecute its soldiers for abuses in Ukraine.

Third, based on “passive personality,” domestic courts can judge cases where the victim is one of its country’s nationals. For example, Lithuania is investigating Russian-backed separatist forces in Ukraine for killing Lithuanian filmmaker Mantas Kvedaravicius. Any such prosecution would be rare; passive personality is controversial because it challenges countries’ sovereignty over their domestic affairs.

Fourth, the protective principle lets countries prosecute individuals who threaten state interests like national security. Concerned Eastern European border countries like Moldova, Romania, and the Baltics could argue the war in Ukraine threatens their security, and that they therefore have a right to prosecute Russian personnel.

Fifth, and perhaps most pertinent, countries can apply universal jurisdiction to prosecute grave breaches of international law, even when both perpetrators and victims are foreign nationals outside of national territory. Universal jurisdiction would allow any country’s domestic courts to hold Russian personnel accountable.

Examples of universal jurisdiction cases

The arrest of Chilean dictator Augusto Pinochet marked the first time a former head of state was arrested under universal jurisdiction. In 1998, Pinochet traveled to the United Kingdom for a medical procedure, where he was arrested by authorities acting on a Spanish request for extradition.

Spain’s National Court had received complaints from victims of Pinochet’s repressive regime, which deployed torture and forced disappearance. Prosecutors argued Pinochet’s crimes were so egregious that he could be tried in a country where, unlike Chile, he had no legal immunity.

British courts agreed: Pinochet had no claim to official immunity and should be extradited. He was later declared medically unfit to stand trial and was returned to Chile in 2000 – but the principle had been established.

More recently, in 2022, a German court convicted a Syrian officer, Anwar Raslan, of crimes against humanity under universal jurisdiction. A security official in Syrian President Bashar al-Assad’s regime, Raslan oversaw the torture and executions of thousands. To date, various countries have conducted more than 70 trials under the same doctrine, including the Netherlands (for war crimes), Norway (for terrorism), and Senegal (for torture, war crimes, and crimes against humanity).

Will countries try to prosecute Russians for crimes against humanity?

It’s too soon to know which countries might take up this project. Doing so would be politically costly, to be sure. But recent political science research finds that migrants can compel their host countries to prosecute individuals for wrongdoing in their home countries. With an estimated 7.8 million Ukrainian refugees in Europe alone, European courts may find themselves pressured to meet Ukrainians’ demands for justice.

Image: In Ukraine, President Zelensky visits the town of Bucha on April 4, 2022, following the departure of Russian troops. (cc) Oleksandr Ratushniak

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