Universal jurisdiction is increasingly central to the judicial structure regarding war and other crimes committed in Ukraine. It enhances the certainty and effectiveness of justice—a crucial factor for the country’s recovery. As Kateryna Latysh shows, the growing number of countries initiating proceedings for war crimes in Ukraine under universal jurisdiction underscores its vital role in holding perpetrators of serious international crimes accountable.
National courts
Under international law, particularly the Rome Statute of the International Criminal Court (ICC), the primary responsibility for prosecuting war crimes lies with national courts, following the principle of “complementarity”. However, since February 24, 2022, Ukraine has faced overwhelming challenges in this regard due to the number of crimes (over 113,004 crimes) and victims (at least 27,449 victims) related to the war. This situation raises questions about the ability of national courts to function effectively in wartime conditions.
A closer examination of the Ukrainian national court system in late 2022 reveals significant operational difficulties. The judiciary faces a significant shortage of judges, with 52% of judicial posts vacant. In addition, 9% of courts are located in occupied territories, severely limiting their functionality. In addition, 11% of courts have suffered from destroyed facilities, further hampering their ability to administer justice. These statistics highlight the immense strain placed on the Ukrainian judicial system by the ongoing conflict and underscore the challenges of ensuring the investigation of atrocity crimes in war-torn regions.
Why and what is UJ?
When national jurisdictions are unable or unwilling to investigate international crimes within their borders, there are two alternatives: the exercise of universal jurisdiction by national courts of third countries or intervention at the international level through the International Criminal Court (ICC) or special criminal tribunals. Ensuring justice for victims remains the overriding objective in these scenarios. Universal jurisdiction is a key tool in this context (see Figure 1). This legal concept reflects the commitment of the international community to ensure that serious international crimes do not go unpunished.
Universal jurisdiction gives states the power to prosecute individuals for certain crimes, regardless of where those crimes occurred, the accused’s nationality, their country of residence, or any direct connection with the prosecuting state. This principle allows national courts to act as enforcers of international law, transcending traditional jurisdictional boundaries.
Crimes subject to universal jurisdiction are determined by international law and considered so heinous that they offend the entire international community. They typically include but are not limited to, genocide, crimes against humanity, war crimes, and torture. It should be noted that states are not obliged to persecute by the universal jurisdiction mechanism, and they cannot prosecute under this jurisdiction any crimes that haven’t been defined by international and/or national law to fall into this category. The scope of crimes under universal jurisdiction may vary from state to state.
The legal framework for universal jurisdiction also varies from country to country. Some states, such as Lithuania, apply an absolute version of universal jurisdiction, allowing for prosecution in absentia, meaning that the accused does not have to be physically present in the prosecuting state. In contrast, other states like the Netherlands may require the physical presence of the offender within their borders to initiate proceedings under universal jurisdiction.
Data collected and visualised by the author.
One of the problems with the implementation and active use of the universal jurisdiction (UJ) mechanism is the lack of resources and capabilities for collecting evidence remotely from the countries where the crime was committed. This also applies to the ICC and other accountability mechanisms. It can be particularly challenging if a country is in a state of armed conflict, as in the case of Ukraine. In such situations, tools of digital forensics and open source intelligence (OSINT), which have been successfully used for a long time by NGOs, journalists, and other non-governmental entities for investigative purposes in other countries, can be of great help. These efforts may have increased the occurrence of universal jurisdiction. Since 2014, the role of UJ has been growing (see Figure 2). At least 22 countries use UJ to fight impunity, such as Germany, France, Sweden, Spain, Switzerland, the Netherlands, the United Kingdom, the United States, Belgium, Argentina, Austria, Italy, Lithuania, Norway, Canada, Brazil, Chile, Finland, Hungary, Ghana, Senegal and South Africa.
Digital evidence
In the Ukrainian context, the widespread availability and use of camera-equipped smartphones have allowed civilians to collect significant digital evidence data. This data is being collected not only through chatbots within the country amid the conflict but also on a global scale (e.g., eyeWitness, WITNESS, Self Evident). Although taking place within a domestic court and outside the realm of universal jurisdiction, the decision of the Bukavu Military Tribunal (2018) in the case of “Ndayambaje Gilbert and Nizehimana Evariste (RP №. 1215/2017, RMP №. 6043/YM/017)”, shows precedent for the admission of digital photographs taken with the eyeWitness app.
A notable development in this area is the establishment of the Office of the Prosecutor platform (OTPLink) by the International Criminal Court (ICC) in 2023. This platform is specifically designed to collect digital information of various kinds related to international crimes. In addition, later on, in November 2023, the OSINT taskforce was established by Europol to support war crimes investigations in Ukraine through the collection and analysis of open-source intelligence. The recognition and validation of digital data at such a high level by authoritative bodies such as the ICC and Europol strongly indicates the increasing reliance on digital evidence in legal proceedings. This trend underlines the evolving nature of evidence and points to a future where digital data will play a central role in these proceedings. In response to this need, my colleagues and I have created the UJ toolkit for Pre-Trial and Trial through the ‘Kurk Lietuvai’ project. This toolkit consists of three blocks – one of which deals with how to collect evidence remotely – explaining which digital tools can be used.
International legal cooperation
But, of course, it is necessary to strengthen international legal cooperation in investigating crimes and furthering the justice process. Those mechanisms created earlier no longer correspond to modern trends and must be updated. Moreover, it is important to consider here the creation of the joint investigation team (JIT) in the Syrian case before and in the Ukrainian case now. In the case of Ukraine, according to the Ukrainian Prosecutor General’s Office, as of November 2023, at least 24 countries were part of a Joint Investigation Team (JIT) or separately for crimes committed in Ukraine (see Figure 3 below). In response to the need to collect evidence, from the very beginning of Russia’s aggression in Ukraine, JIT was set up by Lithuania, Poland, and Ukraine to gather evidence of war crimes and other international crimes in Ukraine. Both Eurojust and the ICC participate in the JIT. Later, Latvia, Estonia, Slovakia, and Romania joined the JIT. European countries, in cooperation with others such as Australia and Malaysia, have already had a successful JIT experience in collecting evidence from the MH17 crash. This evidence was recognised by the Court in the verdict (17 November 2022). Many elements of this case can be helpful for the investigation in the case of universal jurisdiction.
Data collected and visualised by K. Latysh.
As a response, the Ljubljana – The Hague Convention on International Cooperation in the Investigation and Prosecution of Genocide, Crimes against Humanity, War Crimes and Other International Crimes (the Ljubljana – The Hague Convention) was adopted in Ljubljana, Slovenia on May 26, 2023, marking a significant development in international investigative cooperation. This convention requires state parties to take the necessary measures to assert their jurisdiction over the above-mentioned serious crimes when the accused is found on their territory and cannot be extradited to another state or surrendered to an international criminal court or tribunal.
This newly adopted convention does not establish “pure” universal jurisdiction. Instead, it introduces a form of extraterritorial jurisdiction based on the alleged offender’s presence on a state party’s territory. This jurisdiction is exercised regardless of the nationality of the offender or the victims, focusing instead on the physical location of the accused. This approach represents a nuanced evolution in international legal mechanisms to address serious international crimes.
Concerning Ukraine, the Ljubljana–The Hague Convention would allow Ukraine to bolster its cooperation with other countries and international bodies in investigating and prosecuting serious international crimes. This convention facilitates the exchange of information, evidence, and resources, improving the efficiency and effectiveness of investigations and prosecutions. It helps overcome jurisdictional and logistical challenges, ensuring those responsible for such grave crimes are held accountable, even if they are outside Ukraine. Furthermore, the convention doesn’t deny the use of advanced tools like digital forensics and OSINT, which are crucial in gathering evidence, particularly in conflict zones. This international collaboration is vital for addressing impunity and delivering justice to the victims of these heinous crimes.
Recommendations for Strengthening Universal Jurisdiction Mechanisms for Nordic and Baltic Decision-Makers
As demonstrated in Figure 2, the role of universal jurisdiction is growing. However, for this growth to reflect quantitatively by the number of participating countries and opened cases and qualitative improvements by finishing cases at the courts, a series of actions and governmental support is needed to create favourable mechanisms for cooperation. These mechanisms may include conducting joint international training sessions and exchanges between countries already conducting investigations using the universal jurisdiction mechanism.
Nordic and Baltic countries should strengthen their legal frameworks to deepen the exercise and facilitation of universal jurisdiction. This includes updating national laws to allow for the prosecution of serious international crimes, even if the accused or the victims are not nationals, and the crimes were committed outside their territory. Additionally, pushing for broader acceptance and implementation of universal jurisdiction principles among EU member states and other countries is critical. The countries should engage with international bodies such as the European Parliament, Eurojust, and the United Nations to promote the importance of universal jurisdiction and support initiatives that study and improve the application of universal jurisdiction across different legal systems.
Furthermore, Nordic and Baltic countries should allocate sufficient resources to national judicial bodies to effectively handle the increased workload from universal jurisdiction cases. One significant issue is resource allocation: there needs to be more people trained to conduct pre-trial and trial using the universal jurisdiction mechanism and the lack of information regarding conducting investigations using digital tools, technical equipment, and corresponding financial support. This includes training for judges and prosecutors in handling complex international crimes and the use of digital forensics and OSINT methodologies within national judicial systems. These tools are crucial for collecting and analysing evidence from conflict zones where traditional methods may not be feasible. For these purposes, ‘Evaluating Digital Open Source Imagery: A Guide for Judges and Fact-Finders’ was developed to “assist judges and other decision-makers assess open-source photographs and videos by explaining some of the most common open-source investigative techniques.”
Raising public awareness about the importance of universal jurisdiction and the role it plays in ensuring justice for victims of serious international crimes at all levels is also crucial. This will encourage more active use of this mechanism by encouraging more people to come forward with information.
Regarding the Ukrainian case, the mechanism is needed to actively participate in and support JITs for crimes committed in Ukraine. This will facilitate the collection and sharing of evidence, allowing for a coordinated and effective response to international crimes. Implementing training programmes for law enforcement and judicial officials on using digital forensics and OSINT will improve the ability to gather and process digital evidence, which is increasingly critical to prosecuting war crimes and other international crimes. Promote and participate in international cooperation mechanisms like the Ljubljana-The Hague Convention, which will enhance the exchange of information, evidence, and best practices, guaranteeing that serious international crimes are effectively investigated and prosecuted.
By implementing these measures, Nordic and Baltic policymakers can significantly contribute to the global fight against impunity for serious international crimes, support Ukraine in its quest for justice, and strengthen the overall framework of international criminal justice, not to be “a safe haven for perpetrators.”
Summary
The expanding role of universal jurisdiction (UJ) in international justice is highlighted by digital forensics and OSINT as key tools in gathering evidence at a distance for crimes committed in Ukraine. This surge is supported by international NGOs and national civil societies experienced in evidence collection, which is increasingly digital and conducted remotely. As justice remains critical for Ukraine’s recovery and respect for human rights, the use of UJ has seen significant growth. Since 2022, the number of countries applying UJ has slightly increased, with 24 countries actively investigating Ukrainian war crime cases as of November 2023.
Kateryna Latysh acknowledges the support through the Marie Skłodowska-Curie Actions (MSCA4Ukraine) funded by the European Union.