Three years after Russia began its full-scale invasion of Ukraine, the widespread activation of universal and other forms of extraterritorial jurisdiction to prosecute international crimes committed in the war calls for an evaluation. What has been achieved so far and what could be done better? Despite the stated commitment of Ukraine’s allies to complement the justice efforts in Ukraine and at the International Criminal Court (ICC) domestically, surprisingly few concrete achievements are known. To ensure accountability, a more proactive approach to universal jurisdiction (UJ) based on a realistic assessment of Ukraine’s domestic capacities is needed.
As Russia continues its aggressive war, the list of international crimes allegedly committed in its course keeps growing: attacks on civilian infrastructure, torture and killing of civilians, enforced disappearances, arbitrary detention, deportation of children, ill-treatment of prisoners of war, environmental crimes, and conflict-related sexual violence. To combat impunity for these crimes, Ukraine is seeking accountability domestically, as is the ICC internationally. As part of these efforts, Ukraine has tried more than 100 alleged perpetrators, most of them in absentia, and the ICC has issued six arrest warrants, including for President Putin and former Defence Minister Shoigu.
However, the pursuit of justice is not limited to these two fora. In an unprecedented commitment to justice, a significant number of states have launched extraterritorial criminal investigations into core international crimes committed in the context of the full-scale invasion. 14 EU Member States and several non-EU countries, such as Canada and the USA, have reportedly taken this step. The activation of UJ alongside the ICC, domestic proceedings in Ukraine and other investigative initiatives is a new and welcome development: In the past, UJ has mainly been used when no alternative remedies were available. The first trial for Syrian state torture, for example, had to take place in Germany, because the ICC lacked jurisdiction and the Assad regime was evidently unwilling to prosecute its own agents. Nevertheless, the parallelism of investigations in the current situation raises questions of subsidiarity and complementarity: how to ensure that the efforts in Ukraine and at the ICC are neither duplicated nor substituted, but rather complemented, with UJ filling existing accountability gaps? Unfortunately, a look at the status quo suggests that the ongoing UJ investigations do not sufficiently fulfil this complementary role.
The status quo of extraterritorial prosecutions of international crimes committed during Russia’s full-scale invasion
Based on publicly available information, states primarily appear to be pursuing a two-pronged approach to extraterritorial investigations. On the one hand, law enforcement agencies secure evidence that is in their immediate reach by taking testimony from Ukrainian refugees who have settled on their territory. On the other hand, they investigate crimes committed against their own citizens in Ukraine on the basis of the passive personality principle.
More than six million Ukrainians have fled their country for safety, many bringing with them memories of the atrocities inflicted on them or their family members by Russia’s aggression. To preserve these memories as evidence, many states have called on witnesses and survivors to testify about their experiences and share relevant materials. In less than three weeks after the full-scale invasion began, Poland announced having collected more than 300 testimonies, Lithuania reportedly interviewed 423 witnesses and recognized 125 as victims by January 2024, and by February 2024, Germany had collected more than 500 leads on war crimes in Ukraine and interviewed more than 160 witnesses. Similarly, countries such as Sweden, Switzerland and the Czech Republic have announced plans to collect refugee testimonies after February 2022, and others may be added to this list.
However, such announcements and figures alone provide little information about the evidentiary value, scope and intended use of the testimonies collected, and these parameters are likely to vary from country to country. Some states, such as Poland, Lithuania and Latvia, have only recently begun to investigate international crimes committed abroad, while others, such as Germany and Sweden, have long-established war crimes units and a track record of successful prosecutions. And while the latter two have broad versions of UJ, other states, such as Switzerland and France, require the presence or even the habitual residence of the suspect within the country in order to initiate an investigation that does not involve crimes by or against their nationals. These institutional constraints obviously have an impact on the outcomes we can expect in the current situation and make it difficult to determine whether states are prepared to analyze these refugee testimonies to identify patterns and perpetrators and to gather additional evidence to build cases against specific suspects.
However, while we can assume that EU Member States share these witness statements, at least in part, through Eurojust and Europol or, where relevant, as members of the Joint Investigation Team, the majority of countries seem to be leaning towards a mode of limited engagement unless their own nationals are affected by a crime. At least, it is mostly in such cases that perpetrator-specific investigations have been announced: France has reportedly opened investigations into ten cases of crimes against its citizens, including journalists and humanitarian workers. In July 2023, the German Federal Prosecutor, opened a first person-specific investigation into the shooting of civilians in Hostomel, with one of the victims being a German national. In December 2023, the US justice department filed the first ever charges under the U.S. war crimes statute against four Russia-affiliated soldiers for torture and unlawful detainment of a US national. Polish investigators have reportedly identified 30 crimes cases, but given Poland’s restricted application of UJ, it appears unlikely that this number refers to perpetrator-specific investigations. Lithuania is investigating the murder of Lithuanian filmmaker Mantas Kvedaravičius and has summoned three suspects to appear in court. A notable exception is the case of Voislav Torden, a Russian citizen who was arrested at Helsinki airport in 2023 and is currently on trial in Finland for war crimes allegedly committed against Ukrainian soldiers as part of a paramilitary group in eastern Ukraine in 2014.
Beyond these cases, however, there are no known systematic efforts by third states to formally prosecute individual suspects, and states appear reluctant to interfere in cases that Ukraine is investigating. A criminal complaint filed by the European Center for Constitutional and Human Rights (ECCHR) and Ukrainian Legal Advisory Group (ULAG) on behalf of a survivor of conflict-related sexual violence in Germany is a case in point: Given that Ukraine had already opened a trial in absentia against one of the suspects and that they were not present on German territory, the German Federal Prosecutor argued that an investigation in Germany would have no added value, despite the lack of prosecution of crimes against humanity and commanders. Using the terminology coined by Máximo Langer, we can summarize that, with the exception of passive personality cases, states appear to be unwilling to adopt a ‘global enforcer approach’, preferring instead a ‘no safe haven’ approach, whereby they will not initiate formal proceedings against specific suspects unless they travel to their territory.
Evaluation – are UJ investigations effective enough?
When assessing the effectiveness of UJ proceedings in the current situation, one thing must be made clear from the outset: UJ has never been particularly effective in bringing perpetrators of international crimes to justice quickly. For example, the first Syria torture trial mentioned above began some eight years after the crimes were committed, and prosecution was only possible because the defendants had sought refuge in Germany after abandoning their positions in the regime.
Lack of access to perpetrators, difficulties in gathering evidence and political considerations are all factors that play a role in investigations into crimes committed during Russia’s war of aggression. The suspension of the EU-Russia visa facilitation agreement, EU, US and other travel bans on senior Russian officials and military personnel, and the public announcement of criminal investigations have made it unlikely that significant numbers of suspects from Russia or the separatist regions would currently enter the territory of those states willing to try them. And while some of these individuals may travel to other countries, such as Serbia, Turkey and the United Arab Emirates, it seems improbable for political reasons that any of these countries would readily fulfil their legal obligation to extradite or prosecute them. Against this background, it is unsurprising, albeit frustrating, that no suspects of international crimes allegedly committed by Russian forces during the full-scale invasion have been brought to justice outside Ukraine. But while successful prosecutions depend to a large extent on external factors such as suspects coming within reach of prosecutors, the stability of the Putin regime and the course of the war, it is important to be as prepared as possible for any opportunities that may arise.
To determine whether the UJ measures taken are sufficient to achieve this goal, it is necessary to look at the justice ecosystem as a whole, and more specifically at the justice efforts within Ukraine and at the ICC. The question of what role UJ can and should play in complementing the prosecutorial actions of these two actors is inextricably linked to their ability to prevent impunity. As far as the ICC is concerned, the answer is quite obvious: As evidenced by the six arrest warrants issued so far, the Court is likely to bring only a handful of cases against high-level perpetrators, leaving a wide range of possible crimes committed by low- to mid-level suspects unaddressed. This is all the more true in light of the recent US sanctions imposed on the ICC, which threaten the functioning of the Court as a whole. However, as far as Ukrainian domestic investigations are concerned, the situation is much more complicated: The Ukrainian Criminal Procedure Code (article 214) requires that every criminal incident be registered, which explains the huge number of cases opened and theoretically implies that every alleged international crime committed in the conflict will be investigated by Ukraine in one way or another.
Against this background, the above-mentioned primary focus on passive personality cases may seem reasonable for at least two reasons: In some countries, such as France, it is the only jurisdictional basis on which an investigation can be launched under the given circumstances. And from the point of view of subsidiarity, it makes sense because such cases have a personal link to the investigating state through the foreign nationality of the victim, which distinguishes them from the majority of cases affecting only Ukrainian nationals. Also, the broad and not necessarily structured collection of witness statements from refugees abroad is helpful from a subsidiarity perspective: Since these people have left Ukraine and cannot tell their stories to domestic investigators, it is important to ensure that their accounts are not lost or ignored. However, as important as these measures are, it would be wrong to conclude from the fact that Ukraine theoretically prosecutes all other cases domestically that UJ has no role to play beyond these efforts. A realistic assessment of the domestic system reveals the need for a more proactive application of UJ.
Shortcomings of the Ukrainian domestic system – why do states need to step up their efforts?
Ukraine is often put in contrast with conflict situations where there is little to no political will and capacity to prosecute grave crimes in national courts. Yet, such a comparison can be misleading. Indeed, Ukrainians are making immense efforts to administer justice in the context of the armed conflict, and especially since the full-scale invasion the international community has been providing significant support to strengthen the potential of the domestic system. However, it is still far from being fully capable of ensuring justice for the enormous number of serious crimes due to its incomplete legal framework, lack of resources and human capital, experience and expertise, as well as security threats in the context of an ongoing war.
As of February 2025, more than 151000 proceedings have been opened on alleged violations of the laws and customs of war that took place after February 2022. The actual number of grave crimes committed may ultimately differ, since this record is a reflection of an approach mentioned earlier – to register every incident which does not always amount to a grave crime, and some of these proceedings may be joined later. At the same time, a significant number of atrocities is yet to be uncovered due to a lack of access to information and territories under Russian control. However, it is illustrative of the scope and scale of violations and, respectively, the workload that is currently weighing on the domestic justice system`s shoulders.
Legislative shortcomings present an additional challenge: As detailed by ULAG’s Needs Assessment Report, Ukrainian legislation does not provide the necessary toolkit for the effective investigation and prosecution of international crimes in accordance with the interests of the victims. While Ukraine has become a full State Party to the Rome Statute since the publication of the report and has introduced previously missing provisions on command responsibility and crimes against humanity as part of the implementation process, it is debated whether these provisions can and should be applied retroactively. Although the jurisprudence of the European Court of Human Rights (ECtHR) explicitly allows this in certain circumstances (see here and here), both the Ukrainian Constitution and the Criminal Code (CCU) prohibit the retroactive application of laws that criminalise an act or increase criminal liability, and it has not been determined whether this domestic prohibition also applies to criminal provisions that have a clear legal basis in international law. In the absence of a ruling by the Ukrainian Constitutional Court and legislative clarification by the Verkhovna Rada on this issue, this uncertainty remains. As a result, an enormous number of incidents – such as the case of conflict-related sexual violence mentioned above – may remain without proper classification and therefore prosecution for the period prior to October 2024, when the amendments came into force. Of course, Ukraine may still be able to prosecute some of these incidents under previously existing provisions, such as Article 438 CCU, which broadly criminalises violations of the laws of war, or even ordinary crimes provisions, but both do not always adequately capture the nature of the injustices committed. While reliance on “ordinary” modes of liability can help ensure accountability in many cases, command responsibility extends this liability by criminalizing the failure of superiors to prevent their forces from committing a crime or to punish its commission. Moreover, there is a real risk that the categorisation of crimes will remain imprecise if too much reliance is placed on domestic crimes, as evidenced by the widespread application of Article 258 of the CCU (act of terrorism) to alleged war crimes in eastern Ukraine prior to the full-scale invasion. This often obscured the nature of the armed conflict and thus the essence of the acts in question (ULAG, Needs Assessment Report, pp. 15).
There is also a plethora of procedural imperfections undermining the quality of justice processes in Ukraine. There is currently no effective program for victim and witness protection in place, putting the latter in great danger and disincentivizing them to participate in proceedings (ULAG, Needs Assessment Report, pp. 97). Also, the lack of adequate rules for the handling of open source information and intelligence data, together with incomplete rules and guidelines for the handling of other types of information, limits the possibilities of using them as legally admissible and relevant evidence in a way that would comply with international standards (see ULAG, Needs Assessment Report, pp. 66).
The overwhelming majority of proceedings are tried in absentia. One may consider this situation not ideal, but understandable, especially in the context of an ongoing armed conflict. However, Ukrainian standards for in absentia proceedings do not currently align with those set out in the European Convention on Human Rights (ULAG, Needs Assessment Report, pp. 79). For example, there is no right to retrial if the suspect appears before the court, and the process of informing the suspect also requires substantial improvements. Possible violations of the right to a fair trial raise concerns about the legality of such proceedings, and may eventually lead to verdicts being challenged in the ECtHR, dissatisfaction among victims themselves, as well as unwillingness on the part of third countries to comply with such judgments and arrest warrants. Recent refusals by Finland, Austria and France to extradite suspects to Ukraine demonstrate that human rights concerns can effectively prevent the acceptance of Ukrainian judicial decisions.
In addition to these legal obstacles, other institutional challenges make the work of investigators, prosecutors and judges even more difficult. There is a significant shortage of professionals, acute security risks and a lack of operational resources, which is all the more drastic when put in the context of the heavy workload described above. Specialists lack relevant experience and expertise in working with grave crimes in accordance with international standards (ULAG, Needs Assessment Report, pp. 104). While there are many training opportunities, they often remain fragmented and detached from the context on the ground, which makes it harder to implement the obtained knowledge in practice.
Breaking a vicious cycle: how to strengthen the justice architecture for Ukraine
Given these limitations of the Ukrainian domestic system, there is a clear need for other states to move beyond passive personality cases in order to achieve the stated goal of preventing impunity. To avoid accountability gaps, the aim should be to build cases against those high- and mid-level perpetrators who are unlikely to be the focus of an ICC investigation. Special emphasis should be placed on the investigation of crimes against humanity in order to address the systematic nature of the attack on the Ukrainian civilian population – especially with regard to violations committed before October 2024, when Ukrainian legislation did not allow for their prosecution. Rather than limiting UJ to a “no safe haven” approach, the aim should be to issue arrest warrants in cases where the necessary legal threshold can be met, in order to increase the likelihood that suspects will be arrested. Despite the current difficulties in apprehending wanted persons, political developments can quickly change this situation and fast action would then be essential.
However, it is clear that more honesty, cooperation, political will and resources are needed for UJ to play this role. Part of the reluctance to use UJ more proactively may be due to understandable concerns about interfering in Ukraine’s internal affairs, so a clear call for support through UJ is needed from Ukrainian officials. On a practical level, there is a need to further develop solutions for the continuous exchange of evidence, as refugee testimonies, NGO submissions and OSINT alone won’t always provide the information needed to build a strong UJ case. At the legislative level, reforms are needed in many countries to make UJ more widely applicable, for example by removing requirements that limit investigations to suspects present on a state’s territory.
Crucially, all of this does not mean that the Ukrainian domestic system should not be supported, quite the contrary. UJ is still to be understood as complementary to prosecutions by Ukraine. To improve domestic capacities and ensure the proper implementation of international standards, there is a need for further efforts in the form of legislative reforms, international assistance and training, based on a thorough assessment of actual needs.
Given the limitations of all existing mechanisms (domestic system, ICC, UJ), it would also be prudent to consider the creation of an ad hoc justice and accountability mechanism (ULAG, Needs Assessment Report, pp. 185) to complete the justice architecture for Ukraine. A hybrid (mixed, internationalized) court mandated to prosecute all core international crimes and staffed with Ukrainian and foreign specialists, could serve as a dedicated solution with sufficient legitimacy and necessary capacity to enhance the long-term potential of the Ukrainian domestic system through close cooperation between local and international components. However, this option is yet to be properly considered at the decision-making level, as evidenced by the recent advancement in the process of establishing a special tribunal, focused exclusively on the crime of aggression. Similar to states’ reluctance to use UJ more proactively, this limited focus is partly due to a misperception of Ukraine’s domestic capacity to ensure accountability for the other core crimes. The US sanctions against the ICC underscore the need to ensure that the justice architecture for Ukraine consists of robust, effective and legitimate components that can withstand political turbulences, especially in the context of possible peace negotiations. UJ has an important role to play in this. In order to realize its potential, states should move towards a more active application of this principle in relation to alleged crimes committed in Russia’s war of aggression.
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