End of June 2023, two human rights organizations filed a criminal complaint with the German Federal Public Prosecutor’s Office on behalf of a Ukrainian survivor of sexual violence, and this under the principle of universal jurisdiction.
The criminal complaint is directed against four members of the Russian military, including two high-ranking officials, and alleges that they are responsible for the arbitrary killing of the survivor’s husband and for committing acts of sexual violence against her.
The filing is made in light of Russia’s full-scale attack on Ukraine and what followed in the form of atrocities that meet the legal definition of war crimes and crimes against humanity. Rape and sexual violence are among the alleged crimes, and indeed, their occurrence has been reported since the early days of Russia’s war on Ukraine.
In the case filed in Germany, by the Ukrainian Legal Advisory Group (ULAG) and the European Center for Constitutional and Human Rights (ECCHR), the perpetrators are said to have attacked the survivor and her family a few weeks after the beginning of the full-scale invasion, when Russian troops were occupying their village in the Kyiv region.
Reportedly, “After repeated intimidation and humiliation by members of these forces, two soldiers entered the family’s property, shot her husband dead and then raped her multiple times. The woman and her young son managed to flee and now live in Germany. Their house in Ukraine was destroyed after their escape, presumably by Russian troops.”
None of the perpetrators or their superiors have been arrested but investigations by the Ukrainian authorities are underway. Also, a trial against one of the alleged perpetrators has begun in Ukraine in absentia.
The filing in Germany is said to address the obstacles to prosecution arising from the ongoing war, such as power and internet outages. Furthermore, the current legal framework in Ukraine has some limitations that may impede a wide range of legal actions in the case. Among others, the Ukrainian legal system does not criminalize crimes against humanity.
As a result, the alleged crimes cannot be prosecuted as crimes against humanity, namely, as crimes perpetrated as part of a widespread and systematic attack against the Ukrainian population.
In 2021, Ukraine has taken steps to align its domestic law with international criminal and humanitarian law, when the Ukrainian parliament adopted a new law “On Amendments to Certain Legislative Acts on the Enforcement of International Criminal and Humanitarian Law.”
The law included provisions on command responsibility, the statute of limitations for international crimes, and universal jurisdiction, among others. However, this law was never signed by the president, and as such, did not enter into force.
In April 2022, the Ukrainian parliament introduced a different draft instead of the 2021 law. However, the second draft is being criticized by civil society organizations as insufficient and lucking the teeth of the 2021 law.
The filing in Germany, under the principle of universal jurisdiction, could be yet another pathway to justice and accountability, among many steps taken domestically and internationally to address the crimes perpetrated by Putin and his troops. Among those crimes, special attention needs to be paid to conflict-related sexual violence (CRSV), a crime that is often neglected among the litany of conflict-related crimes.
As of June 2023, the Ukrainian Office of the Prosecutor General has been working on investigations in 208 cases of CRSV, including 140 cases concerning women and 13 concerning minors. The U.N. Office of the High Commissioner for Human Rights reported that between February 2022 and January 31, 2023, it documented 133 cases of CRSV (85 men, 45 women, 3 girls), the majority of which took place in territory occupied by the Russian Federation.
The Independent International Commission of Inquiry on Ukraine has found that some Russian Federation soldiers committed sexual and gender-based violence, including sexual violence, torture, and cruel and inhuman treatment. As they explained, “In the cases we have investigated, the age of victims of sexual and gendered-based violence ranged from four to 82 years.”
They documented cases in which “children have been raped, tortured, and unlawfully confined. Children have also been killed and injured in indiscriminate attacks with explosive weapons.”
As these crimes are committed in the context of a widespread and systematic attack against the civilian population of Ukraine alongside summary executions, torture, arbitrary detentions, and deportations. As such, they can and should be prosecuted as crimes against humanity, in addition to war crimes.
It is crucial to explore all possible legal avenues for justice and accountability for the horrific atrocities perpetrated by Putin and his troops, whether in Ukrainian courts or globally.
However, it is equally important to ensure that the legal system in Ukraine is comprehensive and that actors in the country have all necessary laws that would enable them to investigate and prosecute the crimes for what they are – whether war crimes, crimes against humanity or even genocide.