By Charles H. Camp, Kiran Nasir Gore and Lilia Chu
The ongoing crisis prevents the Ukrainian public from accessing judicial remedies in Ukraine or Russia for the unspeakable and horrific war crimes, crimes against humanity and other serious international human rights violations they face. But this does not mean redress is not possible. Under international law, these crimes amount to jus cogens offenses – the international community universally condemns them and has a general interest in preventing their perpetuation. These jus cogens violations are thus suitable not only for criminal prosecution, but also civil claims seeking monetary damages in the courts of other States under universal jurisdiction. Here, we evaluate the viability of civil claims in the courts of four select jurisdictions, the United Kingdom, Germany, Poland, and Romania, to assess their suitability as venues to provide monetary damages for civil claims by Ukrainians against Russia, President Putin, and Russian military leaders.
Introduction
It has been one month since the Russian Federation launched its war in Ukraine. Without a doubt, the war has already devastated Ukraine’s civilian population. In the past few weeks alone, it is estimated that there have been more than 2,421 civilian casualties. Most of these casualties were caused by explosive weapons with a wide impact area, including shelling from heavy artillery and multiple-launch rocket systems, and missile and air strikes.[1] Such extreme disruption on civilian life has broad impacts: collectively, all national attention and resources have turned to ensure the preservation of life and territorial integrity. In parallel, other public services and infrastructure, such as schools and courts, are no longer functioning and are not anticipated to return to normal operations anytime soon.
But the lack of an operational judicial system does not mean that the Ukrainian public can be denied justice. In fact, justice must immediately be sought against Russia, President Putin, and Russian military leaders for their ongoing unspeakable and horrific war crimes, crimes against humanity and other serious international human rights violations. Since Ukrainian citizens obviously cannot seek justice for these harms in either Ukrainian or Russian courts, it is vital that other States provide judicial forums for Ukraine and its people to seek monetary damages for such crimes and violations.
This article contextualizes the crisis in Ukraine and Russia’s ongoing military invention as violations of international law. Next, it provides the nexus between universal jurisdiction and jus cogens violations. It then evaluates the viability of jus cogens claims in the courts of four jurisdictions that recognize universal jurisdiction, the United Kingdom, Germany, Poland, and Romania, to assess their suitability as venues to provide monetary redress to Ukrainian civilians.
Russian Actions in Ukraine
The fact that violations and crimes are being committed cannot be doubted. Russia’s invasion of Ukraine breaches Articles 2(3) and 2(4) of the United Nations Charter. Russia has challenged the sovereignty of a nation with the unprovoked use of force which has resulted in a severe humanitarian crisis.[2] On March 2, 2022, the UN General Assembly expressed their “grave concern at reports of attacks on civilian facilities such as residences, schools[,] and hospitals, and of civilian casualties, including women, older persons, persons with disabilities, and children” and recognized that the damage being caused by Russia’s military actions is “on a scale that the international community has not seen in Europe in decades and that urgent action is needed to save this generation from the scourge of war.”[3] Additionally, the General Assembly expressed their “grave concern” regarding the “deteriorating humanitarian situation in and around Ukraine.”
Meanwhile, Ukraine has presented claims against Russia to the International Court of Justice (ICJ), where it requested an urgent ruling on Russia’s unsupported claims that Ukrainian forces were committing genocide in Russian-backed enclaves in Luhansk and Donetsk, regions in eastern Ukraine, as a justification for the attack.[4] The ICJ quickly ruled through a March 16, 2022 provisional order noting that Russia should “immediately suspend” its invasion of Ukraine because the ICJ had not seen any evidence to support the Kremlin’s alleged justification for the war.[5] This decision negates Putin’s false invocation of “self defence,” premised on an alleged violation of Article I of the Convention on the Prevention and Punishment of the Crime of Genocide, as justification for use of force against Ukraine.[6]
In delivering the ruling, Joan Donoghue, President of the ICJ, particularly highlighted the portion of the ruling that noted “Russia’s aggression has resulted in numerous civilian deaths and injuries… significant material damage, including the destruction of buildings and infrastructure… creating increasingly difficult living conditions for the civilian population. Many persons have no access to the most basic foodstuffs, potable water, electricity, essentials medicines of heating.”[7] There is no question that Russia has imposed irreparable devastation upon the Ukrainian people.
Even Alain Pellet, a world-renowned international law expert and former counsel for Russia resigned from representing Russia entirely stating “lawyers can defend more or less questionable causes. But it has become impossible to represent in forums dedicated to the application of the law a country that so cynically despises it.”[8] Along these lines, several States, as well as the International Criminal Court, have opened investigations into Russia’s war crimes and crimes against humanity in Ukraine.[9]
Jus Cogens Violations and the Search for Jurisdiction
The nexus between jus cogens violations and the current crisis in Ukraine is clear. Modern international law recognizes jus cogens norms as those from which States may not deviate.[10] Jus cogens offenses are offenses that are universally condemned and that the international community has a general interest in preventing.[11] Since World War II, genocide and war crimes have been widely accepted to as subject to universal jurisdiction.[12] As outlined above, the offenses being committed by Russia in Ukraine are massive impacting civilian lives in violation of the UN Charter and international law and are so egregious they are being investigated as war crimes.
Meanwhile, universal jurisdiction empowers States to assert jurisdiction over other States and individuals committing jus cogens violations even when the offenses do not involve the forum State.[13] This principle was established centuries ago. In the early 1600s, legal scholars adopted “the idea that certain kinds of crimes should be subject to the jurisdiction of any court in the world, no matter where they were committed by or by whom.”[14]
Victims of jus cogens violations who wish to seek redress against their aggressors, unfortunately, often face sovereign immunity obstacles.[15] Modern international law “distinguishes between the public and private acts of a state and generally accords immunity to a foreign sovereign defendant only where its public acts are at issue.”[16] This is because a State’s sovereignty is not encroached upon by limitations placed upon a State actor’s private acts. Further, the international community has recognized that individuals, even State officials acting in their official capacities including heads of State, can be held criminally responsible for international crimes.[17] The general view is that “immunity is an unjust bar to remedies for violations of international law.”[18]
To address this gap, States have employed universal jurisdiction to address jus cogens violations.[19] This is merely a permissive approach that is not available in or endorsed by all States.[20] Fortunately, Austria, Belgium, Denmark, France, Germany, Luxembourg, the Netherlands, Spain, Poland, Romania, the United Kingdom, and other Commonwealth countries, including Australia, have each permitted legal proceedings on the basis of universal jurisdiction for jus cogens violations.[21] In contrast, to date, the United States has declined to exercise universal jurisdiction over jus cogens violations.[22]
Enforcement in States with Universal Jurisdiction
The United Kingdom, Germany, Poland, and Romania each recognize universal jurisdiction and their courts may be favorable to claims by Ukrainians for jus cogens violations. The legal framework of each is discussed below in turn.
United Kingdom
The United Kingdom exercises universal jurisdiction over certain war crimes, torture and hostage taking.[23] UK courts allow “anyone” to apply for an arrest warrant in their courts.[24] However, while UK police are able to investigate such claims under universal jurisdiction regardless of where the defendant is located, the case may only proceed to trial if the accused is found present.[25] In the case of Russia’s war crimes against Ukraine, there is no question that Russia itself maintains a presence in the United Kingdom.[26] However, prosecuting a successful claim against Putin and Russian military leaders may be more challenging if these individuals are not present in the United Kingdom.[27] UK courts allow victims to recover for personal injury, loss or damage in a criminal prosecution.[28]
While UK courts recognize that sovereign immunity applies to acting heads of states, they do not recognize such immunity for acts carried out in a private capacity by former heads of state – a detail to bear in mind should Putin’s position in the Russian government change in the future.[29] Moreover, as a policy matter, the current, unprecedented jus cogens violations being directed by Putin for his own selfish reasons, and clearly not for the benefit of Russia or its people, requires States to revisit their prior rulings that immunized acting heads of state from violations of international law, including jus cogens violations.
Germany
Germany permits universal jurisdiction for claims arising from war crimes, crimes against humanity, and genocide.[30] Section 1 of the German Code of Crimes Against International Law expressly states “[t]his Act shall apply to all criminal offences against international law designated under the Act, to offenses [such as genocide, crimes against humanity, war crimes, war crimes against persons, property and other rights, humanitarian operations and emblems, and war crimes consisting in the use of prohibited methods and means of warfare] even when the offence was committed abroad and bears no relation to Germany.”[31]
Victims may recover in civil proceedings from defendants who either have a residence or assets located in Germany.[32] Such presence is likely given the enormous wealth and financial presence throughout Europe of Russia and other Russian oligarchs – something that has starkly come into relief given the latest round of sanctions and news concerning their enforcement.[33]
Poland
Poland expressly permits extraterritorial jurisdiction over war crimes, crimes against humanity, genocide, torture, and other jus cogens violations through universal jurisdiction.[34] The perpetrator must be present in Poland for the Polish courts to exercise their jurisdiction. Specifically, Article 113 of the Polish Penal Code states that “regardless of the law operating at the site of the committed offence, Polish penal law shall apply… to any foreigner facing extradition when they committed an offence abroad, in circumstances where Poland is obliged to prosecute the crime under international conventions.”[35] Article 113 covers crimes that Poland is obligated to prosecute under international treaties, and crimes that are defined in the Statue of the International Criminal Court.[36] Importantly, in addition to criminal jurisdiction, civil claims are permitted to be filed as “an adjunct to criminal prosecutions” in these situations.[37]
It is possible that Russia, Putin, and/or Russian military leaders could be considered “present” in Poland through numerous contacts with its neighbor.[38] However, this is a matter that must be investigated more thoroughly to be substantiated.
Romania
Romania permits extraterritorial jurisdiction over war crimes, genocide, and crimes against humanity based on universal jurisdiction. Specifically, Article 11 of the Romanian Criminal Code applies to offenses by “a foreign citizen or a stateless person who is located voluntarily on Romanian territory” if “an offense was committed that the Romanian State has undertaken to suppress on the basis of an international treaty, irrespective of whether it is stipulated by the criminal law of the State on whose territory it was committed.”[39] Romanian criminal law criminalizes and defines war crimes,[40] genocide,[41] and crimes against humanity.[42]
Romanian law expressly excludes “offenses committed by diplomatic representatives of foreign States” and it is unclear whether civil claims may be brought concurrently to a criminal prosecution.[43] However, this exception does not apply – it would plainly be inappropriate to argue that Putin and/or the Russian military leaders carrying out jus cogens violations in Ukraine are “diplomatic representatives” of Russia. This opens the door for Ukrainians to seek money damages against Russia, Putin and/or Russian military leaders for their aggressive acts.
Conclusion
The World is witnessing horrific devastation, war crimes, and crimes against humanity directed by Russia against all walks of life – including babies, pregnant women, children, the sick, and the elderly – as well as their homes and businesses in Ukraine for no legitimate reason other than those existing in Putin’s imagination. These acts unequivocally qualify as jus cogens violations.
Universal jurisdiction exists in numerous countries, including the several mentioned in this article, which could provide Ukrainian people with solid forums in which to seek monetary compensation on a scale that has the potential to bankrupt Russia, Putin, and the characters carrying out his criminal instructions.
About the Authors
Charles H. Camp is an international lawyer with over thirty years of experience representing foreign and domestic clients in international litigation, arbitration, negotiation, and international debt recovery. In 2001, Mr. Camp opened the Law Offices of Charles H. Camp, P.C. in Washington, D.C. to focus on effective, personalized representation in complex, international matters. Mr. Camp teaches international negotiations at the George Washington University Law School.
Kiran Nasir Gore is Counsel at the Law Offices of Charles H. Camp, P.C. She advocates before U.S. courts, commercial and investment arbitration tribunals, and investigative authorities. She has special expertise in matters of public international law and international dispute resolution. Kiran also draws on her professional experiences as an educator at the George Washington University Law School and New York University’s Global Study Center in Washington, D.C.
Lilia Chu is a Law Clerk at the Law Offices of Charles H. Camp, P.C. She graduated from New York University in 2017 and is currently pursuing a Juris Doctorate at George Washington University Law School. She is a member of The George Washington International Law Review and former Deputy Moderator in Chief of GW’s International Law and Policy Brief.
References
- [1] Ukraine: Civilian casualties as of 24.00 20 March 2022, https://reliefweb.int/report/ukraine/ukraine-civilian-casualties-2400-20-march-2022-enruuk (last accessed Mar. 24, 2022 and reflecting data current as of Mar. 20, 2022).
- [2] Devan Cole, Blinken Says US Has Seen Reports of Russian Abuses in Ukraine That “Would Constitute a War Crime” CNN (Mar. 6, 2022, 4:55 PM EST), https://www.cnn.com/2022/03/06/politics/russia-ukraine-antony-blinken-cnntv/index.html (describing “very credible reports of deliberate attacks on civilians, which would constitute a war crime” and “very credible reports about the use of certain weapons”) (last accessed Mar. 25, 2022).
- [3] Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide, 2022 I.C.J. 182, 16 (Mar. 16, 2022) [hereinafter Ukraine v. Russian Federation].
- [4] Id. at 2-3.
- [5] Id. at 17-20.
- [6] See id. at 10, 12.
- [7] Id.
- [8] Alain Pellet, Open Letter to My Russian Friends; Ukraine is Not Crimea, https://www.alainpellet.eu/_files/ugd/64a1e7_aebca5badda84be1b9f9fe75d2398479.pdf (last accessed Mar. 24, 2022).
- [9] Such States include, for example, the United States, Lithuania, and Germany. See Dan Mangan, U.S. is collecting evidence of possible Russian war crimes in Ukraine, CNBC (Mar. 7, 2022), https://www.cnbc.com/2022/03/07/russia-ukraine-war-us-collecting-evidence-of-possible-war-crimes-nbc-reports.html; Lithuania prosecutors launch Ukraine war crimes investigation, Reuters (Mar. 3, 2022), https://www.reuters.com/world/europe/lithuania-prosecutors-launch-ukraine-war-crimes-investigation-2022-03-03/; Bojan Pancevski, Germany Opens Investigation Into Suspected Russian War Crimes in Ukraine, Wall Street Journal (Mar. 8, 2022), https://www.wsj.com/livecoverage/russia-ukraine-latest-news-2022-03-08/card/germany-opens-investigation-into-suspected-russian-war-crimes-in-ukraine-bNCphaIWE30f2REH8BCi; Karim A.A. Kahn QC, ICC Prosecutor, Statement on the Situation in Ukraine (Feb. 28, 2022), https://www.icc-cpi.int/Pages/item.aspx?name=20220228-prosecutor-statement-ukraine (each last accessed Mar. 25, 2022).
- [10] Adam C. Belsky, Mark Merva & Naomi Roht-Arriaza, Implied Waiver under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law, 77 Calif. L. Rev. 365, 366 (1989).
- [11] Restatement (Third) of the Foreign Relations Law of the U.S. § 404 cmt. a (1987).
- [12] Id.
- [13] Id.
- [14] Darren Hawkins, Universal Jurisdiction for Human Rights: From Legal Principle to Limited Reality, 9 Global Governance 347, 347 (2003).
- [15] Belsky et al at 366, supra note 10.
- [16] Id. at 380.
- [17] Sevrine Knuchel, State Immunity and the Promise of Jus Cogens, 9 NW. U. J. Int’’l Hum. Rts. 149, 152-53 (2011).
- [18] Id. at 153.
- [19] Id. at 169.
- [20] Donald Francis Donovan & Anthea Roberts, The Emerging Recognition of Universal Civil Jurisdiction, 100 Am. J. Int’’l L. 142, 143 (2006).
- [21] Brian Man-ho Chok, The Struggle between the Doctrines of Universal Jurisdiction and Head of State Immunity, 20 U.C. Davis J. Int’l L. & Pol’y 233, 240 (2014).
- [22] Restatement (Third) of the Foreign Relations Law of the U.S. § 404 (1987).
- [23] Press Release from Ministry of Justice and The Rt Hon Kenneth Clarke QC on Universal Jurisdiction (Sept. 15, 2011), https://www.gov.uk/government/news/universal-jurisdiction.
- [24] Universal Jurisdiction, supra note 23 (last accessed Mar. 24, 2022).
- [25] Ariana Pearlroth, Universal Jurisdiction in the European Union, The Redress Trust, https://documents.law.yale.edu/sites/default/files/REDRESS-FIDH%20-%20Country%20Reports.pdf (last accessed Mar. 24, 2022).
- [26] Transparency International estimates there is at least 1.5 billion euros worth of Kremlin linked property owned in the United Kingdom. Transparency Measures Must Be Fast-Tracked To Kick-Start Dirty Money Crackdown, Transparency International UK (Feb. 22, 2022), https://www.transparency.org.uk/russia-sanctions-UK-latest-news-property-dirty-money-suspect-wealth (last accessed Mar. 24, 2022).
- [27] See Pearlroth, supra note 25, at 37.
- [28] Id. at 36.
- [29] Id. at 38.
- [30] Id. at 16.
- [31] Id.; Code of Crimes against International Law, as last amended by Article 1 of the Act of 22 December 2016, https://www.gesetze-im-internet.de/englisch_vstgb/englisch_vstgb.html, (Ger.) (last accessed Mar. 24, 2022). German law also criminalizes the waging of “a war of aggression or… any other act of aggression which… constitutes a manifest violation of the Charter of the United Nations.” Id. at Sec. 13. However, this provision only applies when “the perpetrator is German or if the offence is directed against the Federal Republic of Germany.” Id. at Sec. 1.
- [32] Id. German law also allows for criminal jurisdiction where defendant acquires German citizenship or, is a foreigner apprehended in Germany absent ability to extradite for trial. Id.
- [33] Although Putin has no overseas assets on paper, it is widely speculated that he holds assets all over the world through trusts and his close circle. See Samantha Subramanian, How Can the EU Freeze Assets That Putin Doesn’t Officially Own, Quartz (last updated Mar. 8, 2022), https://qz.com/2133734/what-overseas-assets-does-vladimir-putin-own/ (last accessed Mar. 25, 2022).
- [34] Universal Jurisdiction: A Preliminary Survey of Legislation Around the World – 2012 Update, Amnesty International (Oct. 9, 2012), https://www.amnesty.org/en/documents/ior53/019/2012/en/ (last accessed Mar. 24, 2022).
- [35] Statement By Professor Przemyslaw Saganek, Adviser to the Ministry of Foreign Affairs of The Republic of Poland (Oct. 11, 2016), https://www.un.org/en/ga/sixth/71/pdfs/statements/universal_jurisdiction/poland.pdf (last accessed Mar. 24, 2022).
- [36] Id.
- [37] Id.
- [38] See Dominic Casciani, Economic Crime Act: What Is It and Will It Find Putin’s Loot?, BBC (Mar. 8, 2022), https://www.bbc.com/news/uk-60579997 (last accessed Mar. 24, 2022).
- [39] Criminal Code of Romania at Art. 11.
- [40] Romanian law criminalizes war crimes against persons, property and other rights, humanitarian operations and insignia, and prohibits use of forbidden methods and means in combat operations. Id. at Art. 440-44.
- [41] Id. at Art. 438.
- [42] Id. at Art. 439.
- [43] Id. at Art. 12.
The Russian Federation, President Putin and the Russian Military are Financially Liable to Ukraine and Its People for All Damages Suffered as a Result of War Crimes, Crimes Against Humanity and Other Human Rights Violations
By Charles H. Camp, Kiran Nasir Gore and Lilia Chu
The ongoing crisis prevents the Ukrainian public from accessing judicial remedies in Ukraine or Russia for the unspeakable and horrific war crimes, crimes against humanity and other serious international human rights violations they face. But this does not mean redress is not possible. Under international law, these crimes amount to jus cogens offenses – the international community universally condemns them and has a general interest in preventing their perpetuation. These jus cogens violations are thus suitable not only for criminal prosecution, but also civil claims seeking monetary damages in the courts of other States under universal jurisdiction. Here, we evaluate the viability of civil claims in the courts of four select jurisdictions, the United Kingdom, Germany, Poland, and Romania, to assess their suitability as venues to provide monetary damages for civil claims by Ukrainians against Russia, President Putin, and Russian military leaders.
Introduction
It has been one month since the Russian Federation launched its war in Ukraine. Without a doubt, the war has already devastated Ukraine’s civilian population. In the past few weeks alone, it is estimated that there have been more than 2,421 civilian casualties. Most of these casualties were caused by explosive weapons with a wide impact area, including shelling from heavy artillery and multiple-launch rocket systems, and missile and air strikes.[1] Such extreme disruption on civilian life has broad impacts: collectively, all national attention and resources have turned to ensure the preservation of life and territorial integrity. In parallel, other public services and infrastructure, such as schools and courts, are no longer functioning and are not anticipated to return to normal operations anytime soon.
But the lack of an operational judicial system does not mean that the Ukrainian public can be denied justice. In fact, justice must immediately be sought against Russia, President Putin, and Russian military leaders for their ongoing unspeakable and horrific war crimes, crimes against humanity and other serious international human rights violations. Since Ukrainian citizens obviously cannot seek justice for these harms in either Ukrainian or Russian courts, it is vital that other States provide judicial forums for Ukraine and its people to seek monetary damages for such crimes and violations.
This article contextualizes the crisis in Ukraine and Russia’s ongoing military invention as violations of international law. Next, it provides the nexus between universal jurisdiction and jus cogens violations. It then evaluates the viability of jus cogens claims in the courts of four jurisdictions that recognize universal jurisdiction, the United Kingdom, Germany, Poland, and Romania, to assess their suitability as venues to provide monetary redress to Ukrainian civilians.
Russian Actions in Ukraine
The fact that violations and crimes are being committed cannot be doubted. Russia’s invasion of Ukraine breaches Articles 2(3) and 2(4) of the United Nations Charter. Russia has challenged the sovereignty of a nation with the unprovoked use of force which has resulted in a severe humanitarian crisis.[2] On March 2, 2022, the UN General Assembly expressed their “grave concern at reports of attacks on civilian facilities such as residences, schools[,] and hospitals, and of civilian casualties, including women, older persons, persons with disabilities, and children” and recognized that the damage being caused by Russia’s military actions is “on a scale that the international community has not seen in Europe in decades and that urgent action is needed to save this generation from the scourge of war.”[3] Additionally, the General Assembly expressed their “grave concern” regarding the “deteriorating humanitarian situation in and around Ukraine.”
Meanwhile, Ukraine has presented claims against Russia to the International Court of Justice (ICJ), where it requested an urgent ruling on Russia’s unsupported claims that Ukrainian forces were committing genocide in Russian-backed enclaves in Luhansk and Donetsk, regions in eastern Ukraine, as a justification for the attack.[4] The ICJ quickly ruled through a March 16, 2022 provisional order noting that Russia should “immediately suspend” its invasion of Ukraine because the ICJ had not seen any evidence to support the Kremlin’s alleged justification for the war.[5] This decision negates Putin’s false invocation of “self defence,” premised on an alleged violation of Article I of the Convention on the Prevention and Punishment of the Crime of Genocide, as justification for use of force against Ukraine.[6]
In delivering the ruling, Joan Donoghue, President of the ICJ, particularly highlighted the portion of the ruling that noted “Russia’s aggression has resulted in numerous civilian deaths and injuries… significant material damage, including the destruction of buildings and infrastructure… creating increasingly difficult living conditions for the civilian population. Many persons have no access to the most basic foodstuffs, potable water, electricity, essentials medicines of heating.”[7] There is no question that Russia has imposed irreparable devastation upon the Ukrainian people.
Even Alain Pellet, a world-renowned international law expert and former counsel for Russia resigned from representing Russia entirely stating “lawyers can defend more or less questionable causes. But it has become impossible to represent in forums dedicated to the application of the law a country that so cynically despises it.”[8] Along these lines, several States, as well as the International Criminal Court, have opened investigations into Russia’s war crimes and crimes against humanity in Ukraine.[9]
Jus Cogens Violations and the Search for Jurisdiction
The nexus between jus cogens violations and the current crisis in Ukraine is clear. Modern international law recognizes jus cogens norms as those from which States may not deviate.[10] Jus cogens offenses are offenses that are universally condemned and that the international community has a general interest in preventing.[11] Since World War II, genocide and war crimes have been widely accepted to as subject to universal jurisdiction.[12] As outlined above, the offenses being committed by Russia in Ukraine are massive impacting civilian lives in violation of the UN Charter and international law and are so egregious they are being investigated as war crimes.
Meanwhile, universal jurisdiction empowers States to assert jurisdiction over other States and individuals committing jus cogens violations even when the offenses do not involve the forum State.[13] This principle was established centuries ago. In the early 1600s, legal scholars adopted “the idea that certain kinds of crimes should be subject to the jurisdiction of any court in the world, no matter where they were committed by or by whom.”[14]
Victims of jus cogens violations who wish to seek redress against their aggressors, unfortunately, often face sovereign immunity obstacles.[15] Modern international law “distinguishes between the public and private acts of a state and generally accords immunity to a foreign sovereign defendant only where its public acts are at issue.”[16] This is because a State’s sovereignty is not encroached upon by limitations placed upon a State actor’s private acts. Further, the international community has recognized that individuals, even State officials acting in their official capacities including heads of State, can be held criminally responsible for international crimes.[17] The general view is that “immunity is an unjust bar to remedies for violations of international law.”[18]
To address this gap, States have employed universal jurisdiction to address jus cogens violations.[19] This is merely a permissive approach that is not available in or endorsed by all States.[20] Fortunately, Austria, Belgium, Denmark, France, Germany, Luxembourg, the Netherlands, Spain, Poland, Romania, the United Kingdom, and other Commonwealth countries, including Australia, have each permitted legal proceedings on the basis of universal jurisdiction for jus cogens violations.[21] In contrast, to date, the United States has declined to exercise universal jurisdiction over jus cogens violations.[22]
Enforcement in States with Universal Jurisdiction
The United Kingdom, Germany, Poland, and Romania each recognize universal jurisdiction and their courts may be favorable to claims by Ukrainians for jus cogens violations. The legal framework of each is discussed below in turn.
United Kingdom
The United Kingdom exercises universal jurisdiction over certain war crimes, torture and hostage taking.[23] UK courts allow “anyone” to apply for an arrest warrant in their courts.[24] However, while UK police are able to investigate such claims under universal jurisdiction regardless of where the defendant is located, the case may only proceed to trial if the accused is found present.[25] In the case of Russia’s war crimes against Ukraine, there is no question that Russia itself maintains a presence in the United Kingdom.[26] However, prosecuting a successful claim against Putin and Russian military leaders may be more challenging if these individuals are not present in the United Kingdom.[27] UK courts allow victims to recover for personal injury, loss or damage in a criminal prosecution.[28]
While UK courts recognize that sovereign immunity applies to acting heads of states, they do not recognize such immunity for acts carried out in a private capacity by former heads of state – a detail to bear in mind should Putin’s position in the Russian government change in the future.[29] Moreover, as a policy matter, the current, unprecedented jus cogens violations being directed by Putin for his own selfish reasons, and clearly not for the benefit of Russia or its people, requires States to revisit their prior rulings that immunized acting heads of state from violations of international law, including jus cogens violations.
Germany
Germany permits universal jurisdiction for claims arising from war crimes, crimes against humanity, and genocide.[30] Section 1 of the German Code of Crimes Against International Law expressly states “[t]his Act shall apply to all criminal offences against international law designated under the Act, to offenses [such as genocide, crimes against humanity, war crimes, war crimes against persons, property and other rights, humanitarian operations and emblems, and war crimes consisting in the use of prohibited methods and means of warfare] even when the offence was committed abroad and bears no relation to Germany.”[31]
Victims may recover in civil proceedings from defendants who either have a residence or assets located in Germany.[32] Such presence is likely given the enormous wealth and financial presence throughout Europe of Russia and other Russian oligarchs – something that has starkly come into relief given the latest round of sanctions and news concerning their enforcement.[33]
Poland
Poland expressly permits extraterritorial jurisdiction over war crimes, crimes against humanity, genocide, torture, and other jus cogens violations through universal jurisdiction.[34] The perpetrator must be present in Poland for the Polish courts to exercise their jurisdiction. Specifically, Article 113 of the Polish Penal Code states that “regardless of the law operating at the site of the committed offence, Polish penal law shall apply… to any foreigner facing extradition when they committed an offence abroad, in circumstances where Poland is obliged to prosecute the crime under international conventions.”[35] Article 113 covers crimes that Poland is obligated to prosecute under international treaties, and crimes that are defined in the Statue of the International Criminal Court.[36] Importantly, in addition to criminal jurisdiction, civil claims are permitted to be filed as “an adjunct to criminal prosecutions” in these situations.[37]
It is possible that Russia, Putin, and/or Russian military leaders could be considered “present” in Poland through numerous contacts with its neighbor.[38] However, this is a matter that must be investigated more thoroughly to be substantiated.
Romania
Romania permits extraterritorial jurisdiction over war crimes, genocide, and crimes against humanity based on universal jurisdiction. Specifically, Article 11 of the Romanian Criminal Code applies to offenses by “a foreign citizen or a stateless person who is located voluntarily on Romanian territory” if “an offense was committed that the Romanian State has undertaken to suppress on the basis of an international treaty, irrespective of whether it is stipulated by the criminal law of the State on whose territory it was committed.”[39] Romanian criminal law criminalizes and defines war crimes,[40] genocide,[41] and crimes against humanity.[42]
Romanian law expressly excludes “offenses committed by diplomatic representatives of foreign States” and it is unclear whether civil claims may be brought concurrently to a criminal prosecution.[43] However, this exception does not apply – it would plainly be inappropriate to argue that Putin and/or the Russian military leaders carrying out jus cogens violations in Ukraine are “diplomatic representatives” of Russia. This opens the door for Ukrainians to seek money damages against Russia, Putin and/or Russian military leaders for their aggressive acts.
Conclusion
The World is witnessing horrific devastation, war crimes, and crimes against humanity directed by Russia against all walks of life – including babies, pregnant women, children, the sick, and the elderly – as well as their homes and businesses in Ukraine for no legitimate reason other than those existing in Putin’s imagination. These acts unequivocally qualify as jus cogens violations.
Universal jurisdiction exists in numerous countries, including the several mentioned in this article, which could provide Ukrainian people with solid forums in which to seek monetary compensation on a scale that has the potential to bankrupt Russia, Putin, and the characters carrying out his criminal instructions.
About the Authors
Charles H. Camp is an international lawyer with over thirty years of experience representing foreign and domestic clients in international litigation, arbitration, negotiation, and international debt recovery. In 2001, Mr. Camp opened the Law Offices of Charles H. Camp, P.C. in Washington, D.C. to focus on effective, personalized representation in complex, international matters. Mr. Camp teaches international negotiations at the George Washington University Law School.
Kiran Nasir Gore is Counsel at the Law Offices of Charles H. Camp, P.C. She advocates before U.S. courts, commercial and investment arbitration tribunals, and investigative authorities. She has special expertise in matters of public international law and international dispute resolution. Kiran also draws on her professional experiences as an educator at the George Washington University Law School and New York University’s Global Study Center in Washington, D.C.
Lilia Chu is a Law Clerk at the Law Offices of Charles H. Camp, P.C. She graduated from New York University in 2017 and is currently pursuing a Juris Doctorate at George Washington University Law School. She is a member of The George Washington International Law Review and former Deputy Moderator in Chief of GW’s International Law and Policy Brief.
References