(Ця стаття також доступна українською мовою тут.)

At a time of meet-the-moment creativity about international and regional tribunals that might be established to prosecute crimes of aggression in Ukraine, commentators’ assessments of state-level options have been notably less robust.  In recent accounts, investigations by domestic prosecutors outside of Ukraine, such as those now underway in Poland and Lithuania, have been conceived as necessarily based on “universal jurisdiction.”

To be sure, some states’ laws allow prosecutions for aggression based on universal jurisdiction. But this principle hardly exhausts legal grounds for aggression trials in countries outside Ukraine.  Such prosecutions could also quite easily be based on Ukraine’s delegation of its own grounds of criminal jurisdiction through bilateral or multilateral agreement.

It is widely accepted that states can delegate the criminal jurisdiction they possess, whether to other states or to an international court (p. 32). In fact, states are parties to “many treaties” through which they “delegate their criminal jurisdiction to other states,” Dapo Akande has noted.

Just as Ukraine could delegate its territorial jurisdiction to a built-for-purpose aggression tribunal, as some have suggested, there is nothing to prevent it from delegating that same jurisdiction to one or more states willing to prosecute the crime of aggression on its behalf or in cooperation with Ukrainian authorities. Ukraine can also delegate the passive personality jurisdiction that enables it to punish crimes committed by foreign nationals against Ukrainian citizens. Once controversial, passive personality jurisdiction “today meets with relatively little opposition” (para. 47), at least with respect to crimes of international concern.

Finally, Ukraine can delegate the jurisdiction it possesses pursuant to the protective principle, which provides a natural fit for crimes undertaken in Russia that involve planning and initiating a war against Ukraine. This principle enables states to prosecute “crimes committed by foreign nationals outside of their territory which threaten their vital interests;” thus, as Matthew Garrod writes, “the principle’s rationale is … based on the necessity to protect vital State interests, including sovereignty, security, political independence and governmental functions” (p. 766).

It is necessary to ask, though, why it matters whether foreign states contemplating aggression cases rely on Ukraine’s delegated territorial, passive personality and/or protective jurisdiction rather than (solely) on universal jurisdiction.

Although I believe this concern unwarranted, some doubt whether the crime of aggression is encompassed in universal jurisdiction. In the face of any uncertainty, Ukraine’s delegation of its well-established territorial, passive personality, or protective jurisdiction could neutralize any hesitation other states may have about prosecuting aggression cases arising from Russia’s invasion of Ukraine.

To be sure, other legal issues, including the immunities of potential suspects, could arise in national prosecutions.  Indeed, many commentators and political actors now support proposals to create an international court with jurisdiction over aggression in part (though not solely) because such a court could “pierce the veil of head of state immunity.”

Even so, domestic prosecutors well-placed to gather real-time evidence should be confident they have solid jurisdictional grounds to open an investigation. Poland’s efforts, to take one example, suggest why this matters.  As of March 16, the Polish prosecutor’s office had already interviewed 300 witnesses, including some in a position to provide direct evidence of Russian crimes in Ukraine.  Securing this evidence quickly is vital to future cases, and not just before Polish courts.

The Prosecutor of the International Criminal Court (ICC), who moved swiftly to investigate atrocity crimes but cannot investigate Russians’ aggression, is coordinating with Polish prosecutors to ensure access to evidence for his own prosecutions.  Should an international or regional aggression tribunal be established to complement the ICC’s work, its prosecutor would likewise benefit from evidence gathered by state prosecutors before it degrades or disappears.

In what may be a harbinger of wider cooperation and formal agreements between the Zelenskyy administration and other states, Lithuania has already joined with Poland and Ukraine to establish a Joint Investigative Team, as the Public Prosecutor’s Office of Poland has described:

A representative of the Polish prosecutor’s office in Eurojust actively participates in the work aimed at establishing a joint international investigation team (JIT) on the aggressive war and crimes committed by the armed forces of the Russian Federation on the territory of Ukraine. The first steps in this direction were taken on March 2, 2022, when an extraordinary meeting of representatives of all countries participating in Eurojust took place in the form of a videoconference, with the participation of the Minister of Justice – Prosecutor General Zbigniew Ziobro, the Prosecutor General of Ukraine – Ms Iryna Wenediktova and the Prosecutor General of Lithuania – Mrs. Nidy Grunskiene. During the meeting, on the initiative of Ukraine, Poland and Lithuania, a decision was made to establish a joint international investigative team within the framework of investigations initiated in these three countries.

This is not a form of universal jurisdiction in which one state asserts its criminal prosecutorial power over a territorial state’s consent. Nor is it a case of “pooled universal jurisdiction” when Ukraine itself is part of the agreement. Depending on what arrangements Ukraine forges with its partners, however, this could form the nucleus of a brand of criminal authority best described as “delegated jurisdiction.”

None of this is to suggest domestic prosecutions should be undertaken instead of trials before international or regional courts—far from it. The point instead is that state prosecutors can make a distinct and important contribution in ensuring accountability for Russia’s “brutal war on Ukraine.” To this end, they should understand the full extent of their authority to do so.


Photo credit: Ukrainian President Volodymyr Zelensky (C) and his counterparts from Lithuania Gitanas Nauseda (R) and Poland Andrzej Duda (L) hold a press conference following their talks in Kyiv on February 23, 2022. (Sergei Supinsky/AFP via Getty Images)