(CN) — Last month, the Clooney Foundation for Justice turned over a dossier to prosecutors in Austria, detailing the mistreatment it says two Ukrainian women experienced at the hands of Russian soldiers.
In a suburb of Kyiv in 2022, the organization said, Russian soldiers kidnapped and repeatedly sexually abused Olena and Olha before the pair managed to escape. (The foundation uses pseudonyms to protect the women’s privacy.) Olha, whose husband was killed while trying to protect her, ultimately fled to Austria. Both women now hope the country’s judicial system can help them find some semblance of justice.
The women’s case comes as Ukrainians increasingly look to courts abroad for accountability for crimes committed by Russian forces. Under a legal principle known as universal jurisdiction, certain crimes — including genocide, crimes against humanity, war crimes and torture — are so serious that offenders can be tried in any jurisdiction, regardless of where those crimes actually took place.
As the war continues, Ukraine itself is also investigating such crimes. According to the country’s prosecutor general, Russians have committed 133,000 war crimes in Ukraine since February 2022. Courts there have convicted 121 people, though mostly in absentia, and the country is holding 17 suspected or convicted war criminals in custody.
Those facing justice in Ukraine are mostly low-level offenders, foot soldiers whom Ukraine managed to capture during the conflict. At the other end, international bodies like the International Criminal Court are looking into high-level Russian officials, to date issuing six arrest warrants for top Kremlin officials including Russian President Vladimir Putin. Still, these inquiries have left a swath of mid-level Russian officials to fall through the cracks. They’re too minor for ICC scrutiny but too senior to be sent to the frontlines, where Ukraine could potentially capture and prosecute them.
Groups like the Clooney Foundation hope that universal jurisdiction might fill that gap. The organization was founded in 2016 by human rights lawyer Amal Clooney and her actor husband, George Clooney.
The Austrian case is the second investigation request that the nonprofit has backed. In 2023, the group also filed three cases with German prosecutors representing some 16 victims of the Russian invasion and their families.
“We are focused almost exclusively on mid-to-high level commanders,” Anya Neistat, Legal Director at the Clooney Foundation, told Courthouse News. That includes cases like Olena’s and Olha’s, which have clear links to Russian higher-ups. On the night that soldiers kidnapped the women, the Clooney Foundation says their commander joined them in this war crime.
Finding the right jurisdiction
Most countries set limits on universal jurisdiction. The Netherlands, for example, requires that either the victim or perpetrator has Dutch nationality or that the perpetrator resides in the country.
Austria, on the other hand, permits cases to be brought whenever a victim resides in the country. It has fewer restrictions on gender and sexual-based crimes, allowing both Olena and Olha to pursue their cases there.
Germany has what’s known as absolute universal jurisdiction — meaning there's no limits on what cases it can investigate. That includes the trio of cases backed by the Clooney Foundation, which focus on widespread incidents of torture as well as missile attacks in Odessa.
Europe isn't the only continent handling these inquiries — nor are Russian forces the only ones facing scrutiny. Another man who says he was tortured by Russian forces has brought a case in Argentina, marking the first Ukrainian universal jurisdiction case to be opened outside of Europe.
Argentina is also looking into incidents from other conflicts as well. In 2021, the authorities there launched an investigation into crimes committed against the Rohingya minority group in Myanmar. Earlier this year, prosecutors issued arrest warrants for seven members of the country’s military regime.
Nonprofits focused on cases like these are studying which jurisdictions are most useful for executing arrest warrants. “We are trying to be flexible and creative,” said Daniil Ukhorskiy of Legal Action Worldwide, an international justice group. The organization has been looking into ways to bring cases in jurisdictions like Thailand or Indonesia, where Russians are likely to travel — and where there are existing extradition treaties.
Welcomed help
Given the sheer number of possible cases, even evidence collection is sometimes conducted by non-governmental organizations. In one of the German cases, the group Justice Rapid Response has helped find specialists to investigate international crimes, including a military expert to look into the missile attacks on Odessa.
The expert, who asked not to be named for security reasons, described to Courthouse News the methods for estimating where strikes had come from, as well as what weapons could have been used based on the blast damage. Such information may be crucial for prosecutors as they continue to sort out which attacks constitute war crimes.
For its part, Ukraine has welcomed this support. The country has thanked Lithuania, Germany and others as they’ve opened investigations. Ukraine has also shared evidence with a joint investigative team headquartered at Eurojust, the European Union’s judicial coordination agency.
Ultimately, the vast majority of cases involving Russian war crimes in Ukraine will likely be tried there. This has been true in the aftermath of other conflicts, including the Balkan Wars of the 1990s. In Serbia alone, prosecutors opened 2,530 cases. In comparison, the International Criminal Tribunal for the Former Yugoslavia ultimately indicted just 167 people.
Trials against perpetrators in that conflict are still ongoing today, 20 years after the end of hostilities. But while these cases can be complex and fraught and justice will be slow and piecemeal, NGOs are confident cases against Russians and others will bring some measure of justice for victims.
Ukraine, which currently has its hands full, appreciates the work. “We have other things to do,” the country’s prosecutor general Andriy Kostin told Courthouse News last month in an interview at his office in Kyiv. “We are at war.”
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