Some human rights violations are so atrocious that they affect us all, no matter who the victims are, no matter who the perpetrators are. Their cruelty exceeds any acceptable justification and represents an attack on the very essence of shared humanity. They move or should move the entire international community.
That is why these gross violations of human rights have been classified as crimes under international criminal law: war crimes, crimes against humanity, genocide, torture, extrajudicial executions, enforced disappearances and also certain acts of violence against women. International law prohibits these acts, but it also establishes that they must be criminally prosecuted.
The images that have reached us these days from Bucha and other towns in Ukraine put a face to these crimes, a face to the victims. Sadly, the Ukrainian people are not the only ones who have been affected in recent years. During the first four months of the year, bombs have been dropped on other cities worldwide, massacres have been discovered in other countries, and the trickle of people forced to flee their villages because of violence is constant on almost every continent. This raises many questions about the application of international criminal law and raises many concerns about its future.
If all these acts are prohibited, how are they continue to be perpetrated on such a large scale without repercussions for those who give the orders and those who carry them out? Is there any way to obtain justice? Violating the most basic principles of humanitarian law as blatantly and massively as is being done in Ukraine cannot go unpunished. To let these crimes go with impunity would be a devastating blow to the existing international criminal justice system, a system with great potential that needs to be given more strength and resources. If the war crimes, crimes against humanity and genocides of the last decades had been prosecuted more vigorously, then the victimizers would probably not feel so strongly that in war, everything goes and that excess does not entail consequences. Would the Bucha massacres have occurred if the Russian bombings against civilians in Aleppo had been firmly prosecuted?
We need solid mechanisms against impunity. And not only to hold accountable the guilty: these mechanisms must contribute to preventing the repetition of these crimes and guaranteeing victims such fundamental rights as access to truth, justice and reparation.
And what are these mechanisms? The first ones should always be the domestic judicial systems of the affected countries. Now, trying those responsible for these crimes through the ordinary channels of justice can be very complicated, especially if these people are in positions of power or if the local judicial system is inoperative due to a lack of resources, jurisdiction or independence. Therefore, accountability also requires cooperation and international criminal justice mechanisms that reach were ordinary domestic courts cannot.
On certain occasions, special international or hybrid courts have been created with a limited temporal and territorial mandate: the International Criminal Tribunals for the former Yugoslavia or Rwanda are the best-known cases, but bodies with particular jurisdiction have also been created for Cambodia, Sierra Leone or Lebanon, for example. Mechanisms with a relative level of success have contributed to creating jurisprudence, reinforcing the idea that there can be no escape for those most responsible for international crimes and consolidating the concept of victims’ rights.
Additionally, the Rome Statute of 1998, which created the International Criminal Court (ICC), provided us with a permanent international tribunal with jurisdiction to prosecute “the most serious crimes of international significance” defined in its Statute (genocide, crimes against humanity, war crimes, and, more recently, crimes of aggression) following a series of principles also established in the same Statute. However, its jurisdiction is limited to crimes committed by a person who is a national of a State Party, in the territory of a State Party or in a state that has accepted the jurisdiction of the Court. It may also prosecute crimes committed in situations referred to by the United Nations Security Council (with the approval of the five permanent members). As of today, 123 countries have recognized the jurisdiction of the ICC, but the fact significant actors such as the United States, China, Russia, Israel and Saudi Arabia have not only refused to join. Still, they have also made efforts to discredit it, significantly weakening the universal character of what was meant to be a global consensus against impunity.
Right now, the ICC or some other ad hoc judicial mechanism are not ruled out as a way to seek accountability and remedy for the crimes committed in Ukraine. But these are not the only avenues available to the international community to deal with war crimes. In fact, international law establishes that all states have a complimentary obligation to prosecute the most serious crimes. Under the principle of universal jurisdiction, states have the power – and in some cases, the responsibility – to investigate serious human rights violations committed in other countries regardless of the nationality of the perpetrators and their victims.
For several years, Spain was a courageous and pioneering country in universal jurisdiction, giving rise to investigations of gross human rights violations in Western Sahara, Rwanda, Guatemala, Chile, Argentina and even China.
But, in 2014, the fast-track reform of Article 23.4 of the Organic Law of the Judiciary put an end to this possibility. This unfortunate setback was contrary to any commitment to international criminal law and the victims of gross human rights violations.
Now that these gross violations continue to be perpetrated all over the planet, and even a few miles away from home, against people and territories that we feel close to, we must call on the international community to reaffirm itself forcefully against impunity. International criminal courts are one way – with their limitations – but states’ commitment at the national level is equally effective and necessary. The more countries recognize extraterritorial jurisdiction to prosecute gross violations of human rights, the fewer chances criminals will have of escaping justice. The trials in France and Germany against people who have committed severe crimes in Syria are a clear example.
There are many ways to support victims. European governments have had little hesitation in sending arms regarding the war in Ukraine even though it is a path fraught with pitfalls, inconsistencies, and opacities. Taking in the victims and granting them refuge when they flee from violence is another way of showing solidarity, both supportive and imperative. Providing material aid to rebuild the country will soon become another necessity. It is also the responsibility of the international community to investigate the serious crimes that are undoubtedly being committed and guarantee the victims their rights to truth, justice, reparation and guarantees of non-repetition.
Although the Spanish Attorney General has already announced the opening of proceedings to investigate crimes committed in Ukraine, Spain currently does not have sufficient authority to do so after invalidating it with the deactivation of universal jurisdiction. Its scope of action would be limited to acts committed by Spanish nationals or residents or persons of other nationalities in the country and are not extradited.
The Russian invasion of Ukraine has conveniently given impetus to reclaiming jurisdiction in the area of universal justice.
We are facing an excellent opportunity to redress the 2014 reform and fully rehabilitate the principle of universal jurisdiction. Out of commitment to human rights and the victims seeking justice, whoever they may be, we cannot let this opportunity pass us by.
Sabina Puig, head of the “Violence outside the non-war settings” area of the ICIP.