9 March 2022
by Pavel Chikov, with Kirill Koroteev
Source: Pavel Chikov, Telegram
Spain and Germany have launched criminal investigations into the actions of the Russian army in Ukraine
On 7 March Spanish Attorney General Dolores Delgado launched an investigation into “acts of an unjust war and other violations of international law.” This was based on the authorities given by the Organic Law on the Judiciary, which permits investigations into a range of crimes committed by both Spaniards and foreigners outside the national territory. The investigation has been entrusted to the Chief Prosecutor of the National Court, Jesús Alonso. On 8 March the German Federal Prosecutor’s Office in Karlsruhe initiated an investigation into possible Russian war crimes in Ukraine. The Prosecutor General at the German Supreme Court Peter Frank opened a so-called “structural investigation”. Media sources claim the federal prosecutor’s office has specific evidence indicating war crimes have already been committed in Ukraine. In addition, there are fears that the number of such crimes will grow.
With the help of Kirill Koroteev, head of international legal practice at Agora, we consider the powers of foreign law enforcement agencies.
For the most serious violations of international law – torture, war crimes, crimes against humanity – the courts of many countries can try foreigners who have committed crimes outside those states where they are on trial, and these crimes need not even necessarily to have been committed against the citizens of those states.
This principle is called ‘universal jurisdiction’ and is well known in many European countries, including Russia (the Investigative Committee of Russia has repeatedly investigated alleged crimes committed by Ukrainian citizens in Ukraine against other Ukrainian citizens).
In such trials, many legal and practical problems can develop. Even if investigators and prosecutors are able to gain access to evidence – not only to witnesses and victims, but also to crime scenes, and to material evidence – it is unlikely that they will be able to detain suspects. Of course, this reduces the possibilities for foreign travel of potential defendants, but overseas travel is hardly available to them anyway.
The Spanish investigation will also run into a problem of Spanish law: the prosecution of foreigners for crimes outside Spain is possible from 2014 only if the accused lives in Spain. Prosecutors therefore say they are gathering available evidence that they will be willing to share “in any type of legal proceedings,” including the ongoing investigation of the International Criminal Court (ICC).
In Germany, the powers of the prosecutor’s office and the courts are much broader – crimes against humanity, war crimes and genocide committed anywhere in the world can be prosecuted. Syrians have recently been convicted of crimes against civilians in Syria, but the authorities had to make great efforts to ensure the accused found themselves in the hands of German law enforcement authorities.
However, one way or another, the authorities of these two European states have already begun criminal investigations into the actions of the Russian armed forces in Ukraine. The results of these investigations can then be used as evidence both in national courts and in international bodies, be it the ICC or UN structures.
Translated by Graham Jones