It happened a few weeks after Russia’s full-scale war with Ukraine began in February 2022, when Russian troops occupied a village near Kyiv: Two Russian soldiers were forced to enter the home of a Ukrainian family. There, they shot the husband and raped the wife several times. She and her son survived and managed to flee to Germany.
This is not an event. Since the start of the war in Ukraine, there have been increasing reports of sexual violence against Ukrainian civilians – women, children, and men – by the Russian army.
Since January 2023, Ukrainian state prosecutors have launched investigations into 155 cases. Pramila Patten, United Nations (UN) Special Representative on Sexual Violence in Conflict, says that these figures from Kyiv are “the tip of the iceberg” because these types of crimes often go unreported.
German and Ukrainian lawyers are working together
While none of the perpetrators or their superiors have been caught, investigations by the Ukrainian authorities are ongoing, and a trial has been launched against one of the alleged perpetrators in absentia.
Lawyers from the human rights organization the European Center for Constitutional and Human Rights (ECCHR) and their Ukrainian partner organization Ukrainian Legal Advisory Group (ULAG) jointly filed criminal charges against the German lawyer. In doing so, they want to hold accountable not only the two perpetrators but also their superiors, two high-ranking commanders.
Andreas Schüller from the EECHR, who is one of the lawyers in the case, explained that there are loopholes in the Ukrainian law. First, this crime against humanity is not listed as a punishable offense. In addition, Ukrainian law does not recognize the concept of command responsibility. “That means that superiors are not responsible for international crimes committed by a subordinate, even if they knew about the crimes, or should have known, and still did not stop them,” said Schüller the DW.
Therefore, the Ukrainian judiciary can investigate two soldiers accused of murder and rape. However, it was difficult to bring their commanders before the court. The International Criminal Court, which is also conducting investigations in Ukraine, is likely to point to some specific cases as examples.
Recently, an arrest warrant was also issued against Russian President Vladimir Putin and a member of his cabinet, accused of kidnapping Ukrainian children from Russian-held territories.
Between the ordinary frontline soldiers and the top leaders, there is a “grey area” for accused criminals whose positions lie in the mid- to high-level. This is exactly where public prosecutors from third countries are called: “The idea is for them to get arrest warrants,” says Schüller, “so that when people are caught, they can be tried in Germany or in another third country.”
War criminals before German courts
According to Alexander Schwarz of Amnesty International, an expert in international law, Germany has become a leader in this regard. The cases brought in Germany against the perpetrators of Bashar al-Assad’s regime in Syria, for example, or the judgments related to the genocide of the Yazidis, show that Germany is already facing serious challenges. crime that actually belongs before the international court. In the case of Ukraine, the German judiciary conducted parallel investigations during the conflict.
“This is a big step forward. We have always said that the future of international criminal law is in the courts of individual countries,” Schwarz said. “Meanwhile, there are countries like Germany that have such efficient law enforcement mechanisms that they are almost more efficient than international courts.” Therefore, this case ended up before the German court.
It certainly takes a lot of courage for the victims of these crimes to face the sad memories in court again, especially in a foreign country. Despite this, the Ukrainian plaintiff wants to continue. He and his attorneys hope this case sets a precedent. “It is important for us to ensure that the issue of sexual violence is brought to light, then it is expected to become something that officials focus on for investigation,” said Andreas Schüller from the EECHR. In the past, this issue was often ignored.
Will the survivors face their tormentors in court one day? This is not possible while the accused remains in Russia. However, in international law criminal cases do not end. “You never know how the world is changing and whether the alleged offenders may travel one day,” Schüller said. “We have been thinking for a long time and have already laid a foundation.”
This article was originally written in German.
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