Ukraine: German judiciary takes on Russian war criminals

It happened a few weeks after Russia's war on Ukraine began in February 2022, when Russian troops occupied a village near Kyiv: Two Russian soldiers forced their way into the home of a Ukrainian family. There they shot the husband and raped the wife repeatedly. She and her son survived and managed to flee to Germany.

This is not a singular incident. Since the beginning of the war in Ukraine, there has been an increasing number of reports of sexual violence against Ukrainian civilians — women, children and men — by the Russian army.

As of January 2023, Ukrainian state prosecutors had launched investigations into 155 cases. Pramila Patten, the United Nations' Special Representative on Sexual Violence in Conflict, says these numbers from Kyiv are just "the tip of the iceberg" because these types of crimes often go unreported.

German and Ukrainian lawyers work together

While none of the perpetrators or their superiors have yet been arrested, investigations by the Ukrainian authorities are underway and a trial was launched against one of the alleged perpetrators in absentia. 

The lawyers from human rights organization, the European Center for Constitutional and Human Rights (ECCHR) and their Ukrainian partner organization, the Ukrainian Legal Advisory Group, have jointly filed a criminal case with Germany's attorney general. In doing so, they want to hold not only the two perpetrators but also their superiors, two high-ranking commanders, to account. 

Andreas Schüller from the ECCHR, who is one of the lawyers on the case, explained that there are loopholes in Ukrainian law. Firstly, 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 superiors are not held responsible for international crimes committed by a subordinate, even if they knew about the crimes or should have known about them, and still did not prevent them," Schüller told DW.

The Ukrainian judiciary could therefore investigate the two soldiers who are accused of murder and rape. However it would be difficult to bring their commanders before the court. The International Criminal Court, which is also conducting investigations in Ukraine, is likely to focus on a few specific cases as examples.

Recently an arrest warrant was also issued against Russian President Vladimir Putin and a member of his cabinet, who are 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 are ranked in the mid-to-high level. This is exactly where public prosecutors from third countries are called upon: "The idea is for them to obtain arrest warrants," Schüller said, "so that if people are caught, they can potentially be tried in Germany or another third country."

War criminals before German courts

According to Amnesty International's Alexander Schwarz, an expert on international law, Germany has become a frontrunner in this regard. The cases brought in Germany against perpetrators in Bashar Assad's regime in Syria, for example, or the verdicts in relation to the genocide of the Yazidis in Iraq, demonstrate that Germany has already dealt with serious crimes which actually belong before an international court. In the case of Ukraine, the German judiciary is carrying out parallel investigations during the conflict.

"That is a big step forward. We often say that the future of international criminal law lies in the courts of individual nations," Schwarz said. "In the meantime, there are countries such as Germany who have such efficient law enforcement mechanisms that they are almost more efficient than international courts." So this case ends up before a German court.

It takes a lot of courage for the victims of these crimes to face the traumatic memories again in court, especially in a foreign country. Despite this, the Ukrainian plaintiff wants to proceed. She and her lawyers hope that this case will set a precedent. "It is important to us to make sure that the issue of sexual violence is brought to light, then it will hopefully become something that officials focus on for investigation," Andreas Schüller from the EECHR said. In the past, this issue was all too often ignored.

Will the survivors face their tormentors in court one day? It is unlikely as long as the accused remain in Russia. However, in international criminal law charges do not expire. "You never know how the world will change and whether the alleged offenders may travel one day," Schüller said. "We are thinking long term and are already laying a foundation."

This article was originally written in German.

While you're here: Every Tuesday, DW editors round up what is happening in German politics and society. You can sign up here for the weekly email newsletter Berlin Briefing.