Introduction
The relationship between Russia and European institutions, such as the Council of Europe (CoE) and the European Convention on Human Rights (ECHR), was established in 1996 and 1998, respectively,Footnote 1 in the background of the dissolution of the Soviet Union. However, in the recent past, the relationship suffered setbacks, starting in 2015, in the aftermath of the Russian annexation of Crimea, when the State Duma, the lower chamber of the Russian parliament, requested the Russian Federation’s Constitutional Court to specify the role of European Court of Human Rights (ECtHR) judgments in the Russian legal order. The Russian Constitutional Court (RCC) ruled against the ECtHR, reasoning that such judgments should not contradict the Constitution of the Russian Federation. As long as the judgments of the ECtHR align with the Russian Constitution, they are applicable.Footnote 2
As a result, the seeds of separation were planted and then matured after Russia invaded Ukraine and annexed Ukrainian territories. The latter severely impacted victims and survivors of the illegal invasion, who were being tortured, killed, and forced to leave their cities and country. Russian citizens whose rights were historically violated had recourse available in the form of access to the ECtHR when domestic remedies were either insufficient or politically compromised, an approach that is no longer available.
Despite Russia and Europe having historical and geographical overlaps, they have recently grown distant. European public opinion of Russia is increasingly critical due to geopolitical realities, historical experiences, and civilizational differences.Footnote 3 It is noteworthy that Russia’s human rights protection framework is marred by restrictions on media freedom and civil society organizations, as well as the suppression of dissent.Footnote 4
The CoE has a vital role in protecting human rights and democratic values. The CoE’s expulsion of Russia in response to its aggression against Ukraine marks a watershed moment with far-reaching consequences, ranging from a lack of access to the ECtHR to the erosion of safeguards available in cases of rights violations. As the future of the relationship between Europe and Russia is at a crossroads with the removal of the res judicata authority of the ECtHR, Russia’s strong external threat has caused an overall increase in trust in European institutions. Indeed, Russian expulsion may result in a broader ideological rejection of international human rights standards, which will increasingly suppress dissent and may lead to more human rights violations that hinder the development of peaceful and inclusive societies.
Based on the foregoing, it is necessary to analyze the changes in the functioning of the CoE and ECtHR in the aftermath of the Russian expulsion. Simultaneously, the international legal order is undergoing a critical review of the capacity of the International Criminal Court (ICC) to examine the crime of aggression, especially in the context of Russia’s invasion of Ukraine. While jurisdictional limitations under Articles 15 bis and 15 ter of the Rome Statute pose obstacles, the global legal community has advocated for innovative mechanisms to ensure accountability for state leadership crimes, including proposals for a Special Tribunal for the Crime of Aggression.Footnote 5
In parallel, the war has had significant implications for ordinary Russian citizens, as a substantial number of Russians, particularly young men, have fled the country to avoid forced participation in the conflict.Footnote 6 Their legal status and vulnerability in host States, many of which are CoE members, present new challenges for the ECtHR and member States. These developments require rethinking the broader responsibility of European institutions and member States to uphold human rights for those escaping authoritarian regimes, provide access to justice for all, and build effective, accountable, and inclusive institutions at all levels to ensure peace and security. A possible solution can be found in EU nations undertaking national investigations through mutual partnerships against individuals who have committed atrocities of international concern, such as crimes against humanity or war crimes, based on the principle of international jurisdiction, to ensure accountability and reestablish international peace and security.
Regional Jurisdiction in Europe
At the end of World War II, the debate surrounding the establishment of European institutions to uphold the rule of law and democracy assumed significance in building inclusive societies.Footnote 7 The emphasis at that time was to prevent the recurrence of the devastation of war and the attendant horrendous crimes to guarantee respect for democracy and the rule of law at the regional level, ensuring peace and security. Since the two world wars originated in Europe, creating regional organizations to deal with peace, development, and human rights was viewed as highly needed and important for Europe and the world.
The CoE was established under the Statute of the CoE, also known as the Treaty of London, signed on May 5, 1949. It was inspired by the UN Universal Declaration of Human Rights, adopted in December 1948, which guided the Western European governments in creating the CoE. The ECHR was created by the CoE as a treaty to secure these basic rights for individuals within its member States. The ECHR was signed in 1950 and came into force in 1953, establishing a mechanism for individuals to challenge state actions violating their rights.Footnote 8 The founding Statute of the CoE set out three basic values to guide its work: democracy, human rights, and the rule of law.
To promote and protect human rights and policymaking, two European Communities on Coal and Steel and Tariffs were formed, which were the precursors of the EU.Footnote 9 To clarify the functions of these organs, the CoE and the EU signed and adopted a Memorandum of Understanding in 2007. Per this memorandum, the EU, while fulfilling its functions of developing standards in the field of human rights,Footnote 10 would refer to the norms drafted by the CoE and track the decisions and conclusions of the monitoring bodies established under the CoE’s mandate. However, such provisions would not restrict the EU from establishing a higher level of protection of human rights.
Despite the European Coal and Steel Community (ECSC) being in place, there was a need to enforce its associated treaties and conventions at the national level, which gave rise to the establishment of the European Court of Justice (ECJ) under the Treaty of Paris in 1952. In addition, the High Authority of the ECSC existed in 1954, and the ECJ, which was formerly known as the Court of Justice, had, through its case law in 1959, highlighted the need for a regional human rights court.Footnote 11
The ECtHR was established in January 1959 under Article 19 of the ECHR, when the Parliamentary Assembly of the CoE elected the Court’s first judges. It was set up on a full-time basis in 1998 under Protocol 11 of the ECHR. Undoubtedly, the ECtHR has proven to be a guiding light for Europe as a region. Through its case law, it has contributed to the development of human rights law and the principles of the rule of law and democracy in Europe, which has led to ensuring access to justice for all.Footnote 12 Thus, the ECHR bestows upon the ECtHR the responsibility to monitor the CoE member States’ compliance with the European Convention’s obligations and protocols.
The enthusiasm and support that the CoE enjoyed in its early years from the high-level political leadership was utilized not only to declare a commitment to human rights as already accomplished with the adoption of the UN’s Universal Declaration of Human Rights (UDHR), but also, importantly, the drafting of the ECHR, a charter of individual rights that contained a direct opportunity for individual citizens to challenge and file applications against their governments. This right has been one of the most distinguishing features of the right of individuals residing in Europe to bring claims against government actions before a judicial forum other than a State’s. A similar procedure was developed in 1966 under the UN, with the adoption of the International Covenant on Civil and Political Rights (ICCPR). By emphasizing the rights of individuals, the ICCPR was meant to transcend cultural bias in such a way that it became relevant to all, irrespective of national origin. Significantly, by protecting individuals, human rights do not diminish the group but merely ensure the protection of everyone within that group. Groups are best protected when and only when everyone within them is protected.
The individual’s right to petition a court is one of the repercussions of the Russian expulsion from the CoE and ECtHR, as the citizens of the Russian Federation have lost their right to challenge the Russian government and authorities’ actions.Footnote 13 This fact is substantiated by Article 1 of the ECHR, which obliges the High Contracting Parties to respect the rights and freedoms defined in Section I of the ECHR and to secure them for all individuals within their jurisdictions.
In the past, Greece was the only example of a country that withdrew its CoE membership—leaving in 1970 and rejoining in 1976.Footnote 14 Greece had launched an inter-State complaint against the United Kingdom (UK) over its practices in Cyprus, then a colony. The conflict erupted when Denmark, Norway, Sweden, and the Netherlands simultaneously filed inter-State complaints against the Greek colonels who were in power, alleging violations of the ECHR. Subsequently, the Greek colonels were held responsible for the same by the Consultative Assembly of the CoE (Case of Hornsby v. Greece ECE (Application no. 18357/91)). The latter recommended to the Committee of Ministers that Greece be suspended or expelled from the CoE, at the latest in the spring of 1969, if by then an acceptable parliamentary democracy had not been restored, a recommendation that triggered Greece’s withdrawal from the CoE.Footnote 15
In this context, the authors suggest that, by learning from past experiences, the European community should create a broad consensus through mutual partnerships to address Russia’s breach of international law by exerting pressure on the aggressor State. Indeed, the European community must ensure effective remedies by prosecuting individuals who commit war crimes, crimes against humanity, and genocide through the establishment of international jurisdiction under the Rome Statute as described below.
Russia’s Accession to the CoE and the ECtHR
In 1998, the Russian Federation, the successor to the USSR, became a member of the CoE. However, the CoE terminated Russia’s membership after twenty-four years in 2022 due to its military aggression against Ukraine. Although the ECHR entered into force for Russia in 1998, the presence of a Russian judge at the ECtHR in Strasbourg took time; in 2000, Justice Anatoly Kovler became the Court’s first Russian judge.Footnote 16
Interestingly, Russia was the only CoE member State that did not ratify Protocol No. 6 on the abolition of the death penalty, and it was credited for obstructing the passage of Protocol 14, which focused on improving the ECtHR’s effectiveness.Footnote 17 Russia’s conduct was always a matter of debate, whether it be the Chechen wars, the Russian-Georgian war, or the illegal annexation of Crimea, which was one of the most devastating military actions after the two world wars, resulting in a large-scale massacre and destruction accompanied by torture and forced disappearances. Consequently, Russia’s voting rights were briefly suspended in the CoE Parliamentary Assembly, and many individual complaints were filed before the ECtHR.Footnote 18
For the next few years, Russia complied with the ECHR, but its compliance was short-lived, as the five-day war between Russia and Georgia occurred in August 2008, becoming the first armed conflict between CoE members in the aftermath of the two world wars. Russia’s annexation of Crimea was based on the March 16, 2014, referendum on the independence of Crimea and the city of Sevastopol, which followed the resolution of the Supreme Council of the Autonomous Republic of Crimea, declaring independence from Ukraine and voting in favor of joining the Russian Federation.Footnote 19 On March 27, 2014, the UN General Assembly approved a resolution describing the Moscow-backed referendum that led to Russia’s annexation of Crimea as illegal.Footnote 20
As a result, the CoE Parliamentary Assembly condemned Russia’s recognition of South Ossetia and Abkhazia. The assembly adopted Resolution 1990 in 2014, which stated that Russia violated Ukraine’s sovereignty and territorial integrity, thus violating international law and creating a threat to stability and peace in Europe. Russia’s defiant conduct in violation of international law continues to be one of Europe’s most challenging developments in the post-World War II era, including the ongoing Russia–Ukraine crisis.
As discussed above, on February 28, 1998, the Russian Federation’s State Duma voted to ratify the ECHR, and the upper chamber of the Russian parliament, the Federation Council, approved the decision on March 13, 1998. Consequently, the Federal Law of the Russian Federation “On Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols to it” entered into force on March 30, 1998. The ECHR entered into force for Russia on November 1, 1998.Footnote 21 While submitting its instrument of ratification of the ECHR on May 5, 1998, Russia made two reservations related to Russia’s Criminal Procedural Code. These were allowed to an extent under Article 57 (earlier, Article 64) of the ECHR, addressing the situation when a law in force in a member State’s territory does not conform with an ECHR provision.
In line with its reservations, Russia agreed to abide by ECtHR judgments under Article 46 of the ECHR and to recognize the rights of individual applications under Article 34. Despite ratifying the aforementioned provisions, the ECtHR and the CoE have faced significant enforcement issues regarding Russia, including the ongoing crisis in Ukraine. Some of the related ECtHR cases include Anchugov and Gladkov v. Russia,Footnote 22 where the RCC found that the ECtHR’s judgment conflicted with the Russian Constitution and declared it non-executable domestically. In that case, the ECtHR held that Russia violated Article 3 of Protocol No. 1 of the ECHR because it did not allow convicted prisoners to vote in state elections, as Article 32 of the Russian Constitution invalidates the right of prisoners to vote or be elected. The RCC, in response to Anchugov and Gladkov, argued that the Constitution occupies the highest position in the Russian legal order. Therefore, it has precedence over Russia’s obligations under the ECHR and other international treaties. As a counter, the ECtHR disregarded the RCC’s judgment regarding its competence and held Russia liable for violating voting rights under Article 3 of Protocol No.1.
Membership and its Privileges
At this juncture, it is important to understand the relevance of CoE membership. To be recognized as a member, a country must meet a certain threshold in terms of compliance with the norms outlined in the ECHR. There are two basic requirements to qualify as a member: the nation must ratify the ECHR and also Protocol No. 6, which requires members to abolish the death penalty except in times of war. Upon accession, a State may enter into specific agreements listing targeted reforms to harmonize domestic legislation with the ECHR’s principles. The CoE Parliamentary Assembly monitors the new member through periodic assessments and political dialogue. Moreover, the Committee of Ministers supervises the implementation of ECtHR judgments, which interpret and apply the ECHR. These judgments are binding, and the CoE has the authority to exert diplomatic and legal pressure on States that fail to comply with the ECHR.Footnote 23
Historically, the CoE was the first European intergovernmental organization that admitted Eastern European States and the former Soviet republics, which expanded Europe’s ambit beyond traditionally defined borders and included the Caucasus region.Footnote 24 The reason behind such a liberal approach was to encourage new CoE members to comply with European human rights standards and to provide new entrants with the CoE’s prestige and association with human rights, pro-democratic values, the stability of institutions, and the rule of law. Further, being recognized as a CoE member has the added advantage of legitimizing new regimes and acting as a stepping stone for EU membership. Indeed, CoE membership symbolizes a political and civilizational choice that affirms liberal democratic values and a departure from authoritarian legacies. Aligning national laws with ECHR standards often entails constitutional amendments, judicial reforms, and the establishment of new institutional safeguards.
Russia’s expulsion from the CoE in 2022, following its invasion of Ukraine, is both symbolic and substantive. The act of expulsion emphasizes the organization’s obligations regarding state conduct and reaffirms that international law and human rights violations are incompatible with continued membership. Thus, CoE membership is far more than a formal status; it is a declaration of shared values and legal obligations. It represents a commitment to uphold human dignity, individual freedoms, and the rule of law. The compliance mechanisms, ranging from treaty obligations and judicial enforcement to political oversight, create several layers of accountability. In times of geopolitical fragmentation and authoritarian tendencies, the role of the CoE as a guardian of Europe’s values remains integral for promoting peaceful and inclusive societies. Specifically, Russia’s removal reinforces the enduring relevance of these foundational principles in maintaining international peace and security.
Impact of Expulsion on Russia and Beyond
The question accordingly arises regarding the implications of Russia’s expulsion from the CoE.
Although Russia’s accession to CoE membership occurred after the Soviet collapse, its roots harken back to July 1989 in Strasbourg when Mikhail Gorbachev, in a historic speech, expressed hope for a common European home.Footnote 25 Consequently, the Soviet Union was granted special guest status at the CoE’s Parliamentary Assembly in February 1990.Footnote 26
In May 1992, Russia formally applied for CoE membership, which required the country to have a pluralist parliamentary democracy and demonstrate respect for human rights and the rule of law under Article 3 of the CoE Statute. However, whether such conditions were in place in Russia was debatable, as the Parliamentary Assembly initially highlighted.Footnote 27 Notwithstanding its position, the Parliamentary Assembly eventually voted 164–35 in favor of Russia’s membership on January 25, 1996. The Committee of Ministers invited Russia to become a member on February 8, 1996, making it the thirty-ninth CoE member, based on the belief that integration is better than isolation, and cooperation is better than confrontation.
The primary reasons for the eventual acceptance of Russia’s membership were attributed to the earlier creation of the Commonwealth of Independent States and the signing of the EU’s Maastricht Treaty in February 1992, which gave a sense of urgency to the CoE’s decision-making. The CoE was pushed by history and pressured by other regional forces to act quickly, and the CoE was content to accept Russia as the successor to the Soviet Union.Footnote 28
The respect for human rights in Russia is closely connected with the character of the Russian national security system. Russia’s official state policy may impede the development of human rights, perceiving them as threats to state security.Footnote 29 This attitude regarding state security can be observed even amidst the ongoing war with Ukraine, which has triggered one of Europe’s most serious geopolitical crises since the end of the Cold War. As the war has progressed, the Russian government has turned to compulsory military service to sustain its armed forces.Footnote 30 This action has led to a significant outflow of young Russian men, many of whom have fled Russia to avoid forced participation in the war, which they considered to be an illegal and immoral conflict. Such a situation raises urgent questions about the responsibility of European institutions, such as the CoE, to uphold human rights and extend protection under international and regional legal regimes to ensure access to justice and maintain peace and security.
The situation of Russia’s young men manifests the risks the ECHR seeks to prevent, as these men have no recourse to appeal to the ECtHR. Those men who resist are often subject to criminal prosecution, arbitrary detention, and social exclusion. Legal avenues for such objections are severely restricted, with alternative civilian service rarely granted in practice. Russian authorities have criminalized anti-war expression under laws prohibiting the “discrediting” of the armed forces, contributing to an environment of fear and political repression.Footnote 31
In this environment, forcefully returning these Russian individuals to their country of origin would amount to refoulement, a violation of the principle that States must not return individuals to territories where they face threats to life or freedom. For many of these men, forced conscription may mean being sent to the war fronts with inadequate training, thus facing grave danger, and being coerced into committing acts that violate the laws of armed conflict. As a result, the risk of being forced into acts of aggression or war crimes elevates the status of these individuals to potential victims of state coercion under international crimes of common concern.
The Need to Establish International Jurisdiction
Given the precarious situation in which Europe finds itself in the ongoing Russia–Ukraine war, there is a need to find alternative solutions to ensure Russia is held accountable for the violations it has committed. Such a situation is similar to the application of the principle of the Responsibility to Protect (R2P), which places responsibility on States to protect populations from genocide, war crimes, crimes against humanity, and ethnic cleansing.Footnote 32 One related solution is for EU nations to undertake national investigations of the individuals who have committed atrocities of international concern, such as crimes against humanity or war crimes, based on the principle of international jurisdiction. Looking back in history, Robert H. Jackson, the Chief US Prosecutor at the Nuremberg trials, stated the following about the significance of universal jurisdiction: “While the law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose, it must condemn aggression by other nations, including those which sit here now in judgment.”Footnote 33 This statement reflects the States’ responsibility for prosecuting gross human rights violations.
The arrest of former Chilean dictator Augusto Pinochet in London in 1998 was the first arrest of a former head of state based on the principle of universal jurisdiction, and Israel prosecuted Adolf Eichmann in 1961 through the universal jurisdiction principle.Footnote 34 Since then, in the early 1990s, criminal accountability for individuals, including military and political leaders, was introduced in the statutes that created the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).Footnote 35 These tribunals defined certain aspects of international crimes that had not been highlighted since World War II. Another such mechanism was the Truth and Reconciliation Commission in South Africa.Footnote 36
However, the role of universal jurisdiction continued to be debated—one such example being in 2001 between Henry Kissinger, a political scientist and former US Secretary of State who defended the concept of Realpolitik, and Kenneth Roth, a US lawyer and human rights activist who advocated for human rights protection.Footnote 37 Kissinger raised issues about legal norms, rules of evidence, and safeguards for the defendant vis-à-vis universal jurisdiction. He argued that neither the 1975 Helsinki Accords, adopted by the Conference on Security and Cooperation in Europe, nor the UN’s 1948 UDHR authorized universal jurisdiction. However, Roth argued that several international instruments had legitimized the concept of universal jurisdiction. He referred to the 1984 Torture Convention, which requires States to either prosecute any suspected torturer on their territory, regardless of where the crime has been committed, or to extradite the suspect to a country that will do so. He also referenced the 1949 Geneva Conventions on the conduct of war, which require States to search for persons who have committed grave breaches of the conventions and to bring such persons, regardless of nationality, before their courts. The emphasis here is that universal jurisdiction is no longer a seldom-used theoretical concept, but rather a widespread practice.
Within Europe, Belgium was one of the first countries to enact legislation authorizing the use of universal jurisdiction under national law. In implementing its obligations under Protocols I and II of the Geneva Conventions, Belgium enacted the “Act Concerning Punishment for Grave Breaches of International Humanitarian Law” in June 1993.Footnote 38 This legislation was amended in 1999 to include genocide and crimes against humanity, implementing the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) and the Rome Statute of the ICC, respectively. At the time of enactment, Belgium’s Code of Criminal Procedure allowed criminal investigations to be initiated at the victim’s request through a procedure of partie civile.
In the late 1990s, the Netherlands established a specialized investigative international crime team (NOVO), which became part of the country’s National Prosecution Service.Footnote 39 Dutch teams have undertaken significant investigations abroad through the authority of the Dutch Public Prosecutor, including Afghanistan, Iraq, the Democratic Republic of the Congo, Liberia, and Sierra Leone. The Netherlands was the first nation to exercise universal jurisdiction over crimes of torture under obligations outlined in the Convention Against Torture.
With the advent of the 21st century, even Germany assembled a Code of Crimes against International Law (CCIL),Footnote 40 which came into force on June 30, 2002, and prohibits the commission of core crimes of the Rome Statute under domestic law, including crimes against humanity, war crimes, genocide, and crimes of aggression. In the past, before this legislation was promulgated, the German Criminal Code authorized universal jurisdiction over the crime of genocide and those international crimes that Germany had treaty obligations to prosecute. Under the CCIL, German courts, particularly the higher regional courts (Oberlandesgerichte), have the power to exercise universal jurisdiction over serious international crimes, including genocide, crimes against humanity, and war crimes. However, the legislation vests the federal prosecutor’s office (Generalbundesanwalt) with discretion regarding investigations and prosecutions. Any challenges to this prosecutorial discretion must be brought through an appeal procedure before the higher regional courts.
Other countries in Europe have passed similar legislation. To illustrate, in Switzerland, the Military Penal Code specifically authorizes universal jurisdiction over grave breaches of the Geneva Conventions. The code includes a clause that generally provides jurisdiction over violations of international humanitarian law and the laws and customs of war.Footnote 41 However, if the alleged act was committed in Switzerland, the perpetrator cannot be extradited, although the Swiss government can exercise jurisdiction over acts of torture committed abroad.
Similarly, in Spain, universal jurisdiction derives its existence from a combination of international treaty obligations and national substantive and procedural rules. Article 23.4 of the Organic Law for the Judiciary 6/1985 (LOPJ) authorizes universal jurisdiction for enumerated crimes, including genocide, terrorism, and any offense under an international treaty that obligates Spain to prosecute.Footnote 42 The LOPJ treats these crimes as justiciable regardless of any connection to the Spanish state. Importantly, universal jurisdiction is authorized for crimes against humanity under the Spanish Criminal Code, which is significant for prosecuting crimes committed in the ongoing Russia–Ukraine conflict.
The most recent development concerning universal jurisdiction occurred in the French Court of Cassation, which established universal jurisdiction for crimes committed in Syria from 2011 to 2018, including acts of torture, crimes against humanity, or war crimes, even when the perpetrator and victim were not French.Footnote 43 Even before this ruling, the French Constitution of 1958 designated international treaties as superior to national law. France became the first European State to implement legislation allowing domestic French courts to exercise universal jurisdiction over crimes within the jurisdictional scope of the ICTY and ICTR. Under this legislation, investigations may be initiated when an accused is present in French territory and may continue to trial in absentia if the accused leaves French territory after the investigation has begun. Further, French courts are entitled under Article 689 of the French Code of Criminal Procedure to exercise universal jurisdiction over crimes defined as torture under the Convention Against Torture.Footnote 44
The need for universal jurisdiction is further substantiated through the responsibility of European countries under international law, EU law, and regional human rights instruments to protect those fleeing persecution or who are under threat of participating in acts that may constitute war crimes. The cornerstone of this obligation is the 1951 Refugee Convention and its 1967 Protocol, which define a refugee as someone who has a well-founded fear of persecution based on, among other grounds, political opinion or membership in a particular social group. This covers conscientious objectors who refuse military service on moral or political grounds and may qualify for refugee status if their objection leads to a legitimate fear of persecution.
The UN High Commissioner for Refugees (UNHCR) guidelines reinforce this interpretation, mainly where military service could involve participation in internationally recognized crimes. The war in Ukraine has yielded consistent documentation from international bodies of widespread Russian violations of international humanitarian law (IHL). Those refusing to serve under such conditions are not merely evading national service; they are attempting to avoid complicity in acts that may constitute war crimes or crimes against humanity. Consequently, their claims to asylum gain significance.
In this context, the ICC has an important role to play. Specifically, the ICC has already issued arrest warrants for senior Russian officials, including President Vladimir Putin, in connection with the unlawful deportation of children from Ukraine—a potential war crime under the Rome Statute. Thus, individuals forcibly conscripted into the Russian armed forces may face real risks of involvement in actions falling within the ICC’s jurisdiction. As such, these individuals’ asylum claims fall within the obligation of States to avoid aiding or abetting international crimes.
At the EU level, the Common European Asylum System (CEAS) provides a harmonized framework for handling such claims through instruments like the Qualification Directive, the Asylum Procedures Directive, and the Reception Conditions Directive.Footnote 45 CEAS aims to ensure consistency and fairness in the asylum process. The Qualification Directive explicitly acknowledges that prosecution for refusal to perform military service may constitute persecution, particularly when the military is involved in actions condemned by the international community. The directive also mandates subsidiary protection for individuals at risk of serious harm if returned to their country of origin.Footnote 46
In addition, the ECHR, which has been ratified by every EU member State, provides more legal safeguards. In Bayatyan v. Armenia (2011),Footnote 47 the ECtHR recognized that conscientious objection falls under Article 9 of the ECHR, which addresses freedom of thought, conscience, and religion. Deporting individuals to countries where they risk torture or inhumane treatment violates Article 3, which is absolute and non-derogable, even in times of emergency.
Despite this clear legal precedent, responses from European States remain inconsistent. Some countries, such as Latvia, Estonia, and Finland, have adopted restrictive policies, refusing to grant asylum to Russian evaders, citing national security, espionage risks, etc., an action that undermines the protective framework of international law. By contrast, countries such as Germany, France, and Spain have adopted a more rights-based approach. Germany’s government has acknowledged that Russians fleeing conscription, particularly when there is a risk of being forced to commit war crimes, may be entitled to protection. Germany’s case-by-case evaluation complies with EU and international obligations, reinforcing that asylum is a human right, not a political concession.Footnote 48
The European Commission, as guardian of the EU treaties, should issue harmonized guidelines and initiate infringement proceedings when member States violate CEAS standards. The European Parliament may strengthen the normative framework by adopting resolutions that emphasize the rights of conscientious objectors. Importantly, the Court of Justice of the European Union (CJEU) can issue binding interpretations of EU asylum law, clarifying EU member States’ responsibilities in light of ongoing international criminal investigations.
The ICC’s mandate further strengthens these European nations’ responsibilities. As a judicial institution formed to end impunity for the crimes of common concern under the Rome Statute, the ICC’s engagement with the situation in Ukraine affirms that forced participation in Russian military operations could implicate individuals in internationally criminal conduct. As parties to the Rome Statute, European States share a duty to support accountability mechanisms, including protecting those who refuse unlawful orders.
Overall, through universal jurisdiction, European States and the international community must take a transnational, interdisciplinary, and strategic legal approach to punishing Russia’s gross human rights violations committed during its ongoing war with Ukraine.
Conclusion
In the past, the CoE’s European human rights mechanisms have ensured the protection and promotion of human rights across CoE members’ territories. However, now that the CoE is unable to act against the Russian Federation, it must ensure that individual member States prosecute international crimes through domestic legal systems. Utilizing the prosecution mechanisms available through universal jurisdiction, affected individuals and communities may benefit from gathering evidence efficiently and allowing those individuals and communities to participate in the criminal proceedings. In doing so, those member States give voices to people and communities who have suffered severely, creating a path to justice, restoration, transparency, and the (re-)empowerment of traumatized individuals, communities, and societies, and enabling a degree of democratization in the associated legal proceedings.
Countries such as Germany, France, Sweden, and the Netherlands have utilized the universal jurisdiction principle to pursue war crimes trials against individuals implicated in crimes committed in Syria. These efforts highlight that universal jurisdiction is an integral legal and moral instrument that can ensure the fight against impunity continues, even when geopolitical fragmentation poses obstacles for multilateral or regional mechanisms.
Alongside domestic prosecution, the ICC plays a pivotal role. The ICC opened an official investigation into the situation in Ukraine in March 2022 and has since issued arrest warrants, including for high-ranking Russian officials, on charges related to the unlawful deportation and transfer of children from occupied Ukrainian territories. While the ICC faces jurisdictional and enforcement limitations, particularly since neither Russia nor Ukraine is a State party to the Rome Statute, Ukraine has accepted the Court’s jurisdiction ad hoc, enabling prosecutorial action.
In conclusion, the combined efforts of the CoE member States, the ICC, and civil society actors demonstrate that universal jurisdiction is a legal and social mechanism that should be used as a last resort to ensure peace and security in cases of importance, but especially in the context of the Russia–Ukraine war, which has threatened the security architecture of Europe.
