International mechanisms for restoring the rights and interests of survivors

By Kateryna Ilikchiyeva and Kate Levine

Universal jurisdiction

Grave international crimes, a category which includes CRSV, can be investigated by countries even if the crime was not committed on their territory or by their citizens. Such investigations are possible under the principle of universal jurisdiction (UJ) and provided that the country has incorporated this procedure into its domestic legislation.  Today, several countries, including Germany, Lithuania, Spain, Sweden, have initiated criminal investigations into the most severe crimes committed by Russian military personnel on Ukrainian territory. The Ukrainian Legal Advisory Group, together with the European Center for Constitutional and Human Rights, submitted a complaint to the German prosecutor's office on behalf of a Ukrainian citizen regarding the commission of war crimes, including conflict-related sexual violence(CRSV). The Clooney Foundation for Justice submitted a complaint to Austrian prosecutors concerning sexual violence committed by Russian servicepersons, as well as a complaint to German prosecutors concerning a number of complaints including sexual violence.

For Ukraine, the use of this mechanism allows, among other things, the submission of cases regarding crimes that the national system is currently unable to effectively investigate and prosecute due to limitations such as the lack of a legislative framework or expertise (for instance, command responsibility and crimes against humanity, particularly those committed before the adoption of the law "On Introducing Amendments to the Criminal and Criminal Procedure Codes of Ukraine in Connection with the Ratification of the Rome Statute of the International Criminal Court and Its Amendments" on 9 October 2024). At the same time, the practical application of the UJ principle, particularly in the context of the war in Ukraine, is related to a number of limitations and specificities.

Different countries have established various conditions for the application of UJ, such as requirements regarding the suspect's stay or legal grounds for residence in the country; the criminalisation of the act both in the country where proceedings are planned to be initiated and in the country where the crime was committed; the principle of subsidiarity; prosecutorial discretion in deciding whether to initiate proceedings; and so on. The legislation of some states is limited to investigating crimes only where their own citizens are the victims.

The effectiveness of UJ is also influenced by a state's experience in handling such cases and the availability of sufficient resources within the justice system. For example, Sweden, Germany, or France have significant experience, legislation, and therefore, established practices. Meanwhile, countries such as Poland or Lithuania, which have also expressed their intention to investigate crimes committed in Ukraine, still lack the experience and institutional framework necessary for the effective practical application of UJ.

Ultimately, proceedings under the principle of universal jurisdiction are a promising mechanism, but its potential in the context of Russia's war against Ukraine remains unrealised. States primarily conduct structural investigations, limited to collecting evidence, or initiate proceedings mainly for crimes committed against their own citizens. They also justify the lack of activity by citing the subsidiarity and complementarity of the application of UJ to other mechanisms, such as national proceedings in Ukraine or investigations by the ICC.

One example of a reluctance to apply UJ is the aforementioned complaint submitted by ULAG together with ECCHR to the German prosecutor's office. The prosecutor refused to open an individual case, instead incorporating the information into a structural investigation, citing the claim that they did not see any added value in initiating proceedings alongside those ongoing in Ukraine, as well as the unlikelihood of the suspects appearing on German territory.

International Criminal Court

On 21 August 2024, the Law of Ukraine "On the Ratification of the Rome Statute of the International Criminal Court and Its Amendments" was adopted and came into force on 24 October 2024. Following two declarations recognising its jurisdiction submitted by Ukraine in 2014 and 2015, the International Criminal Court (ICC) has jurisdiction over events in Ukraine starting from 21 November 2013. In 2022, the International Criminal Court Prosecutor launched an investigation into the situation in Ukraine following a referral from 39 States Parties to the Rome Statute. 

However, under the Rome Statute, the ICC operates on the principle of complementarity, meaning it supplements national and other justice systems rather than serving as the primary court to handle the full array of criminal proceedings. The ICC will focus on investigating and prosecuting a limited number of individuals, primarily those in middle and high-ranking positions. Therefore, if we consider the ICC as a tool for protecting and restoring the rights of a specific individual, it is not the most accessible instrument for such cases. This is particularly true given that the Court independently determines its investigative priorities within its jurisdiction and does not provide a procedure for the open submission of individual complaints.

As of January 2025, the ICC has issued six arrest warrants concerning the unlawful transfer and deportation of children, as well as the bombing of civilian and energy infrastructure by the Russian Federation.

International mechanisms for the protection of human rights

Survivors of sexual violence in the conditions Russia's full-scale war against Ukraine have the right to file complaints against Russia based on the fact of such violence through two international human rights protection mechanisms: the European Court of Human Rights (hereafter referred to as the European Court) (located in Strasbourg) and the United Nations Committee on the Elimination of Discrimination against Women (hereafter referred to as the CEDAW Committee) (located in Geneva). Complaints regarding CRSV can also be submitted to the UN Human Rights Committee and the UN Committee against Torture (also located in Geneva). Below, we will examine the specific roles and powers of these mechanisms, as well as how they can address complaints of sexual violence in the conditions of Russia's war against Ukraine.

Filing a complaint with any of these international human rights protection mechanisms enables victims and survivors to hold Russia legally accountable for violating their human rights through acts of CRSV, as well as for the failure of Russian authorities to investigate, prosecute, and punish such acts. This form of legal accountability arises from Russia's ratification of fundamental international treaties, whose compliance is overseen by these bodies (for example, the European Convention on Human Rights—ECHR, and the United Nations Convention on the Elimination of All Forms of Discrimination against Women—the CEDAW Convention).

A complaint to the European Court or the CEDAW Committee regarding CRSV differs from a demand to hold specific individuals criminally liable for such violence. The legal remedies typically sought through these international human rights complaints include, for instance, the recognition of the fact of a human rights violation (by an independent international body), the awarding of monetary compensation or recommendations to state government bodies to grant compensation, as well as other potential recommendations for actions the state must take to prevent violence and ensure bringing the perpetrators to responsibility in the course of domestic investigations.

Although cases of sexual violence committed by Russian forces against women and girls, as well as men and boys, in Ukraine predominantly occur on Ukrainian territory, including areas occupied (or previously occupied) by Russia, it can be argued that Russia bears responsibility for these acts and the inadequate response of the Russian authorities due to the established legal doctrine of extraterritorial jurisdiction. According to this doctrine, Russia can be recognised as responsible for the actions of its state agents (e.g., the Armed Forces of Russia and members of unlawful military formations participating in the war in support of Russia) committed beyond its sovereign territory, for example, when individual victims were under the authority and control of Russian state agents. In the circumstances of CRSV, victims are typically under the de-facto authority and control of the perpetrators.

The European Court of Human Rights as a mechanism for addressing conflict-related sexual violence

To date, the Court has not considered a case where sexual violence in the context of war is at its centre, although it has issued rulings on cases of sexual violence in non-conflict contexts and other forms of violence against women and girls. Complaints to the Court regarding sexual violence during Russia's war against Ukraine will be based on this precedent law and have the potential to develop international legal precedents on CRSV as a violation of international human rights standards.

The judicial practice of the European Court of Human Rights establishes that sexual violence (rape, sexual violence, sexual harassment) falls under Articles 2, 3, and 8 of the European Convention on Human Rights. For instance, in a case involving sexual violence by state agents in Turkey, the Court recognised that the rape of a detainee by a security service officer constituted "an especially grave and abhorrent form of ill-treatment given the ease with which the offender can exploit the vulnerability and weakened resistance of his victim."¹ In a case against Russia involving sexual violence by police officers, the Court recognised that the repeated acts to which the victim was subjected constituted torture.²

When examining CRSV, the Court must recognise the gender-discriminatory nature and impact of this form of violence by establishing a violation of Article 14 of the ECHR. It is well-known that women and girls worldwide constitute the majority of sexual violence victims. It is also a widely accepted principle of international law that sexual violence is a form of gender-based violence, understood as violence directed against a person because of their gender or violence that disproportionately affects individuals of that gender.

Requirements for applying to the European Court

If an individual victim files a complaint against Russia with the Court regarding CRSV, the victim must first demonstrate that efforts were made to bring the complaint to the attention of the Russian authorities before applying to the Strasbourg Court. This process is known as the requirement to exhaust domestic remedies. However, there are several exceptions to this requirement, including cases where the existence of "administrative practice" has been proven, which consists of the repetition of actions incompatible with the ECHR and the official tolerance of such actions by state authorities, rendering the use of any domestic remedies futile or ineffective.³ In light of the widely documented cases of rape and other forms of sexual violence committed in Ukraine by Russian soldiers since 2014, with a new, more large-scale wave beginning on 24 February 2022, the Court has found that such behaviour meets the criteria of "administrative practice" (repeated actions incompatible with the ECHR, tolerated by the state): in June 2024, in Ukraine v Russia (re Crimea), the Grand Chamber of the ECtHR found an administrative practice of ill-treatment, which included allegations of sexual violence, against detainees who were largely soldiers, pro-Ukrainian and Tatar activists and journalists (however, this finding did not appear to cover civilians more generally).⁴ Additionally, in the interstate case against Russia concerning Eastern Ukraine, the Court found admissible complaints by the Ukrainian Government alleging the torture of civilians and Ukrainian soldiers who were prisoners of war or otherwise hors de combat, including many instances of sexual violence and rape.⁵

After Russia's exclusion from the Council of Europe on 16 March 2022, the European Court retains residual jurisdiction to consider Russian cases concerning violations of Russia’s obligations under the ECHR that occurred before 16 September 2022 (the date when Russia ceased to be a party to the ECHR).⁶ In practice, this means that the Court can receive complaints about sexual violence that occurred before this date, even if the effects and consequences of the violence persisted after this date or continue to this day.

The European Court also requires that complaints be submitted within four months after the exhaustion of domestic remedies (as mentioned above). If it is evident that no effective domestic remedies exist (see, for example, the points above), complaints must be filed within four months from the date of the act of violence. If it is proven that domestic remedies have been ineffective after their initial application (e.g., if there is no response from authorities to the initial complaint), complaints must be filed within four months from the moment the applicant becomes aware of such ineffectiveness.

Again, in practice, this means that there is a relatively short time frame during which the European Court can be used as a means of redress for survivors of CRSV which occurred before 16 September 2022, and where:

• complaints have already been submitted (within four months after an act of violence that occurred before 16 September 2022); or
• complaints can still be submitted within four months after exhausting domestic remedies; or
• complaints could have been submitted within four months after it became clear that domestic remedies in Russia were ineffective.

Processes of the European Court

​​Victims who wish to submit their case to the European Court must complete an application form, in which they provide a written account of the relevant facts, what happened to them, where and when the events took place, as well as any relevant information about potential perpetrators and any witnesses. The application form must also specify the potential violations of ECHR rights that resulted from the violence. The application form should be submitted along with copies of relevant documents (e.g., medical reports and, possibly, a witness statement describing the survivor’s experience in their own words). If the applicant is represented by a lawyer, they must sign a power of attorney.

Applications cannot be submitted anonymously, but individuals may request anonymity when filling out the application or as soon as possible thereafter. If such a request is granted, the applicant’s identity will not be disclosed to the public but will still be revealed to Russia if and when the Court shares case information with the authorities.

Most complaints to the European Court are examined based on applications and evidence provided by applicants and, typically, statements from the corresponding state. Following Russia's exclusion from the Council of Europe, the state no longer participates in Court proceedings, meaning it does not submit written responses to complaints. However, the Court has confirmed that this unilateral non-participation will not prevent it from continuing to examine submitted complaints and issue rulings on them.⁷ The Court continues to send information about complaints to Russia through existing secure electronic communication channels, which the state still has access to.⁸

Hearings at the Court in Strasbourg are very rare and are unlikely to be convened in cases against Russia due to the lack of interaction from its side. Additionally, most cases that have been filed and admitted for consideration by the ECHR are still awaiting developments in the interstate cases of Ukraine against Russia.

Ultimately, the publication of a European Court ruling may take at least several years, and this timeframe could increase following Russia’s exclusion from the Council of Europe.

Results of the European Court

If the European Court finds a violation of the European Convention on Human Rights, it may award financial compensation for material and/or emotional or psychological suffering experienced by victims as a result of the violations, for example, as a result of physical injuries and psychological trauma caused by CRSV.

UN Committees as mechanisms for addressing the problem of conflict-related sexual violence

The CEDAW Committee, the Human Rights Committee, and the Committee Against Torture can also be used as alternative ways to seek redress for human rights violations resulting from sexual violence during Russia's war against Ukraine.

The CEDAW Committee has previously considered complaints regarding rape and other forms of sexual violence.⁹ In a leading case on CRSV, the Committee upheld the rights of survivors of CRSV in Bosnia and Herzegovina to access compensation at the national level.¹⁰ The Committee Against Torture reviewed a similar parallel complaint.¹¹

Requirements for applying to UN Committees

As with the European Court, individuals wishing to file a complaint with any of these UN Committees must demonstrate that they have exhausted all available domestic remedies.

In terms of time limits, complaints to the CEDAW Committee and the Committee Against Torture should be submitted as soon as possible after exhausting domestic remedies. For the Human Rights Committee, the complaint must be submitted within five years from the date of exhaustion of domestic remedies.

Individuals wishing to submit a complaint to one of these committees must complete a standard complaint form and provide copies of relevant documents (e.g., medical reports). As with the European Court, individuals typically also submit written witness statements, and if represented by a lawyer, authorisation to act on behalf of the complainant must be provided.

A complaint cannot be submitted anonymously, but the author may request the Committee not to disclose their name in the final decision.

UN Committees do not hold oral hearings; complaints are examined based on documents and statements submitted by individual victims, as well as documents and statements provided by the state in response. It may take several years for the Committees to publish a decision on an individual complaint.

Results of UN Committees

If a UN Committee concludes that a violation has occurred, it may recommend a specific remedy, such as compensation or the adoption of legislation. Unlike the European Court, committees do not award specific compensation to victims, leaving the implementation of recommendations, such as providing "adequate compensation," to national authorities. Committees can be much broader and more specific in their recommendations compared to the European Court, which typically does not issue such general recommendations. Such recommendations as, for example, recommendations from the CEDAW Committee on actions Russia must take to address the problem of CRSV at a systemic level (structures designed for investigation, court prosecution, punishment, compensation, and redress) can be useful for advocacy campaigns in the long term.

Establishing the truth can be important for survivors of CRSV; however, UN Committees typically do not make significant factual conclusions in their decisions. The CEDAW Committee has developed its approach in this regard over recent years and is now known for providing more detailed reasoning and fact-based conclusions.¹²

According to Russian procedural law, decisions of UN Committees are not explicitly mentioned as grounds for reopening cases at the national level. However, the Supreme and Constitutional Courts of Russia have indicated the binding nature of committee decisions, and as such, committee recommendations should be implemented thoroughly.¹³

To date, UN Committees have considered a relatively small number of cases against Russia compared to the European Court: the Committees have published only around 130 decisions concerning Russia.

Other UN procedures

In addition to UN Committees, there are UN "special procedures" that are independent human rights experts with mandates to report and advise on human rights within a certain thematic focus or a certain country.¹⁴ These mandates allow them to visit countries, act on individual cases of reported violations by sending communications to states and other actors, engage in advocacy, raise public awareness, and provide advice on technical cooperation. The procedure for communicating with these experts can serve as an additional channel for CRSV survivors to draw attention to violations of their rights, request measures to correct the situation, and increase awareness of their situation. Among the "special procedures" covering the issue of CRSV, the following can be highlighted:

• Special Rapporteur on Violence Against Women and Girls, Its Causes and Consequences;
• Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
• Special Rapporteur on Trafficking in Persons, Especially Women and Children; and
• Working Group on Discrimination against Women and Girls.

The use of a combination of international human rights protection mechanisms in addressing the problem of conflict-related sexual violence

If an individual has submitted the same complaint to another international human rights protection mechanism, such as one of the UN Committees mentioned above, it may mean that the European Court or another UN Committee cannot also consider the same complaint. This applies to applications that are essentially identical to complaints already submitted to "another international body, such as the UN Human Rights Committee. However, complaints to any of the UN Special Procedures can be made at any time, and do not impact on the ability to apply to either the European Court or UN Committees (an exception is the Working Group on Arbitrary Detention, which counts as another international body)”.

Notes

1. Aydin v Turkey (no. 57/1996/676/866).
2. Maslova and Nalbandov v Russia (no. 839/02).
3. Aksoy v Turkey (para. 52), Georgia v Russia (I) [GC] (paras. 125-159); Ukraine v Russia (re Crimea) (dec.) [GC] (paras. 260-263, 363-368); Georgia v Russia (II) [GC] (paras. 98-99 and 220-221). For more information, see https://www.echr.coe.int/documents/admissibility_guide_eng.pdf (from p. 33).
4. Ukraine v Russia (re Crimea) [GC].
5. Ukraine and the Netherlands v Russia (dec.) [GC]
6.  https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=0900001680a5da51. For the Court’s residual jurisdiction, see, for example, Fedotova and Others v Russia [GC] (nos. 40792/10, 30538/14 and 43439/14) of 17 January 2023.
7. Svetova and others v. Russia (no. 54714/17).
8.  Glukhin v Russia (no. 11519/20).
9. See, for example, Tayag Vertido v The Philippines, CEDAW/C/46/D/18/2008; R.P.B. v The Philippines, CEDAW/C/57/D/34/2011; V.P.P. v Bulgaria, CEDAW/C/53/D/31/2011.
10. SH v Bosnia and Herzegovina (CEDAW/C/76/D/116/2017).
11.  A v Bosnia and Herzegovina, CAT/C/67/D/854/2017.
12. See, for example, the recent leading case on honor-based violence in Georgia: H.H., I.H. and Y.H. v Georgia (No. 140/2019).
13. See the Decision of the Constitutional Court of Russia of 28 June 2012 No. 1248-O; Decision of the Constitutional Court of Russia of 28 December 2012 No. 55-O18-4; Decision of the Supreme Court of Russia of 24 July 2017 No. 46-KG17-24.
14. https://www.ohchr.org/en/special-procedures-human-rights-council. See also: EHRAC Guide to Using the UN CEDAW Committee and the Special Rapporteur on Violence Against Women in Cases of Gender-Based Violence, available at: https://ehrac.org.uk/wp-content/uploads/2022/12/UN-CEDAW-and-SRVAW-guide-2022-ENG.pdf.