Universal jurisdiction as a tool of Russian aggression in Ukraine

The UN ICJ in that case declined to evaluating the application of universal jurisdiction (the case was decided in favour of DR Congo through the recognition of the Minister's immunity by the Court), but in this case the ad hoc judge Christine van den Wyngaert protected the possibility of application of universal jurisdiction in absentia in her dissenting opinion. However, judges Rosalyn Higgins, Peter Kooymans and Thomas Buergenthal in their joint dissenting opinion on this particular decision noticed that in the Geneva Conventions and Additional Protocols there was enshrined not the principle of universality, but “the mandatory territorial jurisdiction over persons who have committed crimes in any place”. After the approval of this decision by the UN ICJ Belgium in April 2003 abolished the rules of its legislation on the application of absolute universal jurisdiction, with the possibility of its own jurisdiction over war crimes committed by foreigners living in Belgium for more than 3 years.

Chinese Professor Sienho Yee cites evidence of political pressure on the Belgium by other NATO countries that lead to the rejection of its intentions to apply universal jurisdiction. He gives the example of abolition of a similar law in Spain in 2009 after attempts of its application to prosecute participants of the civil war in the 30-ies of the 20th century in this country. As the researcher points out, “cautious” decision of the UN ICJ in the “Congo vs. Belgium” case “significantly influenced the subsequent practice of the exercise of universal jurisdiction”. In publications of L. Reydams and Sienho Yee joint analysis of about 20 cases in the national courts of Austria, Belgium, Great Britain, Spain, Denmark, the Netherlands, Germany, Switzerland, Finland, France on bringing foreigners to justice for war crimes, committed abroad (including all cases cited by Russian authors) allowed to distinguish the following common features:

- in all cases before the prosecution a residence was granted to the accused by the state of prosecution, they were in that state at the time of their detention;

- all accused resisted the possibility of their transfer to the authorities of the State where they have likely committed war crimes;

- such extradition was often impossible legally or practically;

- the state where war crimes were committed in most cases actively agreed or acquiesce with the relevant prosecution;

- the majority of cases was related to events in the former Yugoslavia and Rwanda, for which there have been special decisions of the relevant international tribunals prosecutors and the UN Security Council about the need to search for the perpetrators and holding court over them with all the nations of the world1.

It is worth mentioning that two of the cases were the subject of the ECHR, which declined to provide comments on the legal policy on universal jurisdiction and did not give in these cases any relevant considerations in abstracto. Therefore, the current legal practice suggests the use of “universal jurisdiction” in circumstances where the state of application had some connection with the person brought to justice when the person has been predetermined, single, present in the country for a period of proceedings. The only attempt to use national universal jurisdiction in absentia have led to political pressure on the state of proceedings, and to the proceedings in the UN International Court of Justice, which did not share the position of that State, and ultimately - to its rejection of the principle of universal jurisdiction. This allows us to critically take foreign examples given by Russian authors as a legal justification for criminal policy of the RF in the conditions of Ukraine-Russia conflict.

The Legislation of the RF on the Application of Universal Jurisdiction

At the same time, the correlation of proposals of the named authors and of previous practice on universal jurisdiction, as well as attitude to this phenomenon, which has formed in the Russian doctrine up to 2014, is of significant interest for us. To resolve this scientific goal we must determine the actual location of universal jurisdiction in the Russian legal system and compile views on this issue, which have formed in international legal doctrine, particularly in Russian legal doctrine before the events of 2014 - 2015.

Interestingly, the legislation of the RF, to which the mentioned authors refer, per se contains no mention of the mechanisms of the application of universal jurisdiction. In part 3 of article 12 of the CC of the RF on June 13, 1996 noted that foreign citizens and persons without citizenship not residing permanently in the RF who have committed a crime outside of the RF shall be criminally liable for the CC of the RF, if the offense is directed against the interests of the RF or a citizen of the RF, or persons without citizenship permanently residing in the RF, and in cases provided by international treaty of the RF, if foreign citizens or persons without citizenship who permanently reside in the RF, were not convicted in a foreign country and are brought to criminal responsibility in the RF.

From the mentioned norm it does not follow which international treaties of the RF were intended, but at the same time it is obvious that such agreements should:

- be the agreements, concluded exactly by the RF in accordance with the requirements of the international law;

- clearly and consistently provide mechanisms for universal jurisdiction.

The Geneva Conventions 1949 and the Additional Protocols do not fully meet both these requirements (because they were joined not by the RF, but by the USSR, furthermore, with violations of the procedure - on Additional Protocols). Moreover, analysis of article 356 of the CC of the RF “The Use of Prohibited Means and Methods of War”, on which in fact a criminal case was brought by the Investigative Committee of the RF on the basis of “universal jurisdiction”, indicates its blanket and yet imperfect character. According to part 1 of this article, “ill-treatment of prisoners of war or civilians, deportation of civilians, looting of national property in occupied territory, the use of prohibited by international treaties of the RF means and methods in armed conflict - is punishable by imprisonment for up to 20 years”; by imprisonment for the same period under part 2 of this article shall be punished “the use of weapons of mass destruction, prohibited by international treaties of the RF”.

Thus we can observe such weaknesses of the respective criminal legal structures: disproportion between the severe punishment and the status of “the most serious crime” with such a composition as any ill-treatment of prisoners of war or non-combatants; extremely wide variation in the size of penalties to be applied; uncritical blanket rules.

However, such blanket character of norms provides essentially extending the same rules of international treaties of the RF (not “international humanitarian law” or “generally recognized principles and norms of international law” referred to in article 1 of the CC of the RF) in terms of so called “universal jurisdiction” by investigative and judicial authorities of the RF on non-residents who basically should not be acquainted with the details of contractual practices of the RF, specific perception of the international treaties of the USSR by the RF, with appropriate reservations to treaties, etc. Such construction, clearly designed for use on residents (especially military servicemen) of the RF increases the risk of violating the principle of “nulla poena sine lege ”, “nullum crimen sine lege ” and the application of criminal law by analogy, which is directly prohibited by part 2 of article 3 of the CC of the RF.

It is interesting that imperfection and ambiguity of the given blanket (reference) norms of the CC of the RF, which increased in terms of coming into force of the Rome Statute of the International Criminal Court, has been recognized by Russian authors. Thus, in 2006 I.A. Salkin and O.G. Kibalnik noted the inconsistency between norms of the CC of the RF concerning war crimes and norms of article 8 of the Rome Statute, the norms of the CC of the RF on crimes against humanity and article 7 of the Rome Statute1. Additionally, since article 356 of the CC of the RF is a part of Chapter 34 of the CC “Crimes against the Peace and Security of Mankind” general question arises as to its affiliation with crimes against humanity and not to war crimes (which is not separately allocated in the CC of the RF at all).

However, the given problems of substantive law are relatively small considering the situation with the procedural legislation of the RF in the context of applicability of the principle of universal jurisdiction for any crimes in this state. It should be noted that the procedure of criminal justice in the RF is regulated solely by the Criminal Procedural Code (CPC) of the RF, adopted on December 18, 2001 (article 1 of the Code) [23], according to which the proceedings in criminal cases should be conducted in the RF regardless of where the crime was committed “if an international treaty of the RF provides otherwise”. Of course, if the order of scientific discussion can be argued (as the mentioned Russian authors do) that the Geneva Conventions and the Additional Protocols to them can somehow be used instead of the norms of the CC of the RF, they can not be used instead of the rules of the CPC of the RF and these issues are not regulate in any way.

Analysis of the CPC of the RF allows asserting that in case of the criminal proceedings in the RF “on the basis of universal jurisdiction” the fundamentally insoluble problems will arise from a place of the beginning of proceedings, the status of its participants and the need to cooperate with foreign states.

Thus, the rules of article 152 of the CPC of the RF “Location of the preliminary investigation” for a long time have avoided the problem of the place of the beginning of proceedings for crimes committed outside the RF. Only the Federal Law of October 21, 2013 ¹ 271-ÔÇ article 152 of the Code was supplemented by part 4.1, according to which “if the offense is committed outside of the RF, the criminal case shall be investigated on the basis of article 12 of the CC of the RF ... at the place of residence or place of stay of the victim or at the location of the majority of witnesses or at the place of residence or place of stay of the accused in the RF, if the victim lives or stays outside of the RF”.

From this rule it follows that if in the RF there is no victim, “the majority of witnesses” or accused of crimes committed outside of the RF, the place of the beginning of proceedings remains uncertain. Exactly to be able to circumvent the requirements of the CPC of the RF, the representative of the ICRF tried to combine the proceedings of different content - under article 105 of the CC of the RF “Murder” of Russian citizens and under article 356 of the CC of the RF, as for the first one they had “victims” on the territory of the RF. Let's add that the place of the beginning of proceedings is an essential element of the resolution on the beginning of proceedings under article 146 of the CPC of the RF.

However, after the beginning of proceedings its effective investigation according to the CPC of the RF is impossible without the granting of the status of suspect and accused to certain persons. At the same time, under article 46 of the CPC of the RF the suspect may be a person:

- against whom criminal proceedings were instituted (article 146 of the Code);

- detained under articles 91, 92 of the Code;

- against whom preventive measure was defined under article 100 of the Code;

- notified of the suspicion in accordance with article 223.1 of the Code1.

By analyzing these norms it is easy to see that a person can become a suspect without personal contact with the investigation bodies only when the criminal proceeding is initiated. But according to articles 172, 173 of the CPC of the RF, an indictment is possible only in presence of a person and within three days after the decision to prosecute a defendant; the Code does not provide the possibility of indictment in absentia.

Part Five of the CPC of the RF “International cooperation in criminal justice” in article 460 provides for the ability of the RF to direct a request a foreign state to give it a person for prosecution or execution of sentence - solely on the basis of international agreements with the RF with that State or on the basis of written obligation of the Prosecutor General of the RF to give that State according to the principle of reciprocity persons under the law of the RF in the future. The condition for such a request should be a punishable criminal act both in the RF and in the state where the request is directed. Therefore, the CPC of the RF contains a clear presumption of consent of the foreign state in the prosecution of its citizens in the RF (residents), without any exceptions.

Also under article 461 of the CPC of the RF, a person given to the RF according to such a request, can not be detained, prosecuted as an accused or convicted for another crime, not specified in the request, without the consent of the State which has given him (except the cases of committing a new crime after extradition, the voluntary return of the person to the RF, etc.). Such guarantee is provides by article 456 of the Code, under which a witness, victim, expert, civil defendant and plaintiff, who are outside of the RF, can be called for legal proceedings in the RF for the needs of a criminal investigation that is conducted according to the Code, only with their consent.

These individuals may not be detained, prosecuted as accused or subjected to other restrictions of personal liberty for acts or convictions on the basis that occurred before crossing the border of the RF (unless they have left the territory of the RF within 15 days or voluntarily returned to it - than the corresponding immunities shall be removed).

These rules, on one hand, indicate that during the development of the CPC of the RF the very possibility of bringing a person to criminal liability in the RF for acts committed abroad, was being considered quite realistically, without considerations of “universal jurisdiction”, especially in absentia. We can confidently assert that the investigating bodies, which are now conducting criminal proceedings against “unidentified persons” who have allegedly committed war crimes in Ukraine, will be forced at some point to bypass its own criminal procedural legislation, because it does not allow such proceedings.

The agencies of the ICRF have already faced such situation in 2008 - 2009, when as a result of Georgian-Russian war they have initiated criminal proceedings (criminal case ¹ 201/374108-08) against the Georgian leaders for “the facts of mass murder and genocide of the civilians of the Republic of South Ossetia” under points “a”, “e”, “l” of part 2 of article 105 and article 357 of the CC of the RF. Since the RF did not object the participation of Russian authorities, Russian citizens and Russia military servicemen in the conflict, there was no need for justification of “universal jurisdiction” on this case.

However, that time the position of the Prosecutor General's Office of the RF was that “testimonies and evidence collected by Russian investigators” will not be considered by the Russian or “South Ossetia” courts, but “will be presented in international courts”, and for this purpose “a special brigade of prosecutors, who provided legal assistance in drafting appeals and complaints to the ECHR” and the ICC (Georgia is a member of the Rome Statute since 2003) was formed. Such a position or even offer (after the ECHR and the ICC have not found the signs of genocide in the actions of the Georgian officials) to form “the Special Tribunal on Georgia” despite of their politicization was more rational from the standpoint of international and criminal law than the trial on these cases by Russian courts (which had not been done until now). It is interesting that using the materials of relevant proceedings as a basis, Russian authors directly recognized the absence of “relevant procedural rights to protect the rights and interests of Russian citizens abroad” in disposal of the ICRF; the relevant legislation of the RF has undergone significant changes since then. It is also interesting that none of the given Russian authors in their publications in 2014 on the persecution of “war crimes” in Ukraine in the RF mention the CPC of the RF at all.

The analysis of Russian criminal and criminal procedural legislation suggests the following:

- blanket rules of articles 12, 356 of the CC of the RF 1996, which refer to the uncertain international treaties of the RF, can not be considered as a mechanism for applying the principle of universal jurisdiction over war crimes and crimes against humanity;

- the rules of Chapter 34 of the CC of the RF “Crimes Against the Peace and Security of Mankind” as a whole are comparable neither with the norms of the Geneva Conventions 1949 and their Additional Protocols, nor with the provisions of the Rome Statute of the ICC, to which Russia did not accede;

- the rules of the CPC of the RF 2001 do not provide the possibility of determining the location of a criminal case under the conditions of the proceedings of this case in terms of universal jurisdiction and the possibility of bringing a person as an accused in absentia; they make the effective investigation of difficult, complex cases, where witnesses and victims are mass outside the RF, almost impossible;

- these procedural features have led to the suspension of proceedings on criminal case against the leaders of Georgia on “genocide in South Ossetia” during the Georgian-Russian conflict; at the same time the criminal policy of the RF during this conflict, despite its obvious bias, did not provide for the possibility of the use of “universal jurisdiction” or the proceedings of the case in the Russian court.

Russian and Russian-Speaking Legal Doctrine on Universal Jurisdiction Before 2014

It is also necessary to define the doctrinal considerations on universal jurisdiction, which existed in the Russian scientific community before 2014. It should be indicated that the above mentioned Russian authors (A.G. Volevodz, P.V. Volosyuk and I.I. Kotlyarov) have never covered the issues of universal jurisdiction in their scientific publications before 2014. At the same time it is necessary to point out the profound scientific article “Persecution of Violations of International Humanitarian Law Based on the Principle of Universality” by Vera N. Rusinova, published in 2005 - the year of defence of the thesis work of this scientist, and an interesting PhD thesis by Georgyi A. Korolev “Universal Jurisdiction for Serious Violations of International Law: the Basis and Procedure of Application”, defended in 2010.

V.N. Rusinova states in her own work that “the specific content of the principle of universal criminal jurisdiction remains a controversial topic. In particular, a lot of controversy raises regarding the question of whether the principle of universality implies the need for the presence of the suspect in the state, law enforcement bodies of which are going to initiate a criminal prosecution”. The author states that “those authors who insist on the admissibility of prosecution in absentia denote it as “a true universality principle”, but in the literature can often be found the use of the term “principle of universality” in the sense that the presence of the suspect in the State is required as a compulsory condition for prosecution”.

V.N. Rusinova underscores the unresolved question of “whether the state can prosecute perpetrators of serious violations of international humanitarian law on the basis of universal principle in their absence on the territory of the state”. This author points out that “a well-known formula “either give or pursue” (aut dedere aut prosequi) is embodied in formulated in the same way articles 49, 50, 129 and 146 of the Geneva Conventions 1949”, “gives reason to some authors to believe that the guilty person must be present in the state”. Therefore, V.N. Rusinova adds, “interpretation of the text of the Geneva Conventions does not allow to definite conclusions about the legality prosecution of serious violations of international humanitarian law in the absence of the accused”; “neither the Geneva Conventions with the Additional Protocol II nor the Rome Statute of the International Criminal Court contain rules relevant to address this issue”.

Analysing the practice of universal jurisdiction, V.N. Rusinova states that “in the aftermath of the World War II and the beginning of the 90-ies of the 20th century there were no cases of use of the principle of universality regarding violations of international humanitarian law”. Later, recognizes this researcher, “the prosecution of violations of international law on the principle of universality has been approved by the courts of several states”, but with the following features: virtually all processes have been violated by law enforcement agencies of European states; they were “against citizens of so-called “failed states” such as Yugoslavia and Rwanda”, and they were reinforced by the criminal proceedings in the relevant international tribunals, which were held in parallel.

The most interesting for us is V.N. Rusinova's reasoning, who, while investigating the introduction of universal jurisdiction in national law by reference rules, gives an example of part 3 of article 12 of the CC of the RF in the current edition. As it is pointed out by this author, “fixing of such rules in national legislation does not allow applying a universal principle in the implementation of prosecution of violations of international humanitarian law committed in non-international armed conflict” \ Thus, we can conclude that these V.N. Rusinova's findings do not differ significantly from our generalizations on these issues.

In his turn, G.A. Korolev said that “the use of universal jurisdiction should be carried out in accordance with certain conditions”. In particular, he believes that the State, which established universal jurisdiction, deciding whether to extradite or persecute a person has to make a decision based on the totality of criteria: multilateral or bilateral treaty obligations; the place of the crime; citizenship of the accused person; citizenship of the victim; other links with the State making the request, the perpetrator or the victim of a crime; probability, integrity, efficiency of justice in the requesting State; fairness and impartiality of the judiciary in the requesting State; facilities for the participants of the process, as well as the availability of obtaining evidence by the requesting State; the interests of justice.

However, according to G.A. Korolev, “the use of universal jurisdiction on persons missing in that state at the time of adoption of the procedural decision (universal jurisdiction in absentia), is valid (because there is no prohibitive rules of international law in this regard), but often impractical”. Thus G.A. Korolev recognizes that “legislation and judicial practice of applying universal jurisdiction differ in the categories of crimes that fall under the principle of universality, as well as the implementation of universal jurisdiction in absentia». In particular, he points out the impossibility of exercise of universal jurisdiction in absentia in France; on the applicability of universal jurisdiction in absentia of the suspect, but only up to the judicial phase of the criminal process (Denmark, Spain, the UK); to exercise universal jurisdiction in absentia in the presence of legal or factual elements of connection of state of committed offense (Belgium, Germany); the application of the principle of universality in absentia only to certain offenses (Austria, Sweden). These G.A. Korolev's opinions suggest the possibility of ambiguity of his statement of universal jurisdiction in absentia; but this author did not mention about any possibility of introducing universal jurisdiction in the RF.

It is characteristic that the works by V.N. Rusinova and G.A. Korolev are not mentioned and evaluated in the publications by A.G. Volevodz, P.V. Volosyuk and I.I. Kotlyarov in 2014. It is necessary to point out that in addition to these works in 2014 several publications in Russian language by qualified researchers from third countries on issues of universal jurisdiction in popular scientific journals were made. This is primarily defended in Moscow in 2007 Dr.Hab thesis of Azerbaijani scientist Nizamy A. Safarov “Extradition in International Law: Problems of Theory and Practice” and a number of specialized articles of this author, particularly published in the MGIMO journal in 2005 article “Universal Jurisdiction in the Mechanism of Prosecution for International Crimes” and published in 2011 article “Persecution for International Crimes: Universal Jurisdiction vs. Diplomatic Immunity”; article by Czech Professor Pavel Sturma “Universal Jurisdiction and Punishment of Serious Violations of the Geneva Convention 1949”, published in 2010, and the fundamental article by the editor of “Chinese Journal of International Law” Chinese Professor Sienho Yee “Universal Jurisdiction: the Concept, Theory and Practice”, published in translation in the “Russian Law Journal” in 2012. None of these publications is mentioned and analysed in the works of Russian authors in 2014, devoted to “war crimes” in Ukraine. This topic is more important since these researchers' position on the application of universal jurisdiction is even more critical than the above mentioned views of V.N. Rusinova and G.A. Korolev.

Thus, P. Sturma indicates that “universal jurisdiction ... is controversial and insufficiently supported in practice by States” and that “narrow understanding of universality” by which the state, at the mercy of which the accused is, can be applied to criminal sanctions for certain act is more promising than “a broad understanding of the universality”, which provides for the criminal proceedings in absentia. The said author acknowledges that “a broad understanding of universal jurisdiction comprises the laws of only several states, including Spain and Belgium” (this information is already obsolete) and that “a broad understanding of the universality may also face obstacles of political or practical nature”. N.A. Safarov in his turn recognizes the hypothetical possibility of “absolute universal jurisdiction” in absentia, but points to the need for the formulation of criteria that will “distinguish between international cooperation in fighting crime and an illegal intrusion into the sovereign jurisdiction of the states”1.

However, the most uncompromising position on the issue of universal jurisdiction has the publication by Sienho Yee, who claims that “the debate over universal jurisdiction, continuing the UN General Assembly since 2009, reflects the uncertainty of the concept of universal jurisdiction, scope and characteristics of its application” and that “comments and statements by officials of states indicate the uncertainty of concepts, goals and features of the application of universal jurisdiction”. This author notes that “the exercise of universal jurisdiction may counter the principles of independence and sovereign equality of States and in case of misuse - destabilize interstate relations”.

In his own study, he consistently defends the thesis that “nowadays the only crime on which the universal jurisdiction is applied is piracy”. Quite valuable is the Sienho Yee's thesis stating that in case of application in the field of war crimes and crimes against humanity “the regime of universal jurisdiction could pose a serious problem on the way to national reconciliation”. This author rejects the theory that universal jurisdiction is permitted over war crimes, because there is no direct prohibition on it in international agreements; he believes that allowing the country to pursue these crimes committed by persons, with whom they have no legal bounds, should be clearly spelled out in the relevant documents.

In addition to the impartial doctrinal considerations, which the authors of articles on “war crimes” in Ukraine would have to at least criticize, one more interesting phenomenon of the Russian legal doctrine relating to the issue of universal jurisdiction is worth mentioning. That is a formal response of the Russian scientific community on the case “Kononov vs. Latvia” which was considered by the ECHR and ended with the decision of the Grand Chamber of the ECHR on May 17, 2010.

This response was embodied in the round table on January 28, 2011, which was attended by 14 professors, who at that time headed the departments of international legal orientation: Aslan H. Abashydze (Russian Peoples' Friendship University, RPFU), Lyudmila P. Anufrieva (Moscow State Law Academy named after O.E. Kutafin), P.M. Biryukov (Voronezh State University), L.I. Volova (Southern Federal University), Alexander N. Vylegzhanin (Moscow State Institute of International Relations, MGIMO), V.S. Ivanenko (St. Petersburg State University), A.O. Inshakova (Volgograd State University), A.S. Ispolinov (Moscow State University named after M.V. Lomonosov), Yu.S. Romashev (the FSS Academy) H.S. Starodubtsev (Russian Law Academy), D.D. Shalyagin (the MIA University of Russia), V.M. Shumilov (All-Russian Academy of Foreign Trade), A.A. Kovalev (Diplomatic Academy of the Russian Foreign Ministry, correspondence participation), G.I. Kurdyukova (Kazan State University, correspondence participation).

In addition, the round table was attended by professors Vladymyr A. Kartashkin, Vladymyr V. Shtoll, Vladymyr P. Galitskiy, associate professors A.B. Mezyaev and M.V. Fedorov, and other lecturers of the International Law Departments of RPFU and MGIMO, representatives of the Russian Ministry of Foreign Affairs S.K. Tolkalina and M.O. Molodtsova. The draft of the final document prepared in advance by the departments staff - participants of the round table and the representatives of the Ministry of Foreign Affairs of the RF “with minor amendments” was adopted unanimously. Through the open voting of the participants it was decided to pass the reports on progress, as well as the final document, to further publication in leading scientific journals, refereed by the High Attested Commission of RF. Indeed, according to the results of the round table the relevant document has been repeatedly published in scientific journals of the RF, in particular, under different authorship.

By the way, it is difficult to imagine that Russian authors, who dedicated their work to the issue of “war crimes” in Ukraine in 2014, have not been aware of the relevant round table and its final document - but they did not mention these facts in their publications. It is easy to understand, as among the “key” arguments about the innocence of the Soviet partisan V.M. Kononov, accused of war crimes against the Latvian population in the village of Mazie Bati in 1944, the final document of the round table contained a denial of the principle of universal jurisdiction.

The fact that the ECHR in its decision recognized (something really difficult to accept) that the place of the commission of war crimes by V.M. Kononov was in the USSR. As this issue is considered in the final document of the round table, “if Mazie Bati was in the USSR, then the villagers should be regarded as Soviet citizens. Accordingly, in the incident with Kononov's squad Soviet citizens suffered from the Soviet partisans on the Soviet territory. Meanwhile, international humanitarian law, referring to the civilian population, regulates (and even more so at that time regulated) only the relationships between the armed forces of one side and the civilian population of the other side. Relations between the military servicemen and civilians of the same party of the conflict fall out of this scheme”. In addition, the final document noted that “for this reason, if the killed villagers are considered as civilians, war crimes from the side of V.M. Kononov against them are basically impossible”.

Also the final document of the round table stated that “justifying the applicability of the Charter of the Nuremberg Tribunal to V.M. Kononov, the Court gave examples of judicial practice, entirely related to prosecution by the state either of its own military servicemen, or of the Nazis. The explanation of why it gives Latvia the right to prosecute the Soviet partisan V.M. Kononov, the Court did not give”.

The last phrase of the final document of the round table in its overall context clearly and unequivocally indicates its authors' denial of the principle of universal jurisdiction, which allowed Latvia to spread its jurisdiction on V.M. Kononov, even provided the nonrecognition of connection between the modern state and events on its territory in 1944. In addition, as it follows from the above, the Russian legal doctrine in the face of 14 leading universities and scientific institutions and the relevant professors denies the very possibility of qualification of any acts committed in an internal conflict as war crimes.

Everything said would be enough to describe the real attitude of legal doctrine to the issue of prosecution of war crimes committed in conditions of internal conflict on the basis of universal jurisdiction. But in addition it is interesting to give the considerations of the participants of the round table on the issue of V.M. Kononov's awareness of criminality of his acts. In its judgement, the Grand Chamber of the ECHR pays great attention to that V.M. Kononov as a “professional partisan” should have known about the regulation of partisan activity, understood the risks of future operations and ultimately understood that it could be referred to as criminal and result in criminal liability.

On this occasion in the final document of 2011 the above mentioned representatives of Russian science unanimously consider that “is hardly correct to equate partisan combat activity to the profession, which requires knowledge of its legal regulation. It is well known that partisans (like the majority of other soldiers during the war) got only a minor specialized training, and had other professions in their civilian life. The war was a compelled temporary occupation for them”. As Russian scientists indicated in this document, the V.M. Kononov's case “caused considerable controversy in public, including among international lawyers”.

In other words, they say, “if even today when international humanitarian law has made significant steps forward, among experts there is no consensus on the legality of the operation in Mazie Bati, how can it be possible to require a clear understanding of a crime of the operation from 19 years old partisan, unfamiliar with the legal nuances and certainly unable to foresee political and legal changes that will occur over the next 50 years?” So let us offer the ICRF, qualifying the acts of Ukrainian combatants, not to forget to use an appropriate consentient and unanimous position of the legal doctrine of the RF on realization of their actions in Ukraine by such combatants, which, according to these Russian scholars and practitioners, break none other than “international agreements of the RF”, to which actually the USSR joined with reservations 60 years ago.

Also, during the classification of “war crimes” of the Ukrainian combatants against “civilian population” in Ukraine, it would be useful for the RF investigative bodies to borrow the following position on the status of the population in terms of internal conflict from Russian legal doctrine. As stated in the final document of the round table on the V.M. Kononov's case, “under international humanitarian law all persons in the armed conflict, with few exceptions, belong either to combatants or to civilians. Both must comply with obligations arising from their status. In particular, civilians, to use appropriate legal safeguards, must not take part in hostilities. This notion of participation in hostilities is widely interpreted: these include, in particular, supplying troops with food, exercise the functions of communication, etc. If civilians are engaged in such activities, they shall not only lose their right to protection, but shall be seen as people who have gone over to the enemy”.

Thus the logic of the authors of the final document is the following: any civilian who indicated to the combatant the location of his colleagues in his own village or gave him a piece of bread, may be regarded as an enemy combatant because of such actions. Unfortunately, such a politically biased and simplistic attitude to international humanitarian law was characteristic for Russian scientific publications on both the V.M. Kononov's case and the issue of “war crimes” in Ukraine. By the way, we have not found any Russian scientific publications containing criticism of the mentioned final document 2011, including the above provisions.

So, on the issue of attitude of Russian legal doctrine to the problem of universal jurisdiction the following should be stated:

- there are some fundamental publications of Russian authors before 2014, devoted to the issue of the application of universal jurisdiction in criminal proceedings, containing criticism of the relevant concepts, quite acute regarding “the general universal jurisdiction”, which provides for criminal proceedings in absentia;

- devoted to this subject publications of foreign professors in Russian scientific journals are critical to the concept of universal jurisdiction up to its denial;

- the opinion of a significant number of leading Russian scientists in the field of international law, accumulated in the final document of the round table on the case “Kononov vs. Latvia”, indicates the denial of the principle of universal jurisdiction and the very possibility of punishment for war crimes in terms of internal conflict by Russian scientific doctrine - in the situation where it is required by the political interests of the RF;

- all those positions on universal jurisdiction are not mentioned or discussed in the publications of Russian authors devoted to “war crimes” in Ukraine.

Additionally, it is worth analyzing the scientific style, the objectivity of facts and the level of bias of the mentioned Russian authors' publications about the persecution of “war crimes” in Ukraine by the ICRF. Unfortunately, the level of appropriate indicators is poor. Thus, in the above mentioned article by A.G. Volevodz the author's position on the development of events in Ukraine with abstract reference to Russian media or security agencies without reference to the source is described. Such arbitrary manipulation of “commonly known facts”, however, extremely controversial, such as information on the use of the UN symbols by Ukrainian combatants in the conflict zone, by the author can not lead to any objective assessment.

In addition, during 2014 A.G. Volevodz published a series of other articles on development of events in Ukraine, which are already politically engaged and even journalistic. These articles are “The 104th anniversary of Bandera: Ukrainian nationalists against the UN”, “Lies of the Ukrainian representative in the UN”, “Who is trying to initiate the alliance of Ukrainian nationalists and the International Criminal Court”, “The cunning move of Ukrainian nationalists”; these publications show the author's sincere aversion to the ideas of Ukrainian nationalism, which by themselves have little in common with international humanitarian law and criminal law.

In the mentioned article by P.V. Volosyuk a technique, that allows presenting of certain interpretations of events or the author's evaluation as commonly known facts, is widely used. The political attitude of the author to the subject of scientific research can be argued, citing his remarks that “the inhabitants of the rebel regions of Ukraine in response to the atrocities that took place in the capital of their native state, demanded decentralization of authority” and the ones about “the union of Donetsk and Luhansk regions into Novorossia and its potential desire to join the RF”. Article by I.I. Kotlyarov at all was published in the periodical of the Communist Party of the RF under the heading “Against the Banderovites” and contains terms like “Ukrainian pro-fascist-bandera regime”, although unlike the articles by P.V. Volosyuk and A.G. Volevodz gives references to sources in the Russian media, from which “the commonly known facts” were borrowed. The above suggests the political bias and lack of attention to the sources of all publications by Russian scientists in 2014, which set out the vision on application of universal jurisdiction to prosecute persons who committed “war crimes” in a conflict in Eastern Ukraine.

In summary, it is necessary to state the following. The thesis of Russian authors in scientific publications of 2014 - 2015 argue the legality of the use of the principle of universal jurisdiction by the ICRF for prosecution of the Ukrainian combatants and their leaders who have committed “war crimes” in the conflict in Eastern Ukraine, but they have no adequate scientific justification. The Geneva Conventions 1949 and the Additional Protocols, the international working papers on universal jurisdiction, the norms of the CC of the RF, foreign precedents on the application of universal jurisdiction over war criminals mentioned by these authors, are extremely diverse and sometimes contradictory. In addition, these authors do not mention the achievements of Russian and Russian-speaking legal doctrine on universal jurisdiction, which has critical and controversial nature, do not mention the regulations that do not meet their proposed structures, in particular the UN General Assembly Resolution on universal jurisdiction and the norms of the CPC of the RF. Scientific positions of these researchers have clearly expressed politicized nature.

Therefore, to determine the format and possibilities of prosecuting persons who have committed crimes against humanity and war crimes during the events in Kiev, occupation and annexation of the Crimea, hostilities in the East of Ukraine - in jurisdictions of Ukraine, the RF and third states as well as international judicial institutions a special scientific discussion of maximum level of representativeness and minimum level of politicization should be organized.

References

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