By Rozhin Sarmadi
While many war crimes cases languish for years awaiting proceedings before international tribunals, Ukraine’s experience has demonstrated that domestic courts can emerge as the frontline in the fight against impunity. In a recent study, Mark Klamberg, Professor of Public International Law at Stockholm University, examines how the Ukrainian judicial system has sought to prosecute perpetrators of war crimes following the Russian invasion and what lessons can be drawn from this experience for other armed conflicts.
The research paper, titled “War Crimes Trials Before Domestic Courts in Ukraine – Making the Case for a Differentiated Approach to International Law,” was published as part of the legal research series at Stockholm University’s Faculty of Law. Klamberg, a prominent scholar in international criminal law, the International Criminal Court (ICC), and criminal responsibility arising from armed conflict, analyzes domestic war crimes prosecutions in Ukraine. He demonstrates how national courts can utilize international humanitarian law (IHL) rules to determine individual criminal liability while striking a balance between international legal obligations and domestic criminal law principles.
Contemporary conflicts have once again brought a long-standing question to the center of legal debate: when civilians are targeted, prisoners subjected to inhumane treatment, or civilian property destroyed during armed conflict, which authority should hold perpetrators accountable?
Klamberg argues that the answer does not lie solely in establishing international tribunals. In his view, decades of experience show that international courts possess limited capacity and cannot handle every war crimes case worldwide. Consequently, domestic judicial systems bear the primary responsibility for executing international criminal justice. Under obligations arising from the Geneva Conventions and other international instruments, states are legally bound to establish domestic criminal mechanisms to prosecute perpetrators of international crimes.
Ukraine offers a concrete case study of this approach in practice. Following the full-scale Russian invasion in February 2022, Ukrainian prosecutors registered tens of thousands of war crimes cases, initiating judicial proceedings against suspects. In his paper, Klamberg analyzes several cases in which Ukrainian domestic courts applied international humanitarian law to rule on acts such as civilian killings, attacks on residential areas, and inhumane treatment of protected persons.
A central aspect highlighted by the author is how rules of international humanitarian law are incorporated into usable legal tools within domestic courts. He explains that states generally adopt one of two main pathways for criminalizing war crimes: some draft restrictive domestic statutes containing an explicit list of offenses, while others—such as Ukraine—link domestic criminalization directly to broader IHL rules.
This divergence presents a legal dilemma. A broader incorporation model prevents legal loopholes and impunity, yet raises concerns regarding whether specific criminal definitions are sufficiently foreseeable to defendants. Conversely, restricted domestic codes enhance legal certainty but risk falling out of step with developments in international law. Klamberg argues that the most effective solution is a differentiated approach: defining war crimes based on international humanitarian law while assessing criminal intent, criminal liability, and legal defenses through national penal rules.
Another key component of Klamberg’s research focuses on command responsibility, a decisive element in wartime prosecutions. While low-ranking soldiers may execute war crimes on the ground, high-level decisions, organizational directives, or a deliberate failure by commanders to prevent atrocities play a pivotal role. The author explores how the absence of clear statutory provisions on command responsibility can hamper prosecutions against military leaders, underscoring why legal systems must incorporate explicit frameworks for superior accountability.
The relevance of this discussion extends far beyond the war in Ukraine. Across numerous armed conflicts—from Syria and Iraq to other regions experiencing sustained violence—the primary challenge is not merely proving that an IHL breach occurred, but establishing the chain of command and legal liability connecting direct perpetrators to high-ranking commanders and key decision-makers.
For the Iranian Kurdistan Human Rights Watch (IKHRW), the legal framework outlined in Klamberg’s study offers an invaluable model for bridging human rights documentation with judicial accountability. Field reports on civilian abuses, the recruitment of child soldiers, enforced disappearances, torture, and deliberate attacks on non-combatants become judicially actionable only when documented according to rigorous evidentiary standards—including detailed temporal and spatial data, perpetrator identification, command structure mapping, corroborating evidence, and clear links between order-givers and executors.
Regarding child recruitment in armed conflict, for example, merely recording cases of child recruitment or deployment is insufficient. It is vital to investigate and document the precise roles played by recruitment officers, unit commanders, and superiors who had the power and duty to prevent these unlawful practices. The same imperative applies to attacks on civilians and other grave breaches of IHL.
The Ukrainian experience examined by Klamberg also highlights the potential of judicial mechanisms in third countries, particularly in Europe. Where victims lack access to justice in the territorial state where crimes occurred, mechanisms such as universal jurisdiction and international judicial cooperation offer alternative pathways to pursue accountability.
Ultimately, Klamberg’s research delivers a clear message to human rights documentation groups: a human rights report is not merely a record of events, but potential first-stage evidence for criminal prosecution. Bridging the gap between victim testimony and courtroom proceedings depends entirely on documentation quality, legal precision, and adherence to international criminal law standards. Ukraine demonstrates that accountability for war crimes is attainable even amid ongoing conflict—provided that evidence, testimonies, and case details are systematically gathered and preserved in a legally viable format.
