Daniil Ukhorskiy is a Kyiv-based lawyer and investigator specializing in the documentation of atrocity crimes in conflict-affected settings and the representation of survivors of serious human rights violations. He serves as Ukraine Programme Manager at Legal Action Worldwide and has worked on violations committed during Russia’s full-scale invasion since March 2022. His broader interests include corporate accountability and environmental rights. Ukhorskiy holds a BA in Jurisprudence and a BCL from the University of Oxford and previously worked with the Clooney Foundation for Justice, investigating atrocity crimes committed by Russian forces in Ukraine.

Ukhorskiy discusses the legal architecture surrounding Russia’s war against Ukraine, drawing a crucial distinction between state acts of aggression and the individual criminal liability required under international law. He explains why aggression is considered a leadership crime, requiring evidence that specific individuals directed or controlled state policy and military action. While international bodies have overwhelmingly characterized Russia’s conduct as aggression, jurisdictional constraints continue to limit the International Criminal Court’s ability to prosecute the crime directly. Ukhorskiy also examines the continuing relevance of the Nuremberg framework, the potential liability of industrial and economic actors connected to the war effort, and the growing body of evidence documenting systematic unlawful detention and torture in occupied Ukrainian territories.

Scott Douglas Jacobsen: In legal terms, how much doubt remains concerning Russia’s aggression against Ukraine, particularly given that one UN member state used armed force against another?

Daniil Ukhorskiy: A state commits an act of aggression, but individuals commit the crime of aggression. That distinction matters. In international law, state responsibility and individual criminal responsibility are related but separate, and both are important for accountability. Under the Rome Statute, the crime of aggression concerns the planning, preparation, initiation, or execution of an act of aggression by a person in a position effectively to control or direct the political or military action of a state.

In legal and political terms, there is very strong support for describing Russia’s conduct against Ukraine as aggression. The UN General Assembly adopted Resolution ES-11/1 on 2 March 2022, condemning the Russian Federation’s aggression against Ukraine, and other international bodies have used similar language.

For individual criminal liability, however, the question is not simply whether aggression occurred, but which persons can be shown to meet the elements of the crime. The legal threshold is narrow. It is a leadership crime aimed at those in positions of effective control over a state’s political or military action, not ordinary soldiers. The act of aggression must also constitute a manifest violation of the UN Charter by its character, gravity, and scale.

In that sense, the case is strongest at the senior political and military level. The more centralized the decision-making structure, the easier it is to argue that responsibility was concentrated among top leaders. However, individual criminal liability still depends on proof tied to specific individuals and their role in planning, preparing, initiating, or executing the aggression.

It is also important to be precise about jurisdiction. The International Criminal Court can investigate war crimes, crimes against humanity, and genocide committed in Ukraine, but it does not currently have jurisdiction over the crime of aggression in this situation. This gap has led to efforts to establish a Special Tribunal for the Crime of Aggression against Ukraine.

Jacobsen: In a political system marked by increasing centralization of authority, does that strengthen the evidentiary and legal case against senior leadership?

Ukhorskiy: It can strengthen the evidentiary case against senior leaders, because aggression is defined as a leadership crime. However, the legal conclusion must still rest on evidence showing that a particular individual exercised the necessary level of control or direction over the state’s political or military action.

A hypothetical puppet government entirely controlled by others could complicate attribution. In practice, the analysis focuses on those who actually directed or controlled state policy behind the use of force. Responsibility below the highest level becomes more fact-specific and depends on the available evidence regarding each individual’s role.

The Nuremberg precedent remains relevant. The modern definition of aggression draws on its framework, particularly the focus on planning, preparation, initiation, or execution. However, any comparison must be grounded in contemporary law, jurisdiction, and evidence rather than analogy alone.

Jacobsen: That distinction seems subtle but highly consequential, particularly when questions of individual liability are involved.

Ukhorskiy: This is where the analysis moves into a grey area. Centralization of authority does not fundamentally change the legal framework. It may affect marginal arguments, particularly for actors such as industrialists. However, those within the core political and military leadership would likely bear responsibility regardless of how centralized the system is.

Centralization may make it more difficult for individuals on the periphery to argue that they were not involved or lacked sufficient connection to decision-making.

Jacobsen: These arguments also appear to carry an intuitive logic, especially when viewed through analogies from other areas of law. States and private actors that provide weapons or material support are often judged according to how those resources are used. The industrialist analogy seems to follow a similar line of reasoning, focusing on production, knowledge, and participation in the broader war effort.

Ukhorskiy: It is useful to return to the distinction between a state act and an individual act. What is distinctive about the crime of aggression is that it imposes criminal liability on a state for its act. By contrast, crimes such as murder, torture, or sexual violence are direct individual acts, where one person harms another.

The leadership element exists because the crime of aggression is not concerned with the physical act of crossing a border. It concerns the policy decision of one state to use force against another. The legal claim is that certain individuals are responsible for that decision and its execution, rather than merely participating in it.

This limitation was intentional. Both the Nuremberg tribunals and the drafters of the Rome Statute confined the crime of aggression to those in positions of leadership.

Regarding industrialists, the argument draws on general principles of complicity in domestic criminal law. If a person provides a weapon knowing it will be used to commit a crime, that person may be held liable as an accomplice. The same logic can apply in international law.

The key issue is knowledge. It would be necessary to demonstrate that an industrialist knew that the goods they produced were being used as part of a military buildup contributing to an aggressive war. At Nuremberg, this reasoning was applied in certain cases, including those involving industrial support for crimes against humanity, in which companies supplied materials with knowledge of their intended use.

The more difficult question is whether such actors satisfy the leadership requirement for the crime of aggression. That depends on whether they can be shown to have been part of the decision-making structure responsible for initiating or directing the aggression. This is a more complex argument, though not inconceivable.

In the Russian context, one could examine structures where political and economic authority intersect. For example, bodies that coordinate the military-industrial sector may blur the line between state decision-making and industrial participation. Whether that is sufficient to meet the leadership threshold would depend on the evidence.

Jacobsen: If aggression is the foundational crime in this context, what would you consider the next most thoroughly documented or legally substantiated category of crimes?

Ukhorskiy: Unlawful detention and torture are among the most substantiated. There is significant evidence of these practices by Russian forces. These violations occur across multiple contexts, including civilians, journalists, and prisoners of war. They are documented at various levels and form a substantial body of evidence within ongoing investigations.

In terms of victim categories, the primary legal distinction is between prisoners of war and civilians. Across both groups, there is extensive evidence of torture occurring in a wide range of facilities and conditions.

On the perpetrator side, the group is broad. It includes members of the military across different branches, as well as security and law enforcement bodies. These include the Federal Security Service (FSB), other security services, and police units deployed from Russia into occupied Ukrainian territories to perform law enforcement functions. Some of these actors operate in roles that blur the line between civilian and military authority.

This wide range of perpetrators reinforces the argument that these abuses are systematic. The practices occur in large, formal detention centers, temporary facilities, and informal locations such as improvised holding sites. While methods of abuse may vary, there are consistent patterns across locations, suggesting a degree of authorization and, in many cases, coordination.

The evidence indicates that torture is used both as a method of repression and as a means of extracting information or confessions. Detainees are often accused of activities such as passing information to Ukrainian forces or otherwise assisting them. In many cases, however, torture is used to extract forced confessions under extreme duress.

There are also documented patterns of targeting individuals perceived as political opponents or disloyal to the occupying authorities. This includes individuals who openly identify as Ukrainian, refuse to adopt Russian citizenship, or resist integration into occupation structures. In such cases, detainees may be coerced into confessions of offenses such as terrorism or treason, which are then used in proceedings lacking due process guarantees, resulting in long-term imprisonment.

These practices are not without precedent. Similar patterns have been documented in earlier conflicts involving Russian forces, including in Chechnya and, to a lesser extent, Georgia, as well as within the domestic criminal justice system in Russia, where there have been longstanding concerns regarding torture and coercive interrogation practices.

Jacobsen: Thank you very much for the opportunity and your time, Daniil.