Weekly analysis for 26 June – 2 July

International Criminal Court issued new arrest warrants: practical significance and prospects of conviction

Event

On June 25, 2024, Pre-Trial Chamber II of the International Criminal Court (ICC) announced the issuance of further arrest warrants at the request of the Office of the Prosecutor of the Court in the context of its investigation into the situation in Ukraine.

The defendants in the two new warrants are former russian defense minister Sergei Shoigu and the current chief of the General Staff of the russian armed forces, first deputy defense minister Valery Gerasimov. According to the press release, both are suspected of involvement in war crimes and crimes against humanity.

CPLR’s assessment

This is the 5th and 6th arrest warrants issued by the ICC for alleged gross violations of international law committed during russia’s aggression against Ukraine. All of the warrants concern members of russia’s senior military and political leadership: last year, the Court ruled to arrest russian president V. Putin and its commissioner for children’s rights M. Lvova-Belova (on suspicion of involvement in the illegal deportation and transfer of Ukrainian children), and in March of this year – the current commander of the long-range aviation of russian ASF S. Kobylash and the commander of the russian Black Sea fleet V. Sokolov (on suspicion of involvement in targeted shelling of Ukrainian critical infrastructure).

The Office of the ICC Prosecutor K. Khan suspects that the actions of S. Shoigu and V. Gerasimov may constitute a war crime under Article 8(2)(b)(ii),(iv) of the Rome Statute of the Court (“intentionally directing attacks against civilian objects, i.e. objects that are not military objectives”; “intentionally launching an attack in the knowledge that such an attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”), as well as the crime against humanity provided for in Article 7(1)(k) of the Statute (“other inhuman acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health”).

It is noted that Shoigu and Gerasimov allegedly committed these grave offenses during an episode of the Russian Armed forces’ campaign of attacks on Ukraine’s energy infrastructure during the first winter of Russia’s full-scale invasion (from at least October 10, 2022, to at least March 9, 2023). During that period, Russian forces carried out multiple attacks on power plants and substations in various regions of Ukraine. The ICC Prosecutor considers that the suspects are individually criminally responsible for these crimes, having committed them jointly with and/or through other person (Article 25(3)(a) of the Statute), ordered the commission of the crime (Article 25(3)(b) of the Statute) and/or failed to exercise proper control over the forces under their effective command (Article 28(a) of the Statute).

One of the key customary principles of international humanitarian law applicable to all armed conflicts is the principle of distinction. Parties to an armed conflict must always distinguish between civilians and combatants, and attacks may only be directed against combatants and must not be directed against civilians. According to the Court’s press release, Pre-Trial Chamber II concluded that there were reasonable grounds to believe that the that the alleged strikes were directed against civilian objects, and for those installations that may have qualified as military objectives at the relevant time, the expected incidental civilian harm and damage would have been clearly excessive to the anticipated military advantage. Therefore, in assessing the criminal responsibility these persons, the Court must consider whether the alleged conduct abided by the principle of distinction and protection of civilians was observed. 

Furthermore, the Chamber II found that there are grounds to qualify the suspects’ actions as a crime against humanity given that campaign of shelling of energy facilities by the Russian Armed Forces is regarded as an “attack directed against any civilian population”, which, according to Article 7(2)(a) of the Rome Statute, should be understood as a course of conduct involving the multiple commission of acts against the civilian population, carried out pursuant to a State policy directed to the commission of such an attack.

The qualification of the actions of Shoigu and Gerasimov, in particular, as a crime against humanity related to “other inhuman acts” rather than a war crime related to intentional attacks on civilians is important, as it actually means recognizing these attacks as elements of Russia’s deliberate state policy of causing great suffering, serious injury or serious harm to the mental or physical health of the civilian population of Ukraine.

The speed of issuing of new warrants is striking, given that the episode of shelling in question ended just over a year before the warrants were issued. Usually, in other cases, it takes longer for the investigation to collect evidence sufficient to issue an arrest warrant. In this case, the evidence base is apparently sufficient: the press release states that “the key factual allegations are duly supported by evidence and other relevant material submitted (…) by the prosecution, (…) the statutory requirements are met to issue the sought warrants of arrest”. By the way, the previous four arrest warrants against other Russian officials were issued relatively quickly.

Such an accelerated speed of investigative actions by the Office of the Prosecutor and the Court itself is extremely important to ensure timely and effective prosecution of key perpetrators. This is likely due to the close cooperation of Prosecutor K. Khan with the Ukrainian Office of the Prosecutor General and law enforcement agencies of Ukraine, as well as investigative bodies of other states. In particular, cooperation between the Hague and Kyiv was greatly facilitated by the opening and launch of the ICC Prosecutor’s Office in Ukrainian capital, which was not previously experienced in other countries.

Following the announcement of the new warrants, K. Khan published a statement in which, among other things, confirmed that his Office considers these unlawful acts by Shoigu and Gerasimov in the overall context of Russia’s aggressive actions against Ukraine’s sovereignty and territorial integrity that began in 2014. This is a very important statement that adds clarity to the situation of some existing uncertainty regarding the scope of the ICC’s jurisdiction over the events in Ukraine.

Thus, in statement of March 2, 2022, regarding the open of investigation by the Office of the Prosecutor into “war crimes, crimes against humanity and genocide” allegedly committed in Ukraine since November 21, 2013, Prosecutor K. Khan referred to Kyiv’s ad hoc recognition of the ICC’s jurisdiction by submitting two applications to the Verkhovna Rada in 2014 and 2015.

However, the texts of these statements of the Ukrainian parliament mention only crimes against humanity committed by senior officials during the Revolution of Dignity and war crimes and crimes against humanity committed by Russian officials and leaders of the “DPR and LPR” at the beginning of the Russian invasion in 2014, and do not mention genocide. However, as noted by T. Korotkyi and Z. Tropin, the texts of the 2014 communications of the Embassy of Ukraine in the Netherlands and the 2015 communications of the Ministry of Foreign Affairs of Ukraine, through which the statements of the Verkhovna Rada of Ukraine were transmitted to the ICC Registrar, do not contain any restrictions on the categories of crimes and the range of perpetrators. Instead, they refer to the full recognition of the Court’s jurisdiction for specific periods of time.

At the same time, limited recognition of the ICC’s jurisdiction over a range of persons or for a specific time period (until a specific date) is inadmissible, as it is considered by the Court as limitations prohibited by its Statute. As regarding restrictions on the categories of crimes, they are generally legitimate, since the state itself requests the ICC to investigate specific international crimes committed on its territory.

Therefore, as of today, the scope of the ICC’s powers over the situation in Ukraine, namely the events that occurred before February 24, 2022, remains officially unclear. According to international law, it is the Ministry of Foreign Affairs and embassies that represent states in international relations, thus the actions of these agencies, and not the parliament, are legally binding. At the same time, the statement of K. Khan is only a personal opinion of the official, and we will see the position of the Court in the relevant decision of the Pre-Trial Chamber, which has not yet been issued. It should not be assumed that the issuance of arrest warrants for Putin, Lvova-Belova, Kobylash, Sokolov, Gerasimov and Shoigu address the issue of the scope of the Court’s jurisdiction over Ukraine: these individuals are suspected of committing war crimes that occurred after February 24, 2022, the authority for which is beyond doubt.

Consequently, the Government of Ukraine may either a) await the decision of the ICC Chamber on the scope of jurisdiction in terms of duration and categories of crimes; b) determine through the Verkhovna Rada of Ukraine what exactly its statements are in relation to the communications of the Ministry of Foreign Affairs and the Embassy in the Netherlands (taking into account the law of international treaties) and submit a third statement to The Hague confirming the scope of the Court’s jurisdiction as indicated in the communications of the Embassy, the Ministry of Foreign Affairs and the statement of the ICC Prosecutor; or 3) ratify the Rome Statute of the Court with a declaration based on Article 11 of the Statute on the extension of the ICC’s jurisdiction to events occurring before the date of ratification and referring to the 2014 and 2015 statements of the Verkhovna Rada, the relevant notifications of the Embassy and the Ministry of Foreign Affairs, and the 2022 statement of the Prosecutor of the Court. In our opinion the last option seems to be the most acceptable. The CPLR’s experts repeatedly expressed their position in favor of the ratification of the ICC RS.

Thus, K. Khan’s statement published this week is important given the fact that it confirms the position of the ICC Prosecutor’s Office regarding the scope of the Court’s jurisdiction over Ukraine.

It is worth noting that the acts incriminated to Shoigu and Gerasimov are identical to those of the defendants in the two previous warrants, Sokolov and Kobylash, and were committed in the same period against energy facilities and civilians in Ukraine. It can be assumed that the investigation has evidence to prove that it was the chief of the General Staff and the Minister of Defense, as representatives of the highest military command, who ordered or allowed these attacks to be committed, in particular, the Commander of the Long-Range Aviation and the Commander of the Black Sea Fleet.

On the other hand, the ICC has shown through its warrants that these suspicions of top military officers may be elements of its broader efforts to bring Putin directly to justice for these crimes. More information and time are needed to bring charges against those at the top of the chain of command. To convict Russia’s highest military commanders and political leaders, the Court must understand who issued the relevant orders. This can only be done by examining written orders or hearing witnesses, which is currently quite difficult.

The ICC case against the last four defendants as military commanders may differ from the Putin case, as they will be more clear: the military act based on orders that can be traced, making the link between the crime and the perpetrator more direct. At the same time, this is a case of missile and UAV attacks launched from a great distance – potential defense lawyers will obviously claim that the strikes were directed at military targets, or that the hit sites were actually military objectives, or that the hits on civilian objects were accidental.

In addition, we can see that the Court chose a strategy of focusing on the top of the political and military leadership, unlike other cases where the investigation went “bottom to top” from ordinary soldiers to generals and government officials. Obviously, the evidence base gathered is specific, which allows for this approach.

As noted by the ICC Prosecutor’s Office, the shelling of civilian infrastructure is one of the three priority clusters for investigation, along with the deportation of children and conflict-related sexual violence. Therefore, further arrest warrants are likely to be issued for one of these groups of crimes as well.

Moreover, we should not forget that bringing persons to criminal responsibility in the national courts of Ukraine and other states and international judicial institutions is an essential component of responsibility and one of the four main elements of transitional justice. The national model of transitional justice for Ukraine is currently being developing, and it is a complex and long process. However, transitional justice and the punishment of those responsible as its component can help Ukraine overcome the consequences of russian war and build a better future.

It is interesting that the judges of Chamber II decided to disclose some details of the warrants (this was the case with each of the six warrants issued), which are traditionally generally secret for purposes of complying with the requirements of the investigation and the safety of witnesses. The ICC is doing this with a preventive purpose: there is a chance that publicizing the fact that arrest warrants have been issued will deter both the suspects and others from (continuing to) commit international crimes.

As regarding the real consequences of these warrants, their main effect will be manifested in the future. Currently, the defendants subject to the warrants are practically isolated in Russia and several authoritarian states. The 124 states parties to the Rome Statute should arrest these individuals immediately after they enter their territory. In addition, there is always chance of possible extradition of these individuals by a new russian government, if it will decide to restore relations with the civilized world.

Immediately after these individuals will be brought to the ICC, it will be possible to start trials against them. Until then, this is impossible since according to the Rome Statute, a trial cannot take place in absentia (in the absence) of the suspects. The maximum penalty facing russian top officials is life imprisonment.