The ICC’s arrest warrants for Russian officers will reverberate beyond Russia.
The International Criminal Court announced on Tuesday that it had issued arrest warrants for two senior Russian commanders on charges of war crimes and crimes against humanity.
The ICC, based in The Hague, Netherlands, belongs to the world only permanent international criminal court with the power to investigate and prosecute genocide, war crimes, crimes against humanity and the crime of aggression. It was established as a ‘last resort’ and has a mandate to try particularly serious crimes that domestic courts are unable or unwilling to deal with. Because the cases are relatively rare, they are closely monitored by the international community.
Tuesday’s announcement marks a significant step forward in the ICC prosecutor’s case against Russia. Last year, the court issued arrest warrants for Russian President Vladimir Putin and Maria Lvova-Belova, Russia’s commissioner for children’s rights, on charges of Russia’s kidnapping and deportation of Ukrainian children to Russia. But this is the first time the prosecutor has filed charges specifically related to the way Russia conducted its war in Ukraine.
Russia has said it does not recognize the arrest warrants or the jurisdiction of the International Criminal Court and that it denies war crimes. And to be clear, it is unlikely that the commanders, Lieutenant General Sergei Ivanovich Kobylash and Admiral Viktor Nikolaevich Sokolov, will ever be arrested. The court relies on member states to make arrests because it has no police or enforcement powers of its own. So as long as the men remain in Russia or another friendly jurisdiction, it is unlikely they will end up in custody in The Hague.
But the arrest warrants themselves amount to a significant rebuke of Russia’s actions in Ukraine. They were welcomed on Tuesday by Ukrainian President Volodymyr Zelensky wrote on social media: “Every perpetrator of such crimes must know that he will be held accountable. International justice takes time, but it is inevitable.”
And they could also set an interesting precedent, legal experts say — one that could have implications for the Gaza conflict and other wars.
What are the Russian officials accused of?
The arrest warrants relate to Russian missile attacks on Ukrainian power plants and other electrical infrastructure. Russia has heavily attacked Ukraine’s power grid in an attempt to “weaponize winter,” as one of my colleagues wrote last year. Russian missile attacks on Ukrainian electricity substations and other infrastructure have plunged cities into temporary darkness, left citizens without heat in cold winters and disrupted the Internet and other communications.
A power plant used by the civilian population would normally be protected by international law, which prohibits attacks on civilian infrastructure. It is possible that a power plant becomes a legitimate military target if, for example, military operations take place. But in that case, all attacks must follow the rule of proportionality: the damage to civilians resulting from the loss of power must not be excessive in relation to the expected military advantage.
The ICC arrest warrants accuse the two Russian commanders of committing war crimes by violating both norms.
“There are reasonable grounds to believe that the alleged attacks were directed against civilian targets,” the court said in its statement. “And for those installations that might have qualified as military targets at the relevant time, the expected incidental harm to the civilian population would clearly have been excessive in relation to the expected military benefit.”
The arrest warrants also allege that the series of attacks on Ukraine’s power grid together constitute a crime against humanity, indicating that prosecutors are looking at the overall conduct of the war as well as the legality of individual incidents.
“They’ve brought them together in an indictment for crimes against humanity, making it clear that they don’t think these are just individual bad acts,” said Rebecca Hamilton, a law professor at American University. Because that specific crime requires the attacks to be related to state policy, the crimes against humanity indictment says, “No, this was part of a systematic plan by the state to wage the war in this way, harming civilians.” ‘ ”
Proportionality is important
It is particularly significant that the arrest warrants allege that Russia’s attacks on Ukrainian infrastructure have caused disproportionate harm to civilians, said Janina Dill, co-director of the Oxford Institute for Ethics, Law, and Armed Conflict, because experts often disagree about what the law of proportionality. required, and there is little international case law interpreting this.
“We don’t really have a good precedent of someone saying, ‘Look, here’s an ironclad international court saying that someone is criminally liable for a disproportionate attack,’” she said.
“There are three big questions here: what counts as military benefit, what counts as harm to the civilian population, and then how to weigh them against each other,” Dill said. “And actually each of these questions is the subject of very intense doctrinal debates.”
These legal questions have recently come to the fore during Israel’s military operation in Gaza.
The Israeli army has heavily bombed the narrow, densely populated enclave and razed entire neighborhoods to the ground. According to the local health ministry, the war has now killed more than 30,000 people, or about one in 73 Gazans, the majority of them women and children. And that toll is likely to rise as Israel’s restrictions on aid entering the region contribute to a spiraling humanitarian crisis. The United Nations has warned of an impending famine in northern Gaza.
Israel has said it follows international law and does not target civilians or carry out attacks that cause disproportionate harm to them.
The exact details of the arrest warrants against the Russian officials are secret, but the ICC said it took the step to announce them because “behavior similar to that in the current situation” is underway, and it hopes that publishing of the arrest warrants could help prevent further crimes.
That referred to Russia’s ongoing actions in Ukraine, Fadi El Abdallah, the head of the court’s public affairs department, told me.
However, some legal experts believe that the arrest warrants could also be relevant to other conflicts around the world, indicating that the court will prosecute these types of attacks on civilian infrastructure.
“It sends the message to the conflict actors in Ukraine, but it sends that same message to conflict actors in every war around the world, including, right now, first and foremost Gaza,” Hamilton said.
The ICC prosecutor has a investigation opened in the Gaza conflict, and in Hamas’ attack on Israel on October 7 last year, which Israeli authorities say killed around 1,200 people and led to the kidnapping of some 250 others.
“The more clarity we have about what a disproportionate attack looks like, the greater the deterrent effect that the principle of proportionality can have in an individual context,” Dill said. “So it is really relevant for Gaza that this is on the ICC’s radar”
In a national judicial system, a single arrest warrant (or more precisely, a press release about arrest warrants) might not have much of a deterrent effect. Legal interpretations must survive trials and appeals before they can have significant influence.
But international law often has its greatest effects by shaping norms and public opinion, rather than through direct enforcement, independent experts say.
Trials in international courts, especially criminal courts, are rare. Since its founding about twenty years ago, the ICC has handled only 31 cases fallen, although some of these had more than one defendant. Previous tribunals were temporary and limited to individual conflicts, such as those in the United States Rwanda And the former Yugoslavia.
Trials that do occur last for years, during which time conflicts may persist. Signals about the court’s possible future interpretations or decisions can therefore have a persuasive effect, even if they are provisional and non-binding.
“I think it’s a fundamental misunderstanding of the work that an international court can do, and in particular the ICC, to only look at that moment when you actually put your suspect in the dock,” Hamilton said.
“They are an international institution whose mandate includes having this expressive role, and signaling to the world at large what is appropriate behavior, thereby sending the message that there will be accountability if the law is not followed. And that is the message that goes beyond each individual case.”