Prosecuting Wagner Group War Crimes at the International Criminal Court? A Procedural Perspective

[Philip D. Cave is a retired U.S. Navy judge advocate, a Director of the National Institute of Military Justice (NIMJ), and a partner in Cave & Freeburg, LLP.

Franklin D. Rosenblatt is a retired U.S. Army judge advocate, President of the NIMJ, and Associate Professor at Mississippi College School of Law.

Giovanni Chiarini is a Lecturer at the University of Huddersfield, an Attorney admitted to the International Criminal Court list of Assistants-to-Counsel, Senior Associate at MEPLAW International Law Firm and NIMJ International Fellow.]

In December 2023, Igor Salikov arrived in Amsterdam, The Netherlands, claiming to be a former member of the Russian armed forces and the Wagner Group. He arrived with the express intent of giving information to the International Criminal Court’s (ICC) Prosecutor. Some of what he said in a “sworn interview” and in a “bombshell interview” with Russian human rights activist, Vladimir Osechkin, has been reported in the media.

We address, hypothetically, three significant issues that the ICC must consider: (1) Should the Prosecutor open a new preliminary examination solely dedicated to the alleged war crimes of the Wagner Group, (2) the possibility of plea bargaining and its compatibility with the ICC practice and procedures, , and (3) the admissibility in the Trial Chamber of what may be purloined documentary and digital evidence.

Whether the Information Warrants a New Preliminary Examination

The Prosecutor has already received testimony within the current Ukraine situation that opened in March 2022. Should Salikov testify solely about alleged Wagner Group war crimes committed within Ukraine after 20 February 2014, the information would support the Prosecutor’s already existing investigation. That jurisdiction is based on both Ukrainian Declarations lodged under Art. 12(3) of the Rome Statute (hereinafter, “RS”) dated 2014 and 2015.

It is not just Ukraine. The Wagner Group has been described as a transnational criminal organization that is only loosely affiliated with the Russian government; this gives Russia an air of plausible deniability about Wagner misdeeds. Wagner is a paramilitary group that has operated in dozens of countries in the past decade, especially in Africa and Southwest Asia.  Because a perpetrator’s own admissions are often the best evidence of atrocities, Salikov’s testimony and any documentary evidence he may have access to could be useful in any number of situations beyond Ukraine. Salikov’s information might aid any one of the ICC’s three current Preliminary Examination (PEs) or seventeen investigations.

There is the possibility that Salikov’s information might bolster the case for additional PEs elsewhere. For example, Wagner misdeeds in Syria have been widely reported. While Syria is not a state party to the Rome Statute, Salikov’s information might aid the development of cases against those who committed atrocities in Syria who are nationals of states parties or are present in states parties.

Assuming that Salikov’s disclosures amount to a windfall, what seems most likely is that the Prosecutor’s cases will be bolstered in several existing PEs and investigations, and he will be able to share information with other countries in support of domestic criminal proceedings. Beyond criminal prosecutions, if the Prosecutor disseminates specific information about Wagner actors and misdeeds then states could impose their own travel and financial restrictions on Wagner members. In these ways, Salikov’s disclosures have the potential to make the world feel smaller for Wagner members who committed atrocities.

The Next Step: How to Deal with the Hypothetical of Salikov’s Admission of Guilt

Salikov was no mere observer of the Wagner Group but also a participant. His information may require his own admission of involvement in atrocities.  We assume that his own involvement is of sufficient gravity to merit charges against him and consider how this might develop.

Several norms, rules, and regulations could apply to this hypothetical scenario. First, the main and simplest option for the Office of The Prosecutor (OTP) is to obtain witness testimony within the ongoing investigation into the situation in Ukraine and use the “unique investigative opportunity” found in Article 56 RS. If Salikov admits his criminal responsibility and pleads guilty (which seems possible, see “The Moscow Times,”),” then we must look at Article 65 RS for the “proceedings on an admission of guilt” at the ICC. Here, Salikov would be indicted for the war crimes he would plead guilty to, and this specific proceeding would come before the Pre-Trial Chamber for the confirmation of charges and then before the Trial Chamber for the activation of Art. 65 proceedings (which occurs at the commencement of the trial, according to Art. 64(8)(a) RS).

To be valid, the admission of guilt must be supported by the facts of the case that are contained in: (1) The charges brought by the Prosecutor and admitted by the accused; (2) Any materials presented by the Prosecutor which supplement the charges and which the accused accepts; and (3) Any other evidence, such as the testimony of witnesses, presented by the Prosecutor or the accused. Following the statutory law, the ICC Prosecutor would be free to support Salikov’s admission of guilt with only certain evidence, and not with the entire testimony previously released, so keeping the other evidence collected through Salikov’s testimony confidential and protect the integrity of the main ongoing investigation. Regardless, the decision to proceed with Art. 65 RS would expose the Prosecutor to the risk of being required, by the Trial Chamber, to present additional evidence (including the testimony of witnesses) or conduct the trial under the ordinary trial procedures, as stated by Art. 65(4)(a)(b).

Issues About the Admissibility of Purloined Evidence

Salikov presumably arrived to the ICC with his own personal knowledge, what others have told him, and a digital repository of images, videos, and electronic communications. He may also have taken digitized documents or digital evidence that might fall into the stolen or illegally possessed category, for example, Russian state and military secrets.

The Rules of Procedure and Evidence (“RPE”) generally do not prohibit using stolen or illegally possessed evidence obtained by a third party like Salikov—the RPE are silent on this question. It is unlikely he has information or evidence that falls within the restrictions of RPE 71 (other sexual conduct of a victim) or 73 (privileged communications).

State laws affecting the disclosure of state secrets do not apply in the ICC. Article 63.5, RPE, Article 21. But Article 72, RS provides a way to limit the disclosure of state secrets.

Article 69(4), RPE, is the primary rule of evidence, giving the Chamber broad discretion to “rule on on the relevance or admissibility of any evidence[.]” The Chamber must consider the probative value of the evidence and any prejudice to a fair trial or to a fair evaluation of the testimony of a witness. An exception prohibits the use of evidence obtained in violation of the RS or internationally recognized human rights if the violation casts substantial doubt on the reliability of the evidence or would be antithetical to and would seriously damage the integrity of the proceedings.

Salikov should be treated like any other witness. The Prosecutor will first need to determine the authenticity and reliability of any potential testimony. Is a document authentic, fake, or manipulated? Is Salikov a reliable witness or does he have a motivation to lie or ulterior motive? If Salikov is called as a witness and not a defendant, will the Prosecutor be prepared to compel his testimony if Salikov invokes his right against self-incrimination? See Rule 74 RPE. The Prosecutor will have to proceed with great care to ensure that Salikov is not a “Trojan Horse,” ready to disgorge misinformation, disinformation, or misleading information. Such a turn would be catastrophic to the reputation of the Prosecutor, the ICC, and its proceedings.

Ensuring Salikov’s availability to testify is an urgent concern. Former Russian officials and oligarchs who have turned against Putin tended to suffer notably diminished life expectancies—many died in violent and mysterious circumstances. Salikov’s visit to The Hague is as audacious as it is risky to his personal safety.  The ICC Prosecutor must take reasonable precautions to protect Salikov from personal risk.  This is likely to include seeking the cooperation of Dutch or other national officials to allow him to remain in country under witness protection auspices; the ICC itself has very little ability or capacity to safeguard Salikov on its own.  The threat to Salikov’s life also means that the ICC must work quickly to preserve its interviews and testimony so that these can be used in later proceedings even if Salikov later becomes unavailable.

Conclusion: The ICC has a Historic Opportunity to Advance the Ukraine Investigation and Bring Justice for Wagner Group War Crimes Elsewhere

For years the world has watched in horror as the Wagner Group engaged in and facilitated atrocities, seemingly with impunity. Salikov’s cooperation with the ICC offers some hope that Wagner members might be held to account. The information might tend to support the ICC’s Ukraine investigation, other PEs and investigations around the world, and domestic prosecutions and restrictions of Wagner members.

This is an extraordinary opportunity. The prospect of a Wagner Group insider revealing the notorious organization’s inner secrets is tantalizing for international criminal law watchers. Time will tell if Salikov’s disclosures are as good as advertised, or whether he will even survive this act of defiance of Vladimir Putin.