Justice for Victims of Missile Attacks in Ukraine: New ICC Arrest Warrants for Russian Top Military Commanders

[Dr Iryna Marchuk is an associate professor at the Faculty of Law at the University of Copenhagen (Denmark).]

On 5 March 2024, the International Criminal Court (ICC) dropped bombshell news when it announced the issuance of arrest warrants for Russian top military commanders, namely Sergei Kobylash, a Lietetent General and the Commander of the Long-Range Aviation of the Aerospace Force, and Viktor Sokolov, an Admiral and the Commander of the Black Sea Fleet. Previously, the ICC issued arrest warrants against President Vladimir Putin and Children’s Rights Commissioner Maria Lvova-Belova on the war crimes charges of deportation and forcible transfer of Ukrainian children from occupied territories. However, the new arrest warrants differ, as they include charges against Russian top generals pertaining to their role in unleashing ‘missile terror’, the effect of which were felt by all Ukrainians regardless of their proximity to the frontline. Both suspects are allegedly responsible for a campaign of missile strikes carried out by the forces under their command, which targeted the Ukrainian electric infrastructure between 10 October 2022 until at least 9 March 2023. The period was marked by Russian mass missile strikes against Ukraine’s energy infrastructure, resulting in the destruction of critical infrastructure and causing death and injury to civilians. The sustained campaign of strikes targeted electric substations, fuel depots, power plants, and other power generating and power transmission installations.

At a meeting of the Russian Security Council, President Putin announced the campaign of mass strikes against the Ukrainian energy infrastructure, referring to them as a legitimate response to Ukraine’s attack on the Kerch bridge in Crimea and Kursk power plant station in Russia by Ukraine’s intelligence. He further added that the campaign of mass strikes, proposed by the Ministry of Defence and designed by the General Staff, was carried out with “with high-precision long-range air, sea and land-based weapons on energy, military administration and communications facilities of Ukraine”. These strikes unleashed terror against Ukrainian civilians, depriving them of water, electricity, heating, and access to vital services during the cold winter months. More than 50% of Ukraine’s energy infrastructure was damaged, with the damage being estimated at $12 billion by the World Bank.

Charges

Kobylash and Sokolov are individually charged with the war crime of directing attacks at civilian objects under Article 8(2)(b)(ii) and the war crime of causing excessive incidental harm to civilians or damage to civilian objects under Article 8(2)(b)(iv) of the Rome Statute. Acknowledging the widespread and systematic nature of the attacks on the Ukrainian energy infrastructure, the ICC Prosecutor also qualifies such conduct as a crime against humanity of inhumane acts under article 7(1)(k) of the Rome Statute. While the charges of war crimes signify that Russia is waging its war in Ukraine in defiance of the laws and customs of war, the charge of crimes against humanity underscores the devastating impact of such attacks on civilians. This echoes the findings of the UN Commission of Inquiry on Ukraine that found the attacks on Ukraine’s energy infrastructure to be “disproportionate, widespread, and systematic” (COI report, para. 24, paras 40-43), amounting to both war crimes and crimes against humanity.

Although international humanitarian law (IHL) explicitly prohibits attacks on civilians and civilian objects, attacks on energy infrastructure used for military consumption are considered legitimate under IHL. However, in many instances, it is impossible to make a clear-cut distinction between civilian and military uses of energy infrastructure, which is often considered a dual-use object. As noted by the ICRC, installations providing energy for military consumption are a legitimate military target. It is undeniable that electrical power stations are critical for states’ military capabilities; however, attacks on energy infrastructure that violate fundamental principles of international humanitarian law (IHL) constitute war crimes. IHL requires that the balance is struck between military necessity and humanitarian exigencies in military operations. If the attack entails incidental death or injury to civilians or damage to civilian objects, which is excessive to the concrete and direct military advantage anticipated, this runs contrary to the principle of proportionality. In its press release, the ICC Pre-Trial Chamber distinguishes between attacks on civilian objects and attacks on installations, which “may have qualified as military objectives at the relevant time”. It further clarifies that the attacks on installations for military use may amount to war crimes in situations where “the expected incidental civilian harm and damage would have been clearly excessive to the anticipated military advantage”.

It is significant that the Pre-Trial Chamber also qualified the campaign of strikes as a crime against humanity of ‘other inhuman […] intentionally causing great suffering, or serious injury to body or to mental or physical health’. This acknowledges the scale of the suffering and terror inflicted by such attacks on Ukrainian civilians throughout the entire country, with 20 regions of Ukraine being targeted by such attacks. The disruption caused by the destruction and damage of critical infrastructure affected millions of civilians who were deprived of electricity, water and heating for extended periods of time in freezing winter temperatures. This also hampered civilians’ access to emergency services, healthcare and education (COI report, para. 42, HRW report). One of Russian MPs applauded such attacks, wishing for Ukrainian civilians to “freeze and rot” due to their support of the “Kiev Nazi regime”. Many civilians, including more than 100 employees of energy facilities, lost their lives while performing their duties at work. It took a significant toll on civilians that the access to emergency healthcare services was limited because hospitals lacked generators.

Modes of Liability

The arrest warrants against Russian top military commanders signify that the ICC Prosecutor is going after the “big fish”, strategically expanding the scope of its investigation to cover crimes committed by Russian top military leadership. In addition to the alleged attacks on Ukraine’s energy infrastructure, Kobylash (born in Odessa, Ukraine) gained notoriety for carpet-bombing of Mariupol and directing attacks in Syria, Georgia and Chechnya (“GUR”). However, the charges against him make no mention of his role in the bombing of Mariupol. A major intrigue is whether the second suspect, Sokolov, is still alive. In September 2023, Ukrainian armed forces reported that the general was killed by a Ukrainian missile strike on the Black Sea Fleet headquarters along with 33 other top naval officers. The Kremlin tried to disprove his death by showing that Sokolov participated in a video conference convened by Russian Minister of Defence Sergei Shoigu. If the fact of his death is later confirmed, the ICC will be obliged to terminate proceedings against him.

Acknowledging the key role of both generals in directing attacks against Ukraine’s energy infrastructure, the ICC Prosecutor charged both of them as principals to alleged crimes. The qualification of their conduct as principals is logical, given that both generals represent Russian top military leadership, and exercise control over the commission of crimes, thus qualifying their contribution to the campaign of missile strikes as essential. The Prosecutor also complemented his assessment of individual criminal responsibility by additionally charging both generals as accomplices for ordering the commission of alleged crimes, as well as on the basis of command responsibility for their failure to exercise proper control over the forces under their command. It would be interesting to review evidence that the Prosecutor submitted to the Pre-Trial Chamber in support of the chosen modes of liability. However, both the Prosecutors’ application for the issuance of arrest warrants and the Pre-Trial Chamber’s decision are confidential “in order to protect witnesses and to safeguard the investigations”. The existence of arrest warrants became known to the general public to satisfy the public interest and produce a deterrent effect. In his press release, Prosecutor Karim Khan expressed his gratitude to the Office of the Prosecutor General of Ukraine that supported the work of the OTP in the collection of evidence, including on the ground in Ukraine. The evidence of the consequences of missile attacks was readily available, as both Ukrainian and ICC investigators were able to access crime scenes in the aftermath of mass strikes on Ukraine’s energy infrastructure. However, such crime-based evidence is not sufficient to demonstrate the responsibility of the generals as it is necessary to link their individual conduct to specific missile strikes by furnishing the ICC judges with the linkage evidence. While it is not possible to review the content of the ICC Prosecutor’s application, which remains confidential, one may speculate that the ICC Prosecutor relied to a great extent on intelligence information to demonstrate that both suspects directed and coordinated the campaign of missile strikes.

Domestic Proceedings

It is worth mentioning that Ukrainian authorities earlier initiated proceedings in absentia against the two generals who are subject to the ICC arrest warrants. In January 2023, the Special Services of Ukraine (“SBU”) announced a notice of suspicion to General Kobylash on the charges of waging an aggressive war under Art 437 (2) and encroaching on the territorial integrity of Ukraine under Art 110 (3) of the Criminal Code of Ukraine (CCU). Few months later, in May 2023, the SBU announced a notice of suspicion to General Sokolov on the same charges, while adding an extra charge of the violations of the laws and customs of war under Art 438 of CCU. Notwithstanding the initiation of in absentia proceedings by the Ukrainian authorities in relation to the two generals, this does not render the potential cases inadmissible before the ICC. In the Saif Al-Islam Gaddafi case, ICC Appeals Chamber declared that the decision of a national jurisdiction should have acquired res judicata effect in order for the case to be inadmissible before the ICC (Judgment, para. 63). First, it appears that neither of the two cases initiated by the Ukrainian authorities surpassed the pre-trial stage. Second, even if the verdicts had been delivered by the Ukrainian courts in absentia, they would not have acquired res judicata effect, since the defendants would have the right to re-trial if they were apprehended by the Ukrainian authorities. The right to re-trial is not explicitly guaranteed by the Ukrainian legislation but it is explicitly articulated by the European Court of Human Rights, which Ukraine is bound to follow. It also appears that the OTP has already conducted the assessment of domestic proceedings in Ukraine when its investigation progressed to the stage of issuing arrest warrants against the two generals. Although it is clear that the cases initiated in absentia by the Ukrainian authorities concern the same two generals against whom the ICC issued arrest warrants, they are wanted on war crimes charges by the ICC, in contrast to domestic proceedings on the charges of the crime of aggression. This means that the cases are admissible before the ICC since they concern the different conduct, and the existence of in absentia domestic proceedings is not a bar in itself to the admissibility of cases before the ICC.

Reactions

A predicable reaction followed from the Kremlin. Commenting on the issuance of the new arrest warrants, Putin’s Press Secretary Dmitry Peskov stated that Russia did not recognise the ICC decision because it is not a State Party to the Rome Stature. The same response was given by the Russia’s Foreign Ministry spokesperson Maria Zakharova, who called the ICC decision on the issuance of arrest warrants “legally void”, adding that the ICC Prosecutor and the ICC judges, who were part of the decision-making process, were on Russia’s wanted list. Andriy Kostin, a Prosecutor General of Ukraine, commended the ICC’s decision on the issuance of arrest warrants noting the significance of the OPG’s cooperation with the ICC in the collection of evidence, and emphasizing on the necessity to build cases against Russian top military leadership even if the prospects of arrests and trials were bleak at the moment. President Zelensky welcomed the ICC’s move, emphasizing upon the need to close the impunity gap by holding Russian commanders accountable for the crimes committed against civilians and critical infrastructure. The ICC arrest warrants against Russian top political and military leadership give hope to victims and survivors of the crimes stemming from Russia’s aggression against Ukraine, but there is a long road ahead for Ukraine in its pursuit of accountability.