The International Criminal Court announced on Tuesday that it had issued arrest warrants for two senior Russian commanders, charging that they committed war crimes and crimes against humanity.
The I.C.C., which is based in The Hague, the Netherlands, is the world’s 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 created as a court of “last resort,” and has a mandate to try especially serious crimes that domestic courts are unable or unwilling to handle. Because its cases are relatively rare, they are closely watched by the international community.
Tuesday’s announcement marks a significant step forward for the I.C.C. prosecutor’s case against Russia. Last year, the court issued warrants against the Russian president, Vladimir Putin, and Maria Lvova-Belova, the Russian commissioner for children’s rights, on charges relating to Russia’s abduction and deportation of Ukrainian children to Russia. But this is the first time the prosecutor has brought charges specifically relating to how Russia was conducting its war in Ukraine.
Russia has said that it does not recognize the arrest warrants, or the International Criminal Court’s jurisdiction, and that it denies war crimes. And, to be clear, it is unlikely that the commanders, Lt. Gen. Sergei Ivanovich Kobylash and Adm. Viktor Nikolayevich 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, they are unlikely to end up in custody in The Hague.
But the warrants themselves amount to a significant rebuke of Russia’s actions in Ukraine. They were welcomed on Tuesday by Ukraine’s president, Volodymyr Zelensky, who wrote on social media: “Every perpetrator of such crimes must know that they will be held accountable. International justice requires time, but it is unavoidable.”
And they may also set an interesting precedent, legal experts said — one that might have ramifications for the conflict in Gaza, and for other wars.
What are the Russian officials accused of?
The warrants concern Russian missile attacks on Ukrainian power plants and other electrical infrastructure. Russia has heavily attacked Ukraine’s power grid in an effort to “turn winter into a weapon,” as one of my colleagues wrote last year. Russian missile strikes on Ukrainian power substations and other infrastructure have plunged towns into temporary darkness, left civilians without heat in frigid winters, and interfered with the internet and other communications.
A power plant used by the civilian population would ordinarily be protected under international law, which prohibits attacks on civilian infrastructure. It is possible for a power plant to become a legitimate military target if, for instance, it is housing military operations. But in that case, any attacks must follow the rule of proportionality: The harm to civilians from the loss of power must not be excessive in relation to the anticipated military advantage.
The I.C.C. warrants accuse the two Russian commanders of committing war crimes by violating both standards.
“There are reasonable grounds to believe that the alleged strikes were directed against civilian objects,” the court said in its statement. “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.”
The warrants also allege that the series of attacks on Ukraine’s electrical grid, taken together, constitute a crime against humanity, indicating that the prosecutor’s office is looking at the overall course of conduct in the war as well as the legality of individual incidents.
“They’ve pulled them together into a charge of crimes against humanity, making the point that they don’t think that this is just individual bad acts,” said Rebecca Hamilton, a law professor at American University. Because that particular crime requires that the attacks be connected to a state policy, “The crimes against humanity charge says, ‘No, this was part of a systematic plan by the state to run the war in this way, with civilians being harmed.’”
Proportionality matters
It is particularly significant that the warrants allege that the Russian attacks on Ukrainian infrastructure caused disproportionate civilian harm, 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 requires, and there is little international case law interpreting it.
“We don’t really have a good precedent of someone saying ‘Look, here is a rock-solid international court saying a person was criminally liable for a disproportionate attack,’” she said.
“There are three big questions here: What counts as a military advantage, what counts as civilian harm, and then how should they be balanced against each other,” Dill said. “And basically each one of these questions is subject to really intense doctrinal debates.”
Those legal questions have more recently come to the fore in Israel’s military operation in Gaza.
The Israeli military has heavily bombarded the narrow, densely populated enclave and used controlled demolitions to raze entire neighborhoods. The war has now killed more than 30,000 people, or roughly one in every 73 Gazans, the majority of them women and children, according to the local health ministry. 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 a looming famine in northern Gaza.
Israel has said that it is following international law, and does not target civilians or carry out attacks that disproportionately harm them.
The exact details of the warrants against the Russian officials are secret, but the ICC said that it took the step of announcing them because “conduct similar to that addressed in the present situation” is ongoing, and it hopes that publicizing the warrants might help prevent further crimes.
That referred to Russia’s ongoing actions in Ukraine, Fadi El Abdallah, the head of the court’s public affairs unit, told me.
However, some legal experts believe that the warrants could also be relevant to other conflicts around the world, because they indicate that the court will prosecute these types of attack 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, first and foremost at the moment, Gaza,” Hamilton said.
The I.C.C. prosecutor has an open investigation into the conflict in Gaza, and into Hamas’s attack on Israel on Oct. 7 of last year, which killed roughly 1,200 people and led to the abduction of some 250 others, according to the Israeli authorities.
“The more clarity we have of what a disproportionate attack looks like, the more deterrent effect the principle of proportionality potentially has in a separate context,” Dill said. “So it is really relevant for Gaza that this is on the radar of the I.C.C.”
In a domestic court system, a mere arrest warrant (or, more precisely, a news release about arrest warrants) might not have much deterrent effect. Legal interpretations must survive trial and appeals before they are widely influential.
But international law often has its greatest effects by shaping norms and public opinion, rather than direct enforcement, independent experts say.
Trials by international courts, particularly criminal courts, are rare. Since it was founded approximately two decades ago, the I.C.C. has handled only 31 cases, though some of those had more than one defendant. Previous tribunals have been temporary and limited to single conflicts, such as those in Rwanda and the former Yugoslavia.
Trials that do occur take years, during which time conflicts can continue. So signals about the court’s possible future interpretations or decisions, even if they are preliminary and nonbinding, can have a persuasive effect.
“I think it’s a fundamental misunderstanding of the work that an international court can do, and particularly the I.C.C., to only look at that moment when you’ve actually secured your defendant in the dock,” Hamilton said.
“They’re an international institution whose mandate includes having this expressive role, and signaling out to the world at large what appropriate behavior is, sending the message that there will be accountability when law is not upheld. And that’s the message that goes beyond any individual case.”
