Paras Shah: On June 24, the International Criminal Court (ICC) issued arrest warrants for two top Russian officials for war crimes and crimes against humanity committed during Russia’s full-scale invasion of Ukraine.
Prosecutors allege that Sergei Shoigu, Russia’s former defense minister, and Valery Gerasimov, the Chief of the General Staff of the Russian Armed Forces, directed missile strikes against Ukraine’s power plants and electrical infrastructure.
Russian attacks on Ukraine’s power plants during the winter of 2022-2023 left 12 million people with limited or no access to energy and severely damaged Ukraine's health care system.
Just how might the arrest warrants influence the war?
This is the Just Security Podcast. I’m your host, Paras Shah.
Joining the show to discuss the arrest warrants and their potential impact are Kateryna Busol and Rebecca Hamilton.
Kateryna is a Ukrainian lawyer and an Associate Professor at the National University of Kyiv-Mohyla Academy. Rebecca is an Executive Editor at Just Security and a Professor of Law at American University.
Kateryna, Bec, welcome back to the show. We're so excited to have both of you here again and to share your expertise with our audience. Bec, could you get us started with an overview of the charges? What exactly are Shoigu and Gerasimov accused of doing?
Rebecca Hamilton: So, these charges stem from the application that the prosecutor made to the court back in February. And you'll remember in March, the Court issued arrest warrants for two Russian military commanders for their role in attacking electric infrastructure in Ukraine. The arrest warrants that were issued this week relate to that same set of events, but they're for two men who are in political roles as Minister of Defense and the Chief of General Staff. The charges specifically are two counts of war crimes and one count of a crime against humanity. The war crimes charges, which are under Article 8.2b of the Rome Statute, relate to directing attacks at civilian objects and causing excessive harm to civilians or damage to civilian objects.
And it's worth pausing for a moment, I think to say that the inclusion of both of those is potentially important in this case, in case there's any dispute over whether the power grids were understood to be civilian objects, or what arguably believes to be what we call dual use objects — objects that can be used for civilian or military purposes. What that second war crimes charge in there does is to say regardless, in attacking this infrastructure, you would have foreseen excessive harm to civilians. And then the third charge, the crime against humanity charge, is inhumane acts that intentionally cause great suffering or serious injury. As always for a crimes against humanity charge, the requirement is this is part of a widespread or systematic attack against a civilian population. So those are the charges, all relating to this conduct that happened over the winter of 2022 and 2023, in terms of attacks on power grids in Ukraine.
Paras: Thanks for that overview back. And Katerina, as Bec mentioned, at the core of these charges are attacks against Ukraine's power plants and the electrical grid. What impact have those attacks had on civilians in Ukraine?
Kateryna Busol: Hello, I think it's important to understand that these are not just the attacks on specific power grids, but rather the reverberating effects of these attacks on the civilians across Ukraine, irrespective of how close they are to the actual frontline. That undermines the supply of energy to the hospitals, that undermines the teaching the access to education, that undermines the normal everyday life; and in and of itself, those attacks really affect the physical and mental wellbeing of every single Ukrainian who live in the country.
Rebecca: And just to, to jump in and underscore the effects that Kateryna was talking about are really reflected in the charges in that they underscore the key principle of the laws of war, which is to be able to draw a distinction between civilians and military. And I think, historically, in international criminal law, there's been some reticence to get too much engaged in decisions that military are making regarding what they're targeting. And it's seen as sort of a complicated area for international criminal litigation, and it's so important that these are the charges that are being pursued, and at the heart of them is this idea that we have to be able to distinguish between civilians and military targets in the midst of war.
Kateryna: If I may briefly jump in here with the two more points, I wanted to take us back to your brilliant Just Security Podcast with Professor Fionnuala Aoláin, discussing obstetric violence and how obstetric harms should be taken into account when assessing the proportionality of targeting and assessing the civilian harms; and I think with Russia's policy of targeting critical energy infrastructure in Ukraine, we should really think about the broader implications of these attacks. It's not just the, for instance, women who were in maternity wards directly in the hospitals that were affected by the cut energy supplies, there's also going to be the couple's similarly less directly affected by these attacks, for instance, those who were undergoing fertility treatments, right. So, it wasn't the critical operation that was undermined by the sudden lack of electricity. But these are still the wider healthcare measures that ordinary Ukrainian civilians across the country were trying to design to add at least some predictability and stability to their life, and those have been brutally affected by Russia.
And second, I wanted to point out that while these newest two arrest warrants, as well as the third, the fourth one, issued in March this year, concerned the attacks on the energy infrastructure perpetrated between October 2022 and early spring 2023. These arrest warrants really reverberate with Russia's current targeting in Ukraine. Russia is now attacking smaller power plants, and we really feel these effects already now with the impeded electricity supplies, even in a Kyiv. We have the schedules of electricity, which will be there for just a couple of hours per day to design just everyday chores. And we expect a very harsh winter ahead of us. So again, while these arrest warrants concerned the targeting in essentially the winter period of 2020 to 2023, I think they underscore also that Russia's policy of targeting critical energy infrastructure and undermining civilian lives across the country are still unaffected, and hopefully, they might reconsider them at least a little bit with new arrest warrants.
Paras: Right, the carry on effects are really so widespread here. We recently had Just Security written article by Uliana Poltavets and Christian De Vos, from Physicians for Human Rights and also had Uliana on the podcast to discuss this. And it really is striking just to put a fine point on it, how broad these impacts are. They're impacting the entire Ukrainian healthcare system and so many other parts of daily life for civilians. International law has been a key part of Ukraine's response to Russia's aggression. How does the ICC fit into the larger system of international justice and the tools that Ukraine is using?
Rebecca: So, I think the ICC is what grabs most of the headlines, right. But it's very much only one piece of what it says Ukraine's incredibly comprehensive legal strategy, which has involved trying to pull out every single lever of international Law and diplomacy. Kateryna and I met in person for the first time at a convening that was held by the Ukrainian International Law Association and the American Society for International Law in Ukraine, in December last year — it was the 75th anniversary of the UN Declaration of Human Rights and the Genocide Convention. And that pulled together this incredible sort of coalition of Ukrainian international lawyers.
And as we've been involved in editing the symposium that's come out of it, you can just see the breadth of the strategy. It is about treaty based claims that are at the International Court of Justice. It's about UN General Assembly resolutions. It's about sanctions. And it's about all of the efforts as well around setting up a tribunal that can prosecute the aggression, that started this chain of events that has led to the prosecutions that we're now seeing. So, it's just been extraordinary to watch the breadth of that strategy. I
Kateryna: If I may add briefly here due to certain objective limitations, such as the number of conflict related crimes, registered and proceedings opened daily in Ukraine. Currently there are more than 130,000 cases domestically. Due to the limitations of domestic legislation in Ukraine, namely the flawed provision on common responsibility, which essentially allows the prosecution of commanders when they directly order the perpetration of the crime, I think it's very symbolic that both the ICCs arrest warrants, and hopefully the universal jurisdiction proceedings globally, which are also part of Ukraine's legal strategy, strongly supported by the human rights group by survivors, and by the Office of the Prosecutor General.
I'm hoping that these two justice avenues will really go after the leadership using the full spectrum of common responsibility as the mode of liability as it's currently allowed under international law, but as it currently unfortunately not yet possible under Ukraine's domestic criminal legislation. So, the failure to act or the failure to punish is also something that should be highlighted, and this is Article 28 of the Rome Statute is something that the arrest warrants also using.
Paras: Thanks very much. Yeah, international law really has been such a key part of Ukraine's strategy. And we'll add a link in the show notes to that symposium, which many authors from the convening in Lviv have added to. It's really a great contribution, and readers will find it very engaging. I know I've been enjoying reading it. I want to turn to Washington back and the United States has provided the ICC with some cooperation and support related to Russian atrocity crimes in Ukraine, and it's also provided a trove of open source intelligence when the full scale invasion began and leading up to it.
The rhetoric against the ICC has intensified, as Karim Khan indicated that he would seek arrest warrants for top Israeli officials related to the conflict in Gaza. How might the United States respond to this latest set of arrest warrants?
Rebecca: So you know, it's a fascinating time for those who study the relationship between the US and the ICC, because we've seen these wild swings over the past 18 months. You know, historically, the US government in general has been quite wary of the ICC; we like to speak in terms of international law, but then get a bit skittish when it comes to the idea of external enforcement. And there's certainly been periods of time where there's been an outright effort to basically decimate the courtroom and stop it from functioning at all. But what we saw with a court got jurisdiction over Ukraine and began investigating the crimes that were flowing from Russia's aggression, space was opened up to really make the case that that having the court function was in long-term US national interest. But then, as you mentioned, we had the application for the warrants against Israeli officials. And suddenly there was a moment where the pipe we were going to swing back to this sort of try to kill the court mode.
What's interesting is that we haven't in fact seen a knee jerk reaction or overreaction, should I say, that we might have seen in response to that. And so, what I'm wondering, and I think that the arrest warrants this week help to support this case, is whether we might eventually stabilize around a position that says the US may not agree with every decision that comes out of the Court. But on balance, the US is better to have a world where the Court exists than a world that it doesn't. And it should hopefully go without saying that I'm speaking about this in terms of sort of the US government, but it's, of course, not a monolith. Like how state feels about the court, is not the same way that the Pentagon feels about the court, it's not the same way that Congress feels about the court. And so that's why it can get messy. But I think that the arrest warrants for the senior level Russian officials is really helpful in making the case to those who are skeptics of the court, that there is an important role for this institution to play in the geopolitical water.
Paras: I want to turn to the practical implications, because last year, the International Criminal Court also issued an arrest warrant against Russian President Vladimir Putin. And that has limited his travel in certain respects. So, for example, he wanted to attend the BRICS summit in South Africa and wasn't able to do that, because the 124 countries that are joined the Rome Statute that are members of the International Criminal Court, have obligations to execute arrest warrants. But, of course, there are also other countries that don't have those obligations where Putin can travel. And so, in the most practical terms, what will the impact of these arrest warrants be?
Kateryna: I guess from the travel restrictions, which is already an important implication. The mounting arrest warrants from the ICC also solidify the narrative about what is really happening because Russia's political leaders and propaganda figures and church leaders have really branded this as allegedly holy war, justifying their aims. But the more impartial, factually, legally, substantiations are there in in the forms of the ICC arrest warrants, hopefully the ICC where the arrest warrants from foreign jurisdictions are under universal jurisdiction proceedings. That would solidify the position or in an independent position from the countries respecting the rule of law, that the narratives that the Russian government is building about this war, that they're flawed, and that they have to bear their responsibility for it, and less and less pockets across the world for them to seek refuge.
Rebecca: Yeah Kateryna, that narrative piece is so important, and I feel like I sort of am a broken record on what's the practical impact of international criminal law when it's not as though Putin is about to hand itself over to The Hague or any other of these officials that we're talking about. Where I keep feeling the need to emphasize tha international criminal law is about so much more than the trials that ultimately will result from it. So, international criminal justice takes time. If your yardstick is domestic criminal law, you're going to be really frustrated with the sort of timelines that we're talking about. It can be more than a decade to actually bring someone to trial. When that happens, that can be really important and meaningful for victims and survivors.
But it's actually only one piece of what international criminal law is doing. It is really about establishing norms as a matter of law, that are new in the history of humanity to say you will be held accountable if you commit war crimes, if you commit crimes against humanity, if you commit genocide. That these things are not just sort of tragedies of history but are actually crimes for which there will be accountability. The social stigma that comes with these words, and the message that you send to would be perpetrators, or in our most hopeful accounting, perhaps in the midst of ongoing conflict, the deterrent value that it can have, if you're going to be prosecuted for attacks or critical infrastructure, you might want to think about the targets as you establish your next step in the military campaign. And all of these factors are less visible than the trial that we think of when we think of international criminal law, but then more or less significant.
Paras: And it is worth underscoring that former heads of state have faced accountability and have been brought before international tribunals. And it may be a matter of politics and a matter of time. And Bec, I think that point that you made is very important, right? War crimes and atrocity crimes have been occurring for thousands of years and the court, and the idea of individual criminal responsibilities is a relatively new concept that's continuing to evolve. What trends will each of you be watching for in the coming months? What should we be thinking about next as we continue to follow these developments?
Kateryna: Well, I could start by saying that the two recent arrest warrants, they were announced on a very special day because it was also the day when the Grand Chamber of the European Court of Human Rights rendered the merits judgment on the interstate case between Ukraine versus Russia concerning Crimea; where the Court unanimously found the numerous violations of the European Convention on Human Rights by Russia in imposing its domestic legislation in occupied territories, in breach of international humanitarian law, in violating the provisions of the European Convention in prohibiting inhuman treatment, prohibiting the encroachment on the freedom of expression, and many others. And I think it was a poignant reminder, both from the ECHR and also from the ICC — through the statement of prosecutor Karim Khan — where it was clearly stated that Russia's war of aggression and connected violations started in 2014. So, I think both for reminding us that even if we're looking at the targeting of energy infrastructure that happened between in the winter period of 2020 to 2023, we're still looking at the pattern of wider violence endorsed by the state and amplified since 2014, first.
Second, another symbolism of the day when the information about the arrest warrant was published was that the EU formally announced the process of the negotiations about Ukraine and Moldova accession to the EU. I's quite symbolic because it was the choice of the Ukrainian nation to join the EU that essentially triggered in a way or signaled that Ukraine has really left Russia's field of influence. And this is these events after them, Russia brought it forces to Crimea and eastern Ukraine, and then tried to subjugate the whole nation and it's trying to do so. But importantly, within this EU accession process, under the Ukraine EU Association Agreement, one of the key requirements — I'm saying key because it's an article eight, so quite high in the top of priorities — is Ukraine's obligation to ratify and implement not only the ICC’s Rome statute, but also related instruments. And I would really like to stay that as a Ukrainian and as a lawyer that while we are so grateful for the ICC action, it's also important to reflect on what we have to do and what we can do domestically as the government, as the civil society, as the human rights community. And the ratification of the Rome Statute as a an important symbolic one, one could say formal, but it's a crucially important step is something that Ukraine has to do as soon as possible because it's a part of its legal obligation within the EU accession process, and it's also just natural and rational to do so because being a fully-fledged Member of the Assembly of State Parties, Ukraine will be able to impact the negotiation of potential amendments concerning the crime of aggression, will be able to nominate the judges, will be able to take part in other procedures related to the functioning of the court.
So, I would take these two important new arrest warrants as also the catalyst for wider actions domestically in Ukraine, which are quite overdue, which are quite natural and needed, and the final one would be the reform of Ukraine's and domestic criminal legislation pertaining to the IHL and ICL issues. I mentioned that Ukraine currently does not have proper provisions on common responsibility as known under international law. Ukraine deplorably still does not criminalize crimes against humanity. So essentially, we need the ICC or foreign jurisdictions to bring crimes against humanity charges, because formally, we cannot do this under our domestic proceedings. And also, the statutes of war crimes, especially sexual violence, are not detailed enough.
So, there is much room for domestic action as well. And with respect to the ICC, the expectation from the survivors that I worked closely with, as well as from domestic human rights lawyers in Ukraine, is that the next arrest warrants over the court will concern the crime of torture, because both the Commission of Inquiry, the UN, Special Rapporteur on Torture, have alleged that Russia's use of torture is both widespread and systematic. And the majority of torture techniques discovered in formerly occupied Russia's areas in Ukraine also signal the widespread use of sexualized torture. So, zooming into the crimes against the physical integrity of human beings and exploring the gender dimensions of these crimes, especially the crime of torture, as well as of course the policy dimension of these crimes, is something that I think would be important for the ICC to do as a next step.
Rebecca: There was a lot in there, that's so important, and I'm going to pick up just on a couple of threads of it. I really hope that as the ICC cases progress, that they seem to be ticking along fairly well in terms of the applications that we know the prosecutor is making. I hope they align with the concerns of victims and what they see as the priority issues. There's a lag in in terms of what we know publicly. It seems to be that the prosecutor, in this case at least, keeps making submissions — or applications I should say — to the court and the CO and then the court decides to authorize the registrar to make the issuance of the arrest public on deterrence grounds.
But that means that it can take some time between what the prosecution is applying for and what the public knows about. So, there's a measure of patience that is needed there. I think, I don't want to lose sight of the fact, and this resonates with what Katarina was saying, all of these crimes stem from Putin’s original decision to commit the crime of aggression against Ukraine and violate one of the fundamental tenants of the UN Charter. And at some point, I still truly believe that this needs to be accounted for. And so, one of the things that I'm continuing to watch is the evolving discussion about a tribunal to prosecute aggression. Related to that, the hope that one day we will see the ICC be able to operate fully to account for this crime as well, which belongs certainly in that canon of core international crimes.
And then from, I guess, the US-centric perspective, what we're all watching is what is going to happen if the pre-trial chamber does go ahead and issue arrest warrants or summons in relation, in particular to Benjamin Netanyahu, but in relation to the rest of those cases with respect to Gaza. Is the restraint that we have seen out of the Biden administration going to be able to hold it in the face of that? What will be the congressional reaction? And then what are the implications of that for Ukraine and for every other case, that is on the docket of the ICC? So those are the things that I'm looking to track over the coming months.
Paras: Is there anything else that either of you would like to add that we haven't touched on yet?
Kateryna: Perhaps if I could mention just one more thing with respect to, hopefully possible, future avenues from the ICC. Recently —this is public information — several NGOs led by the FIDH, the International Federation for Human Rights, have submitted an Article 15 submission to the court, alleging the crime of persecution in relation to the rhetoric that comes from Russia's media figures and senior leadership, the dehumanizing rhetoric. I think this is the very important route, and it's also important to widen it to the allegations of incitement to genocide. It naturally takes a while for the alleged speech crimes to get proper analysis, and the language barrier is a very understandable issue. But any person, and let alone any lawyer, who speaks Russian and understands Russian and can read the statements or listen to the statements publicized on Russian state media would see quite strong evidence of incitement to genocide.
So, I'm hoping that we will also see more communications and more attention from the ICC to the possible dimensions of incitement to genocide, in the case of Russia and Ukraine. And it's, I think the avenue for the international criminal law, which will be open to this examination, would be that incitement to genocide as a charge has been designed both in the Genocide Convention, and in the statutes of the Rwandan tribunal, and adjudicated Rwandan tribunal as the crime that could actually be prosecuted, even if genocide on the ground has not been perpetrated. And I think it's crucial while the discussion about the actual genocide in Ukraine is still ongoing. It's crucial to use this charge of incitement to both prosecute the quite viable, horrendous speech acts that come from Russia's service persons, political leadership and propaganda figures, but also to trigger this fundamental purpose of prevention of genocide or its escalation through the prosecution of incitement. So, this is another atrocity dimension that I'm really hoping that ICC will be paying more attention to.
Rebecca: Yeah, I agree. I agree with all of that. I guess I want to say in closing just how extraordinary it has been, and continues to be, to watch the community of Ukrainian international lawyers, and Kateryna key among them, to be really doing every single thing possible to try to achieve justice through the available tools of international law and reflecting up when those tools are insufficient. And it's clear we have gaps we have deficits and those need to be dealt with. But I think, as I head back into the classroom in the fall, one of the things that I'm always saying to my students when I teach international law is that most of the work of international law happens domestically.
And while it's an ICC, or an ICJ, that gets the attention. International law only happens to the work that has happened that has been done domestically. And all of these cases that are being pursued on a daily basis inside courts in Ukraine are a vital piece of that puzzle, as well. And so, I think it's just really important not to lose sight of that, even as the breaking news is about what the ICC is doing.
Paras: Thank you so much to both of you. We always appreciate your insights and analysis. Thanks again.
Rebecca: Thanks Paras.
Kateryna: Thank you very much.
Paras: This episode was hosted and produced by me, Paras Shah, with help from Audrey Balliette and Harrison Blank.
Special thanks to Kateryna Busol and Rebecca Hamilton.
You can read all of Just Security’s coverage of Russia’s war against Ukraine and the International Criminal Court, including analysis from Kateryna and Bec, on our website. If you enjoyed this episode, please give us a five-star rating on Apple Podcasts or wherever you listen.
