On 24 June 2024, Pre-Trial Chamber II of the International Criminal Court (“ICC” or “Court”), composed of Judge Rosario Salvatore Aitala, Presiding, Judge Sergio Gerardo Ugalde Godínez and Judge Haykel Ben Mahfoudh, issued warrants of arrest for two individuals, Mr Sergei Kuzhugetovich Shoigu and Mr Valery Vasilyevich Gerasimov, in the context of the situation in Ukraine for alleged international crimes committed from at least 10 October 2022 until at least 9 March 2023.
Mr Sergei Kuzhugetovich Shoigu, born on 21 May 1955, Minister of Defence of the Russian Federation at the time of the alleged conduct, and Mr Valery Vasilyevich Gerasimov, born on 8 September 1955, Chief of the General Staff of the Armed Forces of the Russian Federation and First Deputy Minister of Defence of the Russian Federation at the time of the alleged conduct, are each allegedly responsible for the war crime of directing attacks at civilian objects (article 8(2)(b)(ii) of the Rome Statute) and the war crime of causing excessive incidental harm to civilians or damage to civilian objects (article 8(2)(b)(iv) of the Rome Statute), and the crime against humanity of inhumane acts under article 7(1)(k) of the Rome Statute. There are reasonable grounds to believe they bear individual criminal responsibility for the aforementioned crimes for (i) having committed the acts jointly and/or through others (article 25(3)(a) of the Rome Statute), (ii) ordering the commission of the crimes (article 25(3)(b) of the Rome Statute), and/or (iii) for their failure to exercise proper control over the forces under their command (article 28 of the Rome Statute).
The two warrants of arrest were issued following applications filed by the Prosecution. Pre-Trial Chamber II considered that there are reasonable grounds to believe that the two suspects bear responsibility for missile strikes carried out by the Russian armed forces against the Ukrainian electric infrastructure from at least 10 October 2022 until at least 9 March 2023. During this time-frame, a large number of strikes against numerous electric power plants and sub-stations were carried out by the Russian armed forces in multiple locations in Ukraine.
Pre-Trial Chamber II found that there are reasonable grounds to believe that the alleged strikes were directed against civilian objects, 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. In this regard, the Chamber observed that one of the core objectives of international humanitarian law is the protection of civilians in armed conflicts. Therefore, the Chamber, when assessing criminal responsibility for the alleged perpetration of war crimes during the conduct of hostilities, must consider whether the alleged conduct abided by the principle of distinction, which prohibits the use of armed force against civilians and other protected persons. As part of its assessment of the actions of those suspected of serious violations of international humanitarian law, insofar as these are codified as crimes under the Rome Statute, the Chamber will always consider the effect of said actions on the safety and security of civilians, including the most vulnerable, such as the elderly, women and children.
Pre-Trial Chamber II also determined that the alleged campaign of strikes constitutes a course of conduct involving the multiple commission of acts against a civilian population, carried out pursuant to a State policy, within the meaning of article 7 of the Statute. Therefore, there are reasonable grounds to believe that the suspects intentionally caused great suffering or serious injury to body or to mental or physical health, thus bearing criminal responsibility for the crime against humanity of other inhumane acts, as defined in article 7(1)(k) of the Rome Statute.
Considering that the key factual allegations are duly supported by evidence and other relevant material submitted at this stage of the proceedings by the Prosecution, the Chamber considered that the statutory requirements are met to issue the sought warrants of arrest.
The content of the warrants is issued ‘secret’ in order to protect witnesses and to safeguard the investigations. However, mindful that conduct similar to that addressed in the warrants of arrest, which amounts to violations of international humanitarian law, appears to be ongoing, the Chamber considered that public awareness of the warrants may contribute to the prevention of the further commission of crimes pursuant to article 58(1)(b)(iii) of the Rome Statute. Therefore, Pre-Trial Chamber II considered it to be in the interest of justice to authorise the Registry to publicly disclose the existence of the warrants, the name of the suspects, the crimes for which the warrants are issued, and the modes of liability.
