There is no peace without justice

On March 5, 2024, the Pre-Trial Chamber of the International Criminal Court, composed of judges Rosario Salvatore Aitala (Italy), president, Tomoko Akane (Japan) and Sergio Gerardo Ugalde Godinez (Costa Rica) issued arrest warrants for two senior officials of the Russian Federation , Sergei Ivanovich Kobylash and Viktor Nikolayevic Sokolov, in the context of the situation in Ukraine for alleged crimes committed between October 2022 and March 2023. The two arrest warrants were issued at the request of the Prosecutor of the Court, the British Karim Khan. The Court, which is based in The Hague, does not judge states but individuals who have committed international crimes.

Lieutenant General Kobylash was at that time commander of the “long-range” aviation of the Russian Air Force, and Admiral Sokolov was the commander of the Black Sea Fleet. The Chamber found that there were reasonable grounds to believe that the two accused could be held responsible for the missile attacks launched in those months by the Russian armed forces against Ukrainian electricity infrastructure in various locations (war crimes). The judges make a distinction between deliberate attacks against civilian objects and others which, although aimed at military objectives, caused excessive collateral damage compared to the expected "military advantage".
As regards crimes against humanity, the judges considered that the campaign of attacks involved the multiple commission of acts against the civilian population, as a result of policy decided by the State.
Article 7 of the Rome Statute defines crimes against humanity as acts that are intentionally committed as part of a large-scale or systematic attack against any civilian population. Hence the accusation of having committed "inhuman acts" that have "intentionally caused great suffering or serious damage" to the physical or mental health of civilians.

The content of the arrest order of the two senior officers is covered by secrecy, in order to protect witnesses and guarantee the investigative activity of the Prosecutor's Office. At the same time, while not revealing the contents, the Pre-Trial Chamber decided to make public the news of the issuing of this arrest warrant because similar conduct, in serious violation of the rules of international humanitarian law, is still ongoing. The judges believe that "public awareness" of the arrest warrants can contribute to the prevention of further crimes, and for this reason ordered the publication of the arrest order, the names of the accused and the types of international crimes for which they were responsible .

This decision adds to the one that - exactly one year ago, on 17 March 2023 - the Pre-Trial Chamber of the same Court had adopted with the issuing of similar arrest orders for the President of the Russian Federation Vladimir Putin and for the Human Rights Commissioner of children Maria Alekseyevna Lvova-Belova.
What is Prosecutor Khan's strategy?
The choice of these two senior officers is certainly the result of a collection of evidence relating to specific acts that caused a considerable number of civilian victims.
In this type of proceedings it is, in fact, essential that the prosecutor is able to bring sufficiently solid evidence to the judges to establish a possible trial.
The case is limited to only the elements that the prosecutor believes he has collected, even for the most difficult crime to prove, the crime against humanity. In fact, it requires that intentionality be demonstrated.
Furthermore, this further step by Prosecutor Khan is also the result of close collaboration with the Prosecutor General of Ukraine, Andrey Kostin, who has been conducting investigations and collecting evidence for a long time. General Kobylash is already in the sights of the Kiev Prosecutor's Office for the crime of aggression (for having planned and conducted a war of aggression against the territorial integrity of Ukraine).

The Hague Criminal Court has no jurisdiction over this crime, as neither Russia nor Ukraine has ratified the Rome Statute. Ukraine has already accepted the jurisdiction of the Court for war crimes and crimes against humanity for ten years.
Here lies the foundation of Prosecutor Khan's new initiative.
We can believe that Khan has witnesses (military, deserters from security services and armed forces), documentary evidence, wiretaps and official correspondence.
A similar initiative regarding the large quantities of murders, arbitrary detentions, torture and rapes committed against the civilian population is still missing.
The Court proceeds with caution, because it is necessary for international justice to demonstrate that it is transparent and based on very solid foundations. The international community forcefully calls: there is no peace without justice!

The accusation against the two officers is of having perpetrated war crimes consisting of attacks against civilian objects, and of having caused excessive collateral damage to civilians or damage to civilian objects. The two officers are also accused of committing the crime against humanity of "inhuman acts". According to the Pre-Trial Chamber of the Court, there are "founded reasons" to believe that the accused bear individual responsibility for committing these crimes jointly and/or through other persons, for ordering their commission, and/or for failing to exercise control over the armed forces under their command.

Edoardo Greppi
NP April 2024