A reflection three years later: The investigation into the situation in Ukraine

Introduction¹

It has been three years since Russia’s full-scale invasion of Ukraine. In that time, there have been countless atrocities committed by Russian forces against the civilian population in Ukraine. There must be accountability for the perpetrators of war crimes, crimes against humanity and genocidal actions² that have taken place and continue to occur.³ The International Criminal Court (ICC) offers hope that justice is coming for Ukraine.

The ICC’s Role in the Russian-Ukraine Conflict

To secure legitimacy, any arbitrator of a conflict must be impartial, unbiased, independent and ensure that justice is fairly dispensed to anyone who rightfully deserves it; regardless of what side they were on in the dispute. The ICC was specifically designed as such an independent, competent, and neutral arbiter. Established July 1, 2002 as a permanent international criminal court,⁴ it maintains the trust of the international community through its commitment to established international norms: trials are fair,⁵ the prosecution is independent,⁶ defendants’ rights are upheld⁷ and victims’ voices are heard.⁸

The ICC has Taken Action

Investigation into the Situation in Ukraine

Within one week of the Russian invasion, the ICC Prosecutor opened a formal Investigation into the Situation in Ukraine.⁹ In the weeks that followed, the ICC Prosecutor Karim A. A. Khan confirmed the Court’s commitment to upholding the rules of international humanitarian law and unequivocally called for strict compliance with the laws of war.¹⁰ The promise of accountability for any perpetrators along with a strong message of deterrence for those engaged in the war was repeated in each of his official statements.¹¹

For example, in an interview on March 3, 2022 the ICC Prosecutor stated that if war crimes are found to have been committed in Ukraine, “his office would follow the evidence up the chain of command, to the highest levels of political and military office” and that “[a]nybody involved in the conflict needs to realize they don’t have a licence to commit crimes”.¹²

Institutional Developments

Since the start of the war and subsequent ICC Investigation, ICC Prosecutor Khan has visited Ukraine multiple times¹³ and an ICC investigative team has been deployed to Ukraine specifically to collect and preserve evidence of alleged crimes.¹⁴ There have been important institutional developments; notably, the establishment of the Country Office of the International Criminal Court in Ukraine which strengthens cooperation and assistance between the Government of Ukraine and the ICC to further support the ICC’s mandate.¹⁵

Arrest Warrants Have Been Issued

Perhaps the most significant action taken by the ICC since the opening of the Investigation into the Situation in Ukraine is the issuance of six arrest warrants.

In March 2023, the ICC Pre-Trial Chamber issued arrest warrants for Russian President Vladimir Putin and Ms. Maria Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation.¹⁶ The Pre-Trial Chamber found that there was reasonable grounds to believe that they are criminally responsible for the unlawful forcible deportation and transfer of Ukrainian children from occupied areas of Ukraine to the Russian Federation.¹⁷

In March, 2024, the ICC Pre-Trial Chamber issued two further arrest warrants for Sergei Ivanovich Kobylash, Lieutenant General in the Russian Armed Forces and Viktor Nikolayevich Sokolov, Admiral in the Russian Navy and Commander of the Black Sea Fleet.¹⁸ The Chamber found there were reasonable grounds to believe that General Kobylash and Admiral Sokolov bear individual criminal responsibility for the war crime of directing attacks against civilian objects, the war crime of causing excessive incidental harm to civilians or damage to civilian objects and the crime against humanity of inhumane acts.¹⁹ These two suspects allegedly are responsible for missile strikes against Ukrainian electric infrastructure including numerous electrical power plants and sub-stations as well as other inhumane acts that have intentionally caused great suffering.²⁰

A further two arrest warrants were issued by the ICC Pre-Trial Chamber in June, 2024 for Sergei Kuzhugetovich Shoigu, Minister of Defence of the Russian Federation and Valery Vasilyevich Gerasimov, Chief of the General Staff of the Russian Federation’s Armed Forces and First Deputy Minister of Defence for war crimes and the crime against humanity for inhumane acts.²¹ These two suspects are allegedly responsible for missile attacks on electric infrastructure and use of armed force against civilians, including the elderly, women and children.²²

The significance of these arrest warrants goes beyond this moment and situation; they have substantial consequences, even before they are executed. They demonstrate a continued commitment to holding perpetrators to account and ensuring there is no immunity for such crimes on the international stage. They show that the ICC Investigation into the Situation in Ukraine has collected concrete evidence of war crimes. Preserving a record of what is happening in Ukraine is invaluable, not just for the ICC process but also as an irrefutable counter to disinformation and a testament for the future. The arrest warrants bring attention to the crimes that are being committed and demands the world’s focus on this situation. They also identify who the alleged perpetrators are and what specific crimes are alleged to have been committed based on objective evidence considered by an independent panel of qualified arbiters.

Because all 125 States Parties²³ to the ICC are bound by the Rome Statute and obligated to arrest and surrender anyone subject to a warrant of arrest to the ICC, these arrest warrants seriously restrict their targets’ ability to move around in the world.²⁴ Any travel for President Putin and the other five named suspects comes with it a real risk of capture and being brought before the Court.

Conclusion

When Ukraine ratified the Rome Statute, it became the 125th States Party to the ICC.²⁵ As ICC Prosecutor Khan said at the time, “It is remarkable that amidst bombs and abductions, as children are targeted and intentional suffering is inflicted against civilians, the people and authorities of Ukraine have set an example by turning to the law as their ally.”²⁶ He went on to say:

This is both a message of hope and a clear warning. Those who trespass in Ukraine, those who trespass on the rights of its inhabitants, those who believe that they can use untrammeled power to abuse the vulnerable should know that we are united in holding them to account. And this is a message not just for senior leaders, but for any person at any level engaged in these crimes. If you are a foot soldier, if you are guiding a drone to its target, if you are behind a desk planning illegal abductions of individuals, please know that the collective efforts that have been demonstrated in the last days will, eventually, remove any sense of impunity that you presently have.²⁷

While the ICC’s Investigation into the Situation in Ukraine will most certainly be a lengthy process, likely taking years to prosecute any war criminals brought before it,²⁸ the promise of accountability remains strong.

What You Can Do

1. Stay Informed.²⁹

2. Donate.³⁰

3. Raise awareness.³¹

In solidarity with Ukraine.

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Lee-Ann Conrod works as a Federal Prosecutor at the Public Prosecution Service of Canada in Halifax, Nova Scotia. She graduated with a Juris Doctorate from UNB Law in 2010 and Dalhousie’s Schulich School of Law with her LLM in 2018. In 2019, she worked at the ICC as a Visiting Professional. Lee-Ann is also an adjudicator for the Province of Nova Scotia and Chair of the CBA-NS Criminal Law Section. The opinions expressed in this article are solely her own and not those of her employers. While every effort was made to ensure that the information contained in this article is accurate, she welcomes any comments, suggestions, or correction of errors. Lee-Ann can be contacted directly by e-mail.