Ukraine Symposium – New ICC Arrest Warrants for Russian Flag Officers

The International Criminal Court’s (ICC) wanted list for Russian perpetrators of war crimes committed in Ukraine has doubled. Prosecutor Karim Khan announced arrest warrants against two Russian military commanders, General Sergei Ivanovich Kobylash and Admiral Viktor Nikolayevich Sokolov, for deliberately targeting civilian infrastructure in violation of the Rome Statute as well as the laws of war. They will join Russian president Vladimir Putin and Russian Commissioner for Children’s Rights Maria Lvova-Belova, both wanted for abducting Ukrainian children, in The Hague to stand trial for their crimes if the ICC can ever manage to obtain custody over any of them.

Prosecutor Khan alleges these commanders directed “missile strikes carried out by the forces under their command against the Ukrainian electric infrastructure” in multiple locations between October 2022 and March 2023 which caused “excessive incidental harm to civilians or damage to civilian objects.” In other words, they deliberately attacked the civilian population’s electrical grid of Ukraine during winter on the famously cold Eurasian Steppes. This isn’t the first time prosecutions have been mounted against military commanders for targeting civilians in Europe during winter months.

The Rendulic Prosecution

Almost eight decades ago, in 1947, German General Lothar Rendulic found himself in the dock on similar charges before the Nuremberg International Military Tribunal in case No. 47, also known as the Hostage Trial. He was among the first defendants internationally prosecuted for deliberate destruction of civilian infrastructure. Rendulic commanded the Wehrmacht’s 20th Mountain Army in Norway and Finland in 1944 as the latter was pivoting its allegiance from Germany to peace with the Soviet Union during the Second World War.

He was obliged to remove his army to Norway, but this took place over a three-month period during which half his force had been recalled to Germany, the Soviet army was attacking, and he had no air reconnaissance capability. Although the Soviets did not continue attacking what remained of his retreating army, Rendulic adopted a “scorched earth” policy in addition to dropping fox holes and gun emplacements and building defensive installations in anticipation of the attack he mistakenly thought would come.

Rendulic’s forces devastated Finnish and later Norwegian civilian infrastructure. Although there were no civilian deaths, the tribunal found,

Villages were destroyed. Isolated habitations met a similar fate. Bridges and highways were blasted. Communication lines were destroyed. Port installations were wrecked. A complete destruction of all housing, communication and transport facilities was had. This was not only true along the coast and highways, but in the interior sections as well. The destruction was as complete as an efficient army could do it.

Prosecutors at Nuremberg particularly alleged that Rendulic’s October 1944 order to destroy all buildings except hospitals and inhabited dwellings, including in the town of Rovaniemi where 90 per cent of the town was wiped out due to uncontrolled fire, was revenge against the Finns for making a separate peace with the Soviets.

Defense counsel in such situations will almost always argue that military necessity excused their client’s conduct. Targeting and destruction of villages not occupied by opposing forces is, however, quite a stretch. In the end, this did not matter in Rendulic’s case on this charge. The tribunal did not deny the efforts of General Rendulic to lay waste as he retreated into Norway, but nevertheless acquitted him despite the lack of military necessity for his actions. Mistake of fact was enough. The court held,

There . . . was no military necessity for this destruction and devastation . . . . But we are obliged to judge the situation as it appeared to the defendant at the time. If the facts were such as would justify the action by the exercise of judgment, after giving consideration to all the factors and existing possibilities, even though the conclusion reached may have been faulty, it cannot be said to be criminal. After giving careful consideration to all the evidence on the subject, we are convinced that the defendant cannot be held criminally responsible although when viewed in retrospect, the danger did not actually exist.

Analyzing the ICC Warrants against the Rendulic Case

The two Russian generals now sought for targeting Ukraine’s electrical infrastructure similarly cannot argue military necessity. Unlike Rendulic, however, they also cannot argue mistake of fact. Where General Rendulic was operationally blind, was in a defensive posture, and was attempting an extrication, General Kobylash and Admiral Sokolov enjoyed full satellite reconnaissance coupled with complete air superiority over Ukraine, they were in an offensive posture, and were attempting to demoralize the Ukrainian population. These are legal apples and oranges in the law of targeting. Moreover, the Russian missile attacks against Ukraine’s infrastructure were long-range, calculated, and caused the death of civilians.

General Kobylash, of Moldovan descent and ironically born in Odessa, commanded the long-range aviation branch of the Russian Aerospace Forces. A veteran of Russian conflicts in Syria, Chechenia, and Georgia, Kobylash allegedly directed his fleet of TU-95 and TU-160 strategic bombers to hit civilian power targets not only in his former hometown but across Ukraine.

Admiral Sokolov, also of Moldovan descent, and previously but inaccurately claimed by Ukraine to have been killed, commanded Russia’s Black Sea Fleet during the period of attacks on Ukrainian power stations for which he is wanted. These attacks have wrought havoc on Ukraine’s civilian population. On November 23 2022 alone, Russian forces unleased massive missile strikes, plunging the country into darkness in freezing conditions and causing another blackout at the Zaporizhzhia nuclear power plant (ZNPP), prompting the head of the International Atomic Energy Agency to state, “The latest incident at the ZNPP highlights the increasingly precarious and challenging nuclear safety and security situation at Europe’s largest nuclear power plant, coming just a few days after it was repeatedly shelled.”

The Russian attacks have taken out 30 per cent of Ukraine’s power stations. A report by Yale University’s Humanitarian Research Lab charted the damage to Ukraine’s civilian infrastructure from October 2022 to April 2023, the same time period considered by the ICC in the Prosecutor’s request for arrest warrants. During that period, Yale identified 223 incidents of damage to Ukraine’s power grid spread geographically across 23 of Ukraine’s 24 oblasts. While Professor Michael Schmitt has noted previously in this symposium that attacking energy infrastructure is not unlawful per se, it can be so if the scope and scale of the attacks, coupled with the motivation for doing so, take the attacks across the line into illegality. Russian officials have characterized these attacks as justified, citing “the intent to retaliate and produce civilian harm” in ways that violate the laws of war. Andriy Yermak, an advisor to President Zelensky, noted after the November 23rd attack, “[t]heir goal is obvious: to cause a large-scale humanitarian catastrophe, to provoke another refugee crisis in Europe. It’s either force Ukraine to make peace or force the West to force Ukraine to make peace.”

Concluding Thoughts

The view from The Hague is that these Russian commanders have crossed that line into unlawfulness. Moreover, the ICC Prosecutor is buying neither a military necessity nor mistake of fact scenario. The ICC stated 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.” As Kaveh Khoshmood, director of Yale’s Lab, noted, “[t]hese attacks have put Ukraine’s civilians at great risk during the coldest months of the year. The basic needs of civilians must still be met, even during times of war.”

At the end of the day, likely the only way either General Kobylash or Admiral Sokolov will find themselves answerable to the international community for their crimes is the same way General Rendulic did eighty years ago, with the collapse of the regime for which they are working. Having faced down a coup attempt, eliminated more of his troublesome oligarchs, and assassinated his main political rival in the past six months, the Russian leader appears as invincible in early 2024 as the German leader appeared in early 1944. But things change. Sometimes dramatically so. Let’s hope they change in Ukraine’s favor sooner rather than later.

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Michael Kelly holds the Sen. Allen A. Sekt Endowed Chair in Law at Creighton University School of Law.

Photo credit: Vysotsky