ICC to issue first arrest warrants linked to Russia’s invasion of Ukraine

The prosecutor at the international criminal court will formally open two war crimes cases and issue arrest warrants for several Russians deemed responsible for the mass abduction of Ukrainian children and the targeting of Ukrainian civilian infrastructure, according to reports on Monday.

The New York Times and Reuters news agency reported that the prosecutor, Karim Khan, would ask pre-trial judges to approve arrest warrants on the basis of evidence collected so far. If successful, it would be the first time ICC warrants have been issued in relation to the Russian invasion of Ukraine.

It is not clear whether the warrants would be sealed, which would leave suspects guessing over whether they had been implicated. It is unlikely that the warrants would lead to trials as the ICC would not try the defendants in absentia, and Russia, which is not a member of the ICC, is highly unlikely to hand them over to the court, based in The Hague.

Reports of imminent arrest warrants come just over a year after Khan opened an investigation into possible war crimes, crimes against humanity and genocide in Ukraine. Over the past 12 months, he has made three trips to Ukraine and visited sites of alleged war crimes.

Russia has been open about taking Ukrainian children and teenagers to Russia and giving them to Russian families, but it has done so under the guise of humanitarian rescue. One of Putin's aides, Maria Lvova-Belova, the presidential commissioner for children's rights, has been quoted as saying 350 children had been adopted by Russian families and that more than 1,000 were awaiting adoption.

In February, the Yale Humanitarian Research Lab published a report alleging that at least 6,000 children from Ukraine had been sent to Russian "re-education" camps in the past year, with several hundred held there for weeks or months beyond their scheduled return date. The report also said Russia had unnecessarily expedited the adoption and fostering of Ukrainian children.

"The ICC prosecutor might be working towards making the case that the abduction of children is a case of genocide. That would be a first and that might make this case stand out," said Iva Vukusic, a war crimes expert and assistant professor of international history at the University of Utrecht. "If the ICC charges the abductions as genocide, it's also unclear what the outcome and judgment in any future case would be. This is really untested territory."

Moscow denies deliberately harming civilians, but its defence ministry has admitted targeting Ukraine's energy infrastructure. Human Rights Watch has said Russian forces have also carried out "indiscriminate and disproportionate" bombing and shelling of urban areas, hospitals and schools.

The ICC did not respond to a request to comment on Monday, other than to point towards Khan's decision to open an investigation on 2 March 2022. Neither Russia nor Ukraine is a signatory to the court's founding document, the Rome statute, but Ukraine has twice asked the ICC to exercise its jurisdiction over its territory. Forty-three ICC member states referred the situation to the court, opening the way to the investigation.

The US is not a member of the court and the Biden administration is split over whether to share intelligence with the ICC to help investigations and prosecutions. The White House and state department are largely in favour of cooperation but the Pentagon is opposed on the grounds that setting a precedent for the investigation of the armed forces of a non-member state could ultimately lead to the legal pursuit of US soldiers on war crimes charges.

ICC advocates say there are safeguards to prevent that from happening, restricting the court's jurisdiction to cases in which a war crimes suspect's country of origin is unwilling or unable to prosecute.