Charles-Edouard Renault
De Gaulle Fleurance & Associés, Paris
cerenault@dgfla.com

In modern high-intensity conflict, the front lines are no longer confined to trenches and physical fortifications; they extend to the power switches and water pumps of civilian metropolises. Since October 2022, the Russian Federation has executed a methodical campaign of missiles and drones’ strikes against Ukraine’s critical energy infrastructure. While the Kremlin frames these operations as a strategic necessity to degrade the enemy’s military-industrial complex, such systemic deprivation, plunging millions of civilians into darkness and cold, has been extended while negotiations are in a ‘situational pause’,¹ the halt being attributed by Russia to the ongoing conflict in Iran.

On 24 June 2024, the International Criminal Court (ICC) broke new legal ground in response to this strategy of darkness. Pre-Trial Chamber II (the ‘Chamber’) issued arrest warrants² for Sergei Shoigu, then-Minister of Defence, and General Valery Gerasimov, Chief of the General Staff of the Russian Armed Forces.³ What was the legal and policy architecture of these warrants and their implications for international criminal law while Russia was massively reiterating its bombing during Winter 2025?

These warrants are landmark developments for several reasons. First, they targeted the very pinnacle of military hierarchy. Second, they go beyond the traditional classification of ‘war crimes’ to include ‘crimes against humanity’ (ie, ‘other inhumane acts’) thereby addressing the cumulative and psychological toll of infrastructure warfare. Third, the ICC’s pursuit of Shoigu and Gerasimov represents a pivotal shift in how the Rome Statute addresses dual-use targets in the 21st century.

By analysing the interplay between the implementation of the principles of distinction and proportionality under Article 8, and the rigorous requirements of ‘State policy’ under its Article 7, this article will explore how the ICC is redefining the boundaries of accountability for military leaders. Ultimately, these proceedings challenge the long-standing impunity associated with high-level command decisions, signalling that the weaponisation of a civilian population’s survival is a crime that the international community can no longer overlook.

The legal classification of energy infrastructure: the ‘dual-use’ dilemma

The systematic targeting of the Ukrainian power grid by Russian forces presents a complex legal challenge in modern conflict: the classification of ‘dual-use’ infrastructure. While traditional military objectives, such as command centres or ammunition depots, are clearly defined, the status of an electrical substation feeding both a hospital and a nearby military barracks often sits in a legal grey zone. In the warrants for Shoigu and Gerasimov, the Chamber cuts through this ambiguity by applying a rigorous two-pronged test based on the principles of distinction and proportionality.

First, under Article 52(2) of Additional Protocol I to the Geneva Conventions, military objectives are limited to those that, by their nature, location, purpose or use, make an ‘effective contribution to military action’. Any target that does not meet these criteria remains a civilian object.

The ICC Prosecution’s primary charge under Article 8(2)(b)(ii) (intentionally directing attacks against civilian objects) rests on the argument that a significant portion of the targeted Ukrainian energy network lacked any nexus to military operations. By attacking regional thermal power plants and high-voltage substations far from the front lines, Russian command arguably targeted civilian infrastructure as such, rather than for any specific military utility. The ICC's willingness to sustain this charge suggests that the strategic desire to break a population’s morale does not transform a civilian power plant into a legitimate military objective.

Second, even in instances where a specific electrical installation could be argued to provide a marginal military advantage, for example, by powering a railway line used for troop movements, the ICC applied the proportionality test codified under Article 8(2)(b)(iv),⁴ prohibiting launching an attack with the knowledge that the ‘incidental loss of life or injury to civilians [...] would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’.

In its findings, the Chamber noted that for installations that might have qualified as military objectives, the ‘expected incidental civilian harm and damage would have been clearly excessive’. The reasoning here is quantitative (strikes affecting millions, causing country-wide blackouts) and qualitative, with the effective timing of the attack specifically during winter to multiply the ‘harm’ by stripping civilians of the means to heat their homes or pump water.

This ruling challenges the expansive Russian interpretation of military advantage supporting contemporary total war rhetoric which argues that the entire enemy’s economy supports its war effort. The ICC reaffirms that such military advantage must be direct and concrete, rather than indirect or speculative. By criminalising such a winter campaign, the ICC clarifies that the broad degradation of a nation's civilian survival capacity cannot be legalised by claiming a tangential impact on the adversary's logistics.

Elevating war crimes to crimes against humanity: a strategic shift in legal qualification

These warrants represent a sophisticated evolution in the ICC’s case law. While the destruction of power grids is traditionally analysed through the scope of Article 8 (War Crimes), this decision to include charges under Article 7 (Crimes Against Humanity) marks a significant threshold in international criminal law.

For an act to be qualified as a crime against humanity, it must be committed as part of a ‘widespread or systematic attack directed against any civilian population, pursuant to or in furtherance of a State or organizational policy’. In the case of the attack against the Ukrainian energy sector, the systematic nature is evidenced by the sheer scale and coordination of the strikes. From October 2022 to the present day, Russia has been using a deliberate wave strategy, launching hundreds of drones and missiles in synchronised patterns across the entire Ukrainian territory, activating a ‘weaponisation of energy infrastructure’. The ICC’s focus on Shoigu and Gerasimov suggests that such a strategy was not a set of isolated tactical errors by field commanders, but rather a state-led policy orchestrated at the highest level of the military hierarchy to indeed ‘weaponise the winter’.

The Chamber specifically identified the strikes as causing ‘great suffering, or serious injury to body or to mental or physical health’⁵ under the residual category of Article 7(1)(k). By moving beyond the destruction of property, the ICC is addressing the cumulative human impact of the blackout, which leads to the systemic deprivation of life-sustaining services and increases the negative impact on the vulnerable. The Prosecution considers that the primary target of the energy vacuum was civilian spirit. The intentionality behind targeting hospitals, where surgeries were performed by candlelight, and the disruption of food supply chains elevates these acts from ‘collateral damage’ to a deliberate assault on the civilian fabric.

The Article 7 challenge was to prove the conduct was ‘pursuant to a State policy’.⁶ The ICC’s Prosecutor office accessed an abundance of open-source evidence. Public statements from Russian officials and state media outlets – often framing the Ukrainian grid’s destruction as a legitimate tool to ‘force negotiations’ or ‘de-electrify’ Ukraine – serve as a roadmap for mens rea (criminal intent).

By charging top officers with crimes against humanity, the ICC is effectively ruling that strategic infrastructure warfare, when designed to inflict mass civilian hardship as a primary method of pressure, ceases to be a mere violation of the rules of engagement and becomes an international crime. This sets a vital precedent for future conflict involving high-tech weaponry and interconnected urban environments.

Establishing command responsibility: from strategic intent to criminal liability

The prosecution of such high-level officials hinges on the ICC’s ability to link abstract military strategy to specific criminal outcomes. Under the Rome Statute, this is forged through two primary legal avenues for direct liability: individual criminal responsibility (Article 25(3)(a)); and command and superior responsibility (Article 28). The ICC Chamber arrest warrants suggested that both leaders are not merely ‘vicariously’ liable but are the primary architects of the campaign against Ukraine’s grid.

The ICC’s theory likely rests on the concept of co-perpetration. Under Article 25(3)(a) of the Rome Statute, a person is criminally responsible if the individual commits a crime ‘jointly with another or through another person’. In the context of Russia’s centralised military structure, the campaign against energy infrastructure was not a series of autonomous decisions by local commanders. It required high-level logistical coordination: allocation of precision-guided munitions (Kalibr or Kh-101 missiles); selection of targets via the General Staff; and synchronisation of waves of attacks.

By defining these strikes as ‘State policy’, the ICC positions Shoigu and Gerasimov as the coordinators of a ‘common plan’. Their contribution is deemed ‘essential’ because, within the Russian hierarchy, such a massive expenditure of strategic assets could not have occurred without their explicit authorisation.

Even if the Prosecution were to face challenges in proving a direct order to commit a crime, Article 28 of the Rome Statute provides a robust fallback. Indeed, a military commander is responsible for crimes committed by forces under his effective command and control. The superior-subordinate relationship between Gerasimov (as Chief of the General Staff) and the units of the Long-Range Aviation and the Black Sea Fleet responsible for the first strikes is obvious.

International law distinguishes between two types of knowledge for a military commander: actual knowledge, where the prosecutor must prove through direct evidence (testimonies, emails and intercepted reports) that the officer knew what was happening; and constructive knowledge, implying the ‘should have known’ argument. It is not clearly proven that the officer knew, but that the officer should have known the consequence of its order, given the circumstances. The weaponisation of energy infrastructure has, since 2022, been duly documented and considered as part of the Kremlin’s strategy ‘intentionally targeting civilian endurance to break Ukraine’s societal resilience while using negotiations to manage escalation’.⁷

Article 28(a)(ii) of the Rome Statute requires that the commander takes ‘all necessary and reasonable measures’ to prevent crimes or submit the matter to competent authorities for punishment. Instead of restraining the strikes following reports of civilian suffering, the Russian military leadership intensified and now reiterates such a campaign, which serves as a powerful indicator of criminal negligence, if not outright intent.

Sergei Shoigu had a dual role. While holding a military rank, his role as Minister of Defence was inherently political. Article 28(b) applies a slightly different standard for non-military superiors, requiring that the crimes ‘concerned activities that were within the effective responsibility and control of the superior’. Issuing warrants for both men simultaneously underscores the ICC’s view that Russia’s military and political wings were inextricably linked in the execution of these attacks.

With such a ruling, the ICC is challenging the ‘office shield’ principle, asserting that the higher an individual sits in the chain of command, the greater the individual's duty to ensure that strategic objectives do not infringe upon protections of the civilian population under international humanitarian law.

Strategic and political implications

Both warrants’ issuance carries weight far beyond the corridors of The Hague’s Peace Palace. These proceedings test the resilience of the ‘rules-based order’ in an era of renewed hegemon competition.

As Russia is not party to the Rome Statute, the immediate execution of these warrants remains unlikely as long as President Putin remains in power. However, these arrest warrants with their stigma effect transform the world map into a legal minefield for the Russian leadership, introducing a permanent status of international fugitives. Under Article 89 of the Rome Statute, 124 State Parties (now including Ukraine since 2025) are under a treaty obligation to arrest and surrender the suspects, should they set foot on their territory. This significantly curtails the diplomatic mobility of the Russian high commanders and President, effectively turning ‘sovereign immunity’⁸ into a hollow concept in the face of alleged crimes against humanity.

The ICC findings often serve as a gold standard for national prosecutors operating under the principle of universal jurisdiction. By elevating the systematic destruction of Ukraine’s energy grid from war crime to the level of crimes against humanity, the ICC has bridged the gap between traditional 20th century war crimes and the realities of modern, technologically driven conflict, providing a reminder that war of aggression is not limited to an abstract violation of borders, but can become a catalyst for tangible human suffering that the law is duty-bound to address. The ICC’s extending scope of crimes against humanity provides a powerful legal precedent for national courts to freeze Russian assets and initiate proceedings against lower-level facilitators of these strikes who may travel abroad.

By targeting the architects of infrastructure warfare, the ICC is sending a deterrent signal to some other global actors, among whom some, from one day to another, are threatening to destroy bridges and energy infrastructure. In the digital and kinetic age where hybrid warfare tactics are becoming the norm, the ICC is clarifying that the technological sophistication of a weapon like a drone does not grant legal impunity and can no longer be used as a convenient veil to hide a policy of civilian terror.

Notes

1     Independent Reporters, ‘Ukraine war today: Russia gives peace talks update as Hungary blocks support package’, Independent Bulletin (19 March 2026) at: www.independent.co.uk/bulletin/news/ukraine-war-today-russia-gives-peace-talks-update-b2942025.html accessed 8 June 2026.

2     International Criminal Court (ICC) ‘Situation in Ukraine: ICC judges issue arrest warrants against Sergei Kuzhugetovich Shoigu and Valery Vasilyevich Gerasimov’, Press Release (25 June 2024) at: www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-sergei-kuzhugetovich-shoigu-and accessed 8 June 2026.

3     CC-01/22, Prosecution v Sergei Kuzhugetovich Shoigu and Valery Vasilyevich Gerasimov, ‘Warrants of Arrest for Sergei Shoigu and Valery Gerasimov’, Pre-Trial Chamber II, 24 June 2024.

4     Rome Statute of the International Criminal Court, see: https://legal.un.org/icc/statute/99_corr/cstatute.htm#:~:text=ROME%20STATUTE%20OF%20THE%20INTERNATIONAL%20CRIMINAL%20COURT accessed 8 June 2026.

5     See n 2 above.

6     ICC ‘Statement by Prosecutor Karim A.A. Khan KC on the issuance of arrest warrants in the Situation in Ukraine’, Statement of 25 June 2024 at: www.icc-cpi.int/news/statement-prosecutor-karim-aa-khan-kc-issuance-arrest-warrants-situation-ukraine-0 accessed 8 June 2026.

7     Laure Foucher & Camille Lons, ‘Towards an Israeli-Saudi standoff? The Middle East and the brutalization of the new world order’ (FRS 15 April 2026) at: www.frstrategie.org/en accessed 8 June 2026.

8     See Charles-Edouard Renault, ‘The limits of the state liability exemption in wartime’ (20 December 2023), IBA Arbitration Committee at: www.ibanet.org/limits-state-liability-exemption-wartime accessed 8 June 2026.