Can all Russians be held responsible for the war in Ukraine? A heated online debate runs up against international law’s principle of individual responsibility.

An episode of “The Breakfast Show” featuring sociologist Konstantin Gaaze has prompted fierce debate on social media — particularly over his claim that Russians bear collective responsibility for Russia’s full-scale invasion of Ukraine.

Here is the exact quote:

International humanitarian law does not support that claim.

The most comprehensive international instrument governing these issues is the Rome Statute of the International Criminal Court (ICC). It says civilians bear no criminal or other responsibility for a war started or waged by their state.

The key principle is individual culpability, which rules out collective punishment, particularly for civilians. Citizens who were not personally involved in planning the aggression and did not commit crimes cannot be prosecuted.

Here is what the relevant articles say:

• Article 8 bis. Responsibility for the “crime of aggression” — the ICC’s official term — applies only to a narrow group of people: those “in a position effectively to exercise control over or to direct the political or military action of a State.” In other words, no one can be prosecuted under this article merely for being a citizen. Prosecutors must prove that the person held power at the highest levels of government and made key decisions.
• Article 25. This article further establishes that only individuals can be held criminally responsible. A person can be held responsible for a crime within the ICC’s jurisdiction if they committed it alone or with someone else, ordered or incited it, or intentionally helped carry it out.

The catch, however, is that the ICC cannot try Russians — even those directly involved in starting the war — specifically for the “crime of aggression.” Russia has not ratified the Rome Statute or its amendments, and Article 15 bis expressly prohibits prosecuting nationals of states that have not signed the treaty for this crime.

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The ICC arrest warrants for Russian President Vladimir Putin and Children’s Rights Commissioner Maria Lvova-Belova are unrelated to the “crime of aggression.”

Both are accused of war crimes, which fall under a different provision of the Rome Statute, Article 8. In this case, it does not matter whether Russia ratified the statute because the crimes were committed in Ukraine, which has accepted the ICC’s jurisdiction.

The ICC decisions ordering the arrests of Putin and Lvova-Belova list specific war crimes:

• “Unlawful deportation or transfer or unlawful confinement”
• “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory”

Further reading

Putin the suspect The International Criminal Court issues an arrest warrant for Russia’s president

4 years ago

Yes — quite a few.

These legal provisions are difficult to parse. Put as simply as possible, the picture is this: The ICC cannot try any Russian for the “crime of aggression,” much less all Russians at once.

But the ICC can prosecute Russian citizens for other categories of crimes, including war crimes, crimes against humanity, and genocide. This applies not only to those who made key political decisions but also to lower-level perpetrators.