Ukraine Symposium – Attacking Power Infrastructure under International Humanitarian Law

Over the past few weeks, the scale of Russian attacks against Ukraine’s power infrastructure has grown dramatically. The Washington Post, for instance, has reported, “[d]ozens of Russian missiles and Iranian-made kamikaze drones have been striking power plants and substations, cutting electricity, heat and hot water in many cities and forcing factories in some areas to temporarily close.” And on Tuesday, President Zelensky estimated that “[s]ince Oct 10, 30% of Ukraine’s power stations have been destroyed, causing massive blackouts across the country.” To defend against the attacks, he has asked for advanced air defense systems from nations providing material support; they have promised Ukraine shall receive them.

There is no question that Russian attacks have killed or injured many Ukrainian civilians, destroyed civilian property, and severely disrupted daily life for the population. They are condemnable. But are they unlawful under international humanitarian law (IHL)? In this article, I will deconstruct this complex question. I conclude that attacks on power infrastructure, such as those Russia is mounting, can be unlawful, and many undoubtedly are, but are not necessarily so.

Past Examples of Power Infrastructure Attacks

There is a long lineage of attacks on power systems during armed conflict (Crawford). For instance, electrical power was a target of the Zeppelin raids of the First World War; Germany attacked the Soviet electric grid to regain operational initiative following its loss at Stalingrad; the United States conducted such attacks against North Korea for military purposes and to force it to the negotiating table; and power was a key target set during Operations Rolling Thunder and Linebacker I and II during the Vietnam war.

During the First Persian Gulf War in 1991, Coalition forces mounted strikes against Iraq’s power infrastructure in accordance with the Joint Force Air Component Commander’s designation of “crucial aspects of electricity production facilities that power military and military-related industrial systems” as an air campaign objective (Gulf War Study at 125). To justify the attacks, the Department of Defense (DoD) explained (at 127),

Electricity is vital to the functioning of a modern military and industrial power such as Iraq, and disrupting the electrical supply can make destruction of other facilities unnecessary. Disrupting the electricity supply to key Iraqi facilities degraded a wide variety of crucial capabilities, from the radar sites that warned of Coalition air strikes, to the refrigeration used to preserve biological weapons (BW), to nuclear weapons production facilities.

To do this effectively required the disruption of virtually the entire Iraqi electric grid, to prevent the rerouting of power around damaged nodes.

According to the DoD, the “dual-use” nature of the electric grid justified the attacks despite the impact on the civilian population (Appendix O, at 623). Nevertheless, criticism followed. For instance, Human Rights Watch (HRW) questioned the attacks’ lawfulness based on the proportionality rule, the prohibition of starvation (indirect effect on the water supply), and IHL’s requirement to take precautions in attack (the availability of alternative targets in light of Coalition air supremacy) (Needless Deaths in the Gulf War, ch. 4).

During NATO’s 1999 Operation Allied Force air campaign against the Federal Republic of Yugoslavia (FRY), which was meant to stop the slaughter of Kosovar Albanians, “electrical power” was again a target set. For example, the targets included a transformer station that supplied power to the air defense coordination network and an operations center important to FRY command and control. The Final Report to the ICTY Prosecutor (¶ 74) found no basis for initiating a formal investigation into them.

Given the criticism it had encountered in the first Gulf War, during the 2003 Operation Iraqi Freedom campaign, Coalition forces struck only electrical power distribution rather than power generation facilities. Weapons choice was also designed to minimize civilian loss or damage. For instance, they employed the BLU-114 cruise missile that dispensed carbon fiber filaments to short-circuit equipment rather than damage it with an explosive charge. Despite these efforts, criticism of individual attacks followed (HRW, Off Target, 42-45).

Power Infrastructure as a Military Objective

Power infrastructure has long been considered a valid target. In 1956, the International Committee of the Red Cross (ICRC) included “installations providing energy mainly for national defence, e.g. coal, other fuels, or atomic energy, and plants producing gas or electricity mainly for military consumption” in a proposed list of military objective categories (see n. 3). And the DoD Law of War Manual provides, “Electric power stations are generally recognized to be of sufficient importance to a State’s capacity to meet its wartime needs of communication, transport, and industry so as usually to qualify as military objectives during armed conflicts” (§ 5.6.8.5). In this war, Russia’s Ministry of Defense has characterized “energy systems” as on par with “military command systems” and “arsenals,” both of which are unambiguously lawful military objectives.

But power infrastructure must qualify as a military objective before being directly targeted. Military objectives are “objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military of advantage” (Additional Protocol I, art. 52(2); Customary IHL, rule 8; DoD Law of War Manual, § 5.6).

The United States controversially treats so-called “war-sustaining” objects as military objectives (DoD Law of War Manual, § 5. 6.6.2). These are economic targets that finance the war effort broadly, such as oil destined for export. Power generation and distribution infrastructure that supports key industries generating income for the State that, in turn, can be used to support the war effort would qualify.

Most States and international law experts reject extending the military objective definition this far, and rightly so. As noted by an International Law Association Study Group (SG) report, in which I participated, “[t]here is no indication in State practice that objects contributing to the enemy’s war-sustaining effort qualify as such as military objectives and the SG believes that this position has no basis in the law as it stands today and should be clearly rejected” (at 341). Indeed, the danger of the war-sustaining approach is that malevolent States will exploit it to justify attacks, such as Russia appears to be doing in Ukraine.

Undeniably, power infrastructure that supports military installations, equipment, or activities qualifies as a military objective based on the “use” criterion so long as attacking it will benefit the attacking force. This is so even though the system also supports the civilian population (a so-called “dual-use” object), and even when the extent of civilian use far outweighs military reliance on it. Accordingly, any reliance by Ukrainian forces on energy infrastructure for military purposes renders it a lawful military objective subject to Russian attack.

It is also possible that power infrastructure may become targetable based on the “purpose” criterion, which denotes future use. For instance, the Eritrea-Ethiopia Claims Commission found that a power plant under construction that would provide electricity for an area that included a naval facility qualified as a military objective based on “purpose” (future use). (Partial Award, Western Front, Aerial Bombardment, ¶¶ 113, 121).

It must be cautioned, however, that a mere possibility of such use is not sufficient; rather, there must be reliable intelligence or other indications (such as inevitability in light of friendly or enemy operations) that lead to a reasonable conclusion that future use for military ends is highly likely (see discussion Air and Missile Warfare Manual, rule 22(c)). Russia cannot target Ukrainian power infrastructure based on mere speculation that Ukrainian forces might rely on it in the future.

Power infrastructure also raises the issue of separateness. For instance, an electricity grid may comprise a power generation facility, multiple power distribution sub-stations, and infrastructure connecting them to each other and the grid’s users. Even though they make up a single grid, those aspects upon which the military usage does not rely and that can be attacked separately are not military objectives. They retain their civilian character, may not be attacked, and any collateral damage to them is factored into the proportionality and precautions in attack assessments (see below).

Obviously, Russia is attacking Ukraine’s power infrastructure for reasons other than, or at least in addition to, their military contribution. But in my opinion, the reason(s) an object is being attacked does not bear on its characterization as a military objective so long as the two prongs of the Article 52(2) definition are satisfied—the power infrastructure that is targeted must make an effective contribution to enemy military action and neutralizing it must yield a definite military advantage to the attacker (the term “military advantage” is explained below in the section on proportionality; it applies mutatis mutandis here). Thus, the fact that Russia probably hopes it will undercut Ukrainian civilian support for the war effort and bolster flagging Russian morale does not deprive power infrastructure otherwise meeting the definition of a military objective of that status. (On terror attacks, see below).

That said, it is doubtful that all (or even most of) the power infrastructure under attack qualifies as a military objective. Strikes on power infrastructure that does not qualify as a military objective would run afoul of the unambiguous prohibition on attacking civilian objects found in Additional Protocol I, Article 52(1), and customary law (see also DoD Law of War Manual, § 5.5.2).

Precautions in Attack

Even if a Russian attack is against power infrastructure qualifying as a military objective, it must comply with the requirement to take precautions in attack outlined in Additional Protocol I, Article 57, and customary law (see also DoD Law of War Manual, § 5.11). In particular, there is an obligation to select methods (tactics) and means (weapons) of warfare “with a view to avoiding, and in any event minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects,” although an attacker need not sacrifice likely military advantage in order to comply with the duty.

In the power infrastructure context, the clearest example was the use of carbon filament bombs by the United States in lieu of explosive munitions to neutralize power. Doing so posed little direct physical risk to nearby civilians or civilian objects. But I am unaware of alternative weapons in the Russian inventory to which Russia could turn to further limit civilian harm when targeting components of the power infrastructure that qualify as military objectives, especially in light of the requirement that use be feasible in the circumstances.

Another Article 57 requirement arises “[w]hen a choice is possible between several military objectives for obtaining a similar military advantage.” In such cases, “the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.” For instance, in trying to deprive a Ukrainian military facility of power, it might be possible to attack the power generation facility or a distribution substation from which the facility receives its power. If they would both cut power for the period during which Russia wants an outage to occur, an option exists.

But before a particular choice is required, the options must be comparable. For instance, even when one option has a lower likelihood of causing civilian harm, it need not be selected if the risk to the attacking force is greater. The same result would hold if the probability of success against the target risking less collateral damage is measurably lower. We need to know much more about the individual attacks to assess compliance with this requirement.

“Effective advance warning” must also be issued by the attacker if the attack “may affect the civilian population, unless circumstances do not permit” (art. 57(2)(c)). Note that although the other precautions requirements only attach when the attack on power infrastructure can be expected to cause deaths, injury, or physical damage, the requirement here is to warn of attacks that “may affect” the civilian population. Almost every attack against Ukrainian power infrastructure does so, at least through the loss of service.

However, Ukrainian forces have demonstrated an impressive ability to intercept Russian missiles and drones; it will only improve with the arrival of more sophisticated air defense systems from NATO States. This being so, it is fair to say that warning the civilian population of attacks against any power infrastructure probably is not feasible. Even general warnings of attacks in an area would allow Ukrainian forces to reposition their air defense assets, thereby heightening the risk of interception.

It must be emphasized that these requirements are irrelevant to attacks against any power infrastructure that does not qualify as a military objective. The mere fact of an attack against them renders the operation unlawful ab initio.

Proportionality

According to the customary rule of proportionality, which is captured for Parties in Article 51(5)(b) and repeated in Article 57(2)(a)(iii) and 57(3) of Additional Protocol I, “[l]aunching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.” As with the requirement to take precautions in attack, the rule of proportionality only applies to Russian attacks targeting power infrastructure that constitutes a military objective.

The critical issue is what counts as collateral damage for the purposes of the rule. It is textually unambiguous that only civilian deaths and injuries, or damage to civilian objects count in the proportionality assessment. “Injuries” include sickness, as in the case of that caused by water contamination or hunger due to loss of power. With winter approaching, any loss of heating could prove dangerous for the Ukrainian population; foreseeable harm to them would also qualify for the purposes of the rule. But the loss of power resulting in mere irritation, inconvenience, or economic loss—even if severe—does not amount to collateral damage as a matter of law.

Qualifying civilian harm that must be considered by Russia when performing proportionality calculations includes both the attack’s direct and indirect effects. Direct effects result during the attack, such as the civilian deaths that have been caused by the weapon’s blast and fragmentation. Indirect effects (knock-on or reverberating effects) are those with a causal link to the attack but not immediately caused by it. For instance, the Russian attacks on the power system have disrupted medical care and emergency response. Russian forces were obligated to consider foreseeable harm to civilians likely to result from those effects in their proportionality assessments.

Yet, at some point, indirect effects are so remote that they do not factor into assessments. The prevailing view among IHL experts is that foreseeability is the key. As the International Tribunal for the former Yugoslavia noted in the Galić case, a consequence is foreseeable if “a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack” (¶ 58). All civilian harm foreseeable before or during the attack on the power infrastructure bears on proportionality of the Russian attack but not any unforeseeable harm, as in the case of the attack causing unforeseeable secondary explosions.

To violate the proportionality rule, the qualifying expected collateral damage must be “excessive” relative to the anticipated “concrete and direct” military advantage. Concrete refers to an actual military advantage, whereas direct denotes a relatively short chain of causation. In this regard, the ICRC Commentary on Article 52(2) notes that the military advantage must be “substantial and relatively close” (¶ 2209). It cannot be “based merely on hope or speculation” (Air and Missile Warfare Manual, ¶ 9 of rule 14). Given their performance to date, I doubt Russian targeteers are carefully considering whether their operations, assuming they are even against military objectives, are excessive; as a general matter, they appear to be either ignoring IHL altogether or fairly incompetent. But more facts are needed to draw definitive conclusions vis-à-vis the excessiveness of individual strikes.

Concerning such assessments, note that military advantage is always contextual in that it is not the attrition of particular types of targets that matters but rather the effect of its damage or destruction on military operations. In the Russian attacks on power infrastructure qualifying as military objectives, the military advantage would be calculated based on the neutralization of military assets or activities relying upon it for the period during which that neutralization occurs. The military advantage of a strike that deprived a logistics facility of power, for example, would be the impact on, among other things, Ukrainian supply and reinforcement operations until power is restored.

Importantly, any decline in the morale of the Ukrainian civilian population or increase in morale among Russians does not amount to military advantage. As the International Law Association Study Group agreed, “the notion of military advantage does not include advantages that are only political, psychological, economic, financial, social, or moral in nature” (at 363). In the case of the Russian attacks, it is essential to understand that the meaning of “military advantage” in the proportionality context is identical to that in the definition of military objective discussed above.

Other Issues

 Terror attacks: Many have labeled the Russian attacks as terrorism. On Thursday, for instance, Ursula von der Leyen, President of the EU Commission, charged, “Cutting off men, women, children of water, electricity and heating with winter coming—these are acts of pure terror. And we have to call it as such.” Factually, she is right. But are Russia’s power infrastructure strikes “terror” attacks as that term is used in IHL?

Under IHL, “[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited” (Additional Protocol I, art. 51(2); Customary IHL, rule 2; DoD Law of War Manual, § 5.2.2). There is no question that some Russian attacks during this conflict have violated the rule, especially those conducted without any effort to distinguish between military objectives and Ukrainian forces on the one hand and civilian objects and civilians on the other.

However, in the case of the power infrastructure strikes, there is no conclusive open-source evidence that their primary purpose is to terrorize the civilian population. Russian forces might hope that terror results (I am sure they do), and they certainly are causing some Ukrainians to be terrified, but this is not the same as launching them for the primary purpose of terrorizing the Ukrainian population. Of course, the absence of clear evidence of their purpose also means that we cannot exclude the possibility that terror is their primary purpose. And the record of Russian attacks into populated areas with no apparent military purpose certainly bolsters the case that terror might be the primary purpose here.

Indiscriminate attack: The power infrastructure attacks do not appear to violate the prohibition on attacks that are indiscriminate because they are not directed at a specific target, as in blindly firing into a populated area where military objectives and civilians and civilian infrastructure are co-located. On the contrary, the attacks on power infrastructure appear to be directed at specific targets; and they are hitting those targets. But this latter fact means that an attack on a power infrastructure target that does not qualify as a military objective violates the prohibition on directly attacking civilian objects (Additional Protocol I, art. 52(1); Customary IHL, rule 1; DoD Law of War Manual, § 5.5), which is also a war crime.

Constant care: As Russia and Ukraine are Party to Additional Protocol I, Russia is obliged to exercise “constant care” to “spare the civilian population, civilians, and objects” (art. 57(1)). As I have explained elsewhere, there is disagreement about whether this is also a customary law rule; I believe it is. Yet even for Parties to the instrument, a degree of uncertainty surrounds the nature of the obligation to take constant care to spare.

My own view is that constant care is a “duty for those who participate in military operations, including but not limited to attacks, to take the possibility of negative consequences for the civilian population and/or civilian objects into consideration…. Should there be a potential negative effect, ‘feasible’ precautions…have to be taken to avoid it” (at 180).

What this means regarding the power infrastructure attacks is that Russian forces must take into consideration adverse consequences for the Ukrainian civilian population, even though those effects do not qualify as collateral damage in the proportionality rule sense. This would, for instance, include loss of electricity that makes their lives significantly more difficult but does not place them at risk of physical harm, as with the loss of heat during the winter. In such cases, Russian forces mounting the attacks must ask whether there are alternative means or methods of achieving their desired effect (military advantage).

Conclusion

Although there is no prohibition on striking power infrastructure as such in IHL, only that which qualifies as a military objective is lawfully subject to attack. Almost certainly, some of the targets Russia is hitting do not. And even with respect to those targets that are military objectives, Russian forces are obligated to consider alternative weapons, tactics, and targets to achieve the desired effect if the alternative would result in less death, injury, or destruction for the civilian population. Without knowing more facts, compliance with this requirement is difficult to assess. But an attempt to avoid civilian harm has not characterized Russian operations.

Russian attacks must also comply with the rule of proportionality, which prohibits an attack when the expected collateral damage is excessive relative to the anticipated concrete and direct military advantage. An effect on civilian morale does not qualify as a military advantage, and almost certainly, some of the expected harm being suffered by the Ukrainian population is excessive to any potential Russian military advantage. Furthermore, in my opinion, the constant care requirement obligates Russian forces to try to avoid adverse consequences for Ukrainian civilians, even if those consequences do not qualify as collateral damage in the sense of the proportionality rule.

It would seem clear that at least some of the Russian power infrastructure attacks violate IHL. Sadly, this comes as little surprise in light of the rampant (and tragic) Russian practice of ignoring this body of law.

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Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading; Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College; and Strauss Center Distinguished Scholar and Visiting Professor of Law at the University of Texas.

Photo credit: State Emergency Service of Ukraine