Ukraine Symposium – Further Thoughts on Russia’s Campaign against Ukraine’s Power Infrastructure

On November 23, Russia mounted 70 missile and five drone attacks against Ukraine’s power infrastructure. Cities across the nation, including Kyiv, went dark. Without power, water supply and other systems providing for the population’s basic needs no longer functioned. And millions of Ukrainians found themselves unable to heat their homes in the below-freezing weather. Sadly, ten civilians died during the onslaught.

In response, the Security Council convened an emergency meeting at which the Under-Secretary-General for Political and Peacebuilding Affairs emphasized, “The United Nations strongly condemns these attacks and demands that the Russian Federation immediately cease these actions.” She stressed that “attacks targeting civilians and civilian infrastructure are prohibited under international humanitarian law.”

This was the largest attack since November 15, when Russia struck Ukraine’s power grid with 100 missiles and drones. The head of Ukraine’s national electricity grid, Ukrenergo, has labeled the destruction caused by the six-weeks long campaign “colossal,” while the New York Times reports that “almost no thermal and hydroelectric power plants remain undamaged.” The suffering of the Ukrainian people is tragic.

In late October, as the strikes began, I addressed the international humanitarian law (IHL) implications of attacking power infrastructure. I noted that while installations providing energy can qualify as military objectives if relied upon by the armed forces, Russian strikes against those not doing so amounted to IHL violations by Russia and war crimes by those involved. I also discussed other rules, including the prohibitions on terrorizing the civilian population and conducting indiscriminate attacks, but concluded that there was insufficient information to conclude (as yet) that Russia had violated those rules.

The picture has changed in light of the continuation and intensification of the Russian campaign against Ukraine’s power infrastructure. In this post, I reassess the attacks and address a new issue that the scope and scale of the attacks have implicated, the protection of objects indispensable to the survival of the civilian population.

Attacking Civilian Objects

That power infrastructure may qualify as a military objective if supplying power in support of the enemy’s military operations is unquestioned. Additionally, it may qualify as a military objective if it will be used to support military operations in the future. In fact, Russia is relying on those very justifications. For instance, at the Security Council emergency meeting, the Russian Ambassador claimed, “To weaken and destroy the military potential of our opponents, we are conducting strikes with precision weapons against energy and other infrastructure, which is used for the purpose of military supplies to Ukrainian units.”

But such assertions increasingly ring hollow, for the Russian attacks have become so widespread that it is difficult to imagine that all of the targeted systems and facilities amount to military objectives either because they are being used or will be used to support Ukrainian military operations. In this regard, qualification as a military objective depends on a two-pronged test under Article 52(2) of Additional Protocol I, to which Russia and Ukraine are Party, and that accurately reflects customary international law (Customary IHL study, Rule 8).

Any use of otherwise civilian objects beyond the de minimis level that makes an “effective contribution to military action” satisfies the first. The term effective denotes an actual contribution, as distinct from a particular degree of contribution. It is highly doubtful that the military uses every component of Ukraine’s power infrastructure that has been attacked.

And even when the first prong is satisfied, under the second, damaging, destroying, or neutralizing the object must offer the attacker “a definite military advantage.” There are two aspects of this condition. On the one hand, the advantage must be “definite.” The ICRC’s Commentary to Article 52 explains that this precludes an attack “which only offers potential or indeterminate advantages.” And on the other, that advantage must be “military” in nature.

In Russia’s power infrastructure campaign, the attacks are so widespread that it is doubtful its forces can articulate a definite benefit accruing from every attack, thereby rendering any military advantage only potential or indeterminate for many of them. Moreover, the scale and scope of the campaign mean that it is unlikely that any advantage Russia gains is, again in every case, military in nature. Simply put, Russian forces are almost certainly striking many targets that do not qualify as military objectives.

I would also note that most observers have (reasonably) concluded, as I have, that their motivation is to undercut civilian morale instead of affecting Ukrainian military operations. Although motivation must not be confused with advantagewhen considering whether an object is a military objective, if affecting civilian morale is the goal underlying the attacks, it is unlikely that Russian forces are fully verifying their targets as military objectives before attacking, a requirement of Article 57(2)(a)(i) of Additional Protocol I.

Moreover, if those forces are not thoroughly assessing power infrastructure targets against the two-pronged criteria, the attacks are indiscriminate. As noted in Article 51(4)(a), one form of indiscriminate attack is the failure of an operation to be “directed at a specific military objective.” Since some of the targets probably qualify as military objectives, while some surely do not, mounting a campaign against the nation’s entire power infrastructure is plainly an indiscriminate method of warfare. Although I had previously concluded that there was insufficient basis for finding that the power infrastructure attacks were indiscriminate, in light of the scale and scope of the ongoing campaign, it is now difficult not to come to that conclusion.

Terror Attacks

Article 51(2) of Additional Protocol I prohibits “acts or threats of violence the primary purpose of which is to spread terror among the civilian population,” a prohibition that reflects customary international law (Customary IHL study, rule 2; Galić, ¶¶ 87-90). In my earlier piece, I suggested that although the attacks factually terrorized some of the civilian population, the missing piece of the puzzle was whether that was the primary purpose behind them.

However, the attacks have gone on for so long, are so widespread, and are so intense, that it is difficult to attribute any purpose to them other than terrorizing the civilian population. As the U.S. Ambassador to the U.N. charged at the Security Council’s emergency meeting, “Putin’s motive could not be more clear and more coldblooded. He is clearly – clearly – weaponizing winter to inflict immense suffering on the Ukrainian people. He has decided if he can’t seize Ukraine by force, he will freeze the country into submission.”

Indeed, as noted above, the attacks have had little impact on ongoing Ukrainian military operations. On the contrary, they come at the cost of exhausting Russia’s supply of missiles and drones. The logical explanation is that the Russians are targeting civilian morale (a strategy that seldom succeeds), which, given the intensity and effects of the attacks, amounts to terrorizing the population.

There is no question that the consequences generated by these attacks qualify as “acts of violence” under the rule. As noted by the International Criminal Tribunal for Former Yugoslavia in Karadžić, what is required is that “the victims suffer great consequences resulting from the acts or threats of violence, which may include but are not limited to death and/or serious injury to body or health” (¶ 461), which loss of access to water and exposure to the harsh winter clearly would. And whether the Russian attacks actually terrorize the civilian population is irrelevant. All that is required is that terror was intended (Galić, ¶¶ 103-104).

Finally, in addition to being an IHL violation, such acts are war crimes. The International Criminal Tribunal for the Former Yugoslavia confirmed this status on multiple occasions (see discussion here).

Objects Indispensable to the Civilian Population

The scale and scope of the Russian campaign have raised a new IHL issue. As the Washington Post has observed, Ukraine is “on the brink of a humanitarian disaster this winter as millions of people potentially face life-threatening conditions without electricity, heat or running water” due to the attacks. This reality brings a further prohibition into play.

Pursuant to Article 54(2) of Additional Protocol I,

It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.

Under paragraph 3 of the article, this prohibition does not apply to objects used as sustenance solely for members of the armed forces or in direct support of military action. But even in the latter case, actions against those objects are prohibited if they may be “expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.”

The customary status of the rule is a matter of some uncertainty. The ICRC’s Customary International Humanitarian Law study styles it as reflective of customary (Rule 54), as did the Eritrea-Ethiopia Claims Commission and the  Navy/Marine Corps/Coast Guard’s Commander’s Handbook on the Law of Naval Operations (¶ 8.3). However, the DoD’s 2016 Law of War Manual asserts that it is “difficult” to draw this conclusion (§ 5.20.4), although it goes on to note that it supports the “underlying principle” prohibiting starvation as a method of warfare. In any event, as Russia and Ukraine are Party to Additional Protocol I, they are bound fully by the treaty-based rule.

I did not address this prohibition in the earlier piece because the extent to which the campaign affected the power infrastructure had not risen to the requisite level. But again, the scale and scope of the campaign have reached a point where the rule is now implicated. For instance, the power outages are resulting in widespread loss of access to drinking water, a consequence cited in the text of Article 54. Additionally, it is crucial to bear in mind that the items listed in the rule are only illustrative. The prohibition extends further to any object that could affect the civilian population’s survival. As an example, the ICRC Commentary notes, “it cannot be excluded that as a result of climate or other circumstances, objects such as shelter or clothing must be considered as indispensable to survival.” Power for heating is indispensable to the civilian population for the same reason, given Ukraine’s freezing temperatures. And power is so integral to daily life that its loss could affect many other indispensable objects, like distribution networks for food preservation and distribution, water purification and pumping equipment, and medical facilities.

As is clear from the text, the prohibition is linked to an attacker’s intent to deny qualifying items to the civilian population, whatever its underlying motivation. It is certainly possible, indeed likely, that Russian forces wish to deprive Ukrainian civilians of, for instance, water or heat, and otherwise disrupt civilian life. After all, imposing severe hardship is how they hope to undercut civilian morale.

But, even if this is not the objective of the strikes, and even if the Ukrainian armed forces were relying upon the power grid to conduct their operations, the scale and scope of the attacks are such that if they continue, it is inevitable that the civilian population will be left without adequate food or water. And even if not, conditions would be so harsh, especially during the winter, that civilians will be forced to flee the country to survive. That this is a real risk is evidenced by President Zelensky’s announcement of a nationwide drive to establish thousands of shelters called “Points of Invincibility” to provide essential services like communications, heat, water, and first-aid in the event of continued loss of power.

As with the IHL violations discussed above, such actions constitute a war crime for those involved (see, e.g., ICC Statute, art. 8(2)(b)(xxv)) in addition to being an IHL violation by Russia under the law of State responsibility.

Conclusion

Tragically, it is becoming difficult to keep up with the variety and frequency of IHL violations by Russian forces. Their continuing attacks on Ukraine’s power infrastructure serve as yet another example of Russian unlawfulness; those participating in them risk prosecution as war criminals. Beyond the law, they are immoral and militarily foolish.

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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: NASA