Ukraine Symposium – Terrorizing Civilians and the Law of Armed Conflict

Reports from the Kherson Oblast, an area of Ukraine the Ukrainian military recaptured in November 2022, indicate that the Russian military is using drones to target Ukrainian civilians as part of a systematic effort to terrorize the civilian population (see also here, here, and here). Specifically, Russians carried out these attacks using first-person view (FPV) drones that are similar to (if not actually) commercially available drones. FPV drones are navigated using an onboard camera and may be configured to drop munitions or, in the case of suicide drones, designed to crash into their target and detonate an explosive charge.

The Russian drones are said to “zero in on vulnerable, everyday locations: crowded markets, petrol stations, cafes, post offices, and humanitarian aid centers.” Some days, the drones target ambulances, police officers, nurses, doctors, and garbage collectors. However, most days, the drones “hunt and wound or kill commuters on their way to work, or target pensioners eking out survival in the winter cold.” The drones also scatter butterfly anti-personnel mines “along streets, courtyards, playgrounds and public squares.” These small, camouflaged mines are hard to see, easily blending in with leaves and brush, and have led to a rise in foot amputations. The attacks have become so prevalent that civilians are unable to leave their houses during the day unless there is heavy rain or overcast conditions that prevent the drones from flying or decrease their accuracy. When they do venture out, many residents carry radio frequency drone detectors (devices designed to detect the radio frequencies used to control drones) and only travel after dark.

Evidence also suggests that the Russian military may be using the civilian population for target practice, to test drone technology and tactics and to train new drone operators (see also here and here). Or, as one investigator described, “Russian units … may be using civilians in Kherson City and Antonivka as targets for ‘live training exercises.’” Evidence of these attacks comes from interviews with Kherson residents, news reports, investigations, and from Russian drone operators themselves in the form of videos recorded from the operator’s camera and posted to the internet.

Residents of Kherson describe feeling hunted by drones, an experience that has taken a significant psychological toll on them. While residents have grown accustomed to the frequent Russian shelling, the drones introduce a terrifying new dimension to their experience. Unlike other munitions, drones individually stalk and strike their target: they hunt. A Kherson resident explained, “[d]rones are much worse than artillery, you can hear the launch and where it’s flying … . With a drone, it’s [suddenly] there, it sees you, and you are done.”

These Russian drone attacks violate the prohibition on making civilians the object of attack (see Additional Protocol I (AP I), art. 51(2); International Committee of the Red Cross (ICRC), Customary International Law (CIL) Study, rule 7; U.S. Department of Defense (DoD), Law of War Manual, § 5.5). However, a more challenging question is whether the attacks also violate the rule prohibiting the use of violence for the primary purpose of spreading terror among civilians, which is also enshrined in Article 51(2) of AP I. This post explains the international law related to the latter prohibition, applies it to the Russian drone operations in Kherson, and concludes that those operations likely violate this rule.

The Prohibition on Using Violence to Spread Terror Among Civilians

Article 51(2) of AP I, applicable in international armed conflicts, prohibits “[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population.” Both Ukraine and Russia are parties to AP I. In addition, this prohibition is considered to reflect customary international law, applicable in both international and non-international armed conflicts (see ICRC, CIL Study, rule 2; DoD, Law of War Manual, §§ 5.2.2, 6.7.3, 10.5.3.2). The Manual on International Humanitarian Law for the Armed Forces of the Russian Federation (2002) mirrors the language of Article 51(2), additionally observing that “terrorizing the civilian population” is a prohibited method of warfare (para. 84).

It is useful to break the prohibition down into two elements. To violate Article 51(2), a party to the conflict must: 1) commit an act or make a threat of violence; and 2) do so with the primary purpose of spreading terror among the civilian population. While these two elements may appear straightforward, they require a more nuanced explanation prior to assessing the Russian drone operations in Kherson.

Element 1: Acts or Threats of Violence

Article 51(2) applies when an armed force commits “acts or threats of violence.” An act of violence is consistent with the AP I definition of an “attack.” Article 49(1) defines attacks as “acts of violence against the adversary, whether in offence or in defence.” The term “adversary” has been understood to also include civilians and civilian objects (see Prosecutor v. Ntaganda, appeal, para. 15; Michael Schmitt, “Conflict in Gregoria and Tanaka: The Law of Targeting,” 103 International Law Studies 1, 44 (2024)). An act of violence is the “employment of force (kinetic or not) against persons or objects to produce … death or injury in the case of persons, or physical damage or destruction in the case of objects” (Ntaganda, para. 13).

However, Article 51(2) also includes “threats of violence.” Therefore, an armed force need not conduct a destructive or kinetic operation; mere statements may constitute a violation. For example, the use of propaganda that threatens to annihilate the civilian population may violate this rule (see ICRC, 1987 Commentary, art. 51(2), para. 1940; DoD, Law of War Manual, § 5.26.1.3).

Further, the acts or threats of violence must be directed at the civilian population. A trial chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) Prosecutor v. Karadžić addressed the “crime of terror” under international criminal law, which is derived from AP I, Article 51(2) (see para. 458). The court opined that the actus reus (i.e., the act or conduct) of the crime of terror is,

acts or threats of violence directed against the civilian population or individual civilians not taking direct part in hostilities. As such, it is similar to the actus reus of unlawful attacks on civilians. Accordingly, as is the case with unlawful attacks on civilians, the acts or threats of violence constituting terror need not be limited to direct attacks on civilians or threats thereof, but may include indiscriminate or disproportionate attacks (Karadžić, para. 460).

In other words, to constitute a violation of Article 51(2), the attacker’s acts or threats of violence may either be directed at the civilian population or be indiscriminate (see also Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, para. 490).

Element 2: The Primary Purpose of Spreading Terror

Regarding element two, Article 51(2) requires an attacker to conduct the act or threat with the “primary purpose of spreading terror among the civilian population.” This element contains three subparts: 1) the primary purpose, 2) spreading terror, and 3) the civilian population.

Primary Purpose

The “primary purpose” subpart is the most complex because it requires a precise analysis of the actor’s mens rea, or intent, in relation to their conduct. More commonly used in criminal law, mens rea​ is defined as “the state of mind statutorily required in order to convict a particular defendant of a particular crime.” Historically, mens rea falls into two categories: general intent and specific intent. In the criminal law context, specific intent means the “actual intent to perform some act along with a desire for the consequences that result from that act.”

In Prosecutor v. Galić, the ICTY used a criminal law mens rea analysis when determining whether Stanislav Galić committed the crime of terror. In its judgement and opinion, the Trial Chamber affirmed the intent requirement, stating

“Primary purpose” signifies the mens rea of the crime of terror. It is to be understood as excluding dolus eventualis or recklessness from the intentional state specific to terror. Thus, the Prosecution is required to prove not only that the Accused accepted the likelihood that terror would result from the illegal acts – or, in other words, that he was aware of the possibility that terror would result – but that that was the result which he specifically intended. The crime of terror is a specific-intent crime (para. 136).

Further, evidence of specific intent “can be inferred from the circumstances of the acts or threats of violence, that is, from their nature, manner, timing, and duration … [and] may also be inferred from the site of the attack” (Prosecutor v. Milošević, judgment, para. 881).

Finally, the Trial Chamber in Galić ruled that “actual infliction of terror is not a constitutive legal element of the crime of terror” and that “there is also no requirement to prove a causal connection between the unlawful acts of violence and the production of terror” (para. 134). In other words, the attackers’ intent is determinative of a violation of Article 51(2) rather than the results of their actions.

The “primary purpose” subpart also serves to differentiate lawful attacks against military objectives, which may scare civilians, from unlawful attacks intended to spread terror amongst the civilian population. Armed conflict is inherently violent and terrifying. To succeed in combat, an armed force must employ violence against the enemy. Even when the acts of violence are lawful (i.e., the attack is directed at a military objective, feasible precautions are taken to minimize collateral damage, and the collateral damage is not excessive in relation to the military advantage gained), civilians may still fear for their lives. This is especially likely when an armed force conducts attacks against military objectives located in the vicinity of civilians, such as a city or town.

The ICRC’s 1987 Commentary to Article 51(2) acknowledges and further expounds on this issue. For instance, it observes that “acts of violence related to a state of war almost always give rise to some degree of terror among the population” and that “[a]ttacks on armed forces may be deliberately brutal in order to intimidate enemy soldiers and compel their surrender” (para. 1940). The ICRC commentary also explains that to constitute a violation, an attacker must intend their act or threat to “spread terror among the civilian population without offering substantial military advantage.”

For example, Ukraine may lawfully use a thermite-spewing dragon drone to intentionally terrify enemy combatants to cause them to surrender, even if it secondarily causes terror to spread amongst the civilian population. On the other hand, it would be unlawful for an armed force to use a dragon drone indiscriminately and with the primary purpose of spreading terror amongst the civilian population. This raises the question whether an armed force may conduct a lawful attack on a military objective (i.e., an attack that is consistent with the law of armed conflict (LOAC)) but also intend to spread terror or fear within civilian population (e.g., a “shock and awe” operation).

In the Milošević case, the ICTY Trial Chamber addressed this question, stating that the crime of terror requires the attacker to “‘wilfully’ mak[e] the civilian population or individual civilians not taking direct part in hostilities the object of acts of violence with ‘the primary purpose of spreading terror among the civilian population’” (para. 879) (emphasis added). Likewise, the tribunal in Karadzić affirmed that “acts or threats of violence constituting terror … do not include legitimate attacks against combatants” (para. 460). The late Professor Yoram Dinstein further highlighted this point, noting

[t]he exclusion of lawful attacks against combatants ought to be underscored. There is no legal blemish in large-scale aerial bombardment (like the one unleashed against Iraq in 2003), pounding military objectives and breaking the back of the enemy armed forces, even if it leads to the collapse of civilian morale due to resonating ‘shock and awe’ (The Conduct of Hostilities under the Law of International Armed Conflict, para. 490).

Spreading Terror

The next subpart is spreading terror. Neither Article 51(2) nor the ICRC’s commentary specifically defines “terror” or clarifies how one would conclude that an attack was intended to spread terror among civilians. The ICRC acknowledges that the concept of “terror” in this context can be difficult to define. However, “terror,” as discussed in Article 51(2), which applies during armed conflict, is distinguishable from acts of terrorism during peacetime, which domestic law would define.

The ICTY Trial (para. 137) and Appeals (p. 50, n. 320) Chambers in the Galić case defined terror as simply placing victims in “extreme fear.” However, the court in the Milošević case concurred with the following detailed explanation and definition of terror, which was provided by the prosecution.

No one knew whether they might be the next victim. It affected every waking moment of their lives. People for 15 months over the period of this indictment knew absolutely no sense of safety anywhere in the city. Terror is … the intentional deprivation of a sense of security. It’s been [sic] the primal fear that people feel when they see someone in front of them gunned down and that moment of panic when they try and run to help the victim, waiting for the next shots to come, and you’ve had ample evidence about that.

And it’s not just … the fear that comes from being nearby the combat. This is a fear calculated to demoralise, to disrupt, to take away any sense of security from a body of people who have nothing … to do with the combat (paras. 885-86)

Examples of acts that violate Article 51(2) generally focus on large-scale operations or protracted campaigns that are indiscriminate or intended to harm civilians or civilian objects. For instance, the DoD Law of War Manual refers to historical examples, including “Japanese bombs attached to free-floating, long-range balloons [and] … German long-range rockets without guidance systems used during World War II.” The ICRC’s CIL Study cites similar examples, such as

indiscriminate and widespread shelling, and the regular bombardment of cities …, assault, rape, abuse and torture of women and children, mass killing … unlawful firing on civilian gatherings, and a protracted campaign of shelling and sniping upon civilian areas.

Importantly, in the Galić judgment and opinion, the tribunal focused on the “protracted campaign of shelling and sniping of civilians” (para. 108). Specifically, the court stated,

A campaign of this nature cannot but cause death and injury to civilians over time, and allegedly this was the result of the Accused’s actions in this case. There is no doubt that making the civilian population or individual civilians the object of attack, with resulting death and injury to civilians, is a very serious violation of a basic rule of international humanitarian law. … [D]oing the same with the primary purpose of spreading terror among the civilian population can be no less serious, nor can it make the consequences for the victims any less grave (paras 108-09).

The tribunal’s reference to a “protracted campaign” of violence is significant because it also suggests that the frequency and duration of actions—which may violate other aspects of LOAC—could help determine that the attacker intended to spread terror. In other words, the spreading of terror may become evident over time through the attacker’s pattern of conduct.

Civilian Population

The final subpart requires the spread of terror to be “among the civilian population.” The Trial Chamber in Galićmade no distinction between the civilian population and an individual civilian (paras. 49, 137). Likewise, the Trial Chambers in the Milošević and Karadžić cases reaffirmed that the term “civilian population,” as it is used in Article 51(2), is defined consistently with Article 50 of AP I and includes individual civilians (see Milošević, para. 876; Karadžić, paras. 452, 462). Consequently, attackers can violate Article 51(2) regardless of whether they direct their threats or acts against the civilian population as a whole or at an individual civilian.

Application to Russia’s Conduct in Kherson

The cases from Ukraine provide a unique opportunity to analyze a potential violation of Article 51(2). Specifically, the BBC reviewed social media posts that offered direct insight into the primary purpose and intent of the attacks. These social media posts, reportedly made by Russian military members, included drone video feeds and comments.

The first element of Article 51(2), the commission of an act or threat of violence, is easily satisfied. The evidence shows numerous acts of violence committed by Russian FPV drone operators against Ukrainian civilians. Because the drones had high-definition cameras onboard, the Russian operators knew who and what they were targeting. In addition, the videos show drone strikes during the day and in high-visibility situations (i.e., clear skies, no clouds, minimal foliage coverage, etc.). There are numerous news articles, first-person accounts, and even Russian military member social media posts that document these acts of violence.

The social media posts made by Russian military members are uniquely illustrative because they include both videos and statements. In particular, the social media comments that accompanied the videos included goading and threatening comments towards the Ukrainian civilian population. These comments reportedly included “claims that all vehicles were legitimate targets, and that people should minimise their public movement. The injured people were also insulted, called ‘pigs’ or in one case mocked for being a woman.” As a result, the social media posts highlight both acts and threats of violence against the civilian population.

This evidence is also helpful in determining whether the second element of Article 51(2) has been satisfied. That is, whether the primary purpose (i.e., the intent) of the Russian drone operations in Kherson is to spread terror among the civilian population. Clearly, the attacks on the civilian population are intentional and not reckless. Likewise, singular, precision attacks on civilians have no other military purpose to disambiguate. The social media statements by Russian soldiers that accompany the videos indicate their malice and disdain for Kherson residents and the Russians’ intent to terrorize the civilian population in the city.

While these social media posts only highlight a few individual instances of drone attacks on civilians, we must also look to the “nature, manner, timing, and duration” of Russia’s broader campaign of drone attacks in Kherson to determine whether they are intended to spread terror among the civilian population (Milošević, para. 881). With over 9,500 Russian drone strikes in Kherson since July, many of which struck crowds of civilians, cafes, humanitarian aid centers, and civilian objects, it appears the Russians have a broad campaign of targeting civilians with acts of violence. Interestingly, the pattern of the Russian drone attacks is strikingly similar to the types of attacks the ICTY highlighted in the Milošević case. In particular, the Trial Chamber noted,

The fact that, during the siege, civilians were targeted and attacked at sites, well-known to be frequented by them during their daily activities, such as market places, water distribution points, on public transport, and so on, may provide strong indicia of the intent to spread terror (para. 881).

Based on the Russians’ broad campaign of drone strikes on civilians (with drones being a particularly psychologically impactful method of warfare) and the comments from Russian soldiers in specific instances, one can only conclude that this sustained campaign of targeting the civilian population aims not just to kill and injure civilians, but to also to spread terror among the population. As such, it appears that the Russians not only conducted unlawful attacks on civilians but did so with the intent to spread terror, which is an “aggravated” and more serious violation of Article 51(2) (Milošević, para. 882).

Conclusion

While directing attacks against civilians and civilian objects may be an obvious and serious LOAC violation, intentionally spreading terror amongst the civilian population is a no less serious, but more nuanced, violation. With the focus of Article 51(2) being the “primary purpose” of the acts or threats of violence, one must first understand the attacker’s mens rea or specific intent before determining whether a violation of this provision has occurred. Therefore, broad context and facts are required. Fortunately, it appears that Russian military members have provided a lot of helpful facts in their social media posts.

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Lieutenant Colonel Gavin Logan is currently assigned to the Stockton Center for International Law in Newport, Rhode Island.

Major Kevin S. Coble is an active-duty Army judge advocate and a military professor in the Stockton Center for International Law in Newport, Rhode Island.

Photo credit: Ministry of Defence of the Russian Federation