Are Russian Attacks on Ukraine’s Electrical Grid a War Crime?
Authors: Dr. Gregory P. Noone and Sindija Beta (PILPG) and Ropes & Gray LLP
Since Russia began its full-scale invasion of Ukraine on February 24, 2022, it has repeatedly targeted Ukrainian power infrastructure with missile and drone strikes. These attacks grew in both intensity and frequency starting in October of 2022, and by November of 2022 the Ukrainian electrical grid was so badly damaged that approximately half of the country’s power capacity was offline, leaving over 10 million people without power as cold winter temperatures set in. Governments across the globe have spoken out to condemn these attacks as illegal under international law, however the basis for their claim of illegality has often been left unexplained. This article provides a brief introduction to certain war crimes enumerated in the Geneva Conventions and explains why Russia’s attacks on Ukraine’s electrical infrastructure may constitute violations of Russia’s duties under the Law of Armed Conflict (also known as International Humanitarian Law).
Both Ukraine and Russia are parties to the four 1949 Geneva Conventions and the two 1977 Additional Protocols. The Geneva Conventions provide extensive rules on how parties should behave in the course of an armed conflict, including with respect to civilians. Violations of Article 147 of the Fourth Geneva Convention are considered to be grave breaches of the Law of Armed Conflict and therefore war crimes. Article 147 prohibits a number of offenses against civilian populations, including “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”
As the language of Article 147 suggests, the destruction of power infrastructure is not unequivocally prohibited under international law. To be classified as war crimes, such attacks must not have been justified by military necessity and must have been carried out in an “unlawful” and “wanton” way. The International Committee of the Red Cross has previously noted that installations producing power primarily for military consumption are a legitimate military target. The United States Department of Defense’s Law of War Manual goes even further and states that electrical power stations are generally recognized to be important enough to a state’s military functions to qualify them as military targets during an armed conflict. Russia’s Ambassador has emphasized this point in the current armed conflict by explicitly claiming, “To weaken and destroy the military potential of our opponents, we are conducting strikes with precision weapons against energy and other infrastructure.”
Though this line of argument suggests that some of Russia’s attacks on Ukraine’s electrical grid may not be prohibited under international law, the Law of Armed Conflict requires warring actors to strike a balance between military advantage and mitigation of harm when planning their strikes. This requirement reflects the customary international law rule of proportionality. In the context of an armed conflict the principle of proportionality prohibits attacks against military objectives which are “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.” There are therefore two separate thresholds that Russian attacks on Ukrainian power infrastructure must meet in order to be permitted under international law: first, the target must be a military objective, and second, the attack must offer a military advantage that outweighs any loss of civilian life and damage to civilian objects.
Evidence coming out of Ukraine suggests that Russia has failed to meet either threshold with respect to at least some of their energy infrastructure targets. For instance, on November 23, 2022, Russia conducted 75 missile and drone strikes on power infrastructure in Ukraine. While the precise role that each target may have played in support of Ukrainian military operations is nearly impossible to assess, experts agree that it is highly unlikely that all of these targets would qualify as military objectives.
Even if they did qualify as such, the military advantage obtained from the Russian strikes was disproportionate to the civilian harm associated with the attacks. The impact of these strikes on the Ukrainian people is not confined to the initial explosions, but also from disruptions to medical care, burdens to emergency response capacity, and lack of heat and power in over 10 million homes. This assessment is supported by statements from Russian officials who have applauded the impact of the attacks on the civilian population, even going so far as to declare that Ukrainians should “rot and freeze.” It is important to note that endangering and demoralizing civilian populations is not a legitimate military objective and does not constitute a military advantage. To qualify as a military advantage, destruction of the target must have an effect on military operations. In the case of Russia’s attacks on Ukrainian power infrastructure, Russia’s military advantage would be the neutralization of the Ukrainian military activities that rely on that infrastructure. Whereas, political, psychological, economic, financial, social, and moral advantages do not qualify as military advantages.
Based on these facts, it is likely that at least a portion of Russia’s targets were not military objectives and/or did not result in a concrete and direct military advantage, which means attacks on such targets would be considered war crimes under international law.
The devastating impact on civilians of Russia’s attacks may also trigger another category of war crimes under Article 147. In addition to prohibiting extensive destruction of civilian property as a grave breach, Article 147 also prohibits “willfully causing great suffering or serious injury to body or health.” As discussed above, the attacks on Ukraine’s power infrastructure have caused not just immediate deaths and injuries from the strikes, but also lasting suffering and health risks due to lack of electricity, water, and emergency health services. Harrowing stories of surgeons operating by headlamps during power outages, as well as grandmothers relying on gas ovens for heat in sub-freezing temperatures have become commonplace. Taken as a whole, it appears more likely than not that the civilian suffering caused by Russia’s attacks on Ukraine’s power infrastructure would rise to the level of war crimes under this prong of Article 147.
In sum, while some of Russia’s attacks on Ukraine’s power infrastructure may be lawful under international law, most of Russia’s attacks violate the Law of Armed Conflict. The widespread nature of the attacks and the indiscriminate selection of targets, as well as their severe impacts on Ukrainian civilians, strongly suggest that many of the attacks constitute war crimes under international law. While the path to accountability for war crimes committed by the Russian government in Ukraine remains uncertain, establishing consensus in the international community that Russia’s actions are a violation of international law will be important as world leaders continue to make decisions about political support and aid for Ukraine.
The development of these material has been made possible through the support of the Public International Law & Policy Group.
Photo by Matthew Henry on Unsplash
