On 16 December, Reuters published an article speculating on whether Russian attacks on Ukrainian energy infrastructure could be considered war crimes.
In the article, a number of experts and specialists in international law discuss the difference between strikes on the energy sector to gain "military advantage" and direct terror against civilians. We propose to provide additional clarity by using not only the definitions of international law, but also the immediate Russian context that they use during the attacks on the Ukrainian energy system.
Photo: Yasuyoshi Chiba | AFP
What does the law say?
Article 52(1) of the 1977 Additional Protocol I to the Geneva Conventions provides: “Civilian objects shall not be the object of attack.” But in what way is a military facility different from a civilian one? An essential concept within international humanitarian law revolves around the principle of distinction, wherein specific individuals and objects are safeguarded from assaults due to their civilian status.
Article 52 of Additional Protocol I sets out the universally accepted definition of a military object:
2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those 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 advantage.
At the same time, what about the situation when a certain object somehow has the potential to influence the military situation or can be used for military purposes? The Article 52(3) gives a clear answer:
3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.
Can energy facilities make an effective contribution to military action?
Of course, any provision of the army is impossible without the energy sector. For example, fuel and lubricant storage sites are regularly targeted. However, when it comes to power generation sites, can they be considered a "legitimate target"?
Often, the military can argue that the targeting of energy infrastructure is a desire to target the enemy's industry. Enterprises that manufacture, repair, and maintain military equipment may be legitimate targets under international law. Accordingly, actions aimed at undermining their ability to operate effectively - deprive them of the possibility of military action. In such a case, someone could justify actions aimed, for example, at de-energizing enterprises. Does this work in the case of a Russian invasion of Ukraine?
Back in 1994 Major Thomas E. Griffith, JR. described the efficiency of the attack on energy facilities in his work ”Strategic Attack of National Electrical Systems”. He made a case-study, using examples of various modern conflicts, where electrical systems were significantly damaged by deliberate attacks, particularly:
South Korea
Vietnam
Iraq
Where average damage accounted 85% to 90% of the generation capacity.
Griffith made several conclusions that are typical for the recent situation in Ukraine, due to Russian attacks.
First of all, military infrastructure has priority access to generating capacity. Therefore, strikes on power grids can cause confusion among enemy forces, but are not suitable for full impact and have little success.
In the case of production capacity, the effect only occurs in the case of a long war of attrition. The examples of Korea and Vietnam show that the entire loss of capacity for industry can be successfully compensated by foreign aid.
The only category that has a heightened sensitivity to prolonged blackouts is civilians. Because of light outages, they are indeed more prone to apathy, and suffer because of humanitarian problems.
From all the case studies plus the examples of Japan and Nazi Germany during World War II, in only one case did the bombing of energy infrastructure have a serious impact on a country's armed forces, and in only one on industry. In all cases, the effect on industry was medium, and the military generally experienced very limited effects. Even the theory-based assessment Air Corps Tactical School organized by the US military, proved only limited effect on production and low effect on enemy's forces.
At the same time, the impact on morale of the civil population is the most visible. The vast majority of cases proved medium (3 out of 5 cases) results, while two of them proved high impact. This proves that long-range blackout attacks harm civilians first, affecting military targets the least (if not at all).
In the period February – November 2022, the Dutch PAX research center identified 213 reported incidents from military actions on energy infrastructure, 63 of which were verified. The largest attacks on Ukrainian energy infrastructure were launched by Russian forces in October 2022. The October attacks damaged 40% of Ukraine’s electricity generation and transmission facilities, causing temporary blackouts in most of the country as well as creating both environmental risks and a humanitarian crisis, leaving millions of Ukrainian civilians without electricity, heating and water.
Substations accounted for almost a third of the all identified attacks. According to open source estimates, Russia carried out 6 mass missile strikes on Ukrainian territory between November and December. In each of them, energy infrastructure was prioritized. On average, the Russians used a very large number of cruise missiles during this period - about 67 in one day. In addition, Iranian drones like Shahed-136 were used, which Russia began bombarding Ukrainian energy infrastructure as early as October 2022.
Consider the prioritization of the targets of the shelling. Russia used more than 100 missiles per month during the heating season, mostly attacking:
thermal power generation facilities (CHPPs and TPPs);
nuclear facilities;
substations.
It is noteworthy that when it comes to attacks on Ukraine's nuclear power plants, Russia did not attack the reactors, but directly the substations connected to the facilities in order to prevent the nuclear power plants from transmitting electricity to Ukraine's energy system. For example, on November 23, such shelling led to emergency shutdowns at all Ukrainian-controlled plants.
When the objective was to damage Ukraine's defense capabilities, none of the attacks were successful. During this time period, the Ukrainian Defense Forces continued to conduct operations and prolonged blackouts did not result in any defeat on the front.
Attacks on Ukraine's energy infrastructure will not affect the ability of the Defense Forces to stop the enemy and liberate the temporarily occupied territories, said Deputy Defense Minister Hanna Malyar.
"The vast majority of enemy missile attacks have recently been directed at energy infrastructure facilities. These are attacks primarily on the civilian population, which is as indestructible as our military. Attacks on the energy sector will not help Russia strengthen its positions in this war," emphasized Malyar.
If the attacks were aimed at industry, their cost-benefit assessment is similarly unclear. If Russia sought to shut down Ukraine's remaining defense industry, then a number of questions arise:
Why didn't Russia concentrate on attacking the substations that kept the industries running? Instead, the Russians attacked multiple facilities throughout Ukraine.
Why were there not pinpoint strikes, but rather multiple missiles and drones were used each time?
Why were the facilities that are known to provide electricity to most of Ukraine's civilian population, such as nuclear power plants, targeted?
All this indicates that the sole purpose of these attacks is to inflict moral damage on the civilian population. This view is supported by many experts. Michael Schmitt, a professor at the U.S. Naval War College, tells the BBC that the scale of Russia's attacks on Ukrainian infrastructure is so large that they can hardly be justified.
"They are hitting so many targets that, relatively speaking, every substation cannot be categorized as a military target"
As a former U.S. Air Force targeting officer, Professor Schmitt also doubts that Russia is inspecting every target it attacks, another requirement of International Humanitarian Law. "You simply cannot conduct operations of this intensity and frequency across the country and still comply with all the necessary inspections," he explains.
Responsibility
After the November 15 attack, Russian presidential spokesman Dmitry Peskov repeated the thesis that missile strikes are being carried out against Ukraine's infrastructure facilities, allegedly because of their military potential. After the November 23 attack, Peskov said that Ukraine must comply with Russia's demands to "bring the situation back to normal" and stop "all possible suffering of the civilian population."
"The unwillingness of the Ukrainian side to solve the problem, to enter into negotiations... these are all consequences," said Russian presidential spokesman Dmitry Peskov.
As stated earlier, the Geneva Convention states that civilian targets should not be the subject of attack. Of course, one can imagine the military using electricity from the same thermal power plant as civilians. But that is no reason to attack it, nor is it a reason to deprive, for example, millions of civilians of water supplies because the water is used by combatants. Even if such suspicions exist, they are considered in favor of the fact that the object is civilian, as stated in Article 52(3) of the Geneva Convention.
Millions of Ukrainian citizens experienced light outages, which leads to no other conclusion than that these attacks were used to inflict harm, distress and suffering on the civilian population. Thus, Russia's actions are a malum in se crime. Moreover, which is certainly a crime under International Humanitarian Law, similar to that considered by the International Criminal Tribunal for the former Yugoslavia regarding the attacks on the energy infrastructure in Sarajevo during the siege of the city by the Yugoslav People's Army.
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