Ukraine: Russia’s attacks against energy infrastructure violate international humanitarian law

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Gian Marco Benedetto / Anadolu Agency / Anadolu Agency via AFP

19 December 2022. Since early October 2022, Russia’s attacks against Ukraine’s energy infrastructure have dramatically increased. With almost weekly strikes against power stations and other energy facilities, millions of Ukrainians across the country suffer from massive power and water outages. As temperatures in Ukraine drop below zero, experts warn of an imminent humanitarian catastrophe. In this position paper, the International Federation for Human Rights (FIDH) analyses why the Russian attacks against Ukrainian energy infrastructure violate international humanitarian law and could be qualified as war crimes.

In an apparent retaliation for the successful counteroffensive by the Armed Forces of Ukraine (AFU) in the Kharkiv region in early September, Russia’s armed forces had launched major attacks against Ukraine’s energy infrastructure, including the country’s second-biggest heat and power plant, Kharkiv TEC-5, as well as the Pivdennoukrainsk Nuclear Power Station near Mykolaiv. However, such attacks drastically increased after 10 October 2022, with already nine waves of large-scale strikes against Ukraine’s energy infrastructure. Each wave can be characterized as a massive barrage of up to 70–100 rockets, cruise missiles or drones, launched in the span of just several hours.

In November 2022, according to Ukrainian authorities, about 40% of the country’s energy infrastructure had been seriously damaged, with almost no thermal or hydroelectric power plant remaining fully intact. As documented by FIDH’s member organisations, the Center for Civil Liberties (CCL) and the Kharkiv Human Rights Protection Group (KHPG), the strikes cause massive power and water outages affecting millions of civilians across the whole country, while hundreds of civilians have been killed or injured as a result of the attacks. On 10 December, Russia attacked two energy facilities in Odesa with Iranian-made ‘kamikaze’ drones, depriving 1.5 million civilians of electricity, potentially for several months, despite Ukraine’s growing ability to intercept Russian missiles and drones.

On 8 December 2022, Russia’s President Vladimir Putin publicly admitted that Russia’s strikes were deliberately directed against Ukraine’s energy infrastructure, insinuating that Russia will not cease targeting power stations and other energy facilities across Ukraine.

The Russian attacks against Ukraine’s energy infrastructure are illegal under international humanitarian law (IHL), the law of armed conflict, specifically the 1977 Additional Protocol I to the Geneva Conventions, a treaty that regulates the conduct of hostilities and that has been ratified by both Russia and Ukraine.

Attacks against energy infrastructure under international humanitarian law

International humanitarian law prohibits attacks against civilians and also requires parties to an armed conflict to always distinguish between military objectives and civilian objects. Attacks may be directed exclusively against military targets – objects which by their nature, location, purpose or use make an effective contribution to the military action of the enemy, and whose destruction offers the adversary a definite military advantage in the concrete circumstances. The threat imposed by Russia in its strategic choices is the deliberate conflation of military and civilian targets, pushing the conflict into the throes of “total war”.

This reality is leading to the escalation of the conflict in Ukraine. Not only the soldiers, but also their commanders and the Russian leadership must be held accountable for this country-wide violence against Ukraine’s population. The form that this judicial response will take (legal proceedings in Ukrainian courts, proceedings based on the principle of universal jurisdiction, cases before a Special Tribunal, the International Criminal Court, etc.) has yet to be defined and will probably be complementary.

International humanitarian law also prohibits acts of violence the primary purpose of which is to spread terror among the civilian population, “without offering any significant military advantage”. In this respect, the last few months have marked a critical turning point in the deleterious nature of Russian political discourse. Statements of Russian State officials or Duma members calling the attacks “warning strikes” or “strikes of retribution” with the aim that Ukrainians shall “freeze and rot” indicate that the attacks were carried out with the intention to spread terror among the population by continuously disrupting essential services. Dmitry Peskov, the Russian President’s Press Secretary, has openly stated that the Ukrainian leadership “has all possibilities to resolve the situation [the strikes against energy infrastructure] in a way to meet the demands of the Russian side, and to stop, respectively, all kinds of suffering of the local population”. The Russian leadership is aware that it is terrorising the Ukrainian population and persists in using it as a military tool despite the ineffectiveness of this strategy, in order to get out of the impasse it has put itself in.

Additionally, it is unlawful to attack or destroy objects that are indispensable to the survival of the civilian population “for the specific purpose of denying them for their sustenance value”. While the provision gives examples of such objects, including foodstuffs, crops or drinking water installations, the list is non-exhaustive and may accommodate electricity and water supply. Even where such objects become military objectives, they may only be targeted if they are used either exclusively for the sustenance of the members of the adversary’s armed forces, or at least in direct support of its military action. Yet, even then, such attacks are unlawful if they would lead to an inadequate food or water supply among civilians, causing starvation or forcing them to move away.

Applying these rules to the Russian attacks, our preliminary analysis shows that the targeted power stations and other energy facilities are civilian objects, as they fail to meet the definition of a military objective under international humanitarian law, and Russia therefore commits several violations of IHL in targeting these facilities. With winter temperatures plunging up to -20 degrees in Ukraine, electricity for heating, as well as drinking water become indispensable for the survival of the Ukrainian civilian population. Considering the freezing temperatures, the destruction of the energy grid leads to starvation and can also force civilians to move away, seeking refuge in other parts of the country or abroad.

Lastly, on 8 December, Russia’s President Vladimir Putin publicly confirmed that the Russian attacks have deliberately targeted the Ukrainian energy infrastructure. However, Putin’s attempt at justification, in the form of a rhetorical question – “But who started it?” –, falls short. Firstly, from publicly available information, it seems that the strikes against the Kerch Bridge (if attributable to Ukraine) and the oil storage tank in the Kursk region were consistent with international humanitarian law. Secondly, parties to an armed conflict are obliged to respect international humanitarian law “in all circumstances”, regardless of whether the adversary complies with it or not. Alleged Ukrainian violations can thus never justify IHL violations committed by Russia. Lastly, even if these attacks by the AFU were unlawful, reprisals against civilians or civilian objects are expressly prohibited by IHL.

International accountability: Ways forward

In summary, the attacks on critical energy infrastructure carried out by the Russian armed forces violate international humanitarian law. They characterise an even more brutal turn in a conflict that now resembles a “total war”. While the representatives of several States have repeatedly condemned Russia’s attacks, including in a UN Security Council emergency meeting following the strikes on 23 November, the Independent International Commission of Inquiry on Ukraine has already announced that it will further examine the legality of the Russian attacks.

When carried out intentionally, attacks against civilian infrastructure and attacks aiming to starve the civilian population amount to war crimes and can be prosecuted by national jurisdictions or by the International Criminal Court (ICC), whose jurisdiction Ukraine has accepted pursuant to Art. 12(3) of the Rome Statute.

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