December 19, 2022. Since the beginning of October, Russia’s attacks on Ukraine’s energy infrastructure have intensified. With a series of almost weekly strikes, millions of Ukrainians are suffering from massive power and water cuts. While temperatures in Ukraine are freezing, experts warn of the imminence of a humanitarian catastrophe. In this article, the International Federation for Human Rights (FIDH) analyzes why Russian attacks on Ukrainian energy infrastructure violate international humanitarian law and could be qualified as war crimes.
In retaliation for the Ukrainian Armed Forces counter-offensive in the Kharkiv region in early September, the Russian Armed Forces launched major attacks against Ukraine’s energy infrastructure, including the country’s second largest thermal and power plant, Kharkov TEC-5as well as Pivdennukrainsk nuclear power plant near Mykolaiv. After October 10, these attacks increased dramatically, with nine large-scale waves against Ukraine’s energy infrastructure. Each wave is a massive damoften 70 to 100 rockets, cruise missiles or drones, launched in just a few hours. In November, according to the Ukrainian authorities, about 40% of the country’s energy infrastructure had been severely damaged and almost no thermal or hydroelectric power stations had not remained intact. As documented by member organizations of the FIDH, the Center for Civil Liberties (CCL) and the Kharkiv Human Rights Protection Group (KHPG), these strikes cause massive power and water cuts that affect millions of civilians across the country, while hundreds of others have been killed or seriously injured. Before, on December 10, Russia attacked two energy facilities in Odessa with Iranian-made “kamikaze” drones, depriving 1.5 million civilians of electricity, potentially for several months; despite increasing Ukraine’s interception capabilities.
December 8, the russian president Vladimir Poutine publicly admitted that the Russian strikes were deliberately directed against Ukraine’s energy infrastructure, insinuating that Russia will not stop targeting power plants and other energy facilities in Ukraine.
Russian attacks on Ukraine’s energy infrastructure are illegal under international humanitarian law (IHL), the law of armed conflict and specifically the 1977 Additional Protocol I to the Geneva Conventions, a treaty that regulates the conduct of hostilities and ratified by Russia and Ukraine.
Attacks on energy infrastructure under international humanitarian law
International humanitarian law prohibits attacks on 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 objectives, that is to say, property which, by its nature, location, destination or use, makes an effective contribution to the enemy’s military action and the destruction of which in this case offers the adversary a definite military advantage. The risk imposed by Russia in its strategic choices is the deliberate confusion of military and civilian targets, plunging the conflict into the throes of “total war”. This reality is leading to the escalation of the conflict in Ukraine. The soldiers, but also their commanders and the Russian leaders will have to answer for this violence, committed on the scale of an entire country against the Ukrainian population, before the courts. The form that this judicial response will take (Ukrainian justice, universal jurisdiction, special court, International Criminal Court, etc.) is yet to be defined and will probably prove to be multiple.
international humanitarian law prohibits acts of violence the primary purpose of which is to spread terror among the civilian population, “without presenting significant military value”. In this regard, the past few months have marked a critical turning point in the deleterious nature of Russian political discourse. Statements by Russian state officials or members of the Duma calling the attacks ” warning strikes » or « retaliatory strikes with the aim of causing the Ukrainians to “freeze and rot” indicate that the attacks were carried out with the stated intention of spreading terror among the population by constantly disrupting essential services. Dmitry Peskov, Russian President’s Press Secretaryopenly stated that the Ukrainian leadership “ [ont toutes les possibilités de résoudre la situation les frappes contre les infrastructures énergétiques] in such a way as to meet the demands of the Russian side and to put an end, respectively, to all kinds of suffering of the local population”. The Russian command is aware of the blackmail it is inflicting on the Ukrainian population and persists in using it as a military means, despite all decency and the lack of effectiveness of this strategy to get out of the impasse in which it has put himself.
In addition, it is prohibited to attack or destroy objects indispensable to the survival of the civilian population, “by reason of their subsistence value”. While the provision gives examples, such as foodstuffs, crops or drinking water installations, The list is not exhaustive and can include electricity and water supply. Even if these objects become military objectives, they can only be targeted if they are used either for the subsistence of the only members of the armed forces of the adversary, or at least to directly support its military action. However, even in this case, these attacks are illegal if they lead to an insufficient supply of food or water that the civilian population would be reduced to starvation, or if the attacks force civilians to move.
To apply these rules to the Russian attacks is to show that the power plants and other energy installations targeted are civilian property, because they do not meet the definition of a military objective within the meaning of international humanitarian law. Russia is therefore committing violations of IHL by targeting these facilities. With winter temperatures dropping to -20 degrees in Ukraine, electricity for heating, as well as drinking water, are becoming essential to the survival of the Ukrainian civilian population. Given the freezing temperatures, the destruction of the energy grid can starve civilians and force them to move to find refuge in other parts of the country or abroad.
Finally, on December 8, Russian President Vladimir Putin publicly confirmed that the Russian attacks deliberately targeted Ukrainian energy infrastructure. Putin’s attempted justification, in the form of a rhetorical question – “Who started it?” -, does not stand up to objective scrutiny. First, according to publicly available information, the strikes against the Crimean bridge (if these strikes are attributable to Ukraine) and against the oil storage tank in the Kursk region were in accordance with international humanitarian law. Second, parties to an armed conflict are bound to respect international humanitarian law. in all circumstances whether the adversary complies or not. Alleged Ukrainian violations could therefore never justify the violations committed by Russia. Finally, even if these attacks by the Ukrainian army were illegal, reprisals against civilians or civilian objects are expressly prohibited by international humanitarian law.
International responsibility: avenues for the future
In summary, the attacks on critical energy infrastructure carried out by the Russian armed forces violate international humanitarian law. They characterize an even more brutal turn of a conflict which now resembles a “total war”. While several states have repeatedly condemned Russia’s attacks, including during a emergency meeting of the United Nations Security Council following the November 23 strikes, the Independent International Commission of Inquiry into Ukraine announced that it would further examine the legality of the Russian attacks. When intentionally carried out, attacks on civilian infrastructure and attacks aimed at starving the civilian population constitute war crimes and can be prosecuted by national courts or by the International Criminal Court (ICC), of which Ukraine has accepted jurisdiction in accordance with Art. 12(3) of the Rome Statute.
Ukraine: Russian attacks on energy infrastructure violate international humanitarian law