Is attacking the electricity infrastructure used by civilians always a war crime?
Since Russia’s grotesquely illegal invasion of Ukraine last February, experts have detailed the failures, incompetence, and savagery of its military. In that context, consider this disturbing new report from CNBC:
“Since Oct. 10, Russia has launched a series of devastating salvos at Ukraine’s power infrastructure, which have hit at least half of its thermal power generation and up to 40% of the entire system.”
Ms. Ursula von der Leyen, the President of the European Union (EU), immediately charged that “Russia’s attacks against civilian infrastructure, especially electricity, are war crimes.”
Let’s readily acknowledge Russia’s horrifying criminality in this war, but let’s also step back and analyze specifics as it is important that we understand exactly how the law of armed conflict (LOAC) applies in this instance.
Why? While we must support Ukraine in this profoundly unjust war being waged against them, we also need to be wary of seeming to establish new legal interpretations and precedents that might handicap U.S. and allied forces in a future conflict against another shamefully malevolent yet powerful adversary. Sadly, we should never forget that “war is cruelty,” even if waged justly and lawfully.
This brings us to the question for today: Is attacking the electricity infrastructure used by civilians always a war crime as the EU president appears to suggest? Actually, an attack against infrastructure used by civilians might be a war crime, but not necessarily. As we’ll see, LOAC does permit attacks on infrastructure but only if certain prerequisites are observed.
We’ll explore whether those legal requirements were met with respect to the recent Russian attacks. This really is a post where you need to observe Lawfire’s mantra: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
Distinguishing “jus ad bellum” and “jus in bello”
Before diving into today’s question, allow me to emphasize something I’ve said in a previous post: there isn’t any moral equivalency between Ukraine and Russia in this conflict; Ukraine is clearly the victim of horrific aggression by Russia – a stunning violation of jus ad bellum (the law governing resort to war).
However, keep in mind that a different body of law – jus in bello – governs the lawfulness of belligerent activity during the war. It is important to keep these two legal regimes separate. As the International Committee of the Red Cross (ICRC) explains:
“[LOAC] applies to the belligerent parties irrespective of the reasons for the conflict or the justness of the causes for which they are fighting. If it were otherwise, implementing the law would be impossible, since every party would claim to be a victim of aggression. Moreover, IHL is intended to protect victims of armed conflicts regardless of party affiliation. That is why jus in bello must remain independent of jus ad bellum.”
Accordingly, a Russian violation of jus ad bellum—however egregious—doesn’t mean every act in bello by Russian forces is a war crime. Conversely, simply because Ukraine was unlawfully attacked doesn’t mean LOAC would not apply to its in bello activities. In short, both sides could commit war crimes during the conflict irrespective of the reasons for the war in the first place.
With that in mind, let’s unpack the legality (or not) of these attacks.
Can the electrical power system used by civilians be a lawful “military objective”?
Perhaps the most primary of all the LOAC rules is the principle of distinction, that is, the prohibition on directing attacks against civilians or civilian objects. That said, an object may be civilian-owned and used by civilians yet still be directly attacked as a lawful target under certain circumstances.
What are those circumstances? As a threshold matter, the object must be shown to be a military objective. The U.S. Department of Defense (DoD) Law of War Manual (DoD LoW Manual) defines military objectives this way (¶5.6.3):
“Military objectives, insofar as objects are concerned, include ‘any object which by its nature, location, purpose or use makes 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.'”
Can a civilian-owned and operated electrical system qualify as a military objective? The DoD LoW Manual (¶ 126.96.36.199) says:
“Electric power stations are generally recognized to be of sufficient importance to a State’s capacity to meet its wartime needs of communication, transport, and industry so as usually to qualify as military objectives during armed conflicts.” (Emphasis added.)
Indeed, attacks on electrical systems have long been a part of modern war. As one commentator put it, “electrical systems have been a favorite target of air attacks since the 1930s.”
There is history of attacks on electrical infrastructure in the Russo-Ukraine conflict. In 2015 Ukrainian nationalists opposed to Russia’s occupation of Crimea were allegedly responsible for an attack which blew up pylons carrying electrical power to the peninsula leaving nearly two million Crimeans in darkness.
Still, is there evidence that Ukraine’s electrical system in this instance is of sufficient importance to qualify as a military objective? Does it make “an effective contribution to military action”? Would its “partial destruction…neutralization” offer “a definite military advantage”? Let’s start by examining the relationship of civilian power sources to military needs.
Do modern militaries really need electricity from the civilian grid?
Typically, yes. For example, a 2020 report by RAND Corporations detailed the dependence of the U.S. military on commercial power sources. It found that:
“The U.S. Department of Defense (DoD) increasingly relies on electric power to accomplish critical missions. As a result, ensuring that forces and facilities have access to a reliable supply of electric power is critical for mission assurance. However, DoD does not directly manage its supply of power; most of the electricity consumed by military installations in the continental United States comes from the commercial grid—a system that is largely outside of DoD control and increasingly vulnerable to both natural hazards and deliberate attacks.” (Emphasis added.)
Why this dependence? RAND says:
“Increased reliance on intelligence processing, exploitation, and dissemination; networked real-time communications for command and control; and a proliferation of electronic controls and sensors in military vehicles (such as remotely piloted aircraft), equipment, and facilities have greatly increased the [the U.S. military’s] dependence on energy, particularly electric power, at installations.
The fact that most electricity consumed by DoD installations in the continental United States is drawn from the commercial electric power grid…underscores the significance of DoD’s reliance on that power grid.” (Emphasis added.)
There is no reason to think that Ukraine’s military – which emulates the U.S.’ and is fighting on its own territory – is any less dependent on the commercial power grid than America’s armed forces when operating here at home.
Electrical power is also critical to other elements of Ukraine’s defense efforts. For example, experts say the Starlink, a privately-owned system that provides internet service––and is obviously dependent upon electrical power––has “become an essential tool for the Ukrainian military to coordinate across thousands of kilometers of combat theater.”
Similarly, electrical power is intrinsic to cyber operations. In this respect, Ukraine has created what is called its “IT Army” of thousands of hackers to conduct cyber-attacks against Russian targets. Wired Magazine says:
“The [IT army’s Telegram] channel’s administrators, for instance, asked subscribers to launch distributed denial of service attacks against more than 25 Russian websites. These included Russian infrastructure businesses, such as energy giant Gazprom, the country’s banks, and official government websites. Websites belonging to the Russian Ministry of Defense, the Kremlin, and communications regulator Roskomnadzor were also listed as potential targets. Russian news websites followed.” (Emphasis added.)
In a September 27th essay, two experts said “Patriotic” hackers “have hit so-called dual-use targets, such as the Russian satellite-based navigation system GLONASS, and purely civilian targets.” (Emphasis added.)
Moreover, the experts said that on “July 28, the IT Army Telegram channel announced that its members would ‘start working on Russian online banking,’ upping its DDoS initiative from targeting just a handful of banks to well over 50, most of which are not currently under Western sanctions.”
Other warfighting activities arising from civilian settings require access to electricity. As further discussed below, ordinary Ukrainian citizens are using cell phones and other civilian devices employing electrical power to assist their military in locating and targeting Russian forces.
An illustration of this is found in a June ABC News story which said a 15-year-old boy “was asked to use his drone to spy on advancing Russian vehicles.”
The boy was quoted as saying he located Russian “fuel trucks, tanks, artillery, armored personnel carriers,” and “passed the coordinates to [a Ukrainian civil defense official] who passed them on to the Ukrainian artillery [which] decimated the column of Russian tanks within minutes.”
War-sustaining targets as military objectives
In addition, a civilian enterprise can become, in the U.S.’ controversial (but correct in my opinion) view, a proper military objective if it is “war-sustaining.” Specifically, the DoD LoW Manual says (¶ 188.8.131.52):
“It is not necessary that the object provide immediate tactical or operational gains or that the object make an effective contribution to a specific military operation. Rather, the object’s effective contribution to the war-fighting or war-sustaining capability of an opposing force is sufficient. Although terms such as “war-fighting,” “war-supporting,” and “war-sustaining” are not explicitly reflected in the treaty definitions of military objective, the United States has interpreted the military objective definition to include these concepts.” (Emphasis added.)
In the case of Ukraine, this may not only include the sizeable domestic military-industrial complex directly producing war goods to sustain fighting, but also, the Washington Post tells us, an industry that helps sustain Ukraine’s revenue stream:
“The damage halted electricity exports in the region, affecting neighboring countries along Ukraine’s western border. This is also significant because Ukraine relies on the revenue from energy exports to shore up the country’s war-ravaged economy, [an expert] said.” (Emphasis added.)
Beyond denying electricity to Ukraine’s warfighting capabilities and eroding war-sustaining industry, the DoD LoW Manual further indicates (¶ 5.12.2) that “diverting enemy forces’ resources and attention” can also constitute a “concrete and direct military advantage” the proportionality principle requires.
In this instance, could it be that the attacks will cause Ukraine to divert “resources and attention” from attacking Russian forces on the frontlines to defending the electrical grid? Consider DoD’s October 26th statement that Ukrainians “need more air defense capabilities” deployed to defend infrastructure.
Moreover, there is substantial historical precedent for the proposition that diverting “resources and attention” to air defense provided a clear “concrete and direct military advantage.” As I said elsewhere, during World War II the U.S.’ strategic air attacks on Germany had such an effect:
“The overall bombing campaign – for all its many faults – did have the effect of imposing a huge burden on the Nazis’ ability to wage war. Among other things, they were obliged to divert two million people, 55,000 anti-aircraft guns [and] 20 percent of all ammunition” to the air defense effort. Were it not for the allied air offensive, says historian Richard Overy, Nazi “frontline troops might have had as much as 50 percent more weaponry and supplies.” (Citations omitted.)
Decide for yourself if the electrical grid is a proper “military objective” in this case and, if so, would attacking it yield a “concrete and direct military advantage”?
How is the principle of distinction applied in this instance?
In analyzing the legitimacy of attacking the electrical system that has both civilian and military uses, the DoD LoW Manual observes (¶ 184.108.40.206):
“Sometimes, “dual-use” is used to describe objects that are used by both the armed forces and the civilian population, such as power stations or communications facilities. However, from the legal perspective, such objects are either military objectives or they are not; there is no intermediate legal category.”
While military objectives may be directly attacked, the principle of distinction still has relevance. For example, although an electrical system may generally be considered a military objective, if part of it serves exclusively civilian areas or purposes, the principle of distinction would require that portion not to be attacked if it is reasonably feasible to segregate it out from the overall strike.
However, many national electrical grids are thoroughly integrated to enhance resilience. This may be the case with Ukraine’s system. According to a Ukrainian energy official, “Since Soviet times, we have built unified energy systems so that if one of the generation flows fails at some part of the system, another one picks it up. That is, everything is looped[,] and we work in a single system.”
The same official says Russia’s “strikes are not aimed at generating facilities to prevent us from producing electricity but at connection systems tied to the Ukrainian energy system…they are aimed at “open switchgears, transformers, switches, so that a station that can produce electricity cannot be connected to the unified power system.”
Decide for yourself: Does that suggest that civilians or civilian objects are being directly targeted (a war crime), or does it indicate it is the military objective (elements of the dual-use electrical system) that is being directly targeted (as permitted by LOAC)?
Regardless, it is difficult to imagine a practical way that any reasonable commander could find a target in this kind of integrated electrical system that would only impact military capabilities.
Moreover, as already indicated above, even electricity flowing to traditionally civilian areas has military implications. In late March, the Washington Post reported:
“Increasingly, Ukrainians are confronting an uncomfortable truth: The military’s understandable impulse to defend against Russian attacks could be putting civilians in the crosshairs. Virtually every neighborhood in most cities has become militarized, some more than others, making them potential targets for Russian forces trying to take out Ukrainian defenses.” (Emphasis added).
Additionally, other media reports indicate that civilian enterprises that use electricity have been adapted to military uses. For example, Sky News reported in March that “museums, libraries and churches” in Ukrainian cities have been converted into factories to create camouflage netting for the Ukrainian military.
Likewise, Business Insider says that within a few weeks of the Russian invasion, “shops and small factories [have] had popped up inside and outside of Ukraine to convert pickup trucks and SUVs…into battlefield vehicles.”
In June, Wired published an article—“Smartphones Blur the Line Between Civilian and Combatant”—that illustrates the sheer difficulty of trying to draw a distinction between civilian electricity users and those using electrical devices for military purposes.
The article points out that a Ukrainian government app was repurposed following the Russian invasion. Writer Lukasz Olejnik explains:
The [app] was once used by more than 18 million Ukrainians for things like digital IDs, but it now allows users to report the movements of invading soldiers through the “e-Enemy” feature. “Anyone can help our army locate Russian troops. Use our chat bot to inform the Armed Forces,” the Ministry of Digital Transformation said of the new capability when it rolled out.
Parenthetically, the ICRC says that “transmitting tactical targeting information for an attack” is an act that causes a civilian to lose protected status and become lawfully targetable.
Similarly, the DoD LoW Manual (¶ 220.127.116.11) says that “providing or relaying information of immediate use in combat operations” and “acting as a guide or lookout for combatants conducting military operations” are examples of the kind “direct participation in hostilities” that would cause a civilian to lose protection from direct attack.
Decide for yourself: Based on available information, does there appear to be a reasonably feasible way to attack the electrical system, that is, the military objective, in a manner that avoids incidental harm to civilians?
Nonetheless, even if an attack causes only “incidental” harm to civilians, it might still be prohibited if such harm violates LOAC principle of proportionality.
How is the principle of proportionality applied in this instance?
Accordingly, simply because something is a proper military objective doesn’t automatically mean it can be legally attacked. It must still pass the proportionality test. The ICRC says:
“Launching an attack which may be 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, is prohibited.” (Emphasis added.)
The DoD LoW Manual similarly makes it clear that the principle of proportionality applies to “dual-use” military objectives like electrical power facilities. Specifically, it says in ¶ 18.104.22.168:
“If an object is a military objective, it is not a civilian object and may be made the object of attack. However, it will be appropriate to consider in applying the principle of proportionality the harm to the civilian population that is expected to result from the attack on such a military objective.” (Emphasis added; citations omitted).
Some Ukrainian sources indicate as many as 70 civilians were killed in the attacks, but—given the “concrete and direct military advantage” the attacks accomplished (that is, damage to 40% of the electrical system with the warfighting uses described above)—a reasonable military commander might well consider that such losses, while heartbreaking, are nevertheless not “excessive.”
However, the ICRC contends that more than the immediate effects must be considered. Specifically, it says that attackers must take into account “reverberating effects,” which the ICRC defines as “those effects that are not directly caused by the attack, but are nevertheless a product thereof.”
The ICRC adds that the “incidental destruction of civilian housing and essential civilian infrastructure – which often leads to a disruption of essential services – can result in civilian death and injury that may far outweigh the immediate civilian casualties caused by an attack.”
What complicates this view is the fact that the damage to the power system is not “incidental,” but rather it is the deliberate destruction of a military objective—and the proportionality analysis does not apply to the military objective itself. Nevertheless, there is the issue of harm to civilians.
Harm to civilians
It’s important to understand what is—and isn’t—“harm” that must be considered in the LOAC proportionality analysis. The analysis is principally concerned with injury or loss of life to civilians, or damage or destruction to civilian objects in the actual attack. It does not necessarily include even significant interference to commerce, inconvenience, or hardship imposed upon civilians.
Civilians who were not killed or injured in the actual attack but who may die at some future time because of the loss of electrical power should also be considered in the proportionality calculation, but the scope and extent of that consideration is the subject of debate among some legal scholars. The DoD LoW Manual (¶ 22.214.171.124) sets out the U.S. view:
“For example, if the destruction of a power plant would be expected to cause the loss of civilian life or injury to civilians very soon after the attack due to the loss of power at a connected hospital, then such harm should be considered in assessing whether an attack is expected to cause excessive harm.”
The DoD LoW Manual further explains (¶ 126.96.36.199):
“The expected loss of civilian life, injury to civilians, and damage to civilian objects is generally understood to mean such immediate or direct harms foreseeably resulting from the attack. Remote harms that could result from the attack do not need to be considered in applying this prohibition.” (Emphasis added.).
The issue of “remote harms” will be discussed in more detail below, but first let’s review an earlier infrastructure attack.
The Kerch Strait Bridge infrastructure attack analogy
The application of the proportionality analysis on a strike against infrastructure in the Russo-Ukraine conflict was discussed in a thoughtful essay by Professors Michael Schmitt and Marco Milanovic. They examined it in the context of the October 8th attack (allegedly by Ukrainians) on the Kerch Strait Bridge that connects Russia with the Crimean Peninsula.
Professors Schmitt and Milanovic—both armed with formidable LOAC expertise—conclude, as I do, that notwithstanding its civilian uses, the bridge is properly categorized as a military objective. Indeed, in my view there is no real question that the bridge is such an extremely important logistics link for the Russian military that it easily meets the legal definition of “military objective.”
Professors Schmitt and Milanovic also readily acknowledge “the attack could also have been expected to affect the supply of the civilian population and disrupt civilian activities ranging from personal travel to commercial activities.”
That is a very reasonable conclusion as there are about 2.4 million civilians living in Crimea, and they import “large quantities of sugar, meat and dairy products” from Russia. In fact, CNN says the Kerch Strait Bridge “is a critical artery for supplying Crimea with both its daily needs and supplies for the military.”
In addition, reports say that the significance of the attack…
…has not been lost on residents of Crimea who, as news spread, rushed to petrol stations to fill up their cars… while there are other ways of supplying the Crimea, including its ports, damage to the bridge is hugely important to a place that until very recently was seen by Russia as being beyond the reach of Ukraine.
However, Professors Schmitt and Milanovic contend that such impacts need not be considered in assessing the proportionality of the attack unless the damage to the bridge would foreseeably cause civilians to get sick or die from starvation. They put their views this way:
[E]ffects on civilians short of starvation] do not factor into the proportionality analysis, which is limited in the text of the rule itself to loss of life, injury, and damage to civilian objects. Interference as such with the use of a civilian object generally does not qualify as collateral damage unless the foreseeable consequences of that loss include these enumerated effects. This would likely only be the case if the attack caused starvation and sickness, which was unlikely in this case. (Emphasis added.)
Consequently, they conclude – and I agree – that “assuming Ukrainian agents conducted the operation against the Kerch Strait Bridge, the attack was plainly lawful under [LOAC].”
The unsettled law as to indirect/reverberating/remote harms
A somewhat different tone is taken about the Russian attacks on Ukraine’s electrical grid. In a new post, Professor Schmitt says the proportionality analysis includes indirect loss, that is, “those with a causal link to the attack but not immediately caused by it.”
This seems broader than the position the DoD LoW Manual takes. In ¶ 188.8.131.52 it says:
[I]f the destruction of a power plant would be expected to cause the loss of civilian life or injury to civilians very soon after the attack due to the loss of power at a connected hospital, then such harm should be considered in assessing whether an attack is expected to cause excessive harm. (Emphasis and italics added.)
But Professor Schmitt assert that “[w]ith winter approaching, any loss of heating could prove dangerous for the Ukrainian population; foreseeable harm to them would also qualify for the purposes of the rule.”
There is no question that cold weather presents a potentially serious threat to the health of civilians, but the legal issue is whether harm that arises weeks or months after the strikes meets the “very soon” standard to mandate its consideration in the proportionality analysis, or is it a “remote effect” that need not be considered?
Moreover, how likely are the harms? Fortunately, Reuters reports that the Ukrainian weather forecasters are predicting a “relatively mild winter in Ukraine” explaining that “temperatures may be slightly higher than average this winter and that the probability of long periods of very cold winter was ‘very low’.”
On October 19th, former Ukrainian infrastructure minister Volodymyr Omelyan was queried by NPR about the state of the electricity infrastructure, and he said:
[W]e still have a lot of reserve lines, which were produced and implemented in previous years. But its limit is also not very high. And we had to stop supply of electricity from Ukraine to European Union – and trying to satisfy our needs right now.
Plus, we also imposed kind of personal limit for each family and Ukrainian just somehow to reduce the impact on the electrical grid in Ukraine. But as of today, I wouldn’t say that it’s critical. (Emphasis added.)
In an October 22nd NPR story, Kyrylo Tymoshenko, an adviser to Ukraine’s president, told them that “Ukraine has the capacity to repair the grid quickly and repeatedly.” This seems accurate so far as the Washington Post reported on Tuesday (Oct 25th) that a Ukrainian power official said “90 percent of Ukrainians have had their power restored within a day of an attack.”
Australian scholars Ian Henderson and Kate Reece grappled with the issue of indirect/reverberating effects in a 2018 law review article. Their research showed:
[W]hile a strong argument can be made that military commanders are under a legal obligation to consider the indirect effects of an attack when calculating the expected collateral damage as part of the proportionality assessment, there is no apparent consensus as to the scope of this obligation. (Emphasis added.)
After examining what authorities there are, and noting that none are definitive, they decided that:
[I]f military commanders expect that indirect harm will eventuate as a result of the attack, that is civilians are likely to be killed or injured, or that civilian objects are likely to be damaged, then that expected collateral damage must be factored into the proportionality assessment. (Emphasis in original.)
Decide for yourself: Do the facts show that the indirect/reverberating effects mean civilians are likely to be killed or injured? And, if so, was it reasonably foreseeable in advance of the strikes that their numbers would be excessive in the relation to the “concrete and direct military advantage[s] anticipated”?
Responsibilities of the defender to protect civilians
A further factor is that LOAC also imposes responsibilities on the defending party. DoD LoW Manual (¶ 184.108.40.206) explains:
The exclusion of remote harms is based on the difficulty in accurately predicting the myriad of remote harms from the attack (including the possibility of unrelated or intervening actions that might prevent or exacerbate such harms) as well as the primary responsibility of the party controlling the civilian population to take measures to ensure that population’s protection. (Emphasis added.)
The “party controlling the civilian population” with the “primary responsibility” to “ensure [the civilian] population’s protection” in this case is Ukraine.
The defender’s obligations to its own population under LOAC have been addressed in two important essays: Professor Eric Jensen’s piece from last March “Ukraine and the Defender’s Obligations,” as well as Professor Aurel Sari’s 2019 article, “Urban Warfare: The Obligations of Defenders.”
These experts—citing especially Article 58 to Additional Protocol I to the Geneva Conventions—point out that LOAC imposes obligations to take precautions to protect civilians not only on the attacker, but on the defender as well. Both Russia and Ukraine are parties to Protocol I and it says:
The Parties to the conflict shall, to the maximum extent feasible:
(a) without prejudice to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives;
(b) avoid locating military objectives within or near densely populated areas;
(c) take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.
Professor Jensen explains the rules as to the defender’s responsibilities “can be reduced to two general commitments: 1) the obligation to segregate the civilian population from military operations; and 2) the obligation to protect those that you can’t segregate.” He adds:
[The] obligation exists despite any potential inconvenience to the defender and even regardless of the actions of the attacker. In other words, Ukraine’s obligations remain despite potential Russian violations.”
Professor Sari notes that the Article 58c “obligation is very broad in scope, in so far as it requires whatever action is necessary to protect civilians and civilian objects from the manifold dangers that result from military operations, subject to the overriding principle of feasibility.”
As previously discussed, Ukraine has taken a number of actions in its defense that involve civilians in ways that appear relevant to Article 58. Recall that, as the Washington Post put it, it “militarize[d]…[v]irtually every neighborhood in most cities.”
It also established workshops in “museums, libraries and churches” to manufacture military goods; and called upon millions of its citizens to join the “IT Army” to conduct cyber-attacks against the Russia and to use its government app to provide intelligence to the Ukrainian military.
Although I don’t find Ukraine’s actions are necessarily violative of LOAC as others have claimed (see here and here), it could impose particular responsibilities to protect its own civilian population. Professor Sari points out that in general the defending party is best suited to mitigate harm to civilians:
Authorities defending urban areas often find themselves in a better position to protect the civilian population than the attacking party. They may have at their disposal more comprehensive information about the location of civilians. They should have a better understanding of civilian needs and infrastructure vulnerabilities. They are also likely to be better placed to provide humanitarian relief.
To be clear, there is zero indication that the Ukrainian government (nor, for that matter, the dozens of countries aiding them), would abdicate its responsibilities to its own citizens.
So, decide for yourself: Given the aid Ukraine and it supporters would provide (and acknowledging that any Ukrainian death is tragic), would it be reasonable as a matter of LOAC for a military commander to nevertheless foresee that there would still be “excessive” civilian deaths weeks or months in the future as a result of the attack?
Of course, this is where the U.S. and other countries can double down on their humanitarian aid to help Ukraine fulfill its LOAC responsibility, not to mention alleviate the suffering of the Ukrainian people.
LOAC and terror attacks
In addition to the requirements above, there are some other prohibitions on attacks. The ICRC notes in its customary law study that “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” Furthermore, Article 33 of the Fourth Geneva Convention says that “all measures of intimidation or of terrorism [against protected persons such as civilians] are prohibited.” (The DoD LoW Manual is in accord – see ¶ 5.2.2).
How does this apply to infrastructure attacks? After the explosion on the Kerch Strait Bridge, it was reported that “panic gripped” the Crimean populace. Yahoo! said “Refat Chubarov, the head of the Majlis of the Crimean Tatars, reported that people are panic-buying food and fuel following the fire and partial destruction of the Crimean Bridge over the Kerch Strait.”
Russia immediately labeled the strike as a terror attack. The New York Times quotes Russian President Putin as saying, “[t]here is no doubt that this is a terrorist attack aimed at destroying the critically important civilian infrastructure of the Russian Federation.”
Notwithstanding Putin’s claims, there is an utter dearth of evidence showing that “the primary purpose of the attack was to spread terror among the civilian population” or, for that matter, showing it was meant as a “measure of intimidation” against Crimea’s civilians.
The fact that panic, extreme fear, and even intimidation resulted from an otherwise lawful attack on a bona fide military objective doesn’t mean that the attack was designed primarily as a “measure of intimidation” against civilians or that the “primary purpose” was to “spread terror” among them. In short, the attack on the Kerch Strait Bridge did not violate this proscription.
What about Russia’s attacks on Ukraine’s energy sector? NBC News quotes Putin as explaining what he called Russia’s “massive strike” on Ukraine’s “energy, military command and communications facilities” as “revenge for what he said was Kyiv’s long track record of ‘terrorist’ actions, including the bridge blast.”
NBC News also attributed this to Putin:
“If attempts to carry out terrorist attacks on our territory continue, Russia’s responses will be tough and will correspond in scale to the level of threats posed to Russia,” he said. “No one should have any doubts about this.”
While I am prepared to believe that “a” purpose of Putin’s attack was to spread terror among civilians or even to intimidate the civilian population, there is no evidence that it succeeded. Yes, he did speak of wanting “revenge” but is that really conterminous with “spreading terror”?
Ask yourself this: does the available evidence seem to suggest that Putin’s primary purpose was to “spread terror,” per se, or is the better view that it was aimed at detering further attacks against Russian infrastructure, and especially the Kerch Strait Bridge which was said to hold “deeply symbolic” value for Putin?
Furthermore, if Putin did intend to intimidate anyone, would it not be Ukraine’s wartime leadership, as opposed protected civilians? Again, decide for yourself.
It is worth noting that secondary or tertiary motives that would not themselves be a lawful basis for an attack ab initio, do not necessarily render strikes unlawful if there was an otherwise proper basis for the attack.
The DoD Law of War Manual (¶ 5.6.8) points out that “attacks that are otherwise lawful are “not rendered unlawful if they happen to result in diminished civilian morale.” It then cites (fn. 187) with approval a 2002 commentary about NATO’s Kosovo campaign from a former DoD General Counsel regarding attacks on Serbia’s electrical infrastructure:
I will readily admit that, aside from directly damaging the military electrical power infrastructure, NATO wanted the civilian population to experience discomfort, so that the population would pressure Milosevic and the Serbian leadership to accede to UN Security Council Resolution 1244, but the intended effects on the civilian population were secondary to the military advantage gained by attacking the electrical power infrastructure. (Emphasis added).
In his analysis, Professor Schmitt concludes that it “would seem clear that at least some of the Russian power infrastructure attacks violate [LOAC].” That is hardly an implausible inference but decide for yourself whether you have enough information to definitively conclude that a criminal act occurred.
For example, would you want to see more evidence showing that it was feasible––based on information reasonably available in advance—for the commander ordering the strikes to limit the attacks to those parts of the grid that serve only civilians? Moreover, would you want to know more about the motives of the commanders, to include their reasons for target selection?
In a June 2nd, article professors Geoff Corn and Sean Watts discussed the Ukraine war and observed that “[c]ondemnation and accountability…require evidence that meets the law’s standards of proof and persuasion.” To that end they say, “the focal point of inquiry related to targeting operations must be the attack judgment, not the attack outcome.”
They recognize that the “captivating visual nature of attack effects—especially harm to civilians and civilian property—make them an enticing focal point” but warn that “attack effects can also offer incomplete or even misleading impressions of legality.” They contend that:
[S]ound legal evaluations of attacks demand consideration of the complexities normally associated with the totality of the operational and tactical circumstances—the enemy situation, friendly situation, anticipated civilian risk, available resources and assets, alternative options, timing and pace of operations, urgency, knock-on effects—all of which inform attack decisions.
So, once again, decide for yourself if you have enough information to make an informed decision as to the legality (or not) of attacks on the electrical systems that serve civilians.
Allow me to reiterate a point made at the beginning this post: We need to think very carefully about what precedents and norms we might be establishing.
In his article about how the use of smartphones by Ukrainian civilians might (unwittingly) turn them into legal targets, Wired writer Lukasz Olejnik noted that how the situation was handled “could influence future models of conduct, and after sometime, these could become global norms” adding that the “precedents set now may have consequences for future armed conflicts.”
Much the same can be said with respect to attacks on dual-use electricity infrastructure. It would be a serious mistake, in my view, to broadly condemn them as they can be conducted lawfully and still produce very significant concrete and direct military advantages.
In fact, in many instances depriving an enemy of electricity (as opposed to attempting to root out and kill all his forces and/or destroy his war material and industries) would be more humane and, particularly, more protective of civilians. Each situation is unique and needs to be evaluated on its own facts and merits.
If we find ourselves battling a technically-advanced military, it would be unconscionable to allow overly-restrictive interpretations of the LOAC to deprive our forces of the targeting options they need to prevail. Again, it is possible to strictly adhere to LOAC and yet still conduct strikes against enemy infrastructure.
Finally, we must not forget that Russia has been – and continues to be – the aggressor in this illicit war against Ukraine. The Ukrainian people have suffered intensely due to the rapacious and profoundly misguided attempt by Putin to multiply his perceived fiefdom.
While discussion may ensue about whether specific incidents amount to actual war crimes, no one can debate the horrors this war has inflicted on Ukrainians who continue to be under malicious attack. People huddled for days in basements with no windows. Soldiers and volunteers who stepped up, killed and maimed. Historical and art treasures lost. Homes and cities decimated.
Putin is to blame. And there’s no debate about that.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!