Francesca Capone (Scuola Superiore Sant’Anna, Pisa)

On 29 November 2022 at a summit in Bucharest, NATO Secretary General Jens Stoltenberg affirmed that Russian President Vladimir Putin is using «winter as a weapon of war» against Ukraine. An article published on the BBC website and featuring interviews with Michael Schmitt and Maria Varaki addresses whether Russia’s attacks on Ukraine’s energy grids amount to violations of international humanitarian law. Both interviewees conclude that Russia’s main motivation, at least in some attacks, is to «terrorize the civilian population». I personally found this statement fascinating as it calls for a much-needed reflection on what kind of acts amount to a violation of Article 51 (2) of Additional Protocol I (API) to the Geneva Conventions (which prohibits «acts or threats of violence the primary purpose of which is to spread terror among the civilian population») and if bringing Ukraine’s energy network to its knees can actually be regarded as an illustrative example of unlawfully inflicting terror upon civilians. After sketching a succinct picture of the current situation in Ukraine, this post will discuss whether we can correctly assume that Russia’s actions can be labelled as violations of IHL and as acts of terror. A preliminary caveat is needed as, from a legal perspective, we can rule out right away that winter can be used as a ‘weapon of war’. As is well known, when we speak of prohibited ‘weapons’ of war we refer to a growing body of international law on arms control that excludes outright the use or possession of certain means of warfare, such as chemical or biological weapons. Therefore, rather than dealing with weapons, i.e. the instruments through which force is used in hostilities, this post is concerned with ‘methods’ of warfare, i.e. tactics that, like inflicting terror on a civilian population, are outlawed under treaty law as well as customary international humanitarian law.

The facts

By 28 November, Russia had hit more than 200 separate targets relating to Ukraine’s energy infrastructure, according to the Country’s Defence Minister. Millions were without power, and electricity usage was restricted in over a dozen regions. Al Jazeera’s Rory Challands, reporting in Kyiv, paints a painfully detailed picture of what is currently happening, explaining that, since 10 October 2022, Russia has deployed its strategic bombers and warships to unleash aerial devastation on Ukraine’s critical infrastructure. The attacks have been taking place every few days, with Ukrainian people reacting how they can, e.g. cooking on camping stoves in candlelit kitchens, without being able to predict when the power will be restored and for how many hours.

A recent statement by Dr Hans Henri P. Kluge, WHO Regional Director for Europe, adds further details on the matter, explaining that cold weather can kill as temperatures are predicted to plummet as low as -20 ˚C in parts of the country. As he puts it, «desperate families try to stay warm, many will be forced to turn to alternative heating methods […] these bring health risks, including exposure to toxic substances that are harmful for children, older people and those with respiratory and cardiovascular conditions, as well as accidental burns and injuries». The other, unfortunately neglected, issue that he points out is that «all of this is taking its toll on the mental health of Ukrainians. This week, the war enters its 9th month, and already some 10 million people are at risk of mental disorders such as acute stress, anxiety, depression, substance use and post-traumatic stress disorder, or PTSD». This account, besides being heart wrenching, calls for a closer look at the current legal framework, to better reflect on the implications of Russia’ strategy.

Dual-use, proportionality and incidental harm

A preliminary consideration concerns whether power infrastructures represent a legitimate military target under IHL or not. The question has been addressed also elsewhere in relation to the war in Ukraine and beyond. The answer is not straightforward as energy grids serve both military and civilian purposes. What are civilian objects? Article 52(1) of API clarifies that «[c]ivilian objects are all objects which are not military objectives», whereas Article 52(2) of API describes the latter as «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». Although the distinction between military objectives and civilian objects is binary, in the sense that an object(ive) is either civilian or military, as explained by Emanuela-Chiara Gillard there may be circumstances in which an object, in addition to being used for military purposes, continues to carry out a civilian function. She provides exactly the example of an electrical power station, which may supply both a military compound and a hospital.

In these circumstances, the object is sometimes colloquially referred to as a ‘dual-use object’. The term shall not be misread, a dual-use object is a military objective as long as it fulfills the two-pronged test in Article 52(2) API (the first prong is that by its nature, location, purpose or use, the object must make an effective contribution to military action; the second prong is that its destruction must give a definite military advantage in the circumstances ruling at the time), and thus damage caused to the object itself does not constitute damage to a civilian object. Accordingly, any reliance by Ukrainian forces on energy infrastructure for military purposes renders it a lawful military objective subject to Russian attack. Nonetheless, Gillard concludes that States’ armed forces may be required, as a matter of policy, to take the civilian function of military objectives into account in the targeting decision-making process and that the civilian deaths and injury (potentially including also mental harm) which can reasonably be foreseen to result from its destruction «must be considered in proportionality assessments».

The rule of proportionality prohibits attacks expected to cause incidental harm, encompassing both direct and indirect effects as long as the latter are foreseeable, that would be «excessive» in relation to the anticipated concrete and direct military advantage. Neither Additional Protocol I nor military manuals provide guidance on how to interpret the notion of what is excessive. Yet, in certain situations it is evident that the expected incidental harm will be excessive in relation to the military advantage. The concept of ‘military advantage’ is part of both the principle of proportionality and the definition of a military objective. As such, the military advantage that may justify civilian loss, injury and damages for purposes of the principle of proportionality must be (1) concrete (it has to be a real, tangible or measurable effect) (2) direct (which refers to the short chain of causation) and (3) military (political, economic or other non-military benefits are not relevant, nor, in the case at stake, is any decline in the morale of the Ukrainian civilian population).

The decision as to whether the incidental harm would be excessive is probably the most challenging aspect of the application of the rule of proportionality in practice, especially since a set of attacks against different targets, according to the interpretation of several states, may also constitute an ‘attack as a whole’ and not from part thereof, if the military advantage anticipated from engaging one target is dependent – in part or in full – on engaging other targets. As noted by Gillard, the assessment cannot result from the application of a mechanical formula, but it remains a value judgment to be made by the commander, in good faith and in a reasonable manner, as showed by the very few proceedings, before national and international courts (see for example ICTY, Prosecutor v Ante Gotovina et al., IT-06-90, Judgment (Trial Chamber), 15 April 2011, Vol. I, para 1910), that have addressed the matter so far. Moreover, although the determination of excessiveness from the perspective of a reasonable military commander necessarily leaves commanders with a certain margin of discretion, the International Law Association Study Group on the Conduct of Hostilities in the 21st Century agrees that the standard is still an objective one. Based on the information available, it seems quite obvious that Russia is not considering at all whether the attacks on the Ukrainian power grids, assuming that they all qualify as military objectives, are causing excessive civilian casualties and damages in relation to the anticipated concrete and direct military advantage. Also, Russian commanders are not concerned (nor aware?) that attacks that violate the rule of proportionality amount to grave breaches of IHL as stated in Article 85(3) of AP I and are criminalized under Article 8(2)(b)(iv) of the Rome Statute.

Does Dark and Cold equal Terror?

Going beyond the infliction of excessive incidental harm that result from attacks against ‘dual-use objects’, many have stressed that, in general, Russia’s actions are directly geared towards inflicting suffering on Ukrainians, but, in the specific case under scrutiny, can this strategy amount also to a violation of the prohibition to spread terror amongst the civilian population?

Judicial consideration of the methods of warfare, including inflicting terror on a civilian population, has been piecemeal and at times partial, at least until the advent of international courts and tribunals, which have devoted some attention to the law governing the conduct of hostilities. In particular, the International Criminal Tribunal for the former Yugoslavia (ICTY) has handled a series of cases that focused on attacks against civilians and civilian objects, and the novel war crime of inflicting terror on a civilian population (for a thorough recollection of the case law see Darcy, Judges, Law and War. The Judicial Development of International Humanitarian Law, Cambridge University Press, 2014, Chapter 4).

In the Prosecutor v. Galić case, which dealt with protracted campaign of shelling and sniping upon civilian areas in Sarajevo, the ICTY famously put together the essential elements of a still oblivious international crime. As far as the actus reus of the crime is concerned, the Appeals Chamber found that the sniping and shelling in question undoubtedly fall within the scope of ‘acts of violence’ contemplated under the definition of the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population. Elaborating on the content of the rule against terror as a method of warfare, the Appeals Chamber concluded that the acts or threats of violence constitutive of the crime of terror are not limited to direct attacks against civilians or threats thereof but may include indiscriminate or disproportionate attacks (or threats thereof). Moreover, the nature of the acts or threats «may vary if they are committed with the specific intent to spread terror among the civilian population» (ICTY, Galić, Appeals Chamber Judgment, 2006, para.102). Notably, the Appeals Chamber also stated that other purposes might have «coexisted simultaneously» with that of spreading terror, which, according also to the 1987 Commentary, shall be the primary, but not necessarily the only purpose.

The mens rea of the crime is composed of the specific intent to spread terror among the civilian population.  Obviously, there are significant challenges in defining the mens rea of a crime that is so evidently hinging on the state of mind of both the accused and the impacted civilians (Darcy, p. 2014). Regarding the intent of the perpetrators, the ICTY affirmed that it could be determined from the «nature, manner, timing and duration of the acts or threats» (Galić, 2006, para. 104). In relation to the impacted civilians, the Appeals Chamber in the Galić caseclarified thatthe offense specifically concerns cases of «extensive trauma and psychological damage» as resulting from attacks «designed to keep the inhabitants in a constant state of terror» (ibidem). Providing further (and most welcome) insight, the ICTY in the Dragomir Milošević case explained that causing death or serious injury to body or health represents only one of the possible modes of commission of the crime of terror, and thus is not an element of the offence per se (ICTY, Milošević, Appeals Chamber Judgment, 2009, para. 33). What is required is that the victims suffered grave consequences resulting from the acts or threats of violence; such grave consequences include, but are not limited to, death or serious injury to body or health (ibidem). Finally, according to the ICTY, the «actual terrorisation of the civilian population is not an element of the crime», although «evidence of actual terrorisation may contribute to establishing other elements of the crime of terror» (Milošević, Appeals Chamber Judgment, 2009, para. 35).

Disproportionate attacks on power systems during armed conflict might fall within the scope of ‘acts of violence’ contemplated under the definition of the crime of terror against the civilian population. However, as noted also by Michael Schmitt, for now there is no conclusive open-source evidence that the primary purpose of the Russia’ strikes against the electrical grids is to terrorize the civilian population. The information available so far shows that bombing the power installations is a strategy designed to break the will of a nation that has humbled Russian forces over the past nine months. The intensity of Moscow’s deliberate and unpredictable, yet inescapable, targeting of essential infrastructures also denotes the intention to instill a state of extreme fear in the civilian population, who, for over a month now, could not be sure of when the strikes will start, when they will end and if the power will be restored. The message that in Ukraine «no […] civilian is safe anywhere, at any time of day or night» (ICTY, Galić, Appeals Chamber Judgment, 2006, para. 107)  has been delivered, loud and clear. 

Conclusions

There isn’t a day that goes by without invoking, through different channels and means, Russia’s responsibility for the atrocities committed in Ukraine. We read about claims of genocide (most recently also in relation to the attacks on Ukrainian energy infrastructure), sexual and gender based crimes, as well as a wide array of war crimes, committed on the Ukrainian territory since the beginning of the conflict. The goal of this brief post was to clarify whether we can reasonably expect to add one more to the already long list. The answer to the original question is potentially a yes, but the true question should be where, and when, there will be accountability, and hopefully justice for the victims.