Nearly a third of Ukrainian power plants are out of service following a massive campaign of Russian strikes, denounced Ukrainian President Volodymyr Zelensky. The President of the European Commission Ursula von der Leyen reacted on Wednesday October 19 by judging that the targeting of these infrastructures by the Russian army constituted a war crime. What does international law say?
The conduct of war is framed by a series of principles enshrined in the Geneva Convention. This text of international law dates from 1949 and has been ratified by all States in the world. By attacking Ukraine’s power plants, Russia has potentially violated several of them.
Distinguishing civil and military objectives
First, the principle of distinction: the belligerents must distinguish military objectives from civilian objectives, which it is forbidden to attack. Attacking civilian infrastructure such as hospitals or schools, essential to the survival of the population, is indeed a violation of this principle.
However, the situation for power plants is more ambiguous. Admittedly, they supply Ukrainian civilians with electricity for their daily needs, however, they are also used by the military in the conduct of their offensive and defensive operations. In other words, these infrastructures have a double use.
Each attack must therefore be considered by the State which launches military operations. In concrete terms, Russia is therefore required to know before attacking what purpose each plant hit is used for, and the consequences that their destruction would have on civilians. These obligations are constitutive of the precautionary principle, also included in the Geneva Convention.
The characterization of the war crime cannot therefore be made without an investigation, on the spot, of the jurisdiction competent in matters of the law of war, the International Criminal Court. The Ukrainian national courts can however also seize to determine the nature of these Russian strikes.
War crimes and crimes against humanity
Ursula von der Leyen’s position is therefore more political than legal. It aims to condemn the Kremlin on a moral level but does not establish the criminal guilt of the Russian leaders, which can only be affirmed following an investigation having gathered evidence. However, the extent of the Russian strike campaign obviously suggests that Moscow did not study the specific use of each plant destroyed, and would therefore have contravened the principles of precaution and distinction.
This hypothesis is reinforced by the history of the Russian army, which seems to have sought, since the beginning of the conflict, to weaken the Ukrainian civilian population. However, the systematic targeting of civilians during a conflict is not only a war crime, but a crime against humanity.
Moreover, even assuming that each power plant struck constitutes a legitimate military objective, the Russian strikes remain potentially illegal insofar as they probably do not respect the principle of proportionality. This stipulates that hitting a military objective remains illegal if it is in a densely populated area, which is the case with Ukrainian power stations, which are often located in cities.