Russian Attacks on Ukrainian Utility Infrastructure: Water and Power
LtCol Brent Stricker[i]
After withdrawing from much of the territory it occupied in Kharkov Oblast, the Russian military has turned to a new strategy of attacking civilian infrastructure, such as the power grid and dams. On September 14, 2022, Russian Aerospace Forces attacked the Karachunivske dam at Kyvyi Rih, the hometown of Ukrainian President Volodymyr Zelenskyy. Evidence from various Telegram Channels show that water flow to the city has ceased, forcing civilians to purchase bottled water. Anton Gerashchenko, adviser to the Ukrainian Interior Minister tweeted, “Rockets were directed at hydraulic structures. This caused water level of Inhulets river to increase, threatening the city.” Russia conducted a second attack with ballistic missiles on the Pechenihy dam on the Siverskiy Donets river on September 24. These attacks on civilian objects are controversial because they may violate the law of armed conflict.
The relevant law applicable to the armed conflict between Russia and Ukraine is Additional Protocol I, to which both states are Parties. Articles 48 and 52 of Additional Protocol I describe the principle of distinction between valid military targets and protected civilians and civilian objects. Article 48 notes that military operations should only be directed against military objectives. Article 52(1) notes “civilian objects shall not be the object of attack.” Article 52(2) goes on to define military objectives as being “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.”
The United States would view these actions under customary international law (CIL) since it is not a signatory to AP I. The U.S. statement on CIL appears in publications like the DOD Law of War Manual and the Commander’s Handbook on the Law of Land Warfare. Both publications express a similar definition to AP I on distinction between military objects and protected civilians and civilian objects (here, and here).
Can the Ukrainian power grid be considered a military object whose destruction or degradation confers a military advantage to Russia? The DOD Law of War Manual notes “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 a military objective during armed conflicts.” The Ukrainian power grid is certainly assisting Ukraine’s capacity to meets its wartime needs, in particular its support to the transportation system.
In the present case, Russian strategists may hope Ukrainian success in the North may sow its failure in the South. Having completed its Kharkov Offensive, Ukraine will need to turn its attention either east to the Donbass or south toward Kherson and Zaporizhzya Oblasts. This requires the movement of its armored units south or east, and the most efficient way of moving armored vehicles is by rail. Attacking the power grid disrupts the rail network, thereby impeding the movement of armored forces south or east and delaying another offensive by Ukraine. This allows time for Russian forces to withdraw from Kharkov to be redeployed, and more importantly, for fortifications in Kherson and Zaporizhyzya to be strengthened. The Ukrainian power grid is therefore a valid military object whose destruction or degradation would confer a military advantage to Russia and allied forces.
Similarly, is there a military advantage to be gained by attacking a dam and causing flooding along the Inhulets and Siverskiy Donets rivers? Ukrainian forces are continuing their efforts in Kherson and Donbass and are using bridges, to include pontoon bridges, to cross these rivers. The attack on the Karachunivske dam has caused the Inhulets river to rise, risking damage or destruction of these crossings. The attack on the Pechenihy dam is believed to have been intended to cause similar damage to crossings on the Siverskiy Donets river. By attacking the dams, the Russians have created a water barrier that could trap Ukrainian forces on the wrong side of the river, thereby preventing Ukraine from re-supplying its forces and continuing its offensive operations.
If the dams are valid military targets, one must consider whether the affects upon the civilian population violates the principle of proportionality. Article 51(5)(b) of AP I prohibits indiscriminate attacks where the expected “incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof [are] excessive in relation to the concrete and direct military advantage anticipated.” This prohibition is repeated in Article 57(2)(b) requiring precautions in the attack. Under CIL, as stated in U.S. doctrine, belligerents are required to conduct a proportionality analysis of the effects of an attack and the risk of damage to civilians or civilian objects. This risk must not be excessive or disproportionate to the military advantage gained from the attack.
A proportionality analysis of the Russian strikes on the Ukrainian electric grid is not difficult due to the widespread nature of the disruption. If this had occurred in winter, the Russian attacks could have led to thousands of deaths due to exposure with urban areas in particular having difficulty heating homes since these rely on centralized district heating systems that needs electricity to function. Rural homes in Ukraine, Russia, and other former Soviet states are typically heated using a fire burning stove, known as a Russian Stove. As long as there is fuel to burn, these homes will be warm. Fortunately, this attack did not occur in winter. Damage to the power grid has not been permanent. If it had and the attack occurred in winter, the risk to the urban civilian population would make this attack’s effects disproportionate.
A proportionality analysis of the attack on a facility that contains dangerous forces is complicated due to the contrast between U.S. CIL and AP I. Examples of such facilities besides dams are nuclear power plants and facilities producing weapons of mass destruction. Articles 55 and 56 of AP I tend to prohibit attacking dams. Article 55 prohibits attacks that “are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.” Article 56(1) has a more specific prohibition on attacking dams and similar installations stating they should not be attacked “even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.” Article 56(2)(a) has a very narrow exception allowing dams to be attacked if they are being “used for other than its normal function and in regular significant and direct support of military operations and if such attack is the only feasible way to terminate such support.”
The US interpretation of CIL regarding attacking dams or similar facilities is much more permissive than AP I. The Commander’s Handbook states “the fact that materials or forces contained within a military objective may be released as a result of the attack does not immunize it from attack.” The Commanders Handbook permits dams and similar facilities to be attacked so long as they are a valid military object and the attack employs additional precautions to minimize the release of dangerous forces it contains to stay within the bounds of proportionality.
The extent of the flooding damage caused by these attacks has not yet been fully assessed. It is likely that this flooding could result in deaths, destruction of civilian objects, and environmental pollution. There is no evidence showing the dams were not in normal use and were providing “regular, significant and direct support of military operations” allowing the AP I Article 56(2)(a) exception for attack. Under US interpretation of CIL, a limited breech of the dam with limited flooding to provide a temporary water barrier and disruption of river crossings might meet the proportionality restrictions of incidental and collateral damage to civilians and civilian objects. The attack on the dam is a clear violation of AP I, but may be permissible under US interpretation of CIL.
The conflict in Ukraine continues to provide examples of alleged violations of the law of armed conflict. Civilians are always at risk in an armed conflict, but as the seasons change and General Winter enters the conflict, hopefully both sides will take precautions in similar attacks on public utilities like water and power.
[i] The views presented are those of the author and do not necessarily reflect the policy or position of the Stockton Center, the U.S. Marine Corps, the U.S. Navy, the Naval War College, or the Department of Defense.