Are power plants legitimate military targets under international law?

Question

I've seen clips and articles stating that recent Russian attacks on Ukrainian power plants amount to "War Crimes". This seems right to me but I couldn't find any resource explicitly prohibiting it. Are these valid/invalid military targets in both practice and theory?

Answer 1

There’s nothing that I’m aware of in international law prohibiting the targeting of power plants in general - except for the blanket protection given to civilian objects defined in Article 52 of Additional Protocol I to the Geneva Convention. This defines a military objective as 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”.

Russia’s position is presumably that power plants can be defined as legitimate military objectives under this article. However, Amnesty International’s Director for Eastern Europe and Central Asia has accused the country of a war crime by carrying out the attacks “with the sole purpose of terrorizing civilians”. This would be contrary to the general protections of Article 51 of the same protocol, which prohibits “acts or threats of violence the primary purpose of which is to spread terror among the civilian population”.

Power plants are not explicitly mentioned in Article 54 - which states:

It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.

It could be argued that energy infrastructure might fall under this definition, however.

The accusations of war crimes that I’ve seen most recently regarding Russia’s latest attacks on power infrastructure relate to the reported mining of the Kakhovka Hydroelectric Power Plant. President Zelenskyy mentioned this in his speech on October 20th:

According to our information, the aggregates and dam of the Kakhovka HPP were mined by Russian terrorists.

Now everyone in the world must act powerfully and quickly to prevent a new Russian terrorist attack. Destroying the dam would mean a large-scale disaster.

Attacks on dams and other infrastructure which contains ‘dangerous forces’ such as nuclear power stations are prohibited by Article 56 of the same protocol:

Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, 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. Other military objectives located at or in the vicinity of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.

There are, however, exceptions and caveats to these protections - in all of the articles quoted above. For example, Article 56 allows military attacks on a dam “if it is 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”. There doesn’t seem to be any blanket protection in international law for energy installations, even for nuclear power plants.

Answer 2

I would argue that the wording "such as" of the Article 54:

It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.

means that objects in the list are just examples and other critical objects of civil infrastructure are similarly protected as well, if they are attacked with the mentioned specific purpose.

The main argumentation behind claiming it is a war crime is that these stations do not contribute to the military success (the army on the field has they own mobile power generators) and is directly aimed to cause the mass suffering of the civilian population, as the primary goal. About 50 % of civilian power grid has been destroyed when the winter is coming.

Bringing intentionally humanitarian disasters like

There are currently no prospects for starting heating. The city is in danger of not starting the heating season at all (source)

should be a war crime by this chapter. Without heating, water supply and sewerage must also be shut down as well as it would freeze. Civil deaths are very likely to follow. At the same time, the army at the front will only get very minor and indirect impact or may even benefit from Russian missiles being depleted.

It is, of course, possible to say that any piece of civilian infrastructure indirectly supports the army by just contributing to the economy, and further extend this logic that each working civilian does this as well by ones direct work regardless of the profession so all of them are the valid military target. Everything can be linked with everything by weakly bridging over multiple steps. This cannot be the way the Article 54 has been expected to be interpreted as it would be self-contradicting and essentially void (food and water it talks about can be consumed by factory workers that produce spoons that soldiers use for eating, or much longer "logical chains" are possible to imagine).

But we need to think the actual meaning of the chapter within the context it was proposed: to prevent the artificial creation of humanitarian catastrophes, even if they are useful in winning the war.

Update: The Guardian writes that when retreating from Kherson, Russian army simply destroyed all critical infrastructure: water, heating, electricity, I assume clearly on purpose and being at place, not with rockets. While four destroyed bridges are the military targets, water and heat is likely not.

Look into this space photo of Ukraine to see the scale of the damage done:

This really does not look like something just focused on the front lines.

Answer 3

The 1977 amendment to the Geneva Convention writes:

Art 48. Basic rule

In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

Art 51. - Protection of the civilian population

[...]

4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:

   (a) those which are not directed at a specific military objective;

   (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or

   (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol;

   and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

5. Among others, the following types of attacks are to be considered as indiscriminate:

   (a) ...

   and

   (b) 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.

A similar definition is given by the Rome Statute (the treaty establishing the International Criminal Court), in article 8.2.b.iv:

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

The "concrete and direct military advantage" obtained by destroying the power grid is likely quite minor compared to the impact on the civilian population. After all, military units that need power likely have their own means of generating it, while civilians don't usually have a diesel generator on standby.

That is, creating a power outage in a wide area (particularly if that area contains few military assets currently in need of power) would be judged excessive. On the other hand, destroying the power lines supplying a military installation, and their dedicated backup power supply, would be fine.

So, what has happened in Ukraine? Bloomberg summarizes:

Ukraine’s critical energy infrastructure was extensively damaged on Saturday as Russian troops delivered another large-scale wave of missile strikes, leaving 1.5 million or more people temporarily without power.

NPR goes into greater detail:

The mayor of the western city of Lutsk, Ihor Polishchuk, says the damage inflicted by three Russian rockets "is not compatible with repair." He asked for patience as engineers rebuild electrical infrastructure and restore water pressure.

Police also said most air raid sirens don't have the electricity to warn of other potential airstrikes. They encouraged citizens to keep the mobile phones charged to receive emergency alerts, and said they would turn on their vehicle sirens in case of an incoming attack.

"When you don't have electricity in a city, it means you have no water, you have no supply of gas, you have nothing," Oleksandr Kharchenko, a leading Ukrainian energy expert, told NPR. "It's really huge trouble."

Seven out of Ukraine's 25 regions experienced similar damage, mostly in the country's west, south and center.

I wonder which "concrete and direct" military advantage Russia is pursuing in Lutsk, approximately 700 km from the front?

If this isn't excessive, I don't know what is. In fact, this is so beyond the pale that it may even meet this definition:

Art 51. - Protection of the civilian population

1. ...

2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

(emphasis mine)

even if it doesn't, it is likely to meet this one:

Art 54. Protection of objects indispensable to the survival of the civilian population

1. Starvation of civilians as a method of warfare is prohibited.

2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as food-stuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.

(emphasis mine)

Generally speaking, attacks on power plants may also run afoul of

Art 56. Protection of works and installations containing dangerous forces

1. Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, 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. Other military objectives located at or in the vicinity of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.

While the current attacks have (to my knowledge) not targeted such installations, nuclear power plants have come under fire in this conflict, and the International Atomic Energy Agency remains deeply concerned about the situation in the Zaporizhzhya nuclear power plant.

Conclusion

The Geneva Convention requires distinction, proportionality and precaution when attacking the enemy. It forbids terrorizing the civilian population, and forbids depriving it of vital resources. It also forbids attacking installations containing dangerous forces.

Answer 4

The question about what constitutes a legitimate target is a difficult, technical, and ultimately unimportant one. But there are some interesting tidbits to look at anyways.

Geneva Conventions Protocol I, Article 52 defines civilian and military objects, and that in doubt you should assume an object is civilian, which you definitely can't attack. Commentary #2023 and #2024 on Article 52 highlights that dual purpose (military and civilian) objects can be attacked if you minimise civilian casualties, and that such an attack must be made to gain a definite (as opposed to potential or indeterminate) military advantage.

Article 54 forbids attacks that threaten the survival of the civilian population, but exempt in paragraph 3 some objects used "in direct support of military action" on some conditions. Article 54 only mention food and water as a necessity, not power and shelter, so it's unclear whether that article applies at all here.

Article 56 provides protection to dams, dykes, and nuclear plants, unless "in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support". If you're thinking the ability to cut power lines would disqualify any attack, commentary #2166 agrees. Commentary #2165 also add "it would not be reasonable to claim that merely supplying electricity constitutes direct support of military operations", and commentary #2163 does say such an attack would be forbidden if it would "cause severe losses among the civilian population because of the release of dangerous forces"

If that comment applies to all power plant beyond dams or nuclear plants, and I can't see a reason it wouldn't, then in the light of Article 52 you'd have a strong case that a power plant wouldn't be a legitimate military objective when it also provides power to civilians.

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But whether it's a legitimate target or not wouldn't matter too much because while the Rome Statute, Article 8 lists targeting of civilian objects as a war crime

2. b. ii. Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

It also lists this as a war crime:

2. b. iv. Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

And importantly here is that this is independent of whether the target is otherwise legitimate or not.

Losing power in or near winter can certainly cause loss of life and injuries. A plant that powers a small village and a big military base might pass muster, but I don't think it would take much for it to be considered "clearly excessive" in relation to any military objective, especially considering how tanks don't particularly run on electrons, nor jets, nor soldiers themselves.

I will also certainly argue that attacking a nuclear plant such as Zaporizhzhia is bound to cause "widespread, long-term and severe damage to the natural environment", that it's an undisputable truth, and that you can't argue that you don't know that in a country where Chernobyl happened. And I'll say that a nuclear disaster is clearly excessive in relation to anything.

So with all these elements so far, you can certainly make a case that targeting power plants that supply large civilian populations is a war crime.

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That was the theory, but what about the practice?

Remember that war crimes are crimes. They require intent. You have to accuse specific people of specific crimes, and demonstrate that they acted wilfully and unlawfully. You can't really subpoena Russia for confidential military communications to prove your case about the intent, nor can you count on Russian officers showing up to court voluntarily to stand trial.

So is this going to lead to anything? Doubftul.

The accusation has more value as a matter of politics right now. Throwing accusations is free, and painting the other side as a bunch of heartless war criminals certainly help shore up popular support for your side. The will to fight and the conviction that you're on the right side are powerful things in a war, and that's more practically useful to Ukraine right now.

As for the military usefulness of such tactic, it's rather dubious. It's a valid target in the sense that it's a thing you can throw bombs at and it'll cause some chaos for the enemy. But IIRC, during WWII, of all the totally legitimate bombing campaigns done by the Allies, bombing roads and railroads proved more effective than bombing factories and such.

And although I suppose today we're more reliant on electrons than in 1945, we still have a lot of military equipment, and particularly some of the older equipment used by Ukraine, that can be operated and serviced without being plugged into the grid. And it makes sense, in case of a war, you can't rely on a steady supply of electricity.