Would a tit-for-tat retaliation against Russian civilian infrastructure be a violation of the Geneva convention?

Question

Ukraine is currently suffering from a series of Russian attacks against civilian infrastructure, which might soon result in the entire country not having access to electricity. Does the Geneva convention now give Ukraine the right to mirror Russia's response and begin destroying purely civilian infrastructure on Russian territory?

Answer 1

The Geneva conventions do not give Ukraine the right to retaliate in kind if Russia has indeed breached the conventions (see Are power plants legitimate military targets under international law?). Common Article I of the conventions states:

The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.

There is no provision in the conventions which allows High Contracting Parties to commit breaches of the convention as a means of reprisal. Common Article II of the conventions states that a High Contracting Party remains bound by the Convention in relation to a non-signatory if the non-signatory 'accepts and applies' the convention's provisions.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

As Russia is a High Contracting Party, this clause is not relevant.

Furthermore, Article 52 of Additional Protocol I to the Geneva Conventions states:

Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.

Therefore, even if Ukraine wanted to make use of customary international humanitarian law outwith the Geneva Conventions to justify a breach as means of reprisal, civilian infrastructure is expressly prohibited.

In addition, Ukraine's Military Instruction manual (2017) also explicitly prohibits reprisals against civilian infrastructure. It does allow for other reprisals as a last resort, but notes that these would constitute "deliberate violations of International Humanitarian Law". Paragraph 1.2.56 states (in Ukrainian):

Reprisals are generally prohibited deliberate violations of IHL in response to offenses committed by an adversary state with the aim of forcing the opposing party to end wrongful acts.

Reprisals can be used as a last resort, they must be commensurate with the enemy's violations.

It is prohibited to apply reprisals to:

• civilians and civilian objects;

• prisoners of war;

• wounded, sick and persons who suffered a shipwreck or an aircraft accident;

• medical and spiritual staff;

• persons and objects that enjoy special protection;

• objects necessary for the survival of the civilian population;

• natural environment.

Answer 2

The nearest case is perhaps the 1999 Kosovo war, where NATO bombed many targets in Serbia to compel a Serb surrender. NATO attacked many "dual use" targets, including according to Wikipedia, "bridges across the Danube, factories, power stations, telecommunications facilities", railways, the offices of a political party linked to the wife of the country's leader, and TV facilities accused of propaganda.

The authoritative 2000 UN inquiry's Kosovo Report found this "illegal but legitimate": illegal purely because it did not have UN authorisation, but legitimate because "all diplomatic avenues had been exhausted and there was no other way to stop the killings and atrocities in Kosovo". The Commission was critical of some of NATO's actions and called for "more constraints on the use of force than are embodied in the current law of war". All this shows that (aside from the lack of authorisation for the war) NATO's actions during the war were legitimate under international law at the time (including the 1977 protocol on the General Protection of Civilian Objects, which was in force then).

Based on this, it is reasonable to conclude that limited attacks on dual-use targets (including power stations) are legitimate if the war is otherwise legal and actions are necessary to prevent deaths or atrocities. Doing it purely as reprisal may be viewed differently, but many targets will have some military value (i.e. "dual use").

Answer 3

A pure countervalue strategy is not acceptable under international law. I'm not aware of any exception which allows war crimes in retaliation for other war crimes, or because the perpetrator is in a desperate military position.

That being said, Ukraine could do a lot more to target the Russian defense industry and defense-related infrastructure. If that leads to Muscovites sitting in the dark because someone wanted to cut power to the Kremlin, it may be acceptable. (On the flip side, people in Kiew freezing because someone wanted to shut down the Kyiv Electric Railcar Repair Shop would not be a war crime, either. But there are Western translations that Russian sources admit/boast that freezing Ukraine is a tactic, which makes it a war crime.)

Answer 4

Russia attacks Ukraine's electrical grid because it doesn't consider it purely civilian. The 2 major reason Russia is attacking Ukraine's electric grid is:

1. to disrupt Ukraine's railways (which run on electricity) to prevent transportation of Ukranian troops, weapons and other equipments to the war front.

2. to force Ukrainian military to use use backup generators which makes it easy to target and identify potential military targets (like an air defense system) more easily due to the continuous heat signature they emanate.

And this has been effective. Ukrainians can use the same reason and attack select Russian infrastructure that support the logistics of Russian troops.

(The United States has often targeted electric grids in both Serbia, Iraq and Afghanistan too. Of course what super powers can get away with, others may not. :)

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Update:

1. It's 2024 and Ukraine has already started targetting Russian infrastructure. Most recently, some refineries and oil depots in Russia were successfully attacked by drones and Ukrainian UAVs have attempted to strike targets even in Moscow.

2. As a comment points out, the ICC has accepted a complaint to investigate the possibility that the Russian military has committed "war crimes" by "disproportionally" attacking the civilian electrical infrastructure in Ukraine. It remains to be seen whether the allegations that the attacks have been "unnecessary" or "disproportionate" can be satisfactorily proved as Russia is unlikely to defend itself in the ICC during an ongoing war, in a western court.

(As I have written in another answer the allegations of political bias against the ICC are not at all unfounded. In fact, today, I wouldn't even hesitate to call the ICC a Kangaroo court of the west - despite the obvious and easily prosecutable war crimes and genocide happening right now in Gaza, the ICC still blatantly overlooks the crimes of Benjamin Netanyahu because Israel is a "western ally". Compared to the 14,000 to 15,000 Ukrainian civilians killed, as per the UN, in the last 8+ years of the Russian - Ukrainian conflict the Israelis have already deliberately slaughtered around 20,000 - 25,000 Palestinians civilians in just a few months ... and yet, while the ICC has hurriedly issued many arrest warrants against the Russians, no such urgency is shown against Israel's apparent war crimes and ongoing genocide of Palestinians).