Oleksiy Plotnikov, PhD, international judiciary

New tactics of the aggressor?

The failure of the occupiers in the Kharkiv Region appears to have convinced even their most obstinate “hotheads” that success on the battlefield against the Ukrainian Armed Forces is impossible. While Ukraine receives the most advanced armaments from its allies, Russia can only rely on obsolete Soviet equipment and perhaps symbolic aid from the Kim government in North Korea [1]. The aggressor’s odds of victory are diminishing, while the likelihood of an international tribunal for its leaders is growing [2].
The upcoming winter appears to be the alleged “last opportunity” for the Russian leadership to turn the situation in its favor, and the “only way” to achieve negotiations with Ukraine on terms other than Russia’s surrender is to create economic and social difficulties that allegedly “will force” our nation to sit down at the table for negotiations. Taking into account the experience of “gas wars” that demonstrates that Ukraine does not freeze by itself winter, it is highly likely that the aggressor will attempt to assist her by damaging vital elements of her civil infrastructure.

As we are not military experts, we will not attempt to estimate the efficacy of attacks on power plants [3] and hydrotechnical structures [4] or whether the Russian army is currently capable of conducting such attacks in quantities greater than those required for propaganda. What we can tell with certainty is that another set of war crimes have been committed by the aggressor, for which the planners, direct perpetrators, and those who urged for their commission should be held accountable.

ARC has already written about shelling of civilian objects as war crimes and responsibility for them [5]. However, intentional attacks on some categories of civilian objects constitute a separate crime. Among such objects are those that are critical to the survival of the civilian population or contain dangerous forces.

Both types of attacks are aimed not only at the destruction of a specific civilian object, which in itself can be considered a war crime, but at creating a long-term negative impact on the civilians of the opposing side with the aim of weakening it or forcing it to surrender. Therefore, such actions represent a particularly dangerous violation of the fundamental principle of distinction, which prohibits attacks on civilians not taking part in hostilities.

Prohibition of attacks on objects, indispensable to population’s survival
The extermination of the enemy’s civilian population is a very old tactic that was used already in antiquity, subjecting civilians to hunger and disease in order to break the enemy’s will to resist. International humanitarian law prohibited such barbaric tactics. In particular, according to the first part of Article 54 of Additional Protocol I to the Geneva Conventions, which was adopted in 1977, it is forbidden to resort to starvation among the civilian population as a method of warfare.

However, harming the civilian population is not only possible through starvation, so the second part of the same article prohibits “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” [6] .

According to the Commentary to the Additional Protocol, which was developed by the International Committee of the Red Cross, the provision of the second part of the article develops a general prohibition of subjecting the civilian population to starvation. This section prohibits attacks carried out with the specific purpose of depriving civilians of their means of livelihood, and the prohibition here is broader than the prohibition against destroying food supplies. It is in principle about any objects that ensure the survival of the civilian population.

The list of examples given in the article is not exhaustive. It is generally difficult to create a specific definition here, since it is impossible to determine exactly which object will be important for individual survival. For example, during the negotiations on the definition of the concept of “starvation” for the purposes of the Rome Statute of the International Criminal Court, it was recognized that the concept of “starvation” should include the deprivation or reduction of the supply of anything necessary for survival, such as medical services [7]. Here it is worth mentioning that the same First Additional Protocol in Article 69 includes clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population.

Thus, attacks against civilian objects, which actually deprive the civilian population of anything necessary for survival, including medical care or shelter (this can also include heating in the cold season, without which it is difficult to call this housing a shelter), falls under the definition of the crime under Article 8(2)(b)(xxv) of the Rome Statute of the International Criminal Court. It is intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions.

Prohibition of attacks against installations containing dangerous forces
An equally ancient military tactic is the use of the forces of nature against the enemy. One of the variants of such tactics is the destruction of artificial structures that restrain such forces, for example dams. It is not for nothing that the First Additional Protocol contains Article 56, which prohibits attacks against “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” [6].
In this article, the list is also purely illustrative, and is not exhaustive of the listed objects. The main idea is to prohibit the release of the forces of dangerous forces, which can cause harm to the civilian population. The commentary to the Protocol particularly emphasizes examples of the use during the Second World War of floods caused by the destruction of water protection structures as a means of waging war and the illegality of such behavior [8].

And even if the attack on hydrotechnical structures does not lead to victims, as was the case in Kryvyi Rih, where the aggressor’s destruction of the dam caused only a slow and limited rise of water [9], this isany event an international crime punishable under Article 8(2)(b)(iv) of the Rome Statute: 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

Difference of strikes against the bridge of Kakhovka Hydroelectric Power Plant
An attentive reader may ask here whether the shelling by the Armed Forces of Ukraine of the bridge near dam of the Kakhovska HPP [10] would not be a humanitarian law violation, because it is obvious that this dam deters dangerous forces that can destroy everything located near the shore below along the Dnipro. Therefore, it should be explained that there is no violation from Ukrainian Army here for three reasons.
Firstly, the strikes were not directed at the HPP dam itself, but at the bridge that runs along it. High-precision weapons were used to carry out the strikes, and the dam, as an object containing dangerous forces, was not damaged, while a legitimate military target was disabled – a strategic bridge used by the occupiers to supply the group on the right bank of the Dnipro River.

Secondly, the Armed Forces of Ukraine did not aim to release dangerous forces in order to achieve military advantage. The purpose of the strikes was not to destroy the dam, but to destroy the bridge, so it is impossible to talk about the commission of violation the international law.

Thirdly, Article 56 of the First Protocol contains paragraph 2(a), according to which “the special protection against attack provided by paragraph 1 shall ceasefor a dam or a dyke only 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”.

The bridge along the Kakhovskaya HPP dam remained practically the only way of supplying the group of occupiers around Kherson, it was used for direct support of military operations, and there were obviously no other ways to stop such support. So even if the dam were destroyed, such destruction would fall under the First Protocol’s exclusion, and the responsibility for its damage would be borne by those in the command of the aggressor’s army who made the decision to use the dam to support military operations.

Moral for the Crimea or instead of an epilogue
Attacks on power plants, dams, shooting by “Iskanders” at nuclear power plants are far from the first case of an aggressor violating Articles 54 and 56 of Additional Protocol I. Like the aggression itself, these violations began in the Crimea by depriving the inhabitants of the Peninsula of the water, which the occupiers used for their own military buildup. The ARC wrote a lot on this topic in 2020-2021, and the topic of predatory exploitation of Crimea’s water resources is most fully disclosed in the film “Crimea-Dehydration”, which was prepared with the participation of the Association’s experts [12].

At first glance, it may seem that there is a difference between draining water from the Crimean land and shelling a nuclear power plant with rockets. But in fact, these are links of the same chain. By occupying Crimea, Russia had the obligation not to harm its nature and to provide for the needs of the civilian population, however, depriving the Crimean residents of water and blaming Ukraine for this, the occupier actually used the threat to the civilian population as a weapon in a “hybrid” war. The fact that it was a war crime was clear to experts at the time, but it was far from obvious to the general public.

When the war turned from “hybrid” to large-scale one, the specifics of tactics changed, but not the tactics itself. Just to put the civilian population at risk, the aggressor now openly uses weapons. It seemed questionable whether Ukraine would be able to prosecute those responsible for depriving the civilian population of water in 2020-2021 under international criminal law. But the criminality of Russia’s current actions is indisputable, so when sentencing them, it is important not to forget that this is not a novelty, but only a continuation of the crime that began in Crimea back in 2014.

1. https://www.ukrinform.ua/rubric-ato/3566636-pivnicnokorejska-zbroa-navrad-ci-dopomoze-rosii-u-vijni-z-ukrainou-ar.html
2. https://arc.construction/30625?lang=ru
3. https://www.slovoidilo.ua/2022/09/12/novyna/suspilstvo/mzs-ukrayiny-nazvalo-udar-rosiyan-po-tecz-aktom-rozpachu
4. https://ru.interfax.com.ua/news/general/859341.html
5. https://arc.construction/33574?lang=ru
6. https://zakon.rada.gov.ua/laws/show/995_199#Text
7. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule54
8. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=B071F91A3BD55FD7C12563CD00434E3E
9. https://focus.ua/ru/voennye-novosti/529530-rossiya-povtorno-udarila-po-podtoplennomu-krivomu-rogu-raketami-chto-proishodit-v-gorode-foto-video
10. https://focus.ua/ru/voennye-novosti/526700-snova-chetko-v-cel-vsu-udarili-po-mostu-na-kahovsky-ges-video
11. https://www.ukrinform.ua/rubric-ato/3574770-nicnij-obstril-pivdennoukrainskoi-aes-rosiani-vipustili-iskander.html
12. https://www.youtube.com/watch?v=5BzqE_kal2w