Is the destruction of Ukrainian energy infrastructure a war crime?

On January 10th, 2024, Russian forces conducted a massive strike on the Ukrainian power grid, coordinating over 40 missiles and around 70 drones. This has resulted in preventative power cuts to avert further damage to the power grid. The strike is part of a series of attacks that have damaged the Ukrainian power grid in a way that has heightened the threat of a nuclear disaster. This presents safety concerns for the Ukrainian public in general and constitutes a violation of customary international law, particularly the law of armed conflict.

It is customary in international law that objects indispensable to the survival of the civilian population, particularly those related to food and water, are protected from destruction by combatant parties per Article 54 of the Additional Protocol to the Geneva Conventions of August 12th, 1949. This statute prohibits starvation of civilians as a method of warfare, including the destruction or rendering useless of food, agricultural areas, crops, livestock, drinking water, and facilities pertaining to the food and water production for the purpose of denying the civilian population food, whatever the underlying motive may be. This provision does not apply to those same resources when used in direct support of enemy military action, except to the extent that it would cause the civilian population to be deprived of food or water.

In summary, this means that destroying goods or facilities necessary to keep the civilian population alive is forbidden. War Materiel is on the table so long as its destruction will not endanger civilians, but as soon as the civilian population is deprived of necessary resources for survival, a war crime has been committed.

The risk that loss of power poses to the lives of civilians in winter should be obvious, particularly when the average highs in Kiev in December, January, and February are typically below freezing. The UN Human Rights Monitoring Mission in Ukraine has documented damage to the water supply, sewage system, and medical system stemming from this pattern of attacks on the power supply. A lack of water suffices to establish a violation of Article 54 §2.

Even more concerning is the fact that the Ukrainian power supply is heavily nuclearized, with about half of its power coming from its nuclear plants, at least pre-war. The volume of power generated in this manner, along with the attendant danger produced by having a nuclear reactor in a war zone, has produced sufficient concern. A team from the International Atomic Energy Agency (IAEA) has been sent to monitor and observe the conditions of the Zaporizhzhya Nuclear Power Plant, where they, as of January 2025, noticed a pattern of explosions outside of the plant. If the Zaporizhzhya plant were to go into meltdown, the worst-case scenario would likely result in a danger zone of 30-kilometers, poisoning the land, air, and water, placing human necessities in that region at risk and forcing an exodus. This includes the City of Nikopol, which lies directly across the Dnipro River and had a pre-invasion population of 105,624 people.  It would be extraordinarily difficult to calculate the potential cost to the life and health of the public, but de minimis, if only Nikopol were affected, it would suffice to support a violation of Article 54 of the Additional Protocol.

Per § 3(b) of Article 54 of the Additional Protocol, the likelihood that the Zaporizhzhya power plant may provide Ukrainian troops some amount of electricity, thereby offering a strategic pressure point, does not excuse an attack which “may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.” Given the damage to Ukrainian food and water infrastructure and the hard-won experience of both concerned states regarding the danger nuclear disaster poses to the public, it is likely that the Kremlin and the Russian military are cognizant of the grave risks posed by an attack on the Ukrainian power grid. The damage to the water supply, along with the risk that a nuclear disaster poses to the food supply, have the potential to inflict starvation or force movement. It would be difficult to argue that irradiated food or water are adequate for human consumption. While the radiological half-life of the elements of fallout that nuclear scientists are most concerned about tends to be rather short, the danger posed by surface water is likely to force the movement of the civilian population, as radioactivity in drinking water can cause increased tumor incidence, developmental abnormalities, and death.

Water, air, land necessary to grow food, and sufficient heating to avoid the risk of exposure are all necessities for human survival. The Russian Army has engaged in a pattern of activity which deprives the Ukrainian civilian population of these necessities, thereby violating the law of war.