Playing with fire: part II

When the end finally comes in the war that Russia launched a year ago against its neighbour Ukraine (and surely it will end, won’t it?), independent but aggressive international investigators must carefully address the matter of whether Russia committed war crimes in the form of its relentless attacks on Ukrainian infrastructure, particularly those related to electricity generation and water.

In the wake of the attacks, Western journalists have lauded the determination and grit of the Ukranian people. For example, The Economist reported ‘When there is no tap water at home, they melt snow. When there is no electricity, they find heat and light in cafes with diesel generators, or sleep in the offices where they work … . The horrors Mr Putin keeps inflicting on them do not seem to have dented their morale’.¹

However, despite the determination of the Ukranian people, the devastation has been very real. In a 2022 end-of-year report on the war, The New York Times described the situation as ‘Moscow’s debilitating attacks on [Ukranian] energy infrastructure that have caused widespread power outages as the country faces freezing winter temperatures’.²

In mid-2022, I wrote an editorial titled ‘Playing with fire: military attacks against a civilian nuclear power station’³ and assumed at that time that perhaps the war would be over not later than the end of 2022. Not only was I wrong about the end of the war, I harboured no clue in mid-2022 that the Russian onslaught would involve wholesale efforts to destroy Ukrainian infrastructure to terrorise the local population. But that is exactly what has happened.

Without identifying infrastructure attacks in particular, the Associated Press reported at the end of 2022 that ‘Ten months into Russia’s latest invasion of Ukraine, overwhelming evidence shows the Kremlin’s troops have waged total war, with disregard for international laws governing treatment of civilians and conduct on the battlefield’.⁴

Obviously not satisfied with disrupting operations at the Zaporizhzhia nuclear power plant, the primary focus of the earlier mentioned editorial, the Russian military worked overtime in the second half of 2022 to interrupt electricity and water services. The satisfaction that can be gleaned from harming civilians is beyond the comprehension of most people, but by the same token what Russian President Vladimir Putin is apparently trying to accomplish is revolting in a 21st-century European setting.

The full impact of Russian efforts was captured in the first paragraph of an article published in November 2022 by The Washington Post: ‘After just six weeks of intense bombing of energy infrastructure, Russia has battered Ukraine to the brink of a humanitarian disaster this winter as millions of people potentially face life-threatening conditions without electricity, heat or running water’.⁵

In early December Putin, with not the slightest suggestion of regret, admitted Russian targeting of civilian infrastructure and said, ‘There is a lot of noise right now about our strikes against the energy infrastructure of the neighboring country’, before adding ‘Yes, we are doing this. But who started it?’⁶ If by ‘it’ Putin was referring to the war, then his assertion was beyond belief. Is there anyone in the world who believes that Ukraine started this conflagration? On the other hand, if ‘it’ is referring to what may have been a Ukrainian attack on a prized Crimean Bridge that Putin dedicated in the mid-2010s, then one must ask whether the destruction of one bridge calls for the deliberate destruction of infrastructure systems that millions of Ukrainians depend on.

This vastly unproportionate response, however, is how Putin acts. (One wonders what Putin’s approach might be if his daughters, in addition to the nameless, faceless and apparently worthless lives of typical Russian soldiers, were on the front lines.) There are very real people suffering, people who have had absolutely nothing to do with fighting the Russian army and who are Ukrainians by birth no matter the rantings of the Kremlin leader.

What comes next?

Michael N Schmitt, a distinguished scholar at the United States Military Academy at West Point, has noted that infrastructure has long been considered a legitimate military target.⁷ However, Schmitt has also written:

Although there is no prohibition on striking power infrastructure as such in [international humanitarian law], only that which qualifies as a military objective is lawfully subject to attack. Almost certainly, some of the targets Russia is hitting do not. And even with respect to those targets that are military objectives, Russian forces are obligated to consider alternative weapons, tactics, and targets to achieve the desired effect if the alternative would result in less death, injury, or destruction for the civilian population.⁸

More investigation will be needed before any prosecutor will pursue this charge. However, concern about civil casualties has not been a hallmark of the Russian military.

Russian military attacks have generated significant concern at the United Nations (UN). On 23 November 2022, Rosemary DiCarlo, Under Secretary General for Political and Peace Building Affairs, speaking before the UN Security Council, said, ‘[A]ttacks targeting civilians and civilian infrastructure are prohibited under international humanitarian law. The United Nations strongly condemns these attacks and demands that the Russian Federation immediately cease these actions’, in addition to imploring that the international community ensure that Ukraine’s most vulnerable people are protected in the winter months ahead.⁹

Moreover, international advocacy groups are now voicing their concern. For example, Amnesty International (AI) has said that ‘Russian President Vladimir Putin, his government and the Russian armed forces are desperate to hide the truth about the war, including the possible war crimes they are committing in Ukraine’.¹⁰ As a result, AI ‘is documenting serious violations of international humanitarian and human rights law, including … destruction of infrastructure’.¹¹

The world’s leading legal membership organisation, the International Bar Association (IBA) [which publishes this journal], has taken a leadership position regarding the investigation of potential war crimes in Ukraine. In late 2022, the IBA and the Ukrainian Prosecutor General’s Office signed a memorandum of understanding ‘on cooperation to ensure accountability for war crimes and other international crimes’ committed in Ukraine.¹² Sternford Moyo, the IBA president, said, ‘The signing of this agreement formalises the IBA’s support for Ukraine in the administration of justice … .With guidance from the IBA’s Executive Director [Dr Mark Ellis], an expert in international criminal justice, the full support of the IBA is committed to [Prosecutor General Andriy Kostin] and his office’.¹³

Whether Putin and the Russian military machine are ever charged with war crimes is an open question. But for now, what does not seem to be in dispute is that war crimes are occurring in Ukraine. As Karim Khan, chief prosecutor for the International Criminal Court in The Hague, said recently, ‘Ukraine is a crime scene’.¹⁴

The Journal of Energy & Natural Resources Law in 2023

Last year represented the 40th anniversary of the journal’s establishment. It was a year of further growth in visibility and credibility. Submissions to the journal skyrocketed along with the strength of the submissions. Consequently, publishing in the journal has never been more competitive than it is today. This bodes well for authors who are published in the journal and for the journal itself. The editorial staff are committed to continue to build on these results with the aim of further enhancing the prestige of the journal.

Among the new efforts we will implement in 2023 include online publication of ‘collections of articles’, beginning with a collection related to the multitude of issues associated with lithium mining and production.

In addition, 2023 will mark the first full year of production of the ‘JERL Podcast Series’, which will feature interviews with some of the world’s most important energy experts. The podcast series, which can be accessed at <www.ibanet.org/JERL-podcast>, is a free service provided by the journal. We are looking for interesting topics to discuss as well as experts to interview, so please feel free to contact me if you have ideas for topics or people we should be featuring.

Notes

1 Leader, ‘Our Country of the Year for 2022 Can Only Be Ukraine’ The Economist (20 December 2022)

2 Andrew E Kramer, ‘Russian Missile Barrage Staggers Ukraine’s Air Defenses’ The New York Times (29 December 2022) <www.nytimes.com/2022/12/29/world/europe/russia-strikes-ukraine.html?searchResultPosition=1> accessed 3 January 2023

3 Don C Smith, ‘Playing with Fire: Military Attacks Against a Civilian Nuclear Power Station’, (2022) 40 Journal of Energy & Natural Resources Law 159 <www.tandfonline.com/doi/epdf/10.1080/02646811.2022.2057727> accessed 3 January 2023

4 Michael Biesecker and Erika Kinezt, ‘Evidence of Russian Crimes Mounts as War in Ukraine Drags On’, The Associated Press (30 December 2022) <https://apnews.com/article/russia-ukraine-war-crimes-government-international-criminal-court-a6edd7e6ed0de527b42a1790dccc33ea> accessed 3 January 2023

5 David L Stern, Emily Rauhala and Michael Birnbaum, ‘Ukrainian Energy Systems on Brink of Collapse after Weeks of Russian Bombing’ The Washington Post (23 November 2022) <www.washingtonpost.com/world/2022/11/23/ukraine-infrastructure-damage-electricity-water-russia/>

6 Francesca Ebel, ‘Putin Admits Attacks on Civilian Infrastructure, Asking: “Who Started It”’ The Washington Post (8 December 2022) <www.washingtonpost.com/world/2022/12/08/russia-attacks-ukraine-infrastructure-putin/> accessed 3 January 2023

7 Michael N Schmitt, ‘Ukraine Symposium – Attacking Power Infrastructure under International Humanitarian Law’ Articles of War (20 October 2022) <https://lieber.westpoint.edu/attacking-power-infrastructure-under-international-humanitarian-law/> accessed 3 January 2023

8 Ibid. Further discussion on this point can be found in Charles Dunlap, ‘Is Attacking the Electricity Infrastructure Used by Civilian Always a War Crime?’ Lawfire at Duke University (27 October 2022) <https://sites.duke.edu/lawfire/2022/10/27/is-attacking-the-electricity-infrastructure-used-by-civilians-always-a-war-crime/> accessed 3 January 2023

9 ‘Maintenance of Peace and Security in Ukraine’ (United Nations Security Council, 23 November 2022)

10 ‘Russia’s War on Ukraine’, Amnesty International <www.amnesty.org/en/latest/news/2022/03/latest-news-on-russias-war-on-ukraine/#evidenceofwarcrimes> accessed 3 January 2023

11 Ibid

12 ‘IBA and Officer of the Prosecutor General of Ukraine Announce Signing of Memorandum of Understanding’ (International Bar Association, 20 October 2022) <www.ibanet.org/IBA-and-Office-of-the-Prosecutor-General-of-Ukraine-announce-signing-of-Memorandum-of-Understanding> accessed 3 January 2023

13 Ibid

14 ‘Evidence of Russian War Crimes Mounts as Invasion of Ukraine Drags On’ Associated Press/PBS NewsHour (30 December 2022 <www.pbs.org/newshour/world/evidence-of-russian-war-crimes-mounts-as-invasion-of-ukraine-drags-on> accessed 3 January 2023