Acta Universitatis Lodziensis. Folia Iuridica, 106, 2024
https://doi.org/10.18778/0208-6069.106.02

Oleksandr Sotula^*

https://orcid.org/0000-0003-4633-4500

Mateusz Piątkowski^*

https://orcid.org/0000-0002-6918-2602

Air Warfare over Ukraine and International Humanitarian Law

Wojna powietrzna nad Ukrainą w świetle międzynarodowego prawa humanitarnego

1. OPENING REMARKS

The aerial campaign over Ukraine is governed by the laws of air warfare, which are applicable on the full spectrum during international armed conflict. Not all spheres of air warfare are regulated by treaty law. While the Additional Protocol I to the Geneva Conventions of 1977 (AP I) is applicable to air-to-ground operations (including bombardment), air-to-air encounters are regulated by customary law reflecting the AP I (Venturini 2021, 365). Many other rules of customary character are a reflection of the Hague Rules of Air Warfare of 1923 (e.g. the status of military aircraft) (Gestri 2006, 140). Despite the lack of a dedicated treaty concerning air warfare, the accepted standpoint of the de lege lata of what constitutes the law of air warfare is contained in manuals, namely the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, and, notably, the HPCR Manual on International Law Applicable to Air and Missile Warfare (Robertson 1998, 124).

It is essential that an important remark be made at the beginning of this article. So far, no international institutions, including the Organization for Security and Cooperation in Europe (OSCE), the International Criminal Court (ICC), and the United Nations’ (UN) inquiry commission, has had full access to the military records and targeting data of both Ukrainian and Russian armed forces. There is a strong indication and enough credible evidence to call the Russian Federation conduct during the aggressive war against Ukraine a systematic breach of international humanitarian law.^[1] However, this article refers to the potential violation of the “Law of the Hague” and the current shape of the international jurisprudence and doctrine discussion highlighting the significant difficulties in formulating categorical statements regarding the war crimes related to the indiscriminate bombardment.^[2] Three aspects need to be highlighted in this regard. Firstly, war crimes are committed only intentionally, and honest mistakes in the targeting process invalidate the required mens rea.^[3] Secondly, international humanitarian law only mitigates the calamities of the armed conflict, meaning that in specific circumstances some level of harm done to civilian population and civilian infrastructure might not be unlawful due to the proportionality rule (Bellar, Casey-Maslen 2022, 152–153). Thirdly, the review of the military operations, air bombardment included, needs to assess the situation from the ante factum perspective, not post factum as per the “Rendulic rule” (DeSon 2016, 116). While one cannot be deluded by the explanation commonly offered by the Russian military that every strike against objects, infrastructure, or buildings has military justification, the courts and prosecution authorities need to carefully examine the circumstances surrounding the attacks from the air, including the technical, intelligence, and battlefield data (Piątkowski 2021, 523–524).

2. ORDRE DE BATAILLE AND THE STATUS OF MILITARY AIRCRAFT

It has been estimated that on February 24^th, 2022, the Ukrainian Air Force possessed circa 20 Su-24s (bombers), 31 Su-25s (tactical bomber), 34 Su-27s (multi-role fighter), and 37 MiG-29s (fighter), which were inherited by Ukraine after the collapse of the USSR. The Ukrainian Air Force’s most precious assets were withdrawn from fighting in eastern Ukraine (2014–2015) and since then have been preserved for the protection the Ukrainian airspace in the central and western regions. The Russian Air Force potential includes over 300 fighters and multi-role planes (planes based on the Su-27 airframe family) and approximately 245 bomber aircraft. Russian aviation possesses different kinds of air armament in their inventory, and while many of them are considered to be precision-guided munitions, such as Kalibr (CEP 2–3 meters), Kh-59 (CEP 3 meters), or Kh-47 Kinzhal missiles (CEP 10 meters), Russian aircraft extensively use non-guided bombs, such as FAB-500 or FAB-1000, which are wide-blast radius aerial bombs.

Both parties generally adhered to the customary conditions required for a status of military aircraft.^[4] However, during the air assault against Hostomel on February 24^th, 2022, one of the downed Russian helicopters Ka-52 bore no Russian military markings.^[5] On another occasion, Russian attack Su-25 aircraft had their markings covered by the letter “Z” – a tactical identification of the Russian forces during the aggression against Ukraine.^[6] On the other hand, the ex-Slovakian MiG-29 was delivered to the Ukrainian Air Forces flown through the border with removed national markings of Slovakia and without any corresponding markings of the Ukrainian armed forces.^[7] These incidents are isolated; however, flying in unmarked (or in improperly marked) aircraft creates a significant operational risk for the crew, as markings are “sufficient indication of combatant status” and, therefore, a violation of customary rule of international law implying the responsibility of a state (HPCR 2009, 317). The practice of the belligerent to mark the military aircraft has also been reported in the context of unmanned aircraft, although it is not clear why some small UAVs are not marked, while the significantly larger UAVs (e.g. Orion or Bayraktar) bear the emblems of the Ukrainian and Russian air forces. Under the definition of military aircraft, such a distinction had no justification behind it (small and large UAVs are aircraft in legal terms); however, it is possible to assume that a rise of the “possible emerging interpretation of existing rule” may be observed, formulating another deviation from the customary rule to mark military aircraft (Piątkowski 2022).

3. THE BEGINNING OF THE HOSTILITIES

The ominous sign of the incoming invasion was the NOTAM (Notice to Airmen) issued by the Russian civil aviation authorities in the early hours of February 24^th, 2022, closing the airspace for civilian traffic in the southern section of Russia, citing “special activities airspace.” Immediately, the same NOTAM was issued by the Ukrainian authorities, which ceased all the commercial activities above Ukraine.^[8] The closure of the airspace in the area of air operations was successful and could be used as a template for the eventual future armed conflicts. The belligerents are especially obliged to abstain from harming the commercial, civilian aviation (despite the fact that AP I to the Geneva Convention of 1977 does not refer to air-to-air operations, under customary law its provisions are equally applicable in air-to-air encounters) (Schmitt 2014, 124; Grzebyk 2018, 168). The Ukraine experience is based on a bitter consequence stemming from the Malaysia Airlines MH-17 tragedy over eastern Ukraine on July 17^th, 2014. There have been some ongoing discussions as to whether the Ukrainian civilian aviation authority’s failure to close the airspace over Donbass (the airspace was closed only partially) and the area of hostilities between the Russian-backed forces of so-called Donetsk and Lugansk territorial entities contributed to the destruction of the Malaysian aircraft.

The air belligerent operations started as soon as the FORTE12, the USAF Global Hawk, left the Ukrainian air space on 4:15–4:30 A.M. CET February 24^th, 2022. The reports indicated that the Russian special operations activities and the first border crossing occurred even earlier (between 1:00 A.M.–3:00 P.M.). The air operations in Ukraine started with the opening salvo of the Russian Air Force and missiles: cruise missiles “Kalibr” and ballistic missiles “Iskander” (Popmer, Tuganov 2023, 73–76). The first Russian strikes were conducted against the bases of the Ukrainian aviation: the Ozerne Air Base, the Ivano-Frankovsk Air Base (MiG-29),^[9] the Khemelnitsky Air Base, the Lutsk Air Base, the Melitopol Air Base, the Myklaiv Air Base (Su-25), the Myrhord Air Base (Su-27), the Starokonstaintyniv Air Base (Su-24), the Vasylkiv Air Base (MiG-29). Some of those attacks destroyed Ukrainian military aircraft (such as Su-27 on the Ozerne Air Base^[10]), but overall inflicted moderate damage to the airport infrastructures. Some of the destroyed Ukrainian aircraft were already obsolete and in reserve due to their lack of air-worthiness. The majority of the opening attacks were directed against the radar installations and the anti-aircraft positions. Nevertheless, the main bulk of the Ukrainian air defence, including the S-300 surface-to-air missile (SAM), survived the initial attacks and alongside Ukrainian fighters successfully defended the Kiev airspace during the first phase of the war. On February 24^th, 2022, the Russian Air Force was involved in multiple dogfights against the Ukrainian Air Force fighter fleet consisting of Su-27s and MiG-29s. Despite the attacks directed against the air force infrastructure, most of the Ukrainian Air Force assets survived the initial wave of missile and air strikes (Bronk, Reynolds, Watling 2022, 14).

As observed by the co-author of this article, many interesting conclusions may be drawn relating to the fate of the Kherson-Chornobaivka Air Base, home to the 11^th Separate Army Aviation Regiment. Two facts are important. Firstly, the Chornobaivka Air Base is, in fact, part of the Kherson International Airport, an airport which operates regular commercial flights to Kiev. Secondly, most of the precious assets of the 11^th Separate Army Aviation Regiment had been relocated before the initial Russian strikes. Only the helicopters that were obsolete and unworthy to fly were left.^[11] Here the legal question arises: can obsolete, damaged or non-airworthy military aircraft be targeted? This requires an in-depth analysis of the military objective definition as provided by the art. 52(2) of the AP I (Marcinko 2019, 404). Two elements constitute what could be targeted during the hostilities: “nature, location, purpose or use” of the objective effectively contributing to military action and the existence of the ‘definite military advantage’ emanating from destruction, capture or neutralisation” (Mauri 2022, 144). Military aircraft are natural military objectives (“by nature”) (Oeter 2013, 171). However, if one considers that the targeted air assets of the Ukrainian Air Forces parked on the airstrips across Ukraine were obsolete, damaged, or in bad technical condition, it seems problematic to accept that those aircraft “were contributing to military action” and had real military value at the time of the attack. On the other hand, in the context of a long-term air campaign, even the obsolete airframe has a potential to be refurbished. This piece of deliberation will be expanded in detail in the paragraph concerning the An-225.

4. FIRST STRIKES AND THEIR COMPLIANCE WITH IHL

Despite the forecasts, the Russian initial strikes were quite limited in scope and range. Their goal was, rather, to create the impression of overwhelming advantage over Ukrainian Air Forces, but, in fact, the strikes did not significantly degrade the abilities of the Ukrainian forces. Since 1939, every major military conflict has been initiated through air strikes against the enemy’s air force’s infrastructure (Cooling 1994). The list of the strikes during the initial phase of almost every initial air operation is the same: military airfields, air assets, radar sites, and air defence systems. The neutralisation of such objectives is a precondition to victory, as air superiority efficiently lends support to the ground or naval operations. Clearly, military aircraft, air forces bases or air strips, anti-aircraft installations, and radar sites are lawful military objectives under art. 52(2) of the AP I. It is generally understood that the Russian Air Forces failed to achieve this goal, as the first strikes did not degrade the capabilities of either Ukrainian air forces and anti-aircraft defence (Gordon 2023).

The interesting case is the question of international airports as lawful military targets. In 2003, it was criticised that the Coalition planes commenced an air attack against the Baghdad International Airport, as it was unjustified under the “assumption of its potential value for Iraqi military aviation: as it was impossible for this force to use military airfields” and under the denial of escape of the Iraqi leadership (Bartolini 2006, 239). Most of the known publications on this subject highlight that airfields are by nature lawful military targets. However, Y. Dinstein only relates it to “military airfields” (Dinstein, 2002, 147). Van Boogaard underlines that purely civilian airfields are targetable only if there is credible intelligence indicating that the military is intending to use such a facility, especially after the military airstrip was hit (Van Boogaard 2023, 164). But there is another possibility. It must be emphasised that in many cases, air bases are located close to international airports. In such circumstances, the air base uses the same sets of taxiways and highways as the airport uses for commercial operations, which is a pure example of a dual-use facility. The example of such an airport is the Kherson International Airport, which is also home to the Ukrainian Air Force detachment. While usually the buildings and objects of a military air base are clearly separated from the buildings of commercial aviation, the runway and the taxiways are used both for combat aviation and civil aircraft. Under Art. 52(2) of the AP I, only military airfields are military objectives by “nature”, while the civilian airport classification depends on the actual “use” or “purpose” of the facility. If the taxiways, runways, repair shops, fuel supply stations are used or are intended to be used for military purposes, they become a lawful military objective (Dahl 2016, 10). W.H. Parks highlighted that airports are potentially very useful in accommodating military aircraft, and thus “an airport is a legitimate target if it meets the definitional test for a military objective, even if also employed for civilian use” (Parks 2007, 105). More ambiguous is the status of the main building of a commercial airport: usually such infrastructure is not used by the military. Unless the building changes its purpose (becomes a staging point for troops, area of military concentration), it should be immune to attacks, and damage to it should be avoided. Of course, the corresponding location of the objective is also important: if the terminal is located so close to the military infrastructure that it is unable to physically be spared, it will become unavoidable collateral damage, subject to estimation during the assessment of the proportionality rule. G. Solis interestingly observed that the civilian airports which share their infrastructure with an air force base are military objectives by “location”, and the whole area is subject to lawful attack during conflict (Solis 2010, 525).

5. THE HOSTOMEL AIRFIELD AND AN-225

The Hostomel airfield is home to the Antonov company, a Ukrainian-state owned air manufacturer, famous for building large cargo planes (Miller 2023, 265). The airport was not host to any elements of the Ukrainian Air Force. However, it is believed that due to close proximity of the airport to the Ukrainian capital Kiev and its long runways, the Hostomel airfield was labelled a strategic target for the Russian armed forces. The initial plan was to seize the airfield through air assault of the VDV units (Russian Air Assault), which was actually successful at first: the Russian paratroopers captured the airport without significant resistance from the Ukrainian military, aiming to establish an airlift in order to bring reinforcements and quickly redeploy towards the Ukrainian capital. The “decapitation strike” against the Ukrainian leadership failed, as the Ukrainian reserves responded and contained the first wave of attackers, denying access to the runway (Collins, Kofman, Spencer 2023).^[12] The first battle of Hostomel was over; however, the battle reignited while the VDV units linked up with the incoming forces of Russian ground troops marching from Belarus.

At the time of the VDV assault, the biggest transportation plane in the world – Antonov An-225 – was parked in the hangar, as the aircraft was considered non-operational due to ongoing repairs. After the failed operation of February 24^th, 2022, the area of the airport became a place of contested battlefield, as the Russians were trying to establish a forward operating base at the Hostomel Airport, while the Ukrainian forces fiercely resisted. It is believed that during those clashes, the hangar containing the An-225 was hit and the plane was destroyed. It is unknown which party to the conflict was responsible for the destruction, as the airport zone was a area of heavy fighting. The destruction occurred after February 24^th, 2022.^[13]

The destruction of the aircraft raises questions concerning the legality of the act. The An-225 was not a military aircraft but a cargo one, owned and operated by a private company. The main feature of the plane was the unprecedented capabilities of heavy lifting. On the other hand, the An-225 could be quickly utilised for military purposes such as troop transportation, vehicle shipment or supply missions, and in the past the aircraft was involved in such activities (e.g. the delivery of the Iron Dome equipment for Israel air defence in August 2020).^[14] The definition of the military objective requires that objectives by “nature”, “location”, “use” or “purpose” must provide a “contribution” to military activity and their neutralisation (destruction) need to offer a “definitive military advantage.” The practice of the states signals that labelling a military objective by nature classifies it immediately as a lawful military objective (ILA 2017, 329).^[15] However, as it was already highlighted, obsolete tanks, airplanes or other military equipment located in junk yards or as a historic display do not “contribute to the military activity” at all, and their destruction is unlawful (Crawford, Pert 2020, 170). As we said, the An-225 was not a military objective by “nature” but, rather, the potential ability of the aircraft to lift heavy military hardware classifies the An-225 as a military objective by “purpose.” Yet, one cannot forget that the An-225 during the whole duration of the battle of Hostomel (until the feral day of destruction) was immobilised due to a technical malfunction (the aircraft was awaiting an engine swap).^[16] We could accept that the An-225 was a military target by “purpose”, although we are not convinced whether the aircraft at the time of the attack contributed to the military activity. In our opinion, what needs to be also considered is that the plane was located in a area of fighting, and the ability to perform maintenance works or even fly from Hostomel was extraordinarily limited due to constant shelling of the runways. In fact, the Hostomel Airport, during the whole period of the Russian presence in the Kiev region since February 24^th, 2022, was excluded from its primary function, so any aerial asset located within limits was virtually immobilised. This is also relevant in the light of the possibility that the aircraft was destroyed either by the Ukrainian or Russian military.

However, if we accept that the Ukrainian military bears responsibility for the attack, there is another possibility to justify the destruction of the aircraft. As it was highlighted multiple times above, the Hostomel Airport became an area of fierce combat, as the Ukrainian forces clashed with Russian paratroopers in a high-intensity battle for control over the airstrip. The stakes of the fighting were very high, especially given the strategic value of Hostomel in the Russian advance towards Kiev. Art. 52(2) indicates that “location” might be a precondition to classify a certain object or land/area as a military objective. This, however, cannot be understood as a blanket authorisation of the “area bombing” style operations, which are explicitly prohibited under art. 51(5)(a) of the AP I (ILA 2017, 8). The classical requirements of precaution and proportionality are applicable in the case of such an event, but it cannot be overlooked that the value of the area, the density of the combat operations, and the large number of military objectives by nature (combatants, armoured vehicles) made the Hostomel area a high value target itself.

6. ATTACKS AGAINST TV STATIONS

Russian aviation additionally targeted the TV tower stations in Kiev (March 1^st, 2022) and Kharkiv (March 6^th, 2022). In the context of TV stations attacks, there has been a historically extensive IHL discussion since the famous NATO strike against the RVS station in Belgrade, Serbia, in 1999. The case itself gave rise to the famous ECtHR ruling Bankovic, in which the ECtHR ruled against the exterritorial applicability of the ECHR in cases of aerial operations. However, the IHL perspective on attacking the broadcast stations and TV towers was analysed in detail by the ad hoc expert panel established under the auspices of the Office of the Prosecutor of the International Criminal Tribunal for Former Yugoslavia (ICTY).^[17] Article 8(1)(a) of the Hague Convention for Protection of Cultural Property in the Event of Armed Conflict lists a “broadcasting station” as a military objective.^[18] In 1956, the ICRC proposal “Draft Rules for the Limitation of Dangers incurred by the Civilian Population in Time of War” contained an annex which labelled TV/radio tower stations as a lawful military objective due to their “military importance” (Sassoli, Cameron 2006, 40). However, those facilities are no longer “considered as military objectives by nature” (although some NATO commanders in 1999 considered that the media as a propaganda tool is a legitimate target) (Dinstein, Dahl 2020, 72; Sassoli 2003, 4). It is believed that the “use” of those objectives will have the priority in assessing the legality of the attacks directed against it.

In the conditions of modern society, TV stations potentially fall into the category of “dual-use” objects, with both military and civilian applications.^[19] Moreover, TV/radio stations are also used for expanding and enhancing the circular connection, which was widely used for tactical intelligence, especially in the early period of the conflict, even by non-combatants. This dilemma does not address the question of whether the end-users of the circular connection directly participate in hostilities, although, as K. Macak mentions, such a possibility cannot be excluded (Macak 2023, 978). In fact, the possibility of relaying the data of military character by 5G or the LTE devices would render this type of infrastructure a lawful military objective. In the law of air warfare, it is widely understood that every enemy aircraft could potentially be classified as a military objective if it is “being incorporated into or assisting the enemy’s intelligence gathering system, e.g., engaging in reconnaissance, early warning, surveillance or command, control and communications missions” (HPCR 2009, 14). In consequence, when serving as a platform or in passing the information of military character, the TV tower is subject to attack (OSCE, 2022, 27; ICTY, para. 79).

On March 3^rd, 2023, the Ukrainian court sentenced a Russian pilot who had bombed the Kharkiv TV tower using 8 FAB-500 bombs to 12 years. The defendant was found guilty of violations of laws and customs under the Ukrainian criminal code. The authors of the article have no further knowledge or data concerning the details of the case, although the indictment could be based on controversial grounds for the reasons mentioned above.

7. ATTACKS AGAINST URBAN AREAS AND THE USE OF THE UNGUIDED WEAPONS AND WIDE-BLAST RADIUS WEAPONS

When the Russian offensive stalled due to the stiff Ukrainian resistance, the urban areas became an area of intense fighting and shelling. The most affected regions were the area of Kharkiv, numerous towns in the Kiev region, as well the Chernigov and Sumy regions. A full siege had been established around the city of Mariupol. During those battles, the Russian military extensively used close air support aircraft. One of the most shocking incidents was the bombardment of the Dramatic Theatre in Mariupol on March 16^th, 2022, and the air strike against maternity hospital on March 9^th, 2022. The Russian military offered mixed justification for the bombings: from “staged” Ukrainian false flag operations to claims that the attack was directed against a lawful military objective. Neither of those reasons seems to be reasonable, which is even more apparent in the context of the attack against the Dramatic Theatre in Mariupol, an isolated building in the city centre (Polygraph.info 2022). The attacks were most likely conducted deliberately, making them an example of intentional bombardment of civilian objects, which is a flagrant violation of the principle of distinction and a war crime. Many videos and photographs from March–April 2022 recorded in various places in Ukraine show the extensive damage to the residential areas due to the use of heavy aerial bombs of unguided character.^[20] This evidence is substantial enough to question whether the Russian aviation targeted the military objectives in the first place, not to mention the proportionality rule and necessity to exercise due care in air operations, according to the precaution’s principle (OHCHR 2022).^[21] According to N. Hayashi, failure to verify the accuracy of the targeting data is a contravention of the reasonable commander standard formulated in the “Rendulic rule”.^[22] While one cannot simply assess the legality of the attack based solely only on the post factum perspective, there is enough room to doubt the justification provided by the Russian military.

Despite the notable campaign led by the ICRC to at least mitigate the use of wide-area explosives in urban areas, international humanitarian law as it stands does not prohibit either the use of the heavy aerial bombs or unguided missiles and bombs (ICRC 2022). In the past, there was an intense academic discussion about to what extent the customary law required the use of precision-guided munition, but with a rather negative conclusion due to the unclear opinio iuris of the states (Piątkowski 2021, 612). Moreover, the Russian-Ukrainian war highlighted the inadequacies and limitations of the arms inventory: in high intensity conflict of symmetric character, there is a significant risk of depleting the reserves of precision weaponry and it is likely that the states in emergency will turn to unguided solutions in this regard. However, it cannot be denied that the tactic involving the use of unguided weapons with great consequences in most cases will be tantamount to carrying out prohibited indiscriminate attacks. The use of the wide-area aerial bombs in urban areas could be described as the following: the greater the payload, the greater the level of care that should be exercised in planning and executing an attack against a military objective (Brehm 2012, 139).^[23] The authors of the article do not mean to imply that in all circumstances such a tactic would be unlawful (modern aircraft are equipped with ballistic computers such as CCRP – Continuously Computed Release Point). Nevertheless, it is very difficult to imagine that the aerial bombardment of infantry units or armoured vehicles in densely-populated residential areas, conducted unguided and with heavy aerial bombs would be accurate enough not to be labelled as indiscriminate and contained enough not to be described as disproportionate (ICRC 2022, 84).^[24] The International Institute of Humanitarian Law in its Rules of Engagement Handbook pointed out in rule 100C that model ROE (Rules of Engagement) in the context of the air operations in urban areas should not involve the use of non-precision guided weapons.^[25] The associated risk of wide-blast heavy aerial bombs such as FAB-500 in many circumstances cannot be counterweighted by the “direct military advantage.” The authors agree with the OSCE’s report findings that in many circumstances the Russian aerial command acted in total disregard of the principle of precaution (which itself is not a war crime) (OSCE 2022, 41).^[26]

On some occasions, the aircraft of both sides (Russian and Ukrainian) performed attacks using the ballistics of unguided missiles to imitate the “aerial” version of the rocket land artillery. The characteristic element is the extraordinary short targeting time, down to a few seconds, due to the danger arising from the anti-aerial systems, e.g. SAM or MANPADS. Such blind bombardment conducted against military objectives in urban areas would be labelled as an indiscriminate method, as it is virtually impossible for the crew to make the necessary target assessment.^[27]

8. ATTACKS ON UKRAINE’S ENERGY INFRASTRUCTURE

One of the strategic directions of the Russian military aggression has been air strikes against civilian energy infrastructure in Ukraine. By September–October 2022, due to the inability to show military results at the front, the military and political leadership of the Russian Federation came to the conclusion that it was necessary to cause significant damage to the Ukrainian civilian infrastructure. The purpose of the air strikes was to weaken the economy of Ukraine as well as to terrorise the Ukrainian population, which, according to the Russian rulers, as a result of the energy collapse, should have protested against the Ukrainian leadership.

The chronology of events is as follows. Following the significant success of the Ukrainian Armed Forces in the Kharkiv and Kherson regions, the Russian armed forces began launching numerous attacks on the Ukrainian energy infrastructure. In September, the second largest thermal power plant in the country, Kharkiv CHPP-5 (Ritter, Arhirova 2022), as well as the South Ukrainian Nuclear Power Plant in the Mykolaiv region were attacked (Clinton 2022). In October, the number of attacks increased significantly. Nine waves (at least) of large-scale air strikes were aimed specifically at the energy infrastructure of Ukraine (The Economist 2022). Each such wave consisted of 70–100 missiles of various classes (including cruise missiles) or drones, which were fired over several hours. By the end of November, about 40% of Ukraine’s energy infrastructure was significantly damaged (President of Ukraine 2022). According to Ukrainian authorities, not a single thermal or hydroelectric power station in the country remained undamaged (Gibbons-Neff, Santora 2022). Russian air strikes have caused widespread blackouts of electricity, water, and heating, which are especially dangerous for the population in winter conditions. As a consequence, access to sanitation, food, health care, and education was limited.^[28] These attacks affected millions of people, and hundreds of civilians were killed and injured as a result of Russian air attacks on infrastructure.

On December 8^th, 2022, the President of the Russian Federation, Vladimir Putin, publicly stated that numerous attacks deliberately targeted Ukraine’s energy infrastructure. In his words, “At the proposal of the Ministry of Defence and in accordance with the plan of the Russian General Staff, a massive strike was launched with high-precision long-range weapons from the air, sea and land against Ukrainian energy, military and communication facilities” (Haltiwanger 2022). On December 10^th, the Russian military, using kamikaze drones, launched an air strike on the Odessa power grid, leaving one and a half million people without electricity for an extended period (Starkov 2022).

The United Nations’ independent International Commission of Inquiry into abuses in Ukraine has identified four types of weapons whose use in populated areas has led to indiscriminate attacks. These are unguided bombs dropped from aircraft; long-range anti-ship missiles of the Kh-22 or Kh-32 type, which turn out to be inaccurate when hitting ground targets; cluster munitions, which by definition disperse small submunitions over a large area; and multiple launch rocket systems that cover a wide area with unguided missiles.^[29] Based on the above facts, the International Commission found that attacks on energy infrastructure since October 10^th, 2022, have been widespread and systematic. Their goal was to disable the entire country’s energy system, with expected consequences for the heating system. International humanitarian law expressly prohibits damage to and destruction of objects essential to the survival of a civilian population “with the express purpose of depriving them of their means of subsistence.” It should also be accepted by the Commission’s findings that these attacks by Russian armed forces were disproportionate and that they constituted a war crime of excessive incidental death, injury, or damage (AP I, Articles 51(4)-(5), 57(2)(a)(iii)-(b) (prohibition of indiscriminate attacks), and 85(3)(b)-(5) (war crime of causing excessive accidental death, injury, or damage). The attacks were widespread and systematic, and may constitute a crime against humanity or other inhumane acts.

Commenting on the findings of the Commission, it must be underlined that in the past, the energy grid of the adversary was a target in previous aerial campaigns. During World War II, the Allied aviation bombarded the Third Reich power stations (especially during Operation Chastise), but it was not labelled as a priority target. After 1945, it became standard to consider the energy system of the enemy an objective in order to halt the arms production and shut the flow of power to increasingly energy-dependent sophisticated weapons systems. At some point, the civilian usage of the energy vastly surpassed the military applications, and with the progress of civilisation, modern societies are energy dependent on an unprecedented scale. Targeting power plants began to create widespread and severe consequences for the civilian population, even if the subsequent effects were clearly tangible in terms of military advantage, as the energy flow to command centres, SAM sites, or radar placements was interrupted or shut down. The best example is Iraq in 1991, when the destruction of the Iraqi power grid gave a clear advantage to the Coalition forces, while causing a humanitarian crisis. During the NATO bombardment of Serbia in 1999, NATO targeted the Serbian power plants and substations; however, they focused on temporary interruption of their operations by deploying the graphite bombs rather than on physical elimination (Lambeth 2001, 42). Power plants operating exclusively for civilian purposes are not a military objective. The elements of the power grid operating both for military and civilian purposes are “dual-use” targets, which are subject to the examinations and assessments and the proportionality rule (Byron 2010, 183). In Ukraine, power plants not only deliver electricity to households, but also heat. As pointed out by M. Schmitt, the denial of heat exposes civilian population to sickness, which is an essential part of civilian harm to be comprehended as required by Article 51(5)(b) of AP I.^[30] Moreover, the principle of precautions asks commanders to use the means and methods of attack eliminating or minimising the risks to the civilian population; under this logic, the attacks should focus on targeting substations or power lines rather than the energy production centres (e.g. power plants).

On 5 March 2024, the Pre-Trial Chamber II of the ICC at the request of the Prosecutor issued two arrest warrant^[31] for commander of the long-range aviation of the Russian Air Forces and the chief of the Black Fleet for attacks against Ukrainian power grid in winter 2022. After analyzing the data submitted by the Prosecutor, ICC found that those strikes were either directed against civilian objects or have clearly excessive disproportionary effects. However, whether the case would be examined by the ICC in trial depends on the availability of the suspects (Article 63 of the ICC Statute bars trials in abstentia).

9. THE UKRAINIAN AIR FORCE’S ACTIVITIES

In the first weeks of the conflict, the Ukrainian Air Forces were acting in defence operations, especially defensive counterair activities aimed to deny the Russian Air Force the opportunity to regain air superiority over Ukraine. During the second stage of the conflict, the Ukrainian close support aircraft, especially Su-25s, were involved in separate combat missions (Trendafilovski 2022). Many of those missions were carried out in low altitudes, facing significant presence of the Russian air defence assets and aircraft, and forcing the crews to lower the accuracy of the bombardment (see the “blind bombardment” aspect highlighted above). Due to the limited strike capabilities, the Ukrainian Air Forces performed a small number of strategic sorties, although the situation changed with the delivery of the Storm Shadow and SCALP missile from the West, which are believed to be responsible for inflicting significant damage to the Russian military infrastructure in the Crimea peninsula (Axe 2023). The targets such as the Command of the Black Fleet and Black Fleet warships are lawful military targets.

10. CONCLUSIONS

International humanitarian law defines the rules governing the conduct of parties to a conflict in order to protect civilians and reduce suffering during hostilities. It also establishes restrictions and prohibitions on the use of certain weapons and tactics. Air warfare is a form of military operations that involves the use of air power to achieve military goals. This may include bombing, air support, reconnaissance, and other airborne activities. Humanitarian law also applies to military action in the air to protect civilians and minimise suffering. For example, it sets rules for the use of air attacks to avoid disproportionate damage to civilian objects and civilian casualties.

The initial Russian airstrikes were directed, at large, against military objectives. However, according to the authors, the legal status of some Ukrainian Air Force aircraft attacked by the Russian Air Force and standing on runways throughout Ukraine is problematic. At the time of the attack, they were obsolete, damaged, or in poor technical condition, and it seems difficult to accept that these aircraft “contributed to combat” and had real military value. The same applies to the status of the An-225 “Mriya” aircraft destroyed at the Gostomel wirfield. However, we cannot deny that in prolonged conflict, even obsolote and damaged airframes have some military potential (through the refurbishment).

As the war progressed, the application of air power by the Russian Air Force became much more brutal. The experience and analysis of the course of later stages of Russian aggression in 2022–2023 have shown that the conduct of the Russian Federation Air Forces in many cases, with great likelihood, contravene the requirement of the law of air warfare, especially the law of the air bombardment. Active search and verification of information about the status of the target and incidental damage to the civilian population are an integral part of the precautionary measures provided for by international legal acts. Omission of such actions could render the act of air bombardment illegal due to the violation of the distinction principle or proportionality rule (for example, when using heavy, high-power bombs such as the FAB-500 in urban areas without any necessary due process in targeting). However, any firm conclusions are impossible to be formulated, without full knowledge of the circumstances surrounding individual decisions (ante factum) behind the attacks.

In October 2022, due to the inability to show combat results at the front, the military and political leadership of Russia concluded that it was necessary to inflict significant damage to the Ukrainian civilian energy system through air and missile strikes. The purpose of those actions likely violates the principle of military necessity, as the widespread attacks against the Ukrainian power grid served an abstract and dubious political goal (undermining the morale of the Ukrainian population) rather than fostering a concrete and specific military advantage.

It is inevitable that the authorities prosecuting for war crimes in the context of the “Law of the Hague”, both at the international and national levels, will face a large spectrum of legal dilemmas, involving the necessity to overcome the challenges arising from ambiguities in the practical applications of the principle of distinction, precaution, and proportionality rule in the context of aerial operations occurring in symmetric and full-scale conflicts.

^* Oleksandr Sotula, Kherson State University, sotula64@gmail.com

^* Mateusz Piątkowski, University of Lodz, mateusz.piatkowski@wpia.uni.lodz.pl

© by the author, licensee University of Lodz – Lodz University Press, Lodz, Poland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution license CC-BY-NC-ND 4.0 (https://creativecommons.org/licenses/by-nc-nd/4.0/)
Received: 29.10.2023. Verified: 7.11.2023. Revised: 8.11.2023. Accepted: 17.11.2023.