During the course of the last week the nature of the Russian war against Ukraine changed qualitatively. This is no longer a conflict in which civilians and civilian infrastructure are, even arguably, incidental or accidental victims in a conventional war, as Russia has sought to claim. It is now a war against civilians. They are the targets, in apparent revenge for battlefield losses the Ukrainian army inflicted on Russia. And, in the case of newly liberated Kherson, subject to a sham annexation by Russia, a war against “its own” citizens.
The purpose of the missiles which rained down and at times left some 80 per cent of the country in the dark and without water, was explicitly to attack civilians and the electricity, power, water and housing that sustains them. Along with hospitals, schools, historical sites, dams and churches, these are ostensibly protected by the rules of war set out in the 1949 Geneva Conventions and endorsed by 196 states of the United Nations.
The shelling of nuclear power stations, requiring disconnections from the power grid as a precaution, is also almost certainly a breach of the first protocol to the conventions. These are acts of wanton irresponsibility which threaten not only Ukraine and its neighbours with catastrophic radioactive pollution, but Russia itself.
To this catalogue of newer war crimes must also be added the evidence unearthed from mass graves and freed territories of massacres, torture, mutilation, rape, looting and abductions of civilians that from the invasion’s day one have been the hallmarks of an undisciplined army of largely untrained troops and mercenaries.
With temperatures already dropping below zero in parts of Ukraine, after nine months of war, Ukrainians are now confronting new foes: darkness, cold, and taps running dry. But the remarkable speed with which targeted power and water are being restored, and the evidence already manifested of an indomitable spirit, suggest that Putin’s latest strategic turn to war against civilians is no more likely to break it.
Holding Russia to account legally, however, will be no easy matter. Its veto in the UN Security Council makes the widely-supported idea of establishing a special international tribunal on Ukraine under the auspices of the UN unlikely to materialise. Ukraine’s own courts have already successfully tried three low-ranked Russian prisoners but will not receive any co-operation from Russia in the 2,500 war crimes cases the country’s chief prosecutor says she is preparing.
The International Criminal Court, established to try war crimes and crimes against humanity, has sent team of investigators, lawyers and others to Ukraine to begin collecting evidence but, again, trials will prove difficult without Russian consent. It is not a party to the Rome Statute, the legal basis of the ICC. Impunity for this Security Council member is the order of the day.