In a conversation with Scott Douglas Jacobsen, Ukrainian lawyer Daryna Pidhorna examines the legal consequences of Russian attacks on Ukraine’s cultural heritage, the distinction between deliberate strikes and incidental damage, and the obligations imposed by international humanitarian law. She discusses the protection of UNESCO World Heritage sites, the challenges of prosecuting wartime destruction, and the role of customary international law in addressing violations in occupied Crimea. Their conversation also confronts a difficult question: how Ukrainians and Russians might eventually coexist after the war.

Daryna Pidhorna is a Ukrainian lawyer and analyst at the Raphael Lemkin Society, specializing in cultural heritage protection during armed conflict, international humanitarian law, and international criminal law. Previously a senior lawyer at the Regional Center for Human Rights, she researches accountability, cultural destruction, historical memory, and transitional justice in Ukraine.

This interview has been edited for length and clarity.

Scott Douglas Jacobsen: Several significant religious and cultural sites in Kyiv have suffered damage, including Kyiv-Pechersk Lavra and Saint Sophia Cathedral. Other churches and historic buildings have also been affected. How should we understand these attacks under international humanitarian law, particularly when military or security installations are located nearby?

Daryna Pidhorna: If we are talking about Saint Sophia Cathedral and the Academy of Sciences, we need to consider them as two separate cases. The attacks occurred on different days and under different circumstances.

I regard the attack on the Academy as a war crime. It is located in a densely populated part of Kyiv, and the strike occurred during working hours. My organization’s office is just across the street, near a large business center. I was nearby when the Academy was struck, and everything was shaking. It was awful to experience, although everything happened very quickly.

Saint Sophia Cathedral presents additional legal questions because the main office of the Security Service of Ukraine, where senior officials work, is located nearby. Depending on its use, that building could qualify as a military objective. However, that would not make the cathedral itself a military objective.

We must consider Saint Sophia Cathedral’s status as a UNESCO World Heritage site. The international community recognizes it as an important part of humanity’s historical and cultural heritage, as well as the heritage of a particular people. The proximity of a security installation does not automatically make the cathedral a legitimate target.

World Heritage properties also have buffer zones designed to protect their surroundings. Historians, architects, and cultural specialists establish these boundaries from a conservation perspective. They consider the architectural setting, views of the cathedral from different directions, the surrounding landscape, and other important features. These boundaries vary depending on the property and its environment.

However, being located within a World Heritage buffer zone does not automatically give every building the same protection as the designated property. A building’s own historical significance must also be considered. The location and heritage status of the Security Service building must therefore be assessed alongside its actual military use.

On one hand, we have the legal obligation to protect cultural heritage. On the other, an attack against a genuine military objective might offer Russia a military advantage because of the activities conducted there.

Still, membership in the Security Service does not, by itself, determine whether an individual can lawfully be targeted. That depends on the person’s role and conduct.

Any attack must be assessed under international humanitarian law, including the protections afforded to cultural property, the principle of proportionality, and the obligation to take precautions. An attack is not automatically lawful simply because a senior security official might be present.

We also need to consider the surrounding buildings and the people who might be inside them. Is there another feasible way to conduct the attack without causing so much destruction?

This is a heavily visited area of Kyiv, with many civilians on the streets. A daytime strike creates obvious risks for the surrounding population and nearby cultural sites. Even when the intended target is a legitimate military objective, an attack can cause substantial civilian harm.

A tribunal would need to determine whether an attack conducted under those circumstances complied with international law. There might be another time or another feasible means of attacking a military objective that would pose less danger to civilians.

The attacker must take feasible precautions and evaluate whether the anticipated incidental civilian harm would be excessive in relation to the concrete and direct military advantage expected.

The presence of civilians does not automatically prohibit every attack against a military objective. Nevertheless, the number of civilians, the timing of the attack, and its foreseeable consequences must all be considered.

Jacobsen: That raises an important distinction in international humanitarian law: every civilian death is a tragedy, but not every civilian death constitutes a war crime. The same distinction presumably applies to cultural heritage. Some buildings are struck directly, while others are damaged by blast waves, falling debris, or fires spreading from nearby missile and drone strikes. How does international law distinguish between deliberate attacks and incidental damage?

Pidhorna: Yes, that distinction is important. We are talking about incidental or collateral damage, as you mentioned, when a drone falls nearby or a fire spreads to another building.

It is still damage, but damage alone does not establish that a war crime has occurred. At the same time, incidental damage is not automatically lawful. We must examine the intended target, the expected consequences, proportionality, and the precautions taken before the attack.

We have documented many incidents in Ukraine in which falling drones, missiles, or blast waves have damaged surrounding structures, including historic buildings. Such damage must be considered as part of the broader incident and its investigation.

It does not automatically constitute a separate war crime for every building damaged. However, we cannot dismiss it as acceptable simply because the damage was indirect.

Intentionally directing an attack against protected cultural property that is not a military objective constitutes a war crime. When a historic building stands in an isolated location, with no apparent military objective nearby, that becomes relevant evidence when assessing the circumstances of an attack.

This is why I regard the attack on the Skovoroda Museum as intentional. The museum is situated in a rural setting, surrounded by parkland, with no military objective nearby that I am aware of. Nevertheless, Russian forces struck it with a missile.

The attack occurred at night rather than during the day, when more people might have been present. But the building was still struck.

In my assessment, the available evidence points to an intentional attack. That assessment is based on the museum’s location, the factual circumstances surrounding the strike, and public communications from the Russian side, including its explanations of what happened.

Taken together, those elements support an argument that the attack constituted a war crime, specifically an intentional strike against a protected cultural building.

We must also consider that Russian weapons do not always strike their intended targets accurately.

Jacobsen: Weapon accuracy introduces another complication. Modern missiles depend on sophisticated components, software, and guidance systems, and deficiencies in any of these can affect precision. How should investigators distinguish between an intentional strike and damage caused by a weapon’s technical limitations or an unexpected failure?

Pidhorna: A weapon can strike something entirely different from its intended target.

When we are discussing weapons designed for precision, such as programmed missiles or operator-controlled drones, the questions become more specific. I am referring particularly to small first-person-view drones controlled by an operator, rather than weapons operating without direct human control.

I believe it becomes more difficult to explain certain attacks as mistakes when an operator can see and control where the weapon is going.

Of course, we still need to examine the circumstances of each incident, including the possibility of technical failure, interference, or loss of control.

Nevertheless, when a weapon is designed to strike within a relatively narrow margin of error, investigators may have stronger grounds for examining whether a particular impact was intentional. The weapon’s expected accuracy, the operator’s degree of control, and the location of the impact can all help establish what happened.

When we discuss phosphorus munitions, weapons with wide-area effects, or weapons that cannot be fully controlled after launch, such as Shahed drones, additional questions arise about the means and methods of warfare.

International law contains several conventions regulating particular weapons and their use.

White phosphorus, for example, is not categorically prohibited. However, the use of incendiary weapons against civilians or civilian objects is prohibited, and additional restrictions apply to their use near concentrations of civilians.

Chemical weapons are prohibited under the Chemical Weapons Convention, while the Treaty on the Prohibition of Nuclear Weapons prohibits the use of nuclear weapons by states that are parties to it. Nuclear weapons are also subject to the general rules of international humanitarian law.

For other weapons, the fundamental principles remain the same: indiscriminate attacks and attacks deliberately directed against civilians are prohibited, regardless of the weapon employed.

Even when a state is not a party to a particular treaty, it remains bound by applicable customary international humanitarian law.

Jacobsen: Could you explain the distinction between treaty law and customary international law, particularly how both can establish legal responsibility for wartime conduct?

Pidhorna: Both are sources of international law.

Treaty law consists of written agreements that states have accepted as legally binding. We can examine the treaty provisions, their commentaries, and the decisions and practices of international tribunals to understand how those obligations are interpreted and applied.

Customary international law develops through general state practice accepted as law. It is not simply a matter of common sense or widely accepted behavior.

For a rule to qualify as customary international law, there must be sufficiently general and consistent state practice accompanied by a belief that the practice is legally required. We call this opinio juris.

Over time, many customary rules have also been incorporated into treaties, particularly as international law has developed and become more extensively codified.

International humanitarian law provides a clear example of this process.

Many of its fundamental principles emerged as customary rules before the two world wars. They continued to develop during those conflicts and afterward, eventually finding expression in treaties such as the 1949 Geneva Conventions.

These principles include the protection of civilians and civilian objects, the protection of cultural property and hospitals, the humane treatment of prisoners of war, and the obligation to provide medical care to those who need it.

Importantly, customary rules remain applicable even when a state has not joined a particular treaty that also reflects those principles.

Russia, for example, is bound by applicable customary international humanitarian law as well as the treaties it has ratified or otherwise accepted.

This allows us to develop legal arguments concerning responsibility even when a particular treaty does not directly apply.

We were doing precisely this before Ukraine acceded to the Second Protocol to the 1954 Hague Convention in 2020.

The Second Protocol contains rules concerning archaeological excavations in occupied territory. Such excavations are permitted only when strictly necessary to safeguard, record, or preserve cultural property.

Russia is not a party to the Second Protocol, although it has accepted the 1954 Hague Convention and other relevant treaties.

When we investigated unlawful Russian archaeological excavations in occupied Crimea, we therefore developed our legal arguments using customary rules prohibiting the looting, destruction, and damage of cultural property in occupied or otherwise controlled territory.

We also connected those customary obligations to existing treaty provisions that Russia had accepted.

Through this approach, we developed arguments concerning potential war crimes that prosecutors and investigators could use when building cases.

Ukraine had also accepted the International Criminal Court’s jurisdiction over relevant crimes committed on its territory, and Crimea is Ukrainian territory.

This combination of treaty obligations, customary international law, and international criminal law provides the legal foundation for pursuing accountability.

Jacobsen: International humanitarian law applies to all parties to an armed conflict. What about possible violations involving Ukrainian actions against Russian cultural heritage? Is that something you have investigated, or might examine in the future?

Pidhorna: I have not documented such cases involving Ukrainian actions because that is not my present focus.

I might examine them in the future, but right now, my priority is investigating what Russia is doing. For me, that is where my work is most valuable at this moment.

I recognize that organizations such as the International Committee of the Red Cross also work to ensure that Ukraine complies with its obligations under international humanitarian law.

From a very personal perspective, however, I do not believe this is the time for me to investigate what Ukraine might be doing to Russian cultural heritage on Russian territory.

Perhaps that will change in the future.

I also understand that, when this war eventually ends, Ukrainians and Russians will still have to coexist.

We will need to find a way to communicate. That requires more than simply appealing to common sense. We will need some shared understanding that allows us to speak to one another without fighting and without killing.

Jacobsen: Thank you for your time and for sharing your expertise, Daryna.