Ukraine Symposium – Destruction of the Kakhovka Dam: Disproportionate and Prohibited

Introduction

On Tuesday, June 6, 2023, the Kakhovka hydroelectric dam was destroyed causing a major humanitarian and environmental disaster. This post analyses the question of whether this destruction complied with the rules of international humanitarian law (IHL). In particular, assuming Russia is responsible for destroying the dam, this article will address the legality of the destruction under Article 53 of the Fourth Geneva Convention.

Background

Commissioned in 1955, the Kakhovka dam, located in occupied Ukrainian territory along the front line in southern Ukraine, sits astride the Dnipro River to generate electricity and store fresh water, part of which was used to supply Crimea. Prior to its destruction, since February of this year, the water level in the dam had risen so that it was submerged at times. Although this could have damaged the structure and caused an accident, experts assert it is more likely that its partial destruction was the result of a deliberate act.

The Russian Federation and Ukraine have blamed each other for the partial destruction of the hydroelectric plant (see Security Council Press releases). Ukraine claimed that Russia had committed a deliberate war crime by blowing up the dam. The Kremlin blamed Ukraine, saying it was trying to distract attention from the launch of a major counter-offensive which, according to Moscow, has been ineffective.

According to information available to date, residents of the Nova Kakhovka region reported hearing a deafening explosion and that the sky had turned white in the early hours of the morning of June 6. Seismic analyses carried out by the Norwegian company Norsar, which relies on sensors located in Romania, have so far confirmed this information, while U.S. media report that spy satellites also detected an explosion at around the same time. Experts add that it would have been much more difficult to destroy the dam from the outside than to blow it up from the inside.

Although it has not been officially confirmed, it is most likely an act committed by Russia.

Application of the Fourth Geneva Convention

Russia has occupied the Ukrainian territory in which the dam is located (see map) for 15 months. Accordingly, Russian forces’ conduct is governed by, among other things, Section III of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 (GC IV). Specifically, if Russia in fact destroyed the dam, the legality of the act is governed by Article 53 of GC IV, which prohibits the destruction of property under certain circumstances during an occupation.

This situation differs from a Russian attack on a military objective (if a dam can be one, under particular conditions applicable to special protected objects, see Article 56 of Additional Protocol (AP I) I and Rule 42 of the ICRC Study on Customary IHL) located on Ukrainian controlled territory, to which the rule of proportionality relating to the protection of civilians in the conduct of hostilities (art. 51(5)(b), 57(2)(a)(iii) and (b) of AP I) would apply. Here, the distinction between the rule of proportionality and the principle of proportionality is particularly relevant (see my previous post about the distinction).

Is the Destruction Proportionate?

According to Article 53, GC IV, an Occupying Power is prohibited from destroying property belonging to the occupied State, except in cases where “such destruction is rendered absolutely necessary by military operations.” In other words, destruction such as that of the Kakhovka dam would not constitute a violation of IHL if it were shown to be absolutely necessary for military operations.

A previous post explained my view that when a rule contains such a relativization between a prohibited action and a justification for such an act, the provision is subject to the principle of proportionality. In the case of Article 53, GC IV, proportionality takes the form of a “balance of interests.” This is made up of the occupying power’s interest in obtaining a military advantage, on the one hand, and the humanitarian and environmental consequences of the destruction, on the other.

Based on an ex ante analysis, certainly, the destruction of the dam is likely to give a military advantage to Russia, particularly in its intention to halt the Ukrainian offensive. It has been argued that the motive for the destruction of the dam by Russian armed forces was an “instinctive defensive response to the threat of an amphibious attack in the Kherson oblast on the Dnipro.” Russia may have sought to mitigate the possibility of a surprise attack by Ukraine on the country’s central and defining river.

The destruction of the dam makes an assault in the Kherson region more difficult for Ukraine. What’s more, building a pontoon bridge across the widened Dnipro is virtually impossible. Also, it appears that Russia already counted the dam as an asset in its military strategy. Indeed, the Russian authorities allowed the water level in the Kakhovka reservoir, located behind the dam, to reach its highest level in 30 years.

As noted above, this military advantage had to be weighed against the humanitarian and environmental consequences of destroying the dam. The catastrophe caused by the destruction of the dam is one of the most significant incidents, both in human and environmental terms, to have occurred since the beginning of the war in Ukraine. Even more so as the consequences of the tragedy will have an impact for months, if not years, to come.

Not only are people without water, gas, and electricity, but it also halts the country’s sewage system from functioning. Figures of the precise losses vary by source and change over time. The Deputy Prosecutor General of Ukraine declared that more than 40,000 people could be in the path of the flooding on both Ukrainian- and Russian-controlled territory. At least 16,000 people have already lost their homes and been forced to flee, according to the Secretary-General of the United Nations.

In addition to the immediate humanitarian consequences, the water level in the Kakhovka reservoir has reached a dangerously low level. It is already too low to feed the four canal systems that supply the Kherson and Zaporizhzhia oblasts and Crimea, which are one of the world’s breadbaskets. Without these vital canals, these regions could become deserts as early as next year.

The lowering of the reservoir level also threatens the supply of drinking water to towns and villages along the lower reaches of the Dnipro. It has been stated that flooding could wash sewage into the drinking water, which, if not properly treated, could lead to a whole host of problems, the most frightening of which is cholera. A humanitarian catastrophe on the Russian-occupied left bank would undoubtedly increase the risk of an epidemic of cholera or other intestinal infections.

Finally, although currently uncertain, there is a particularly worrying potential long-term consequence. The level of the Kakhovka reservoir is now much lower than what is needed to reach the intake canal of the Zaporizhzhia nuclear power plant, located upstream of the dam. Normally, water is drawn from the reservoir into the spray basins used to cool the six reactor cores and the spent fuel stored at the plant. Drying up the reservoir is not an immediate threat, as the six Zaporizhzhia reactors were shut down after the plant was occupied by Russian forces and turned into a garrison and military depot. The International Atomic Energy Agency (IAEA) and Ukrainian officials from Energoatom, the Ukrainian nuclear power company, estimate that there is enough water for several years.

However, there is a longer-term risk that the dam surrounding the cooling pond could burst under the pressure of the water inside, in the absence of the countervailing force of the water from the Kakhovka reservoir. In addition to such a risk directly linked to the destruction of the dam, there is the real threat of deliberate sabotage by the plant’s Russian occupants.

Conclusion

Although the operation undertaken against the Kokhovka dam is better characterized under IHL as destruction rather than an attack, considerations of proportionality are required elements of its legality. Necessity, as enshrined in article 53 of GC IV, implies proportionality in the analysis of the legality of destruction operations in occupied territory. This analysis involves weighing up opposing interests: military advantage that could be gained vs. the humanitarian and environmental consequences of such destruction.

Russia’s fear of the possibility of a surprise attack by Kiev to reach strategic central points and the said river, as well as the intention to slow down or stop the Ukrainian offensive, is certainly a valid Russian military aim. But the particularly serious humanitarian and environmental consequences listed above that the destruction of the Kakhovka dam has had and will continue to have in the long term, are far too severe to justify the destruction of the dam as absolutely necessary for military operations. If so, any type of military operation would be justifiable.

Thus, the destruction of the dam does not meet the exception where a destruction in an occupied territory could be legal (if not disproportionate) and so constitutes a prohibited destruction within the meaning of Article 53 of GC IV.

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Anaïs Maroonian is a Ph.D. candidate in international humanitarian law at the Faculty of Law of the University of Geneva.

Photo credit: Dmytro Zavtonov / ArmyInform