International Law and Accountability for the Nova Kakhovka Dam Disaster

by

, ,
| Jul 13, 2023

Nova Kakhovka Dam

The Dnieper River is one of the largest transboundary rivers in Europe, originating in Russia, flowing through Belarus and Ukraine before reaching the Black Sea. The river is Ukraine’s primary water source and covers a significant portion of the country. Ukraine has constructed a series of six reservoirs along this international watercourse for its water, energy, and irrigation needs. The reservoir created by the Nova Kakhovka dam, one of the largest in Europe, served as a vital source of drinking water for at least 700,000 people.

The Devastating Impacts of the Destruction of the Dam

Although the circumstances still need to be clarified, the destruction of the Nova Khakovka dam and hydroelectric power plant can be considered a major humanitarian and ecological disaster. The incident, which resulted in catastrophic flooding, has had dire consequences, including the ravaging of multiple villages and the flooding of thousands of hectares of agricultural land. As a result of the dam’s destruction, the water supply in the region has been severely disrupted or contaminated by heavy pollutants, according to UN Office for the Coordination of Humanitarian Affairs (OCHA), causing tens of thousands of people to lose access to drinking water.

The ramifications of this water supply disruption extend beyond the immediate impact on drinking water and affect other essential services. The reservoir provides water to the cooling ponds of the Zaporizhzhia nuclear power plant. The discharge of hazardous chemicals from downstream manufacturing plants also poses risks to public health, agriculture, fishery, and the overall ecosystem, such as the Black Sea Biosphere Reserve. Stagnating and contaminated waters could also lead to disease outbreaks. Moreover, the flooding has dislodged many landmines previously deployed in the area, creating another layer of risk for the population. As the unfolding humanitarian and ecological disasters continue to wreak havoc, the long-term impacts are projected to be more severe.

Water as a Means of Warfare

The use of water resources and infrastructure as a means of warfare has become increasingly prevalent in the ongoing armed conflict between Russia and Ukraine. In fact, since 2014, both countries have employed water as a weapon. Reports have documented repeated attacks on water infrastructure, deliberate water contamination, and flooding aimed at impeding the movement or advance of the enemy forces. Additionally, water has been used to spread terror among the civilian population (e.g., in Mariupol).

Though the use of water resources and water infrastructure as a means of warfare is not explicitly regulated under international humanitarian law (IHL), some rules have potential relevance for prohibiting their use. For instance, the St. Petersburg Declaration of 1868, the first formal agreement banning the use of certain weapons in war, states that “the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy.” Weaponizing water, more often than not, causes disproportionate harm to the civilian population rather than “weaken[s] the military forces.” Accordingly, the Geneva Principles on the Protection of Water Infrastructure (Geneva Principles) restate that parties to a conflict should refrain from using water infrastructure and water-related infrastructure as a means of warfare (see Principle 4).

The Protection of Dams under IHL

From the outset, we must mention that Ukraine and Russia are parties to Additional Protocol I (AP I) to the Geneva Conventions of 1949 (GCs) applicable to the ongoing conflict between them in addition to other treaties and are subject to customary international laws. A fundamental principle of IHL states that “the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited” (Article 35, AP I). During conduct of hostilities, they must respect the principles of distinction, proportionality, and precautions. For an analysis of how the first two principles apply in relation to the Nova Kakhovka dam, see here, and the protection of dams under IHL in general, see here and here. IHL further provides special protection for certain objects, including works and installations containing dangerous forces and the natural environment. It also prohibits some methods of warfare, such as the prohibition against attacking, destroying, removing, or rendering useless objects indispensable to the survival of the civilian population, such as drinking water installations and supplies and irrigation works (Article 54, AP I).

Dams and dykes are specially protected objects under IHL. Article 56 of AP I protects dams against “attack,” subject to extraordinarily narrow exceptions, even when they are military objectives, if the attack “may cause the release of dangerous forces and consequent severe losses among the civilian population.” This protection is also recognized under the military manuals of Ukraine (as “objects of particular danger”) and Russia (as “especially dangerous objects”). The Nova Kakhovka dam benefits, therefore, from this special protection, and an “attack,” as defined under IHL, on the dam would generally constitute a serious violation of IHL.

The UN has recognized that the collapse of the Nova Kakhovka dam released a large quantity of water downstream and caused severe losses among the population. However, the UN has provided less analysis regarding whether the destruction was the result of an “attack” under IHL. Attacks are “acts of violence against the adversary, whether in offence or in defence.” As already explained by Milanovic and Dannenbaum, the existence of an attack is particularly difficult to prove when shelling is being carried out against objects under the control of a party to the conflict. Assuming for the sake of argument that Ukraine did sabotage the dam, Ukraine’s actions could qualify as an “attack” in violation of Article 56 of AP I. Such an attack would also potentially violate the principles of distinction, proportionality, and precautions.

The legal assessment is less straightforward if Russia sabotaged the dam leading to its collapse. Generally, the sabotage of a dam in a State’s own territory aimed at flooding the downstream area and thus preventing the advancing of enemy troops would not fall under the category of an “attack” under IHL (see Milanovic). Russia could argue that this situation applies to the Nova Kakhovka dam because it is located in territory under Russian control, even if objectively the installation is situated in territory under Ukrainian sovereignty.

Assuming that there was an attack, then two levels of analysis must be made to assess the (il)legality of the attack. Once an object is identified as a military objective, those planning and executing military operations must first examine whether the object is specially protected under IHL. As already mentioned, objects containing dangerous forces, including dams and dykes are specially protected objects under IHL, i.e., they shall not be made the object of attack, “even when they become military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population” (Article 56, AP I) (emphasis added), with minimal exceptions.

Such exceptions include the case where a dam “is used for other than its normal function and in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support.” A second exception is if other military objectives are located at or in the vicinity of a dam and only if “they are used in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support.” Neither Russia nor Ukraine has asserted any military use of the dam took place.

The other important IHL prohibition relevant to the Nova Kakhovka dam incident concerns the protection of objects indispensable to the survival of the civilian population. The prohibition relating to such objects is not confined to “attacks” but also proscribes destroying, removing or rendering useless such objects (Article 54, AP I). That means that even if, as some have suggested, “Russia blew it up from within,” this conduct would violate this special protection.

The dam’s explosion could also potentially violate the protection given to the natural environment that prohibits the use of means or methods of warfare (not just attacks) that are expected to cause widespread, long-term, and severe damage to the natural environment (Article 35(3), AP I) or causing “such damage to the natural environment and thereby endangering the health or survival of the population” (Article 55(1), AP I). These prohibitions require parties to the conflict to protect the natural environment from such damages. The very high threshold enshrined in these provisions has been a subject of ongoing criticism. However, those responsible for orchestrating such conduct against the dam must have been fully aware of the impending ecological catastrophe that would inevitably ensue.

Protection under the Law of Occupation

Additionally, the law of military occupation applies to the destruction of the Nova Kakhovka dam if we accept the argument that Russia exercises authority as the Occupying Power in the area where the dam was located. An Occupying Power must ensure the supply of essentials and the maintenance of public health and hygiene, including drinking water and sanitation in areas under its control (Articles 55 and 56, GC IV). The Nova Kakhovka dam was vital to providing drinking water and irrigation. Access to clean drinking water is critical during armed conflicts, and parties to an armed conflict must ensure its availability and accessibility. Principle 3 of the Geneva Principles stresses the importance of protecting and respecting the human right to water, including during occupation. Because of the dam’s destruction, the population has been grappling with limited or restricted access to life-sustaining water, food, and healthcare.

In addition, Principle 18 specifically provides that “the Occupying Power must restore and ensure public order and civil life in the occupied territory, including through the maintenance of water infrastructure and water-related infrastructure essential for the provision of water and sanitation services” (emphasis added). An Occupying Power must not destroy water infrastructure such as the Nova Kakhovka dam unless it is “rendered absolutely necessary by military operations” (Article 53, GC IV). This exception does not apply to the Nova Kakhovka dam case; neither Russia nor Ukraine stated that the dam was used for military purposes or was supporting military operations. Indeed, the likelihood that destruction of the dam satisfied such a high legal threshold remains extremely remote (see here).

An Occupying Power has an obligation not to destroy, remove, or render useless a water installation which contributes to the provision of water covering the basic needs of the civilian population. Such acts would trigger the application of the relevant rules concerning the conduct of hostilities such as Article 54(2) of AP I. Moreover, the International Law Commission’s Draft Principles on the Protection of the Environment in Relation to Armed Conflicts (PERAC Principles) specifically address the situation of occupation under Principle 19, indicating that

[a]n Occupying Power shall take appropriate measures to prevent significant harm to the environment of the occupied territory, including harm that is likely to prejudice the health and well-being of protected persons of the occupied territory or otherwise violate their rights.

In its commentaries, the ILC explicitly states that the criterion of “significant harm” used in the Principles “is a widely used standard in international environmental law” and there is “the need for a certain threshold of environmental harm” (see PERAC Principles, p.163, para. 7) in order for the relevant rights to be violated. The ILC indicates that the link between environmental harm and human rights “has also been recognized in regional human rights jurisprudence” and cites several cases to support its argument (see PERAC Principles, p.162, nn.756-758). There is no doubt that the destruction of the Nova Kakhovka dam and the resulting flooding of downstream areas caused significant harm to the environment that has affected the human rights of the civilian population, including their rights to life, food, water, and health.

Relevant Protections under International Human Rights and Environmental Law

In addition to the protection under IHL, international human rights law and environmental law provide relevant protections for water and water infrastructure during armed conflicts (see A/77/10, p.136, para. 4). Water constitutes a fundamental human right and a basic human need. Water is a prerequisite for realizing other human rights, including the right to a clean, healthy, and sustainable environment. The destruction of the dam has been characterized as a slowly evolving ecological catastrophe, highlighting the multifaceted nature of its impact. In addition to the protection of the natural environment under IHL (see ICRC, Guidelines on the Protection of the Natural Environment in Armed Conflict), the PERAC Principles emphasize that the environment should be respected and safeguarded in accordance with pertinent international laws (Principle 13; for further discussion, see here). The PERAC Principles, which mostly restate established customary international law, call upon States to take different measures to enhance the protection of the environment in relation to armed conflicts (Principle 3).

Approximately 150 tons of toxic industrial lubricant have already been discharged into the Dnieper River. The situation poses a significant threat to local populations and the natural environment. Emphasizing the gravity of the environmental devastation, Ukraine denounced the destruction of the dam as “ecocide.” This situation contravenes various principles of international environmental law, such as the obligations to protect the environment and to prevent environmental harm, including pollution.

State and Individual Responsibilities Related to the Dam

As depicted above, the dam enjoys special protections under IHL due to its classification as an object containing dangerous forces, an object indispensable to the survival of the civilian population, and its coverage under rules safeguarding the natural environment. Considering the enormous amount of water it contained and its significance in providing various services such as drinking water and irrigation, any attack on or destruction of the dam likely would have violated the rules on special protection and the fundamental principles regulating the conduct of hostilities. Consequently, such actions would give rise to State responsibility, including the obligation to “offer appropriate assurances and guarantees of non-repetition” and to “make full reparation” in the form of compensation and satisfaction, either singly or in combination aimed at remedying the harm caused (see Articles 28-37 ARS and UN Basic Principles, Principles 15-24).

Though IHL was traditionally seen as an obligation towards the injured State, subsequent developments (see here) recognized the right of victims of IHL violations to obtain effective remedies (UN Basic Principles, Principle 3). Other States not parties to the conflict are also under the obligation to “ensure respect” for IHL, including through exerting their influence to stop violations (see common Article 1 GCs and Rule 144).

Not all violations of IHL qualify as war crimes. IHL establishes compulsory universal jurisdiction for grave breaches and States must “repress” them, providing effective penal sanctions and “suppress” all other acts contrary to their provisions (e.g., Article 146, GC IV and Article 86, AP I). This includes the duty to investigate violations effectively, promptly, thoroughly, and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law (including prosecution for war crimes) and provide effective remedies to victims, including reparation (see UN Basic Principles, Principles 3 and 4).

In situations involving allegations of grave breaches and other serious violations of IHL, such as the Nova Kakhovka dam incident, the International Humanitarian Fact-Finding Commission can investigate the allegations based on the consent of the parties (Article 90, AP I). Furthermore, IHL does not exclude the possibility of prosecuting those accused of war crimes before international tribunals or the International Criminal Court (ICC).

When it comes to individual criminal responsibility, IHL provides that “launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects” (Article 85(3)(c), AP I) is a grave breach of AP I. Thus, if there was a wilful “attack” on the Nova Kakhovka dam, it could constitute a grave breach of AP I and entail criminal responsibility. Under IHL, each High Contracting Party must search for and prosecute persons that have committed grave breaches regardless of their nationality (universal jurisdiction) (see Article 146, GC IV and Article 86, AP I). For further discussion on prosecuting grave breaches, see this blog post by Andrew Clapham.

Though the prohibitions related to objects indispensable for the survival of the civilian population and causing “widespread, long-term and severe damage” are not listed as grave breaches of AP I, they have long been recognized by States as serious violations of IHL. For example, the Rome Statute of the ICC provides that intentionally launching a disproportionate attack that would cause widespread, long-term, and severe damage to the natural environment and using starvation of civilians as a method of warfare by intentionally depriving them of objects indispensable to their survival constitute war crimes (Article 8(2)(b)(iv) and (2)(b)(xxv), respectively). Though neither Ukraine nor Russia is a State party to the Rome Statute, the former has accepted the Court’s jurisdiction over alleged crimes under the Statute occurring on its territory. Thus, there is a possibility that individuals could be prosecuted before the ICC.

Causing widespread, long-term, and severe damage to the environment in an armed conflict implicates the international responsibility of that State and the obligation to make full reparation for the damage to the environment in and of itself (PERAC Principle 9). State responsibility is not confined to IHL obligations and includes those environmental obligations that continue to apply during armed conflicts and situations of occupation. The State responsible for the destruction of the dam is obligated to provide full reparation for the damage caused to the environment which individuals could pursue through human rights mechanisms. For instance, the UN has reaffirmed that “the obligation of States parties to respect and ensure the right to life should also inform their relevant obligations under international environmental law” and the “obligation to respect and ensure the right to life … depends, inter alia, on measures taken by States parties to preserve the environment and protect it against harm, pollution and climate change” (General Comment 36, para. 62).

Conclusion

The protection of water resources and installations constitutes a vital element of the protection of civilians in armed conflicts. Military members must be given clear operational guidance on the protection of such infrastructure from the military chain of command. There is a need to put in place after-action reviews and strict accountability mechanisms in cases of violations of international obligations of the Parties to the conflict. The Nova Kakhovka dam incident represents a violation of various obligations under IHL, human rights law, and environmental law. The victims who have suffered from grave human rights abuses and serious breaches of IHL are entitled to seek redress and reparation. Safeguarding the well-being of civilians and all those impacted by this incident requires that responsible States fulfil their obligations and bring the perpetrators to justice. The State responsible for the collapse of the dam must make full reparation to the victims and mitigate and remediate harm to the environment. Additionally, prosecuting the individuals involved for war crimes is critical. Regional and international human rights bodies, as well as the ICC, have a significant role to play in upholding accountability and promoting justice for this incident.

***

Dr Mara Tignino is Reader at the Faculty of Law and the Institute for Environmental Sciences at the University of Geneva and Lead Legal Specialist of the Platform for International Water Law at the Geneva Water Hub.

Dr Tadesse Kebebew is a post-doctoral researcher at the University of Geneva, Platform for International Water Law, Geneva Water Hub.

Dr Caroline Pellaton is the Operations Director at the Geneva Water Hub.

 

Photo credit: Volodymyr Dzyubak