The Destruction of the Nova Kakhovka Dam and International Humanitarian Law: Some Preliminary Thoughts

This morning the Nova Kakhovka dam in Ukraine was destroyed, in circumstances which remain unclear. Thousands of people are in peril, while the devastation of downstream communities and the environment will be immense. The dam appears to have collapsed, and the reservoir behind it is now draining at speed. In this post I will just briefly set out the relevant framework of international humanitarian law regarding attacks against dams, and how it applies to the facts as we know them. Last year my friend and colleague Mike Schmitt wrote up two very detailed posts on the rules governing attacks on dams on Articles of War, and I will direct readers to those posts for a more detailed examination of these rules (here and here).

(1) Attribution – as things stand it is not yet clear who destroyed the dam. Ukraine is accusing Russia of having done so, while Russia is accusing Ukraine. While all communities affected are on Ukrainian sovereign territory, many of them are in those regions that Russia controls and claims to have annexed. The harmful consequences of the destruction of the dam are such (including e.g. in disrupting water supply to Crimea) that from the mere fact of the dam’s destruction we cannot with certainty conclude who did it, or in whose interest it was to do it. Obviously to me it seems more likely that Russian forces destroyed the dam, but this is not  something that can simply be assumed.

(2) The relevant rules of IHL apply to “attacks”, and it is again not entirely clear whether there has been such an attack, defined by Art. 49(1) of Additional Protocl I to the Geneva Conventions as any “acts of violence against the adversary, whether in offence or in defence.” If the dam was damaged by Ukrainian shelling, as Russia claims, then this would qualify as an attack per Art. 49(2) AP I, which applies “to all attacks in whatever territory conducted, including the national territory belonging to a Party to the conflict but under the control of an adverse Party.” But if the initial damage to the dam was caused by Russia, e.g. by damaging a sluice gate which then in a catastrophic chain of events led to the collapse of the whole dam, it is somewhat less clear whether this event would qualify as an “attack.” Generally IHL does NOT regard as attacks the sabotage of a party’s own dam, as Mike explains in his second post. If, for example, Ukraine sabotaged a dam under its control in order to flood an area and prevent Russian troops from advancing, this would not be an attack on the dam in the sense of IHL, even if civilians died as a result. From Russia’s perspective the Nova Kakhovka dam is precisely in such a situation, especially because it was under its control – even if as an objective matter the dam and the whole territory is under Ukrainian sovereignty. Again I will reserve my judgment here, my point is simply that the existence of an “attack” in the sense of IHL is not an obvious issue.

(3) If there was an attack against the dam, it would violate IHL if it ran afoul of rules on distinction, proportionality, and precautions. (I will only deal here with the first two).

(4) On distinction, the issue is whether the dam was a military objective, and thus lost its protection as a civilian object. Per Art. 52(2) API, “military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” There are two limbs of that test, which both need to be met. A dam is not a military objective by its nature, but it may be such by its purpose or use. The real question here is whether the dam was making “an effective contribution to military action.” For example, the road on the top of a dam can be used to transport military equipment or supplies, or the electricity generated could supply military facilities. On the facts that does not appear to be the case here. On the second point, destroying a dam can, in principle, offer “a definite military advantage”, e.g. by disrupting enemy movements through the affected area. Again, both limbs of the test need to be met – if the dam was not making an effective contribution to military action, it would not qualify as a military objective even if destroying it notionally offered some military advantage. The bottom line here is this – without knowing who destroyed the dam and WHY they did this, we cannot conclusively say whether the dam was or was not a military objective. To me it appears unlikely that it was, but this is not a possibilty that can be excluded. Note the relevance of the official statements of the parties to the conflict here – if both states deny that they destroyed the dam, that obviously undermines any claim that the dam was a military objective and that destroying it conferred a military advantage.

(5) On proportionality the situation is, I would submit, clearer. Under Art. 51(5)(b) AP I, an attack is disproportionate if it “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” Again without knowing what the military advantage anticipated was (if any), we cannot make this assessment conclusively. But even on a generous assumption that (say) Russian forces damaged the dam in order to somehow disrupt the ongoing Ukrainian offensive, the extent of the destruction and damage to the civilian population and objects downstream is such that the attack was in all likelihood disproportionate, and very clearly so.

(6) A dedicated provison of AP I, Art. 56, specifically regulates attacks on installations containing dangerous forces, such as dams. The upshot of this provision is that an attack would violate Art. 56 EVEN IF it was confined to a military objective and was proportionate under the more general targeting rules of IHL, if the attack “may cause the release of dangerous forces and consequent severe losses among the civilian population.” Two points are of key importance here regarding the destruction of the Nova Kakhovka dam – whether losses among the civilian population (not objects) could be SEVERE, and whether this is something the dam’s destruction MAY cause. The severity threshold is vague, but is most likely crossed in a situation involving a risk to many thousands of people in areas that have not previously been evacuated. The scale of the impact is enormous – if this is not severe in terms of risk to civilian life, I fail to see what would be. The second point is that the risk threshold is lower here (may cause) in the context of Art. 56 than in a proportionality assessment. Bottom line – if there was an attack against the dam (which again is likely but not obvious), it almost certainly violated Art. 56, regardless of considerations of distinction and proportionality. Art. 85(3)(c) AP I further provides that such an attack could amount to a grave breach, i.e. a war crime, but the definition of the breach is such in terms of its mens rea requirements that it is difficult to distinguish from a ‘vanilla’ disproportionate attack.

(7) President Zelenskyy has used the term “ecocide” to describe the dam’s destruction, an issue I will leave for another day. What I can say now is that, if it turns out that the dam was destroyed by Russian forces deliberately and that they did so without pursuing any definite military advantage and did so knowing of the harm that can befall the civilian population, the dam’s destruction could amount to a war crime or even a crime against humanity. Note that an action can constitute a crime against humanity even if it is not an atack in the IHL sense of the term (point (2) above). All this depends not just on the extent of harm to civilians, but on the intent of the relevant actors, which we cannot know with certainty at this time.