kyiv and Moscow reject responsibility for the damage committed on this important dam located about sixty kilometers from Kherson (Ukraine), on the night of Monday to Tuesday.
“Another war crime committed by Russian terrorists.” This is how he reacted Andriï Iermak, chief of staff of the Ukrainian presidency, after the partial destruction of the Kakhovka dam, near Kherson (Ukraine), on the night of Monday June 5 to Tuesday June 6. If kyiv accuses Moscow of having “blew up” the dam, the Kremlin on the contrary denounced on Tuesday an act of “deliberate sabotage” Ukrainian forces, rejecting “firmly” the charges brought by Ukraine.
The floods that followed caused major evacuations. According to the head of the local military administration, Oleksandr Prokudin, “about 16,000 people are in the critical zone” in localities controlled by Ukraine. On the bank occupied by the Russian forces, the head of the occupation government, Andrei Alekseïenko, mentioned 14 localities and “more than 22,000 people” threatened by rising waters.
“The destruction of civilian infrastructure is clearly a war crime and we will hold Russia and its affiliates to account,” declared the President of the European Council, Charles Michel. For his part, the head of British diplomacy, James Cleverly, mentioned “a heinous act”, emphasizing that “the intentional attack on exclusively civilian infrastructures is a war crime”. On Telegram, the office of the Prosecutor General of Ukraine, Andriy Kostin, said on Tuesday morning that a preliminary investigation had been opened into the attack. “under the procedural guidance of the Kherson Regional Prosecutor’s Office”, “on the facts of ecocide and violation of the laws and customs of war”.
“Damage to civilian objects”
Article 8 of the Rome Statute of the International Criminal Court (PDF), which defines the different forms of war crimes, provides that “intentionally directing attacks (…) against civilians not taking direct part in hostilities” Or “against civilian objects … which are not military objectives” constitutes a war crime. Lead an attack “knowing that it will cause incidental loss of life in the civilian population, injury to civilians, damage to civilian objects” is also a war crime, as defined by the Rome Statute.
This definition also includes “of the widespread, long-lasting and severe damage to the natural environment which would be manifestly excessive in relation to the overall concrete and direct military advantage anticipated”. For Anastasiya Donets, a lawyer with the NGO International Partnership for Human Rights, the damage to the environment caused by the destruction of the dam will rather be proven over the long term. Nevertheless, at least 150 tons of motor oil have already been spilled into the Dnipro river, according to the Ukrainian presidency. “Floods will also cause serious freshwater problems,” emphasizes the lawyer.
If the evidence is gathered, the partial destruction of the dam could thus constitute a war crime, continues Mathilde Philip-Gay, professor of law at the Jean-Moulin University in Lyon and specialist in international criminal justice. If the facility was found to have been willfully targeted, the event would fall under these crimes “which will cause a large number of unnecessary victims” And “which will cause damage to the environment”, she summarizes. The researcher and Anastasiya Donets add that this could potentially constitute ecocide.
Dams protected by the Geneva Conventions
The Geneva Conventions and their additional protocols, essential texts in international humanitarian law, provide additional insights. As Anastasiya Donets explains, “Dams are highly protected by international humanitarian law”. Article 56 of Additional Protocol I to the Conventions, dating from 1977, provides that the “Installations containing dangerous forces, namely dams, dykes and nuclear power plants, shall not be attacked, even if they constitute military objectives, when such attacks may cause the release of these forces and, as a result, cause severe casualties among the civilian population”.
The document adds that the special protection against the attacks discussed above “can only cease, for dams or dykes, if they are used for purposes other than their normal function and for the regular, important and direct support of military operations, and if such attacks are the only means practical to put an end to this support”. For Mathilde Philip-Gay, the dam of Kakhovka located on the Dnipro – therefore on a front line –, “the question that arises is that of the strategic interest of destroying this dam or not”. “It can be argued that this falls well within the definition of a war crime: it seems to me that the losses in terms of the environment and civilian losses are greater than a strategic interest”continues the specialist.
What if the dam had collapsed due to previous incidents and damage, and not due to a direct attack on the night of Monday to Tuesday? Satellite images from the Maxar network show that a road was destroyed between May 28 and June 5. In all cases, “Warring parties are obliged to take care of the environment”, of the dam and its surroundings, says lawyer Wayne Jordash, of Global Rights Compliance, an organization documenting war crimes in Ukraine. “If you don’t take care [des infrastructures, de l’environnement] and widespread and long-term damage takes place, it may amount to a war crime.” Article 55 of Additional Protocol I provides that “Ihe war will be conducted with care to protect the natural environment against widespread, long-lasting and severe damage”.