Image caption: Water flows strongly through a breakthrough in the Kakhovka Dam in Kakhovka, Ukraine, 6 June 2023. Ukrhydroenergo/UPI

In this article, written exclusively for Global Insight, Ukraine’s Prosecutor General explains how Russia’s indiscriminate attacks on Ukraine’s infrastructure violate international law.

The Dnipro reservoir cascade is a series of dams, reservoirs and hydroelectric power stations on the Dnipro River stretching from Kyiv to the Black Sea. Among these reservoirs, the Kakhovka Reservoir was created in 1956 through the construction of the Kakhovka Dam. Encompassing a sprawling expanse of 2,155 square kilometres, it held 18 cubic kilometres of water, which is equivalent to the Great Salt Lake, the largest saltwater lake in the Western Hemisphere.

On 6 June 2023, an unprecedented calamity unfolded when the Kakhovka Dam collapsed due to Russia’s hostile act, releasing vast torrents of water and causing one of Europe's worst humanitarian and ecological catastrophes. Russia’s destruction of the dam has brought about the annihilation of entire villages, the inundation of fertile farmlands, the displacement of tens of thousands of people and the harsh deprivation of electricity and potable water, which exacerbated the monumental environmental devastation that ensued. The United Nations estimates an ‘extraordinary’ 700,000 people in Ukraine are now in dire need of clean drinking water.

The long-term repercussions of the dam’s destruction will be no less severe. The reservoir was one of the region's critical lifelines. The Ukrainian agricultural ministry says an estimated 94 per cent of irrigation systems in the Kherson region, 74 per cent in Zaporizhzhia and 30 per cent in Dnipropetrovsk now face water scarcity. There have also been reports of 150 tonnes of toxic industrial lubricant being released into the Dnipro River. The deluge has drawn contaminants from sewage pits, gas stations, cemeteries and agrochemical and pesticide storage facilities, as well as dislodging landmines scattered throughout the area.

The attack was not an isolated event. Since the beginning of the invasion, Russia has systematically targeted Ukraine’s civilian energy infrastructure – 115 electric power facilities in Ukraine, with 282 attacks hitting some of the aforementioned facilities and other civilian objects in their vicinity. Satellite images show that Ukraine is quite literally being plunged into darkness, as its power grid comes close to collapsing every day.

Attacking the enemy’s energy supply is not a novel strategy. Indeed, there is a history of attacks on power systems during armed conflict. For example, electrical power was a target of the Zeppelin raids during the First World War and Nazi Germany attacked the Soviet electric grid following its loss at Stalingrad, in a bid to regain operative momentum.

Under international law, the indiscriminate onslaught unleashed by the Russian invaders, employing hundreds of missiles and Iranian-manufactured kamikaze drones to strike power plants and substations, resulting in the deprivation of electricity, heat and hot water for hundreds of thousands of people amid harsh Ukrainian winter conditions, undeniably transgresses the bounds of legality. As noted by the UN Commission of Inquiry on Ukraine, such waves of attacks on energy-related infrastructure may amount to crimes against humanity.

Core principles

For a military attack to be lawful under international humanitarian law (IHL), it needs to adhere to IHL’s core principles: distinction, precaution and proportionality.

There is no indication that Russia is taking any such precautions, let alone warning or evacuating citizens before an attack, or selecting targets that cause less harm to civilians. On the contrary, Russia is displaying a blatant disregard for civilian lives by using explosive weapons with wide-area effects in densely populated cities.

Incidental loss of civilian life

Even if some of the attacks on Ukraine’s energy infrastructure satisfy the principle of distinction and are accompanied by the necessary precautions, they violate the principle of proportionality, which prohibits ‘[l]aunching an attack which 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’.

The assessment of proportionality solely takes into account civilian fatalities, injuries and damage to civilian objects. However, Russia must consider civilian harm encompassing both the direct and indirect consequences of an attack. Direct effects occur during the attack itself, such as deaths caused by the blast and fragmentation of a weapon. Indirect effects – knock-on or reverberating effects – are those that are causally linked to the attack but do not occur as an immediate result of it. For example, the Russian attacks on the power system have disrupted essential medical care and emergency response capabilities. Injuries may encompass sickness, as caused by water contamination or hunger due to loss of power. Moreover, considering winter conditions, any loss of heating poses a critical threat to the Ukrainian population.

Russian forces were obligated to consider foreseeable harm to civilians likely to result from those effects in their proportionality assessments. Again, considering the indiscriminate tactics of the Russian army with no regard for civilian lives, there is no indication that they did. With temperatures being below zero for months, Russia has been ‘weaponising winter’ against Ukraine’s civilian population. In addition, such attacks keep Ukraine’s civilian population under a constant state of terror that is also prohibited and could amount to a war crime.

Kakhovka Dam

Applying the principles of distinction, precautions and proportionality to the attack on the Kakhovka Dam makes it obvious that its destruction is a flagrant violation of these most fundamental tenets of IHL.

Even if, for a brief moment of profound legal and moral disorientation, one were to entertain the notion that the dam qualifies as a military objective, there is simply no military advantage imaginable, including hampering an anticipated Ukrainian counteroffensive, that could be proportionate to the havoc and death the dam’s collapse has caused. It unequivocally represents a glaring transgression of international law.

This is because a dedicated provision of Additional Protocol I, Article 56, specifically prohibits attacks on ‘Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations’. Such an attack would violate international law ‘even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population’. It has to be noted that – in this context – the risk threshold is significantly lower (‘may cause’) than in a proportionality assessment.

There can be no doubt that the release of dangerous forces criterion is met in an attack on a dam holding back a reservoir of 18 cubic kilometres of water. There can also be no doubt that the release of these forces is more than capable of causing severe losses among the civilian population. While the severity threshold may be vague, in this enormous scale of impact, if a risk to many thousands of people through unleashing a flood is not severe in terms of civilian lives, nothing is.

In addition, IHL does not only protect people but it is also applicable to the environment. Article 35(3) of Additional Protocol I prohibits the use of ‘methods or means of warfare which are intended, or may be expected to cause, widespread, long-term and severe damage to the natural environment’.

Ecocide

As mentioned above, the flood washed away chemical fertilisers from fields and pollutants from the riverbed. It submerged cemeteries and released at least 150 tonnes of machine oil from the breached dam with additional fuel and industrial waste likely to have been discharged from surrounding plants. Habitats protected under the Convention on Wetlands of International Importance are likely to have been destroyed or severely polluted, including the UNESCO Black Sea Biosphere Reserve, the Kinburn Spit Regional Landscape Park and numerous other smaller sites. The dam breach wiped out plant and animal species at risk of extinction and submerged large areas of trees, which are likely to perish due to prolonged moisture exposure.

A report by the Ukrainian Nature and Conservation Group concludes that ‘the scale of destruction of wildlife, natural ecosystems and entire national parks is incomparably greater than the consequences for the wilderness of all military operations since the start of the full-scale invasion in February 2022’. There can be no doubt that this disaster meets the requirement of ‘widespread, long-term and severe damage to the natural environment’ under Additional Protocol I.

Finally, it cannot be overstated that many of the Russian violations of IHL portrayed above amount to war crimes and the perpetrators can – and should – be held accountable. With this unfathomable amount of human and ecological suffering, some of the attacks – and certainly the destruction of the Kakhovka Dam – constitute grave breaches of the Geneva Conventions. Within the realm of the Rome Statute of the International Criminal Court (ICC), they may be prosecuted as ‘extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’, as ‘intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’, and possibly also as crimes against humanity.

Ukraine is already investigating over 200 war crimes against the environment and 15 cases of ecocide. It could be that the ICC, which has already opened an investigation covering crimes in the Ukraine war and, in March this year, issued arrest warrants for President Vladimir Putin and Maria Lvova-Belova for abducting Ukraine’s youth, might venture to make the destruction of the dam the Court’s first environmental crimes investigation.