‘No Military Advantage Would Justify the Havoc’ — IBA Director Mark Ellis on the Destruction of the Nova Kakhovka Dam Commentary
‘No Military Advantage Would Justify the Havoc’ — IBA Director Mark Ellis on the Destruction of the Nova Kakhovka Dam

The collapse of the Nova Kakhovka dam on June 6th is emerging as one of Europe’s biggest humanitarian and ecological disasters. The dam’s collapse has destroyed entire villages, flooded farmland, displaced tens of thousands of people, deprived them of power and clean water, and caused massive environmental damage. The long-term impact of the dam’s destruction will be no less severe as the reservoir is the region’s critical drinking and irrigation water source.

Two points are clear: 1. The dam and hydroelectric power plant are in Ukrainian territory under Russian control. 2. Russia has displayed a consistent pattern of targeting infrastructure. Since the beginning of the invasion, Russia’s military has systematically targeted Ukraine’s civilian energy infrastructure, including attacks against power plants during the harsh Ukrainian winter. According to the Ukrainian Prosecutor General’s Office, since February 24, 2022, Russia has carried out 282 attacks on 115 electric power facilities across various regions in Ukraine, including Dnipropetrovsk, Kharkiv, Kyiv, Donetsk, Zaporizhzhia, Lviv, Vinnytsia, and Sumy.

These attacks implicate a long series of international humanitarian and criminal law violations.

One of the most sacred rules of the law of armed conflict is the principle of distinction: the prohibition of attacks against civilians or civilian objects, in contrast to military objects, which by their nature, location, purpose or use make an effective contribution to military action and whose destruction or capture offers a definite military advantage.  Another core tenet of the laws governing wartime is the principle of proportionality, which states that even if there is a clear military target, an attack is prohibited if the expected harm to civilians or civilian property is excessive in relation to the expected military advantage.

No military advantage would justify the havoc and destruction brought upon civilians and the environment by the collapse of the Nova Kakhovka dam.

Furthermore, while civilian energy infrastructure may represent a lawful military objective in certain circumstances, some special objects are further protected by international law because of the extraordinary effects damaging or destruction they might cause. The most applicable of these is the prohibition of attacks on “works and installations containing dangerous forces”, which encompasses structures such as dams or nuclear power plants. If an attack “may cause the release of dangerous forces … and consequent severe losses among the civilian population,” it is prohibited, even if it would otherwise have qualified as a military objective and regardless of military advantage or precautions taken. Moreover, given the critical significance of the Kakhovka Reservoir as a source of irrigation and drinking water in the region, the draining of the reservoir also violates the prohibition of starvation of civilians as a method of warfare and the associated protection of objects “indispensable to civilian survival”.

Energy infrastructure is not the only civil object being targeted by Russia. According to eyeWitness to Atrocities, a project of the International Bar Association, over 550 medical facilities have been shelled since the start of the war. For the first 35 days of the war, Ukraine’s healthcare infrastructure was damaged every day. From February 24 to December 31, 2022, an average of more than two attacks on healthcare occurred every day. Hospitals and other healthcare structures were clearly identified and targeted by Russian forces before the attacks began. The attacks constitute both war crimes and crimes against humanity.

The ICC’s first indictment against Mr. Putin was targeted at the unlawful deportation and transfer of children. Mr. Putin is accused of bearing individual direct criminal responsibility for having committed the acts directly, jointly with others and/or indirect criminal responsibility (article 25(3)(a) of the Rome Statute), and (ii) for his failure to exercise control properly over civilian and military subordinates who committed the acts, pursuant to “superior responsibility.”).

The ICC should now amend its indictment against Mr. Putin to include his responsibility (direct and indirect) for targeting civilian and civil objects, particularly energy infrastructure facilities. Mr. Putin has effective political and military control over Russia’s military and, therefore, is liable for these crimes being committed in Ukraine.

There are already mechanisms in Ukraine for similar indictments by national courts. The Main Investigation Department of the Security Service of Ukraine, under the procedural guidance of the Prosecutor General’s Office, is now conducting pre-trial investigations into systemic missile attacks by Russia’s Armed Forces on energy infrastructure facilities throughout Ukraine.

Together with Ukraine, the International Community must accelerate its efforts to ensure Russian leaders are brought to justice for the war against Ukraine.

Dr. Mark Ellis is the executive director of the International Bar Association in London.

Suggested citation: Mark Ellis, ‘No Military Advantage Would Justify the Havoc’ — IBA Director Mark Ellis on the Destruction of the Nova Kakhovka Dam, JURIST – Professional Commentary, July 7, 2023, https://www.jurist.org/commentary/2023/07/kakhovka-dam-war-crimes.

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