What does the destruction of the Kakhovka HPP mean in terms of war crimes?

The HPP was located in Russian-occupied territory, and Ukraine does not have remote-controlled weapons capable of destroying such a large infrastructure facility. Thus, the responsibility for the destruction of the dam obviously lies with the Russian military.

Politicians and experts have already labeled the destruction of the Kakhovka HPP a war crime, but from a legal point of view, it is not a single war crime but a combination of them.

1. Considering the destruction of the Kakhovka HPP a war crime, representatives of the Ukrainian authorities (1, 2) and civil society (3, 4) consistently appeal to Article 56(1) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977 (AP I). According to this Article, the so-called works or installations containing dangerous forces, which include dams, should not be the object of attack, even when such works and installations are military objects, if such an attack could cause the release of dangerous forces and consequent heavy civilian casualties. In turn, AP I Article 85(3)(c) calls an attack on works and installations containing dangerous forces a grave breach of international humanitarian law (IHL), i.e., a war crime. Although this legal assessment of the situation seems logical at first glance, it is still not correct. According to AP I Article 49(1), “attacks” means acts of violence against the adversary, whether in offence or in defence. Thus, an attack on a dam in AP I Article 56(1) means a military operation directed against a dam under the control of an opposing party of an international armed conflict (IAC). During the negotiation of AP I, the parties to that international treaty specially included in the text of Article 56(1) the word “attack” rather than the more weasel word “destruction”, so that the prohibition stated in that Article would not apply to the destruction of works and installations that are under the control of a party to an IMC. Some countries insisted on this wording because, due to their geographical location, they regarded the potential destruction of dams on their territory as an essential element of defense against external aggression. Consequently, remote strikes by Russian forces against dams on the Inhulets River or the dam of the Karlivka Reservoir can be considered a violation of AP I Article 56(1), but not the destruction of the Kakhovka HPP because the latter was under Russian control.

2. However, the destruction of the Kakhovka HPP should be considered as another severe breach of IHL, namely, as an extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly, as provided for in Article 147 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949 (GC IV) and Article 8(2)(a)(iv) of the Rome Statute (RS). Undoubtedly, the destruction of an HPP structure worth UAH billions and the destruction of thousands of structures, houses, and other property due to the subsequent flooding meets the criterion of extensiveness. Similarly, there is no doubt that this destruction cannot be justified by military necessity, such as an attempt to disrupt a possible landing operation of the Armed Forces of Ukraine (AFU) across the Dnipro River. If this was really an aim of the strike, then, given the Russian forces’ advantage in aviation and missile armament, it could hypothetically have been achieved without destroying the Kakhovka HPP.

3. In addition to preventing likely offensive actions by the AFU, those who blew up the HPP were obviously also trying to directly harm AFU personnel, property, and positions on the right bank and the islands at the mouth of the Dnipro with the destructive force of the water broke free from the Kakhovka Reservoir. Therefore, the flooding caused by the destruction of the Kakhovka HPP can be considered, in this context, an attack within the meaning of AP I Article 49(1). This attack is clearly indiscriminate because the flooding causes harm to all people and objects in its path, whether these people are combatants or civilians, and property is military or civilian. Considerations of gaining military advantage cannot justify this indiscriminateness. The flooding caused by the dam destruction could knowingly have brought the Russians only limited military gains by pushing Ukrainian positions back a few kilometers and causing the Ukrainian military harm that was unlikely to be tangible to them. It was clearly not worth jeopardizing thousands of people and civilian objects. All this allows us to conclude that the war crime took place in the form of intentionally launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such an attack will cause excessive loss of life, injury to civilians or damage to civilian objects, which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated (AP I Article 85(3)(b), RS Article 8(2)(b)(iv)).

4. Suppose we consider the flooding that resulted from the destruction of the Kakhovka HPP as an attack by the Russian military on the AFU personnel, property, and positions. In that case, we cannot ignore the fact that such an attack caused damage to the environment. Moreover, according to experts’ estimates, we are talking about the destruction of the ecosystem of an entire region. Such damage obviously looks excessive compared to the expected military advantage. Thus, there is sufficient reason to believe that another war crime has been committed of intentionally launching an attack in the knowledge that such an attack will cause widespread, long-term, and severe damage to the non-human environment, which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated (RS Article 8(2)(b)(iv)).

5. Under IHL norms, the occupying country should protect the population of the occupied territories from the effects of war. Concerning the destruction of the Kakhovka HPP, these obligations required the Russian military to evacuate in advance the inhabitants of the occupied territories whose lives could have been endangered by the flooding. Since such evacuation did not take place, the deaths of people who perished due to the flooding in the occupied territories should be qualified as wilful killing (GC IV Article 147, RS Article 8(2)(a)(i)), as under international law, intent to kill is present when a person was aware that their act or omission was likely to result in the death of a person.

6. Finally, the fact that the Russian military prevented the evacuation of the residents of the flooded settlements on the Dnipro Left Bank can be considered inhuman treatment (GC IV Article 147, RS Article 8(2)(a)(ii)), since forcing people to stay in conditions unsafe for their life and health is a simultaneous encroachment both on human health and human dignity, which together constitute inhuman treatment.