The destruction of the Kakhovka hydroelectric power station – legal responsibilities

Author: Marta Martsyniak

The Kakhovka hydroelectric power station is the fifth largest in Ukraine in terms of size, as well as the largest in terms of shallow water area. Construction lasted five years ending in 1955 and being the last building of the “Great Buildings of Communism” project, intended to implement Stalin’s ambitious plan — “The Great Plan for the Transformation of Nature.” It is worth noting that the Soviet dictator was ready for radical actions to satisfy his mania for greatness, which is why the dam was built at the cost of flooding lands with a unique historical value — Velykiy Lug, where numerous Zaporizhzhya Siches were located at that time and which disappeared with the creation of the dam. Unfortunately, hundreds of villages were not spared either and 37,000 people lost their homes, with residents forcibly relocated to new settlements on the coast.

On June 6, 2023, the Russian military destroyed the Kakhovka hydroelectric power station: they blew up the engine room, which caused the station to go underwater in a matter of hours. The scale of the disaster and its consequences for the flora and fauna of our country are still difficult to comprehend. Thousands of people were left homeless. This terrible terrorist attack is not only part of the ecocide carried out by the Russian Federation on Ukrainian lands, but also an attack on the national cultural heritage.

According to President Volodymyr Zelensky, 300 tonnes of industrial lubricant were at risk of spilling into the river and another 150 tonnes had already contaminated it. Agricultural land has been lost, and the flooding’s effects on nearby agriculture will probably last for years. The Kakhovka hydroelectric power station maintained a sizable reservoir,  holding 18 billion cubic metres of water, which fed water to settlements upstream and cooled the nuclear power plant at Zaporizhzhya, which is about 160 kilometres away and under Russian occupation. The Kakhovka reservoir’s water level dropped below 12 metres by 10 June, approaching what Ukrainian officials referred to as the “dead zone.” That means it was too low to supply the four canal systems that feed the whole area. The Ukrainian agricultural ministry warned that without those vital canals, those regions, which collectively make up one of the world’s breadbaskets, might turn into “deserts” as early as next year. Additionally, the dam served as a crucial conduit for water transportation from the river to the Russian-occupied Crimea, potentially affecting the region’s water supply.

In fact, these impacts are just a tiny part of destruction caused because of the Russian terror unleashed on Ukrainian soil, and, as was correctly pointed by the Alternate Representative of the United States of America for Special Political Affairs in the United Nations, Robert Wood: “It was Russia that started this war, it was Russia that occupied this area of Ukraine, and it was Russian forces that took over the dam illegally last year and have been occupying it ever since.”

As Young European Ambassadors from Ukraine, we are calling for the international community to react, support and take action. The cynical practices of Russian troops have breached dozens of international laws since February 2022, especially those rooted in the Geneva Conventions and their Additional Protocols. Articles 55 and 56 of the Additional Protocol I which amended the Geneva Conventions in 1977 contain two new rules in an attempt to prevent highly brutal, disproportionate, or indiscriminate acts of violence.

It is stated:

Article 55 – Protection of the natural environment

1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.

2. Attacks against the natural environment by way of reprisals are prohibited.

Article 56 – Protection of works and installations containing dangerous forces

1. Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, 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. Other military objectives located at or in the vicinity of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.

It is important to note that the sole exception to this provision is if a dam is used for “significant and direct support of military operations and if such attack is the only feasible way to terminate such support”. There is no evidence that the Nova Kakhovka dam – which was under Russian military occupation at the time – was in any way used to aid Ukrainian military operations. 

Despite the provisions’ obvious humanitarian significance and although Russia initially ratified the Additional Protocol, President Vladimir Putin withdrew Moscow’s signature from these responsibilities in 2019 by presenting a State Duma bill and issuing an executive order to rescind the declaration that accompanied Russia’s ratification of Protocol I. Ukraine is still a party to the Protocol having ratified it in 1990. 

It might be argued that these rules do not apply to Russia because they are no longer a signatory. The counterargument is that regardless of whether a country formally ratifies them, these obligations already exist and are binding on all countries at all times as a rule of custom law. Unfortunately, no state has ever been legally charged with attacking a dam, despite the fact that several countries have done so. 

Nevertheless, living in the 21st century in what we hope to be a democratic world, there is still a trust in the International Criminal Court (ICC) to provide more certainty.  On 7 June, Ukrainian Prosecutor-General Andriy Kostin issued a decision authorising the transfer of information about the demolition of the Kakhovka dam to the prosecutor’s office at the International Criminal Court (ICC) in The Hague. The destruction of the Nova Kakhovka Dam may, in theory, be prosecuted in accordance with a number of provisions of the ICC Statute, such as the war crime of deliberately directing attacks against civilian targets and the provision regarding attacks that seriously harm the environment. With regard to using environmental degradation to target the civilian population, it may also be charged as a crime against humanity. Specifically, the war crime of “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” is permissible for prosecution under Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court. It looks to be precisely the kind of circumstance that may satisfy all three conditions taken together:

• widespread – the International Fund for Animal Welfare’s (IFAW) Natalia Gozak, a wildlife rescue worker in Kyiv, predicted that the destruction’s repercussions “will extend over 5,000 km2.”
• long-term – still yet to be measured, but according to the UNCT Joint Analytical Note, it is expected to have negative long-term effects on Ukraine’s ecology, economy, and society, including potential population displacement and migration, and it will cast a gloomy shadow over the nation for many years to come.
• severe – major danger to approximately 80 communities, with the potential to directly impact 100,000 individuals while up to one million people might lose access to water. Currently, 48 protected locations are in danger. Among them, “one biosphere reserve, three national parks, one regional landscape park, sixteen reserves, three nature reserves, twenty-two natural landmarks, and two parks-monuments of garden and park art will be partially or completely affected by flooding,” explained Oleksii Vasyliuk, a biologist and the founder of the Ukrainian Nature Protection Group (UNCG). 

According to the Policy paper on case selection and prioritisation from 2016, the ICC Prosecutor’s Office declared the intention to “give particular consideration” to pursuing crimes connected to “the destruction of the environment,” which makes us believe that the case of the destruction of the Nova Kakhovka dam is exactly the one needing prioritisation. 

With time passing by and the world’s democratic community investigating the impact of the destruction of the Kakhovka hydroelectric power station, Ukraine is finding support among its most trusted partners, especially the European Union. Already on 7 June, the EU’s Emergency Response Coordination Centre informed that it was in close contact with Ukrainian authorities and humanitarian centres with the aim to mobilise support and coordinate further assistance necessary for the evacuation of civilians and to prevent by all means the flooding. According to recent reports, by deploying three mobile water treatment units (with capacity to produce 120,000 litres of potable water per day) the EU is currently mobilising its strategic reserves from the rescEU shelter capacities. The EU has also mobilised an additional €500,000 to meet the immediate demands brought on by the Kakhovka dam’s damage in order to help humanitarian efforts on the ground. Additionally, several member states provided aid via EU Civil Protection Mechanism by sending water tankers, pumps, boats, rescue tools, generators, and other life-saving supplies to the affected areas.

The official answer of the European Union may be found in the Joint motion for Resolution from European Parliament issued on 14 June unequivocally stating that ‘the Kakhovka dam, located on the Dripto river in the Russian-occupied part of southern Ukraine, was deliberately destroyed in an act of terrorism on 6 June 2023’ and stating that the European Parliament condemns in the strongest possible terms Russia’s destruction of the Kakhovka dam, confirming that it “constitutes a war crime and has caused extensive flooding and created an environmental disaster as well as ecocide in Ukraine”. The resolution supports the investigation of the ICC into the destruction of the Kakhovka dam, and the promotion of full security on Ukrainian soil, calling on NATO countries to uphold their commitment to Ukraine and open the door for Kyiv to be granted membership in the military alliance.

The immediate, medium- and long-term relief, restoration, and recovery of the country are the main goals of the immediate, appropriate, and complete EU recovery plan for Ukraine. They anticipate the proposed revision of the present multiannual financial framework by the European Commission as well as the proposed Rebuild Ukraine facility, which will provide money for Ukraine’s reconstruction needs in the next years. MEPs stress the significance of tying Ukraine’s reconstruction to its ongoing domestic reforms and EU accession preparations, as well as the need for damaged infrastructure and industrial capacity to be rebuilt in accordance with the European Green Deal and the “build back better” principle. This would assist in transforming the nation into a market economy and modern, digital, welfare state in the style of Europe. 

Unfortunately, the number of war crimes, destruction, casualties and environmental damage caused by Russia in Ukraine is hard to estimate. Nevertheless, the country is standing, maximising its efforts and fighting for a peaceful future, which, with the support of a democratic world and for the survival of the democratic world, should be achieved.