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What humanitarian law says about the attack on the Kakhovka dam

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What humanitarian law says about the attack on the Kakhovka dam

Analysts from the US Institute for War Studies (ISW) had predicted as early as October 2022 that Russian forces would try to blow up the Kakhovka Hydroelectric Power Station in the region of Kherson, and then accused Ukraine of terrorism. While not excluding a priori the hypothesis of a Ukrainian sabotage or an accident, the most reasonable analyzes lean towards the thesis of a deliberate destruction, practiced with mines, attributable to the Russians.

The aftermath of the attack

The reconstructions of Moscow are contradicted by objective elements: the width of the gap is about 200 meters, so bombing with missiles cannot be ruled out, and demolition with mines by a Ukrainian action, in the center of the dam, is unlikely in an area under full Russian military control. On the other hand, the attack on the dams is nothing new for the irresponsible Russian General Staff. It is part of a deliberate attacker’s strategy to affect hydroelectric resourcesintimidate the population and now to repel the counter-offensive on an important strategic direction.

The first findings are indicative of the catastrophe: 24 towns flooded on the right bank of the Dnipro river, an area that remained under the control of Kyiv, and 16,000 residents evacuated. Further water elevations are expected with risks for at least 80 other settlements and the same Zaporizhzhia nuclear power plant, for which the IAEA has currently ruled out emergencies. Over 40 thousand people could be forced to evacuate, of which 25 thousand in the territories occupied by the Russians themselves. The dam is the main supplier of water to the Crimea, so its compromise could expose the populations of the peninsula occupied by the Russians to insufficient water resources. However, the Russians would have relied on a ‘controlled’ demolition, which would not exclude pumping maneuvers aimed at feeding the Crimea. However, UN environmental experts also recalled the risk of water contamination due to the release of dangerous substances from the explosives used for mines.

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War Crimes and “Military Necessity”

From the point of view of international law, the legal framework is very precise, and the attack on the dam can be configured among the war crimes sanctioned by theArticle 8 of the Statute of the International Criminal Court. One can foresee the objection of the Russian commanders before an international trial: the attack on the dam responds to a “military necessity”, admitted by international law, for the purpose of pursuing the “overall, direct and concrete” advantage of blocking the Ukrainian counter-offensive. On this point, however, the guidelines of the Resolutions and other determinations of the United Nations (the best known is the Goldstone report approved by the United Nations Human Rights Council on the Israeli operation “Cast lead” in Gaza, 2008-2009), as well as the jurisprudential guidelines of the Tribunal for the former Yugoslavia, have always remarked that the criterion of military necessity must be declined with that of “proportionality”.

To settle interpretative doubts come the forecasts of I Additional Protocol to the Geneva Conventionsadopted in 1977. Article 52 establishes that “civilian objects shall not be the object of attacks or reprisals”, and that, in case of doubt, a general principle of presumption of non-use of civilian structures for military purposes (para 3). Article 54 forbids warfare methods that compromise the use of goods necessary for the survival of the population, to attack “drinking water installations and reserves and irrigation works”, and to undertake in no case actions that have consequences for feeding the civilian population.

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Furthermore, article 55 requires that war must be conducted taking care to “protect the natural environment against extensive, lasting and serious damage”. More specific are the provisions of article 56 “Protection of works and installations containing dangerous forces”. In paragraph 1, among these are expressly indicated the protective or retaining dams not nuclear power plants for the production of electricity, which therefore “will not be the object of attacks, even if they constitute military objectives, if such attacks are likely to result in the release of said forces and consequently cause serious losses to the civilian population”. If these structures were used for “regular, important and direct support to military operations” the attacks will be allowed only if they represent “the only means” to end them. In all cases it is worth precautionary principle of para 3, according to which the civilian population must be able to continue to benefit from all the protections foreseen by international law, and “all practically possible precautions must be taken to prevent dangerous forces from being released”, including “a timely warning and with effective means” provided for by article 57.

The United Nations General Assembly Resolution A/ES-11/L.2 remains fundamental, Humanitarian consequences against Ukraine, in which it was requested to guarantee the protection of civilians and, in particular, respect and protection for the assets indispensable for the survival of the civilian population, for civilian infrastructures, as well as for the supply of essential services. There Resolution of the European Parliament of 23 November 2022 – adopted with 494 votes in favor, 58 against and 44 abstentions – then formulated the first accusation against Russia of waging war on Ukraine in the form of the “state terrorism“, for the repeated conduct of involving civilians in massacres, indiscriminate bombing, and in attacks that already at the time had concerned “deliberately critical Ukrainian infrastructure throughout the country in order to terrorize the population and prevent them from accessing gas , electricity, water, internet and other essential goods and services”. The Strasbourg Parliament’s accusations were also leveled at Russia’s “geopolitical terrorism” for causing the global food security crisis with the blockade of Ukrainian seaports, the destruction of stockpiles, and restrictions on exports of foodstuffs and fertilizers.

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What can the international community do

On these scenarios, the destruction of the Kakhovka dam would now require a greater awareness of the international community, especially by those states that have not yet decided to be clear in their condemnation of Putin’s aggression against Ukraine. Many look to the Vatican’s peace initiatives with hope, but it is probably more realistic to think that only a decisive position taken by powers such as China and Indiaand also of the ‘Global South‘, may have the strength to make the Russian Federation reconsider its rash steps. And here the role of the West and preferably the renewed one of the United Nations will have to be determined by a decisive appeal to the principles of international law in supporting the withdrawal from illegally occupied territories and those “security guarantees” that avoid ambiguous, fragile and deceptive truces for the future of Ukraine.

This is also why it will be necessary to support the International Criminal Court so that it continues on its path of affirming the rules of international humanitarian law and the principles of effectiveness of international criminal justice.

Cover photo EPA/GEORGE IVANCHENKO

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