A War Crime Against the Environment

The explosion of Ukraine’s Kakhovka dam on June 6, 2023 caused massive flooding, displacement and devastation. A recent report published by Truth Hounds (TH) and Project Expedite Justice (PEJ) not only lays out the causes and consequences of the disaster but also calls on the International Criminal Court (ICC) to recognise it as a war crime against the environment. 

Truth Hounds legal consultant Volodymyr Hryshko told IWPR’s Olga Golovina how the true scale of the disaster would have long-lasting consequences on Ukraine’s ecoonmy, agriculture and biodiversity.

Olga Golovina: What are the main conclusions of the report on the Kakhovka disaster?

Volodymyr Hryshko: This unique document explores various aspects of the dam's destruction, including evidence-based findings on the potential war crimes committed in light of the huge damage in huge disproportion with the vague military objectives pursued. There are also legal analyses examining the possibility of holding perpetrators accountable; the consequences on the region's economy and agricultural resources after the dam's destruction; the environmental impact on water resources, biodiversity, and soil health and the human cost of the disaster, including loss of life, displacement, and health risks.

Originally a legal initiative to analyse the lawfulness of the dam’s destruction under the Rome Statute, this project soon evolved into an interdisciplinary effort advanced by people from various fields: lawyers, hydrogeologists, data analysts, agrarian experts, earth observation analysts, biodiversity experts, military experts and more. A wide array of methods and approaches were employed to deliver this report, ranging from lab analysis of water samples to reading of legal sources.

The most affected area, the left bank of the Dnipro River, remains inaccessible due to the Russian occupation, so a significant part of this report relies on OSINT inquiries. For instance, OSINT analysis facilitated a comprehensive exploration of all potential explanations for the destruction of the Kakhovka HPP allowing us to determine the most relevant causative factor. Furthermore, we gathered satellite imagery and processed it into the geodatabase of the water movements resulting from the failure of the dam.  

What evidence indicates that Russia is responsible for the destruction of the dam?

The evidence, including seismic data, eyewitness accounts and satellite imagery, strongly supports the controlled explosion version, which points to Russian involvement. The presence of Russian troops, prior mining of the dam and strategic raising of the water level further confirm this conclusion. The operation was carried out by the 205th separate motorised rifle brigade, but it did not act independently. The document describes the entire chain of Russian military command and notes the extremely likely involvement of senior Russian officials.

The NORSAR seismic stations in Ukraine and Romania recorded focused pulses of energy, which are typical of an explosion. The data reveals clear signals on June 6, 2023 at 2:35am and 2:54am.  

Data from NORSAR is consistent with what local residents reported hearing that night. The New York Times as well as Ukrainian journalist Oleh Baturin reported that residents heard at least several blasts around the same time. There were also reports of explosions in local Telegram chats at around 2:18am. Additionally, some Russian propagandists confirmed the time of the first explosion at the HPP as 2:35am.  

It has also been reported that US satellites equipped with infrared sensors detected a heat signature consistent with a major explosion just before the dam collapsed.

What legal steps are planned to have this case recognised at the international level? And how can this incident be classified as an environmental war crime under international law?

The authors of the report evaluated all the arguments regarding the classification of the destruction of the Kakhovskaya Dam as a war crime. By examining this particular case, the study offers a basis for the first application of Article 8(2)(b)(iv) of the Rome Statute by the ICC. Importantly, it also contributes to the development of international practice in dealing with environmental crimes through existing criminal law.

To prevent further environmental war crimes, including the potential catastrophe at the Zaporizhya nuclear power plant, those who have already committed these crimes must be brought to justice.

The authors of the report assessed all arguments for qualifying the destruction of the Kahovka dam as a war crime in light of the excessive damage to the environment caused. By examining this specific case, this research offers a foundation for the IICC's first use of Article 8(2)(b)(iv) of the Rome Statute. Significantly, it also contributes to the development of international practices for addressing environmental crimes through existing criminal law.

The Rome Statute stands as the first and only instrument among the statutes of international courts or tribunals that expressly mentions damage to the environment within its definitions of crimes. Although it falls short of addressing the crime of ecocide, the Rome Statute still criminalises the intentional launch of an attack in the knowledge that such attack will cause widespread, long-term and severe damage to the natural environment which would be clearly disproportional to the military advantage anticipated (Article 8(2)(b)(iv)).  The absolute prohibtion to employ methods or means of warfare which are intended or may be expected to cause widespread, long-term and severe damage is considerably rooted in international humanitarian law.

What were the most serious environmental consequences recorded after the destruction of the dam?

The report details the devastating and widespread impact on the environment, including:

• decreased groundwater levels, contamination from debris and pollutants and potential long-term impacts on drinking water supplies. There was a loss of aquatic habitats, widespread death of plant and animal life, potential destruction of protected areas, and long-term consequences for the region's ecosystems.

There has also been increased wind erosion, potential salinisation of downstream soils, and acute risks to agricultural productivity and human health from soil contamination.

What were the consequences of the disaster for the region’s agriculture and economy?

The destruction of the dam has had a severe impact on agriculture, particularly in the southern regions that rely heavily on irrigation from the dam's reservoir. The initial flooding inundated and destroyed crops on 5,000 hectares of land, resulting in immediate losses of 5.427 million US dollars. The long-term consequences are far more significant, with the disruption of irrigation systems potentially costing 367.9 million dollars annually. The report analysed historical data on crop yields and irrigation use to estimate future losses.

How do you assess the prospects of bringing the perpetrators to justice for war crimes against the environment?

The destruction of the Kakhovka dam has led to severe consequences for the environment, the whole extent of which is difficult to comprehend at this stage. Those responsible for this multifaceted catastrophe may face prosecution under various articles. Aside from the war crime of excessive damage to the environment, examples include attacking civilian objects, destroying the enemy’s property, intentionally using starvation of civilians as a method of warfare or even a crime against humanity of forcible displacement or of other inhumane acts.  

We respectfully urge the ICC to undertake a thorough investigation into the attack on the Kakhovka Dam and treat it as a war crime in accordance with Article 8(2)(b)(iv) of the Rome Statute. This provision addresses war crimes involving extensive, long-term, and severe damage to the natural environment that is clearly excessive in relation to the anticipated military advantage. Conducting this investigation will set a crucial legal precedent for the prosecution of individuals responsible for such environmentally catastrophic acts.

Moreover, we advocate for the UN Independent Commission to initiate an independent inquiry into the Kakhovka dam’s destruction. Such an investigation should culminate in recommendations concerning the individual criminal liability of those who ordered and executed the attack. This will significantly advance the cause of justice for the victims and enhance accountability.