Nova Kakhovka destruction - should ‘ecocide’ become a recognised war-crime?

On 6 June 2023, the dam at Nova Kakhovka in Ukraine collapsed, releasing 18 cubic km of water from the reservoir into the countryside beyond. According to Ukrainian authorities 230 m² of land has been flooded, displacing over 14,000 people from their homes.

President Zelenskiy declared this a ‘global ecological disaster’ with 50,000 hectares of forest flooded, water contaminated by industrial lubricants, landmines being displaced, and agricultural land being washed away. The impact of this collapse on the natural environment is difficult to quantify but will be felt in the months and years to come. This has led to claims of ‘ecocide’.

Ecocide is not specifically listed under international criminal law, despite calls for its addition to the jurisdiction of the International Criminal Court.

In 2021 a group of international legal experts drafted a proposed definition for addition to the Court, stating that a recognition and addition of Ecocide ‘could contribute to a change of consciousness, … that enhances the protection of the environment and supports a more collaborative and effective legal framework for our common future on a shared planet.’ However, this has not yet been raised for discussion by the State Parties to the Court, and the idea to have an international crime of Ecocide has been the subject of discussion since the early 1970s.

As such, destruction of dams during armed conflict would have to be considered under the existing framework of war crimes, which are serious or grave breaches of International Humanitarian Law (IHL). The general principles of IHL are those of distinction, necessity, proportionality, and precautions. This requires states to target only military objectives and for any additional damage to be proportionate to the overall military advantage anticipated.

Additionally, dams have special protection so that even if they are deemed military objects they should not be attacked ‘if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.’ (Art 56, API). Therefore, if the damage to the Nova Kakhovka dam is disproportionate to the overall military advantage, or if it may cause severe losses to the civilian population, then it could be considered a war crime.

The closest provision within IHL to Ecocide is found at Article 35(3), saying ‘It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.’ This is repeated as a war crime within the Rome Statute of the International Criminal Court. This protection is absolute and is not balanced against military necessity, unlike the normal targeting rules of IHL. However, the standard is very high, requiring damage to be cumulatively widespread, long-term, and severe.

Additionally, it has been understood by states to be damage that lasts decades and has subsequently been difficult to reach. Thus, whilst environmental damage has occurred following the Nova Kakhovka dam collapse, whether this meets the threshold prescribed by IHL would have to be decided based on the evidence as it becomes available.

The primary problem with applying these rules to the situation at Nova Kakhovka is that the dam needs to have been attacked. This is critical within IHL and is defined as ‘an act of violence against the adversary,’ which rules out self-destruction, and potentially incidental or accidental damage. At this time, it is unclear what happened to cause the collapse of the Nova Kakhovka dam, with both parties blaming the other. Until there is clear evidence that the dam was attacked to meet the IHL understanding, these provisions will not apply.

At this point it is difficult to definitively state whether a war crime has taken place at Nova Kakhovka dam, but the scale of the damage to the area downstream is clear. If Ecocide was recognised as separate international crime this would overcome some of the challenges relating to the framing of IHL, notably that of the requirement of an attack, and may make prosecution easier. That said, there are substantial obstacles in establishing a new core crime for international criminal law, and there would be significant challenges faced by any new crime before the court.