Matthew Gillett – The Kakhovka Dam and Ecocide

Could international criminal law apply to the destruction of the Kakhovka Dam, both under existing crimes and the proposed international crime of Ecocide?

Matthew Gillett is a Senior Lecturer (Associate Professor) at the University of Essex Law School and a United Nations Special Mandate holder (Vice-Chair of the Working Group on Arbitrary Detention).

Cross-posted from Verfassungsblog

Dmytro Zavtonov / ArmyInform/Creative Commons

The destruction of the Kakhovka dam and consequent damage to housing and flooding of tens of thousands of hectares of land, is reportedly causing severe harm to humans and nature. These images of flooded tracts of land are reminiscent of the apocalyptic scenes created by Saddam Hussein’s burning of hundreds of Kuwaiti oil wells during the 1990-1991 First Gulf War, albeit with inundation replacing immolation.

In the face of such threats, questions are increasingly being asked about accountability for severe environmental harm under international law. In the context of armed conflict, the main field of applicable law has traditionally been international humanitarian law. However, other legal regimes also apply during armed conflicts. For accountability, international criminal law is of central importance. Accordingly, this blogpost examines how international criminal law could apply to the destruction of the Kakhovka Dam, both under existing crimes and the proposed international crime of Ecocide.

This blogpost argues, first, that the destruction of the Kakhovka Dam potentially violated prohibitions under multiple fields of international law, but that challenges will nonetheless arise in establishing criminal responsibility for those violations due to the distinct elements of the relevant criminal provisions and the heightened burden of proof on the prosecution in such cases. It continues by arguing, second, that because various normative systems are applicable to the facts, ranging from international humanitarian law, international criminal law, and international environmental law, a means of reconciling conflicts of norms will be required, and that this will be best served by an approach of complementary interpretation. A convergence of these considerations arises in the form of the putative crime of Ecocide, which is designed to address incidents such as the destruction of the Kakhovka Dam. As Ecocide implicates multiple fields of international law, the need for a complementary interpretation of the terms of Ecocide in light of these broader principles will be all the more important for the defragmentation of international law.

Applying IHL and ICL to the destruction of the Kakhovka Dam

Attacks on dams in Ukraine preceded the devastating strike on the Kakhovka Dam, and have reportedly continued in the following weeks. These strikes compound the existing threats to Europe’s largest nuclear facility, as the Kakhovka Dam provides water for the cooling ponds of the Zaporizhzhia nuclear power plant. In this light, the incident requires extensive review to asses which laws have been violated.

The discussion of the potential application of international law, including Ecocide, to the destruction of the Kakhokva Dam is apposite. Ecocide exists at the domestic level, including in Ukraine under Article 441 of its Criminal Code, though its elements potentially require elucidation. At the international level, the definition is being debated and moving towards adoption in various forms, for instance by the European Parliament. The International Criminal Court has reportedly opened an investigation into the destruction of the Kakhovka Dam.

Existing international law is not silent in relation to such matters. Article 8(2)(b)(iv) of the Rome Statute sets out a war crime of launching attacks with the knowledge that they will cause 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.

Multiple commentators, including Tom Dannenbaum and Marko Milanović, have weighed in on the applicability of this war crime to the Kakhovka Dam incident. Whilst they have largely focused on IHL considerations, it is clear that a conviction would largely hinge on the proportionality assessment of whether the environmental harm was clearly excessive in relation to the anticipated military advantage. That is a fact-specific query, but already strong views have been expressed that the extensive nature of the environmental harm objectively outweighs any military benefit that may have resulted.

Significant questions have also been asked by inter alia Michael N. Schmitt and Milanović about whether the destruction of a dam within territory under the de facto control of a party to a conflict (or a party’s “own” dam, in Schmitt’s words) would count as an “attack”. Given that the dam is situated on the Dnieper River (also known as Dnipro) which is effectively the frontline in a hotly contested area, and given that the dam was reportedly destroyed by Russian forces to slow the advance of Ukrainian forces, the situation is distinguishable from acts of destruction far behind the frontlines in securely controlled territory. Moreover, even destruction in territory not subject to any fighting has been considered an attack sufficient for conviction purposes at the International Criminal Court (in the Al-Mahdi trial for the damaging of the Mausoleums of Timbuktu by Ansar Dine). Nonetheless, the issue could potentially take Article 8(2)(b)(iv) out of consideration.

Even if Article 8(2)(b)(iv) applies, proving the requirements of long-term, severe, and widespread damage to the natural environment may present challenges. These requirements are cumulative and they have not been interpreted in relevant jurisprudence. Highly restrictive interpretations could jeopardize the applicability of this provision to even such grave harm as that entailed in the Kakhovka incident.

Moreover, the proportionality assessment has a corresponding mens rea facet. It is not sufficient to merely show that the damage was disproportionate; the elements of crimes for Article 8(2)(b)(iv) also require the Prosecution to prove, beyond reasonable doubt, that the perpetrator made the value judgement that the anticipated damage was disproportionate. The Judges’ evaluation of that value judgement must be based on the requisite information available to the perpetrator at the time. Very little attention has been paid to this element, despite the fact that it is the kind of requirement which makes an international prosecutor wake up in a cold sweat. It emphasizes that Article 8(2)(b)(iv) presents hurdles that are not easy to meet, even on such compelling facts as those presented by the Kakhovka Dam incident.

Moving beyond Article 8(2)(b)(iv) of the Rome Statute

There are other war crimes that could potentially apply to the destruction of the Kakhovka Dam:

Article 8(2)(b)(ii) prohibits attacks on civilian objects. Its applicability would hinge on whether the destruction constituted an “attack”, presuming that the incident was perpetrated by Russia, and whether the Dam was a civilian object at the time.

Article 8(2)(b)(xxv) of the Rome Statute prohibits intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival. Global Rights Compliance has put heavy emphasis on this provision in line with their long-standing focus on starvation. Because it refers to “depriving” civilians, it would not require demonstrating an “attack” and thereby obviate that potential challenge. To the extent there was a military motive behind the destruction, that would prima facie fit under the “method of war” element, which is subject to various interpretations. However, the mens rea of this crime remains unclear. It could be interpreted narrowly as requiring a purpose of starving civilians in order to gain a military advantage (rather than a broader interpretation encompassing knowledge of deprivation of such objects occurring in the ordinary course of events as a result of the military tactic used). A narrow interpretation would be challenging to demonstrate if the Defence argued that the aim was to slow the enemy forces and the civilian suffering was merely an unfortunate by-product.

A final war crime under the Rome Statute which may apply is Article 8(2)(b)(xiii) “destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war”. The key issues here would be the categorization of the Kakhovka Dam as the enemy’s property (it presumptively would be as it is in Ukraine’s sovereign territory) and whether the heightened test of imperative military necessity was met. Incidentally, military attacks resulting in environmental harm have been categorized under the equivalent provision for non-international armed conflicts (Article 8(2)(e)(xii)) by the Special Jurisdiction for Peace in Colombia in Macro Case No. 5. Beyond war crimes, there are crimes against humanity which potentially apply. Most immediately relevant are forcible displacement under Article 7(1)(d) and other inhumane acts under Article 7(1)(k), given the numerous reports of civilians being displaced by the flooding and suffering significantly as a result thereof. Persecution may be considered, given that the vast majority of the victims will inevitably be Ukrainian nationals. Even murder (and extermination if the numbers rise sufficiently) could be contemplated, as there have been reports of deaths resulting from the Dam’s destruction.

More broadly, there is genocide under Article 6 of the Rome Statute. Denys Azarov, Dmytro Koval, and Gaiane Nuridzhanian have argued that “environmental damage caused by Russia’s actions in Ukraine poses a serious threat to the health and well-being of the Ukrainian nation and its future generations” and is indicative of genocidal intent. There have been references to poisoning wells in the charges against Al-Bashir, which include genocide, and claims of genocide through inter alia environmental destruction have been made in relation to the Marsh Arabs of Iraq among other groups. But successfully proved genocide cases at the international level have all involved considerable numbers of executions, indicating that it will be novel and potentially difficult to demonstrate genocidal intent on the basis of environmental harm.

The brief survey demonstrates that there are multiple ways in which the destruction of the Kakhovka Dam could be prosecuted as war crimes under international criminal law, but none of these is free of significant challenges. In this light, it is important to avoid conflating a violation of IHL with an automatic basis to prosecute under the Rome Statute. Whereas there are many IHL provisions that may have been violated, ICL has several significant differences in scope and detail that must be specifically addressed when framing charges.

Converging sub-fields of international law

The divergences between IHL and ICL raises a deeper issue. How do different sub-fields of international law interact when potentially simultaneously applicable to a certain act? Do the crimes against humanity and genocide analyses of acts committed during armed conflict have to pass through the prism of IHL as the lex specialis, or are they analysed on their own terms without being conditional on demonstrating a violation of IHL? For example, Milanović’s post argues that the “relevant rules of IHL apply to ‘attacks’, and it is again not entirely clear whether there has been such an attack” and adds that this is the case “even if civilians died as a result”. If those suppositions are correct, and the destruction of the Dam were not found to constitute a violation of IHL, could it nonetheless be assessed as a crime against humanity or even genocide? Milanović argues that even if it were not an “attack” for IHL purposes, the incident could constitute a crime against humanity, dependent on the intent of the perpetrator(s), thus highlighting the potential for destruction during conflict to constitute a crime against humanity even if it may not qualify as a war crime.

It is not the first time this meta-question has arisen; in the Prlić case before the ICTY, the destruction of the Old Mostar Bridge was originally found to be a war crime and part of the crime against humanity of persecution. When the war crime convictions were overturned on appeal in this respect, the crime against humanity conviction also dropped out.

In addition to IHL and ICL, there is also IHRL. Daniil Ukhorskiy similarly links the loss of life to the environmental harm, but looks to IHRL first, arguing that “[e]nsuring justice for the victims and survivors of the destruction of the dam requires going beyond international humanitarian law (IHL) and looking to international human rights law (IHRL)”. He brings in considerations of environmental law, drawing the connection between environmental destruction and the application of the human right to life specifically in the context of the Kakhovka Dam.

Ecocide as a vertex of international law

At the intersection of these various legal regimes sits the crime of Ecocide. Various commentators have already provided their views on this notion in recent years, including Kevin John HellerDarryl RobinsonDonna Minha, and Michael KarnavasMichael Lam Ching Wang. Whereas Ecocide undoubtedly has considerable symbolic potential, it is also intended to have practical impact. Ecocide has been cited by virtually all commentators in connection with the Kakhovka Dam. Ukrainian President Zelensky immediately labelled it Ecocide under the Ukrainian provision (Article 441) and commenced an investigation. At the international level, the incident puts a spotlight on the elements of Ecocide and how it would cohere with relevant branches of international law.

The first question for the international crime of Ecocide is how it will be defined. Various definitions of an international crime of Ecocide have been proposed, including by an Independent Expert Panel in 2021 (here) and by the present author (here). When applied to the facts, pivotal issues would be inter alia on whether the action was “lawful” or “wanton” (for the IEP) / “wilful” (for the author).

In resolving these issues, the relevant principles of IHL and IEL would play a significant role in the litigation. With Ecocide being designed to protect nature, it inherently dovetails with international environmental law. Principles such as weighing social and economic benefits, the precautionary principle, the preventive principle, the ‘polluter pays’ principle, intergenerational equity, and common-but-differentiated responsibilities attributed to developing countries will form the backdrop of considering the legality and/or sustainability of any act being charged as Ecocide. Because Ecocide applies during times of peace and war, it will also inevitably draw in IHL considerations. The continuing applicability of IEL during armed conflict accords with the ICJ’s observation in the Nuclear Weapons Advisory Opinion that IEL does not cease to apply during armed conflict. IHL would also be imported as an interpretive aid when applying Ecocide, given the reference to the framework of IHL in Articles 8 and 21(1)(b) of the Rome Statute as an applicable source of law. Given the extent of the human suffering, and the recognition by the UNGA in its 2021 Resolution (A/RES/76/300) that there is a right to a clean, healthy, and sustainable environment, IHRL would also likely come into play in relation to at least the gravity of the situation.

In light of the relevance of these various fields of law, there is no shortage of legal sources for courts seeking to apply Ecocide. However, that begs the question of how these legal regimes apply alongside one another. As a general guiding principle, where there is a rule of one applicable legal regime which specifically addresses a situation, that rule should govern the situation, in line with the observation of the International Court of Justice’s (ICJ) advisory opinion on the Construction of a Wall in the Occupied Palestinian Territory, para.106. Conversely, if a legal regime is silent on an issue, then that should not prevent a provision from another legal regime from applying.

However, that does not provide a means of norm conflict resolution, if there are clashes between principles. One way of achieving a resolution is through an approach of complementary interpretation. As Ecocide is a crime, it must primarily be applied on its express terms and the framework of ICL (with according requirements such as nullum crimen sine lege of central importance). However, it provides that the provision’s terms “shall be interpreted in accordance with international law, particularly environmental law.” As noted, IEL and IHL will also be relevant, along with potentially IHRL, and all these branches of international law may be taken into account in accordance with Article 21 of the Rome Statute. In effect, Ecocide itself would be a primary source of law under Article 21, with IEL as an inherent interpretive aid. IHL would serve as a secondary source of law alongside international law more generally, including IHRL.

Ultimately, Ecocide brings together various fields of law and thereby puts paid to the notion of lex specialis. Instead, it requires the development of a system of lex parallelis, in which multiple bodies of law apply. But the terms of each are crafted so as to cohere and complement the aspects of other applicable fields of law. In this way, Ecocide will be rendered useful to ensure the accountability of perpetrators of the worst forms of harm to our natural environment.

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