Armed Conflict Foreign Relations & International Law

What International Humanitarian Law Says About the Nova Kakhovka Dam

Tom Dannenbaum
Monday, June 12, 2023, 3:15 AM
The special rules on dams, water, food, and the environment.
Flooding in Kherson near the site of the dam collapse, June 7, 2023. (Serhii Korovainyi,; CC By-SA 4.0,

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On June 6, a Ukrainian dam in Russian-occupied Kherson suffered a massive breach, draining the enormous Kakhovka reservoir into the surrounding region at a rapid rate and reportedly “fully destroy[ing]” the Kakhovka Hydroelectric Power Plant. The breach of the Nova Kakhovka dam has already caused catastrophic flooding, displacing tens of thousands, with multiple villages and thousands of hectares of agricultural land submerged or flooded up to their roofs. The longer-term impacts are no less severe. The reservoir is a critical drinking and irrigation water source for the region. Ukrainian President Volodymyr Zelenskyy reported on Wednesday morning that hundreds of thousands of people already lack normal access to drinking water, while the agricultural ministry announced that 94% of irrigation systems for agriculture in Kherson region, 74 percent in Zaporizhzhia, and 30 percent in Dnipropetrovsk would be left without a water source. Meanwhile, 150 tons of toxic industrial lubricant have reportedly been released into the Dnipro river (with double that still at risk), while the flooding is drawing contaminants from sewage pits, gas stations, cemeteries, and agrochemical and pesticide stores in addition to dislodging landmines. The reservoir is also the primary source of cooling water to the Zaporhizhzhia nuclear power plant, increasing safety concerns there, despite the existence of alternative sources and “no immediate risk” to the plant.

The proximate cause of the dam’s breach has yet to be determined. Ukraine and Russia have accused one another of attacking the dam, although not equally plausibly. Despite declining to attribute the act at this stage, the Biden administration is reportedly working to declassify and share intelligence that “lean[s] towards” Russian responsibility and at least eighteen states have explicitly backed Ukraine on this point, with only Syria and Belarus supporting Russia’s account. Given Russian control of the dam during the breach, it is notable that engineering and munitions experts consider it more likely that the damage was the result of an internal explosion, rather than an external attack or a structural failure. Even expert commentators in Russian media seem unconvinced by the Kremlin’s narrative. 

International Humanitarian Law and War Crimes

Assuming an act of deliberate destruction, the Nova Kakhovka catastrophe implicates a number of rules of international humanitarian law (IHL) and international criminal law, including the core conduct-of-hostilities rules of distinction, proportionality, and precautions. For an overview, see Marko Milanovic’s excellent first-look post over at EJIL:Talk!. Even if it was instead a disastrous accident, it is likely that any neglect leading to that accident could implicate Russian responsibility for a failure to discharge its positive obligations to ensure (to the fullest extent of the means available to it) the supply of essentials and the maintenance of public health and hygiene under the law of belligerent occupation (Articles 55-56 Geneva Convention IV; see also here). Reports of weeks of heightened stress and questionable Russian actions leading up to the dam’s failure are notable in this respect. 

This piece, however,  considers what would follow if the Nova Kakhovka dam break came from a deliberate act of destruction, narrowing the focus to the special conduct-of-hostilities rules applicable to actions against dams, indispensable objects, and the natural environment.

Those special protections are codified in Articles 54 (objects indispensable to survival), 35 and 55 (natural environment), and 56 (dams) of Protocol I Additional to the Geneva Conventions. As both the Russian Federation and Ukraine are States Parties, the Protocol is straightforwardly applicable to the international armed conflict between them (see Articles 1 and 96). 

Each of these rules also underpins an analogous, though nonidentical, war crime, which could underpin the prosecution of individual perpetrators under international law. However, whereas the war crime associated with attacks on dams is codified in Article 85(3)(c) of Protocol I and not the International Criminal Court (ICC) Statute, the war crimes associated with the deprivation of indispensable objects and attacks on the environment are codified in the ICC Statute (Articles 8(2)(b)(xxv) and 8(2)(b)(iv), respectively) and not in the Protocol I list of war crimes. The most significant upshot of that distinction is jurisdictional. The Protocol I provision requires states to criminalize the listed acts domestically, including with the present-in form of universal jurisdiction (Article 85(1) AP I, as informed, e.g., by Article 146 Geneva Convention IV), but does not directly underpin the jurisdiction of any supranational court or tribunal. 

The ICC provisions, on the other hand, have two implications. First, as the ICC has territorial jurisdiction in the current situation on the basis of Ukraine’s 2015 declaration under article 12(3) of the Statute, the fact of a crime’s codification in the ICC Statute means that, if applicable, it could underpin a prosecution at the Court. (This is the jurisdictional basis for existing arrest warrants relating to the deportation of children from Ukraine.) Second, although the ICC Statute does not entail a direct obligation of domestic criminalization (much less with universal jurisdiction), many ICC states parties have in fact codified the ICC’s war crimes into their domestic war crimes codes, a significant number of which entail one or another form of universal jurisdiction. 

In short, in addition to the general rules of governing the conduct of hostilities, the breach of the Nova Kakhovka dam also implicates three specialized legal frameworks of IHL: on dams, indispensable objects (such as food, water, and the systems through which they are provided), and the environment. This post focuses on those rules as they apply to states before turning to the possibility of individual criminal liability. For the reasons that follow, assuming an intentional act of destruction, the dam’s breach almost certainly violated each of these rules of IHL and very likely involves multiple overlapping war crimes.

The Special Protections in Additional Protocol I

On the standard rule, a lawful military objective under Article 52 of Protocol I is any object that by its nature, purpose, location, or use makes an effective contribution to military action, such that its destruction, capture, or neutralization would return a definite military advantage. Even objects that also provide significant civilian value can qualify as military objectives under this test. The road over the Nova Kakhovka dam could qualify as a military objective by “location” under this standard insofar as it offers a key route for Ukrainian troops across the river into Russian-held territory and could therefore be critical to a Ukrainian counter-offensive (e.g. here,). Ordinarily, objects satisfying that test can be targeted, as long as feasible measures are taken to minimize civilian loss and the expected civilian impact is not excessive in relation to the military advantage anticipated. Those are extremely important, but situationally contingent, restrictions, the details of which are often contested (although, as noted below, the proportionality, or non-excessiveness, requirement was very likely violated in the current case).

Articles 54, 35, 55, and 56 of Protocol I are special protections that supplement this framework because of the extraordinary stakes associated with the objects to which they apply. This has two significant implications in the Nova Kakhovka context. First, each of these special rules prohibits certain forms of attack or other operation even when the target in question would otherwise unambiguously qualify as a military objective under Article 52. Second, and relatedly, these special prohibitions apply prior to any analysis of proportionality and precautions—i.e. regardless of the anticipated military advantage associated with the attack and whether or not all feasible measures were taken to minimize civilian loss. 

Dams as Objects Containing Dangerous Forces

Of the heightened protections in Protocol I, the most obviously implicated by the Nova Kakhovka catastrophe is that protecting dams (Article 56). This provision also protects nuclear power plants. The most pertinent elements of Article 56 regulate “attacks” on the protected objects—a concept defined in Protocol I as referring to “acts of violence against the adversary.” Concern has been raised that destroying a dam under one’s own control may not obviously meet this standard, as it would not be part of the conduct of hostilities. However, there is good reason to question that reading and it should be noted in this respect that the concept of attack has been interpreted relatively broadly, albeit somewhat confusingly, at the ICC—a topic that has been explored in more detail elsewhere (see here, here, and here). 

Assuming “attack” to be the correct paradigm, Article 56 includes a core prohibition, with a very narrow exception. This framework applies (albeit in slightly different form) whether the attack in question targeted the dam itself or another military objective located in its vicinity. In either case, if the attack “may cause the release of dangerous forces … and consequent severe losses among the civilian population,” it is presumptively prohibited under paragraph 1 of Article 56, even if it would otherwise have qualified as a military objective and regardless of the countervailing military advantage or precautions taken. 

The function of specifying this bright line is to avoid the challenges associated with applying the proportionality and precautions rules in concrete cases. Moreover, the epistemic threshold applicable to prohibited civilian risk in this context is strikingly lower than that applicable to proportionality. Whereas the latter weighs that civilian loss that “may be expected” from an attack, the presumptive prohibition in Article 56(1) is implicated whenever an attack “may” cause the release of those forces and consequent severe losses among the civilian population. The difference is material. For article 56(1) to be implicated, it is not necessary that those engaged in the attack expected or ought to have expected severe civilian losses; it is sufficient that the attack entailed that risk. As the ICRC Commentary puts it, an attack would avoid the Article 56(1) prohibition only if it “cannot cause severe losses” (emphasis added). This level of certainty that such losses would not occur might apply in the case of an attack focused in a very limited way on a component of a dam (or proximate military objective) that would entail no risk of the release of dangerous forces (see p. 382 for a discussion of this). Beyond that rare case, however, the presumptive prohibition applies. 

The prohibition is applicable pursuant to an ex ante test. However, the extraordinary losses that have already materialized (and that are sure to escalate in the coming days and months) following the destruction of the Nova Kakhovka dam surely qualify as “severe”—a concept understood as “a matter of common sense” and equivalent to “important” or “heavy.” Given the low epistemic threshold at which the prohibition attaches in the ex ante analysis, assuming that the destructive act was itself deliberate, it is difficult to imagine that those engaged in it could possibly have been certain that severe losses would not follow.

What, then, of the narrow caveat to the presumptive prohibition of such an attack? Pursuant to paragraph 2(a) of Article 56, the special protection ceases “only if it is used for other than its normal function and in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support” (emphasis added). Importantly, the elements of this exception are conjunctive. Several points are worth noting here.

First, the term “use” indicates that the object cannot be targeted on this basis in virtue of the military contribution provided by its “location” or “purpose.” This precludes reference to the Kakhovka bridge’s potential as a crossing for Ukrainian troops as the basis for attack.

Second, the dam would need to be used in a way that provides “direct support of military operations” other than via its normal functions. This both precludes reliance on the military contributions of its normal functions (such as controlling water flows, providing electricity, and serving as a source of drinking and irrigation water) and requires a tighter connection than is generally required of military objectives (namely that they “make an effective contribution to military action,” whether or not that contribution is direct). “Direct” implies a test analogous to that applicable to the exceptional targeting of civilians. An influential (albeit disputed) analysis by the ICRC understands the latter to indicate conduct that is a single causal step from the infliction of harm on the adversary or its military operations. 

Even assuming that the Nova Kakhovka dam were to have met this standard at the time of its destruction, the support to military operations would also have needed to be “regular” and “significant,” precluding reliance on occasional or sporadic military use outside its normal functions and requiring a “sizeable” and “effective” impact in that respect. A similar framework applies to the targeting of any military objectives that might have been in the vicinity of the dam, such that an attack on them would have risked the release of dangerous forces. The only difference specified in paragraph 2(c) of Article 56 is that such objectives’ military use need not be outside their normal function to qualify for the caveat. Even assuming this high substantive threshold for the dam’s or adjacent military objectives’ contributions were satisfied, an attack would still be precluded if there were any alternative feasible way to terminate that support.

A conclusive analysis of this caveat requires a comprehensive understanding of what (if any) military contribution was being made by the dam or objects in its vicinity. However, there is no public evidence that suggests the caveat is applicable in the Nova Kakhovka dam case, and it is telling that the belligerents have denied responsibility for the attack, rather than claiming justification on this basis. 

In short, it seems highly likely that the destruction violated the requirements of Article 56. Even assuming (contrary to available evidence) that the Article 56(2) caveat were to apply, paragraph 3 emphasizes that any attack would still need to satisfy all of the ordinary requirements of international law protecting the civilian population. As discussed further below, given the extraordinary losses expected, there is good reason to believe that it would fail the proportionality requirement.

Objects Indispensable to Civilian Survival

Given the critical significance of the Kakhovka Reservoir as a source of irrigation and drinking water in the region, the destruction of the dam (and the consequent draining of the reservoir) also implicates the prohibition of starvation of civilians as a method of warfare and the associated protection of objects indispensable to civilian survival. I have analyzed that framework in the context of Ukraine here (and at greater length here and here). In the current context, several points are worth emphasizing.

First, the reservoir qualifies as an object indispensable to civilian survival per the terms of Article 54(2), which specifies that the protection applies to objects “such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works” (emphasis added). The Eritrea Ethiopia Claims Commission and the ICRC Commentary specifically refer to water reservoirs as examples of objects falling within the scope of the provision. The dam itself may properly be understood here either as part of the reservoir or as part of the broader system of drinking water supply and irrigation. Given this, if the destructive operation was targeted at either the reservoir or the dam, the framework applicable to such objects in Article 54 would apply. If, on the other hand, the destruction was either entirely accidental or the unintended product of an operation against another (non-indispensable) object in the vicinity, it would not. The Article 54 regime is specific to operations against qualifying objects.

Second, the special protection accorded to indispensable objects is not limited to protection from attack. Instead, under the conditions discussed below, it is explicitly prohibited to “attack, destroy, remove or render useless” such objects. Moreover, the derivative war crime in Article 8(2)(b)(xxv) of the ICC Statute refers to “depriving” civilians of the protected objects, without any limit on the form the deprivation might take. As such, debates as to whether the destruction of the dam would qualify as an “attack” for the purposes of IHL do not carry the same weight here as they do in relation to the special protections accorded to dams under Article 56.

Third, reading paragraphs 2 and 3 in combination, Article 54 prohibits the attack, destruction, removal, or rendering useless of qualifying objects in either of two scenarios, even if the objects would satisfy the criteria for military objectives in Article 52. These prohibitions are prior to proportionality and precautions and therefore apply regardless of the military advantage anticipated from the operation and regardless of whether feasible measures were taken to reduce civilian harm. The two scenarios are as follows.

  1. Pursuant to the terms of Article 54(2)-(3)(a) of Protocol I, objects indispensable to survival cannot be targeted for their sustenance value (including their sustenance value to adversary forces), unless they provide sustenance exclusively to combatants. In other words, unlike targetable dual-use objects, dual-use sustenance (food or water used to sustain both civilians and combatants) is legally protected from attack. This prohibition holds regardless of motive or outcome. It inheres simply in (i) the fact of sustenance denial as a purpose and (ii) the fact that civilians are among those affected. 
  2. Pursuant to the terms of Article 54(3)(b), objects indispensable to civilian survival can be targeted for reasons other than their sustenance value only if two criteria obtain. First, as in the caveat to the prohibition on attacking dams, the protected objects must provide direct support for military action. On this point, the ICRC Commentary does suggest that the  bombardment of a food producing area to prevent the enemy from advancing through it could meet this threshold, an example that might appear to parallel the military advantage gained from rendering the bridge across the Nova Kakhovka dam impassable. Second, however, even assuming the direct support threshold were satisfied, targeting the dam would still be precluded if expected to leave the civilian population starving or forced to move due to inadequate food or water. 

Based on what is currently known, it is difficult to say whether sustenance denial (whether in the form of food or water deprivation) was the purpose of the operation (although Russia has claimed as much in its allegation of Ukrainian authorship). However, it seems that there is a clear danger of starvation or forced displacement arising from inadequate food or water as a result of the destruction and that this “may have been expected” at the time of the destruction. 

Fourth, the sole and very narrow exception to the Article 54 prohibition is straightforwardly inapplicable here. Pursuant to Article 54(5), a party faced with a defensive imperative to do so may destroy essential objects in its own territory, in the face of an invasion of that territory, at a time when the territory is still under its control. Since the dam is in Ukrainian territory under Russian control, there is no way for this provision to apply in the current context, regardless of authorship of the destructive act.

The Natural Environment

Finally, the destruction of the dam also implicates Articles 35(3) and 55(1) of Protocol I. These prohibit means or methods of warfare that “may be expected” to cause “widespread, long-term and severe damage” to the natural environment and (per Article 55, but not Article 35) “thereby to prejudice the health or survival of the population.” As with the rules detailed above, this prohibition attaches regardless of military advantage and regardless of whether all feasible measures were taken to minimize the impacts. 

Notably, the prohibition applies to all means or methods of warfare, not only to attacks. Indeed, Article 55(1) further requires belligerents to take care to “protect” the environment from such effects. As such, here, too, the question of whether the destructive act was an “attack” under IHL is moot. What matters is whether it had a belligerent nexus. (On the concept of methods of warfare, see here.) Assuming deliberate destruction, this is very likely to be satisfied in the current case.

That said, the prohibition attaches only at a very high threshold. The fact that the expected damage must be “widespread, long-term, and severe” (in contrast to the similar, but disjunctive (or partially disjunctive) tests of the ENMOD Convention and the proposed international definition of ecocide) is a significant hurdle. Moreover, each of the elements is demanding in and of itself. 

Nonetheless, in the current context, it is highly likely that the environmental damage from the destruction of the dam will qualify as severe and widespread. The requirement that the expected harm be long-term is thought to entail decades of harm, again in contrast to the far less demanding understanding that “long-lasting” means months-long in the ENMOD context.

As with the rules discussed above, this legal test requires an ex ante assessment of what may have been expected at the time of the operation. Nonetheless, early reporting suggests an ecological catastrophe that may well meet even the extremely demanding threshold provided in Articles 35 and 55. Extreme flooding of forests, projected desertification due to the draining of the reservoir, the massive release of toxins, and significant loss of animal life are all notable in this respect, as is the threat to the Black Sea Biosphere Reserve and the Oleshky Sands National Nature Park. Even the risk of a nuclear incident has grown.

Finally, on the Article 55(1) requirement that the damage “prejudice the health or survival of the population,” two points are worth emphasizing. First, Article 35(3) includes no such requirement (on which, see paragraphs 1449, 2133 of the ICRC Commentary). Second, given the impacts already discussed, the destruction very likely could be characterized as prejudicing the health or survival of the population in the affected region. Indeed, the health effects of water contamination in armed conflict are often severe.

Parenthetically, although both Ukraine and the Russian Federation are States Parties to the ENMOD Convention, it is not analyzed in detail here. One point to note in that respect is that, although it sets a lower destructive threshold than is applicable under Additional Protocol I, the ENMOD Convention applies only when environmental modification is used “as the means of destruction, damage or injury to any other State Party.” Whether that threshold is satisfied is beyond the scope of this analysis.

A War Crime?

In contemplating whether the destruction of the dam constitutes a war crime, it is first worth emphasizing that this will (in all scenarios) depend on an analysis of both the conduct that led to the destruction and the mens rea of those involved, both of which are currently uncertain. Moreover, there is good reason to believe that it could qualify as a war crime or a crime against humanity regardless of the special protections discussed above, most obviously as a disproportionate attack. Indeed, this much was indicated in Marko Milanovic’s initial assessment. It is also worth noting that Ukrainian Prosecutor General Andriy Kostin has opened an ecocide investigation pursuant to Article 441 of Ukraine’s Criminal Code (which differs in several respects from the proposed definition that has received most attention at the international level). However, focusing specifically on the war crimes underpinned by the special protections codified in Articles 54-56 of Protocol I, the following preliminary points can be made.

First, whereas the underlying IHL rules prohibit operations regardless of military advantage, the associated war crimes for attacks on dams and attacks affecting the natural environment attach only if the damage expected at the time of the attack was excessive in relation to the concrete and direct military advantage anticipated. In other words, rather than applying prior to a proportionality analysis, they are derivative of it. Specifically, Article 85(3)(c) of Protocol I identifies the relevant grave breach as “launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a)(iii).” To qualify as a grave breach, the attack must also have been “committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health.” The requirement that the action cause death or serious injury has already been met in this case. As such, the crux of any criminal case rooted in 85(3)(c) would turn on the proportionality analysis. Similarly, Article 8(2)(b)(iv) of the ICC Statute specifies that launching an attack knowing that it will cause “widespread, long-term and severe damage to the natural environment” is a war crime only when it “would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” Notably, the ICC Statute crime attaches only to those acts that are “clearly” excessive, raising the threshold as compared to the Protocol I articulation.

Ultimately, in contrast to the underlying IHL rule, the significance of the special protection regimes as they pertain to war crimes lies less in terms of the applicable legal thresholds and more in terms of the expressive value of international criminal punishment, part of which depends on identifying crimes with maximum specificity. This, after all, would be the primary reason to pursue a case rooted in either of the specialized category, rather than simply pursuing the general war crime of attacks with clearly disproportionate effects on civilians or civilian objects (as specified generally in Article 8(2)(b)(iv) of the ICC Statute). Indeed, it has been suggested that even the environmental war crime label is expressively insufficient in this context, with the dam’s destruction strengthening the case for recognizing ecocide as an international crime and, in the meantime, pursuing an ecocide investigation within the Ukrainian system.

Given the severity of the civilian and environmental harm expected in the current context, the military advantage anticipated would have to be extraordinary for the attack to be deemed proportionate. There is relatively little case law clarifying the scope of disproportionate attacks as war crimes, but even assuming a very demanding criminal threshold, it is highly likely that any deliberate destructive attack against the dam would qualify as clearly excessive in its civilian impact. For examples of the limited existing case law on the topic, see here (paragraphs 58, 372-387) and here (paragraph 82 in the judgment and paragraphs 43-44 in the Agius dissent).

In contrast, the starvation war crime is not derivative of proportionality. Assuming a belligerent nexus, the ICC Elements of Crimes document provides that the starvation crime attaches whenever a perpetrator both “deprived civilians of objects indispensable to their survival” and “intended to starve civilians as a method of warfare.” As long as these criteria are met, it is not necessary to establish that the impugned conduct caused any particular form of civilian harm, suffering, or death via the impact of inadequate food or water. 

For the reasons discussed above, the destruction of the dam and the associated draining of the reservoir very likely qualifies as a form of depriving civilians of one or more objects indispensable to their survival. Criminality, then, would hinge on whether that deprivation was performed with the intent to starve civilians as a method of warfare.

In the absence of authoritative case law, the precise meaning of this mens rea threshold is disputed. On the most restrictive interpretation, the use of “intent” (perhaps together with “method of warfare”) might be understood to imply that this element would be satisfied only when the perpetrator acts with the specific purpose of weaponizing the civilian harm or death associated with the denial of food or water. Although it is possible that the destruction of the Nova Kakhovka Dam satisfies this test, a good argument can be made that the reference to “intent” in Article 8(2)(b)(xxv) does not require such a demanding reading. On the contrary, as I have argued at greater length elsewhere, the better reading would entail a more comprehensive criminal proscription.

First, a strong case can be made that the term “starvation” should be understood to refer not to an outcome, but to the transitive act of depriving people of indispensable objects (sections V(D-F)). Understood in this way, “starvation of civilians as a method of warfare” means the deliberate deprivation of objects indispensable to civilian survival as part of a belligerent’s war effort (paragraph 741). On this approach, even an understanding of “intent” that is limited to direct (or purposive) intent would require establishing only that the deprivation was purposive, not that this entailed the purpose of weaponizing civilian suffering. In the context of the Nova Kakhovka dam, it would be sufficient to show that the reservoir was destroyed qua water source in a context of civilian dependency, even if the ultimate goal of that destruction were to deny food and water to combatants. The fact of the latter goal would not preclude characterizing the operation as either targeted at a population that is civilian in aggregate, despite the presence of combatants (see Article 50(3) AP I, ICTY paragraph 4610 note 15510), or as targeted indiscriminately at both civilians and combatants (see ICC paragraphs 921-923; ICC paragraphs 418, 424, 491; ICC paragraphs 801-802; ECCC, paragraph 310; ICTY, paragraph 260). It is difficult to say at this stage whether the dam was destroyed to deny sustenance in this way.

Second, even if “intentionally using starvation of civilians as a method of warfare” were thought to imply the intentional infliction of a particular form of suffering on civilians (in other words, to implicate starvation as an outcome, rather than as a transitive act), it may be sufficient to establish that such an outcome was a virtual certainty arising from the destruction of the dam, whether or not it was the purpose of the operation. As it relates to consequences, “intent” is defined in Article 30(2)(b) of the ICC Statute to include not only purposive intent, but also awareness that the proscribed consequence will occur in the ordinary course of events. This form of oblique intent has been understood to include a perpetrator acting with virtual certainty that the consequence in question will occur, whether or not the individual seeks that result (paras. 447-450). Although that definition is technically applicable only to the default mens rea standards (and thus not the crime-specific use of “intent” in Article 8(2)(b)(xxv)), the ICC has determined that crime-specific uses of “intentionally” should be read in light of that general meaning unless there is a good reason not to do so (see paragraph 677). On this approach, criminal liability could attach if those who destroyed the dam were virtually certain that starvation would follow in the ordinary course of events. 


As noted at the outset, the destruction of the Nova Kakhovka dam implicates multiple rules of IHL. This analysis has focused exclusively on the specialized regimes for dams, indispensable objects, and the natural environment, as codified in Additional Protocol I. The virtue of these rules is that they provide commanders with bright-line prohibitions, which attach prior to the oft-contested analyses of proportionality and precautions. If the dam was deliberately destroyed, each of these prohibitions was almost certainly violated. Even if the dam was destroyed as a predictable collateral consequence of an operation against a nearby military objective, it very likely violated the provisions relating to dams and the natural environment.

The associated war crimes thresholds are more demanding and criminality always depends on individual specifics, particularly with respect to mens rea. Nonetheless, if this was a deliberate act of destruction, the war crimes specific to attacks on dams and damage to the natural environment are very likely implicated (as is the general war crime associated with disproportionate attacks). The starvation war crime raises more complex issues of intent, but, depending on what was known and intended by the perpetrators, it too could well be applicable to the Nova Kakhovka disaster.

Tom Dannenbaum is Lecturer in Human Rights at University College London, where he writes on a range of issues in international law. In the summer of 2017, he will join the Fletcher School of Law and Diplomacy as Assistant Professor of International Law. He holds a J.D. from Yale, a Ph.D. in political theory from Princeton, and a B.A. from Stanford.

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