Russia and the destruction of the Kakhovka Dam: Is this ecocide?
Following the destruction of the Kakhovka Hydroelectric Dam, President Volodymyr Zelenskyy accused Russia of committing the crime of ecocide. This term should not be confused with the more familiar military tactic of ‘scorched earth’ campaigns which also seek to destroy the environment, and is liable to prosecution under the Rome Statute of the International Criminal Court (ICC). Originally coined to describe the destruction of Vietnam’s natural environment during the Vietnam War, the term had failed to gain legal significance until the last decade. Debates over the need or viability of prosecuting such a crime reemerged focusing on corporations responsible for oil spills or chemical leaks. Many countries prohibit environmental crimes but do not refer to them as ecocide. President Zelenskyy’s accusation links the concept to an existing legal framework in an effort to forge a new tool of international injustice. A domestic expression of this is seen in Article 441 of Ukraine’s Criminal Code.
This is not entirely new as in 2021, the NGO Stop Ecocide Foundation commissioned 12 international and criminal lawyers to draft a definition of ecocide for states to review as a potential fifth crime under the Rome Statute. The panel published the below definition for consideration:
1. For the purpose of this statute “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.
Currently the ICC can prosecute environmental crimes if they fall within the four existing areas it operates in: genocide, crimes against humanity, war crimes and crimes of aggression. The destruction of the Kakhovka dam and its impact on Kherson Oblast could be the test case for expanding the ICCs remit. The destruction of the dam can be argued to constitute two breaches of the Geneva Convention; Article 54 regarding objects indispensable to the survival of the civilian population and; Article 15 regarding the protection of works and installations containing dangerous forces. The term ‘ecocide’ seeks to go further and explicitly enshrine ecological crimes as a fifth class of war crime, in addition to domestic interpretations and prohibitions.
Destruction of the Hydroelectric dam
Attribution of the destruction of the dam is ascribed to Russian Forces despite their denials. Most experts agree that the dam exploded due to the deliberate detonation of planted explosives by Russian Forces who held the right bank of the Dnipro River at the time. In November 2022 Russian forces destroyed the road across the dam as Ukrainian forces approached. They then appeared to deliberately open two of the sluice gates causing water levels in the dam to drop. Some have argued that a failure to maintain the structure resulted in a collapse, but this does not exonerate the Russian Forces from culpability, as they had occupied the Oblast continuously from March 2022 and maintenance of the dam would have been their responsibility.
Impact upon the environment
The dam is located upstream of the city of Kherson on the Dnipro River. Its destruction resulted in water flooding 230 square miles of Kherson Oblast. The immediate consequences were loss of life and the destruction or damage of eighty settlements as the water surged to 18ft in some areas. As the water began to recede, the extensive damage to irrigation systems and arable land critical to farming and crop growing became apparent. The loss or disruption of irrigation systems has direct implications for the prevention of landscape desiccation as the land is otherwise arid in southern Ukraine. Kherson is home to several habitats protected under the Ramsar Convention on Wetlands of International Importance which have been degraded or polluted, including the UNESCO Black Sea Biosphere Reserve. Ukraine possesses 35% of Europe’s biodiversity including rare, relict and endemic species, and 38 rare habitats protected as part of the European Emerald Network exist within the affected territory. The reduction in aquatic species, combined with the destruction of their habitats, has already damaged biodiversity. This will impact not only the immediate riverine/estuarine ecosystem, but the broader areas connected to them as well for years to come. The deluge of freshwater from the dam into the salt waters of the Black Sea has changed its salinity which will cause its fauna to be damaged or die. The damage and eradication of aquatic food sources in both the Kakhovka reservoir and the river will in turn impact regeneration. The rise of the groundwater level flooded the habitats of burrowing animals and soaked the roots of trees. Many species’ lifecycles rely on the Dnipro estuary in particular. It is used as spawning, nesting, feeding and resting areas by migratory fish and bird species. Their migration patterns will now be disrupted by the damaged landscape.
Additional environmental impact
Odessa was quickly affected by the dam’s destruction. Animal carcasses and other debris have washed up on the shoreline, as polluted river water and objects from destroyed settlements travelled downstream. Biological pathogens have been detected in the Black Sea, the Bilhorod-Dnistrovskyi Estuary and the Danube River. The nuclear facility located by the dam in Zaporizhia, draws water from the Kakhovka reservoir to cool its reactors. Imperilling this process presents a significant risk to both ecological and human life. There is some concern that radionuclides from the Chernobyl nuclear accident have been flushed out, resuspended and transported downstream to be deposited in the estuarine marshes.
Summary
In March 2023, the European Parliament agreed a text for a new Environmental Crimes Directive which prohibits environmental damage in terms almost identical to the proposed amendment to the Rome Statute. Following the dam’s destruction, the UN Secretary General, António Guterres, released a statement calling it a ‘monumental humanitarian, economic and ecological catastrophe.’. The President of the UN General Assembly, Csaba Kőrösi further stated that “intentional attacks to cause long-term and severe damage to the natural environment, are war crimes.”. It is clear that the international community is moving towards acknowledging the ecological as a component of international law. The push to add ecocide as a fifth class of war crime is supported by a body of evidence collected by the Ukrainian government since 2014 demonstrating the impact of Russia’s invasion upon its ecology. Given the number of protected habitats, its internationally and continentally recognised biodiversity, and the 15 months in which the Russian Forces had occupied Kherson Oblast prior to the dam’s destruction, a clear case for ecocide could be made in Ukraine.