Is blowing up of Kakhovka HPP basis for new warrant from International Criminal Court?

Even before the arrest warrant for the Russian president in the case of the deportation of Ukrainian children was made public, the media had been actively discussing potential suspicion of Russia's targeted strikes on Ukrainian civilian and critical infrastructure. The explosion at the Kakhovka hydroelectric power plant could be a turning point in this case.

The Russian military actually seized the Kakhovka HPP in the first days of the full-scale aggression. Since then, there have been repeated threats to blow up the dam. And now, on June 6, 2023, the threats came true. And although it is still difficult to fully analyze the consequences of the explosion and the damage caused by it, we can consider this episode of the war purely from a legal perspective. 

The first and most important thing to emphasize is that the blowing up of the Kakhovka hydroelectric power plant is a potential international crime. After all, an intentional attack with the knowledge that it will result in incidental death or injury to civilians violates Article 56 of Additional Protocol I of the Geneva Conventions. And the consequences can be analyzed from different angles. 

The most obvious is the damage to the civilian population. Dozens of settlements were flooded due to the dam explosion, which means destroyed housing, lost property, and a threat to the lives and health of citizens. According to experts, people will also suffer from the deteriorating situation with the drinking water supply in southern Ukraine and Crimea. Moreover, destroying civilian and critical infrastructure is a consistent policy of the Russian authorities. The dozens of attacks aimed at leaving the civilian population of Ukraine without heat, electricity and water in winter are a clear indication of this.

In addition, the cooling system at Europe's largest nuclear power plant, Zaporizhzhia NPP, could be damaged, potentially leading to a nuclear disaster. Yes, the situation is now under control, but the risks remain. Moreover, this is not the first episode of nuclear blackmail by the occupation authorities.

There are also about ten museums in the flood zone that may be affected. And the number of monuments is yet to be determined.

The blowing up of the Kakhovka hydroelectric power plant has devastating consequences for the ecosystem. This fact, in particular, should be the impetus for environmental crimes to be taken seriously and given a proper legal assessment. Especially given that environmental destruction is also a conscious policy of the Russian authorities.

Read also: Flooded South: the consequences of blowing up the Kakhovka dam (in brief)

At one time, the illegal construction of the Crimean Bridge led to environmental problems in the Black and Azov Seas. The prosecutor's office of the Autonomous Republic of Crimea and Sevastopol opened a criminal proceeding. At that time, we attached to the case the conclusions of environmentalists, which were extremely disappointing. 

Today's event potentially has signs of ecocide, i.e. intentional actions that can lead to an environmental disaster; and may revive the discourse on the inclusion of ecocide in the Rome Statute as one of the international crimes.

The same strategy should be chosen now. We need to record all the consequences of the disaster objectively: for the population, cultural heritage, and the environment. And on this basis, conduct an investigation.

The artificial and previously intentional nature of the Kakhovka dam disaster gives grounds to speak of a crime against humanity under the provision "(k) Other inhumane acts of a similar nature that intentionally cause great suffering or serious bodily or mental injury or physical harm" of Article 7 of the Rome Statute.

No wonder this point leaves space for supplementing the list of actions that can potentially be considered crimes against humanity, as it is impossible to foresee all the ways people can invent to cause harm or kill. This is relevant in the context of the hybrid methods of warfare that Russia has been using since 2014 and continues to use today. For example, deportation of Ukrainian children under the guise of evacuation, a violation of Ukraine's sovereignty under the justification of "committing genocide of the Russian-speaking population by Ukraine". 

Crimes against humanity are actions that are part of a widespread or systematic attack directed against any civilian population, with the knowledge of its consequences. 

Therefore, there is reason to believe that the personnel of the Russian Armed Forces knew exactly what consequences this attack would have. Therefore, it is likely that, as with the arrest warrant for Putin for the deportation of Ukrainian children, the establishment of the chain of command should be followed by a warrant for crimes against humanity. 

Already, there are 16,000 people and dozens of settlements in the critical zone. In this context, we can definitely talk about the severe physical and mental suffering of people who are losing their property, animals, and well-being in general. The prosecution under this article in the context of the dam explosion could become a precedent for the International Criminal Court. Although in one of the cases before the Court, the loss of property was not considered serious mental suffering, the scale and impact of the damming disaster may lead to a change in interpretation. 

Among other things, there is a version that the dam was blown up as a way to stop the Ukrainian armed forces, and, therefore, its destruction was carried out for military purposes. However, here too, there is a clear violation of the principle of proportionality, when the damage to the civilian population and the environment is not proportionate to the military advantage.

In addition, in 1977, the USSR initiated the conclusion of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD), which is currently in effect for 58 states, including Ukraine and the Russian Federation. Within the meaning of Article 2 of the Convention, a violation of the ecological balance of a region of hundreds of square kilometers is a non-compliance. Therefore, Ukraine should now appeal to the UN Secretary-General regarding the violation of the Convention and with the purpose of establishing an advisory council, as well as to the International Court of Justice to compensate for the damage caused by Russia.

Gyunduz Mamedov