The blog writes..
This morning the Nova Kakhovka dam in Ukraine was destroyed, in circumstances which remain unclear. Thousands of people are in peril, while the devastation of downstream communities and the environment will be immense. The dam appears to have collapsed, and the reservoir behind it is now draining at speed. In this post I will just briefly set out the relevant framework of international humanitarian law regarding attacks against dams, and how it applies to the facts as we know them. Last year my friend and colleague Mike Schmitt wrote up two very detailed posts on the rules governing attacks on dams on Articles of War, and I will direct readers to those posts for a more detailed examination of these rules (here and here).
(1) Attribution – as things stand it is not yet clear who destroyed the dam. Ukraine is accusing Russia of having done so, while Russia is accusing Ukraine. While all communities affected are on Ukrainian sovereign territory, many of them are in those regions that Russia controls and claims to have annexed. The harmful consequences of the destruction of the dam are such (including e.g. in disrupting water supply to Crimea) that from the mere fact of the dam’s destruction we cannot with certainty conclude who did it, or in whose interest it was to do it. Obviously to me it seems more likely that Russian forces destroyed the dam, but this is not something that can simply be assumed.
(2) The relevant rules of IHL apply to “attacks”, and it is again not entirely clear whether there has been such an attack, defined by Art. 49(1) of Additional Protocl I to the Geneva Conventions as any “acts of violence against the adversary, whether in offence or in defence.” If the dam was damaged by Ukrainian shelling, as Russia claims, then this would qualify as an attack per Art. 49(2) AP I, which applies “to all attacks in whatever territory conducted, including the national territory belonging to a Party to the conflict but under the control of an adverse Party.” But if the initial damage to the dam was caused by Russia, e.g. by damaging a sluice gate which then in a catastrophic chain of events led to the collapse of the whole dam, it is somewhat less clear whether this event would qualify as an “attack.” Generally IHL does NOT regard as attacks the sabotage of a party’s own dam, as Mike explains in his second post. If, for example, Ukraine sabotaged a dam under its control in order to flood an area and prevent Russian troops from advancing, this would not be an attack on the dam in the sense of IHL, even if civilians died as a result. From Russia’s perspective the the Nova Kakhovka dam is precisely in such a situation, especially because it was under its control – even if as an objective matter the dam and the whole territory is under Ukrainian sovereignty. Again I will reserve my judgment here, my point is simply that the existence of an “attack” in the sense of IHL is not an obvious issue.
(3) If there was an attack against the dam, it would violate IHL if it ran afoul of rules on distinction, proportionality, and precautions. (I will only deal here with the first two).
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