Ukraine’s president, Volodymyr Zelenskyy, is likely right when he labels the Nova Kakhovka Dam destruction the “largest man-made environmental disaster in Europe in decades.” Accountability for those responsible for the disaster is already being called for – and more voices will be added in the days ahead. If, as most now suspect, Russia is somehow behind the attack, many will look towards the International Criminal Court (ICC) to make that happen. But is the ICC Prosecutor likely to investigate the Nova Kakhovka Dam destruction, and if so, what are the conditions?
The ICC, which already has opened an investigation covering crimes in the Ukraine war and in March this year issued arrest warrants for President Vladimir Putin and his associate, Maria Lvova-Belova, claims to “belong” in the so-called “rules-based international order” – and this is central for understanding the conditions of what could potentially become the Court’s first environmental crimes investigation.
Legal Requirements Under Article 8(2)(b)(iv)
Without digging too much into the legal details, the Nova Kakhovka Dam destruction could in principle be prosecuted under various provisions in the ICC Statute, including the war crime of intentionally directing attacks against civilian objects and a provision discussed below concerning attacks that cause serious damage to the natural environment. It could possibly also be prosecuted as a crime against humanity, potentially with reference to utilizing environmental destruction to attack the civilian population.
There are several reasons why the ICC might want to demonstrate capacity to investigate the Nova Kakhovka Dam destruction as an environmental crime. While the Court’s mandate is fairly limited in that regard, Article 8(2)(b)(iv) does permit the prosecution of the war crime of “intentionally launching an attack in the knowledge that such attack 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.” The cumulative requirements of widespread, long-term, and severe are difficult to meet in most situations involving environmental damage in conflict situations.
Without yet knowing the full details concerning the long-term impact of the Nova Kakhovka Dam destruction, it appears exactly the type of situation that could meet these three cumulative requirements. The damage happening already is indisputably widespread, a term normally understood to require impact on an area of at least several hundred square kilometres. It is also clearly severe from what we know at this point. The longer-term impact for the environment can of course not be fully assessed yet, but will almost certainly be felt for generations.
As Marko Milanovic explains here, the more complex legal point concerns whether the act of blowing up the dam amounts to an “attack.” While Milanovic’s observations are focused on international humanitarian law, similar considerations would apply in the context of interpreting the term “attack” in Article 8(2)(b)(iv) (and other war crimes provisions requiring an “attack”) in the ICC Statute. This term is subject to some uncertainty, but the prevailing view is that sabotage of “a party’s own dam” does not normally amount to an attack. The fact that Russia occupied the Nova Kakhovka Dam could, depending on how “own” is understood, prove a challenge to successfully prosecuting a potential Article 8(2)(b)(iv) case against Russian actors.
However potential challenges on that note at the prosecution stage – should it ever come to one – are unlikely at this point to be the main factor in the ICC Prosecutor’s decision-making concerning whether the Nova Kakhovka Dam destruction should be in the first place investigated.
Incentive for the ICC Prosecutor to Investigate the Nova Kakhovka Dam Destruction
To date, no charges have been brought under Article 8(2)(b)(iv), despite the stated commitment of the ICC Prosecutor to “give particular consideration” to prosecuting crimes that are associated with “the destruction of the environment,” and despite the fact that various serious environmental crimes have in the past been brought to the attention of the Prosecutor (see, e.g., here and here). Critique has been mounting in recent years for the Prosecutor failing to give effect to these commitments, and there are calls for adopting a new crime of “ecocide” in the ICC Statute which, if adopted, would vastly expand the Court’s jurisdiction over environmental crimes.
The Nova Kakhovka Dam destruction provides the ICC Prosecutor with exactly the incentive needed to counter this criticism by investigating the incident under existing ICC Statute provisions, mainly because it would permit the Court to prove its relevance to a global audience increasingly demanding accountability for environmental crimes. The Court’s Prosecutor could therefore see this as an “opportunity” to boost institutional interests by proving that the ICC is willing to direct its attention towards crimes affecting the environment. In this case, declaring an investigation of the incident could be portrayed as a timely response to the nearly global outcry over the dam’s destruction and calls for accountability for an act of war with indisputable massive, long-term environmental implications along with devastation for the communities along the Dnipro River.
Additionally – and assuming for now that actors aligned with Moscow are indeed responsible for the incident – it is in a sense an “easy case” for the ICC to investigate (not to confuse with successfully prosecuting and enforcing). Key funders and supporters of the Court in the rules-based international order, who have already provided unprecedented support for the ICC’s Ukraine investigation, would without doubt welcome an investigation targeting persons responsible for the Nova Kakhovka Dam destruction – that is, in so far as these persons are linked to Moscow. As Sergey Vasiliev explains, the ICC’s actions in Ukraine are in “perfect alignment with the consolidated position of powerful Western/Global North military and economic alliances (NATO and EU) against a common foe they are determined to defeat on all fronts, including the legal one.” If that “common foe” appears responsible for what could be among the worst environmental catastrophes happening in an armed conflict in decades, key audiences of the Court will call for it to act, and they will do so with a determined voice.
At the same time, the fact that Russia, a nuclear power and permanent member of the U.N. Security Council, is in some ways a “powerful” State permits the ICC Prosecutor to portray a potential investigation of the dam destruction as confirming the Court’s commitment to go after “the powerful” in instances of environmental crimes, something that would please ecocide campaigners and other environmentalists. Of course, such as narrative does not account for the ICC’s futile attempts to challenge powers in the West, for crimes in Afghanistan or Iraq, but it may still be seen as a good selling point in the Prosecutor’s Office.
What if it Wasn’t Russia, but Ukraine, Blowing Up the Dam?
The above considerations assume agents of Russia are behind the attack, but at this point it is by no means clear that Moscow is actually responsible for the dam destruction, itself claiming innocence, just like Kyiv. If, as perhaps was the case with the Nord Stream pipeline attack, it looks more likely that Moscow is not the culprit here, the ICC’s options would perhaps be perceived differently.
Human rights and environmental groups would presumedly call for the Court to proceed with an investigation regardless of what way the evidence will point. And doing so could, in principle, be an opportunity for the ICC to demonstrate an unbiased approach to its investigations – and thus an opportunity to counter criticism of selectivity. But as European leaders already on the day of the dam’s destruction blamed Russia for the attack and in light of the general instrumentalization by Western actors of the ICC’s investigation in Ukraine pointed to above, any ICC activity that runs counter to this narrative will inevitably be a much harder sell for the Court.
Longer Term Implications for Environmental Crimes Accountability
The Nova Kakhovka Dam destruction, already labelled an act of “ecocide” by some, including the Ukrainian leadership, will undoubtedly reinforce calls for the ICC to focus more on environmental crimes and further energize the ecocide movement. Depending on how circumstances develop in the time ahead, the ICC could be tempted to open its first-ever environmental crimes investigation. This would be symbolically significant and a major development in international criminal justice.
However, even if such an investigation moves forward, we should not forget the challenges experienced with enforcement at the ICC level. Neither should we forget that potential environmental crimes accountability at the ICC will assumedly operate on similar conditions to those defining the Court’s operations to date. The result is that the Court can proceed with confidence when operating in line with the interests of key players in the rules-based international order but is drastically limited in its options if seeking to challenge these interests – and that is a real obstacle to providing meaningful accountability for environmental crimes at the ICC in the longer run.