Why blowing up Ukraine’s Nova Kakhovka dam is a war crime

The blame game is on. Ukraine has insisted that Russia exploded the Nova Kakhovka dam earlier this week in a part of southern Ukraine currently occupied by the Kremlin’s forces. Russia claims the dam was a victim of sabotage by Ukraine.

Yet whatever the truth, one thing should be abundantly clear: In times of war, humanity has an atrocious history in the way that it inflicts pain upon its opposition. And destroying structures like dams, which can cause excessive damage to both people and their surrounding environments, has been a sadly common practice for centuries. The flooding that is now devastating the regions around Nova Kakhovka, forcing the evacuation of thousands of civilians, is only the latest example of this cynical practice.

The intentional destruction of dams or dykes as a method of warfare goes back to at least the 16th century and the Eighty Years’ War between the Spanish army and Dutch rebels over territory that is today part of the Netherlands and Belgium. These belligerents discovered that flooding areas made it very difficult for enemies to advance, greatly reducing the mobility and speed of opposing armies.

Such practices of either destroying dams or “scorching the earth” to impede the progress of the opposition continued unabated into the 20th century during times of warfare.

In the second world war, the destruction of dams gained global notoriety with the so-called Dambusters raid during which British forces attacked three German dams in May 1943. During the Korean War, the United States military, working under a United Nations banner, led a bombing campaign against North Korean hydroelectric facilities.

While the ostensible aim of such attacks was always to gain a battlefield advantage and hurt the enemy’s industrial capabilities, they invariably also caused extensive damage to civilian populations.

By the time of the Vietnam War, such blunt warfare was frowned upon, and by 1977, the majority of the international community was ready for what is known as Additional Protocol I to the Geneva Conventions. Two new rules attempted to keep acts of warfare from being excessively inhumane, disproportionate and/or indiscriminate.

First, with regard to the environment, it was decided that: “Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.”

Second, in terms of “works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations”, these areas “shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population”.

The only time that this special protection against attacks on dams and dykes does not apply is if the installation is effectively being used to support military operations and if attacking it is the only way to terminate that support. There is no evidence that the Nova Kakhovka dam was being used to support military actions.

Despite the clear humanitarian value of these rules, the US never ratified Additional Protocol I and although Russia originally ratified it, President Vladimir Putin removed Moscow’s signature from these obligations in 2019. Ukraine remains a signatory.

As Russia is no longer a signatory, it could be argued that these rules do not apply to them. The counterargument is that whether countries sign up or not, these obligations are so common now that they are considered customary and binding on all countries, at all times. The problem with this assertion is that no one has ever been brought to justice for attacking dams, and some countries have continued to target such structures. This occurred when the US in its war against ISIL (ISIS) reportedly bombed Syria’s Tabqa Dam in 2017, despite warnings that the strike could lead to tens of thousands of deaths.

Where there might be greater clarity is with the International Criminal Court (ICC). This body, set up at the end of the 20th century is clear that war crimes include “intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or 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”.

Although the US, Russia and Ukraine are not parties to the statute that undergirds the ICC, Kyiv has twice exercised its prerogatives to accept the court’s jurisdiction over alleged crimes occurring on its territory.

The ICC has accepted this jurisdiction and has already issued its first arrest warrants, including for Putin, for the alleged war crime of unlawful deportation of children and the unlawful transfer of children from occupied areas of Ukraine to Russia. It would be a very small step for the ICC to now start investigating the destruction of the dam as another potential war crime.

While there are strong arguments for setting a new precedent to punish these brutal practices of attacking dams, the greater challenge is whether accountability will ever be achieved for such crimes and whether restitution for damage caused will ever be delivered. When eventually this war stops, these questions of accountability and restitution for crimes committed will go to the heart of any eventual peace deal that is concluded.

Until that is decided, what we are watching is the continual erosion of norms that are meant to keep restraints on warfare. The implications of this are much larger than just the loss of the dam or even debates about war crimes.

Whoever is responsible for the destruction of the dam is trying to force the principles of humanity backwards to a point where acts against civilians — causing indiscriminate and disproportionate damage — become acceptable. And where one such crime occurs, others may easily follow as the wider world becomes desensitised to such barbarity.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.