The following essay by Dr. Mara Tignino is a summary of her recently published monograph (under the same title), which appears in Vol. 1.4, 2016, pp. 1-111, of Brill Research Perspectives in International Water Law. Dr. Tignino is a Senior Lecturer and Coordinator of the Platform for International Water Law, Faculty of Law, University of Geneva. She can be reached at Mara.Tignino@unige.ch.
Armed conflicts affect water in several ways: destruction and damage of water facilities, attacks against power plants providing water supplies, and the collapse of water treatments and sewage systems. Air strikes conducted against water and electrical facilities in Syria and the contamination of groundwater resources in Gaza illustrate the many dimensions of armed conflicts’ impact on water. In my monograph, I examine the different regimes applicable to water during and after armed conflicts. Starting from an analysis of the rules of international humanitarian law (IHL), I also explore human rights law and international water law. I argue in favour of the complementarity of these regimes. To allow for this complementarity to exist, I support the establishment of a single instrument that would gather all the rules protecting water during and after armed conflicts.
IHL specifically protects water supplies required by civilians. The First and Second Protocols to the Geneva Conventions (relating to the Protection of Victims of International Armed Conflicts, and to the Protection of Victims of Non-International Armed Conflicts, respectively) prohibit States and armed groups from attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population, such as drinking water installations and supplies and irrigation works. Despite these protections, exceptions exist where water-related installations are used “as sustenance solely for the members of its armed forces” or if they provide “direct support of military action”. While some water supplies could serve armed forces, such exceptions may not be sufficient if military action results in depriving civilians of necessary water supplies. Indeed, Article 56 §3 states that warring parties must refrain from acts that may be expected to reduce the civilian population to starvation, or cause them to move away.
Hostilities increasingly take place in urban environments. The urbanisation of conflicts heightens the risk of extensive damage to civilian objects such as electrical facilities. Experience has revealed the interconnections between electricity, access to water and public health. If a power plant is targeted as a military objective, damage to electricity networks can lead to interruption of water services and treatment of wastewaters. In some cases, electrical installations have been considered as “dual-use” objects. This means that they can be used for the civilian population as well as for military purposes. Although electrical facilities are protected under the rules of IHL as civilian objects, the scope of these norms is uncertain and in need of clarification.
During armed conflicts, warring parties often seek to control dams and dikes. Controlling strategic dams on the Tigris and Euphrates rivers has been at the centre of military operations carried out by the Islamic State in Syria and Iraq. Dams and dikes enjoy special protection under IHL. Both Article 56 of the First Protocol and Article 15 of the Second Protocol respond to the concern that the partial or complete destruction of dams and dykes could have catastrophic impacts on the population. However, the control of these installations is not covered by these provisions.
To address this shortcoming, I engage with other areas of international law, such as human rights law and international water law. I argue that they can contribute to the protection of water in time of armed conflicts, including through human rights instruments and mechanisms. Post-conflict human rights investigatory mechanisms such as the Commission of Inquiry on Lebanon and the Fact Finding Mission on the conflict in Gaza have dealt with the protection of water and electrical facilities. Besides, a panoply of international water agreements can protect water during and after armed conflicts. It is not uncommon to see watercourse States continue to apply them, and representatives of States in conflict often meet in joint mechanisms.
In addition, I explain that the rules of IHL should be interpreted by taking into account human rights law and international water law. Such a reading of the law can consolidate peace after armed conflicts. As water is particularly vulnerable to the impacts of armed conflicts, its protection should be reinforced by placing more emphasis on the similarities rather than the differences between norms found in instruments of international law. This will contribute to strengthening the protection of this natural resource in times when it is most at risk. A cumulative view of those norms is not only desirable, it is also consistent with a growing humanity-based framework used by courts, tribunals, and other international bodies, as well as by scholars, to reflect upon conflicts.
The entire article is available here.