The following essay by Dr. Mara Tignino and Ms. Öykü Irmakkesen is a summary of their recently published monograph (under the same title), which appears in Vol. 5(2) 2020, pp. 3-104 of Brill Research Perspectives in International Water Law. Dr. Tignino is Lead Legal Specialist at the Platform for International Water Law at the Geneva Water Hub and Reader at the Faculty of Law and the Institute for Environmental Sciences at the University of Geneva. She can be reached at mara.tignino@unige.ch. Ms. Irmakkesen is Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights and former Researcher at the Geneva Water Hub. She can be reached at oeykue.irmakkesen@unige.ch.
Water infrastructures have been objects of attacks and weaponized in several armed conflicts throughout history. While such acts are invariably condemned by the international community, a thorough study of the legal framework on the protection of water infrastructure had until now been missing. However, as demonstrated in the monograph, protection of water infrastructure is essential to the protection of the environment and civilians during armed conflicts. Damaging or destroying these infrastructures can lead to the contamination of water resources and a disruption in the vital services they provide including water for personal and domestic uses, water for irrigation, and water for energy supplies.
This monograph is based on a project carried out by the Geneva Water Hub and its Platform for International Water Law. The project was triggered by the final report of the Global High-Level Panel on Water and Peace, A Matter of Survival. The report’s second chapter, entitled ‘Into the Abyss: Water in Armed Conflicts’, contained several recommendations, mainly addressed to the UN Security Council, including strengthening the respect for and implementation of international humanitarian law for better protection of water resources.
The main section of the monograph is the Geneva List of Principles on the Protection of Water Infrastructure and its commentary. The Geneva List includes principles applicable in peacetime, during armed conflicts and in post-conflict situations. These principles bring together rules regulating the protection of water infrastructure under international humanitarian law, international human rights law, international environmental law and international water law. Moreover, some principles also reflect recommendations that go beyond the existing law, which are largely built upon the practice of parties to past and current conflicts and well-recognized soft law documents, such as the Berlin and Madrid Rules of the International Law Association.
Certain types of water infrastructure are specially protected under international humanitarian law. For example, drinking water installations and irrigation works are protected under a special regime as objects indispensable to the survival of the civilian population (Article 54 of the First Additional Protocol and Article 14 of the Second Additional Protocol to the four Geneva Conventions of 12 August 1949 relating to the protection of victims of international and non-international armed conflicts, respectively). Likewise, dams are also accorded special protection as they are considered to contain dangerous forces (Article 56 of the First Additional Protocol and Article 15 of the Second Additional Protocol to the Geneva Conventions). Additionally, all water infrastructures are protected by the general rules on the conduct of hostilities as long as they remain civilian objects. For example, the principle of proportionality prohibits launching an attack that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated (Article 51(5)(b) of the First Additional Protocol to the Geneva Conventions). This principle is particularly important in urban warfare contexts where the interconnectedness of infrastructure results in knock-on effects of the damaging or destruction of only one component. Such reverberating effects, which may not take place in the immediate aftermath or vicinity of the attacks but are foreseeable, must be taken into account by the parties to conflicts in their proportionality assessments.
Finally, the monograph concludes with a short section that delineates the perspectives of the authors on the possible challenges ahead, for example, due to climate change and proliferation of cyber warfare. This part also sets forth next steps to be taken based on the Geneva List of Principles by the Geneva Water Hub and explores the idea of creating a mechanism to monitor damages to water infrastructure during armed conflicts.
The writing of the Geneva List of Principles coincided with several related projects by different actors. Notably, the International Law Commission has provisionally adopted the draft principles on the protection of the environment in relation to armed conflict on first reading in 2019. The International Committee of the Red Cross has been updating its 1994 Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict and is expected the publish the new guidelines by the end of 2020. During the drafting and publication process of the Geneva List of Principles, the Geneva Water Hub also cooperated with UNICEF, which launched its Water Under Fire campaign in March 2019. These initiatives highlight the increasing interest in revisiting rules and issues relating to the protection of water and the environment, also with the aim of enhancing the protection of civilians from the effects of armed conflicts.
You can access the monograph here.
