Last updated 09/07/24: Online ordering is currently unavailable due to technical issues. We apologise for any delays responding to customers while we resolve this. For further updates please visit our website: https://www.cambridge.org/news-and-insights/technical-incident
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 23 November 2010
Water, life-giving and bounteous, the symbol of fertility and purity, is also a source of fear, risk and danger, of covetousness and conflict. Serving many purposes, all equally necessary, it constitutes a vital resource of which man has always tried to regulate the use and management. But unlike peacetime legislation, reflected in the customs and practices of the most ancient societies as well as in the domestic and international legal instruments of modern times, the law of armed conflicts has devoted only few of its provisions expressly — and belatedly — to water. This is not so much a criticism as an observation and may be explained by the fact that water is indispensable in all circumstances. Apart from the consequences of natural disasters, when water may be either threatening or threatened, some human activities can harm the environment and impair the population's means of survival, of which water is the most essential. The effects of pollution or armed conflict are a case in point. The experience of modern warfare has shown, alas, that the civilian population and civilian objects are exposed to military operations and that in some cases thirst can prove to be more deadly than weapons. The only remedy lies in respect for the universally recognized rules, and in the following article attention will be drawn to the provisions of humanitarian law which apply to the protection of water in wartime (I).
1 de Saint-Exupéry, Antoine, Wind, Sand and Stars, Penguin Books Ltd., Harmondsworth, England, 1969, p. 140 Google Scholar (Terre des Hommes, Gallimard, Paris, 1939).
2 There are few works dealing with the question, all the more credit being due to the International Law Association, which, at its 57th Conference in Madrid in 1976, adopted a resolution on the protection of water resources and water installations in times of armed conflict. See the text of the resolution in: International Law Association, Report of the Fifty-seventh Conference held at Madrid (August 30th, 1976, to September 4th, 1976), 1978, p. xxxiv. In 1966, the Association had already adopted the Helsinki Rules on the uses of waters of international rivers”, in which Article 20 was worded as follows: ‘In times of war, other armed conflict, or public emergency constituting a threat to the life of the State, a riparian State may take measures derogating from its obligations under this Chapter to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. The riparian State shall in any case facilitate navigation for humanitarian purpose”.
3 This issue will be on the agenda of the 26th International Conference of the Red Cross and Red Crescent (Geneva, 3–7 December 1995) which will be concerned inter alia with the protection of the civilian population and of items indispensable for its survival.
4 Recent works covering some aspects of the question include: Jacques Sironneau, “L'eau ressource stratégique”, in Géopolitique, No. 43, autumn 1993, Christian Chesnot, La bataille de l'eau au Proche-Orient, Paris, l'Harmattan, 1993; Ali Ihsan Bagis (ed.), Water as an Element of Cooperation and Development in the Middle East, Ayna Publications, Istanbul, 1994; Stefan Klötzli, “The Water and Soil Crisis in Central Asia — a Source of Future Conflicts?”, Center for Security Studies and Conflict Research, ETH, Zurich, May 1994.
5 Both customary law and treaty law contain rules which apply to the protection of the environment in wartime. In addition to Articles 35, para. 3, and 55 of 1977 Protocol I and the Convention on the Prohibition of Military or Any Other Hostile Uses of Environmental Modification Techniques, adopted by the UN General Assembly on 10 December 1976, there are some other rules and instruments which are worth mentioning. It is well established that belligerents do not have an unlimited right to adopt means of injuring the enemy (Regulations annexed to the Hague Convention No. IV of 1907, Article 22, and 1977 Protocol I, Article 35, para. 1). The same principle is reasserted in Resolution XXVIII of the 20th International Conference of the Red Cross (Vienna, 1965) and in the Preamble to the 1980 Convention on the use of conventional weapons, referred to below. There is also the rule prohibiting any destruction of enemy property unless demanded by the necessities of war (see below, section 2). Texts relating to the prohibition or limitation of the use of certàin types of weapons include: the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (Geneva, 17 June 1925), the Convention on the Prohibition of Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (London, Moscow, Washington, 10 April 1972), the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects and its Protocols I, II and III (Geneva, 10 October 1980) and the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and their Destruction (signed in Paris on 13 January 1993).
6 Lieber Code, Article 16.
7 Articles 13 (a) and 8 (a), respectively.
8 It is interesting to note that Islamic law explicitly forbids the poisoning of water (cf. M.A. Marin, “The evolution and present status of the Laws of War”, Course texts of the Academy of International Law of The Hague, Volume 92, 1957 (II), p. 657), even though classical doctrine admits the act of submerging enemy fortifications (Tabari, Ikhtilaf, ed. J. Schacht, Leiden, 1933, pp. 6–7). The Declaration adopted by the International Institute of Humanitarian Law of San Remo (1990) on the rules of international humanitarian law governing the conduct of hostilities in non-international armed conflicts extends to such conflicts the prohibition of ”the use of poison as a means or method of warfare” (section B, paragraph 3). (For the text of the Declaration, see IRRC No. 278, September-October 1990, p. 404).
9 Articles 6 (b) and 53, respectively.
10 Fourth Geneva Convention, Article 147.
11 The Hague Regulations, Article 46.
12 Ibid., Articles 28 and 47, and Fourth Geneva Convention, Article 33, para. 2. The law of non-international armed conflict also prohibits pillage (1977 Protocol II, Article 4, para. 2(g)).
13 Protocol I of 1977, Article 54, paragraph 2 (our italics).
14 Ibid., paragraph 5.
15 Commentary on the Additional Protocols of 1977 to the Geneva Conventions of 1949, Sandoz, Y., Swinarski, Ch. and Zimmermann, B. (ed.), ICRC and Martinus Nijhoff Publishers, Geneva, 1987, para. 2101, p. 655.Google Scholar
16 Protocol I, Article 54, para. 3.
17 Ibid., para. 4.
18 Protocol I, Article 56 and Protocol II, Article 15. The latter article corresponds, however, only to the first sentence of Article 56 in Protocol I.
19 Protocol I, Article 56, para. 1, second sentence.
20 Ibid., para. 2, sub-paras (a), (b) and (c).
21 Ibid., para. 4.
22 Ibid., para. 5.
23 Ibid., paras 6 and 7. Since the adoption in 1993 of amendments to Annex I of Protocol I, Article 16 of the Annex, referred to in Article 56, para. 7 of the Protocol, has become Article 17.
24 Protocol I, Article 85, 3 (c).
25 The aforementioned provisions of the Protocols will not be further examined here. Suffice it to say that transport by water is also a major and in some cases indispensable means of conveyance and even rest facility for protected persons, as indicated in the rules governing hospital ships and other medical craft. Besides the important provisions in Articles 54 and 56 considered above, Protocol I mentions water in other articles which reflect a broad approach and which grant medical facilities and persons extensive protection ”whether at sea or in other waters” (Protocol I, Articles 8 (b); 23, para. 1; and 44, para. 8). In a different context, water is referred to as a means prisoners of war can use for their escape (Third Convention, Article 91, para. 1 (3)).
26 Third and Fourth Conventions, Article 26, para. 3 and Article 89, para. 3, respectively.
27 Protocol I of 1977, Article 61 (a) (vii), (x), (xii) and (xiv) in particular.
28 Among its draft articles on the law of non-navigational uses of international watercourses, the United Nations International Law Commission adopted Article 29, entitled “International watercourses and installations in time of armed conflict”, which stipulates that “international watercourses and related installations, facilities and other works shall enjoy the protection accorded by the principles and rules of international law applicable to international and internal armed conflict and shall not be used in violation of those principles and rules.” See ILC report on its 46th session (1994), A/49/10, p. 315.
29 See ICRC Reference Report 1990, p. 82.
30 ICRC, 1991 Annual Report, p. 107.
31 In 1991, some 40 sanitary engineers took part in the ICRC's sanitation programme in Iraq. Ibid, p. 107.
32 Ibid., pp. 103 and 107.
33 See 1994 Annual Report, p. 234.
34 Ibid., p. 242.
35 In 1994, for instance, one of the ICRC's priorities in Bosnia-Herzegovina was to overcome water shortages and problems of access to drinking water. The National Societies helped the ICRC and continued to work alongside it, inter alia on water and sanitation programmes. See 1994 Annual Report, pp. 153–154.
36 Statutes of the Movement, Article 5, para. 2 (c) and ICRC Statutes, Article 4, para. 1 (c). For the texts of the Statutes, see Handbook of the International Red Cross and Red Crescent Movement, ICRC and International Federation of Red Cross and Red Crescent Societies, Geneva, 13th edition, to be published shortly.
37 See “Action by the International Committee of the Red Cross in the event of breaches of international humanitarian law”, IRRC, No. 221, March-April 1981, pp. 76–83.
38 International Symposium on Water in Armed Conflicts, Montreux, 21–23 November 1994. A report on this symposium is being prepared. See also Christian Chesnot, “L'arme de la soif’ in Hydroplus — International Water Review, January-February 1995, No. 50, pp. 16–20; Wilfried Remans, “Water and War”, in Humanitdres Volkerrecht, No. 1, 1995, pp. 4–14.
39 In its Final Declaration, the International Conference for the Protection of War Victims, held in Geneva from 30 August to 1 September 1993, urged States inter alia to “improve the coordination of emergency humanitarian actions in order to give them the necessary coherence and efficiency, provide the necessary support to the humanitarian organizations entrusted with granting protection and assistance to the victims of armed conflicts and supplying, in all impartiality, victims of armed conflicts with goods or services essential to their survival…” (Final Declaration, section II, para. 8). See the text of the 1993 Declaration in the Handbook of the International Red Cross and Red Crescent Movement, International Committee of the Red Cross and International Federation of Red Cross and Red Crescent Societies, Geneva, 13th edition, to be published shortly.
