Protections for the right to water are contained within several provisions o f the Geneva Conventions,605 with the most extensive provisions concerning civilians
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contained within the Additional Protocols. Unfortunately, as noted above, Israel is not a party to these protocols, but a certain number of these provisions that contain a water element can be viewed as within the rules o f customary international humanitarian law. For example, Protocol I, Article 54(2) Prohibition o f attacks on objects indispensable to the survival of the civilian population and Article 54(1) Prohibition o f starvation, are considered rules constituting custom. Likewise, under Protocol II, the mirror provisions covering these rules can be found under Article 14 and also amount to custom.607 Thus, Israel is bound by these rules, even though they are not a party to the protocols.
604 S ee d iscussion on the p ossib ility o f this on p .2 11.
605 In ter a lia G eneva C onvention (III) relative to the Treatment o f Prisoners o f War, 1949, A rticles 20, 26, 4 6 , 51; G eneva C onvention (IV ) relative to the Protection o f C ivilian Persons in T im e o f War 1949, A rticles 36, 4 9 , 76, 89, 91, 100 and 127.
606 Protocol A dditional to the G eneva C onventions o f 12 A ugust 1949, and relating to the Protection o f V ictim s o f International A rm ed C onflicts (Protocol I) 1977, A rticles 54, 55, 69 and Protocol A dditional to the G eneva C onventions o f 12 A ugust 1949, and relating to the Protection o f V ictim s o f N on - International Arm ed C onflicts (Protocol II) 1977, A rticles 14 and 18 (2).
The provisions protecting civilian persons’ right to water are comprehensive within these articles. Article 54 (2) states:
It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival o f the civilian population, such as food-stuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose o f denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.
This provision contains explicit recognition o f a right to water in that it protects water supply and access to water, as well as protecting a wider right to food and sustenance and civilian persons’ means o f survival. It is notable that all forms o f damage have been covered: direct attack or destruction, removal or any action that renders the object useless.
Under Article 54 (1) starvation o f civilians as a method o f warfare is prohibited. This provision contains an implicit right to water, as withholding water would be a primary element o f starvation. Furthermore, under Article 54 3(b) it does qualify what starvation entails, including, inter alia inadequate water.
This provision is reiterated in the Rome Statute of the International Criminal Court and if starvation as a weapon is extreme and part o f a wider campaign o f destruction
608 Article 54 (1), ‘Protection o f objects indispensable to the survival o f the civilian population’, Protocol A dditional to the G eneva C onventions o f 12 A ugust 1949, and relating to the Protection o f V ictim s o f International A rm ed C onflicts (Protocol 1), 1977.
then it can constitute a war crime or crime against humanity.609 Moreover, Skogly argues that severe violations o f economic and social rights, such as the deliberate withholding o f food and water causing starvation, should be seen as a part o f crimes against humanity.610 However, in much more subtle situations where there is covert discrimination o f food or water resources resulting in poverty and hunger then it may be possible to claim a breach under these provisions as contained within humanitarian law.611
Overall, these provisions are significant, as they explicitly take account o f specific water infrastructure and access and a wider right to water and food for survival.612 Crucially as noted previously, these provisions containing a water element are custom and therefore binding upon Israel. Moreover, the prohibition of starvation as a method o f warfare is in essence, a slightly different provision to the others included within the Geneva Conventions, as it relates not just to the protection o f non-combatants or prisoners o f war, but has its roots in the older tradition o f the laws o f war i.e. those
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rules governing methods and means o f warfare, which Israel accept as governing the occupied territories. As such, they are very important as a basis for establishing violations o f the human right to water.614
609 S ee R om e Statute o f the International Criminal Court 1988, A rticles 7, 1(b) and 2(b ) and 8, 2(b )(xxv). It is worth noting here that Israel is not a party to the R om e Statute o f the International Criminal Court 1998 (see discussion p. 178).
610 See S kogly. S, ‘C rim es A gainst Hum anity - R evisited: Is There a R ole for E conom ic and Social Rights? International Journal o f Human R ights. V o l.5, N o .l, Frank Cass: London, Spring 2 0 0 1 , pp.58- 80.
611 For further reading see Green L, 2 0 0 0 , pp. 142-144. A lso, Provost. R, ‘Starvation as a W eapon: Legal Im plications o f the U nited N ations Food B lockade A gainst Iraq and K uw ait’ in C olom bia Journal o f Transnational Law. 1992, 30, pp .577-632.
612 Under Protocol II, Article 14, these tw o provisions are com bined to give sim ilar protection o f a right to water.
613 See prohibition o f poison and p oisoning within the Hague R egulations 1907, A rticle 23(a).
614 It is also notable that the rules contained w ithin A rticle 54 are contained w ithin the Israeli M ilitary M anuals confirm ing state practice and a national legal basis for this provision. See Israel Manual on the Laws o f War in the B attlefield, M ilitary A dvocate General HQ, M ilitary S chool, 1998, p.22, p.88,
Another provision that has its basis in the laws o f war, rather than humanitarian concerns, is Article 55(1) of Protocol 1 concerning environmental damage due to means o f warfare. Although not explicit in mentioning water it can be interpreted as including prohibition o f means o f warfare which could pollute the water supply directly, or through pollution of the land and it is notable that it refers to the health and survival o f the population, humanitarian concerns that are key elements o f the right to water:
Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition o f the use o f methods or means o f warfare, which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival o f the population.615
As noted previously, the prohibition of starvation as a weapon has most recently been enshrined within the Rome Statute of the International Criminal Court,616 under Article 8 (2)(b)(xxv) prohibition of intentional starvation by attacks on objects indispensable to the survival o f the civilian population and Article 7 (2)(b) prohibition o f deprivation o f access to food causing extermination. These articles reaffirm the provisions found within the Geneva Conventions and Additional Protocol I Article 54
p. 137, p .213. S ee also Henckaerts. JM and D osw ald-B eck. L, 2 0 0 5 , V ol. I, p .188, p .1 9 0 and V ol. II, p.4201. R egarding prohibition o f attacks on objects essential for survival o f civilians, exceptions, see Israel Manual on the Laws o f War in the B attlefield, 1998, p.316. A lso see Henckaerts. JM and D osw ald -B eck . L, 2 0 0 5 , V ol. I, p. 192.
615 Protocol A dditional to the G eneva C onventions o f 12 A ugust 1949, and relating to the Protection o f V ictim s o f International A rm ed C onflicts (Protocol 1), 1977 Article 55(1).
(1) and (2) and Additional Protocol II Article 14. Article 7, 2 (b) states that a crime against humanity includes, ‘the intentional infliction o f conditions o f life, inter alia
the deprivation o f access to food and medicine, calculated to bring about the destruction o f part o f a population’. However, to constitute a crime against humanity the deprivation o f food or water must be part of a systematic or sustained attack
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resulting in death. Therefore, for cases of a lesser nature where deprivation o f water caused ill health but not death, this provision could not be invoked.
In contrast, deprivation o f water as starvation could be provided for under Article 7, 1(h) Persecution, as although this paragraph does not include explicit reference to food, ‘severe deprivation o f fundamental rights’ could include the right to water. However, any violations would be conditional ‘by reason o f the identity o f the group or collectivity.’618 Despite this, significantly, this provision could take account o f deprivation o f water, which results in lesser degrees of harm than necessary for extermination i.e. not just that which results in death.
This is also true o f violations o f the right to water under Article 8, ‘War Crimes’, which, again, prohibits starvation o f civilians as a method of warfare, including impeding relief supplies and attacks upon civilian objects, which could include for example water installations.619
However, whereas to constitute a crime against humanity warfare does not necessarily have to be taking place, for Article 8 to apply, starvation by deprivation o f water and
617 A rticle 7, 1 (b), R om e Statute o f the ICC 1988. 618 A rticle 7, 2 (g ) R om e Statute o f the ICC, 1988. 619 See A rticle 8, 2 R om e Statute o f the ICC, 1988.
or destroying civilian objects such as water installations must be part o f a nexus of warfare. The intent has to be that the perpetrators were aware o f Geneva Conventions and failed to abide by or violated purposefully the provisions. This does include however, situations o f occupation as provided for under Geneva Convention IV and Additional Protocols I and II. Furthermore, deprivation o f water could be a part of genocide as provided for under Article 6. This would entail ‘Deliberately inflicting on the group conditions o f life calculated to bring about its physical destruction in whole
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or in part.’ As such deprivation o f water would have to be part o f wider campaign to deny basic needs for survival, with intent to destroy a particular group in the whole or in part. An example of such a policy is illustrated by the conflict in Bosnia Herzegovina.621
In the main, the provisions relating to a right to water contained within the Rome Statute reaffirm basic premises that can be seen in international humanitarian law, for example prohibition o f starvation as a means of warfare and deprivation o f objects indispensable to civilians’ survival, but the important difference being that these violations can now be tried in court. Consequently, the provisions within the Rome Statute represent a significant development in terms o f stricter enforcement and remedy for breaches o f international humanitarian law and hence the right to water during conflict. As Rosas and Sandvik-Nylund note: ‘The obligations o f parties to conflicts and third states relating to humanitarian assistance could be underlined by a
620 A rticle 6 (c), R om e Statute ICC, 1988.
621 Security C ouncil R esolution 819 (1 9 9 3 ), para.8 required that humanitarian assistance be delivered w ithout im pedim ent to all areas o f B osnia and H erzegovina. H ow ever, these re lie f supplies w ere
prevented from getting through. The U N M ission set up pursuant to this resolution reported that
‘Im pedim ents to the delivery o f humanitarian assistance constitute a serious violation o f international humanitarian la w ’ and that im pedim ents o f such kind together w ith cutting o f electricity and water supplies ‘have put into effect a slow m otion process o f g en o cid e.’ U N Security C ouncil M ission to Bosnia H erzegovina. Report o f the Security C ouncil M ission set up pursuant to R esolution 819 (1993), U N doc. S /2 5 7 0 0 , 30 April 1993, p.6, para 19. See also R osas. A and Sandvik-N ylund. M, ‘Arm ed C on flicts’ in Eide et al, 2 0 0 1 , p p .4 0 7 -4 2 1 at p .4 18.
more vigorous emphasis on the notion o f criminal responsibility.’622 This would now seem to be operational to a degree. However, the provisions regarding water are conditional on certain criteria, for example, group identity. Moreover, the threshold for establishing a breach is very high. As such, the provisions under the Geneva Conventions may be more useful for establishing day-to-day violations o f a right to water.
Specifically in regard to Israel and the OPTs, despite signing the Rome Statute on 31 Dec 2000, Israel ultimately voted against the Statute.623 Following signature, the Government o f Israel sent a communication to the UN Secretary-General, stating that Israel had no intention o f ratifying the statute and ‘Accordingly, Israel has no legal obligations arising from its signature on 31 December 2000. Israel requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty.’624 Furthermore, at a recent conference, Israeli human rights NGOs analysed the trigger mechanisms for the ICC to have jurisdiction and noted that with regard to Israel, as o f today only the Security Council would be in a position to refer a case o f a crime committed on Israeli territory or by an Israeli citizen.625 However, significantly, in theory Israel is bound by these provisions relating to prohibition o f starvation and destruction o f civilian objects, as they
622 R osas. A and Sandvik-N ylund in Eide. A et al, 2 0 0 1 , p p .407-421 at p .4 17.
623 On July 17th 1998, Israel voted against the R om e Statute along w ith six other states: U nited States, China, Iraq, Libya, Qatar and Y em en.
624 R om e Statute o f the International Criminal Court, Rom e, 17 July 1998, Israel, N o te 3, submitted on A ugust 2 8 th 2 0 02. See U N w ebsite, International Law, ICC, R atification status o f the R om e Statute, http://untreaty.un.oriz/ENGLISH /bible/enizlishinternetbible/partl/chapterX V IIl/treatyl l.a s p # N 3 . Last updated, 19 D ec 2 0 03. A ccessed 2 0 th June 06.
625 Participants also criticised the signature by Shim on Perez and John B olton on A ugust 4 th 2 0 0 2 o f a reciprocal bilateral im m unity agreem ent that forbids the surrender o f A m erican or Israeli nationals to the ICC, w ithout the consent o f the national’s governm ent. See International Federation for Human R ights (F ID H ) ‘Prominent Israeli Human Rights O rganizations M et Last W eek To D iscu ss The International Criminal Court’, Posted W ednesday 14 June 2 0 0 6 , a t Israel & O ccupied Palestinian Territories, http://ww w.fidh.oriz/article.php37id article= 3402. A ccessed 14 June 2 006.
constitute customary rules o f international humanitarian law, accepted by Israel under the Hague Convention 1907 and binding as custom under the Geneva Conventions and Additional Protocols.
In addition to the provisions within the Additional Protocols, there are applicable provisions within the Geneva Conventions themselves, under which Israel are obligated, as they have ratified the Conventions. Under Geneva Convention (IV) relative to the Protection o f Civilian Persons in Time o f War 1949 (GC IV), Article 55 protecting maintenance o f food supplies and Articles 23, 59, 60, 61 and 62, all concerning relief schemes, are applicable to the civilian population o f the OPTs in general.626
Article 55 is a broad provision detailing the obligations on the part o f the occupying power, in this case Israel, to protect a right to food and as a consequence an implicit protection o f water:627
To the fullest extent o f the means available to it, the Occupying Power has the duty o f ensuring the food and medical supplies o f the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources o f the occupied territory are inadequate.
The Occupying Power may not requisition foodstuffs, articles or medical supplies available in the occupied territory, except for use by the occupation
626 Other articles w ithin G eneva C onvention (IV ) are applicable to r e lie f and sp ecific groups, for exam ple internees. S ee A rticles, 108, 109, 110 and 111. See also A rticle 89 regarding drinking water and internees and A rticle 85 concerning water for sanitation and h ygiene o f internees.
627 The connection betw een the right to water and the right to food is acknow ledged in C ESC R GC 15. See previous d iscu ssion , Chapter 1.
forces and administration personnel, and then only if the requirements o f the civilian population have been taken into account...
The Protecting Power shall, at any time, be at liberty to verify the state o f the food and medical supplies in occupied territories, except where temporary restrictions are made necessary by imperative military requirements.628
This article expands greatly the obligations of the occupying power to help ensure the basic needs o f the population are met. Under Article 43 o f the Hague Regulations, the provision spoke only o f a responsibility to maintain public order and safety.629 It is also interesting to note that there is also an obligation here, on the part of the protecting power, to monitor the food situation within the occupied territory, ‘except where temporary restrictions are made necessary by imperative military requirements’. This would seem to indicate a monitoring mechanism to ensure that this protection is being upheld, or at least to be aware if it is breached and take action. However, in practice the concept of a ‘Protecting Power’ is problematic and has only been used twice since WWII: during the Suez conflict 1956 and Goa 1961.
The ‘sister’ article to Article 55 is Article 69 o f Additional Protocol I Basic Needs in