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The Problem

Over the long history of human conflicts, a set of ethical standards and legal constraints have evolved to try to limit or ban certain actions, behaviors and weapons, and to protect certain populations and assets from destruction. In theory, these rules and codes of conduct, referred to as jus in bello ("the law in waging war") or "international humanitarian laws," help to protect civilian populations, prisoners of war, medical personnel and facilities, and non-military property and infrastructure including the environment.

In practice, however, these laws have largely failed to prevent attacks on basic civilian infrastructure and the natural environment, and they do not appear to impose accountability on governments in a way that limits military operations. Extensive evidence shows the growing effects of armed conflicts on civilians, built infrastructure and the natural environment especially water. Similarly, threats such as climate change are worsening the risks of agricultural failure, coastal flooding, population displacement, economic disruption and political failures contributing to violent altercations. Over the past few decades, persistent war and violence by nation-states and subnational groups has led to the "de-development" of entire countries, including Iraq, Syria, Yemen, Afghanistan and others. Infrastructure has been destroyed, incomes and quality of life has plummeted, fertility and life expectancies rates have fallen, infant mortality and unemployment has soared, large numbers of people have been physically displaced from their homes and lives, and even the most rudimentary aspects of survival have been challenged, including access to basic energy and safe water and sanitation. In Yemen, for example, attacks on civilian water systems have led to a massive epidemic of cholera, with over 1 million cases reported and over 2,000 deaths.

Three core problems exist: The current international laws of war inadequately protect natural resources and the environment in the context of civil war or local conflicts. Militaries and armed groups inconsistently identify and differentiate among legitimate and illegitimate targets and ambiguous language in current laws and agreements creates loopholes for the military. And the enforcement of laws of war and punishment of violators of these laws are rare and subjective.

Yet disdain for and prohibition against intentionally targeting civilian infrastructure is rooted in custom, religious rules and ethical codes of behavior that go back thousands of years, to early Sanskrit, Jewish, Christian, Islamic, and other cultures. In the fourth century BC, Alexander the Great tore down defensive weirs built by the Persians along the Tigris River, describing attempts to block access along the river as "unbecoming to men who are victorious in battle." In 1439, Charles VII of Orleans instituted a law holding officers responsible for "the abuses, ills and offences" committed by the men they commanded. The Lieber Code of 1863, promulgated by President Lincoln during the U.S. Civil War, provided guidance for Union armies in the field, stating in part: "Military necessitydoes not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult The use of poison in any manner, be it to poison wells, or food, or arms, is wholly excluded from modern warfare. He that uses it puts himself out of the pale of the law and usages of war."

It must be noted, of course, that these guidelines failed to prevent or constrain extensive human rights abuses during the Civil War, including General Sherman's historically destructive march across Georgia laying waste to towns, farms and all symbols of civilian society acts that still reverberate in the region today.

Modern versions of international principles and laws evolved from these early guidelines. The humanitarian justification for these protections rests on the understanding that access to basic resources like water and sanitation, or protection of the environment, is critical for human health and the prevention of enormous human suffering. The first Geneva Convention in 1864 called for protecting non-combatants, prisoners of war and wounded soldiers. As time went on, these protections became more well-defined: The1868 St. Petersburg Declaration states "the necessities of war ought to yield to the requirements of humanity" and "the only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy." The 1874 Brussels Protocol forbids "any destruction or seizure of the enemy's property that is not imperatively demanded by the necessity of war." The first Hague Conventions and Declarations (of 1899 and 1907) sought "to diminish the evils of war, as far as military requirements permit" and included the famous Martens Clause:

"Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience."

After the Second World War, efforts were made to develop even stronger legal protections for civilians and infrastructure. The 1949 Fourth Geneva Convention's Article 53 prohibits deliberate or indiscriminate destruction of property belonging to individuals or "the State, or to other public authorities" and Article 147 bans "extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly." Even more explicit civilian and environmental protections were developed with the 1977 Protocols to the Geneva Convention, including Protocol I, which limits warfare that causes "superfluous injury or unnecessary suffering" or "widespread, long-term and severe damage to the natural environment"), prohibits indiscriminate attacks on civilians and civilian infrastructure and protects civilian infrastructure critical to the survival of civilian populations. The 1977 Protocols also prohibit military actions when the "collateral damage" to civilian objects and noncombatants is excessive in relation to the military gains.

Other international declarations, laws and agreements explicitly protect the environment and natural resources from war and conflict. The 1976 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques includes specific protection of the "hydrosphere" and bans "weather modification" with the intent of causing damage or destruction. The World Charter for Nature and similar language in the Stockholm Declaration and Rio Declaration says that States shall "ensure that activities within their jurisdictions or control do not cause damage to the natural systems located within other States" and "nature shall be secured against degradation caused by warfare or other hostile activities."

But the question remains: Are these protections relevant or sufficient to address the threat of human-caused climate changes and related threats to resources?

The State of Current International Laws of War

All these efforts, legal statements and principles fail to adequately protect civilians and the environment during armed conflicts. The 1991 civil war in Somalia destroyed the water system, which in turn contributed to outbreaks of cholera affecting 55,000 people. The destruction of Yemen's urban water system between 2016 and 2019 has led to massive cholera outbreaks and suffering. ISIS attacked major dams along the Tigris and Euphrates rivers and used them as weapons to either deny downstream populations of water or to flood areas for military purposes.

Recent trends related to water offer insights into the weaknesses and limitations of current international humanitarian environmental law. The Water Conflict Chronology database identifies water as a trigger, weapon and casualty of armed conflict. The chart shows the number of recorded events, per year, since 1930 and the dramatic increase in recent years. When characterized by the type of conflicts, we also see a shift from nation-to-nation conflicts toward sub-national events including riots, civil wars, and terrorism.

The chart shows a large increase in the number of reported events after the mid-1980s. Conclusions about trends in water-related conflicts should be made with caution because of changes in media coverage, access to broader sources of information and increased attention focused on the problem. Nevertheless, incidences of water-related conflicts have been rising rapidly. While the use of water as a weapon and attacks on water systems can be found in every time period and continent (except Antarctica), the past decade has seen a dramatic increase in such attacks focused in the Middle East and North Africa particularly in Iraq, Syria, Yemen involving civil conflicts with major outside and proxy forces.

These trends suggest serious limitations to the protections offered by current humanitarian laws of war.

Most constraints on actions during conflict have been formulated in the context of interstate war, not civil wars, subnational conflicts, or local internal violence. Yet most recent violence has been subnational, not nation-to-nation.

The ambiguity of language in the laws makes it easier to exploit loopholes. Militaries inconsistently identify and differentiate among legitimate and illegitimate targets and fall back on claims of military "necessity" and "proportionality."

Even when violations seem clear, enforcement and punishment of violators of these laws are rare. Parties to the Geneva Conventions have an obligation to enforce its provisions and to bring to trial persons who have allegedly violated its provisions. but nations have been unable or unwilling to enforce relevant provisions. Consequently, a new Environmental Geneva Convention is needed, focused on protecting the environment, natural resources and vital civilian infrastructure that supports basic needs like water, food, and energy.

Two modest international efforts at strengthening protections of the environment and resources during conflicts have recently moved forward. The first is adoption by the International Law Commission of the United Nations of draft principles governing protection of the environment during armed conflict. The second is a set of principles for the protection of water infrastructure developed by the Geneva Water Hub of the University of Geneva.

The International Law Commissions draft principles apply to the protection of the environment before, during and after armed conflict. They broadly require States to protect land and resources, constrain military operations that may damage the environment, prevent and mitigate environmental degradation where populations are displaced, and avoid engaging in environmental modification techniques having severe, long-term effects. Following armed conflicts, the principles call for States to repair, compensate, and remediate all environmental damages and remove hazardous remains of war.

The Geneva List of Principles on the Protection of Water Infrastructure is an effort to broadly develop rules to protect crucial water supply and sanitation infrastructure and systems and was developed in part due to the recent increase in attacks on such infrastructure. Unlike the ILC's principles, which focus on State actors, the Geneva List of Principles is designed to apply to both State and non-State actors.

Among its key principles are that parties to conflicts should refrain from using water-related infrastructure as a means of warfare, and the use of poison against water and water infrastructure is prohibited. Water systems and water-system personnel are presumed to be civilian and must not be attacked. Parties to conflicts must take all feasible precautions to protect civilians and civilian infrastructure, avoid locating military objectives near water-related infrastructure, and establish protected zones around water-related infrastructure. Water infrastructure containing "dangerous forces" such as dams and dikes, should not be objects of attack. Control over water delivery or access must not be used to force the displacement of civilians. Humanitarian relief efforts and personnel involved in water-related activities must be respected and protected.

And occupying powers must provide and maintain basic water and sanitation services.

It remains to be seen whether any newly crafted or strongly worded principles will be more effective at protecting natural resources and the environment than the previous 150 years of efforts to design effective international humanitarian laws of war. Comprehensive principles must be universally accepted, taught to military commanders and their political counterparts, and especially, actively enforced by the international community with punishments for violations meted out by States themselves or the international criminal court system.

Until then, the growing value and importance of climatic systems, water, energy, food and other vital environmental resources will continue to make them vulnerable as targets or weapons of war, or as triggers of violence and armed conflict.

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