27 Dec Access to Freshwater and Accountability Issues in the Israel-Hamas Armed Conflict
[Dr Mara Tignino is Lead Legal Specialist at the Geneva Water Hub and Senior Lecturer at the Faculty of Law and the Institute for Environmental Sciences at the University of Geneva. Dr Tadesse Kebebew is post-doctoral researcher at the Geneva Water Hub.]
On 7 October 2023, Hamas launched an unprecedented ‘‘Operation Al-Aqsa Flood’’ against Israel from Gaza. Following the attack, Israel declared war on Hamas and initiated Operation Swords of Iron to clear out hostile forces from Gaza. It also announced to cut off all supplies to Gaza and continued a series of air raids and ground military operations in Gaza. Recognizing the gravity of the situation, the International Committee of the Red Cross (ICRC) expressed that the ‘‘recent violence in Israel and Gaza is at a level we have not seen in many years,’’ urging both parties to show restraint and protect civilian lives and property. Due to the impasse before the UNSC, the United Nations General Assembly (UNGA) has adopted a resolution to protect civilians and uphold legal and humanitarian obligations. Importantly, international humanitarian law (IHL) requires both sides to uphold their obligations, protecting civilians and civilian objects. According to the ICRC, these obligations are non-negotiable.
Freshwater Crisis in Gaza
The freshwater situation in Gaza is dire. It is one of the most densely populated places on earth, and ensuring access to clean water has been a significant issue. Even before the recent conflict and the subsequent reduction in electricity and freshwater supplies from Israel, the water supply crisis has persisted for years, with data from 2021 revealing that 90% of the population lacked direct access to clean and safe drinking water (A/HRC/48/43, para. 47) and close to 96% of Gaza’s water was deemed unsafe for human consumption. Most people drink locally sourced water (only about 10% of Gaza’s water supply comes from Israel), but it must be treated to remove salt and contamination. Israel controls and restricts the consumables and hardware necessary to do so, including those needed to maintain, repair and improve the water and sewage systems, such as cement and iron (A/HRC/48/43, para. 48). Shortage of fuel, electricity and other devices needed to purify the water and power for water distributions exacerbated the matter. The scarcity of clean water has far-reaching and devastating consequences and elevates the risk of waterborne diseases, including cholera, heightens poor hygiene conditions in overcrowded makeshift shelters and creates a fertile ground for rapid disease transmission. The United Nations has described the situation as a ‘‘matter of life and death’’ for over 2 million people in Gaza.
The Nature of the Conflict under IHL
The armed conflict between Israel and Hamas raises several questions related to IHL, including the conflict classification and determining the applicable rules. Many answers depend on whether Hamas is considered part of the state of Palestine and whether Gaza is considered an occupied territory. In this regard the most controversial issue in this regard is whether Gaza is an occupied territory. After Israel withdrew its troops from Gaza in 2005, there have been debates on whether Israel still qualifies as an occupying power under IHL. Such a determination significantly affects the applicable law to the situation in Gaza, including freshwater resources. Legal scholars, court decisions, and international bodies provide different perspectives. Our previous post delved into various perspectives and arguments on these issues. Here, it suffices to underscore that Israel’s control and exercise of some authority in Gaza signify its ongoing status as an occupying power. Consequently, the civilian population in Gaza falls under the protection of the rules of Occupation. Previously, the Ministry of Foreign Affairs of Israel, as a matter of policy, applied to its military operations in Gaza the rules of armed conflict governing both international and non-international armed conflicts (para. 30).
Obligations Regarding Access to Water
IHL imposes stringent obligations on occupying powers concerning the welfare of civilians in the occupied territory. Israel, as the occupying power in Gaza, is legally bound to ensure the welfare of civilians and must prioritize their access to fundamental necessities, including safe drinking water and sanitation facilities (Geneva Convention IV Article 55). Any deliberate actions that impede or restrict access to water for the civilian population in Gaza can be considered a violation of IHL (Geneva Convention IV Article 56). The act of ‘complete siege’ of Gaza, cutting off food, electricity, fuel, or water, is likely to cause starvation of civilians. IHL prohibits the starvation of civilians as a method of warfare (CIHL, Rule 53 and Resolution 2573 (2021), para. 4). Intentionally depriving them of objects indispensable to their survival constitutes a war crime in both international and non-international armed conflicts (Article 8 (2) (b) (xxv) and (e) (xix)). The measure of depriving access to water to the civilian population in retaliation for the conduct of Hamas could also run contrary to the IHL prohibition of collective punishment (CIHL, Rule 103). In addition, the deprivation of freshwater may also qualify as a crime against humanity, implying the commission of inhumane acts. There is a debate on whether depriving civilians of access to water resources could be deemed a ‘deliberate imposition of conditions aimed at the physical destruction of the group’ (Omar Al Bashir case, paras. 202-206).
Moreover, access to safe drinking water is a fundamental human right, and the occupying power must respect human rights and meet the humanitarian needs of the population in compliance with IHL and the Fourth Geneva Convention (see ICJ’s Advisory Opinion on Wall (2004), paras. 104-113, 130 and HRC, A/HRC/40/CRP.2, paras. 80-83). Thus, denying access to critical resources like water, particularly as a punitive measure during armed conflicts, is contrary to IHL and human rights (General Comment No. 15, paras. 21 and 31).
Humanitarian Access and Assistance
Parties involved in the conflict are obligated to facilitate and allow the safe passage of humanitarian relief and related services to alleviate the suffering of civilians (CIHL, Rule 55). The international community, through various UNSC resolutions, underscores the urgent need for sustained and unimpeded delivery of humanitarian aid to the affected civilian population (Resolution 2573 (2021), para. 7 and Resolution 2401 (2018), para. 1). In addition to ensuring unhindered access to humanitarian relief, IHL mandates the protection of humanitarian relief personnel and objects (CIHL, Rules 31 and 32). In line with this, the Geneva List of Principles on the Protection of Water Infrastructure recommends that parties to the armed conflict negotiate water ceasefire agreements to allow the safe passage of humanitarian relief personnel, including those involved in water-related activities.
Israel has the primary responsibility of ensuring, by all the means at its disposal, the necessities of life of the population in the occupied territory and maintaining public health and hygiene in the occupied territory. And if it cannot do so, a mandatory relief scheme (to allow humanitarian assistance) is introduced (Geneva Convention IV, Article 59). It must grant rapid and unimpeded passage and access to water-related personnel and consignments used for humanitarian relief operations, including the operation, repairs or rehabilitation of water systems and related facilities (CIHL, Rule 56).
Conduct of Hostilities and Protection of Water Systems
IHL strictly prohibits attacks on civilian objects, including water infrastructure. Parties engaged in conflict must adhere to the principles of distinction, proportionality, and precautions in attacks and against the effects of attacks (CIHL, Rules 15 – 24). The intentional targeting of civilian infrastructure, including water systems, or damages that lead to extensive civilian casualties and damage to objects violate such fundamental principles of IHL. Evaluating whether an attack constitutes a breach of the rules governing the conduct of hostilities involves a nuanced analysis of multiple legal factors and factual elements. The assessment considers the status of the targeted object, its actual or intended use by the opposing party, the military significance of the targeted object for the attacking party compared to the potential unintended harm to civilians, and whether the attacker took all feasible precautions to minimize or prevent incidental harm to civilians during the attack. Such determination necessitates an ex-ante evaluation by the attacking party, based on available intelligence and information, as well as how the attack was planned. However, it is essential to recognize that extensive destruction and harm to civilians can exacerbate animosity and perpetuate a cycle of violence and violations, hindering the prospects for peace.
Obligation to Ensure Respect for IHL
Common Article 1 of the four Geneva Conventions stipulates that the High Contracting Parties (HCPs) undertake to respect and ensure respect for the present Conventions in all circumstances. According to the ICJ, the duty to respect and ensure respect emanates from the general principles of IHL, to which the Conventions merely give specific expression (Nicaragua case 1986, para. 220). This overarching obligation to ensure respect for Geneva Conventions could broadly be seen as a logical extension of the general object and purpose of IHL. There are different practices and views concerning the scope of this obligation. The internal dimension of the obligation, i.e., to respect and ensure respect for Geneva Conventions by their armed forces, by those whose acts or omissions are attributable to them and the whole population over which they establish authority or jurisdiction, is uncontested.
What remains delicate is the external dimension of the obligation to ensure respect by other actors, its customary law status, and whether common Article 1 imposes any obligation on third parties. This external dimension has evolved over time. In its Wall Advisory Opinion, the ICJ emphasized that states, both occupying powers and third states, have a responsibility to ensure respect for Geneva Convention IV (ICJ’s Advisory Opinion on Wall (2004), para. 158) and ‘all the States parties to the Convention ‘are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention’ (ICJ’s Advisory Opinion on Wall (2004), para. 159). Similarly, the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Kupreskic et al. case underscored that most rules of IHL, due to their absolute character, lay down obligations for the international community and that each and every member of that community has ‘‘a legal entitlement to demand respect for such obligations’’ (Kupreskic case 2000, para. 519).
Accordingly, the obligation to ensure respect for the Geneva Conventions requires the efforts of third parties to bring parties to an armed conflict back to a position of respect for IHL by preventing potential breaches, encouraging compliance, avoiding actions that facilitate IHL breaches, and investigating violations. Third states must also exert their influence, to the degree possible, to stop violations of international humanitarian law (CIHL, Rule 144). Third states must also exercise caution when it comes to arms transfers and avoid providing weapons or support that may be used to commit violations of IHL. Importantly, IHL underscores the importance of accountability and adherence to humanitarian principles and places obligations to repress ‘serious violations’ and to suppress all other violations. In the case of disastrous humanitarian conditions like the current situation in Gaza, there is an obligation of HCPs to ensure that States and non-state armed groups respect the rules of international humanitarian law.
Accountability for Violations of IHL
There is a robust accountability mechanism enshrined under IHL. From the outset, it is crucial to recognize that not all violations of IHL automatically qualify as war crimes. IHL establishes compulsory universal jurisdiction for grave breaches, emphasizing the responsibility of each HCP to search for and prosecute individuals who have committed these grave breaches, regardless of their nationality (Geneva Convention IV, Article 146). The duty to address violations encompasses several key components, including the obligation to investigate these breaches thoroughly, promptly, and impartially. It also involves prosecution for war crimes and providing effective remedies to victims, including reparations. There is also a less stringent obligation to ‘suppress’ all other violations of IHL provisions.
Palestine is a State Party to the Rome Statute. The Office of the Prosecutor has thus the authority to investigate alleged violations committed by all parties involved in the armed conflict, including both Hamas and Israel. In fact, since 2021, the ICC has been already investigating the alleged crimes committed in Gaza, West Bank and East Jerusalem (see the decision of the ICC Pre-Trial Chamber here). This signifies a significant legal avenue for addressing potential serious violations of IHL, particularly in cases where the involved parties fail to ensure accountability.
In addition, in situations where allegations of grave breaches and other grave violations of International Humanitarian Law are at play, such as the tragic destruction of Al Ahli Arab Hospital in Gaza City, the International Humanitarian Fact-Finding Commission possesses the capacity to launch investigations, subject to the consent of the involved parties (Additional Protocol I, Article 90). This mechanism underscores the importance of impartial and comprehensive fact-finding to determine the facts and responsibilities in cases of significant IHL breaches.
Finally, in addition to the grave breaches, the act of cutting off essential resources such as water, food, and power to civilians in Gaza raises significant questions concerning potential war crimes. Under some circumstances, when the crime has a widespread and systematic character, the intentional deprivation of water may constitute a crime against humanity. This underscores the gravity of such actions and reinforces the necessity for accountability and justice in these cases.
Upholding international law is of paramount importance in safeguarding civilians and critical civilian infrastructure, particularly essential water networks. Compliance with these legal obligations not only preserves human lives but also paves the way for diplomatic negotiations, ceasefires, and the just resolution of conflicts. As the occupying power, Israel is obligated by the Geneva Conventions to ensure that civilians have access to basic necessities. Additionally, as a party to the armed conflict, it is required to facilitate the delivery of humanitarian aid. IHL unequivocally forbids actions that deny civilians access to fundamental requirements like water and food during armed conflicts. The occupying power and third parties all share the responsibility to ensure compliance with these legal principles, protect civilian populations, and provide essential humanitarian assistance. The Geneva Conventions and customary IHL emphasize avoiding or minimizing harm to civilians and civilian objects, including water sources. In situations involving alleged violations of IHL, it is imperative to conduct a thorough and effective investigation and, when warranted, pursue the prosecution of those responsible. Moreover, addressing the root causes of conflicts is essential for breaking the cycle of violence.