The Regulation of Crimes Against Water in Armed Conflicts and Other Situations of Violence
This post is drawn from the author’s article-length work, “The Regulation of Crimes Against Water in Armed Conflicts and Other Situations of Violence” appearing in the International Review of the Red Cross.
Water is the lifeblood of human beings and society, but threats to water, such as the pollution of rivers, cybercrimes, and attacks against water infrastructure, are increasing. In green criminology, scholars have relied on domestic criminal law to develop the concept of crimes against water. I argue in this post that international law could provide several frameworks for addressing these crimes.
Crimes Against Water in Green Criminology
The emergence of green criminology dates back to the beginning of the 1970s, when environmental sociologists and critical criminologists first emphasized the problem of environmental pollution. Green criminology adopts multidisciplinary approaches linking the analysis of environmental harm with criminal law and the response of States to such violations.
Building on the link between water and social and ecological justice, scholars increasingly pay attention to the linkages between water and criminology. Crimes against water are often recorded under offenses such as fraud and corruption in domestic criminal laws. For example, water resources may be damaged by the pollution of a watercourse or fraudulent water quality reporting. Domestic criminal law serves as a tool for identifying the most common typologies of crimes against water and may operate as a prevention mechanism to avoid harm to water resources.
The analysis carried out by scholars in green criminology identifies multiple typologies of crimes against water within the domestic criminal laws of various countries. Although crimes against water are commonly perpetrated during armed conflicts, the current body of literature lacks a specific focus on such crimes occurring during or in the aftermath of armed conflicts.
International Legal Frameworks for Addressing Crimes Against Water
A rare example of an international treaty with a specific focus on the protection of the environment through criminal law is the 1998 Council of Europe Convention on the Protection of the Environment through Criminal Law. This instrument, open to signature for non-member States of the Council of Europe, includes various environmental crimes, including crimes against water. Despite being opened for signature in 1998, it is noteworthy that only one State has ratified the Convention. This shows that States still have considerable discretion to regulate and enforce crimes against water. Outside this legal framework, States have started to focus on the connections between crimes against water, organized crime, and corruption.
Transnational Organized Crime and Water: The UN Convention Against Transnational Organized Crime (UNTOC)
The UNTOC, while enabling cooperation and mutual legal assistance in organized crime investigations, does not define transnational organized crime. In 2020, the Conference of the Parties (CoP) adopted a specific resolution dealing with crimes that impact the environment. While the main focus of this resolution is on trafficking in wildlife, including flora and fauna, timber and timber products and hazardous waste, as well as poaching, the resolution calls on States Parties to qualify crimes that affect the environment as “serious crime” in accordance with Article 2 of the Convention. This resolution has the potential to influence the classification of crimes against water as “serious crimes” when they arise from transnational organized crime.
Corruption and Water: The UN Convention Against Corruption (UNCAC)
The UNCAC is another global instrument that holds relevance in the context of crimes against water. Corruption may support and facilitate the commission of crimes against water. Instances include bribery of high-ranking officials to secure concessions and permits for land, forests, or water resources, as well as corruption within police and investigative units. The CoP to the UNCAC adopted a specific resolution to prevent and combat corruption relating to crimes that have impacts on the environment. This resolution encourages States Parties to establish and develop confidential complaint systems and whistle-blower protection programs, including protected reporting systems and effective witness protection measures, and to increase awareness of such measures in the context of crimes that have an impact on the environment, including water.
Crimes Against Water Committed by Terrorist and Non-State Armed Groups
Terrorist and non-State armed groups may threaten water in various ways. For example, water supplies may be intentionally contaminated by introducing biological or chemical contaminants into a publicly accessible city water supply. In 2015, a criminal group sympathetic to ISIS threatened to poison water supplies in Pristina; the police were able to prevent the attack just before it was carried out. Attacks might also target large hydroelectric dams on transboundary rivers and limit the energy used for the water supply of a city. A failure in the physical operation of a dam can kill or displace thousands of people, and even slight damage might interrupt power generation or affect the operation of water supplies. There can also be attacks against smaller infrastructure than dams, which may greatly impact the population. In early 2022, the UNICEF Water, Sanitation, and Hygiene (WASH) Cluster of Burkina Faso reported several attacks against water wells and sabotage of the electrical network in Djibo, interrupting water services. In Dori, acts of intimidation against women collecting water exacerbated the shortage.
Another form of threat to water is cybercrime. Cyber operations might disrupt essential civilian services such as access to water supplies without damaging or destroying civilian infrastructure. Armed conflicts create conditions for organized crime and cybercrime to flourish, and this may amplify the risks to the internal security of States.
The Role of the Security Council in Addressing Crimes Against Water
The UN Security Council has addressed threats to critical infrastructure, including attacks against water installations by terrorist groups, and the protection of objects indispensable to the survival of the civilian population in its resolutions. Such resolutions do not create international norms, but they can serve as evidence of general principles of law, reflect opinio juris, or provide additional support for the existence of international customary law. I argue that Resolution 2341 of 2017 and Resolution 2573 of 2021 are evidence of the customary rule prohibiting attacks against water installations by terrorist groups and all parties to an armed conflict, including criminal groups.
Security Council Resolution 2341
Resolution 2341, unanimously adopted by the fifteen member States of the Security Council in 2017, calls on States to establish “terrorist acts as serious criminal offences in domestic laws and regulations” and “to ensure that they have established criminal responsibility for terrorist attacks intended to destroy or disable critical infrastructure, as well as the planning of, training for, and financing of and logistical support for such attacks.” Resolution 2341 explicitly covers water and energy installations among the various forms of critical infrastructure. Although Resolution 2341 does not create binding obligations as such, it can provide additional evidence of a customary rule prohibiting attacks intended to destroy or disable critical water infrastructure by terrorist groups.
Security Council Resolution 2573
The Security Council unanimously adopted Resolution 2573 in 2021. This resolution further reinforces the well-established customary rule that strictly prohibits attacking, destroying, removing, or rendering useless objects indispensable to the survival of the civilian population. This rule applies to all parties to an armed conflict. The Security Council reminds all parties to an armed conflict of their obligations under Additional Protocols I and II (AP I and AP II), which explicitly protect water supplies. Furthermore, the Security Council “strongly condemns the use of starvation of civilians as a method of warfare in a number of armed conflict situations which is prohibited by international law and may constitute a war crime.” Starvation is a crime entailing individual criminal responsibility in both international and non-international armed conflicts.
The Application of International Humanitarian Law (IHL) to Criminal Groups
Organized criminal groups may sometimes be directly involved in an armed conflict and act as non-State armed groups. Two main legal sources must be examined to determine the application of IHL to these groups: Article 3 common to the four Geneva Conventions of 1949, and Article 1 of AP II. In order to distinguish an armed conflict from less serious forms of violence such as internal disturbances and tensions, riots or acts of banditry, the situation must reach a certain threshold of confrontation. Two criteria are usually used in this regard. First, the hostilities must reach a minimum level of intensity. This may be the case when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces. Second, non-governmental groups involved in the conflict must be considered “parties to the conflict,” meaning that they possess organized armed forces. For example, these forces must be under a certain command structure and must have the capacity to sustain military operations.
Organized criminal groups may engage in armed violence against the government, including through the pollution of water resources, the corruption of officials and even the destruction of water infrastructure. Under customary IHL, criminal groups are bound by the general principles on the conduct of hostilities related to the environment when they are a party to an armed conflict. According to customary IHL, “no part of the natural environment may be attacked, unless it is a military objective.” Moreover, the “destruction of any part of the natural environment is prohibited, unless required by imperative military necessity” and “launching an attack against a military objective which may be expected to cause incidental damage to the environment which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited.”
Article 8.2(b)(iv) of the Rome Statute criminalizes attacks against the environment only in international armed conflicts. However, some provisions of the Statute, which do not directly concern the environment, make it possible to criminalize such attacks during non-international armed conflicts. Under Article 8.2(c), “serious violations of Article 3 common to the four Geneva Conventions of August 12, 1949” are prohibited. The term “serious violations” encompasses a panoply of crimes against the person, such as violence to life, cruel treatment and torture or committing outrages upon personal dignity, including humiliating and degrading treatment. Criminal responsibility for crimes against the environment and water could be incurred on the basis of the reference to violence to the life and dignity of the person. Acts which make water unsafe for the population could fall into the category of violence to life. Polluted water or lack of access to water can affect human health, food production and living conditions and have negative consequences on the human rights to water, food, and/or health.
International Human Rights Law (IHRL) and Criminal Armed Groups
The UN Human Rights Council has addressed violations of IHL and IHRL in its resolutions, and has made reference to organized criminal groups. Although it has been argued that the objective of human rights treaties is to establish norms for regulating the relationship between States and individuals within their territory and subject to their jurisdiction, and that in consequence human rights treaties are “neither intended, nor adequate, to govern armed conflict between the state and armed opposition groups,” scholars do not unanimously support this interpretation of human rights law. For example, it has been noted that “the foundational basis of human rights is best explained as rights which belong to the individual in recognition of each person’s inherent dignity. The implication is that these natural rights should be respected by everyone and every entity.” The right to access safe, clean drinking water is now an internationally recognized right and is very broadly endorsed. The human right to water is essential for the full enjoyment of life and all human rights.
Independent of States’ obligation to protect the human right to water against abuses within their territory and/or jurisdiction by third parties, the baseline duty of non-State actors is to respect the right to water. This implies that organized criminal groups must not deny or limit equal access to adequate water, unlawfully diminish or pollute water (for example, through use and testing of weapons), or limit access to or destroy water services or infrastructure as a punitive measure. These are immediate obligations that must be respected by both States and non-State actors. Protecting water through human rights law also gives access to a number of international mechanisms which may potentially address crimes against water committed by organized criminal groups, non-State armed groups or terrorist groups. For example, the Human Rights Council has investigated issues of water contamination or poisoning in the context of armed conflicts in Syria. The human right to water could ensure an additional protection for individuals and communities affected by criminal groups. Such protection is relevant during armed conflict as well as other situations of violence.
Domestic Criminal Law and Organized Criminal Groups
Domestic criminal laws integrating crimes related to water may also play a role during armed conflicts or other situations of violence. The existence of domestic criminal law may help to prevent crimes by criminal groups. The ICRC Guidelines on the Protection of the Natural Environment in Armed Conflict may reinforce the inclusion of crimes against water in domestic laws. Rule 27, entitled “National Implementation of IHL Rules Protecting the Natural Environment,” affirms that “States must act in accordance with their obligations to adopt domestic legislation and other measures at the national level to ensure that IHL rules protecting the natural environment in armed conflict are put into practice.”
Conclusion
Organized criminal groups may have a strong negative impact on the living conditions and human rights of local communities in situations of armed conflict or other situations of violence. Crimes against water result from the actions of these groups and can include attacks against water installations, destruction of wells, or intentional pollution of water sources. Domestic criminal laws integrating crimes against water may play a role in the context of armed conflicts and other situations of violence. However, if committed in this context, such crimes may also be subject to IHL.
Crimes against water are prohibited under IHL and may amount to war crimes. Under the Rome Statute, intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival such as drinking water supplies and the intentional poisoning of water are recognized as war crimes. Violations of human rights, including the human right to water, can overlap with these crimes. The widespread or systematic destruction of water supplies, for example, could violate several human rights, including the rights to health, food, and water, and constitutes a crime against humanity.
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Dr Mara Tignino is Reader at the Faculty of Law and the Institute for Environmental Sciences at the University of Geneva and Lead Legal Specialist of the Platform for International Water Law at the Geneva Water Hub.
Photo credit: Unsplash
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