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Secondly, the UNWC states that when unavoidable harm has been caused, efforts to eliminate or
mitigate this harm shall be taken in consultation with the affected state. What if the affected party is
not a universally recognised state? This problem is applicable to Palestine, which has been recognised
as a state by the UN but not by Israel, the occupying power of the Occupied Palestinian Territories
(OPT). This problem applies to civil wars such as in Syria, in which defined negotiating partners for
post-conflict consultation do not exist. Article 3 of Convention I of the 1949 Geneva Conventions,
“Conflicts Not of an International Character”, addresses civil wars briefly and without regard to
resource/water access [76]. The UNWC also insufficiently accounts for internal conflicts and their
profound impacts on water infrastructure and access. In cases of belligerent occupation, how can
occupying governments be expected to have equal “consultation” about the best way to prevent harm
to the same civilian infrastructures that are targeted?
Thirdly, the UNWC is problematic because it requires a harm-causing state and a harmed state to
“discuss the question of compensation”, “where appropriate”. Who determines when the “appropriate”
time to discuss compensation occurs, and how is this determination made? A process to designate a
neutral third party to carry out this task is not outlined.
A path to strengthening the UNWC is to replace this weak language about mere “discussion” with
required reparations for incidents such as the bombing of wastewater treatment facilities. As Evans notes,
“There is a common misconception that reparations are synonymous with monetary compensation”
when reparations actually encompass financial and non-financial meanings: “restitution, compensation,
rehabilitation, satisfaction (disclosure of the truth), and guarantees of non-repetition” for victims of
human rights violations [28].
The international law of belligerent occupation states that occupying powers are obligated to not
directly worsen lives of occupied civilians—funding the reconstruction of essential water infrastructure
is a reasonable and achievable expectation to place on occupying powers [77].
A precedent exists for revising the Geneva Conventions and adding information influenced by
other laws. This historical precedent strengthens the case for why aspects of the UNWC should not
only be amended and improved within that document but should then be duplicated within the
Geneva Conventions themselves.
Alongside establishment of an enforceable, independent human right to water, this would
demonstrate how environmental factors are inextricable from civilian protection during armed conflict.
The Geneva Conventions were legally amended as recently as 2005, when a new protocol regarding
the use of ICRC’s emblems was adopted [78]. The addition of a similarly structured protocol on
water during extended occupation would be one possibility to facilitate interaction between water
law and the Geneva Conventions. Such a protocol could place a time frame on the period during
which an occupying power has to meet obligations to make reparations for destruction—intentional or
unintentional—of civilian infrastructure.
Such a protocol would need to outline steps through which an independent commission—including
representatives from both the harm-causing and harmed parties—could determine a monetary amount
needed for civilian infrastructure reconstruction, in addition to a separate monetary amount calculated
for unrecoverable losses (catastrophic injuries/civilian deaths). The monetary amount for unrecoverable
losses might include lost earning potentials, paid as reparations to the injured or family members of
the deceased.
Another possibility, perhaps more expedient, which has been implemented previously as an
interim step to formal IHL revision, is to address water access and quality during protracted conflict in
the next Updated Commentaries on the Geneva Conventions. The ICRC’s Updated Commentaries “give
people an understanding of the law as it is interpreted today, so that it is applied effectively in today’s
armed conflicts . . . ” [79]. The Commentaries are intended as “an essential tool for practitioners like
military commanders, officers and lawyers to be able to ensure protection of victims during armed
conflict”. They are used to “ensure that military orders comply with law. They are also used by
judges in criminal courts and ad-hoc tribunals” [79]. Updates to the Commentaries calling for increased