Oleksii Plotnikov, PhD (International Judiciary)
The Crimean Peninsula has been occupied by the Russian Federation in spring 2014 as a part of Russia’s “hybrid war” against Ukraine. It became a factual Russian exclave receiving over 80% of its water from Ukraine . In spring 2014, the Ukrainian authorities ceased the operation of the North-Crimean Channel – a waterway bringing water from Dnipro to Crimea. At that, the State Water Resources Agency of Ukraine explained that it has failed to reach an agreement with the Crimean consumers as to the price and volume of water. The water shutdown resulted in water shortages for agriculture and industry, as well as for military purposes on the occupied peninsula. It also led to endless Russian claims that the shutdown is in violation of international law [see, for example: 2]. This article will address the question of whether the shutdown is in violation of the law of warfare, known as International Humanitarian Law.
Article 23 of the Fourth Geneva Convention obligates belligerents to allow free passage of medical and hospital stores and objects necessary for religious worship intended for civilians of another contracting party, even if the latter is its adversary, as well as essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases. It does not mention water, however, one can argue that the shutdown of water delivery resulted in the decline of production of food in Crimea.
Indeed, under Article 54 of the First Additional Protocol, starvation of civilians as a method of warfare is prohibited. In the Crimean case, these provisions should be analysed in the light of a simple fact that Crimea is not isolated from the rest of the world, and lack of water from Ukraine in no way prevents the delivery of goods, including food, from the Russian mainland by sea or by a ferry line.
The mentioned Articles of the Convention and Protocol concern the most complicated humanitarian situations, where lives of the civilians are at real risk. The 1958 Commentary to Article 23 of the Fourth Geneva Convention explains that the norm has been created in order “to relieve the distress among millions of human being who were exposed to famine or epidemics” [10, p. 178]. The 1987 Commentary to Article 54 of the First Additional Protocol stresses that using hunger as a method of warfare “would be to provoke it deliberately, causing the population to suffer hunger, particularly by depriving it of its sources of food and supplies” [9, p. 653]. At the moment, nothing indicates that the population of Crimea is deprived of medicines, essential foodstuff or there is a threat of starvation resulting from the lack of water.
There remains a question of whether the blockade of Crimea constitutes an act of collective punishment of the civilian population. The Russian Ministry of Foreign Affairs frequently characterized the water shutdown as “an attempt to punish the Crimeans for their choice” [See, for example: 7]. However, such with respect to Crimea would be inaccurate both factually and legally.
From the factual point of view, the circumstances of Gaza and Crimea fundamentally differ. Gaza is surrounded by the territory of Israel and Egypt, which also participates in the blockade. The coasts of Gaza are blockaded by the Israeli navy, which prevents shipment of cargoes by sea. In contrast, Crimea is separated from Russia by a narrow Kerch Strait with a ferry line connecting the Crimean town of Kerch and the Russian Krasnodar Territory. The carrying capacity of the line is such that it greatly exceeds the needs of delivery of life-sustaining cargo. Crimea has several seaports, enabling delivery of an unlimited amount of cargo by sea, including water.
From the legal point of view, the notion of collective punishment can be found in several instruments. Article 33 of the Fourth Geneva Convention prohibits “collective penalties and likewise all measures of intimidation or of terrorism”. Article 75 of the First Additional Protocol prohibits collective punishments or threats thereof. In a similar vein, customary international law, as it is described by the ICRC, prohibits collective punishments [8, p. 374].
The idea standing behind these rules can be clarified by earlier conventions. Thus, the Hague Regulations of 1899 provide that “no general penalty, pecuniary or otherwise, can be inflicted on the population on account of acts of individuals for which it cannot be regarded collectively responsible” [9, Art. 50]. The same provision is repeated in the 1907 Hague Regulations [10, Art. 50]. The Convention Relative to the Treatment of Prisoners of War of 1929 provides that “collective penalties for individual acts are also prohibited” [11, Art. 46]. It follows from these provisions that originally the notion of collective punishment referred to repressive measures taken with respect to a group of individuals to punish a misconduct of one person, but not economic measures taken in respect of an occupied territory.
Subsequent commentaries to the Geneva Conventions and First Additional Protocol confirm this approach. Under the 1958 Commentary to the Fourth Geneva Convention, Article 33 “embodies in international law one of the general principles of domestic law, i.e. that penal liability is of personal character” [12, p. 225]. Further the commentary explains that the Article does not cover punishments inflicted under penal law by a court in a due process, but concerns only those punishments that are inflicted in groups of persons “in defiance of the most elementary principles of humanity, for acts that these persons have not committed”. Under the commentary to the First Additional Protocol, “the concept of collective punishment must be understood in the broadest sense: it covers not only legal sentences, but sanctions and harassment of any sort, administrative, by police action or otherwise” [6, p. 874].
The mentioned commentaries reveal that the concept of collective punishment describes collective criminal, administrative, disciplinary or other forms of sanctions. This is confirmed by domestic and international judicial practice. Thus, the International Criminal Tribunal for Former Yugoslavia in the Delalić case analysed such forms of collective punishment as collective detention and collective beating of several persons for the misconduct of one person [13, paras. 309, 323, 513]. In the Priebke case the Italian court concluded that mass murder of civilians in response to a partisan attack is a form of a collective punishment .
These cases are by far not similar to the case of Crimea. The cessation of delivery of water to a territory in the times of war cannot be compared to penal or administrative punishment of a group of persons for a particular offence. Otherwise all kinds of economic sanctions, embargoes, trade restrictions and violations of international commercial contracts would, at least partially, bear elements of collective punishment.
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