INDIA is fast-tracking at least four major hydro projects on the upper stretches of the Chenab, including Pakal Dul, Kiru, Kwar, Ratle and the massive Sawalkote project. Tenders have been issued. Several private consultants and contracting companies have entered the process, such as Afcon Infrastructure, Bharat Heavy Electricals, Andritz Hydro, Patel Engineering and others.<\/p>\n\n\n\n
A legal question often asked by our think tanks is: can Pakistan carry out a strike against any dam, pondage or water tunnel that India says it will construct on the Chenab? The question is raised in the context of the very specific protection accorded to dams, dykes and similar sites during armed conflict under Article 56 of Additional Protocol I to the Geneva Conventions of 1949.<\/p>\n\n\n\n
The reply is simple: such a structure, though civilian property, loses its protection rights when it is itself being used as a tool to achieve the military objective of subjugating a lower riparian. In this case, civilian infrastructure under construction, like a dam, is no longer protected because it is being built for military purposes.<\/p>\n\n\n\n
India\u2019s openly owned narrative will help Pakistan argue successfully that the dams on the Chenab are being made with stated belligerent intent. For instance, India\u2019s own minister for water resources, C.R. Patil, recently\u00a0said<\/a>:\u00a0\u201cIt is certain, not a single drop of water will go [to Pakistan] in the coming years\u201d. This statement reflects the Indian government\u2019s policy position. Neither recalled nor corrected by India\u2019s foreign ministry or the Prime Minister\u2019s Office, these remarks leave no doubt about India\u2019s belligerent intent and hostile action, accompanied by its position that Operation Sindoor is not over.<\/p>\n\n\n\n According to its version, holding the Indus Waters Treaty (IWT) in abeyance<\/a> is one of several belligerent actions it can take during this ongoing self-declared war. Thus, an armed conflict situation continues between Pakistan and India.<\/p>\n\n\n\n India is not holding back its belligerent actions and is continuing to wage war through multiple means on Pakistan, including through its proxies launched from Afghanistan. This was the backdrop to the water minister\u2019s statement, which is in line with Prime Minister Narendra Modi\u2019s decision to divert water and prevent it from flowing to the lower riparian.<\/p>\n\n\n\n It is an outright threat to Pakistan that forceful means will be employed to deny Pakistanis their right to agriculture and subsistence. That\u2019s how measures to prevent the construction of dams or diversion tunnels by India are justified under the well-known right of anticipatory self-defence. Pakistan will thus be justified if it chooses to act within the parameters of international law, or jus ad bellum, to take all necessary measures to stop, delay or fully prevent any such construction.<\/p>\n\n\n\n By holding the IWT in abeyance, India itself has withdrawn the traditional protection accorded to dams and dykes.<\/p>\n<\/blockquote>\n\n\n\n However, let\u2019s also see whether, under jus in bello, the dam can enjoy traditional protection during an armed conflict launched and continued by India. Article 56(1) of Additional Protocol I states that \u201cworks or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attacks cause the release of dangerous forces and consequent severe losses among the civilian population\u201d.<\/p>\n\n\n\n A careful reading shows that while the protection is in general terms, there is an exception where the protected dam itself is likely to function or is actually functioning to achieve the enemy\u2019s military objective. That is exactly the case for Pakistan.<\/p>\n\n\n\n This is further clarified in the same article where Para 56(2) intimates us that the special protection \u201cshall cease (a) for a dam or dyke only if it is used for other than its normal functions in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate support\u201d.<\/p>\n\n\n\n\n