Dams on Chenab — a target?

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. 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. 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. India’s openly owned narrative will help Pakistan argue successfully that the dams on the Chenab are being made with stated belligerent intent. For instance, India’s own minister for water resources, C. R. Patil, recently said “It is certain, not a single drop of water will go [to Pakistan] in the coming years”. This statement reflects the Indian government’s policy position. Neither recalled nor corrected by India’s foreign ministry or the Prime Minister’s Office, these remarks leave no doubt about India’s belligerent intent and hostile action, accompanied by its position that Operation Sindoor is not over. According to its version, holding the Indus Waters Treaty (IWT) in abeyance 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. India is not holding back its belligerent actions and is continuing to wagewar through multiple means on Pakistan, including through its proxies launched from Afghanistan. This was the backdrop to the water minister’s statement, which is in line with Prime Minister Narendra Modi’s decision to divert water and prevent it from flowing to the lower riparian. It is an outright threat to Pakistan that forceful means will be employed to deny Pakistanis their right to agriculture and subsistence. That’s 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. By holding the IWT in abeyance, India itself has withdrawn the traditional protection accorded to dams and dykes. However, let’s 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 “works 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”. 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’s military objective. That is exactly the case for Pakistan. This is further clarified in the same article where Para 56(2) intimates us that the special protection “shall 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”. Article 52 of Additional Protocol 1 likely underpinned the position of Pakistan’s defence minister when he stated that the construction of a dam would be considered an act of war and that Pakistan would respond. Its description of military objectives would certainly include any hydro project “which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage”. As mentioned, India links the dam’s construction to the military objective of punishing Pakistan. Had it planned to build any dam pursuant to the IWT, then Pakistan could not have objected to its purpose. Ironically, by holding the treaty in abeyance, India itself has withdrawn the traditional protection accorded to dams and dykes in the law of war since it has declared that its construction is linked to achieving a military objective against Pakistan. In preventing the construction of these controversial dams and other hydro projects, Pakistan seeks a military advantage that would reduce and degrade the capacity of the Indian army and Indian government to break the will of the people of Pakistan. Briefly then, what international law indicates is that even if India does not undertake a ground attack, the retention or delayed release of water to inflict damage on Pakistan’s agriculture, in fact, its entire food chain is reason enough to prevent such weaponised construction. Dams are protected sites in any armed conflict on the basis of the principle that, in case they are hit, they release dangerous forces that destroy civilians and civilian property. If Article 56 is construed in light of the literal principle of interpretation, then a pondage or dam that is yet to be filled with water is not governed by the protection, as there is no dangerous force that may be unleashed if an empty dam or dam under construction is destroyed. From the point of commencing construction till its pondage is filled with water, the under-construction dam does not acquire protection under Additional Protocol 1 — a fact that is not likely to be lost on this country’s military planners. The writer is an advocate of the Supreme Court and a former caretaker law minister. Published in Dawn, June 26th, 2026

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