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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
Commentary
of 1987
Protection of works and installations containing dangerous forces
[p.665] Article 56
-- Protection of works and installations containing dangerous forces
[p.666] 2142 In time of combat man has always tried to strike at his adversary by releasing natural or artificial forces. Without going right back
to Archimedes, it is worth recalling the Battle of Morgarten in 1315
when the Swiss made rocks and tree trunks hurtle down a steep slope
to cause panic in the ranks of the adverse Party, [p.667] which
decided the victory. At the same time, though in a different part of
the world, belligerents were using a new weapon, "Greek fire", (1) to
set fire to enemy ships or fortified buildings occupied by the
adversary. Nearer to our time it will be remembered that in the
seventeenth century the Dutch, despite protests from the peasants,
did not hesitate to flood part of their cultivated land by breaching
the dykes in order to prevent the advance of adverse troops. In 1938
the Chinese authorities breached the dykes of the Yellow River near
Chang-Chow to stop the Japanese troops, resulting in extensive losses
and widespread damage. In 1944, again in the Netherlands, German
troops flooded many thousands of hectares of agricultural land with
sea water to prevent the advance of the enemy.
2143 It was also during the Second World War that deliberate attacks were mounted against hydro-electric dams. The best known are those
which destroyed the dams in the Eder and the Möhne in Germany in May
1943. These operations resulted in considerable damage: 125 factories
were destroyed or seriously damaged and in addition 3,000 hectares of
cultivated land were lost for the harvest of that year, 1,300 persons
were killed, including some deported persons and allied prisoners,
and finally, 6,500 head of livestock were lost. (2)
2144 During the war in Korea aircraft attacked dams used for irrigation in the north of the country. In the Viet Nam War attacks
were mounted against dams and dykes, though the United States
declared that the damage caused, insofar as this was established, was
accidental or secondary. (3) According to the delegate from the
Democratic Republic of Viet Nam at the Diplomatic Conference, 661
sections of dyke had been either damaged or destroyed during the
course of the war. (4)
2145 Public opinion had reacted against such forms of warfare and for that reason the ICRC, when it presented its Draft Rules for the
Limitation of the Dangers incurred by the Civilian Population in Time
of War in 1956, had already introduced an article on the protection
of installations containing dangerous forces. (5) In fact it was only
an invitation to governments to seek agreement on granting such
installations general immunity. To dams and dykes the provision added
nuclear power stations, a new potential source of danger which had
appeared since the end of the Second World War. Following the failure
of the Draft Rules, the ICRC undertook in 1968 to develop new
proposals. It went back to the text of Article 17 and presented it to
the meetings of experts which it had called. That provision was
considered too weak by the experts, which led the ICRC to present an
article to the Diplomatic Conference containing a prohibition,
without room for exceptions, on attacks or destruction of dams,
[p.668] dykes, and nuclear generating stations. (6) After a long
discussion in a Working Group that provision led to the text of the
present article, which was accepted by the Diplomatic Conference by
consensus. (7) The importance of the new provision should be
underlined and the prohibition on reprisals which it contains should
be welcomed.
Paragraph 1
2146 The definition of works and installations to be protected gave rise to a number of discussions.
2147 According to some amendments, the list which is given should have been merely illustrative. (8) However, as the Rapporteur indicated,
it was only after it was decided to limit the special protection
granted by the article to dams, dykes and nuclear electrical
generating stations and other military objectives located at or in
the vicinity of these works or installations, that it was possible to
draw up a text which was generally acceptable. (9)
2148 It is clear that there are other works or installations which can release dangerous forces in the case of attack; for example, one need
think only of factories manufacturing toxic products which, if
released as a gas, could endanger an entire region; such incidents,
which can sometimes be serious, have recently occurred in various
countries in peacetime.
2149 Several delegations wished to include other installations in the list, in particular oil production installations and storage
facilities for oil products. (10)
2150 It appears that the consultations were not successful, as the sponsors of the proposals in this field finally withdrew them. (11)
There is no doubt that Article 55
' (Protection of the natural
environment) ' will apply to the destruction of oil rigs resulting in
oil gushing into the sea and leading to extensive damage such as that
[p.669] described in that article. As regards the destruction and
setting alight of refineries and petroleum storage facilities, it is
hardly necessary to stress the grave danger that may ensue for the
civilian population. Extending the special protection to such
installations would undoubtedly have posed virtually insoluble
problems, and it is understandable that the Conference, when it
adopted these important prohibitions, limited them to specific
objects.
2151 The Protocol does not mention fire as a "dangerous force", for it is difficult to see how it can be unleashed by works and
installations. However, it should be recalled that the Convention of
10 October 1980 on the prohibition of certain conventional weapons
prohibits the use of incendiary weapons against civilians and even
against military objectives situated in an area where civilians are
concentrated.
2152 The works and installations covered are protected against attacks, i.e., according to Article 49
' (Definition of attacks and
scope of application), ' acts of violence against the adversary. It
should also be recalled that in accordance with Article 49
' (Definition of attacks and scope of application), ' paragraph 2,
the prohibition of attacks contained in Article 56
also applies to a
Party's own territory under the control of the adverse Party. On the
other hand, the works and installations are not protected against
destruction, removal or being rendered useless, as in Article 54
' (Protection of objects indispensable to the survival of the
civilian population), ' with regard to objects indispensable to the
survival of the civilian population. It therefore clearly follows
that if circumstances so require, a government may destroy works and
installations located in that part of its own territory which is
under its control or may render them useless. It is up to the
government to take all necessary measures to ensure that the civilian
population is not affected. Similarly, an Occupying Power, or another
Power which has control of a region, may destroy property or render
it useless in certain cases if, as provided in Article 53
of the
fourth Convention, such destruction is rendered absolutely necessary
by military operations. In such circumstances the Power concerned
must ensure that there is no damage to the civilian population, and
exceptionally this may require the evacuation of the civilian
population in the circumstances laid down in Article 49
of the fourth
Convention. According to Article 46
of the Hague Regulations annexed
to Hague Convention IV of 1907 the Occupying Power has a general duty
to respect the life of individuals in occupied territories.
2153 The works and installations concerned are civilian objects a priori, and may therefore not be attacked. If they become military
objectives, as defined in Article 52
' (General protection of
civilian objects), ' they enjoy special protection and may not be
attacked when such attacks may cause severe losses among the civilian
population because of the release of dangerous forces. If such an
attack cannot cause severe losses it is legitimate, provided that the
works or installation which is attacked has clearly become a military
objective in the sense of Article 52
' (General protection of civilian
objects), ' i.e., provided that it makes an effective contribution to
military action and its total or partial destruction, in the
circumstances ruling at the time, offers a definite military
advantage.
2154 The word "severe" is equivalent to "important" or "heavy". As so often in this Chapter, this concept is a matter of common sense and
it must be applied in good faith on the basis of objective elements
such as the proximity of inhabited [p.670] areas, the density of
population, the lie of the land etc.
2155 The second sentence of the paragraph deals with military objectives located at or in the vicinity of such works or
installations, which, if attacked, could lead to the release of
dangerous forces. This does not refer to military forces assigned to
guard or defend the works or installation -- they are dealt with in
paragraph 5 of the article -- but to objectives which are either
incorporated in the installation or located in the immediate
vicinity.
2156 As an example, the Rapporteur cites a hydro-electric power station incorporated in a dam or located in the immediate vicinity.
If such an installation has become a military objective under the
terms of Article 52
' (General protection of civilian objects) ' as a
result of the circumstances of the conflict, it cannot be attacked if
such an attack could lead to the destruction of the dam.
2157 It is conceivable that a dam, dyke or nuclear electrical generating station is situated in the immediate vicinity of some
civil engineering works, for example, a bridge or a railway line, and
that, in the circumstances of conflict, that bridge or a section of
that line could become an important military objective. In this case
too, no attack may be undertaken against such a bridge or railway
line if the attack could affect the dam, dyke or nuclear electrical
generating station, and in this way cause the release of dangerous
forces.
2158 It should be noted that launching an attack against works or installations containing dangerous forces under certain conditions is
condemned by Article 85
' (Repression of breaches of this
Protocol), ' paragraph 3(c), of the Protocol as a grave breach.
Paragraph 2
2159 This provision envisages situations in which the protection laid down in paragraph 1 might cease. However, it should be stressed at
the outset that in such cases where the highest human interests are
at stake, the decision to deprive them of protection can only be
taken at a high military level.
2160 In the French text, it may be noted that the word "prévues" (provided), contained in the first line, should be in the singular,
referring to the protection and not to the attacks. However, the
meaning is not affected by this.
' Sub-paragraph (a) '
2161 This sub-paragraph deals with dams and dykes. The use of words calls for some comment. First, the term "military operations" should
be understood to mean movements, manoeuvres and actions of any sort
carried out by armed forces with a view to combat. (12) Then, the
expression "other than its normal function" means that the dam or
dyke is used for a purpose other than containing an actual or
[p.671] potential mass of water, which is the normal function of such
a structure; if the dam or dyke is not used for any other purpose, it
must not be attacked under any circumstances.
2162 It may happen that a dyke forms part of a system of fortifications, or that there is a road across the top of a dam which
could, in combat conditions, become an essential route for the
movement of armed forces. Even in such circumstances protection may
cease only if the dam or the dyke constitutes a regular, significant
and direct support of military operations, and if such an attack is
the only feasible way of terminating such support. The language used
indicates that the support given to military operations must be at
the same time regular, significant and direct. This triple
qualification, which is also found in sub-paragraphs (b) and (c), may
seem to be subject to subjective interpretation, but these terms
merely express common sense, i.e., their meaning is fairly clear to
everyone. They need to be interpreted in good faith on the basis of
objective elements. The word "regular" relates to time. It means that
accidental or sporadic use is not sufficient; there must be some
continuity in the use, or at least some rhythm. The word
"significant" is less precise, but must be understood in relation to
a scale of degrees of significance that may be established. The
support must not be negligible nor should it be merely an incidental
circumstance, but it must be sizeable having a real and effective
impact. The term "direct" means: not in an intermediate or a
roundabout way. Thus the relation between the act and its effect must
be close and immediate. What is meant is support which would benefit
military operations themselves and not merely intermediary objectives
which themselves would be related to such operations. It is clear
that the termination of special protection can occur only in the
event that a number of very restrictive conditions are all met at the
same time.
2163 In addition, it should be noted that some dams and dykes are irrigation works in the sense of Article 54
' (Protection of objects
indispensable to the survival of the civilian population), '
paragraph 2; some works have a combined function serving partly for
irrigation and partly to generate electricity. Thus an attack on such
works is subject to the additional condition imposed by paragraph 3
of Article 54
' (Protection of objects indispensable to the survival
of the civilian population), ' namely, that they are used only for
the subsistence of members of the armed forces or otherwise in direct
support of military action. Even in these cases it is still
prohibited to take action against such objects when such action may
be expected to leave so little food or water for the civilian
population that it will be reduced to starvation or forced to move
away.
' Sub-paragraph (b) '
2164 This sub-paragraph is concerned with nuclear electrical generating stations. If these were bombed, this could affect stocks
of radioactive products, or even the core of the installation, and in
this way releasing lethal radiation. The condition imposed for the
special protection to cease is that such a station produces
electricity in regular, significant and direct support of military
operations, and that such attack is the only feasible way to
terminate such support.
[p.672] 2165 In general, electricity is conducted to various different types of destinations, civilian or military, which are closely interwoven,
particularly as grids are often integrated, thus pooling generating
capacity. It would not be reasonable to claim that merely supplying
electricity constitutes direct support of military operations in
accordance with the definition given above. Moreover, troops on the
move use virtually no electricity, or if they do, they generate it
themselves. The Rapporteur of Committee III (13) considered that the
expression "military operations" could cover factories producing
armaments, ammunition and military equipment. (14) We consider this
interpretation to be excessive. If it had been the intention to
include such supplies, an explicit provision should have been made.
However, the Rapporteur added that the expression does not cover the
production of civilian objects, even if they are also used by the
armed forces.
2166 It may be added that in the case of nuclear electrical generating stations it is relatively easy to stop electricity reaching its
destination by attacking the electricity lines. In this way the
desired result is achieved without the risk of releasing dangerous
forces.
' Sub-paragraph (c) '
2167 This sub-paragraph deals with military objectives located at or in the vicinity of the works or installations in question. With
regard to these, reference should be made to what was said above
regarding the second sentence of paragraph 1. The restrictive
conditions imposed on the cessation of special protection are the
same in this case as sub-paragraph (b).
Paragraph 3
2168 It seemed appropriate to specify that in any attack directed against a dam, dyke or nuclear electrical generating station which
had ceased to enjoy special protection, all other rules protecting
the civilian population must be respected.
2169 These are mainly the general rules contained in Article 51
' (Protection of the civilian population) ' and the precautions
prescribed in Article 57
' (Precautions in attack). ' (15) In
particular, even if the conditions imposed for special protection to
cease are all met, the attacker must always respect the principle of
proportionality between losses inflicted and military advantage
gained from the destruction of the objective (16)
[p.673] 2170 In the case of an attack on an objective which has lost special protection, belligerents must take all practical precautions to
prevent dangerous forces from being released. On this subject the
Rapporteur remarked that given the panoply of weapons available to
modern armies, this provision should ensure real protection against
the catastrophic release of dangerous forces. (17)
Paragraph 4
2171 The prohibition of reprisals against dykes, dams and nuclear electrical generating stations supplements the foregoing provisions
harmoniously. The ICRC draft did not go as far as this, but the
Conference included a prohibition of reprisals in nearly all the
rules in Part IV. In the final meetings some delegations expressed
some doubts regarding the advisability of prohibiting all reprisals
in this field, but a large majority was in support of such
prohibitions. (18) The introduction to Part V, Section II, contains
an account of the way the problem of reprisals was dealt with by the
Diplomatic Conference. (19)
Paragraph 5
2172 This provision is completely new. In 1973 the ICRC restricted itself to presenting the problem without going so far as to submit
specific proposals. (20)
2173 As we see, the Conference surmounted the real difficulties inherent in this problem and adopted a seemingly realistic solution.
In fact it does not seem very likely that in time of war security and
defence measures should fail to be taken for dykes, dams and nuclear
electrical generating stations, if only to protect them against acts
of sabotage from whatever source. It may therefore be taken for
granted that any works or installation of any importance would at
least be assigned a picket guard, and probably the protection of an
anti-aircraft battery.
2174 Two of the amendments submitted to the Conference contained in embryonic form the concept which underlies this paragraph. (21)
According to the Rapporteur, the type of weapons authorized for
defence were discussed at length in the Working Group. In the end it
was decided not to adopt any other limitations than [p.674] those
mentioned at the end of the provision, i.e., that they must be
weapons capable only of repelling hostile action against the
protected works or installations. (22)
2175 If the works or installations are at a distance from the combat area, it is mainly a matter of defending them against attacks mounted
by combatants who have been infiltrated or parachuted, or against
attacks by guided missiles or projectiles dropped from aircraft. Thus
there will be needed, on the one hand, a military guard equipped with
light individual weapons, and on the other hand, anti-aircraft
artillery. In the second case such artillery may only be used against
aircraft which are out to attack the protected works or
installations, but not against aircraft flying over the works or
installations on their way to attacking another military objective.
It cannot be denied that this could pose serious difficulties of
judgment.
2176 If the works or installations are located within the combat area, the military guard and the anti-aircraft artillery protecting them
will of course be part and parcel of the total military system, and
it will be difficult to make a clear distinction between military
deployments designed to defend the works and installations and other
troops fighting in the area. In such circumstances the Parties to the
conflict may be induced to take preventive measures, such as emptying
reservoirs or closing down nuclear electrical generating stations;
they may also envisage the possibility of not defending such works or
installations so that these can be occupied by the adversary without
destructive attacks which could release dangerous forces.
Paragraph 6
2177 The invitation made to Parties to conclude further agreements to ensure the protection of objects containing dangerous forces is
undoubtedly very useful. One might think of extending special
protection by agreement to objects other than dams, dykes and nuclear
electrical generating stations. As we saw above, there are many
establishments or installations whose wanton destruction would expose
the civilian population to severe losses, such as, for example, fuel
storage installations, factories producing toxic products etc. One
could also conceive of the neutralization of dams, dykes and nuclear
electrical generating stations and the surrounding areas with the
supervision of the Protecting Powers or other organizations. Such an
agreement could also set out the conditions of implementation of this
article.
2178 However, it should be recalled that concluding agreements in time of war is no easy matter, and it is better to rely on already
existing provisions which can be directly applied. Parties to a
conflict which have resorted to war do not frequently negotiate with
the enemy, even about humanitarian matters. Moreover, hostilities
render the procedures slow and uncertain. This was the case on many
occasions, particularly during the Second World War. Such agreements
are provided for in the Conventions in common Article 6
/6/6/7.
[p.675]
Paragraph 7
2179 In the draft the ICRC had provided that the Parties to the conflict would have the possibility of marking dykes, dams and
nuclear electrical generating stations entitled to special protection
by means of a sign consisting of two oblique red bands on a white
ground. This sign was already prescribed in the Draft agreement
relating to safety zones annexed to the fourth Convention. The 1973
draft also provided for the marking of non-defended and neutralized
localities. The Conference did not take up these proposals. For
non-defended localities and demilitarized zones the way in which they
are to be marked should be established by agreement with the
adversary. (23) For works and installations entitled to special
protection the concept of a special sign was retained and the
responsibility for determining what this should be was entrusted to a
special Sub-Group of the Working Group. This Sub-Group adopted the
following directing principles:
a) the distinctive sign must be as simple as possible;
b) it must be of no political or religious relevance whatsoever;
c) it must not be confused with any other distinctive sign already in use;
d) it should be visible and distinguishable as such from all directions and from as far away as possible;
e) the choice of colour should be made according to available technical knowledge, (24) which had led the Sub-Group to choose
bright orange.
2180 Taking into account various proposals the Sub-Group chose a sign consisting of three bright orange circles and drafted paragraph 7
accordingly as well as Article 16
' (International special sign) ' of
the Regulations concerning identification annexed to the
Protocol. (25)
2181 It may be noted that in accordance with paragraph 6 the Parties may agree on another method of marking, or even add other means of
identification to the marking prescribed, such as, for example, the
transmission of radio or electronic signals.
2182 Marking is optional; the special protection is therefore due even if the works or installations are not marked. Yet it seems clear that
it is in the interests of a Party to the conflict which wishes its
dams, dykes or nuclear electrical generating stations to be respected
to communicate a list of them with their geographical location to the
adversary through the intermediary of the Protecting Powers or
organizations replacing them.
2183 Finally, it should be noted that, subject to certain conditions, Article 85
' (Repression of breaches of this Protocol), ' paragraph
3(f), of the Protocol condemns the perfidious use of protective
emblems as a grave breach.
' C.P./J.P. '
NOTES
(1) [(1) p.667] A mixture of saltpetre, sulphur, resin and
other inflammable materials which had the virtue of
adhering to objects and burning them without allowing
water to penetrate;
(2) [(2) p.667] See P. Brickhill, ' Dam Busters ';
(3) [(3) p.667] See in particular, "Ecological Consequences of the Second Indochina War", ' SIPRI Yearbook, ' 1976, pp.
57-58, and "Weapons of Mass Destruction and the
Environment", ibid., 1977, pp. 54-55;
(4) [(4) p.667] O.R. XIV, p. 161, CDDH /III/SR.19, para. 2;
(5) [(5) p.667] Article 17 - Installations containing dangerous forces;
(6) [(6) p.668] "Article 49 - Works and installations containing dangerous forces
1. It is forbidden to attack or destroy works or
installations containing dangerous forces, namely, dams,
dykes and nuclear generating stations. These objects shall
not be made the object of reprisals.
2. The Parties to the conflict shall endeavour to avoid locating any military objectives in the immediate
vicinity of the objects mentioned in paragraph 1.
3. In order to facilitate their identification, the Parties to the conflict may mark works and installations
containing dangerous forces with a special sign consisting of two oblique red bands on a white ground. Absence of
such marking in no way relieves a Party from its
obligations under paragraphs 1 and 2 of this article.";
(7) [(7) p.668] O.R. VI, p. 209, CDDH/SR.42, para. 30;
(8) [(8) p.668] Cf. O.R. III, p. 225, CDDH/III/59/Rev.1 and p. 224, CDDH/III/76;
(9) [(9) p.668] O.R. XV, p. 282, CDDH/215/Rev.1, para. 85;
(10) [(10) p.668] On this subject the Rapporteur of the Working Group expressed himself as follows: "Finally, it should be
noted that some representatives requested the inclusion in
this article of special protection for oil rigs, petroleum
storage facilities, and oil refineries. It was agreed that
these were not objects containing dangerous forces within
the meaning of this article and that, if these objects are
to be given any special protection by the Protocol, it
should be done by another article, perhaps by a special
article for that purpose. The Rapporteur has agreed to
consult further with interested representatives on this
question." (O.R. XV, p. 352, CDDH/III/264/Rev.1);
(11) [(11) p.668] Ibid., p. 449, CDDH/407/Rev.1, para. 12;
(12) [(12) p.670] Cf. commentary Art. 48, note 13, supra, p. 600;
(13) [(13) p.672] O.R. XV, p. 283, CDDH/215/Rev.1, para. 91;
(14) [(14) p.672] The expression "military operations" also occurs in Article 59, para. 2(d). Article 54, para. 3(b)
refers to "military action", which appears to be an
equivalent term. Article 60, para. 3(d), refers to
activity linked to the military effort; this expression
seems to have a wider scope;
(15) [(15) p.672] Cf. commentary Art. 51, supra, p. 613 and commentary Art. 57, infra, p. 677;
(16) [(16) p.672] On this subject the Rapporteur expressed himself as follows: "In the case of a dam or dyke, for
example, where a great many people would be killed and
much damage done by its destruction, immunity would exist
unless the military reasons for destruction in a
particular case were of an extraordinarily vital sort."
(O.R. XV, p. 282, CDDH/215/Rev. 1, para. 86);
(17) [(17) p.673] Ibid., p. 284, para. 92;
(18) [(18) p.673] O.R. VI, pp. 205 ff., CDDH/SR.42;
(19) [(19) p.673] Infra, p. 981;
(20) [(20) p.673] It therefore pointed out that according to some experts, belligerents might be afraid to rely only on
the prohibition contained in paragraph I for the
protection of their works containing dangerous forces; in
order to shield their population from the very serious
consequences of attacks launched either by mistake or in
violation of that rule, they might, for example, be led to
position anti-aircraft guns for the sole purpose of
defending the works concerned. In the view of these
experts the article should authorize setting up a defence.
In the ICRC's view the problem with this lies in the fact
that it is not possible to judge objectively what is the
intention of the Parties to the conflict, particularly the
Party taking such "defensive" measures (' Commentary
Drafts ', p. 63);
(21) [(21) p.673] O.R. III, p. 222, CDDH/III/10 and p. 224, CDDH/III/65;
(22) [(22) p.674] O.R. XV p. 284, CDDH/215/Rev.1, para. 92;
(23) [(23) p.675] See commentary Arts. 59, para. 6, infra, p. 705, and 60, para. 5, infra, p. 712. There is nothing to
prevent the Parties concerned from adopting the sign of red bands on a white ground provided by the Fourth
Convention of 1949;
(24) [(24) p.675] O.R. XV, p. 471, CDDH/407/Rev.1, Annex I, para. 2;
(25) [(25) p.675] Cf. commentary Annex I, Art. 16, infra, p. 1295;
GVALNWB2/ICRC
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