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Australia
Practice Relating to Rule 54. Attacks against Objects Indispensable to the Survival of the Civilian Population
Australia’s Commanders’ Guide (1994) states:
It is prohibited to destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works. Military operations involving collateral deprivation are not unlawful as long as the object is not to starve the civilian population.
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 907; see also § 410.
Australia’s Defence Force Manual (1994) provides:
Objects indispensable to the survival of the civilian population cannot be attacked, destroyed, removed or rendered useless for the specific purpose of denying them for their sustenance value to the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works. This includes starving civilians or causing them to move away.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 709; see also §§ 533, 929 and 930.
The manual adds that the destruction of such objects is prohibited, “whatever the motive of such destruction”.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 930.
The manual further stresses that the prohibition of attacking objects indispensable to the survival of the civilian population “relates to attacks made for the specific purpose of denying these items to the civilian population. Collateral damage to foodstuffs is not a violation of these rules as long as the intention was to gain a military advantage by attacking a military objective.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 533.
Australia’s LOAC Manual (2006) states:
5.37 … G. P. I [1977 Additional Protocol I] expressly forbids attacks against objects that are indispensable to the survival of the civilian population … This prohibition relates to attacks made for the specific purpose of denying these items to the civilian population. Collateral damage to foodstuffs is not a violation of the rules as long as the intention was to gain a military advantage by attacking a military objective.
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7.10 … Objects indispensable to the survival of the civilian population cannot be attacked, destroyed, removed or rendered useless for the specific purpose of denying them for their sustenance value to the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works. This includes starving civilians or causing them to move away.
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9.31 … G. P. I … prohibits the attacking, destruction, spoiling or removal of objects indispensable to the survival of the civilian population whatever the motive of such destruction.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 5.37, 7.10 and 9.31.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s Criminal Code Act (1995), as amended to 2007, states with respect to serious war crimes that are committed in the course of an international armed conflict:
268.51 War crime – destroying or seizing the enemy’s property
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator destroys or seizes certain property; and
(b) the property is property of an adverse party; and
(c) the property is protected from the destruction or seizure under article 18 of the Third Geneva Convention, article 53 of the Fourth Geneva Convention or article 54 of Protocol I to the Geneva Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the property is so protected; and
(e) the destruction or seizure is not justified by military necessity; and
(f) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
(2) Strict liability applies to paragraph (1)(c).
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.51, p. 335.
The Criminal Code Act also states with respect to war crimes that are serious violations of the laws and customs of war applicable in a non-international armed conflict:
268.94 War crime – destroying or seizing an adversary’s property
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator destroys or seizes certain property; and
(b) the property is property of an adversary; and
(c) the property is protected from the destruction or seizure under article 14 of Protocol II to the Geneva Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the property is so protected; and
(e) the destruction or seizure is not justified by military necessity; and
(f) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 15 years
(2) Strict liability applies to paragraph (1)(c).
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.94, pp. 368–369.
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including “any intentional deprivation of civilians of objects indispensable to their survival” in international armed conflicts.
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, § 268.67(1)(a)(i).
In its oral pleadings before the ICJ in the Nuclear Weapons case in 1995, Australia declared:
Another area of the law in which there have been significant recent developments is that of the protection of the civilian population in times of armed conflict. A significant step further was taken as recently as 1977, with the adoption of the Additional Protocol I to the Geneva Conventions. Australia, together with the bulk of the international community, believes that the essential terms of the Protocol should be regarded as reflecting customary international law …
Article 54, paragraph 2, provides that a Party may not
“attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party”.
Australia, Oral pleadings before the ICJ, Nuclear Weapons case, 30 October 1995, Verbatim Record CR 95/22, p. 46.
Australia’s Defence Force Manual (1994) states:
710. Foodstuffs and agricultural areas producing them, crops, livestock and supplies of drinking water intended for the sole use of the armed forces may be attacked and destroyed. Extreme care will need to be exercised when making some objectives a military target, eg drinking water installations, as such objects are hardly likely to be used solely for the benefit of armed forces.
711. When objects are used for a purpose other than sustenance of members of the armed forces and such use is in direct support of military action, attack on such objects is lawful unless that action can be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, §§ 710 and 711; see also § 931.
Australia’s LOAC Manual (2006) states:
7.11 Foodstuffs and agricultural areas producing them, crops, livestock and supplies of drinking water intended for the sole use of the armed forces may be attacked and destroyed. Extreme care will need to be exercised when making some objectives a military target, eg drinking water installations, as such objects are likely not used solely for the benefit of armed forces.
7.12 When objects are used for a purpose other than sustenance of members of the armed forces but such use is in direct support of military action, attack on such objects is lawful unless that action can be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 7.11–7.12; see also § 9.32.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s Commanders’ Guide (1994) provides:
The ADF [Australian Defence Force] may not embark on a scorched earth policy within Australia or its territories unless under their control at the time of devastation and driven by imperative military necessity. It is still permitted, for example, to destroy a wheat-field to deny concealment to enemy forces.
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 908.
Australia’s Defence Force Manual (1994) states:
It is permissible to destroy objects which are indispensable to the survival of the civilian population in the course of ordinary military operations only if it is militarily imperative to do so, for example to destroy a wheat field to deny concealment to enemy forces, because this is a tactical measure and does not amount to a scorched earth policy. The ADF [Australian Defence Force] may embark on a scorched earth policy in territory under Australian control where imperative military necessity requires it to do so to protect Australian national territory from invasion.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 712; see also § 931(c).
Australia’s LOAC Manual (2006) states:
7.13 It is permissible to destroy objects which are indispensable to the survival of the civilian population in the course of ordinary military operations only if it is militarily imperative to do so, for example, to destroy a wheat field to deny concealment to enemy forces, because this is a tactical measure and does not amount to a scorched earth policy.
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9.32 … Objects indispensable to the survival of the civilian population are excluded from protection if … the military necessity for the defence of territory against invasion so requires.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 7.13 and 9.32.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
