Rule 42. Works and Installations Containing Dangerous Forces
Rule 42. Particular care must be taken if works and installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, and other installations located at or in their vicinity are attacked, in order to avoid the release of dangerous forces and consequent severe losses among the civilian population.
Volume II, Chapter 13.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
When works and installations containing dangerous forces are civilian objects, they may not be made the object of attack (see Rule 7). These works and installations may only be attacked in case they qualify as military objectives (see Rule 7). Practice shows that States are conscious of the high risk of severe incidental losses which can result from attacks against such works and installations when they constitute military objectives. Consequently, they recognize that particular care must be taken in case of attack.
The detailed rules contained in Article 56 of Additional Protocol I, as well as in Article 15 of Additional Protocol II, were elaborated on the basis of this recognition.[1] These rules are set forth in numerous military manuals.[2] Attacks against works and installations which result in severe losses are offences under the legislation of a number of States.[3] Military manuals and legislation of a number of other States prohibit attacks against works and installations as such.[4]
Upon ratification of Additional Protocol I, France and the United Kingdom declared that they cannot grant “absolute” protection to works and installations containing dangerous forces which are military objectives. They recognize, however, the special peril inherent in any attack against works and installations containing dangerous forces as they require, respectively, that every “necessary” and every “due” precaution be taken in the exceptional situation where such works and installations are to be attacked, in order to avoid severe incidental losses among the civilian population.[5] The Colombian government similarly expressed the need for restraint and precaution in a statement with respect to an attack by government troops on a dam in order to dislodge guerrillas.[6]
Israel and the United States stress that the proportionality test is important in assessing the legality of an attack against works and installations containing dangerous forces which are military objectives.[7] While an assessment under the principle of proportionality must be made on a case-by-case basis, this position equally reflects sensitivity to the severe losses that may ensue among the civilian population when dangerous forces of such works and installations are released. “Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilians objects” constitutes a grave breach of Additional Protocol I.[8] Such attacks are also offences under the legislation of many States.[9]
States’ sensitivity to the possibility of the release of dangerous forces is underscored by the fact that when attacks against such works and installations have been carried out in recent decades, the attacker stressed they were executed with the greatest care possible.[10] It is further underlined by the condemnations of such attacks, denials of such attacks and generally by the restraint shown by States with respect to attacks against works and installations containing dangerous forces.[11]
It appears, therefore, that attacks could be envisaged in situations where they are indispensable to obtain an important military advantage, which could not be obtained in any other way, and all necessary precautions are taken. The importance of such a decision, given the high risk of severe incidental losses, is illustrated by the position taken by the United Kingdom and the United States that a decision to attack a work or installation containing dangerous forces has to be taken at, respectively, “a high level of command” and “at appropriately high political levels”.[12]
State practice does not see this rule as a one-sided requirement. The defender equally has an obligation to preserve or enhance the protection of works and installations containing dangerous forces by taking all feasible precautions against attacks: the works and installations should not be used in direct support of military action; military objectives should not be located at or in the vicinity of such works and installations; and such works and installations should never be used to shield military operations.[13]
Belligerent reprisals against works and installations containing dangerous forces are discussed in Chapter 41.
The Additional Protocols have limited this rule to dams, dykes and nuclear electrical generating stations.[14] Inclusion of other works and installations containing dangerous forces could not be agreed upon at the Diplomatic Conference leading to the adoption of the Additional Protocols. However, the considerations explained above should equally apply to other installations, such as chemical plants and petroleum refineries. The fact that attacks on such installations may cause severe damage to the civilian population and the natural environment implies that the decision to attack such installations, in case they become military objectives, requires that all necessary precautions be taken when attacking them.
[1] Additional Protocol I, Article 56 (adopted by consensus) (cited in Vol. II, Ch. 13, § 1); Additional Protocol II, Article 15 (adopted by consensus) (ibid., § 5).
[2] See, e.g., the military manuals of Argentina (ibid., § 11), Australia (ibid., § 12), Belgium (ibid., § 14), Benin (ibid., § 15), Cameroon (ibid., § 16), Canada (ibid., § 17), France (ibid., §§ 21–23), Germany (ibid., § 24), Kenya (ibid., § 29), Netherlands (ibid., §§ 32–33), New Zealand (ibid., § 34), South Africa (ibid., § 36), Spain (ibid., § 37), Switzerland (ibid., §§ 38–39), Togo (ibid., § 40), United Kingdom (ibid., § 41) and Yugoslavia (ibid., § 46).
[3] See, e.g., the legislation of Azerbaijan (ibid., § 51), Hungary (ibid., § 65) ("which result in heavy damage"), Lithuania (ibid., § 69) ("knowing that it might have extremely grave consequences"), Slovenia (ibid., § 76) ("an attack on which would be particularly dangerous") and Spain (ibid., § 77) ("considerable losses"); see also the draft legislation of Argentina (ibid., § 47), El Salvador (ibid., § 61), Jordan (ibid., § 67) ("widespread loss of life or injury among the civilian population and damage to civilian property") and Nicaragua (ibid., § 72).
[4] See, e.g., the military manuals of Croatia (ibid., § 19), France (ibid., §§ 21–22), Italy (ibid., §§ 27–28), Republic of Korea (ibid., § 30) and Madagascar (ibid., § 31) and the legislation of Belgium (ibid., § 53), Bosnia and Herzegovina (ibid., § 54), Colombia (ibid., § 56) ("without any justification based on imperative military necessity"), Croatia (ibid., § 58), Czech Republic (ibid., § 60) (intentional destruction or damage), Estonia (ibid., § 62), Georgia (ibid., § 63) ("in the knowledge that it will cause loss"), Germany (ibid., § 64), Slovakia (ibid., § 75) (intentional destruction or damage), Tajikistan (ibid., § 79) and Yugoslavia (ibid., § 81).
[5] France, Reservations and declarations made upon ratification of Additional Protocol I (ibid., § 4); United Kingdom, Reservations and declarations made upon ratification of Additional Protocol I (ibid., § 3).
[6] Colombia, Comments of the Office of the Human Rights Adviser of the Presidency (ibid., § 88).
[7] Report on the Practice of Israel (ibid., § 98); United States, Air Force Pamphlet (ibid., § 42), Naval Handbook (ibid., § 44), Annotated Supplement to the Naval Handbook (ibid., § 45) and Remarks of the Deputy Legal Adviser of the Department of State (ibid., § 108).
[8] Additional Protocol I, Article 85(3)(c) (ibid., § 2).
[9] See, e.g., the legislation of Armenia (ibid., § 48), Australia (ibid., §§ 49–50), Belarus (ibid., § 52), Belgium (ibid., § 53), Canada (ibid., § 55), Cook Islands (ibid., § 57), Cyprus (ibid., § 59), Ireland (ibid., § 66), Netherlands (ibid., § 70), New Zealand (ibid., § 71), Niger (ibid., § 73), Norway (ibid., § 74), Sweden (ibid., § 78), United Kingdom (ibid., § 80) and Zimbabwe (ibid., § 82); see also the draft legislation of Lebanon (ibid., § 68).
[10] See, e.g., United Kingdom, Statement by the Secretary of Defence before the Defence Committee (with respect to the Gulf War) (ibid., § 105) and the practice of the United States with respect to the Vietnam War, reported in W. Hays Parks, “Air War and the Law of War” (ibid., § 107).
[11] See, e.g., the military manuals of the United States (ibid., § 45), the statements of China (ibid., § 87), Islamic Republic of Iran (ibid., § 95), Iraq (ibid., §§ 96–97) and United Kingdom (ibid., § 104) and the reported practice of Pakistan (ibid., § 101).
[12] United Kingdom, Reservations and declarations made upon ratification of Additional Protocol I (ibid., § 3); United States, Air Force Pamphlet (ibid., § 42).
[13] See the practice cited in
ibid., §§ 129–153.
[14] Additional Protocol I, Article 56 (adopted by consensus) (ibid., § 1); Additional Protocol II, Article 15 (adopted by consensus) (ibid., § 5).
