Rule 54. Attacks against Objects Indispensable to the Survival of the Civilian Population

Volume II, Chapter 17, Section B.

State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. This rule is a corollary to the prohibition of starvation (see Rule 53).

In principle, objects indispensable to the survival of the civilian population are civilian objects and may not be attacked as such (see Rule 7). A specific prohibition on attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population is set forth in Article 54(2) of Additional Protocol I.[1] According to the Commentary on the Additional Protocols, “this provision develops the principle formulated in paragraph 1 [of Article 54] of prohibiting starvation of the civilian population; it describes the most usual ways in which this may be applied”.[2] Article 54(2) prohibits attacks against objects “for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive”.[3] Upon ratification of Additional Protocol I, France and the United Kingdom stated that this provision had no application to attacks that were carried out for a specific purpose other than denying sustenance to the civilian population.[4] Under the Statute of the International Criminal Court, “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival” is a war crime in international armed conflicts.[5]

Numerous military manuals state that it is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population.[6] These include manuals of States not, or not at the time, party to Additional Protocol I.[7] The Annotated Supplement to the US Naval Handbook provides that this prohibition is part of customary international law.[8] Several military manuals specify that in order to be illegal, the intent of the attack has to be to prevent the civilian population from being supplied.[9] Most military manuals, however, do not indicate such a requirement and prohibit attacks against objects indispensable to the survival of the civilian population as such.[10] This is also the case with much of the national legislation which makes it an offence to violate this rule.[11]

In principle, objects indispensable to the survival of the civilian population are civilian objects and may not be attacked as such (see Rule 7). The prohibition on attacking objects indispensable to the survival of the civilian population is set forth in Additional Protocol II and is defined therein as a corollary to the prohibition of starvation.[12] As stated in the Commentary on the Additional Protocols, this provision “develops the principle prohibiting starvation from being used against civilians by pointing out the most usual ways in which starvation is brought about”.[13] In addition, this rule is contained in other instruments pertaining also to non-international armed conflicts.[14]

The prohibition is set forth in military manuals which are applicable in or have been applied in non-international armed conflicts.[15] Attacking objects indispensable to the survival of the civilian population is an offence in any armed conflict under the legislation of several States.[16] This rule is also referred to in official statements and other practice relating to non-international armed conflicts.[17]

No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged violations of this rule have generally been condemned, in particular by the United Nations and other international organizations, for example, with respect to the conflicts in Bosnia and Herzegovina and the Democratic Republic of the Congo.[18] The 26th International Conference of the Red Cross and Red Crescent in 1995 underlined in general terms “the prohibition on attacking, destroying, removing or rendering useless any objects indispensable to the survival of the civilian population”.[19] The prohibition was also stressed in the Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red Cross and Red Crescent in 1999.[20] The ICRC has called on parties to both international and non-international armed conflicts to respect this rule.[21]

There are two exceptions to the prohibition on attacking objects indispensable to the survival of the civilian population. The first exception is based on the consideration that these objects can be attacked if they qualify as military objectives. Additional Protocol I provides that this may be the case if the objects are used as sustenance solely for combatants or otherwise in direct support of military action.[22] This exception is set forth in several military manuals, some legislation and official statements.[23] This practice recognizes, however, that when such objects are not used as sustenance solely for combatants but nevertheless in direct support of military action, the prohibition of starvation prohibits the attack of such objects if the attack may be expected to cause starvation among the civilian population. This practice includes that of States not party to Additional Protocol I.[24] It is doubtful, however, whether this exception also applies to non-international armed conflicts, because Article 14 of Additional Protocol II does not provide for it and there is no practice supporting it.

The second exception consists of the so-called “scorched earth policy” applied in defence of national territory against invasion. Additional Protocol I allows for this exception “in recognition of the vital requirements of any Party to the conflict in the defence of its national territory against invasion … where required by imperative military necessity”.[25] This exception is recognized in several military manuals and official statements.[26] This practice includes that of States not party to Additional Protocol I.[27] It is doubtful, however, whether the exception of scorched earth policy applies to non-international armed conflicts because Article 14 of Additional Protocol II does not contain it. Colombia’s Basic Military Manual states that “in all armed conflicts” it is prohibited to order a scorched earth policy as a method of combat.[28]

Belligerent reprisals against objects indispensable to the survival of the civilian population are discussed in Chapter 41.

Additional Protocols I and II provide the following examples of objects indispensable to the survival of the civilian population: foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies, and irrigation works.[29] This list of examples is not exhaustive as indicated by the words “such as” in the relevant provisions. During the negotiation of the Elements of Crimes for the International Criminal Court, it was recognized that the ordinary meaning of the word “starvation” covered not only the more restrictive meaning of starving as killing by deprivation of water and food, but also the more general meaning of deprivation or insufficient supply of some essential commodity, of something necessary to survival. As a result, other examples that were mentioned during those negotiations included indispensable non-food items such as medicines and, in some cases, blankets.[30] It is important to point out in this respect that both Additional Protocols I and II consider food and medical supplies as essential to the survival of the civilian population, while Additional Protocol I also mentions clothing, bedding and means of shelter.[31]