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

Additional Protocol I
Article 54(3) of the 1977 Additional Protocol I provides that the prohibition contained in Article 54(2) of the Protocol to attack, destroy, remove, or render useless objects indispensable to the survival of the civilian population does not apply if the objects indispensable to the survival of the civilian population are used by an adverse party:
a) as sustenance solely for the members of its armed forces; or
b) if not as sustenance, then in direct support of military action, provided, however, that in no event shall actions against these objects be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 54(3). Article 54 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 208.
Lieber Code
Article 15 of the 1863 Lieber Code states:
Military necessity … allows … of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy’s country affords necessary for the subsistence and safety of the army. 
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 15.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 54(3) of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 54(3) of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
Australia
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
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).
Belgium
Belgium’s Law of War Manual (1983) states that there is a prohibition to attack, destroy or render useless objects indispensable to the survival of the civilian population, “except if these objects are used by the adversary solely for the sustenance of its armed forces, or if that is not the case, if they serve nonetheless in direct support of military action”. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 28.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states:
Under what circumstances would objects indispensable for the survival of the civilian population be excluded from protection?
Such protection ceases:
- if they are only used for the sustenance of armed forces;
- if they are used in direct support of military action (but the civilian population would not be subjected to famine or forced to relocate [as a consequence]). 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 41; see also Part I bis, pp. 88 and 94.
Canada
Canada’s LOAC Manual (1999) states:
Objects indispensable to the survival of the civilian population may be attacked if they are used by an adverse party:
a. as sustenance solely for the member[s] of its armed forces; or
b. in direct support of military action, provided that actions against these objects do not leave the civilian population with such inadequate food or water so as to cause its starvation or force its movement. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-8, § 80.
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting:
Objects indispensable to the survival of the civilian population may be attacked if they are used by an adverse party:
a. as sustenance solely for the member of its armed forces; or
b. in direct support of military action, provided that actions against these objects do not leave the civilian population with such inadequate food or water so as to cause its starvation or force its movement. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 445.3.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 2 (Instruction of second-year trainee officers):
II.2.5. Protection of goods indispensable for the survival of the population
It is prohibited to use starvation as a method of warfare against the civilian population, i.e. to resort to the former concept of siege. It is therefore prohibited to 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. This prohibition does not apply to objects exclusively used by the armed forces or for the direct support of a military action.
Even in such a case, attacks are prohibited if they risk endangering the civilian population, i.e. leave it with inadequate food, water, cause its starvation or force its movement. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 31.
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:
II.2.3. Objects indispensible to the survival of the population
Objects indispensible to the survival of the civilian population can be attacked if they serve an adverse Party:
- as sustenance solely for the members of its armed forces;
- in direct support of military action, to the extent that the actions against these objects do not leave the civilian population with inadequate food or water, which would cause starvation or force its movement. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 37.
Israel
Israel’s Manual on the Laws of War (1998) states:
It is allowed, of course, to attack the enemy army’s means of support or targets forming the foundation for the direct support of the enemy army, provided that the attack does not leave the civilian population with insufficient means to ward off its starvation. 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 35.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
It is permissible, of course, to attack the sustenance provisions of the enemy’s army or infrastructure targets directly supporting the enemy’s army, providing the attack does not leave the civilian population without enough food. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 25.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Netherlands
The Military Manual (1993) of the Netherlands provides that objects indispensable to the survival of the civilian population are not protected if these objects are used as sustenance only for the members of the opposing armed forces or, if not as sustenance, then in direct support of military action of the adverse party. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-8.
Netherlands
The Military Manual (2005) of the Netherlands states:
There are individual exceptions to the prohibition [on attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population]: if the relevant objects are used solely for the subsistence of members of the armed forces or, if not as subsistence, then in direct support of the adversary’s military operations. Another exception exists for a party to a conflict which is defending its own territory. Given the vital importance of the defence of its own territory, a party may, if compelling military necessity dictates, destroy essential objects or make them unusable … Placing parts of one’s own territory under water (flooding) is not forbidden under these rules. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0536.
New Zealand
New Zealand’s Military Manual (1992) provides that the prohibition to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population
shall not apply to such of the objects covered by it as are used by an adverse Party:
a. as sustenance solely for the members of its armed forces; or
b. if not as sustenance, then in direct support of military action, provided, however, that in no event shall actions against these objects be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, §§ 504(3) (land warfare) and 613(3) (air warfare).
Peru
Peru’s IHL Manual (2004) states:
Objects indispensable to the survival of the civilian population are no longer protected when:
(a) the adverse party uses them as sustenance solely for the members of its armed forces;
(b) the adverse party uses them in direct support of military action (under no circumstances must the civilian population be left without adequate supplies of food or water, forcing it to move). 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 27.d.(3).(a) and (b).
Peru
Peru’s IHL and Human Rights Manual (2010) states:
Objects indispensable to the survival of the civilian population are no longer protected when:
(a) They are solely used for the members of its armed forces.
(b) They are used in direct support of military action (under no circumstances must the civilian population be left without adequate supplies of food or water, forcing it to move). 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 28(d)(3)(a)–(b), p. 238.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
It is prohibited to destroy, remove or render useless objects indispensable for the survival of the civilian population (foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works), unless they are used exclusively for the maintenance of the enemy personnel or in direct support of their combat operations. Destruction, removal or rendering useless such objects shall not cause starvation among the civilian population or force its movement. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 57; see also § 22.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
[1977] Additional Protocol I article 54 grants special protection of objects that are objects indispensable to the survival of the civilian population[;] this article determines the following:
- These prohibitions shall not apply to objects that are also of the same nature, but are used by an adverse Party[:]
- As sustenance solely for the members of its armed forces; or
- If not as sustenance, then in direct support of military action,
Provided, however, that in no event shall actions against these objects be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 115–116.
The manual also states:
Prohibited Methods of Combat
The rule regarding methods of combat is that the survival of the civilian population must at all times be ensured as far as possible. (Additional Protocol I article 54.)
…Objects indispensable to the survival of the civilian population are excluded from protection, if
- They are used solely as sustenance for the armed forces;
- They are used in direct support of military action (but the civilian population may not be consequently reduced to starvation or forced to move)[.] 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 3, p. 180.
Spain
Spain’s LOAC Manual (1996) provides that the prohibition of attacks against objects indispensable to the survival of the civilian population does not apply if the adverse party uses such objects as sustenance solely for the members of its armed forces or in direct support of military action. However, any attack against such objects must not leave the civilian population without adequate food or water such as would cause it to starve or force it to move. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, §§ 3.3.c.(4) and 4.5.b.(2)b).
Spain
Spain’s LOAC Manual (2007) states that the prohibition of attacks against objects indispensible to the survival of the civilian population does not apply if the adverse party uses such objects:
a. as sustenance solely for the members of its armed forces;
b. in direct support of military action (under no circumstances must the civilian population be left without adequate supplies of food or water, forcing it to move). 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 3.3.c.(4); see also §§ 3.3.c.(4), 4.5.b.(2).(b) and 7.3.b.(2).(d).
Sweden
Sweden’s IHL Manual (1991) states:
It is permitted to attack stocks of foodstuffs, water reservoirs, etc. which are in the hands of the adversary’s armed forces. In practice, however, it would probably be very hard to determine whether a food transport or store was intended only for the armed forces or also for the civilian population. Also, military food transports may in some cases be intended for protected groups such as prisoners-of-war or civilians in the hands of one of the belligerents.
… Attacks may also be made on objects being used by the adverse party in direct support of his military operations. This exception may apply mainly when enemy units are for example using a cornfield for advance, or some other object for concealing military units.
The text uses the expression “military action” as opposed to the often-used expression “military operations” which is a broader concept. Thus the exception applies only if the attack entails a direct advantage in a given tactical situation. As against this, it is not permitted to attack an irrigation works, for example, with the excuse that this may be an advantage in a future operation, i.e. an indirect advantage. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.5, pp. 60–61.
[emphasis in original]
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
Military action may only be taken for the purpose of attacking, destroying, removing or rendering useless “foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works” if they are used by an adverse party:
a. “as sustenance solely for the members of its armed forces”; or
b. “if not as sustenance, then in direct support of military action”.
In the latter case, no action may be taken against these objects if it “may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.19.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) provides that objects used solely by the armed forces or for immediate assistance to military operations are not included in the protection of objects indispensable to the survival of the civilian population. 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 74.
Spain
Spain’s Penal Code (1995) punishes
anyone who, during an armed conflict, … attacks, destroys, removes or renders useless objects indispensable to the survival of the civilian population, unless the adverse Party uses the said objects in direct support of military action or as means of sustenance exclusively for members of its Armed Forces. 
Spain, Penal Code, 1995, Article 613(1)(c).
Spain
Spain’s Penal Code (1995), as amended in 2010, states:
1. Anyone who in the event of an armed conflict commits or orders to be committed any of the following acts shall be punished with four to six years’ imprisonment:
e. Attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population, except where the adversary uses such property in direct support of a military action or exclusively as a means of sustenance for members of its armed forces;
2. … In all other cases mentioned in the above article, the higher sentence can be imposed when extensive and important destructions are caused to the property, objects or installations or [the acts] are of extreme gravity. 
Spain, Penal Code, 1995, as amended on 23 June 2010, Article 613(1)(e) and (2).
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Colombia
In 1994, in reply to a questionnaire from the House of Representatives, Colombia’s Ministry of Foreign Affairs quoted Article 14 of the 1977 Additional Protocol II. It added:
What this article prohibits is the starvation of civilians. Therefore if one of the parties considers that an agricultural area with its crops, its livestock and its supply of clean water is supporting the military effort of the adverse party, or if it simply serves to feed the civilian population which is suspected of collaborating with the adverse party, that party can claim that it is meeting the objective of Article 14, that is, not starving the population, by moving the population concerned to another place. 
Colombia, Presidency of the Republic, Office of the High Commissioner for Peace, National Plan for the Dissemination of IHL, Reply of the Ministry of Foreign Affairs to Questionnaire No. 012 of Commission II of the House of Representatives, 7 October 1994, p. 6.
Malaysia
The Report on the Practice of Malaysia mentions the destruction by Malaysian forces of food supplies belonging to the enemy during the conflict against the communist opposition. These methods did not, according to the report, cause starvation of the civilian population. 
Report on the Practice of Malaysia, 1997, Chapter 4.1.
United States of America
In 1973, a Deputy Legal Adviser of the US Department of State declared: “The generally accepted rule today is that crops and food supplies may be destroyed if they are intended solely for the use of armed forces.” 
United States, Address by George H. Aldrich, Deputy Legal Adviser of the Department of State, 13 April 1973, reprinted in Arthur W. Rovine, Digest of United States Practice in International Law, 1973, Department of State Publication 8756, Washington, D.C., 1974, pp. 503–504.
United States of America
In its reservation made upon ratification of the 1996 Amended Protocol II to the Convention on Certain Conventional Weapons, the United States stated:
The United States reserves the right to use other devices … to destroy any stock of food or drink that is judged likely to be used by an enemy military force, if due precautions are taken for the safety of the civilian population. 
United States, Reservation made upon acceptance of Amended Protocol II to the Convention on Certain Conventional Weapons, 24 May 1999, § I.
United States of America
According to the Report on US Practice, it is the opinio juris of the United States that foodstuffs and crops may be destroyed if it can be determined that they are destined for enemy armed forces. 
Report on US Practice, 1997, Chapter 4.1.
United States of America
In 2005, the US Department of Justice submitted a Statement of Interest of the United States to the US District Court for the Eastern District of New York prior to that Court’s consideration of Agent Orange Product Liability Litigation (The Vietnam Association for Victims of Agent Orange/Dioxin, et al. v. Dow Chemical Company, et al). The statement reiterated the US position that no rule of international law barred the use of chemical herbicides in war generally nor barred the destruction of crops intended for use by enemy forces. With regard to crop destruction operations, it stated:
The United States Consistently Has Taken the Position that No Rule of International Law Barred the Crop Destruction Operations Undertaken in Vietnam
Similarly, the United States had long interpreted 1907 Hague Convention Respecting the Laws and Customs of War on Land (“1907 Hague Convention” or “Convention”), 36 Stat. 2277 (1910), international law generally, as not prohibiting the destruction of crops intended for use by enemy forces, precisely the type of crop destruction operations undertaken in Vietnam.
A. The Executive Branch Consistently Has Taken the Position that No Rule of International Law Bars the Destruction of Crops Intended for Use By Enemy Forces
As noted above, in 1945 the Judge Advocate General of the War Department provided an opinion as to the legality, under international law, of “certain crop-destroying chemicals which can be sprayed by airplane against enemy cultivations.” Cramer Opinion.
The Cramer Opinion concluded that “the use of chemical agents to destroy cultivations or retard their growth, would not violate any rule of international law prohibiting poison gas.” Cramer Op.
3. The Opinion also addressed other possible international law prohibitions on the destruction of enemy crops, including the 1907 Hague Convention:
Nor does the prohibition against using “poison or poisoned weapons” in Article 23 a of the Regulations annexed to the Hague Convention (IV) of 1907 render the use of these chemicals illegal. Even if Article 23 a is held to apply to toxic chemical substances, it would not preclude the use of crop-destroying chemicals which produce no noxious effect upon enemy soldiers
The proposed target of destruction, enemy crop cultivations, is a legitimate, one, inasmuch as a belligerent is entitled to deprive the enemy of food and water, and to destroy his sources of supply whether in depots, in transit on land, or growing in his fields.
This same conclusion was reached by the General Counsel of the Department of Defense a quarter-century later:
[N]either the Hague Regulations nor the rules of customary international law applicable to the conduct of war and to the weapons of war prohibit the use of antiplant chemicals for destruction of crops, provided that their use against crops does not cause such crops as food to be poisoned nor cause human beings to be poisoned by direct contact, and such use must not cause unnecessary destruction of enemy property
[T]he use of chemical herbicides is not prohibited by article 23(a) or any other rule of international law. It involves an attack by unprohibited means against legitimate military objectives. But an attack by any means against crops intended solely for consumption by noncombatants not contributing to the enemy’s war effort would be unlawful for such would not be an attack upon a legitimate military objective. Where it cannot be determined whether the crops were intended solely for consumption by the enemy’s armed forces, crop destruction would be lawful if a reasonable inquiry indicated that the intended destruction is justified by military necessity under the principles of Hague Regulation Article 23(g), and that the devastation occasioned is not disproportionate to the military advantage gained.
Buzhardt Letter, reprinted at 1971 Senate Hearings at 315–17.
The Army Field Manual took the same position, stating that Article 23(a) “does not prohibit measures taken to destroy, through chemical … agents harmless to man, crops intended solely for consumption by the armed forces (if that fact can be determined).” Department of Army Field Manual, FM 27-10, The Law of Land Warfare (July 1956), ¶ 37, reprinted in Buzhardt Letter. See also 1971 Senate Hearings at 315 (discussing Field Manual); 1969 House Hearings at 215 (same).
B. The United States Crop Destruction Operations in Vietnam Focused on Crops Intended for Enemy Forces
The United States’ use of chemical herbicides in Vietnam carefully hewed to this longstanding interpretation of international law. The initial use of chemical herbicides in Vietnam was restricted to defoliation operations. Am. Compl., ¶ 54-55; William A. Buckingham, Jr., Operation Ranch Hand: The Air Force and Herbicides in Southeast Asia 1961-1971 (Office of Air Force History 1982) (“Operation Ranch Hand”) at 21
After those initial defoliation operations, in 1962 President Kennedy decided to allow restricted crop destruction to proceed. Id. at 78; Am. Compl., ¶ 55. The President’s decision was accompanied by instructions that “the targets should be chosen so as to cause the least damage possible to non-Viet Cong farmers,” Buckingham, Operation Ranch Hand at 79.
The crop destruction program was thus focused on “crops intended for the use of Vietcong or North Vietnamese forces” in Vietcong-held territory. 1969 House Hearings at 215 (Testimony of Mr. Pickering). See also id. at 197 (crop destruction undertaken only after “very thorough review” and “very thorough conclusions” about crops before destruction operations) (Testimony of Mr. Pickering), 229 (“friendly crops” excluded from target areas and all crop destruction projects approved by Ambassador) (Statement of Adm. Lemos); Buckingham, Operation Ranch Hand at 83. Thus, in a message from the State Department regarding the use of herbicides in crop destruction, the following guideline was issued by Secretary of State Rusk:
Crop Destruction: 1. All crop destruction operations must be approved in advance by Assistant Secretary FE [Far East] and DOD. Guidelines re Crop Destruction: a) crop destruction must be confined to remote areas known to be occupied by VC. It should not be carried on in areas where VC are intermingled with native inhabitants and latter cannot escape.
Deptel #1055 SECSTATE to AMEMBASSY Saigon, May 7, 1963, quoted in Buckingham, Operation Ranch Hand at 86.
This same policy of focusing crop destruction on enemy crops continued throughout the war. As explained by Rear Admiral Lemos in 1969:
[W]e are really talking about very isolated crops in areas of known Vietcong and North Vietnamese army units, and which are clearly a part of that complex and being used, or being grown by them, or by people forced by them to grow for them.
1969 House Hearings at 250 (Testimony of Adm. Lemos). See also id. at 251 (“crop destruction program is associated with enemy camp areas and not the villages and hamlets”). Thus, before crop destruction could be approved, there “ha[d] to be substantial evidence that the crops are being grown specifically for the use of Vietcong troops and North Vietnamese troops.” Id See also 1971 Senate Hearings at 315 (Testimony of Mr. Nutter). As a result, the crop destruction program was only a small part of the overall use of herbicides in Vietnam. 1969 House Hearings at 250.
In early December 1970, the decision was made to completely phase out the crop destruction program. Buckingham, Operation Ranch Hand at 172; 1971 Senate Hearings at 3 (“immediate termination of all use of chemical herbicides in Vietnam for crop destruction purposes”) (Statement of Secretary of State Rogers), On January 16, 1971, the Deputy Secretary of Defense ordered the immediate termination of all crop destruction operations by U.S. forces. Buckingham, Operation Ranch Hand at 175.
No Universally Adopted and Specifically Defined Norm Prohibited the Destruction of Enemy Crops
For similar reasons, to the extent that Plaintiffs’ claims are based on the use of chemical herbicides to destroy crops intended for use by enemy forces, they too fail to meet the exacting standards required by Sosa Sosa v. Alvarez-Machain, US Supreme Court, 2004]. For, as discussed above, the United States consistently has taken the position that neither the 1907 Hague Convention nor any other rule of international law prohibited the enemy crop destruction operations undertaken in Vietnam. Any norm of international law that may have existed with respect to crop destruction prohibited solely the destruction of crops intended for non-combatants. Particularly given the United States’ longstanding position that neither conventional nor customary international law prohibited the use of herbicides to destroy enemy crops, no international norm prohibiting such practices was widely accepted by “civilized nations.” For the same reasons discussed above with respect to the use of herbicides generally, therefore, no federal common law cause of action should be recognized based on the use of herbicides for crop destruction purposes. 
United States, Department of Justice, Statement of Interest of the United States submitted to the US District Court for the Eastern District of New York, In re: Agent Orange Product Liability Litigation (The Vietnam Association for Victims of Agent Orange/Dioxin, et al. v. Dow Chemical Company, et al), 12 January 2005,§ II, pp. 9–13 and 32–33.
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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
Objects indispensable to the survival of the civilian population are excluded from protection, if: a) they are used solely for sustenance of the armed forces; or b) they are used in direct support of military action (but the civilian population may not be thus reduced to starvation or forced to move). 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 397.
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