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

Additional Protocol I
Article 54(5) of the 1977 Additional Protocol I provides:
In recognition of the vital requirements of any Party to the conflict in the defence of its national territory against invasion, derogation from the prohibitions contained in paragraph 2 [to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population] may be made by a Party to the conflict within such territory under its own control where required by imperative military necessity. 
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(5). Article 54 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 208.
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(5) 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(5) 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 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
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
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.
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).
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 the military defence against an invasion of the national territory imperatively so demands. 
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.
Canada
Canada’s LOAC Manual (1999) states:
42. Where a party to a conflict is defending its national territory against invasion, it may destroy objects indispensable to the survival of the civilian population with intent to deny their use by the enemy if:
a. the objects are within national territory of and under the control of the party; and
b. their destruction is required by imperative military necessity.
43. Where such an extreme measure is taken, the destruction of objects indispensable to the survival of the civilian population should not leave the civilian population with such inadequate food or water 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, pp. 6-4 and 6-5, §§ 42 and 43; see also p. 4-8, § 82.
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting:
Where a party to a conflict is defending its national territory against invasion, it may attack objects indispensable to the survival of the civilian population if:
a. the objects are within national territory of and under the control of the party; and
b. an attack on the objects is required by imperative military necessity. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 445.5.
In its chapter on land warfare, the manual states:
1. Where a party to a conflict is defending its national territory against invasion, it may destroy objects indispensable to the survival of the civilian population with intent to deny their use by the enemy if:
a. the objects are within national territory of and under the control of the party; and
b. their destruction is required by imperative military necessity.
2. Where such an extreme measure is taken, the destruction of objects indispensable to the survival of the civilian population should not leave the civilian population with such inadequate food or water 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, § 619.
Colombia
Colombia’s Basic Military Manual (1995), in a chapter entitled “Provisions of IHL applicable in Colombia”, states that “in all armed conflicts” it is prohibited to order a scorched earth policy as a method of combat.  
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 49.
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
A policy of scorched earth can be applied in exceptional cases when it is absolutely necessary to defend the national territory against invasion. 
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 indispensable to the survival of the population
If a Party to the conflict defends the national territory against invasion, it can attack objects indispensable to the survival of the civilian population if:
- the objects are located on the national territory of that Party or under its control;
- an attack against these objects is required by imperative military necessity. 
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, pp. 37–38.
Germany
Germany’s Military Manual (1992) provides: “Any deviations from this prohibition [attacking objects indispensable for the survival of the civilian population] shall be permissible only on friendly territory if required by imperative military necessity.” 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten KonfliktenHandbuch, August 1992, § 463.
Israel
Israel’s Manual on the Laws of War (1998) states:
Conducting a war by the “scorched earth” method, meaning the deliberate destruction of food products, agricultural areas, sanitation facilities, etc. with a view to inflicting starvation or suffering on the civilian population – is forbidden …
An exception to the “scorched earth” prohibition is the implementation of such a policy on one’s own territory, as opposed to enemy territory. On the nation’s sovereign territory, the local army is allowed to retreat leaving behind “scorched earth”, so as not to provide sustenance for the advancing enemy forces, even at the cost of hurting the population identifying with it. 
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:
Attack on the population’s survival resources: targets must not be attacked that are vital to the continuation of the civilian population’s survival. War must not be waged by means of a “scorched earth” policy, that is to say intentional attack on food products, farmland, sanitation facilities etc., at such a level as would lead to the starvation of the civilian population. 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, for any party to the conflict defending its national territory, the destruction of or the fact of rendering useless objects indispensable to the survival of the civilian population “may be made … within such territory under its own control where required by imperative military necessity”. It adds that the flooding of parts of one’s own territory is not forbidden by the rules prohibiting the destruction of objects indispensable to the survival of the civilian population. 
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) states:
In recognition of the vital requirements of any Party to the conflict in the defence of its national territory against invasion, derogation from the prohibitions contained in paragraph 2 [prohibition to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population] may be made by a Party to the conflict within such territory under its own control where required by imperative military necessity.
As a result of this provision, Parties may no longer embark on a scorched earth policy with the intention of starving civilians, even in their national territory, unless that part of the territory is under their control at the time of devastation: scorched earth is no longer available as an offensive policy. It is still permissible to destroy objects indispensable to the survival of the civilian population in the course of ordinary operations if it is militarily necessary for other reasons, for example, to destroy a wheat field to deny concealment to enemy forces. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 504(5), including footnote 10.
Peru
Peru’s IHL Manual (2004) states:
Objects indispensable to the survival of the civilian population are no longer protected when:
(c) they are required by imperative military necessity to defend the national territory against invasion. 
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).(c).
Peru
Peru’s IHL and Human Rights Manual (2010) states:
Objects indispensable to the survival of the civilian population are no longer protected when:
(c) They are imperatively required for the military defence against the invasion of the national territory. 
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)(c), p. 238.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
When making a decision, in exceptional cases, the commander, proceeding from the principle of military necessity, may define:
- the missions to attack, destroy or put out of commission objects indispensable for the survival of the civilian population which are used by the enemy exclusively for the benefit of his own forces or in direct support of his combat effort, provided this will not cause famine among the civilian population and will not compel it to leave. The same can be done by a party to the conflict on its own territory as a defence against the enemy invasion, when there is military necessity to do so. 
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, § 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:
- However, the LOAC [law of armed conflict] recognises the vital requirements of any Party to the conflict in the defence of its national territory against invasion and therefore allows for derogation from the prohibition to attack, destroy, remove or render useless objects that are indispensable to the survival of the civilian population by a Party to the conflict, as long as such derogation is made:
- Within its own territory under control of that Party; and
- Only if required by imperative military necessity. 
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
- The military defence of the national territory against invasion imperatively so requires. 
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 where derogation of the prohibition is required by imperative military necessity. 
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, § 4.5.b.(2).b).
The manual allows one derogation from the prohibition of attacks against objects indispensable to the survival of the civilian population if the defence of the national territory against the danger of an invasion imperatively so demands. 
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).
Spain
Spain’s LOAC Manual (2007) states:
Objects indispensable to survival may be destroyed, removed or rendered useless as a method of defence against invading forces if there is an “imperative military necessity”. 
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, § 2.4.c.(1); ); see also §§ 3.3.c.(4) and 4.5.b.(2).(b).
The manual further states:
However, if such objects are attacked, it must be ensured that the civilian population is not deprived of food or water to the extent that it suffers starvation or is forced 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, § 4.5.b.(2).(b).
Sweden
Sweden’s IHL Manual (1991) states:
Another question addressed in Article 54 [of the 1977 Additional Protocol I] is the possibility for one party faced with an approaching hostile attack to resort to widespread destruction within a given area – the method usually termed “burnt earth tactics”. Such steps are permitted under 54:5 where they are required by overriding military necessity and concern only one party’s national territory. However, this latter addition implies important limitations. Thus it is not allowed to attack, for example by aerial bombardment, an area occupied by the adversary if the purpose is to impede the civilian population’s supply of indispensable necessities. 
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, p. 61.
[emphasis in original]
Switzerland
Switzerland’s Basic Military Manual (1987) states: “It is prohibited to employ scorched earth tactics.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 35, commentary.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
12.2 Principle of military necessity
160 This principle allows all measures that are not prohibited by the law of armed conflict and that are necessary to accomplish the mission. However, military necessity may not be invoked to justify disrespect for the international law of armed conflict, unless this is expressly provided for by the rules.
161 Thus, for example, a party to the conflict may refrain from protecting objects indispensable to the survival of the civilian population if it does so to repel an enemy invasion, as long as it is necessary from a military point of view (see Art. 54, para. 5 of Additional Protocol I). 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, §§ 160–161. The German language version of the first sentence of § 161 notes: “… as long as it is imperatively necessary [“zwingend erforderlich”] from a military point of view …”.
Ukraine
Ukraine’s IHL Manual (2004) states that, during the conduct of hostilities: “In exceptional circumstances … the commander (commanding officer) may designate … missions to destroy objects indispensable to the survival of the civilian population”. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 2.2.4.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
In cases of imperative military necessity, a party to the conflict may depart from the prohibition relating to indispensable objects in order to defend its national territory from invasion, but only in those parts of its territory that are under its control. The exception for the defence of national territory might include, for example, the flooding of low-lying areas to impede invading forces. 
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 an exception to the prohibition of attacks against objects indispensable to the survival of the civilian population in times of enemy invasion of the national territory, if required by reason of military necessity. 
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.
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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.
Sweden
At the CDDH, Sweden remarked, with reference to the possible exceptions to the prohibition of attacks against objects indispensable to the survival of the civilian population, that it considered a scorched earth policy used to stop an enemy invasion on a party’s own territory to be permissible. The Swedish delegate described this strategy as “a deep-rooted practice which should be taken into account”. 
Sweden, Statement at the CDDH, Official Records, Vol. XIV, CDDH/III/SR.17, 11 February 1975, p. 145, § 19.
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 their destruction is required by military necessity and is not disproportionate to the military advantage gained.” 
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
According to the Report on US Practice, the opinio juris of the United States recognizes the legality of attacks against objects indispensable to the survival of the civilian population when required by military necessity. 
Report on US Practice, 1997, Chapter 4.1.
UN Commission on Human Rights (Independent Expert)
In 1996, the Independent Expert of the UN Commission on Human Rights for Somalia described the practices of the different factions, such as the practice of a faction on the verge of losing control of a territory of operating a “scorched earth” policy.  
UN Commission on Human Rights, Independent Expert on Assistance to Somalia in the Field of Human Rights, Report, UN Doc. E/CN.4/1996/14/Add.1, 10 April 1996, § 10.
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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: … c) the military defence of the national territory against invasion imperatively so requires”. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 397.
International Institute of Humanitarian Law
In 1995, in its comments on the Turku Declaration of Minimum Humanitarian Standards, the International Institute of Humanitarian Law stated that a scorched earth policy was a “practice which causes great suffering to the population … affecting both individuals and the basic rights of groups”. 
International Institute of Humanitarian Law, Comments on the Declaration of Minimum Humanitarian Standards submitted to the UN Secretary-General, §§ 1 and 15, reprinted in the Report of the Secretary-General prepared pursuant to UN Commission on Human Rights resolution 1995/29, UN Doc. E/CN.4/1996/80, 28 November 1995, p. 10.