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Commentary - General protection of civilian objects
    [p.629] Article 52 -- General protection of civilian objects


    [p.630] 1994 This article is of considerable importance. In fact, in order to apply the basic rule contained in Article 48 ' (Basic rule), ' it is necessary to know what constitutes civilian objects, on the one hand, and military objectives, on the other. For a long time attempts have been made to define military objectives.

    1995 For example, Hague Convention IX of 1907 Concerning Bombardment by Naval Forces in Time of War (1) contains the following provisions:

    "Article 1 -- The bombardment by naval forces of undefended ports, towns, villages, dwellings, or buildings is forbidden [...] Article 2 -- Military works, military or naval establishments, depots of arms or war ' matériel, ' workshops or plants which could be utilized for the needs of the hostile fleet or army, and the ships of war in the harbour, are not, however, included in this prohibition [...]"

    1996 These rules are accompanied by provisions relating to the warning which must be given before attacks; they have rarely been applied, but they give some idea of what was meant by military objectives at that time.

    1997 The Commission of Jurists which met in The Hague in 1922 with the task of examining a partial revision of the laws of war, drew up a draft (2),Article 24 of which is devoted to the definition of civilian objects and military objectives:

    [p.631]
    "Article 24
    1. An air bombardment is legitimate only when directed against a military objective, i.e. an objective whereof the total or partial destruction would constitute an obvious military advantage for the belligerent;
    2. Such bombardment is legitimate only when directed exclusively against the following objectives: military forces, military works, military establishments or depots, manufacturing plants constituting important and well-known centers for the production of arms, ammunition or characterized military supplies, lines of communication or transport which are used for military purposes;
    3. Any bombardment of cities, towns, villages, habitations and buildings which are not situated in the immediate vicinity of the operations of land forces is forbidden [...];
    4. In the immediate vicinity of the operations of the land forces, the bombardment of cities, towns, villages, habitations and buildings is legitimate, provided there is a reasonable presumption that the military concentration is important enough to justify the bombardment, taking into account the danger to which the civil population will thus be exposed [...]"

    1998 This attempt to define civilian objects and military objectives was not followed by a codification and the two Geneva Conventions of 1929 relating to the wounded and sick and to prisoners of war did not contain any provisions on this matter, even though they were based on the existence of a distinction between combatants and military objectives, on the one hand, and civilians and civilian objects, on the other.

    1999 The same was true in 1949 in Geneva during the drafting of the four 1949 Conventions. Nevertheless, military objectives are repeatedly referred to explicitly in the 1949 Conventions. For example, Article 19 of the First Convention requires that the responsible authorities ensure that medical establishments and units are, as far as possible, situated in such a manner that attacks against military objectives cannot imperil their safety. Article 18 of the Fourth Convention contains a similar provision for the benefit of civilian hospitals.

    2000 Although States in general recognized that attacks should only be directed against military objectives, there was no agreed definition of such objectives, and in fact, during the Second World War and during several armed conflicts which have taken place since then, each belligerent determined what should be understood by such objectives as it pleased. It should be noted that their ideas often differed considerably, depending on whether the territory concerned was their own, enemy territory, or territory of an ally occupied by enemy forces. Thus a restrictive definition was necessary if the essential distinction between combatants and civilians and between civilian objects and military objectives was to be maintained.

    2001 A partial definition was offered incidentally by the Hague Convention of 1954 for the Protection of Cultural property. Article 8 , paragraph 1, of that Convention reads as follows:

    "1. There may be placed under special protection a limited number of refuges intended to shelter movable cultural property in the event of [p.632] armed conflict, of centres containing monuments and other immovable cultural property of very great importance, provided that they:
    a) are situated at an adequate distance from any large industrial centre or from any important military objective constituting a vulnerable point, such as, for example, an aerodrome, broadcasting station, establishment engaged upon work of national defence, a port or railway station of relative importance or a main line of communication;
    b) are not used for military purposes."

    2002 In 1956 the ICRC submitted its Draft Rules for the Limitation of Dangers incurred by the Civilian Population in Time of War, Article 7 of which provided that:

    "Article 7
    In order to limit the dangers incurred by the civilian population, attacks may only be directed against military objectives.
    Only objectives belonging to the categories of objective which, in view of their essential characteristics, are generally acknowledged to be of military importance, may be considered as military objectives. Those categories are listed in an annex to the present rules.
    However, even if they belong to one of those categories, they cannot be considered as a military objective where their total or partial destruction, in the circumstances ruling at the time, offers no military advantage." (3)

    [p.633] 2003 The Institute of International Law, which met in Edinburgh in 1969 in order to study weapons of mass destruction, included in its definition of military objectives

    "only those which by their very nature or purpose or use, make an effective contribution to military action, or exhibit a generally recognized military significance, such that their total or partial destruction in the actual circumstances gives a substantial, specific and immediate military advantage to those who are in a position to destroy them". (4)

    2004 When the ICRC was called upon to draw up the Draft Protocol in 1970-1971, it faced a difficult problem. Should it define civilian objects which may not be attacked, or, on the contrary, should it define military objectives which may be attacked? Finally a compromise was achieved. The ICRC draft reads as follows:

    "' Article 47 -- General protection of civilian objects '
    1. Attacks shall be strictly limited to military objectives, namely, to those objectives which are, by their nature, purpose or use, recognized to be of military interest and whose total or partial destruction, in the circumstances ruling at the time, offers a distinct and substantial military advantage.
    2. Consequently, objects designed for civilian use, such as houses, dwellings, installations and means of transport, and all objects which are not military objectives, shall not be made the object of attack, except if they are used mainly in support of the military effort."

    2005 The Diplomatic Conference finally adopted a similar formula which combines the two possibilities; it begins by declaring civilian objects immune and continues with an a contrario definition in defining military objectives. (5)

    2006 Before discussing the three paragraphs which this article comprises, it might be appropriate to devote some attention to the terminology used.

    2007 The English text uses the word "objects", which means "something placed before the eyes, or presented to the sight or other sense, an individual thing seen, or perceived, or that may be seen or perceived; a material thing". (6) The French [p.634] text uses the word "biens", which means "chose tangible, susceptible d'appropriation". (7)

    2008 It is clear that in both English and French the word means something that is visible and tangible.

    2009 As regards the word "objective", in English this is an abbreviation of the expression "objective point", defined by the Oxford Dictionary as follows: "the point towards which the advance of troops is directed; hence, [...] the point aimed at". (8)

    2010 In French the word "objectif" is defined as follows in the Dictionnaire Robert: "point contre lequel est dirigé une opération stratégique ou tactique; par extension: résultat qu'on se propose d'atteindre par une opération militaire". (9) There is however no doubt that in this article both the English and French texts intended tangible and visible things by the word "objective", and not the general objective (in the sense of aim or purpose) of a military operation; therefore the extended meaning given by the Dictionnaire Robert is not included in this article.

    Paragraph 1

    2011 The first sentence lays down the general principle of immunity of civilian objects. Attacks are defined in Article 49 ' (Definition of attacks and scope of application). ' As regards the prohibition of reprisals, reference may be made to what was said above with regard to Article 51 ' (Protection of the civilian population), ' paragraph 6.

    2012 The second sentence defines civilian objects by means of a negative method, which is already used in Article 50 ' (Definition of civilians and civilian population) ' to define the civilian population. This method is justified by the fact that there are far more civilian objects than military objectives.

    2013 A vote was taken in Committee III on retaining the words "nor of reprisals", in this paragraph; the Committee decided to retain them. (10) In explaining why it abstained from voting on this article at the plenary meeting, one delegation indicated that it was opposed to a prohibition of reprisals against civilian objects that would apply in all circumstances; it considered that "the availability of this sanction may persuade an adversary not to commit violations of the law in the first place"; (11) but, as stated above, the Conference did not share this point of view.

    [p.635] Paragraph 2

    2014 The first sentence confirms the principle laid down in paragraph 1.

    2015 The second sentence raised a problem of a moral nature for many, particularly for the ICRC: should a humanitarian treaty describe objects which may be attacked? After a great deal of thought it seemed impossible to ensure effective protection for the civilian population without indicating what objectives could legitimately be attacked. Therefore in the draft the ICRC used the wording that is found in this text, which includes a definition of military objectives. This definition will prove useful for the population itself, for it is in the latter's interests to know whether or not it should avoid certain points that the adversary could legitimately attack.

    2016 The definition of military objectives had been the object of study for a long time, and the solution adopted by the Diplomatic Conference is broadly based on earlier drafts. The text of this paragraph certainly constitutes a valuable guide, but it will not always be easy to interpret, particularly for those who have to decide about an attack and on the means and methods to be used.

    2017 It should be noted that the definition is limited to objects but it is clear that members of the armed forces are military objectives, for, as the Preamble of the Declaration of St. Petersburg states:

    "the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; [...] for this purpose it is sufficient to disable the greatest possible number of men".

    Article 43 ' (Armed forces) ' defines armed forces and provides that members of such forces are combatants, that is to say, they have the right to participate directly in hostilities; the corollary is that they may be the object of hostile acts.

    2018 The definition comprises two elements:

    a) the nature, location, purpose or use which makes an effective contribution to military action;
    b) the total or partial destruction, capture or neutralization which in the circumstances ruling at the time offers a definite military advantage.

    Whenever these two elements are simultaneously present, there is a military objective in the sense of the Protocol.

    2019 The ICRC proposal contained one element which was not retained: the objects should be recognized to be of military interest. On the other hand, the definition adopted introduces an additional element: the location. Similarly the concepts of "capture" and "neutralization" were added. According to the Rapporteur, the adjective "definite" was discussed at length. The adjectives considered and rejected included the words: "distinct" (distinct), "direct" (direct), "clear" (net), "immediate" (immédiat), "obvious" (évident), "specific" (spécifique) and "substantial" (substantiel). The Rapporteur of the Working Group added that he was not very clear about the reasons for the choice of words that was made. (12)

    [p.636] 2020 A closer look at the various criteria used reveals that the first refers to objects which, by their ' nature, ' make an effective contribution to military action. This category comprises all objects directly used by the armed forces: weapons, equipment, transports, fortifications, depots, buildings occupied by armed forces, staff headquarters, communications centres etc.

    2021 The second criterion is concerned with the ' location ' of objects. Clearly, there are objects which by their nature have no military function but which, by virtue of their location, make an effective contribution to military action. This may be, for example, a bridge or other construction, or it could also be, as mentioned above, (13) a site which is of special importance for military operations in view of its location, either because it is a site that must be seized or because it is important to prevent the enemy from seizing it, or otherwise because it is a matter of forcing the enemy to retreat from it. It should be noted that the Working Group of Committee III introduced the location criterion without giving reasons.

    2022 The criterion of ' purpose ' is concerned with the intended future use of an object, while that of ' use ' is concerned with its present function. Most civilian objects can become useful objects to the armed forces. Thus, for example, a school or a hotel is a civilian object, but if they are used to accommodate troops or headquarters staff, they become military objectives. It is clear from paragraph 3 that in case of doubt, such places must be presumed to serve civilian purposes.

    2023 Other establishments or buildings which are dedicated to the production of civilian goods may also be used for the benefit of the army. In this case the object has a dual function and is of value for the civilian population, but also for the military. In such situations the time and place of the attack should be taken into consideration, together with, on the one hand, the military advantage anticipated, and on the other hand, the loss of human life which must expected among the civilian population and the damage which would be caused to civilian objects.

    2024 Finally, destruction, capture or neutralization must offer a ' definite military advantage ' in the circumstances ruling at the time. In other words, it is not legitimate to launch an attack which only offers potential or indeterminate advantages. Those ordering or executing the attack must have sufficient information available to take this requirement into account; in case of doubt, the safety of the civilian population, which is the aim of the Protocol, must be taken into consideration.

    2025 Some statements and declarations were made with regard to the interpretation of this paragraph in the final discussion or when the Protocols were signed. The statements related to two points:

    a) a specific area can constitute a legitimate military objective in view of its location and the circumstances (Canada, Federal Republic of Germany, The Netherlands, United States). (14) The United Kingdom made a similar statement in a plenary meeting, (15) and repeated this in a written declaration when signing Protocols;
    [p.637]
    b) the paragraph is not intended to deal with the question of damage caused incidentally by attacks directed against military objectives. (16)

    2026 These interpretations were not discussed during the Diplomatic Conference; nevertheless, they appear to be reasonable. Of course, an area as described under a) can only be of a limited size. In addition, this concept is only valid in the combat area.

    2027 It should be noted that the expression "a definite military advantage" is very similar to the terms used in Articles 51 ' (Protection of the civilian population), ' paragraph 5(b) and 57 ' (Precautions in attack), ' paragraph 2 (a) (iii) and (b). These articles use the expression "concrete and direct military advantage anticipated". (17) In the draft the ICRC had used the same expression in both articles: "distinct and substantial military advantage". The documents of the Diplomatic Conference do not contain any indication about the reasons why different expressions were preferred. One is therefore left to analyze the meaning of the words used.

    2028 In the case of Article 52 there must be a definite military advantage for every military objective that is attacked. In the case of Article 57 ' (Precautions in attack) ' this condition must also be fulfilled, but in addition, the military advantage which should also be concrete and direct must be weighed against the civilian losses and damage which could result from an attack.

    Paragraph 3

    2029 This is a rule which was not contained in the ICRC draft, or at least not in this form. The amendments submitted during the Conference did not contain it either; it was introduced in the draft presented by the Working Group of Committee III. (18)

    2030 The presumption established here constitutes an important step forward in the protection of the civilian population, for in many conflicts the belligerents have "shot first and asked questions later".

    2031 When the paragraph was presented to Committee III it contained in fine a phrase which did not meet with general agreement. It provided that the normal presumption of civilian use for objects would not apply in contact areas when the security of the armed forces made such an exception necessary.

    2032 The Rapporteur of the Working Group commented on this phrase as follows:

    "[...] infantry soldiers could not be expected to place their lives in great risk because of such a presumption and [...] in fact, civilian buildings which happen to be in the front lines usually are used as part of the defensive works. The phrase was criticized by other delegates on the ground that it would unduly endanger civilian objects to permit any exceptions to the presumption". (19)

    [p.638] 2033 Finally Committee III decided to delete this phrase (20) and since then the paragraph has not been altered except for some editorial changes.

    2034 Therefore even in contact areas there is a presumption that civilian buildings located there are not used by the armed forces, and consequently it is prohibited to attack them unless it is certain that they accommodate enemy combatants or military objects. Strict compliance with the precautions laid down in Article 57 ' (Precautions in attack) ' will in most cases bring to light the doubt referred to in this provision or the certainty that it is a military objective.

    2035 This article was adopted only after long and difficult discussions. Many delegations would have wished for a more precise definition, possibly containing a list of examples of civilian objects and military objectives. The Conference preferred a general definition. The three examples of civilian objects given in paragraph 3 was as far as it was willing to go.

    2036 It is true that a more pragmatic definition would have been useful, and the ICRC paved the way for this in the 1956 Draft Rules. (21) However, it soon became clear that drawing up a list of military objectives or civilian objects would have raised insuperable problems, and the ICRC therefore abandoned the attempt.

    2037 However, it remains the case that the text adopted by the Diplomatic Conference largely relies on the judgment of soldiers who will have to apply these provisions. It is true that there are clear-cut situations where there is no possibility of doubt, but there are also borderline cases where the responsible authorities could hesitate. In such circumstances the general aim of the Protocol should be borne in mind, i.e., the protection of the civilian population. In any case an essential step forward has been taken in that belligerents can no longer arbitrarily and unilaterally declare as a military objective any civilian object, as happened all too often in the past.

    2038 During the final debate some delegations remarked that in their opinion the article was insufficiently precise on too many points and that it would give rise to controversy. (22) Finally one delegation remarked that, in its opinion, this article, like Article 51 ' (Protection of the civilian population), ' could not be made the object of reservations as it is fundamental. (23)

    ' C.P./J.P. '


    NOTES

    (1) [(1) p.630] The Hague Conference of 1899 had not adopted a convention on this subject;

    (2) [(2) p.630] This Commission was constituted in accordance with a resolution of the Washington Conference (1922) on the limitation of armaments; it was intended to lay down draft rules relating to air warfare and the use of radio in time of war. Experts from France, Italy, Japan, the Netherlands, United Kingdom and the United States attended;

    (3) [(3) p.632] Here is the list drawn up by the ICRC with the help of military experts and presented as a model, subject to modification. List of Categories of Military Objectives according to Article 7, paragraph 2:
    "I. The objectives belonging to the following categories are those considered to be of generally recognized military importance:
    (1) Armed forces, including auxiliary or complementary organisations, and persons who, though not belonging to the above-mentioned formations, nevertheless take part in the fighting.
    (2) Positions, installations or constructions occupied by the forces indicated in sub-paragraph 1 above, as well as combat objectives (that is to say, those objectives which are directly contested in battle between land or sea forces including airborne forces).
    (3) Installations, constructions and other works of a military nature, such as barracks, fortifications, War Ministries (e.g. Ministries of Army, Navy, Air Force, National Defence, Supply) and other organs for the direction and administration of military operations.
    (4) Stores of arms or military suplies, such as munition dumps, stores of equipment or fuel, vehicles parks.
    (5) Airfields, rocket launching ramps and naval base installations.
    (6) Those of the lines and means of communication (railway lines, roads, bridges, tunnels and canals) which are of fundamental military importance.
    (7) The installations of broadcasting and television stations; telephone and telegraph exchanges of fundamental military importance.
    (8) Industries of fundamental importance for the conduct of the war:
    (a) industries for the manufacture of armaments such as weapons, munitions, rockets, armoured vehicles, military aircraft, fighting ships, including the manufacture of accessories and all other war material.
    (b) industries for the manufacture of supplies and material of a military character, such as transport and communications material, equipment for the armed forces;
    (c) factories or plant constituting other production and manufacturing centres of fundamental importance for the conduct of war, such as the metallurgical, engineering and chemical industries, whose nature or purpose is essentially military;
    (d) storage and transport installations whose basic function it is to serve the industries referred to in (a)-(c);
    (e) installations providing energy mainly for national defence, e.g. coal, other fuels, or atomic energy, and plants producing gas or electricity mainly for military consumption.
    (9) Installations constituting experimental, research centres for experiments on and the development of weapons and war material.
    II. The following however, are excepted from the foregoing list:
    (1) Persons, constructions, installations or transports which are protected under the Geneva Conventions I, II, III, of August 12, 1949;
    (2) Non-combatants in the armed forces who obviously take no active or direct part in hostilities.
    III. The above list will be reviewed at intervals of not more than ten years by a group of Experts composed of persons with a sound grasp of military strategy and of others concerned with the protection of the civilian population.";

    (4) [(4) p.633] 53 ' Annuaire IDI ' 2, Edinburgh session, 1969, p. 376;

    (5) [(5) p.633] This was the first time that a military objective was defined in an international treaty;

    (6) [(6) p.633] ' The Oxford English Dictionary, ' Oxford, 1970, Vol. VII, p. 14;

    (7) [(7) p.634] P. Robert, ' Dictionnaire alphabétique et analogique de la langue française, ' Paris, 1971, Vol. 1, p. 469;

    (8) [(8) p.634] ' The Oxford English Dictionary, ' op. cit., p. 17;

    (9) [(9) p.634] P. Robert, op. cit., Vol. 4, p. 684;

    (10) [(10) p.634] With 58 votes in favour, 3 against and 9 abstentions; see O.R. XIV, p. 219, CDDH/III/SR.24, para. 16;

    (11) [(11) p.634] O.R. VI, pp. 175-176, CDDH/SR.41, Annex (Australia);

    (12) [(12) p.635] O.R. XV, p. 332, CDDH/III/224;

    (13) [(13) p.636] Supra, p. 620;

    (14) [(14) p.636] O.R. VI, pp. 175-176, CDDH/SR.41, Annex (Australia); pp. 178-179 (Canada); pp. 186-188 (France, FRG); pp. 192-193 (Mexico); pp. 194-195 (The Netherlands); p. 204 (United States);

    (15) [(15) p.636] Ibid., p. 169, CDDH/SR.41, para. 153;

    (16) [(16) p.637] Cf. supra, notes 14 and 15;

    (17) [(17) p.637] See supra, p. 625;

    (18) [(18) p.637] O.R. XV, p. 332, CDDH/III/224;

    (19) [(19) p.637] Ibid;

    (20) [(20) p.638] O.R. XIV, p. 220, CDDH/III/SR. 24 para. 18;

    (21) [(21) p.638] See supra, p. 632;

    (22) [(22) p.638] O.R. VI, p. 186, CDDH/SR.41, Annex (France);

    (23) [(23) p.638] Ibid., pp. 192-193 (Mexico); see also the introduction to Part VI, infra, p. 1059;