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Commentary - Protection of objects indispensable to the survival of the civilian population
    [p.651] Article 54 -- Protection of objects indispensable to the survival of the civilian population


    [p652] 2083 Although the comprehensive protection of civilian objects and the explicit prohibition of the starvation of civilians are new features in codified humanitarian law, it should be noted that the Diplomatic Conference of 1949 had taken the first step in this direction with the adoption of Article 23 of the Fourth Convention, which provides for aid in favour of the most vulnerable categories of the population, and Article 53 , which safeguards necessities of life of civilians in occupied territory.

    2084 The article under consideration here was profoundly revised by the Diplomatic Conference of 1974-1977. The ICRC draft, which did not contain paragraphs 1, 3 and 5 read as follows:

    "' Article 48 -- Objects indispensable to the survival of the civilian population '
      It is forbidden to attack or destroy objects indispensable to the survival of the civilian population, namely, foodstuffs and food-producing areas, crops, livestock, drinking water supplies and irrigation works, whether it is to starve out civilians, to cause them to move away or for any other reason. These objects shall not be made the object of reprisals."

    2085 The question gave rise to lengthy discussions in the Working Group of Committee III, but it finally succeeded in reconciling the different opinions and the article was adopted by consensus in the Committee and then in the Conference. (1)

    2086 One point of terminology deserves a mention: the title of the article, like the text (paragraph 2), refers to "objects indispensable to the survival of the civilian population", while Article 69 ' (Basic needs in occupied territories) ' refers to [p.653] "supplies essential to the survival of the civilian population" (while the title uses the term "basic needs"). In the French text of these two articles the difference in terminology is only in the adjective: reference is made to "biens indispensables" and "biens essentiels", respectively. In their contexts the two terms must be considered to have the same meaning. (2)

    Paragraph 1

    2087 It is not sufficient to condemn specific indiscriminate or particularly cruel weapons, since it is possible to use weapons or means that are legitimate in themselves, or to provoke the release of natural phenomena, in a way equally dangerous for the population. It is therefore necessary to prohibit methods of total warfare, and to have done so is one of the great achievements of the Diplomatic Conference.

    2088 An example of this achievement can be seen here in this succinct paragraph, which prohibits starvation as a method of warfare. There is no doubt that this is a significant step forward. It can also be seen with respect to Article 55 ' (Protection of the natural environment). '

    2089 The term "starvation" is generally understood by everyone. (3) To use it as a method of warfare would be to provoke it deliberately, causing the population to suffer hunger, particularly by depriving it of its sources of food or of supplies. It is clear that activities conducted for this purpose would be incompatible with the general principle of protecting the population, which the Diplomatic Conference was concerned to confirm and reinforce.

    2090 Starvation is referred to here as a method of warfare, i.e., a weapon to annihilate or weaken the population.

    2091 As we have seen, the statement of this general principle is innovative, and a significant progress of the law. It arose from an amendment. (4) However, a general principle only of course becomes fully operative when it is accompanied by rules of application: the remainder of the article is concerned with such application, as are several other articles in the Protocol, particularly those relating to relief actions. This rule could have been placed in Part III, Section I, "Methods and means of warfare", but as it directly concerns the civilian population, its position seems justified. The principle is applicable both in occupied territories and in territories that are not occupied.

    2092 According to the Rapporteur of Committee III: "The fact that the paragraph does not change the law of naval blockade is made clear by Article 44, (5) paragraph 1." This remark appears to be correct.

    [p.654] 2093 However, it should be noted that there is some uncertainty as regards the present state of the customary law relating to blockades. (6) In fact, although they were codified in the Declaration of London of 24 February 1909, this instrument was never ratified. Furthermore, the rules were not always complied with during the Second World War. (7) Thus it is to be hoped that the rules relating to blockades will be clarified as part of a future revision of certain aspects of the laws of war at sea, a revision for which there is a great need. Such a reexamination should make it possible to duly take into account the principles put forward in the Protocol which prohibit starvation as a method of warfare.

    2094 Nevertheless, the fact remains that the possibility of a blockade exists provided that some conditions are fulfilled. Thus, it must be preceded by a declaration indicating its duration and the area covered; it must be effective and applied impartially to ships of all countries; neutral States must be informed of blockades which have been implemented against a Party to the conflict.

    2095 It should be emphasized that the object of a blockade is to deprive the adversary of supplies needed to conduct hostilities, and not to starve civilians. Unfortunately it is a well-known fact that all too often civilians, and above all children, suffer most as a result. If the effects of the blockade lead to such results, reference should be made to Article 70 of the Protocol ' (Relief actions), ' which provides that relief actions should be undertaken when the civilian population is not adequately provided with food and medical supplies, clothing, bedding, means of shelter and other supplies essential to its survival. Such actions may be very extensive. (8)

    2096 Moreover, if it turned out to be impossible to send sufficient aid for that part of the population of a besieged or encircled area that is particularly weak, the principle of the prohibition of starvation should henceforth dictate the evacuation of such persons; this was already made possible, though not prescribed, by Article 17 of the Fourth Convention.

    2097 Finally it should be mentioned that an action aimed at causing starvation would constitute a violation of this Protocol, but it could also be a crime of genocide if it were undertaken with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, according to the terms of the Genocide Convention. (9)

    [p.655] Paragraph 2

    2098 This provision develops the principle formulated in paragraph 1 of prohibiting starvation of the civilian population; it describes the most usual ways in which this may be applied. (10)

    2099 The adopted text is very similar to the ICRC draft, although some important details were incorporated which led to lengthy discussion.

    2100 The Conference added removal and rendering useless of objects indispensable to the survival of the civilian population to the prohibition on their attack or destruction. With regard to rendering such objects useless, this refers mainly to irrigation works and installations.

    2101 It should be noted that the verbs "attack", "destroy", "remove" and "render useless" are used in order to cover all possibilities, including pollution, by chemical or other agents, of water reservoirs, or destruction of crops by defoliants, and also because the verb "attack" refers, either in offence or defence, to acts of violence against the adversary, according to Article 49 ' (Definition of attacks and scope of application), ' paragraph 1.

    2102 As regards the objects which are especially protected, the Conference mentioned agricultural areas for the production of foodstuffs, drinking water installations and supplies, and crops, which should be interpreted in the widest sense, in order to cover the infinite variety of needs of populations in all geographical areas.

    2103 Furthermore, the words "such as" show that the list of protected objects is merely illustrative. An exhaustive list could have led to omissions or an arbitrary selection. As the text reveals, the objects concerned are basically objects for subsistence. General protection of civilian objects follows from Article 52 ' (General protection of civilian objects). ' However, it cannot be excluded that as a result of climate or other circumstances, objects such as shelter or clothing must be considered as indispensable to survival.

    2104 The clause "for the specific purpose of denying them for their sustenance value" led to lengthy discussion. The Working Group (11) and then Committee III (12) had adopted the words "for the purpose of denying them as such". (13) The Drafting [p.656] Committee finally proposed the present wording, which was adopted in the Conference by consensus. (14)

    2105 Even if the wording is not perfect, the meaning is clear: the objects indicated must be respected in order to guarantee the survival of the population, unless -- following paragraphs 3 and 5 -- military necessity requires that they be attacked, destroyed, removed or rendered useless. On this subject the examples given by the Rapporteur are meaningful. (15) The restrictions laid down in Article 57 ' (Precautions in attack) ' must of course be respected.

    2106 It will be seen, when examining paragraph 3(b), that even if the objects listed here were used in direct support of military action, the adverse Party should, when using force, ensure that the population is not reduced to starvation or compelled to move. This requirement must be considered a fortiori as applying here with regard to objects intended exclusively for the population.

    2107 The text continues: "for the specific purpose of denying [...] the civilian population or [...] the adverse Party." Why should it mention the adverse Party? To understand this, reference should be made to paragraph 3, which makes an exception to the rule of paragraph 2 if objects are used in a certain way "by an adverse Party". Thus the provision under consideration here means that it is prohibited to attack etc. objects indispensable to the survival of the civilian population wherever it is, or to deprive the enemy State of such objects indispensable to the civilian population.

    Paragraph 3

    2108 This provision was not contained in the ICRC draft; it appears to be the result of an amendment (16)

    2109 Sub-paragraph (a) is undoubtedly concerned with foodstuffs and the agricultural areas producing them, crops, livestock and supplies of drinking water, but not with installations for drinking water or irrigation works.

    2110 It is important to determine how foodstuffs, crops, livestock and supplies of drinking water could be used in direct support of military action, as suggested in [p.657] sub-paragraph (b). Although some supplies of foodstuffs or drinking water can serve to sustain the armed forces, this possibility does not seem sufficient reason for depriving such objects of the protection it was agreed to afford them, and the restriction contained at the end of this sub-paragraph confirms this point of view. The phrase "direct support of military action" in sub-paragraph (b) refers to the type of military operation quoted in footnote 13 above, namely, bombarding a food-producing area to prevent the enemy from advancing through it, or attacking a food-storage barn which is being used by the enemy for cover or as an arms depot etc.

    2111 If the civilian population is reduced to starvation or forced to move, acts of destruction are prohibited in any case; in this situation it should also be recalled that under Article 70 ' (Relief actions), ' relief actions must be undertaken provided that the agreement has been obtained from the Parties concerned with such relief actions.

    2112 To summarize, the following rules can be laid down:

    1. Supplies of foodstuffs intended for the sole use of the armed forces may be attacked and destroyed (agricultural areas or drinking water installations are hardly likely to be used solely for the benefit of armed forces).
    2. When objects are used for a purpose other than the subsistance of members of the armed forces and such use is in direct support of military action, attacks and acts of destruction are legitimate unless they are bound to have serious effects on supplies for the civilian population and the latter would thereby be reduced to starvation or forced to move away.

    2113 Finally, a general remark may be made which is common to the first three paragraphs: objects indispensable to the survival of the civilian population are protected by this article when they are located in the territory held by the Party to the conflict concerned or that of a co-belligerent as well as in enemy territory.

    2114 If they come by sea, the fate of such objects depends on the provisions of the laws of war applicable to ships transporting them. As the Rapporteur of Committee III stated, this article does not replace the recognized rules on naval blockades. One may also note in passing that the objects referred to in paragraph 2 do not fall in the category known as "absolute contraband of war", and that consequently ships of neutral countries which transport foodstuff destined exclusively for the civilian population may do so without risk of seizure or confiscation.

    Paragraph 4

    2115 This provision was contained in the ICRC draft and the Conference decided to make it into a separate paragraph. Again it was preferred to repeat this prohibition of reprisals here, rather than grouping together everything related to reprisals in a separate article. (17) On the general problem of reprisals reference should be made to the introduction to Part V, Section II (infra, p. 981).

    [p.658] Paragraph 5

    2116 This provision was not contained in the ICRC draft. At the Diplomatic Conference it soon became clear that many States did not wish to limit the means available to them of defending their national territory against an invader, including carrying out "scorched earth" actions which would prevent or slow down the advance of the adverse forces. There have been some notorious examples of such "total defence" in the recent past which have often resulted in significant long-term damage for the country and its population: forest fires, breaching dykes, flooding cultivated land with sea water, destroying bridges, roads or other means of communication, factories, food supplies etc. (18)

    2117 The suggestion of the Rapporteur was taken into account and, after an examination of Article 66 of the draft, Committee III adopted a new text whose paragraph 2 became this paragraph after being revised by the Drafting Committee, which had been asked to ascertain where this provision could best be placed. Paragraph 1 became paragraph 2 of Article 49 of the Protocol ' (Definition of attacks and scope of application). ' (19)

    2118 The words "under its own control" refer to de facto control, i.e., the ability to exercise effective control. In the French text the word "contrôle" is used in the English sense implying a power to direct and take decisions, though the usual French meaning of this word is to "supervise" or "check".

    2119 It follows from this provision that a belligerent Power, while preserving the interests of its own population, may carry out destructions in that part of its own territory where it exercises authority, but that it may not do so in any part of its territory that may be under enemy control, any more than it may do so in the territory of the enemy Power itself, for that matter.

    [p.659] 2120 As regards Occupying Powers, Article 53 of the Fourth Geneva Convention of 1949 prohibits the destruction of real or personal property, except where such destruction is rendered absolutely necessary by military operations. This is a general rule which is now supplemented by the provisions of Article 54 of the Protocol as regards objects indispensable to the survival of the civilian population.

    2121 "Scorched earth" policies exercised by an Occupying Power withdrawing from occupied territory were judged legitimate if required by imperative military necessity. (20) Article 54 does not change that situation except as regards objects indispensable to the survival of the civilian population. In other words, an occupation army which is withdrawing may, if military operations render it absolutely necessary, carry out destructions (bridges, railways, roads, airports, ports etc.) with a view to preventing or slowing down the advance of enemy troops, but may not destroy indispensable objects such as supplies of foodstuffs, crops ripe for harvesting, drinking water reservoirs and water distribution systems or remove livestock. To summarize:

    2122-- In the case of imperative military necessity a belligerent Power may in an extreme case even destroy objects indispensable to the survival of the civilian population in that part of its own territory which is under its control. On the other hand, it may not carry out such destruction in the part of its territory which is under enemy control.

    2123-- An Occupying Power may not destroy objects located in occupied territory which are indispensable to the survival of the civilian population. Any "scorched earth" policy carried out by an Occupying Power, even when withdrawing from such territory, must not affect such objects.

    ' C.P./J.P. '


    NOTES

    (1) [(1) p.652] O.R. XIV, p. 301, CDDH/II/SR.31, para. 11; O.R. VI, p. 208, CDDH/SR.42, para. 19;

    (2) [(2) p.653] The Robert Dictionary defines "essentiel" in everyday language as "qui est nécessaire, inséparable de quelque chose" (Vol. II, p. 644) and it refers to "indispensable". The same dictionary defines "indispensable" as "qui est très nécessaire, dont on ne peut se passer" (Vol. III, p. 703) and it refers back to "essentiel";

    (3) [(3) p.653] Starvation is defined by the Shorter Oxford English Dictionary (1973) as the action of starving or subjecting to famine, i.e., to cause to perish of hunger; to deprive of or "keep scantily supplied with food" (p. 2111). The word "starvation" is also used in para. 3(b) in fine;

    (4) [(4) p.653] O.R. III, p. 218, CDDH/III/67;

    (5) [(5) p.653] In the final text this has become Article 49, para. 3;

    (6) [(6) p.654] O.R. XV p. 279, CDDH/215/Rev.1, para. 73;

    (7) [(7) p.654] The Nuremberg Tribunal acquitted Admiral Doenitz of the accusations brought against him relating to his conduct of submarine warfare against British armed merchant vessels, but, although he was found guilty of a violation of the Protocol in relation to neutral vessels, he was not sentenced on the ground of his breaches of the law of submarine warfare on the basis of the tu quoque principle, as the adverse Parties had also used practices of which he was accused;

    (8) [(8) p.654] Thus, for example, from 1942 to 1944 the population of Greece enjoyed considerable aid requiring the intervention of a whole fleet. See the final report of the commission administering aid to Greece under the auspices of the ICRC, Athens 1949;

    (9) [(9) p.654] Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, particularly Art. II(c);

    (10) [(10) p.655] The relationship between these two provisions is particularly clear in Article 14 of Protocol II, the second sentence of which begins with the words "It is therefore prohibited";

    (11) [(11) p.655] O.R. XV, p. 249, CDDH/III/264/Rev.1;

    (12) [(12) p.655] Ibid., p. 279, CDDH/215/Rev.1, para. 74;

    (13) [(13) p.655] In this respect it is appropriate to quote the report of the Committee: "In paragraph 2, drafting problems were posed by the fact that two of the objects listed -- food-producing areas and irrigation works -- might be useful to combatants for purposes other than directly for sustenance. Thus, the phrase in paragraph 2 "for the purpose of denying them as such" was designed to cover both the denial of food and drink as sustenance and the denial of food-producing areas and irrigation works for their contribution to the production of sustenance. On the other hand, it was not intended to cover their denial to the enemy for other purposes, including the general purpose of preventing the enemy from advancing. Thus, bombarding an area to prevent the advance through it of an enemy is permissible, whether or not the area produces food, but the deliberate destruction of food-producing areas in order to prevent the enemy from growing food on them is forbidden. Similarly, destroying a field of crops in order to clear a field for fire or to prevent the enemy using it for cover is permissible, but destroying it to prevent the enemy from consuming the crops is forbidden. This is a heavy burden of meaning to be carried by the two words "as such", and several representatives expressed the hope that the Drafting Committee would ultimately find a clearer form of words." (O.R. XV, p. 279, CDDH/215/Rev.1, para. 74);

    (14) [(14) p.656] O.R. VI, p. 208, CDDH/SR.42, para. 19;

    (15) [(15) p.656] Cf. supra, note 13;

    (16) [(16) p.656] O.R. III, p. 219, CDDH/III/74. The Rapporteur of Committee III expressed himself as follows in this respect: "The phrasing of paragraph 3 is only slightly more satisfying than that of paragraph 2. Here the drafter continues to be plagued by the necessity of distinguishing between uses of the objects as sustenance and other uses. Paragraph 2(a) was intended to apply only to those objects which clearly are assigned solely for the sustenance of the armed forces. The term "civilian population" referred to in paragraph 2(b) was not intended to mean the civilian population of a country as a whole, but rather of an immediate area, although the size of the area was not defined." (O.R. XV, p. 280, CDDH/215/Rev.1, para. 76). It should be noted that the passage quoted above incorrectly refers to 2(a) and 2(b) while it should refer to 3(a) and 3(b);

    (17) [(17) p.657] O.R. VI, pp. 219-220, CDDH/SR.42, Annex (Australia);

    (18) [(18) p.658] When he presented Article 48 the Rapporteur of Committee III expressed himself as follows: "Finally, Article 48 raised the question whether the prohibitions in paragraph 2 other than that on attack (which by definition is against the adversary) apply to acts by a State against objects under its control and within its own national territory. A number of representatives expressed the view that it was not intended to have such an effect and that an express reservation of rights within one's own territory was unnecessary. At the suggestion of the Rapporteur, it was agreed to review subsequently the extent to which the provisions of this Section were intended to have such an effect within a State's own territory and reflect the conclusions of the Group in some appropriate way in the text. It is apparent that some provisions, for example Article 46, paragraph 5, on movement of civilians to shield military operations, are intended to apply to a State within its own territory. This review will be made in the context of Article 66." (O.R. XV, p. 280, CDDH/215/Rev.1, para. 77);

    (19) [(19) p.658] On this subject the Rapporteur stated: "Paragraph 2 [of draft Art. 66] proved relatively easy to agree upon once it was phrased in terms that recognized the vital requirements of a State defending its national territory against invasion. The Committee generally considered that it would be impossible to prohibit completely the conduct of a scorched earth policy where the armed forces of a State were being forced to retreat within the national territory of that State, and the best protection on which agreement was possible was to permit derogation from the rules of Article 48, paragraph 2 only where required by imperative military necessity. Several representatives expressed dissatisfaction with that standard because of its apparent anti-humanitarian implications, but it was generally regarded as the most demanding standard that would be acceptable." (Off. Records XV, p. 462, CDDH/407/Rev.1, para. 51);

    (20) [(20) p.659] See in particular, 8 Law Reports, pp. 67-69;