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Commentary - Definition of attacks and scope of application
    [p.601] Article 49 -- Definition of attacks and scope of application


    [p.602] 1876 Article 44 of the 1973 draft contained the essence of the provisions of paragraphs 1, 3 and 4. (1) The Conference took up these proposals, supplementing and modifying them and adding paragraph 2, which is itself based on other articles in the draft. (2)

    Paragraph 1

    1877 The term "attacks" is used many times in Part IV. It was appropriate to provide a definition of this term and Committee III, and later the Drafting Committee, restricted themselves to minor changes of the wording. The only aspect which gave rise to controversy was the expression "against the adversary", but Committee III decided to retain this wording with 38 votes in favour, 18 votes against and 10 abstentions. (3) Those who wished to delete the words argued that the provisions of this Section of the Protocol should apply to the civilian population of all the Parties to the conflict, including the civilian population of [p.603] the Party concerned. It will be noted that this idea was partially retained in paragraph 2 of the article.

    1878 The expression "attacks" is not only used in Part IV, but also in other provisions such as Articles 12 ' (Protection of medical units), ' 39 ' (Emblems of nationality), ' 41 ' (Safeguard of an enemy hors de combat), ' 42 ' (Occupants of aircraft), ' 44 ' (Combatants and prisoners of war) ' and 85 ' (Repression of breaches of this Protocol). ' The definition certainly also applies in these cases, even though it is given at the beginning of Part IV. For that matter, there was a proposal to include the definition in Article 2 of the Protocol ' (Definitions), ' but Committee III and the Drafting Committee considered that it was preferable to include it at the beginning of the Section dealing with the general protection of the civilian population, where the definition has a special significance.

    1879 It is quite clear that the meaning given here is not exactly the same as the usual meaning of the word. In the larger dictionaries the idea of instigating the combat and striking the first blow is predominant. The second definition given in the Shorter Oxford Dictionary is closest to the meaning of the term as used in the Protocol, "to set upon with hostile action". (4) In this respect it is interesting to refer to an investigation conducted amongst its members by the International Society of Military Law and the Law of War. (5) The questions that were raised included one relating to this question of terminology. In general the replies indicated that the meaning given by the Protocol to the word "attacks" did not give rise to any major problems, even though military instruction manuals in many countries define an attack as an offensive act aimed at destroying enemy forces and gaining ground.

    1880 The definition given by the Protocol has a wider scope since it -- justifiably -- covers defensive acts (particularly "counter-attacks") as well as offensive acts, as both can affect the civilian population. It is for this reason that the final choice was a broad definition. In other words, the term "attack" means "combat action". This should be taken into account in the instruction of armed forces who should clearly understand that the restrictions imposed by humanitarian law on the use of force should be observed both by troops defending themselves and by those who are engaged in an assault or taking the offensive.

    1881 During the above-mentioned enquiry the question arose whether the placing of mines constituted an attack. The general feeling was that there is an attack whenever a person is directly endangered by a mine laid.

    1882 Finally, it is appropriate to note that in the sense of the Protocol an attack is unrelated to the concept of aggression or the first use of armed force; (6) it refers simply to the use of armed force to carry out a military operation at the beginning or during the course of armed conflict. Questions relating to the responsibility for unleashing the conflict are of a completely different nature.

    [p.604] Paragraph 2

    1883 This paragraph contains a provision which the ICRC had placed in the draft in two virtually identical articles (48 and 66), entitled "Objects indispensable to the survival of the civilian population", of which the latter read as follows:

    "It is prohibited to destroy, render useless or remove objects indispensable to the survival of the civilian population, namely, foodstuffs, food-producing areas, crops livestock, drinking water supplies and irrigation works, whether to starve out civilians, cause them to move away or for any other reason. They shall not be made the object of reprisals."

    1884 This provision was addressed to the Party to the conflict in whose power were the objects indispensable to the survival of the civilian population. The Conference did not feel that it was necessary to go so far, and Committee III formulated a draft Article 66 in the following terms:

    "1. The provisions of this Protocol with respect to attacks apply to all attacks wheresoever conducted, including the national territory belonging to a Party to the conflict but under the control of an adversary.
    2. 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 of Article 48 may be made by a Party to the conflict within such territory under its own control where required by imperative military necessity." (7)

    1885 The report of Committee III (8) notes that because of the adoption of Article 48 in a modified form (Article 54 of the Protocol -- ' Protection of objects indispensable to the survival of the civilian population), ' the proposal was no longer valid, but that the article permitted specifying the scope of application of Article 48 of the draft like other articles limiting or prohibiting attacks.

    1886 Finally Committee III decided to allow the Drafting Committee the choice of where to place these two paragraphs (the second limiting the scope of the first) though it made some suggestions which were taken up by the Drafting Committee.

    1887 Thus paragraph 1 became paragraph 2 of Article 49 , which is under consideration here, while paragraph 2 became paragraph 5 of Article 54 ' (Protection of objects indispensable to the survival of the civilian population). '

    1888 It clearly follows from this second provision that a belligerent, part of whose territory is controlled by the enemy, cannot mount attacks in such territory against objects indispensable to the survival of the population in violation of the provisions of the Protocol, whereas the belligerent could, in case of imperative military necessity, destroy such objects in the part of its territory under its control in order to counter an invasion. In other words, in certain extreme circumstances the Protocol does not rule out a "scorched earth" policy by a retreating [p.605] belligerent in his own national territory. On the other hand, an Occupying Power cannot act in this way when it is withdrawing from territory under its control.

    1889 The report of Committee III notes that the French term "contrôle" means de facto control and not de jure control. This is the English sense of the term, i.e., the power to administer, subordinate. (9) In fact the English text uses the word "control". It was decided not to use the word "occupied" which could raise legal problems but instead the word "control" which refers to a factual situation and not a legal concept.

    1890 In addition, it should be noted that destructive acts undertaken by a belligerent in his own territory would not comply with the definition of attack given in paragraph 1, as such acts, though they may be acts of violence, are not mounted "against the adversary". Moreover, such destruction is most often carried out by very different means from those used in an attack.

    1891 Finally, this paragraph makes it clear, as is implied in paragraph 4, that the provisions of the Protocol relating to attacks and the effects thereof apply to the whole of the population present in the territory of the Party to the conflict, even if it is under enemy control -- as does Part II of the Fourth Convention.

    Paragraph 3

    1892 The first sentence of this paragraph repeats almost literally the text of the first paragraph of Article 44 of the 1973 draft, which gave rise to lengthy discussion during the Diplomatic Conference. (10)

    1893 The discussions during the first session of the Diplomatic Conference were concerned mainly with three points:

    a) Some delegates wished to replace the word "warfare" (in French, "opérations militaires") by the term "attacks". In the end (11) Committee III decided to retain the ICRC text on this point. It was mainly a difference of opinion regarding the wording to be used.
    b) The second point related to a matter of substance: the inclusion of the words "against the adversary". The Committee accepted this insertion. (12)
    c) Finally, many delegations wished to delete the words "on land". Those who recommended that they be deleted wished the definition to have an effect on the rules of law applicable to the conduct of war at sea or in the air inasmuch as this provision would be more favourable to civilians than the present rule [p.606] of law (13). This deletion was rejected by a vote by Committee III, (14) but a discussion arose regarding where the words "on land" should be placed in the sentence.

    1894 Finally the Committee referred the provision as a whole to the Working Group, which was only able to make a proposal at the second session of the Diplomatic Conference. The words "against the adversary" were not retained.

    1895 In general the delegates at the Diplomatic Conference were guided by a concern not to undertake a revision of the rules applicable to armed conflict at sea or in the air. This is why the words "on land" were retained and a second sentence clearly indicating that the Protocol did not change international law applicable in such situations was added.

    1896 This concern is understandable: after all, the conditions of sea warfare were radically transformed during the Second World War and in subsequent conflicts. It is therefore difficult to determine exactly which are the rules that still apply. (15) As regards air warfare, there is no precise written law on this subject, apart from some unclear customary law (for example: external marks indicating the nationality of aircraft). The only codified rule is in this Protocol in Article 42 ' (Occupants of aircraft). '

    1897 Admittedly both sea and air warfare are subject to restrictions imposed by treaties of general application, such as, for example, the Hague Convention of 1954 for the Protection of Cultural Property and the Geneva Protocol of 1925 for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, but there are hardly any specific rules relating to sea or air warfare, and insofar as they do exist, they are controversial or have fallen into disuse.

    1898 The provision of this paragraph has the advantage of clearly establishing the fact that attacks from the sea or from the air against objectives on land are subject to the restrictions and conditions imposed by the Protocol. It should be noted in passing that according to the Working Group which formulated the text of this provision, the expression "on land" in this context also applies to rivers, canals and lakes.

    1899 In the English text the first sentence remained unchanged and the word "warfare" was retained, while the first sentence of the French text was slightly modified in that the word "militaire" qualifying the word "opération" was deleted. It is clear that "opération" refers to an operation of war, and in fact the Spanish text refers to "operación de guerra", i.e., an operation which is almost always of a military nature.

    Paragraph 4

    1900 The fourth Convention applies in general to protected persons as defined in Article 4 of that Convention, i.e., mainly to enemy nationals in the territory of a [p.607] belligerent and the inhabitants of occupied territory. Part II has a broader scope and covers the whole population of all countries in conflict. This Protocol has a correspondingly broad scope of application.

    1901 Other international agreements binding upon the Contracting Parties (16) are primarily the Hague Convention of 1907 Concerning the Laws and Customs of War on Land and the Regulations annexed thereto, the Geneva Protocol of 1925 for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, the Hague Convention of 1954 for the Protection of Cultural Property, the regional and universal Conventions and Covenants relating to the protection of human rights, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, the 1980 Convention on the Prohibition of Certain Conventional Weapons.

    1902 All these treaties are concerned with "humanitarian protection" of individuals. As regards "other rules of international law relating to the protection of civilians and civilian objects on land, at sea or in the air", we have already seen that as far as air warfare is concerned there are only some customs relating to actual combat; on the other hand, there are no provisions concerning the fate of civilians on board civilian aircraft (17) or military aircraft, except those relating to the civilian wounded, sick or shipwrecked on board medical aircraft.

    1903 At sea, civilians on board warships run the risks to which such ships are exposed. If they are on board enemy merchant ships, their fate will depend on the nature of these vessels. According to the London Procès-Verbal of 1936, (18) warships, whether surface vessels or submarines, cannot sink merchant ships or render them incapable of navigation without first placing the crew, passengers and ship's documents in safety except in the case of persistent refusal to stop or active resistance to inspection. However, during the Second World War enemy merchant ships were often armed and sailed in convoy under military protection, or even transmitted information by radio to warships. These occurrences resulted in the belligerents failing to observe the London Procès-Verbal on this point and attacking merchant vessels without warning.

    1904 According to the Nuremberg International Military Tribunal, the rule is still in force, and in particular an attack on neutral merchant vessels without warning constitutes a war crime. (19) All this led to the Government of the United States to give the following instructions to its naval forces:

    "Enemy merchant vessels may be attacked and destroyed, either with or without prior warning, in any of the following circumstances:

    [p.608]
    1) Actively resisting visit and search or capture.
    2) Refusing to stop upon being duly summoned.
    3) Sailing under convoy of enemy warships or enemy military aircraft.
    4) If armed, and there is reason to believe that such armament has been used, or is intended for use, offensively against an enemy.
    5) If incorporated into, or assisting in any way, the intelligence system of an enemy's armed forces.
    6) If acting in any capacity as a naval or military auxiliary to an enemy's armed forces." (20)

    1905 To what extent can such rules be observed by air forces attacking enemy ships? This question is difficult to answer as attacks from the air -- and perhaps even those from the sea -- are often from a great distance, and it is not always possible to be aware of the exact nature of the vessel being attacked. For this reason several belligerent States have had recourse to the concept of zones in which all navigation, even innocent, is prohibited and within which attacks may be mounted against any vessel without warning.

    1906 It follows that, while paragraph 3 seems to limit the prohibitions laid down in this Section to objectives on land, paragraph 4 leaves the applicability of both treaty rules and customary rules unimpaired, insofar as such rules are aimed at protecting civilians and civilian objects in air and sea warfare, and this paragraph even tends to supplement these rules. This aspect is confirmed by the provisions of Article 57 ' (Precautions in attack), ' of which paragraph 4 urges Parties to the conflict to take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects in the conduct of military operations at sea or in the air.

    ' C.P./J.P. '


    NOTES

    (1) [(1) p.602] "' Article 44 -- Field of application '
    1. The provisions contained in the present Section apply to any land, air or sea warfare which may affect the civilian population, individual civilians and civilian objects on land.
    2. These provisions apply to acts of violence committed against the adversary, whether in defence or offence. Such acts are referred to hereafter as 'attacks'.
    3. These provisions are complementary to such other international rules relating to the protection of civilians and civilian objects against effects resulting from hostilities as may be binding upon the High Contracting Parties, in particular to Part II of the Fourth Convention.";

    (2) [(2) p.602] Draft Articles 48 and 66;

    (3) [(3) p.602] O.R. XIV, p. 86, CDDH/III/SR.11, para.11;

    (4) [(4) p.603] Shorter Oxford Dictionary, 1978, p. 127;

    (5) [(5) p.603] Questionnaire on the subject of armed forces and the development of the laws of war, presented during the ninth International Conference of the International Society of Military Law and the Law of War, held at Lausanne from 2-6 September 1982. Text in "Forces armées et développement du droit de la guerre", op. cit., pp. 51-55; see also p. 303;

    (6) [(6) p.603] See commentary Preamble, supra, p. 28;

    (7) [(7) p.604] O.R. XV, p. 492, CDDH/407/Rev.1, Annex II;

    (8) [(8) p.604] Ibid., pp. 462-463, CDDH/407/Rev.1, paras. 49-53;

    (9) [(9) p.605] The normal meaning of the French verb "contrôler" is to "check" or "verify";

    (10) [(10) p.605] See particularly O.R. XIV, p. 15, CDDH/III/SR.2, para. 11; p. 16, paras. 21 and 24, p. 17, paras. 26, 28-29; p. 20, CDDH/III/SR.3, paras. 4, 9; pp. 21-22, paras. 14-22; p. 23, paras. 31 and 36; p. 25, CDDH/III/SR.4, para. 1; p. 27, paras. 11, 13; pp. 28-29, paras. 27, 29, 31; pp. 29-31, paras. 36-37, 43, 48; p. 32, paras. 54-56, 59; p. 33, paras. 61, 65; p. 34, paras. 72, 74; p. 85, CDDH/III/SR. 11, paras. 2, 5-6; pp. 86-88, paras. 16-30; p. 91, CDDH/III/SR. 12, paras. 22-24; p. 92, paras. 32-34; p. 93, paras. 44-46; p. 218, CDDH/III/SR.24, para. 4; p. 221, para. 26; p. 223, para. 38;

    (11) [(11) p.605] This proposal was rejected by 50 votes against, 10 votes in favour and 5 abstentions. See O.R. XIV, p. 86, CDDH/III/SR.11, para. 13;

    (12) [(12) p.605] 31 votes in favour, 22 against, 11 abstentions. See ibid., p. 86, para. 14;

    (13) [(13) p.606] O.R. XV, p. 328, CDDH/III/224;

    (14) [(14) p.606] By 35 votes against, 33 in favour and 4 abstentions. See O.R. XIV, p. 86, CDDH/III/SR.11, para. 15;

    (15) [(15) p.606] See infra, commentary para. 4 of that article;

    (16) [(16) p.607] See commentary Art. 1, para. 1, supra, p. 35 and Art. 51, para. 1, infra, p. 617;

    (17) [(17) p.607] See, nevertheless, the recent amendment to the Convention on International Civil Aviation cited in the commentary on Art. 41, supra, p. 486, note 20;

    (18) [(18) p.607] 1936 London Procès-Verbal. Relating to the Rules of Submarine Warfare, Set Forth in Part IV of the Treaty of London of 22 April 1930, signed in London, 6 November 1936;

    (19) [(19) p.607] ' Trial of the Major War Criminals before the International Military Tribunal, ' Nuremberg, 1948, vol XXII (discussions of 27 August to 1 October 1946), pp. 557-559 and 562-563;

    (20) [(20) p.608] ' United States Navy Manual, ' The Law of Naval Warfare, 1955, para. 503 b.(3). Text in R.W. Tucker, "The Law of War and Neutrality at Sea", International Law Studies 1955, Vol. XLX, Washington, 1957, p. 397;