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Commentary - Protection of works and installations containing dangerous forces
    [p.665] Article 56 -- Protection of works and installations containing dangerous forces


    [p.666] 2142 In time of combat man has always tried to strike at his adversary by releasing natural or artificial forces. Without going right back to Archimedes, it is worth recalling the Battle of Morgarten in 1315 when the Swiss made rocks and tree trunks hurtle down a steep slope to cause panic in the ranks of the adverse Party, [p.667] which decided the victory. At the same time, though in a different part of the world, belligerents were using a new weapon, "Greek fire", (1) to set fire to enemy ships or fortified buildings occupied by the adversary. Nearer to our time it will be remembered that in the seventeenth century the Dutch, despite protests from the peasants, did not hesitate to flood part of their cultivated land by breaching the dykes in order to prevent the advance of adverse troops. In 1938 the Chinese authorities breached the dykes of the Yellow River near Chang-Chow to stop the Japanese troops, resulting in extensive losses and widespread damage. In 1944, again in the Netherlands, German troops flooded many thousands of hectares of agricultural land with sea water to prevent the advance of the enemy.

    2143 It was also during the Second World War that deliberate attacks were mounted against hydro-electric dams. The best known are those which destroyed the dams in the Eder and the Möhne in Germany in May 1943. These operations resulted in considerable damage: 125 factories were destroyed or seriously damaged and in addition 3,000 hectares of cultivated land were lost for the harvest of that year, 1,300 persons were killed, including some deported persons and allied prisoners, and finally, 6,500 head of livestock were lost. (2)

    2144 During the war in Korea aircraft attacked dams used for irrigation in the north of the country. In the Viet Nam War attacks were mounted against dams and dykes, though the United States declared that the damage caused, insofar as this was established, was accidental or secondary. (3) According to the delegate from the Democratic Republic of Viet Nam at the Diplomatic Conference, 661 sections of dyke had been either damaged or destroyed during the course of the war. (4)

    2145 Public opinion had reacted against such forms of warfare and for that reason the ICRC, when it presented its Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War in 1956, had already introduced an article on the protection of installations containing dangerous forces. (5) In fact it was only an invitation to governments to seek agreement on granting such installations general immunity. To dams and dykes the provision added nuclear power stations, a new potential source of danger which had appeared since the end of the Second World War. Following the failure of the Draft Rules, the ICRC undertook in 1968 to develop new proposals. It went back to the text of Article 17 and presented it to the meetings of experts which it had called. That provision was considered too weak by the experts, which led the ICRC to present an article to the Diplomatic Conference containing a prohibition, without room for exceptions, on attacks or destruction of dams, [p.668] dykes, and nuclear generating stations. (6) After a long discussion in a Working Group that provision led to the text of the present article, which was accepted by the Diplomatic Conference by consensus. (7) The importance of the new provision should be underlined and the prohibition on reprisals which it contains should be welcomed.

    Paragraph 1

    2146 The definition of works and installations to be protected gave rise to a number of discussions.

    2147 According to some amendments, the list which is given should have been merely illustrative. (8) However, as the Rapporteur indicated, it was only after it was decided to limit the special protection granted by the article to dams, dykes and nuclear electrical generating stations and other military objectives located at or in the vicinity of these works or installations, that it was possible to draw up a text which was generally acceptable. (9)

    2148 It is clear that there are other works or installations which can release dangerous forces in the case of attack; for example, one need think only of factories manufacturing toxic products which, if released as a gas, could endanger an entire region; such incidents, which can sometimes be serious, have recently occurred in various countries in peacetime.

    2149 Several delegations wished to include other installations in the list, in particular oil production installations and storage facilities for oil products. (10)

    2150 It appears that the consultations were not successful, as the sponsors of the proposals in this field finally withdrew them. (11) There is no doubt that Article 55 ' (Protection of the natural environment) ' will apply to the destruction of oil rigs resulting in oil gushing into the sea and leading to extensive damage such as that [p.669] described in that article. As regards the destruction and setting alight of refineries and petroleum storage facilities, it is hardly necessary to stress the grave danger that may ensue for the civilian population. Extending the special protection to such installations would undoubtedly have posed virtually insoluble problems, and it is understandable that the Conference, when it adopted these important prohibitions, limited them to specific objects.

    2151 The Protocol does not mention fire as a "dangerous force", for it is difficult to see how it can be unleashed by works and installations. However, it should be recalled that the Convention of 10 October 1980 on the prohibition of certain conventional weapons prohibits the use of incendiary weapons against civilians and even against military objectives situated in an area where civilians are concentrated.

    2152 The works and installations covered are protected against attacks, i.e., according to Article 49 ' (Definition of attacks and scope of application), ' acts of violence against the adversary. It should also be recalled that in accordance with Article 49 ' (Definition of attacks and scope of application), ' paragraph 2, the prohibition of attacks contained in Article 56 also applies to a Party's own territory under the control of the adverse Party. On the other hand, the works and installations are not protected against destruction, removal or being rendered useless, as in Article 54 ' (Protection of objects indispensable to the survival of the civilian population), ' with regard to objects indispensable to the survival of the civilian population. It therefore clearly follows that if circumstances so require, a government may destroy works and installations located in that part of its own territory which is under its control or may render them useless. It is up to the government to take all necessary measures to ensure that the civilian population is not affected. Similarly, an Occupying Power, or another Power which has control of a region, may destroy property or render it useless in certain cases if, as provided in Article 53 of the fourth Convention, such destruction is rendered absolutely necessary by military operations. In such circumstances the Power concerned must ensure that there is no damage to the civilian population, and exceptionally this may require the evacuation of the civilian population in the circumstances laid down in Article 49 of the fourth Convention. According to Article 46 of the Hague Regulations annexed to Hague Convention IV of 1907 the Occupying Power has a general duty to respect the life of individuals in occupied territories.

    2153 The works and installations concerned are civilian objects a priori, and may therefore not be attacked. If they become military objectives, as defined in Article 52 ' (General protection of civilian objects), ' they enjoy special protection and may not be attacked when such attacks may cause severe losses among the civilian population because of the release of dangerous forces. If such an attack cannot cause severe losses it is legitimate, provided that the works or installation which is attacked has clearly become a military objective in the sense of Article 52 ' (General protection of civilian objects), ' i.e., provided that it makes an effective contribution to military action and its total or partial destruction, in the circumstances ruling at the time, offers a definite military advantage.

    2154 The word "severe" is equivalent to "important" or "heavy". As so often in this Chapter, this concept is a matter of common sense and it must be applied in good faith on the basis of objective elements such as the proximity of inhabited [p.670] areas, the density of population, the lie of the land etc.

    2155 The second sentence of the paragraph deals with military objectives located at or in the vicinity of such works or installations, which, if attacked, could lead to the release of dangerous forces. This does not refer to military forces assigned to guard or defend the works or installation -- they are dealt with in paragraph 5 of the article -- but to objectives which are either incorporated in the installation or located in the immediate vicinity.

    2156 As an example, the Rapporteur cites a hydro-electric power station incorporated in a dam or located in the immediate vicinity. If such an installation has become a military objective under the terms of Article 52 ' (General protection of civilian objects) ' as a result of the circumstances of the conflict, it cannot be attacked if such an attack could lead to the destruction of the dam.

    2157 It is conceivable that a dam, dyke or nuclear electrical generating station is situated in the immediate vicinity of some civil engineering works, for example, a bridge or a railway line, and that, in the circumstances of conflict, that bridge or a section of that line could become an important military objective. In this case too, no attack may be undertaken against such a bridge or railway line if the attack could affect the dam, dyke or nuclear electrical generating station, and in this way cause the release of dangerous forces.

    2158 It should be noted that launching an attack against works or installations containing dangerous forces under certain conditions is condemned by Article 85 ' (Repression of breaches of this Protocol), ' paragraph 3(c), of the Protocol as a grave breach.

    Paragraph 2

    2159 This provision envisages situations in which the protection laid down in paragraph 1 might cease. However, it should be stressed at the outset that in such cases where the highest human interests are at stake, the decision to deprive them of protection can only be taken at a high military level.

    2160 In the French text, it may be noted that the word "prévues" (provided), contained in the first line, should be in the singular, referring to the protection and not to the attacks. However, the meaning is not affected by this.

    ' Sub-paragraph (a) '

    2161 This sub-paragraph deals with dams and dykes. The use of words calls for some comment. First, the term "military operations" should be understood to mean movements, manoeuvres and actions of any sort carried out by armed forces with a view to combat. (12) Then, the expression "other than its normal function" means that the dam or dyke is used for a purpose other than containing an actual or [p.671] potential mass of water, which is the normal function of such a structure; if the dam or dyke is not used for any other purpose, it must not be attacked under any circumstances.

    2162 It may happen that a dyke forms part of a system of fortifications, or that there is a road across the top of a dam which could, in combat conditions, become an essential route for the movement of armed forces. Even in such circumstances protection may cease only if the dam or the dyke constitutes a regular, significant and direct support of military operations, and if such an attack is the only feasible way of terminating such support. The language used indicates that the support given to military operations must be at the same time regular, significant and direct. This triple qualification, which is also found in sub-paragraphs (b) and (c), may seem to be subject to subjective interpretation, but these terms merely express common sense, i.e., their meaning is fairly clear to everyone. They need to be interpreted in good faith on the basis of objective elements. The word "regular" relates to time. It means that accidental or sporadic use is not sufficient; there must be some continuity in the use, or at least some rhythm. The word "significant" is less precise, but must be understood in relation to a scale of degrees of significance that may be established. The support must not be negligible nor should it be merely an incidental circumstance, but it must be sizeable having a real and effective impact. The term "direct" means: not in an intermediate or a roundabout way. Thus the relation between the act and its effect must be close and immediate. What is meant is support which would benefit military operations themselves and not merely intermediary objectives which themselves would be related to such operations. It is clear that the termination of special protection can occur only in the event that a number of very restrictive conditions are all met at the same time.

    2163 In addition, it should be noted that some dams and dykes are irrigation works in the sense of Article 54 ' (Protection of objects indispensable to the survival of the civilian population), ' paragraph 2; some works have a combined function serving partly for irrigation and partly to generate electricity. Thus an attack on such works is subject to the additional condition imposed by paragraph 3 of Article 54 ' (Protection of objects indispensable to the survival of the civilian population), ' namely, that they are used only for the subsistence of members of the armed forces or otherwise in direct support of military action. Even in these cases it is still prohibited to take action against such objects when such action may be expected to leave so little food or water for the civilian population that it will be reduced to starvation or forced to move away.

    ' Sub-paragraph (b) '

    2164 This sub-paragraph is concerned with nuclear electrical generating stations. If these were bombed, this could affect stocks of radioactive products, or even the core of the installation, and in this way releasing lethal radiation. The condition imposed for the special protection to cease is that such a station produces electricity in regular, significant and direct support of military operations, and that such attack is the only feasible way to terminate such support.

    [p.672] 2165 In general, electricity is conducted to various different types of destinations, civilian or military, which are closely interwoven, particularly as grids are often integrated, thus pooling generating capacity. It would not be reasonable to claim that merely supplying electricity constitutes direct support of military operations in accordance with the definition given above. Moreover, troops on the move use virtually no electricity, or if they do, they generate it themselves. The Rapporteur of Committee III (13) considered that the expression "military operations" could cover factories producing armaments, ammunition and military equipment. (14) We consider this interpretation to be excessive. If it had been the intention to include such supplies, an explicit provision should have been made. However, the Rapporteur added that the expression does not cover the production of civilian objects, even if they are also used by the armed forces.

    2166 It may be added that in the case of nuclear electrical generating stations it is relatively easy to stop electricity reaching its destination by attacking the electricity lines. In this way the desired result is achieved without the risk of releasing dangerous forces.

    ' Sub-paragraph (c) '

    2167 This sub-paragraph deals with military objectives located at or in the vicinity of the works or installations in question. With regard to these, reference should be made to what was said above regarding the second sentence of paragraph 1. The restrictive conditions imposed on the cessation of special protection are the same in this case as sub-paragraph (b).

    Paragraph 3

    2168 It seemed appropriate to specify that in any attack directed against a dam, dyke or nuclear electrical generating station which had ceased to enjoy special protection, all other rules protecting the civilian population must be respected.

    2169 These are mainly the general rules contained in Article 51 ' (Protection of the civilian population) ' and the precautions prescribed in Article 57 ' (Precautions in attack). ' (15) In particular, even if the conditions imposed for special protection to cease are all met, the attacker must always respect the principle of proportionality between losses inflicted and military advantage gained from the destruction of the objective (16)

    [p.673] 2170 In the case of an attack on an objective which has lost special protection, belligerents must take all practical precautions to prevent dangerous forces from being released. On this subject the Rapporteur remarked that given the panoply of weapons available to modern armies, this provision should ensure real protection against the catastrophic release of dangerous forces. (17)

    Paragraph 4

    2171 The prohibition of reprisals against dykes, dams and nuclear electrical generating stations supplements the foregoing provisions harmoniously. The ICRC draft did not go as far as this, but the Conference included a prohibition of reprisals in nearly all the rules in Part IV. In the final meetings some delegations expressed some doubts regarding the advisability of prohibiting all reprisals in this field, but a large majority was in support of such prohibitions. (18) The introduction to Part V, Section II, contains an account of the way the problem of reprisals was dealt with by the Diplomatic Conference. (19)

    Paragraph 5

    2172 This provision is completely new. In 1973 the ICRC restricted itself to presenting the problem without going so far as to submit specific proposals. (20)

    2173 As we see, the Conference surmounted the real difficulties inherent in this problem and adopted a seemingly realistic solution. In fact it does not seem very likely that in time of war security and defence measures should fail to be taken for dykes, dams and nuclear electrical generating stations, if only to protect them against acts of sabotage from whatever source. It may therefore be taken for granted that any works or installation of any importance would at least be assigned a picket guard, and probably the protection of an anti-aircraft battery.

    2174 Two of the amendments submitted to the Conference contained in embryonic form the concept which underlies this paragraph. (21) According to the Rapporteur, the type of weapons authorized for defence were discussed at length in the Working Group. In the end it was decided not to adopt any other limitations than [p.674] those mentioned at the end of the provision, i.e., that they must be weapons capable only of repelling hostile action against the protected works or installations. (22)

    2175 If the works or installations are at a distance from the combat area, it is mainly a matter of defending them against attacks mounted by combatants who have been infiltrated or parachuted, or against attacks by guided missiles or projectiles dropped from aircraft. Thus there will be needed, on the one hand, a military guard equipped with light individual weapons, and on the other hand, anti-aircraft artillery. In the second case such artillery may only be used against aircraft which are out to attack the protected works or installations, but not against aircraft flying over the works or installations on their way to attacking another military objective. It cannot be denied that this could pose serious difficulties of judgment.

    2176 If the works or installations are located within the combat area, the military guard and the anti-aircraft artillery protecting them will of course be part and parcel of the total military system, and it will be difficult to make a clear distinction between military deployments designed to defend the works and installations and other troops fighting in the area. In such circumstances the Parties to the conflict may be induced to take preventive measures, such as emptying reservoirs or closing down nuclear electrical generating stations; they may also envisage the possibility of not defending such works or installations so that these can be occupied by the adversary without destructive attacks which could release dangerous forces.

    Paragraph 6

    2177 The invitation made to Parties to conclude further agreements to ensure the protection of objects containing dangerous forces is undoubtedly very useful. One might think of extending special protection by agreement to objects other than dams, dykes and nuclear electrical generating stations. As we saw above, there are many establishments or installations whose wanton destruction would expose the civilian population to severe losses, such as, for example, fuel storage installations, factories producing toxic products etc. One could also conceive of the neutralization of dams, dykes and nuclear electrical generating stations and the surrounding areas with the supervision of the Protecting Powers or other organizations. Such an agreement could also set out the conditions of implementation of this article.

    2178 However, it should be recalled that concluding agreements in time of war is no easy matter, and it is better to rely on already existing provisions which can be directly applied. Parties to a conflict which have resorted to war do not frequently negotiate with the enemy, even about humanitarian matters. Moreover, hostilities render the procedures slow and uncertain. This was the case on many occasions, particularly during the Second World War. Such agreements are provided for in the Conventions in common Article 6 /6/6/7.

    [p.675]
    Paragraph 7

    2179 In the draft the ICRC had provided that the Parties to the conflict would have the possibility of marking dykes, dams and nuclear electrical generating stations entitled to special protection by means of a sign consisting of two oblique red bands on a white ground. This sign was already prescribed in the Draft agreement relating to safety zones annexed to the fourth Convention. The 1973 draft also provided for the marking of non-defended and neutralized localities. The Conference did not take up these proposals. For non-defended localities and demilitarized zones the way in which they are to be marked should be established by agreement with the adversary. (23) For works and installations entitled to special protection the concept of a special sign was retained and the responsibility for determining what this should be was entrusted to a special Sub-Group of the Working Group. This Sub-Group adopted the following directing principles:

    a) the distinctive sign must be as simple as possible;
    b) it must be of no political or religious relevance whatsoever;
    c) it must not be confused with any other distinctive sign already in use;
    d) it should be visible and distinguishable as such from all directions and from as far away as possible;
    e) the choice of colour should be made according to available technical knowledge, (24) which had led the Sub-Group to choose bright orange.

    2180 Taking into account various proposals the Sub-Group chose a sign consisting of three bright orange circles and drafted paragraph 7 accordingly as well as Article 16 ' (International special sign) ' of the Regulations concerning identification annexed to the Protocol. (25)

    2181 It may be noted that in accordance with paragraph 6 the Parties may agree on another method of marking, or even add other means of identification to the marking prescribed, such as, for example, the transmission of radio or electronic signals.

    2182 Marking is optional; the special protection is therefore due even if the works or installations are not marked. Yet it seems clear that it is in the interests of a Party to the conflict which wishes its dams, dykes or nuclear electrical generating stations to be respected to communicate a list of them with their geographical location to the adversary through the intermediary of the Protecting Powers or organizations replacing them.

    2183 Finally, it should be noted that, subject to certain conditions, Article 85 ' (Repression of breaches of this Protocol), ' paragraph 3(f), of the Protocol condemns the perfidious use of protective emblems as a grave breach.

    ' C.P./J.P. '


    NOTES

    (1) [(1) p.667] A mixture of saltpetre, sulphur, resin and other inflammable materials which had the virtue of adhering to objects and burning them without allowing water to penetrate;

    (2) [(2) p.667] See P. Brickhill, ' Dam Busters ';

    (3) [(3) p.667] See in particular, "Ecological Consequences of the Second Indochina War", ' SIPRI Yearbook, ' 1976, pp. 57-58, and "Weapons of Mass Destruction and the Environment", ibid., 1977, pp. 54-55;

    (4) [(4) p.667] O.R. XIV, p. 161, CDDH /III/SR.19, para. 2;

    (5) [(5) p.667] Article 17 - Installations containing dangerous forces;

    (6) [(6) p.668] "Article 49 - Works and installations containing dangerous forces

    1. It is forbidden to attack or destroy works or installations containing dangerous forces, namely, dams, dykes and nuclear generating stations. These objects shall not be made the object of reprisals.
    2. The Parties to the conflict shall endeavour to avoid locating any military objectives in the immediate vicinity of the objects mentioned in paragraph 1.
    3. In order to facilitate their identification, the Parties to the conflict may mark works and installations containing dangerous forces with a special sign consisting of two oblique red bands on a white ground. Absence of such marking in no way relieves a Party from its obligations under paragraphs 1 and 2 of this article.";

    (7) [(7) p.668] O.R. VI, p. 209, CDDH/SR.42, para. 30;

    (8) [(8) p.668] Cf. O.R. III, p. 225, CDDH/III/59/Rev.1 and p. 224, CDDH/III/76;

    (9) [(9) p.668] O.R. XV, p. 282, CDDH/215/Rev.1, para. 85;

    (10) [(10) p.668] On this subject the Rapporteur of the Working Group expressed himself as follows: "Finally, it should be noted that some representatives requested the inclusion in this article of special protection for oil rigs, petroleum storage facilities, and oil refineries. It was agreed that these were not objects containing dangerous forces within the meaning of this article and that, if these objects are to be given any special protection by the Protocol, it should be done by another article, perhaps by a special article for that purpose. The Rapporteur has agreed to consult further with interested representatives on this question." (O.R. XV, p. 352, CDDH/III/264/Rev.1);

    (11) [(11) p.668] Ibid., p. 449, CDDH/407/Rev.1, para. 12;

    (12) [(12) p.670] Cf. commentary Art. 48, note 13, supra, p. 600;

    (13) [(13) p.672] O.R. XV, p. 283, CDDH/215/Rev.1, para. 91;

    (14) [(14) p.672] The expression "military operations" also occurs in Article 59, para. 2(d). Article 54, para. 3(b) refers to "military action", which appears to be an equivalent term. Article 60, para. 3(d), refers to activity linked to the military effort; this expression seems to have a wider scope;

    (15) [(15) p.672] Cf. commentary Art. 51, supra, p. 613 and commentary Art. 57, infra, p. 677;

    (16) [(16) p.672] On this subject the Rapporteur expressed himself as follows: "In the case of a dam or dyke, for example, where a great many people would be killed and much damage done by its destruction, immunity would exist unless the military reasons for destruction in a particular case were of an extraordinarily vital sort." (O.R. XV, p. 282, CDDH/215/Rev. 1, para. 86);

    (17) [(17) p.673] Ibid., p. 284, para. 92;

    (18) [(18) p.673] O.R. VI, pp. 205 ff., CDDH/SR.42;

    (19) [(19) p.673] Infra, p. 981;

    (20) [(20) p.673] It therefore pointed out that according to some experts, belligerents might be afraid to rely only on the prohibition contained in paragraph I for the protection of their works containing dangerous forces; in order to shield their population from the very serious consequences of attacks launched either by mistake or in violation of that rule, they might, for example, be led to position anti-aircraft guns for the sole purpose of defending the works concerned. In the view of these experts the article should authorize setting up a defence. In the ICRC's view the problem with this lies in the fact that it is not possible to judge objectively what is the intention of the Parties to the conflict, particularly the Party taking such "defensive" measures (' Commentary Drafts ', p. 63);

    (21) [(21) p.673] O.R. III, p. 222, CDDH/III/10 and p. 224, CDDH/III/65;

    (22) [(22) p.674] O.R. XV p. 284, CDDH/215/Rev.1, para. 92;

    (23) [(23) p.675] See commentary Arts. 59, para. 6, infra, p. 705, and 60, para. 5, infra, p. 712. There is nothing to
    prevent the Parties concerned from adopting the sign of red bands on a white ground provided by the Fourth Convention of 1949;

    (24) [(24) p.675] O.R. XV, p. 471, CDDH/407/Rev.1, Annex I, para. 2;

    (25) [(25) p.675] Cf. commentary Annex I, Art. 16, infra, p. 1295;