CAN A CIVILIAN OBJECT THAT HAS LOST ITS PROTECTION AGAINST DI- DI-RECT ATTACK BE DESTROYED FOR IMPERATIVE MILITARY REASONS?
3. Relationship between objects and Parties to the conflict
With these clarifications in mind, we can now look deeper into how IHL regulates the relation-ship between objects and warring parties. In the interest of analytical focus, I wish to enter three disclaimers here.
First, we will not specifically discuss works and installations containing dangerous forces, the natural environment, cultural property, and such equipment and materiel as may be specially protected under IHL.
Second, let us look strictly at objects in relation to opposing parties rather than, for instance, in relation to neutral powers and peacekeeping missions.
Third, let us proceed on the assumption that an international armed conflict is taking place and that Additional Protocol I applies to it.
i. Party to the conflict and its ‘own’ objects
The first relationship of interest to us is that of a Party to the conflict vis-à-vis its ‘own’ ob-jects.
It may appear intuitive to many of us that a Party can ‘destroy’ its own objects but not really
‘attack’ them. After all, ‘attacks’ are by definition acts of violence ‘against the adversary’.
In most cases, such an intuition has a point. Nevertheless, we saw earlier that Article 52(2) of Additional Protocol I does not necessarily require eligible objects to belong to one’s adver-sary. For instance, one’s ‘own’ object may happen to be located in enemy-held territory. Your adversary may also have commandeered one of your objects and use it against you. In such cases, an object, by its ‘location,’ ‘use,’ or both, may very well make an effective contribution to military action, and its destruction, capture or neutralisation, in the circumstances ruling at the time, may very well offer a definite military advantage.
It would therefore make sense to speak of one Party ‘attacking’ its own objects, as long as these objects constitute military objectives at the time and the Party in question is thereby directing violence against its adversary. The legality of such attacks would in turn depend on whether they comply with the precautionary and proportionality principles.
What about one Party ‘destroying’ its own objects? It is clear that Article 23(g) of the Hague Regulations does not apply here. It specifically prohibits the destruction and seizure of enemy property; it says nothing about one’s own property.
It is also apparent that Article 54(2) of Additional Protocol I applies to all relevant objects, including one’s own, wherever they are. Thus, a Party is forbidden to destroy its own objects indispensable to the survival of the civilian population, for the specific purpose of denying the civilian population or its adversary their sustenance value.
We should take careful note of the expression ‘for the specific purpose’ here. Arguably, this article does not prohibit the destruction of the same indispensable objects for some other purposes. The travaux préparatoires indicate:
‘[B]ombarding 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.’
Furthermore, we need to look at Article 54’s paragraphs (3) and (5). As you can see, these paragraphs indicate that this qualified prohibition is subject to two exceptions. One is where the objects are used by the adversary in one of the two ways specified in paragraph (3). Sub-paragraph (a) is said to encompass foodstuffs, agricultural areas producing foodstuffs, crops, livestock and supplies of drinking water; sub-paragraph (b) is understood to cover all of these things, plus drinking water installations and irrigation works.
The other exception is where the objects at issue are located in the Party’s own territory under its own control and where their destruction is required by imperative military necessity. Pro-fessor Dinstein has suggested that the burning of crops in Ukraine by the Red Army in retreat during the early phases of World War II (but not the German retreat from the same territory later) would be a case in point.
This exception under paragraph (5) is unavailable for objects that are not located in one’s own territory under one’s own control.
Positive IHL is silent on the destruction of one’s own objects in other situations. One may recall the Brest-like scenarios of close-quarter combat mentioned earlier. Another illustrative example in this regard would be the demolition of wooden houses in large cities throughout war-time Japan with a view to creating fire containment corridors ahead of Allied strategic bombings.
ii. Party to the conflict and objects that are not its own
The second relationship of interest to us is that between a Party to the conflict and objects that are not its own.
Whether the Party can lawfully attack these objects depends on whether they constitute mili-tary objectives. It would also matter whether the precautionary and proportionality principles are observed.
Where attacking enemy property takes the form of destroying it, Article 23(g) of the Hague Regulations comes into play, at least formally. I have argued elsewhere, however, that a lawful attack would ipso facto mean that the resultant destruction was militarily necessary. Con-versely, an unlawful attack would ipso facto mean that the resultant destruction was militarily unnecessary.
Such is likely to be the situation for the most part, especially in urban warfare. There can nevertheless be instances of property destruction, even during combat, that do not easily fit the definition of ‘attacks’ within the meaning of Article 49(1). Consider, for example, demol-ishing and rearranging enemy property in order to fortify a command post in anticipation of a counter-offensive, or razing structures to the ground with a view to denying enemy cover.
These actions are subject to Article 23(g) of the Hague Regulations and Article 54 of Addi-tional Protocol I. Article 23(g) is generally understood to regulate the conduct of hostilities, but it has occasionally been applied to situations of belligerent occupation. In the Rendulic case, for instance, this article formed the basis on which the German occupying forces were justified in resorting to a scorched earth policy while retreating from northern Norway on account of perceived military necessity. This justification is no longer available, as it is now limited under Article 54(5) of Additional Protocol I to Parties scorching their own territory that they themselves control.
Be that as it may, Article 23(g) principally bans all destructions of enemy property. It then limits lawful exceptions to those imperatively demanded by military necessity. To this already narrow window, Article 54(2) effectively adds an extra layer of restrictions – anxious as it is to prohibit the starvation of civilians as a method of warfare. Thus, it is now forbidden to destroy enemy objects, even if it is militarily necessary to do so, insofar as they are indispensable to the survival of the civilian population for the specified purpose, unless these objects fall under Article 54(3) sub-paragraph (a) or (b).
Conclusion
The relationship between an object and a party to the conflict can be tenuous, especially in the context of urban fighting. This difficulty is not confined to objects, however. On the contrary, IHL approaches other aspects of fighting in built-up areas, such as the treatment of persons, in a similar fashion.
What we face is therefore a common challenge. How effectively can we determine an object’s IHL status and treat it accordingly? How can we do so, amid the highly fluid situation of urban warfare where the information available to us is often incomplete, fragmented, and contradictory?
I will leave these as well as other daunting questions for further discussion over the course of today and tomorrow by my fellow speakers, to whom I defer for the time being.