Introduction to Requirement of Protection: The ‘What, Why, And How?’
“Wanton killing of innocent civilians is terrorism, not a war against terrorism.”
Noam Chomsky, a renowned American linguist and political activist, put forth his views on state terrorism in the aforementioned terms. While the context may not be precisely akin to the discussion that this research project intends to undertake, these words can arguably be employed to describe the gospel of the principles of international humanitarian law [“IHL”] i.e., protection of civilian lives and objects from unprecedented damage and injury.
1. What Are Civilian Objects Under IHL?
“The Customary Rules of IHL” is a list of 161 rules of customary international humanitarian law which have been identified by the ICRC in its study on customary IHL and have been published in Volume I by the Cambridge University Press in 2005.[1] Rule 9 of the aforementioned rules expounds upon civilian objects. Article 52(2) of the Additional Protocol I[2] identifies “civilian objects” as “all objects that are not military objectives”. Notably, no reservations have been made to this article till date.
2. Why Do Civilian Objects And Property Warrant Protection?
IHL, being ‘jus in bellow’ or the law that governs the way in which warfare is conducted, imposes a responsibility upon the parties to abide by the customs and approved methods of war. Among these customs, a special status has been attributed to civilian objects, in furtherance of the intention to protect civilian lives from disproportionate adversities of war.
Among other reasons, the rationale behind protection of civilian objects and property in wartime is that it is illegal to launch an attack the primary purpose of which is to spread terror among the civilian population. The relevance of this rule is described by Yoram Dinstein as follows: “The prohibition is applicable even if the attacker has every reason to believe that such a terror campaign will shatter the morale of the civilian population-so that the enemy’s determination to pursue the armed conflict will be eroded-and the war will be brought to a rapid conclusion (saving, as a result, countless lives on both sides). Therefore, IHL establishes a specific protection for civilian objects and property and forbids attacks, reprisals, or other acts of violence against such objects, in both internal and international conflicts.”[3]
Yet, Dinstein takes note of an important rider in this regard. He writes: “What counts here is not the actual effect of the attack but its purpose or intent: an attack is not forbidden unless terrorizing civilians is its primary aim. Nothing precludes mounting an otherwise lawful attack against combatants and military objectives, even if the net outcome (due to resonating “shock. and awe”) is the collapse of civilian morale and the laying down of arms by the enemy.”
It is pertinent to note that in the view of some academicians, certain objects and property of civilians may not necessarily be accorded blanket protection under IHL, especially in cases of military necessity while balancing the same with principle of proportionality. In other words, the protection is accompanied by a caveat in certain circumstances where the intent of the attack may not be to create terror or particularly harm civilian objects and property but is a backed military strategy which may be inevitable and may also be justified.
[1] ICRC, ‘Customary Rules of International Humanitarian Law’, https://casebook.icrc.org/case-study/icrc-customary-international-humanitarian-law accessed on 3 November 2021.
[2] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (entered into force on 7 December 1978) [“Additional Protocol I”].
[3] Yoram Dinstein, titled ‘Distinction and Erosion of Civilian Protections in International Armed Conflicts,’ which was published in 2008 within the 84th edition of International Law Studies under the theme of International Law and Military Operations.