Objects indispensable to the survival of the civilian population

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Definition[edit | edit source]

Objects indispensable to the survival of the civilian population
Besides constituting civilian objects, objects indispensable to the survival of the civilian population enjoy a special protection under IHL applicable in both international and non-international armed conflicts (IACs and NIACs, respectively).[1] As a corollary of the prohibition of starvation of the civilian population as a method of warfare,[2] the rule prohibits to attack, destroy, remove, and render useless objects indispensable to the survival of the civilian population. This rule is considered to reflect customary IHL.[3] This protection has also been affirmed in the national positions of several States including Costa Rica,[4] the Czech Republic,[5] France,[6] and Norway.[7]

These specially protected objects include, although are not limited to, foodstuffs, agricultural areas for their production, crops, livestock, drinking water installations and supplies, and irrigation works. The enumeration provided by the IHL rules is merely illustrative and should be interpreted in the wider sense to cover the means of existence of the populations,[8] including both objects of sustenance and those contributing to their production.[9]

The prohibition covers a broader range of operations which are designed or can be expected to disable or render these objects useless, irrespective of them qualifying as attacks and beyond their destruction.[10] As interpreted by the ICRC, it covers all possibilities, including the pollution of water reservoirs by chemical or other agents and the destruction of crops by defoliants, in offence or defense.[11]

Additional Protocol I applicable to IACs refers to the purpose of denying these objects of their sustenance value regardless of the motive, i.e., whether to starve the civilian population or to cause their movement. It is controversial whether the same interpretation applies to NIACs, since part of the doctrine has argued that Additional Protocol II prohibits the abovementioned acts only when undertaken with the purpose of starvation of civilian population.[12]

IHL applicable to IACs provides for two exceptions to the rule: (i) in case the sustenance is solely for members of the adversary forces; or (ii) when they are used in direct support of military action, provided that the actions shall not in any event be expected to cause starvation or force the movement of the civilian population. It is doubtful, however, whether these exceptions also apply to non-international armed conflicts, since they are not provided under Additional Protocol II and there is no practice supporting it under Customary IHL.[13] Some stakeholders have in any case urged States parties to IACs to refrain from carrying harmful acts under any circumstances, even if the conditions of the exceptions are met.[14] In any case, the obligations of proportionality and precautions must be fully respected even if the operation falls within the exceptions.

The prohibition also applies when the attack against such objects or their destruction, removal or rendering useless is done by means of cyber operations.[15] It has been claimed that although the Internet cannot be considered such an object, cyber infrastructure indispensable to its function and operation, could also qualify within the specially protected objects.[16] This rule extends beyond the notion of cyber “attacks” and applies to any cyber operation designed to deny the sustenance value to objects indispensable to the survival of the civilian population.[17] The protection of these objects must be understood as extending to deleting or otherwise tampering with data needed for their functioning, in a manner that renders useless objects indispensable to the survival of the civilian population.[18] Thus, within this framework whether data constitutes an object or not is immaterial.[19]

Publicly available national positions that address this issue include: National position of Costa Rica (2023) (2023), National position of the Czech Republic (2024) (2024), National position of France (2019) (2019), National position of Norway (2021) (2021).

National positions[edit | edit source]

Costa Rica (2023)[edit | edit source]

"61. Under IHL, it is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the population, including when using cyber operations. The protection under this rule extends to the ICT equipment and the data needed to operate such objects. Thus, for example, a cyber operation against food production systems, drinking water installations, or wastewater management systems would be a violation of IHL even if it did not reach the threshold of attack under IHL."[20]

Czech Republic (2024)[edit | edit source]

"43. It is prohibited to make objects indispensable for the survival of the civilian population the object of attack, including through cyber means. It is likewise prohibited to destroy, remove or render them useless by cyber means. Parties to an armed conflict must not disrupt the functioning of such objects, including through cyber means. All feasible measures must be taken to facilitate thier functioning and prevent harm to these objects, including by cyber operations."[21]

France (2019)[edit | edit source]

"In order to ensure application of the rules governing the conduct of hostilities (distinction, proportionality and precaution, prohibition of superfluous injury and unnecessary suffering), a specific digital targeting process is used for cyberoperations, under the responsibility of the commander-in-chief of the armed forces, with the input, inter alia, of operational staff and specialist operational legal advisers. It cannot be ruled out that a serious breach of these principles arising from a cyberoperation could constitute a war crime within the meaning of the Rome Statute.

The principle of distinction

Under the principle of distinction, the parties to an armed conflict must at all times distinguish between the civilian population and combatants, and between civilian objects and military objectives. In this regard, cyber-attacks carried out in an armed conflict situation which are not directed against a specific military objective or whose effects cannot be contained are prohibited. If there is doubt as to whether an individual is a combatant, he or she must be considered a civilian61. Likewise, an object normally used for civilian purposes is presumed not to be used to make an effective contribution to military action. On this point France does not follow the Tallinn Manual, which considers that if there is doubt over the use of a civilian object for military purposes, a determination as to such use should be made only following a careful assessment.

From this standpoint and under the authority of the commander-in-chief of the armed forces, offensive cyber warfare operations are planned and coordinated taking all measures possible in practice to ensure that the targeted objectives are not civilians or civilian objects. Commanders are thus careful to gather the necessary intelligence to identify the objective and choose the most suitable means in order to apply the principle of distinction. Even if cyber weapons can have immediate effects, their integration into the operational manoeuvre is based on often long and specific planning designed to gather the information necessary to identify the nature of the targeted system (such as a map of the enemy network) in order to ensure compliance with IHL. A cyberoperation will be cancelled if the target under consideration proves not to be a military objective.

The distinction between military objectives and civilian objects.

In cyberspace, ICT equipment or systems and the data, processes or flows which constitute a service may be a military objective if (i) they contribute to military action by their nature (armed forces computer workstations, military command, localisation or surveillance networks, etc.), their location (places from which the cyber-attacks are carried out), their purpose (foreseeable use of ICT networks for military purposes) or their use (use of part of the network for military purposes), and (ii) their total or partial destruction, capture or neutralisation confers a definite military advantage. Under these circumstances, a propaganda centre may be a lawful military objective and the target of a cyberattack if it disseminates instructions linked to the conduct of hostilities.

Conversely, all objects which are not military objectives are deemed to be civilian objects. An attack carried out in cyberspace may not be directed against ICT systems used by schools, medical institutions or any other exclusively civilian service, or against systems whose destruction would only entail tangible effects on civilian objects, unless those objects are used for military purposes. Given the current state of digital dependence, content data (such as civilian, bank or medical data, etc.) are protected under the principle of distinction.

Cyberoperations must also take into account the special protection of certain objects, such as medical units, cultural property, the natural environment, objects indispensable to the survival of the civilian population and installations that contain dangerous forces. This protection extends to ICT equipment and services and to the data needed to operate them, such as medical data linked to the operation of a hospital.

ICT infrastructure or a system used for both civilian and military purposes may, after detailed analysis on a case-by-case basis, be deemed a military objective. They may be targeted provided that the principles of proportionality and precaution are respected. Given the hyperconnectivity of systems, commanders exercise vigilance over the action as a whole in order to avoid effects on civilians and civilian objects, or at least keep them to a minimum, in compliance with the principles of precaution and proportionality."[22]

Norway (2021)[edit | edit source]

Key message
International humanitarian law applies to cyber operations in connection with an armed conflict.

"International humanitarian law (IHL) applies in the event of an armed conflict. Whether an (international or non-international) armed conflict exists will depend on the specific circumstances.

This specialised regime of international law, also called jus in bello, governs actions, including cyber operations, when they are conducted in connection with an armed conflict.

International humanitarian law aims to minimise the human suffering caused by armed conflict. It thus regulates and limits cyber operations during armed conflicts, just as it regulates and limits the use of any other weapons, means and methods of warfare in an armed conflict.

IHL does not legitimise the use of force in cyberspace. Any use of force by States – either by digital or by conventional means – remains governed by the Charter of the United Nations and the relevant rules of customary international law, also called jus ad bellum. Of particular relevance is the prohibition against the use of force. International disputes must be settled by peaceful means, in cyberspace as in all other domains.

[...]

Under IHL, medical services must be protected and respected, including when carrying out cyber operations during armed conflict. IHL also prohibits attacking, destroying, removing or rendering useless objects indispensable to the survival of the population, including through cyber means and methods of warfare. ‘Objects indispensable to the survival of the civilian population’ include ICT infrastructure for food production or drinking water installations."[23]

Appendixes[edit | edit source]

See also[edit | edit source]

Notes and references[edit | edit source]

  1. ↑ AP I, Art. 54; AP II, Art 14. See also UNSC, Res. 2573 (2021) S/RES/2573 (27 April 2021).
  2. ↑ AP I, Art. 54; AP II, Art 14. See also ICRC CIHL Study, Rule 53. The Rome Statute of the ICC criminalizes “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival” as a war crime in IACs under Article 8(2)(b)(xxv) and NIACs under Article 8(2)(e)(xix) as amended in 2020. See also the prohibition of starvation as a method or warfare in the cyber realm, Tallinn Manual 2.0, Rule 107.
  3. ↑ See also ICRC CIHL Study, Rule 54. See also Tallinn Manual 2.0, Rule 141, Commentary, para. 1.
  4. ↑ Ministry of Foreign Affairs of Costa Rica, “Costa Rica's Position on the Application of International Law in Cyberspace” (21 July 2023) 17: “61. Under IHL, it is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the population, including when using cyber operations. The protection under this rule extends to the ICT equipment and the data needed to operate such objects. Thus, for example, a cyber operation against food production systems, drinking water installations, or wastewater management systems would be a violation of IHL even if it did not reach the threshold of attack under IHL.”
  5. ↑ Czech Republic, “Position paper on the application of international law in cyberspace” (February 2024) 12: “43. It is prohibited to make objects indispensable for the survival of the civilian population the object of attack, including through cyber means. It is likewise prohibited to destroy, remove or render them useless by cyber means. Parties to an armed conflict must not disrupt the functioning of such objects, including through cyber means. All feasible measures must be taken to facilitate their functioning and prevent harm to these objects, including by cyber operations.”
  6. ↑ Ministry of Defense of France, “International Law Applied to Operations in Cyberspace” (9 September 2019) 15: “Cyberoperations must also take into account the special protection of certain objects, such as medical units, cultural property, the natural environment, objects indispensable to the survival of the civilian population and installations that contain dangerous forces. This protection extends to ICT equipment and services and to the data needed to operate them, such as medical data linked to the operation of a hospital.”
  7. ↑ Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021), 75: “IHL also prohibits attacking, destroying, removing or rendering useless objects indispensable to the survival of the population, including through cyber means and methods of warfare. ‘Objects indispensable to the survival of the civilian population’ include ICT infrastructure for food production or drinking water installations.”
  8. ↑ See Yves Sandoz, Christophe Swinarski and Bruno Zimmerman, Commentary to Additional Protocols (ICRC 1987) 655, paras. 2102-3 and 1458, para. 4802-3.
  9. ↑ Geneva Water Hub, The Geneva List of Principles on the Protection of Water Infrastructure, Geneva (2019) 50, citing the Official Records of the Diplomatic Conference (Geneva, 1974-1977), Vol. XV, CDDH/III/264/Rev.1, 349. As has been affirmed, “[i]t extends to pieces of energy infrastructure critical to the effective operation of other indispensable objects” (See  Eirini Giorgou and Abby Zeith, “When the lights go out: the protection of energy infrastructure in armed conflict” (Humanitarian Law & Policy, 20 April 2023))
  10. ↑ Laurent Gisel, Tilman Rodenhäuser and Knut Dörmann, “Twenty years on: International humanitarian law and the protection of civilians against the effects of cyber operations during armed conflicts”, (2022) 102 (913) International Review of the Red Cross, 287–334, 327-8; Kubo Mačák and Laurent Gisel, “The Legal Constraints of Cyber Operations in Armed Conflicts”, in Rajeswari Pillai Rajagopalan (ed) Future Warfare and Technology: Issues and Strategies (ORF and Global Policy Journal 2022) 147. See for example the analysis with regards to ransomware in Jeffrey Biller, “The Strategic Use of Ransomware Operations as a Method of Warfare”, (2023) 100 International Law Studies.
  11. ↑ Yves Sandoz, Christophe Swinarski and Bruno Zimmerman, Commentary to Additional Protocols (ICRC 1987), 655, para. 2101.
  12. ↑ Tallinn Manual 2.0, Rule 141, Commentary, para. 2.
  13. ↑ ICRC CIHL Study, Commentary to Rule 54.
  14. ↑ See Geneva Water Hub, The Geneva List of Principles on the Protection of Water Infrastructure, Geneva (2019) 52.
  15. ↑ See Tallinn Manual 2.0, Rule 141; Geneva Water Hub, The Geneva List of Principles on the Protection of Water Infrastructure. Annex: Principle: Cyber operations, Geneva (November 2021).
  16. ↑ Tallinn Manual 2.0, Rule 141, Commentary, para. 5. See in this regard, the national positions of Costa Rica, France, and Norway. See also Sergio Caltagirone, “Industrial cyber attacks: a humanitarian crisis in the making” (Humanitarian Law & Policy, 3 December 2019), specific assessment done by Kubo Mačák.
  17. ↑ Tallinn Manual 2.0, Rule 141, Commentary, para. 6; Marco Roscini, Cyber Operations and the Use of Force in International Law (Oxford University Press 2014) 231.
  18. ↑ Laurent Gisel, Tilman Rodenhäuser and Knut Dörmann, “Twenty years on: International humanitarian law and the protection of civilians against the effects of cyber operations during armed conflicts”, (2022) 102(913) International Review of the Red Cross, 287–334, 317; Kubo Mačák and Laurent Gisel, “The Legal Constraints of Cyber Operations in Armed Conflicts”, in Rajeswari Pillai Rajagopalan (ed.) Future Warfare and Technology: Issues and Strategies (ORF and Global Policy Journal 2022) 149.
  19. ↑ Michael N. Schmitt, “The Notion of ‘Objects’ During Cyber Operations: A Riposte in Defence of Interpretive and Applicative Precision” (2015) 48 Israel Law Review 81, 107.
  20. ↑ Ministry of Foreign Affairs of Costa Rica, "Costa Rica's Position on the Application of International Law in Cyberspace" (21 July 2023) 17 (footnotes omitted).
  21. ↑ Ministry of Foreign Affairs of the Czech Republic, "Czech Republic - Position paper on the application of international law in cyberspace" (27 February 2024) 12 (footnotes omitted).
  22. ↑ Ministry of Defense of France, International Law Applied to Operations in Cyberspace, 9 September 2019, 14-15.
  23. ↑ Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136, August 2021, 74-75.

Bibliography and further reading[edit | edit source]

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