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52. Another norm of international humanitarian law which can be related to the release of toxic
products is the prohibition of attacks on works and installations containing dangerous forces.
This protection is codified in article 56 of Additional Protocol I and article 15 of Additional
Protocol II55 and State practice shows it to be a binding rule of customary international law.
According to these clauses, even if these installations are military objectives, they cannot be the
object of an attack if it may result in the release of dangerous forces. However, these dispositions
limit this rule to dams, dykes and nuclear power stations, so other types of installations which
can also contain dangerous forces do not benefit from the same level of protection. The authors
of the recent International Committee of the Red Cross (ICRC) study on customary international
humanitarian law mention that other installations containing dangerous forces, such as chemical
plants and petroleum refineries, should benefit from the same considerations because an attack
on this type of object may cause severe damage to the civilian population.56 The Special
Rapporteur agrees with this reading and believes that, although the delegates negotiating the
Additional Protocols could not agree on other types of installations that should be covered by
this rule, logic and the imperative of protection of civilians from the effects of the release of
dangerous products, dictates that this rule should apply equally to all works and installations
containing dangerous forces.
53. The rule prohibiting the destruction of objects indispensable to the survival of the civilian
population is also relevant to the issue of the release of toxic and dangerous products, especially
in regard to the spraying of herbicides, intentionally or incidentally destroying agricultural crops.
Article 54 of Additional Protocol I and article 14 of Additional Protocol II codify this rule which
is also deemed to be of customary nature.57 These provisions give some examples of objects
indispensable to survival, such as foodstuffs, crops, livestock and drinking water installations.
This rule is not limited to destruction; as mentioned by the Commentary on the Additional
Protocols, “the verbs ‘attack’, ‘destroy’, ‘remove’ and ‘render useless’ are used in order to cover
all possibilities, including pollution, by chemical or other agents, of water reservoirs, or
destruction of crops by defoliants”.58
54. It should be noted that violations of the aforementioned rules of international humanitarian
law amount to war crimes. Indeed the Statute of the International Criminal Court, in addition to
violations of the principle of distinction, qualifies as a war crime the act of:
55
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), (8 June 1977).
56
Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian
Law (Cambridge, Cambridge University Press/ICRC, 2005), pp. 141-142.
57
58
Ibid., p. 189.
Yves Sandoz and Bruno Zimmermann, Commentary on the Additional Protocols
(ICRC, 1987), p. 655.
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