Infrastructure attacks and the failure of international laws

One of the distinctive features of modern-day conflicts is indiscriminate attacks on infrastructure, raising serious humanitarian concerns. The ongoing Russia-Ukraine, Israel-Palestine, Israel-Lebanon and Israel/US-Iran conflicts attest to John Abbott’s remarks: “War is the science of destruction.” Why do belligerents attack infrastructure, and how does international law address them?

Attacks on infrastructure could be in three forms: intentional; incidental; and intentional but claimed as incidental. Infrastructure is intentionally attacked for five broad reasons.

First, to severely dent the opponent’s military capacity. Second, to economically punish the adversary and, in turn, cripple its war-waging potential. Third, to disrupt the communications network, making the enemy’s military coordination grim. Fourth, to create panic in the enemy lines, especially among the populace, creating an extra predicament. Fifth, to force the enemy to surrender or drag them to the negotiating table. 

Seen from a conflict standpoint, infrastructure is of three types: military, civilian and ‘dual use’. ‘Military infrastructure’, as outlined in the Additional Protocol I to the Geneva Conventions, 1977, means ‘those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage.’ The International Humanitarian Law (IHL) does not criminalise attacks on full-fledged military infrastructure. 

Civilian infrastructure, as set forth in Article 52(1) of the Additional Protocol I, includes ‘all objects which are not military objectives or military infrastructure’. As per Article 54(2) of Additional Protocol I, ‘It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them their sustenance value to the civilian population or to the adverse party…’ 

A civilian object could be considered a military object under two conditions: one, if the nature, purpose, use and location of the object aid military action; and two, if neutralising such an object gives a definite military advantage to the adversary. Thus, there has to be a “proximate nexus” between the object and the military objective.

The nexus could be at the tactical or strategic levels. The military advantage has to be concrete and immediate and not anticipated or hypothetical. At the same time, even if a particular object is classified as ‘military’, if it is vital for the survival of the general population, it cannot be attacked. Article 52(3) of the Additional Protocol I states, “If an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.”

Even the threat of attacking civilian infrastructure or civilians is unacceptable. This provision, unfortunately, is disregarded by all the combatants of the ongoing wars.

Significantly, IHL offers protection of works and installations containing ‘dangerous forces’ such as dams, dykes and nuclear power plants even if they turn into military objects. The idea is to avoid any cataclysmic effect.

Notably, due to advances in technology and networks, infrastructure is now more integrated than ever before; an attack on one tends to have a domino effect on others. Attacks on the energy infrastructure of Iran by the US/Israel and by Iran on other Gulf countries have a cascading impact on the energy and economic security of numerous countries, apart from the environmental impact due to pollution caused by attacks on oil wells and refineries. 

Under the Statute of the International Criminal Court, intentionally directing attacks against civilian objects  constitutes a war crime.

In fact, the principle of distinction is considered one of the ‘cardinal principles’ of IHL and an ‘intransgressible principle of international customary law’. By prohibiting indiscriminate attacks, the IHL advocates for a careful assessment of  a particular situation as to whether there are sufficient indications to warrant an attack. Countries like Israel assign the task of ‘careful assessment’ to their local commanders, who invariably are not ‘careful’. 

Despite these well-laid-out principles, it is concerning that countries in conflict, especially the powerful ones, violate them brazenly. Arrest warrants issued on Russian and Israeli leaders for attacks on critical infrastructure went unheeded. The issue is, apart from Israel and Iran, major powers like the US, Russia, and China are not part of the Rome Statute of the ICC; they also either have not signed or ratified the Geneva Conventions. It becomes difficult to invoke IHL in that case.

The success of IHL, therefore, lies predominantly on combatants’ volition to follow the principles of proportionality and precaution. The combatants should avoid attacking civilian infrastructure and mingling civilian and military objects, especially during the war. IHL should be made a mandatory part of the training of security forces of all countries.

(Manoharan is a professor and director of the Centre for East Asian Studies, Christ University; Anusha is an advocate practising in Bengaluru)