At the end of May, United Nations Secretary-General António Guterres released his annual report to the Security Council on the protection of civilians (PoC) in armed conflict. As in previous years, the report’s findings – recently debated at a Security Council meeting – reveal the extensive scale of human suffering and destruction across conflicts such as in the Democratic Republic of the Congo, Myanmar, Sudan, the Occupied Palestinian Territories, and Ukraine. The report reiterates long-standing concerns about persistent and widespread violations of international humanitarian law (IHL) and international law more generally. It shows how alarming patterns of civilian harm documented over past decades not only persist but, in some contexts, are intensifying, further widening the gap between the law and the abhorrent realities of civilians affected by armed conflict. This article explores this gap, using current patterns of widespread destruction of civilian infrastructure as a lens for examining trends in the interpretation and application of IHL and the normalization of harm in today’s conflicts.
Beyond the Vanishing Point?
Concerns about the effectiveness of international law, and IHL in particular, are hardly new. They have featured prominently in the Secretary-General’s PoC reports since the agenda’s inception in 1999 and are perhaps as old as the body of law itself. Shortly after the adoption of the U.N. Charter and the 1949 Geneva Conventions in the aftermath of the two World Wars, eminent international lawyer Hersch Lauterpacht wrote that, “if international law is, in some ways, at the vanishing point of law, the law of war [IHL] is, perhaps even more conspicuously, at the vanishing point of international law.”
Today, as the post-war international legal order appears increasingly fragile amid unchecked acts of aggression, multiplying conflicts, and eroding respect for legal constraints, Lauterpacht’s words find particular resonance. Looking at the contemporary conflict landscape, it is difficult not to succumb to skepticism, if not outright cynicism, about IHL’s capacity to rein in unrestrained violence and fulfill its core purpose of preserving humanity in warfare. As Secretary-General Guterres warns in his report, “the architecture built over generations to safeguard civilians and a minimum of humanity in conflict is under attack.”
Beyond the selective application and systematic disregard for fundamental IHL rules, this reality is also marked by a more insidious, albeit no less troubling, development: the instrumentalization of the law itself. IHL’s principles and rules on the conduct of hostilities – including distinction, proportionality, and precaution – are often being interpreted and applied in ways that are divorced from their object and purpose, and at times misappropriated to justify or excuse unlawful conduct. Grave patterns of civilian harm are frequently portrayed as inevitable by-products of warfare, rather than as the result of political and operational choices.
With legal norms and constraints being “disregarded, distorted or abandoned altogether,” are we already beyond the “vanishing point”?
Widespread Destruction of Civilian Infrastructure: Stretching the Limits of IHL
The large-scale destruction of civilian infrastructure has become a recurring and defining feature of contemporary conflicts, and is perhaps one of the clearest manifestations of the widening gap between the law and the realities faced by civilians on the ground. While direct and deliberate attacks against civilians themselves remain largely stigmatized – notwithstanding the ever-growing tolerance for so-called “collateral” civilian casualties – the scale and severity of damage to civilian infrastructure appears increasingly normalized. This is reflected not only in operational practices, but also in legal and political discourse, despite the profound and far-reaching impacts on the civilian population. Damage to or destruction of civilian infrastructure – including hospitals, schools, housing, energy grids, water systems, dams, bridges, ports, airports, financial centers and cultural and religious sites – has significantly disrupted access to essential services, undermined livelihoods and exacerbated the needs of the civilian population across a range of conflicts.
Yet, the resulting scale of suffering and destruction is frequently presented as an unavoidable feature of contemporary conflicts. Aside from exposing patterns of inconsistent application and non-compliance with IHL, this normalization of harm is also illustrative of a concerning trend in how the balance between military and humanitarian considerations enshrined in IHL rules on the conduct of hostilities is interpreted and applied in practice. As an adaptive body of law predicated on such delicate balance, IHL – particularly its principles and rules on the conduct of hostilities – relies on context-specific and often indeterminate standards. While this is partly what allows the law to remain responsive to the evolving realities of armed conflict, it may also make it more susceptible to relativization or misappropriation. Although the inherent indeterminacy of IHL should not be understood as allowing overly permissive interpretations of its core concepts, nor an à la carte, expedient implementation of its rules, it underscores the importance of both legal and policy discourse, including shared normative understandings, in ensuring that IHL can meaningfully protect civilian infrastructure – and the civilians who depend on it – from the devastating effects of armed conflict.
The following section draws on current patterns of harm to civilian infrastructure to examine concerning trends in how IHL is being interpreted and applied in practice, while illustrating the immense human, societal, and developmental costs of failing to consistently uphold the law and preserve its protective function.
Distinction
Despite increasingly dangerous and alarming rhetoric – including explicit calls for direct or indiscriminate attacks against civilian infrastructure in blatant disregard for the principle of distinction – the fundamental premise that only military objectives may be directly targeted in attacks – has long been an undisputed norm under modern IHL. Still, controversies surrounding what qualifies as a legitimate military objective seem far from settled in both legal debates and operational practices, with significant implications for how civilians are protected from the effects of today’s hostilities.
While the determination of what constitutes a military objective is inherently contextual, IHL is clear that an object may only be attacked if it fulfils the cumulative criteria set out in Article 52(2) of Additional Protocol I to the Geneva Conventions, which reflects customary international law: the object must, by its nature, location, purpose or use, make an “effective contribution to military action,” and its destruction, capture, or neutralization must offer a “definite military advantage” in the circumstances ruling at the time. Although this definition allows for a certain degree of interpretive leeway, it is unambiguous in that the two prongs must be satisfied and that both “effective contribution” of the object and the “definite advantage” that is sought through an attack on it must be military in nature. Broad or anticipatory classification of objects are incompatible with this definition.
As conflicts are increasingly fought in urban areas, where civilian infrastructure is often interconnected and intermingled with military objectives and civilians are exposed to heightened risks of harm, upholding both the notion of military objectives and the constraints it imposes becomes even more important for limiting the impacts of hostilities on the civilian population. In practice, however, the definition of military objectives is often interpreted in excessively broad or malleable ways by parties to conflict, sometimes even retroactively, to justify unlawful attacks. While not new, attempts to lower the threshold for determining the lawfulness of a target appear increasingly common, and risk undermining the protective scope of the principle of distinction as it applies to objects. Illustrative of this trend is the tendency to extend the scope of the concept of military objectives to include objects that lack a direct link to military action and/or that offer advantages that are not military, but rather political, economic or even psychological in nature. This is particularly evident in operations justified in punitive or coercive terms, when the resort to the use of force relies on shaky – or even absent – legal grounds, eroding the limits inherent in the concept of military objectives and placing additional pressure on the core distinctions underpinning the law.
A common example is the targeting of so-called war-sustaining objects, typically understood as objects that contribute to an adversary’s overall capacity to wage war, even when the nexus with military operations is far too remote. Reliance on this concept has been used to justify attacks on objects that do not have any direct link to military action, and in circumstances where the anticipated military advantage of an attack is speculative or marginal at best, while the resulting impacts on civilians are typically foreseeable and well-documented. For instance, attacks on industrial, economic or financial infrastructure have sometimes been carried out under the premise that they generate revenue that may be used to finance an adversary’s war effort, rather than because they contribute to military action or offer a military advantage. Such a broadening of the concept of military objectives considerably undermines the protective purpose and scope of the law and creates dangerous precedents that threaten the very structures that characterize and sustain modern societies, making civilians everywhere less safe.
Proportionality and Precautions
Even when civilian infrastructure – or a part thereof – satisfies the criteria necessary to qualify as a military objective, this does not suffice to make an attack on it lawful; considerations regarding proportionality and feasible precautions are key to determine the legality of an attack. This is especially so in the case of “dual-use objects” – objects that serve both civilian and military purposes – or those that are located in close proximity to civilians and civilian infrastructure. Even when they may be lawfully targeted, robust proportionality assessments and stringent precautionary measures are required to avoid, or at least minimize incidental civilian harm, in line with IHL (as I have previously written). Moreover, certain objects – such as hospitals and other medical facilities and transports, objects indispensable to the survival of the civilian population, and cultural property – benefit from special protection and may require the application of even more restrictive rules for an attack to be considered lawful. Recent conflicts provide ample evidence of the devastating humanitarian consequences of relaxing or failing to uphold these requirements, including through the relativization or misappropriation of fundamental IHL concepts and rules. For instance, the notion of dual-use objects is frequently invoked as a form of carte blanche to justify attacks against objects that are essential for the survival and well-being of the civilian population, often with little to no regard for legal constraints. Proportionality assessments seem frequently undertaken in ways that considerably stretch the notion of military advantage, while de-emphasizing or overlooking incidental civilian harm, including the reasonably foreseeable reverberating effects that often stem from the destruction of civilian infrastructure. At the same time, insufficient or inadequate precautions, including failures to verify and confirm the nature of targets, or inappropriate choices of means and methods of warfare, repeatedly lead to the misidentification of objects as well as to indiscriminate or disproportionate attacks that result in extensive – and all too often avoidable – civilian harm and suffering.
“Short-term Thinking with Long-Term Consequences”
The tendency to adopt an expansive view of fundamental legal concepts and rules, or lower the standards of care in their application in order to overcome practical operational challenges (or even to compensate for the absence of clear strategic aims) is hardly new. Many of the arguments used to justify current levels of harm to civilian infrastructure bear a troubling resemblance to those used to justify strategic bombing campaigns during World War II, which were characterized by practices which “epitomized the notion of indiscriminate warfare” that modern IHL was expressly developed to prevent. Similar arguments have also been invoked in later conflicts to justify attacks on civilian infrastructure that inflicted severe and long-lasting harm on the civilian population with dubious military or strategic utility. In fact, as both historical and recent experience suggests, beyond raising significant legal concerns, indiscriminate or disproportionate attacks affecting civilian infrastructure rarely succeed in overcoming an adversary’s opposition, instead contributing to hardening resistance as well as popular support for adversarial forces.
Irrespective of legality, the widespread destruction of civilian infrastructure is often strategically counterproductive. Certain attacks may offer short-term tactical or operational gains during a campaign, but these typically reflect narrow and short-sighted understandings of “military advantage” that rarely translate into long-term strategic benefits and risk both expanding and prolonging conflicts.
Extensive evidence demonstrates that the destruction of civilian infrastructure – particularly of objects indispensable for the survival of the civilian population – tends to reinforce cycles of instability and undermine prospects for post-conflict governance and recovery. During hostilities, particularly in contexts of asymmetric urban warfare, damaged civilian infrastructure is often exploited by adversaries for tactical advantages, including through the use of rubble and damaged buildings to prepare ambushes or to conceal fighters, weapons and other military equipment, ultimately contributing to their further entrenchment within dense urban areas. Following active hostilities, the numerous challenges in addressing extensive damage to civilian infrastructure and rehabilitating essential services, coupled with poor or inadequate reconstruction planning, can severely compromise stabilization efforts, reinforcing the conditions conducive to conflict relapse. Patterns of civilian harm resulting from the destruction of civilian infrastructure, including loss of access to essential services and livelihoods, can compromise food security, lead to the outbreak of diseases and public health crises and trigger large-scale displacement. These impacts can hinder the return of displaced populations, while contributing to socio-economic marginalization and fuelling radicalization. Moreover, rebuilding civilian infrastructure and restoring access to essential services, especially in protracted conflicts, is a particularly challenging and costly endeavour that often diverts scarce human and financial resources away from development priorities, in addition to reversing decades of hard-won progress. In today’s increasingly interconnected global economy, the consequences of attacks on civilian infrastructure rarely remain confined to national borders and typically spill over across countries and regions, disrupting global supply chains and sparking food and energy crises well beyond conflict areas. Ultimately, even if the distortion of IHL concepts or flexibilization of legal requirements may appear at first glance as an expedient way of achieving certain tactical or operational objectives, or where certain practices can be construed as legally compliant, such approaches frequently fail to account for wider ramifications that are central to the outcomes of contemporary conflicts as well as to any prospects for lasting peace and stability.
Preserving and Reinforcing IHL’s Protective Purpose
If IHL cannot prevent the scale of devastation seen in today’s conflicts – or worse still, if it is used to cloak them under a pretense of legitimacy – one might reasonably ask what purpose the law serves. Confronted with the extent of human suffering and destruction that characterize today’s conflicts, alongside patterns of behavior and discourse that reflect not only neglect but also flagrant disregard or even contempt for legal norms and constraints, it is difficult not to wonder whether we may have already moved beyond the “vanishing point” that Lauterpacht alluded to, and to question IHL’s ability to serve its fundamental purpose of restraining harmful behavior and preserving a measure of humanity in warfare.
Yet yielding to such conclusions would be both premature and profoundly dangerous. While safeguarding civilians and civilian infrastructure in today’s conflicts undoubtedly presents a range of challenges, the response cannot be to lower the standards of protection, nor interpret and apply IHL in a way that undermines its protective value. The costs – human, societal, or developmental – are simply too high.
Rather than abandoning or distorting the rules in attempts to legitimize harmful – and often unlawful – conduct, States and parties to conflict should focus their efforts on reinforcing existing norms and standards, including through the adoption of practical measures that facilitate and strengthen compliance with the law. Beyond the well-documented patterns of widespread harm to civilians and civilian infrastructure, there is a robust and growing body of knowledge, tools, and good practices aimed at preventing and mitigating such harm. A number of initiatives contribute to these efforts, helping to counter overly permissive interpretations of IHL rules while supporting their effective operationalization. These include the Global Initiative to Galvanize Political Commitment to IHL, as well as the Political Declaration on Explosive Weapons in Populated Areas (EWIPA), which while not legally binding, do advance norms and standards that promote a good-faith interpretation and implementation of IHL, while fostering collaboration and exchanges of good practices. Doing so is crucial to uphold IHL’s protective purpose and prevent it from becoming a “justification for violence rather than a shield for humanity.”
Reflecting on Lauterpacht’s observation, Geoffrey Best, an eminent IHL historian, provides perhaps the best reminder of what is at stake: “If the failure to moderate war marks the vanishing-point of IHL, the persistence of immoderate war could mark the vanishing-point of civilization.” As the UN Secretary-General recalls in this year’s PoC report, it was precisely the rejection of this prospect that inspired the post-war international legal order, and that should continue to serve as a guiding compass in navigating the challenges of contemporary conflicts.
History offers not only cautionary lessons, but also some measure of reassurance: it is often in its hardest moments that international law has proven to be its “most generative.” Making good on such potential, however, will require States to step up their efforts to reverse the current tide of violations and reinforce the law’s protective purpose in both discourse and practice. The incentives for doing so could not be clearer or more pressing. Disregard for the law – and the principles of humanity that underpin it – can only ever yield a pyrrhic victory, while exacting a profound moral, strategic, and ultimately civilizational cost.
