Introduction
The international armed conflict (IAC) between Ukraine and the Russian Federation has shown that full-fledged war between sovereign neighbours has not disappeared. Whilst over recent decades the focus of many European States has been on peace operations abroad, this renewed threat on the European continent has caused them to refocus on their own national defence. With the resurgence of full-blown IACs, many “classical” elements of IAC have returned, such as trench warfare. At the same time, the nature of warfare has also strongly evolved. Hybrid threats, grey zonesFootnote 1 and new technologies have not only complexified war but are also increasingly placing civilians at the core of it. In order to account for both the scale of the threats and their amplified complexity, States are increasingly looking at total defence strategies – i.e., strategies that emphasize a whole-of-society approach, integrating both civilian and military capabilities, in order to adequately prepare for current threats.Footnote 2 Total defence is intrinsically linked to the issue of large-scale conflict as it is seen both as a way to prepare for total war and as a way to avoid it.Footnote 3 The concept of “total war” has been used in different ways, including to describe unrestrained ways of waging war, and is hence not completely uncontroversial as a notion.Footnote 4 For the purposes of this article, the term “total war” is used to factually describe large-scale conflicts of a particularly high intensity, in which high amounts of resources, which may include civilians and civilian objects, are needed to counter the enemy.Footnote 5
Whilst civilians and civilian objects may play an important role in national defence, such involvement can blur their status and increase their exposure to harm.Footnote 6 These new realities make the application of international humanitarian law (IHL) even more essential.Footnote 7 This paper attempts to lay out what States need to do, in terms of IHL compliance, in order to adequately prepare for the adoption and implementation of total defence-type strategies. It is clear that some of these measures need to be enacted already in peacetime to ensure that the necessary frameworks, structures and processes are in place prior to a large-scale conflict unfolding.Footnote 8
Whereas there is a growing body of legal literature on the involvement of civilians in new forms of warfare and what this may entail in terms of their protection,Footnote 9 there is still little scholarship explicitly linking this debate to the risks of harm to civilians and civilian infrastructure associated with total defence strategies as such. This paper aims to contribute to creating awareness of the risks associated with such total defence strategies in terms of IHL compliance and to formulate recommendations on how these risks could be mitigated. In addition, whilst there are also other important legal questions to be raised – for example, with regard to accountability in such contextsFootnote 10 – this paper focuses on the obligations that States need to take into account when developing total defence strategies in order to limit the risks to civilians and civilian objects involved in such strategies. It is based on the premise that preparedness should go hand in hand with legal readiness.Footnote 11
This paper will first map out the potential consequences of total defence strategies on the entanglement between the civilian population and the armed forces, and show how this may impact compliance with “passive” precautions obligations. It will then assess to what extent this entanglement resulting from total defence strategies may further challenge the notions of dual-use objects and direct participation in hostilities (DPH). Finally, it will argue that important steps need to be undertaken in terms of awareness and dissemination of knowledge. Civilians involved in total defence strategies must understand the risks associated with such strategies and the protections they are entitled to.Footnote 12 This part of the paper will also include an assessment of how the obligation to disseminate IHL may account for total defence strategies.
In order to move away from a purely theoretical assessment of the question, various examples will be used throughout the paper to more concretely illustrate the dilemmas that may arise in practice. In the absence of a single and common view on what total defence strategies entail,Footnote 13 an attempt will be made to find an indication of how civilians and/or civilian objects are generally engaged within the framework of such strategies. In the author’s opinion, the context of logistics/transportation provides for a good example of such activities. First, logistics are generally considered “the backbone of a military’s power” and as crucial in “support[ing] the full spectrum of military operations”.Footnote 14 Second, as has been pointed out by Stewart, militaries strongly depend “on civilian goods and their supply chains including methods of transport and logistics infrastructure such as roads, bridges, ports and airports”.Footnote 15 The importance of logistics in military operations, including in support of defence operations, combined with the need to rely on civilians and/or civilian infrastructure for such operations, makes this an area in which the risk of exposure of civilians and civilian infrastructure to danger in total defence scenarios is potentially high.
Total defence strategies and “passive precautions”
Whilst there is an overall trend towards “civilianization” of armed conflict,Footnote 16 the potential effects of total defence strategies on the entanglement between what is military and what is civilian have not yet been duly researched. This is even more remarkable given that the impact on civilians and civilian objects of such strategies is potentially high. Preparedness for total war scenarios entails enhancing readiness for conflicts of a higher intensity and scale, including on a State’s own territory.Footnote 17 The consequences for the civilian population of total war have the potential to be widespread and extremely disruptive, ranging from a high number of casualties to severe restrictions regarding access to essential services.Footnote 18
A question arises concerning which measures States can and should take to mitigate those potential consequences, especially when, at the same time, some of this critical infrastructure is needed to support the war effort. Of particular relevance here is Article 58 of the 1977 Additional Protocol I to the 1949 Geneva Conventions (AP I) regulating “precautions against the effects of attacks”, also referred to as “passive precautions”, which determines the obligations of the defendant State with respect to the protection of civilians and civilian objects.Footnote 19 It holds the following:
The Parties to the conflict shall, to the maximum extent feasible:
(a) without prejudice to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives;
(b) avoid locating military objectives within or near densely populated areas;
(c) take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.
As this paper is focused on preparedness, and hence measures that need to be taken in preparation for war, it is important to emphasize that Article 58 of AP I has been generally held to also encompass peacetime obligations even if the text of the article itself refers specifically to “the parties to the conflict”, creating the impression that a conflict is required for the obligation to kick in. The International Committee of the Red Cross (ICRC) Commentary to Article 58 indeed confirms that
States have subscribed here to a triple duty to act, which must imperatively be translated into instructions to be given, and first of all into measures to be taken already in peacetime, even though strictly speaking, the Article is only addressed to Parties to a conflict.Footnote 20
As Jensen specifies, the word “precautions” “implies actions taken in advance of potential armed conflict, not just in reaction to it”.Footnote 21 Article 58 would lose much of its effectiveness if measures were only taken after the beginning of an armed conflict.Footnote 22
Whilst all three components of the obligation are relevant, the one set out in Article 58(c) is of particular importance given that it provides for the broadest obligation out of the three. The reference to “military operations” in this paragraph, rather than to “attacks”, means that a broad range of activities are to be covered by this obligation.Footnote 23 Indeed, according to the ICRC Commentary on AP I, the wording “military operations” encompasses “all movements and acts related to hostilities that are undertaken by armed forces”.Footnote 24 This means that Article 58(c) encompasses an obligation for States to take, to the maximum extent feasible, all other precautionary measures to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from a comprehensive range of movements and acts related to hostilities that are undertaken by armed forces. Relevant for the research at hand is that it would also encompass military mobility operations (i.e., operations ensuring movement of military personnel, material and assets); hence, there is an obligation for States to take all precautionary measures to protect civilians and civilian infrastructure from the effects of such mobility operations during wartime. What would this precisely entail when civilians and civilian infrastructure are at the same time crucial for carrying out such operations?
It is first of all important to point out that the fact that States are under an obligation to minimize, to the maximum extent feasible, harm to civilians under their control in accordance with Article 58(c) of AP I does not mean that civilians can never be involved in the war effort. Indeed, whilst it is clear that involving civilians in the war effort may increase the risks that they face, and hence may generate some tension with regard to the passive precautions principle, the majority of legal scholars do not seem to argue that there is ground for such involvement to be categorically banned or that involving civilians would in essence be incompatible with the obligation of distinction.Footnote 25 This also extends to their involvement more specifically in defence strategies. During the negotiations of Article 58, several delegations specified that the obligation contained therein “should in no way affect the freedom of a State Party to the Protocol to organize its national defence to the best of its ability and in the most effective way”.Footnote 26 Some States even made explicit reservations further emphasizing this point: Austria and Switzerland, for example, indicated that because of the term “to the maximum extent feasible”, paragraphs (a) and (b) are to be applied subject to requirements for the defence of the national territory.Footnote 27 These specifications and reservations show that it is unlikely that States would accept a legal interpretation of the passive precautions principle on the basis of which their right to involve civilians in their national defence would be impeded.Footnote 28 A similar point could also be made regarding the involvement of civilian objects.
Having established that engaging civilians (and/or civilian objects) in defence efforts does not as such seem to be prohibited under Article 58 of AP I, the question remains as to what kinds of precautionary measures States should be taking when involving civilians (and/or civilian objects) in such strategies. In attempting to answer this question, an important caveat needs to be made: the use of the qualifier “to the maximum extent feasible”, applicable to all three obligations under Article 58, does limit the obligations to what is “feasible”.Footnote 29 According to the ICRC Customary Law Study,
[t]he obligation to take precautions against the effects of attacks “to the extent feasible” has been interpreted by many States as meaning that the obligation is limited to those precautions which are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.Footnote 30
The application of Article 58 thus remains a careful balance between keeping the obligations realistic but at the same time making sure they do not lose too much of their binding character.Footnote 31 This is especially challenging in densely populated areas.Footnote 32 The question of passive precautions in densely populated areas is all the more important given that, as has rightly been pointed out by Lattimer, “[c]ivilian harm is less a function of the scale of military operations than of their proximity to the civilian population”.Footnote 33
The exact extent of the precautionary measures that a State which expects that it will need to defend itself needs to take in order to mitigate the effects on civilians and civilian objects hence remains unclear. The fact that this obligation is in need of further specification was already pointed out by the ICRC in 2003,Footnote 34 and was again re-emphasized by the Global Initiative to Galvanize Political Commitment to International Humanitarian Law (Global IHL Initiative) in 2025.Footnote 35 The mere fact that such an obligation exists, however, does mean that mitigating measures need to be implemented when developing total defence-type strategies which may involve civilians and/or civilian objects. And whilst, as was mentioned above, the passive precautions obligation may not prohibit involvement of civilians as such, it may require that States prioritize, to the extent possible, those forms of involvement that minimize the risks to civilians and/or civilian objects.
Dual-use objects and direct participation in hostilities in total defence scenarios
After having established that States need to do everything feasible to protect civilians and civilian objects from the dangers arising from military operations, “[c]larity is [more generally] needed on the different forms of civilian involvement during armed conflict that may put civilians and civilian objects at risk of losing their protection against attack”.Footnote 36 As the 2024 ICRC report on International Humanitarian Law and the Challenges of Contemporary Armed Conflicts recalled, “IHL is built on the cardinal principle of distinction between who or what is civilian, and who or what is military”.Footnote 37 However, it is precisely the question of who or what is civilian, and who or what is military, that becomes increasingly difficult to answer in contemporary contexts, including those in which a State resorts to total defence strategies.
In order to be adequately prepared for the large-scale conflicts highlighted above and the related total defence strategies in which civilians and/or civilian objects may play an important role, two questions are worth highlighting in this part of the research. First, do extra precautions need to be taken when dealing with dual-use objects? And second, to what extent can and should the notion of DPH inform the types of tasks to which civilians will be asked to contribute in total defence strategies? Given that many questions still exist regarding the application of these notions in practice, they would also more generally benefit from further reflection and clarity.
Total defence strategies and so-called dual-use objects: A threat to critical civilian infrastructure
Infrastructure is a crucial lifeline for civilian populations in armed conflict and hence so is the protection of critical infrastructure.Footnote 38 Important parts of critical infrastructure can however be qualified as “dual-use” – i.e., objects simultaneously used for civilian and military purposes.Footnote 39 Dual-use objects are not a legal category as such, but the term is used to factually describe objects that “are believed to have both military and civilian use”.Footnote 40 IHL knows only military objectives that can be lawfully attacked, and civilian objects that need to be protected against direct attack at all times (unless and for such time as they qualify as military objectives).Footnote 41 As Capone so rightly points out, “[t]he idea [of dual-use objects] itself is confusing as it brings together the two elements that the principle of distinction, i.e. one of the cornerstones of IHL, strives to keep separate”.Footnote 42 For this reason, some have advocated labelling such objects as “civilian objects used for military purposes” instead, in order to avoid any confusion and to emphasize their primary civilian nature.Footnote 43
As has already been highlighted above, some objects are dual-use almost by nature because they serve (or have the capacity to serve) both civilian and military purposes. This is the case, for example, with transportation infrastructure.Footnote 44 If we revert back to our military mobility example introduced earlier, the means used to transport military matériel, be it roads or railway infrastructure, can hence be qualified as dual-use almost by nature. Whilst it is clear that, in the prevailing view, objects which do not have a direct connection to a warfighting capability, but are merely war-sustaining, should not be qualified as military objectives,Footnote 45 elements of transport infrastructure (such as roads and railways) being used to transport military matériel in the context of an ongoing military operation support operational planning and can hence qualify as military objects by use.Footnote 46 Indeed, the main question is whether the concerned objects can be said to make an “effective contribution” to “military action” – i.e., are directed towards the actual warfighting capabilities of a party to the conflict.Footnote 47 The objects concerned hence need to have “a sufficiently close connection to the fighting” in order to be able to satisfy the definition of military objective.Footnote 48
The question is what this almost intrinsic dual nature entails for the protection of such objects during armed conflict. The current predominant approach to dual-use objects is to emphasize the military character that these objects also have on top of their civilian character in order to justify their loss of protection.Footnote 49 This makes critical infrastructure particularly vulnerable. In her book on the issue, Capone emphasizes the need for a paradigm shift which instead “places at the centre of the analysis the civilian function of dual-use objects”,Footnote 50 whilst Hathaway et al. argue that this dual character should at the very least prompt some form of caution in targeting and more awareness of the disruptive effect that destruction of critical civilian infrastructure has on the civilian population.Footnote 51 The ICRC, as well as some States, takes the view that
while the dual-use object is a military objective, the impact of the attack on the civilian part or component of the object (such as apartments in a building whose basement is used as a munitions depot) or on the simultaneous civilian use or function of the object (such as in the case of a bridge or electricity station used for both military and civilian purposes) must also be taken into consideration in the assessment of proportionality.Footnote 52
In addition, it has been argued that this also entails taking “reverberating effects” and “cumulative harm” into account in the proportionality assessment.Footnote 53 Reverberating effects are “consequences which are not directly and immediately caused by an attack but which are nevertheless a result of the attack”.Footnote 54 These effects can be particularly harmful when critical infrastructure is being attacked, and taking them into account in the proportionality assessment would mean more restraint in the targeting of dual-use objects given the indirect and long-term impact that the destruction of such objects may have.Footnote 55 There is still some discussion regarding the extent to which reverberating effects should be taken into consideration, but the overall idea that reverberating effects which are foreseeable in the circumstances must be taken into consideration as part of the proportionality assessment is generally accepted.Footnote 56 Concretely, this means that when attacking transport infrastructure being used to transport military matériel during an ongoing armed conflict, the potential detrimental effects on civilians of the loss of said transport system must be taken into account during the proportionality assessment. Conversely, this also means that a State which expects that it will have to defend itself should factor these effects in when deciding which means of transport are going to be used to transport military materiel. For example, if such a State has the choice between two transport routes which would equally allow it to transport the matériel to the required destination, but one of these routes is more essential for civilians than the other, the State should, to the maximum extent feasible, choose the least essential one given that the route used may lose its protective status and become subject to attack. This ties in neatly with the passive precautions obligation highlighted in the first part of this research.
Capone, on the other hand, asserts that it is not sufficient to apply these constraints only at the proportionality assessment stage; rather, they should already be taken into account during the assessment of the nature of the object itself, and when doing so, much more emphasis should be placed on the civilian nature of the dual-use object.Footnote 57 In her view, the loss of protection must hence be strictly limited in time, and the purpose – i.e., the intended future use – of the object should never be used to justify the loss of protection.Footnote 58 In addition, it is worth repeating that “each object must individually fulfil the definition of military objective to become a lawful target”.Footnote 59 Consequently, a particular segment of railway infrastructure may lose its protection only when it is actually being used to transport military goods (or there is a clear indication that such use is imminent), but it would not be justifiable to attack the entire railway infrastructure because it might at one point during the war be used for transporting military goods. It is also important not to forget about the second part of the military objective test, according to which a military object can only be attacked when its “total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”.Footnote 60 The fact that the military advantage needs to be defined means it must be “concrete and perceptible” rather than “hypothetical and speculative”.Footnote 61
Interestingly, Capone also justifies why she does not adopt a more radical approach in the form of “no-strike” lists by stating that this is, according to her, simply not a solution that States are willing to adopt.Footnote 62 Applied to the military mobility example used throughout this paper, one could potentially think about earmarking which portions of the railway system are potentially going to be used for the transport of military goods, implying that the rest should in all circumstances be protected from attack, but this may actually be counterproductive because it would tell the enemy forces precisely which portions are worth attacking to disrupt their opponents’ military transports. Similarly, by establishing a list of critical infrastructure that should be protected from attack, a party would also give away which infrastructure is actually crucial enough for the party to want to protect it, making it potentially even more vulnerable to attack.
Next to the precautionary measures that the defending State could take to, for example, minimize critical infrastructure from becoming a military object by use (by, for instance, only using parts of the railway infrastructure rather than the entire system where possible), more general reflection on how to provide better protection for critical infrastructure that could serve a military purpose next to its civilian purpose is needed. Useful in this regard is the recommendation made in the outcome document for Workstream 4 of the Global IHL Initiative in favour of the development or adaptation of doctrine and codes of conduct “to allow for the targeting of [dual-use objects] only when there is sufficient evidence that they are actually being used at the time of attack in a way that fulfils the definition of ‘military objective’”.Footnote 63
These discussions concerning dual-use objects are of particular relevance when it comes to total defence scenarios given that, as argued above, total defence as a response to total war will entail massive mobilization of resources, including critical infrastructure such as transport infrastructure. Given the detrimental effect that the disruption or destruction of such critical infrastructure can have on the civilian population, it is already important to reflect on how the impact on such infrastructure can be minimized when developing total defence-type strategies whilst at the same time recognizing that (some of) these resources will be needed for the sustainment of defence operations. On this particular point, the Workstream 4 outcome document emphasizes that
[f]or IHL to remain effective in limiting the impacts of armed conflicts on civilian populations, it is crucial that states prioritize improvements in their capacity to protect civilians and civilian objects, including infrastructure. This is especially the case whenever they decide to increase their defence capacities.Footnote 64
Civilian involvement in total defence strategies, direct participation in hostilities, and collateral damage
Total defence strategies involving civilians raise questions concerning the scope of protection not only of civilian objects, but also of civilians themselves. Whilst the employment of civilians during situations of national defence, including by providing logical support, is not new, the potential extent of such employment in total defence strategies further challenges the traditional considerations underlying IHL.Footnote 65 It is important to mention from the outset that if we use the ICRC criteria, not all forms of logistical support amount to acts constituting DPH;Footnote 66 indeed, most logistics and support functions would not lead to DPH, with the exception of immediate battlefield logistics functions.Footnote 67 Even if not amounting to DPH, however, such support activities can nevertheless be crucial for the war effort and hence detrimental to the enemy.
Whilst acts amounting to DPH would be the most perilous for civilians because of the loss of protection status they entail,Footnote 68 other types of participation short of DPH might also put civilians in harm’s way. As has been pointed out by Radončić and Stanley-Ryan, “even if the person’s conduct does not amount to DPH, an increase in proximity to lawful targets leads to an increase in the chance that they will be counted as lawful ‘collateral damage’”.Footnote 69 For example, a civilian operator driving a train transporting military matériel as part of a military logistical operation during armed conflict is not per se directly participating in hostilities, but the train itself (and the railway infrastructure being used) would most likely become a military objective by use and hence could be attacked, in which case the train driver would constitute lawful collateral damage. In light of the above, two main questions are worth raising in this part of the research. First, which types of activities related to total defence strategies could lead to DPH and would hence directly put civilians at risk of harm because of the consequent loss of protection status that DPH entails? And second, can the protection afforded to civil defence personnel assist in determining how to best protect those civilians engaged, in the framework of total defence strategies, in types of participation falling short of DPH, given the additional risks of harm that they may be confronted with.
Regarding the first question, it is important to zoom in on the types of activities that civilians may be engaged in within the framework of such policies and whether or not such activities could qualify as DPH. As mentioned above, most of these activities are unlikely to qualify as DPH given that they will likely be contributing to the general war effort rather than to the conduct of hostilities. As emphasized by the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC Interpretive Guidance),
unlike the conduct of hostilities, which is designed to cause – i.e. bring about the materialization of – the required harm, the general war effort and war sustaining activities also include activities that merely maintain or build up the capacity to cause such harm.Footnote 70
Conduct “that merely builds up or maintains the capacity of a party to harm its adversary, or which otherwise only indirectly causes harm, is excluded from the concept of direct participation in hostilities”.Footnote 71 This would be the case for a truck or train driver in charge of transporting military matériel from one depot to another: whilst such activity would have a potentially important impact on the military capacity or the operations of the party concerned, this impact would only be indirect. This is confirmed by the ICRC Interpretive Guidance, which explicitly refers to “transport of weapons and equipment unless carried out as an integral part of a specific military operation designed to directly cause the required threshold of harm” as an example of mere indirect participation.Footnote 72 In determining whether a civilian truck driver is directly participating in hostilities or not, “an individualized examination that is likely focused on the combat operations in the area and the specific geographic destination of the truck driver in question” will have to be made.Footnote 73
The ICRC Interpretive Guidance provides further indication as to when a logistical operation can be considered an integral part of a specific military operation and hence will most likely be considered as DPH, and when this would not be the case. It states that
[t]he delivery by a civilian truck driver of ammunition to an active firing position at the front line would almost certainly have to be regarded as an integral part of combat operations and, therefore, as direct participation in hostilities. Transporting ammunition from a factory to a port for further shipping to a storehouse in a conflict zone, on the other hand, is too remote from the use of that ammunition in specific military operations to cause the ensuing harm directly.Footnote 74
Importantly, whilst in the latter case the truck driver does not lose protection according to the ICRC Interpretive Guidance, the ammunition truck itself remains a military objective and the truck driver is still at risk of being harmed as collateral damage.
It is also important to briefly recall that the loss of protection as a consequence of DPH is a temporary, activity-based loss of protection.Footnote 75 Indeed, civilians are protected “unless and for such time” as they directly participate in hostilities.Footnote 76 According to the ICRC Interpretive Guidance this would include preparatory measures, deployment and return from the location of the DPH;Footnote 77 indeed it is specified that “[m]easures preparatory to the execution of a specific act of direct participation in hostilities, as well as the deployment to and return from the location of its execution, constitute an integral part of that act”.Footnote 78 This seems to be difficult to assess in practice, however, and a distinction still seems to be made between specific hostile acts and acts of general capacity.Footnote 79 Whether or not this would mean that the truck driver transporting ammunition to the front line loses protection from the moment they start loading the truck is still rather uncertain, especially given that it may not be clear whether the truck is being loaded to transport the ammunition from one depot to another and whether it will actually drive in the direction of the battlefield. A similar question arises as to whether the driver is still directly participating in hostilities when they are driving the truck back from the battlefield to the depot; as has been pointed out by Silvestri, “[t]he suspension of protection due to DPH ultimately ceases when the individual has physically separated from the operation and resumes activities that are not associated with the DPH act”.Footnote 80 When this physical separation actually happens is somewhat unclear – is it only when the driver returns to the depot that they started their journey from? Similarly, with regard to the general rule contained in Article 50(1) of AP I, the ICRC Interpretive Guidance specifies that “in case of doubt as to whether a specific civilian conduct qualifies as direct participation in hostilities, it must be presumed that the general rule of civilian protection applies and that this conduct does not amount to” DPH.Footnote 81 This presumption is one of the points on which not all States seem to agree, and there is still some doubt as to how it can be concretely implemented.Footnote 82
Regarding the second question of what we might learn from the protection offered to civil defence personnel under IHL, before addressing this question it is important to briefly reflect on the potential relation between civil defence and total defence more generally. As mentioned above, there is no single model for total defence strategies, but civil defence is very likely to be an important component of such strategies.Footnote 83 There may hence be some overlap between both elements, but the focus here is on civilians engaged in activities beyond the “humanitarian tasks” that provide grounds for the protection accorded to civil defence personnel under IHL.Footnote 84 The question is thus whether the protection afforded to civil defence personnel may also inform the protection of civilians engaged in other types of tasks as part of total defence strategies.
Civilians called upon by the State to carry out civil defence tasks under its control are protected to the extent that they are assigned exclusively to one of the “humanitarian tasks” listed in Article 61 of AP I.Footnote 85 This protection ceases only if they commit, outside their proper tasks, acts harmful to the enemy,Footnote 86 and “only after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded”.Footnote 87 Most interestingly for the research at hand, Article 65 of AP I further contains a list of acts which may in any case not be viewed as harmful to the enemy.Footnote 88 The following acts of civil defence organizations are hence not considered acts harmful to the enemy:
(a) that civil defence tasks are carried out under the direction or control of military authorities;
(b) that civilian civil defence personnel co-operate with military personnel in the performance of civil defence tasks, or that some military personnel are attached to civilian civil defence organizations;
(c) that the performance of civil defence tasks may incidentally benefit military victims, particularly those who are “hors de combat”.Footnote 89
It is also specified that “[t]he formation of civilian civil defence organizations along military lines, and compulsory service in them, shall also not deprive them of … protection”.Footnote 90 In addition, States should ensure that civil defence organizations and their personnel, buildings and matériel are identifiable by a distinctive sign while they are exclusively devoted to the performance of civil defence tasks, in order to further enhance their protection.Footnote 91
The one element that makes the application by analogy complex – and it is a crucial one – is the fact that the protection afforded to civil defence personnel is strongly tied to them carrying out activities from a limited list of “humanitarian tasks” which are strongly linked to the protection of the civilian population.Footnote 92 The tasks carried out by civilians engaged in total defence activities more broadly are more diverse and more at risk of meeting the criteria of DPH, as has been highlighted above. Their situation is thus more volatile and more difficult to grasp under a single protection regime like the one that exists for civil defence personnel. This author would like to argue, however, that the rules according to which mere collaboration with the military is not to be considered an act harmful to the enemy (cf. Article 65(2) of AP I) can also further inform the protection of those civilians involved in tasks that go beyond humanitarian ones. For example, the person in charge of a railway control centre far enough removed from the battlefield to discard any risk of DPH may well be carrying out their tasks (partially) under the direction of military authorities and cooperating with them, but by analogy to the rules applicable to civil defence organizations this should not a priori be seen as a reason for that person to lose their protection.
Given the volatility of the loss of protection associated with some of the tasks to be carried out by civilians as part of total defence strategies, it is crucial for there to be clarification of the types of tasks that may lead to loss of protection. Similarly, it may also be helpful to highlight what should in any case not be seen as entailing loss of protection, such as mere collaboration with the military in and of itself. The more volatile status of civilians involved in total defence strategies, due to the broader range of tasks they may undertake, makes correct information about the risks associated with their involvement all the more important, as will be further outlined below.
Civilian engagement in total defence strategies: Creating risk awareness and the obligation to disseminate IHL
This author subscribes to the view that a State does not violate an explicit provision of IHL by encouraging civilians to support the war effort.Footnote 93 However, the involvement of civilians in the war effort may be at odds with the passive precautions obligation, as such involvement may put them in harm’s way.Footnote 94 The question then arises as to whether there is an obligation under IHL to make them aware of these risks, and if so, what the legal basis for such an obligation would be.Footnote 95 According to Stewart, “[a]s ‘total defence’ strategies expand, States must understand the risks they assume and ensure that civilians understand not only their responsibilities but also the risks that come with [them], and the protections they are entitled to”.Footnote 96 Civilians must be made aware of the legal measures they may face as a consequence of their participation, as well as, more broadly, the fact that involvement in defence strategies may put them at risk of harm.Footnote 97 These considerations should be factored into the development of total defence strategies.
The general legal basis for peacetime obligations under IHL is contained in Article 1 common to the four Geneva Conventions (common Article 1), which obliges States “to respect and to ensure respect [for the Conventions] in all circumstances”. Whilst strictly speaking common Article 1 itself limits this rule to the respect of the Geneva Conventions, according to the ICRC Customary Law Study, the obligation to respect and ensure respect is not limited to the Geneva Conventions but applies to the entire body of IHL obligations binding upon the State concerned.Footnote 98 This obligation requires States “to take appropriate measures to prevent violations from happening in the first place”, and this “regularly presupposes that preparations have been made in advance”.Footnote 99 As specified by the ICRC’s updated Commentary on Geneva Convention IV (GC IV), the duty to ensure respect “covers not only the armed forces and other persons or groups acting on behalf of the [State] but extends to the whole of the population over which they exercise authority”.Footnote 100 It constitutes a broad duty of due diligence to prevent and repress breaches of IHL by private persons over which the State exercises authority.Footnote 101 This is an obligation of conduct and not of result, meaning that States should take feasible measures to prevent civilians over whom they exercise authority from violating IHL.Footnote 102
States can only ensure respect for IHL if these rules are known by everyone.Footnote 103 Common Article 1 is hence strongly linked to the obligation to disseminate IHL as contained in Article 144 of GC IV and identical articles in the three other Geneva Conventions, as well as in Article 83 of AP I.Footnote 104 The obligation to disseminate IHL also clearly contains peacetime obligations as appropriate measures should be in place before any potential armed conflict erupts.Footnote 105 The text of all the above provisions is rather similar and points to an obligation, in time of peace and in time of war, to disseminate the rules of IHL “as widely as possible”, to “include the study thereof in their programmes of military instruction and to encourage the study thereof by the civilian population, so that those instruments may become known to the armed forces and to the civilian population”.Footnote 106 Whilst there is an obligation to train armed forces in IHL, States are only obligated to encourage the study of IHL by the civilian population.Footnote 107 Though the ICRC emphasizes that the spreading of knowledge of the law among the civilian population is as imperative as the corresponding obligation regarding the armed forces, it also acknowledges that there is more flexibility on how to organize the former;Footnote 108 indeed, little specific guidance is provided on how States should achieve this, apart from a few very general suggestions listed in Resolution 21 annexed to AP I, such as the teaching of IHL in universities and secondary schools.Footnote 109 State practice on the matter is hence rather varied, but some best practices can be identified, and Rodenhäuser points to the following examples that could be useful in the context of the present research:
clear statements by political and military leaders on the requirement for everyone to respect IHL, providing IHL-compliant model codes of conduct that [particular] groups should follow, or developing educational videos or apps educating [different] actors about the laws of war.Footnote 110
Interestingly, Article 83 of AP I includes a second paragraph which specifies that “[a]ny military or civilian authorities who, in time of armed conflict, assume responsibilities in respect of the application of the Conventions and this Protocol shall be fully acquainted with the text thereof” (emphasis added), and which may be of particular relevance for the question at hand. This provision imposes a more stringent obligation for those within public authorities involved in the application of IHL to be fully aware of its rules. The ICRC Commentary on AP I specifies that this applies to (civilian) representatives of the ministry of defence but may also apply to other government departments.Footnote 111 The question is whether this obligation would also formally extend to civilians collaborating with the relevant public authorities in the framework of total defence without being formally being part of those public authorities. It can be argued that when there is an official collaboration between the military (or another public authority engaged in collective defence) and a private civilian entity that has any (potential) bearing on the application of IHL, this obligation should also be extended to the latter entity.
In addition to the dissemination of IHL as highlighted above, ensuring compliance with IHL requires States to take action in two additional key areas, as pointed out by Gallino and Vité: namely, by “adopting the necessary legal and administration framework, … including identifying or establishing authorities and processes needed to ensure full respect for IHL”,Footnote 112 and by “implementing practical measures such as building relevant infrastructure, allocating sufficient resources and training personnel”.Footnote 113
The obligations highlighted in this part of the paper – namely, the obligation to respect and ensure respect and the obligation to disseminate IHL – do not formally contain any obligations that would compel States to make civilians aware of the risks that they may take when engaging in the war effort. One could however argue that making them aware of IHL would in any case mean informing them of what type of conduct may amount to DPH and making them aware that if they directly participate in hostilities they will lose protection against attack and must abide by the rules of IHL. The question remains as to whether a more general duty to inform civilians of the risks they may incur when participating in the war effort (hence also beyond the risks associated with DPH), as part of, for example, total defence strategies, would exist. Arguably, such an obligation could potentially be read in a good-faith interpretation of common Article 1 and the obligation to disseminate IHL, combined with the passive precautions obligations contained in Article 58 of AP I which have been highlighted in the first part of this paper.Footnote 114 The existence and scope of such an obligation remain presently unsettled, but even if not in the form of a formal obligation, this should at the very least be considered good practice.
To conclude this part of the paper, it may be interesting to look briefly at whether human rights obligations, and more particularly those relating to the right to life, could potentially further inform the question raised above. Jurisprudence of the European Court of Human Rights (ECtHR) establishes that “[w]henever a State undertakes or organises dangerous activities, or authorises them, it must ensure through a system of rules and through sufficient control that the risk is reduced to a reasonable minimum”.Footnote 115 Interestingly, similarly to the precautionary measures in Article 58 of AP I having to be applied “to the maximum extent feasible”, the above-mentioned obligation under human rights law “must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities”.Footnote 116 It is however not unreasonable to assume that minimizing the risks to persons when they are engaging in dangerous activities at the very least also entails that they are duly made aware of such risksFootnote 117 – but once again, such a formal obligation seems to be mainly the case with regard to the most risky forms of participation, those that would potentially lead to DPH and loss of protection.Footnote 118 As has so rightly been pointed out by Mačák, “requesting civilians to act in ways that would expose them to the real and imminent danger of being directly attacked, and without informing them of this risk[,] would most likely violate the concerned individual’s right to life”.Footnote 119 Whether a similar violation would occur in case of failure to inform civilians about less risky forms of engagement seems also less straightforward under the human rights regime. It would be interesting to further assess in this context whether some form of duty of care would be applicable in this regard, but such an assessment goes beyond the ambit of the present paper.
The way forward: How can States mitigate the impact of total defence strategies on civilians and/or civilian infrastructure?
The different points developed above are all interlinked. When involving civilians and civilian objects in total defence strategies, due regard needs to be paid to the passive precautions obligation and hence States should do everything feasible to prevent harm to said civilians and civilian objects. Special attention should be paid to dual-use objects and the risks associated with DPH. If we add the obligations to ensure respect for and disseminate IHL to the equation, it becomes clear that this should also involve information efforts.
As was advocated for by the ICRC and the Geneva Academy of International Humanitarian Law and Human Rights (Geneva Academy) in their paper on IHL and the growing involvement of civilians in cyber operations and other digital activities, the obligation to ensure respect “should be further clarified through a set of good practices that States could adopt” in order to enhance the protection of civilians engaged in such activities.Footnote 120 To achieve this, States could “develop educational and other measures for disseminating knowledge of IHL rules” which “could take various forms, such as sharing of information about IHL rules via social media, dedicated apps, radio or other means of mass communication[,] or development of IHL-compliant model codes of conduct”.Footnote 121
Translating this to the context of total defence strategies involving civilians and/or civilian infrastructure, States should, for example, develop informational material outlining the following:
1. The basic rules of IHL that everyone involved in national defence tasks should be aware of. A similar obligation to ensure that all those involved in civil defence know the rules of IHL, in particular those applicable to their duties, also exists.Footnote 122 This could serve as an example for the information about IHL to be provided to those involved in total defence strategies more broadly.
2. What kind of conduct within the specifics of the tasks assigned to the civilians concerned could potentially lead to DPH.
3. What the consequences of DPH are in terms of protection, but also in terms of civilians’ obligations under IHL.
4. What risks civilians may face due to, for example, their proximity to legitimate military objectives, for involvement that does not lead to DPH.
States should also do the following:
1. Provide all civilians involved in tasks that are part of total defence strategies with appropriate (basic) training so they can protect themselves if needed.
2. Where possible, States should also replace civilians with military personnel in the carrying out of certain tasks if such activities would almost certainly put the individuals concerned in harm’s way. This may entail, for example, that those engaged in military mobility operations should preferably be military personnel unless related logistical operations happen far enough away from the battlefield.
3. Limit the use of critical civilian infrastructure in total defence strategies to what is strictly needed, in order to limit the detrimental (long-term) effects of the destruction of such infrastructure on the society as a whole.
Comprehensive and careful planning, including scenario-based planning, is hence crucial for effective civilian protection.Footnote 123
To conclude, when developing total defence strategies involving civilians and/or civilian infrastructure, States should in any case duly reflect on how these strategies may impact said civilians and civilian infrastructure and develop all needed measures to minimize any potential harm incurred by them. As Norway, one of the States in which there is already a rather clear vision on total defence, pointed out during consultations on the protection of civilian infrastructure in the framework of the Global IHL Initiative, “[i]ntegrating IHL and protection of civilians in broader thinking and planning around national preparedness and security is important”.Footnote 124 This is however not an easy endeavour and requires “capacity and awareness raising across sectors”.Footnote 125
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