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Scorched Earth Policy

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Abstract

Scorched earth policy is a strategy of warfare whereby the retreating armed forces destroy or devastate whole towns, facilities, agriculture, transport routes and general infrastructure in order to deprive the advancing enemy forces or the belligerent population of food, shelter, fuel, communications and other valuable resources that may be useful for them. Scorched earth strategies regularly have a negative impact on the civilian population left behind. Although not specifically defined under international law, the term ‘scorched earth policy’ concerns several areas of international humanitarian law which will be discussed in the article.
SCORCHED EARTH POLICY
Scorched Earth Policy
Alexander Schwarz and Maria Grigat
TABLE OF CONTENTS
A. Concept and Definition .......................................................................................................... 1
B. Historical Background ............................................................................................................ 2
C. Current Legal Situation under Humanitarian Law ................................................................. 5
1. Means and Methods of Warfare ........................................................................................ 5
2. Principle of Distinction ..................................................................................................... 7
(a) Protection of Civilian Objects .................................................................................... 9
(b) Protection of Property .............................................................................................. 12
(c) Protection of Cultural Objects .................................................................................. 13
(d) Protection of Food and Relief Supplies .................................................................... 14
3. Principle of Proportionality ............................................................................................ 16
4. Rules aimed at Protecting the Environment during Armed Conflict .............................. 17
C. Assessment ........................................................................................................................... 19
A. Concept and Definition
1 Scorched earth policy is a strategy of warfare whereby the retreating armed
forces destroy or devastate whole towns, facilities, agriculture, transport routes and
general infrastructure in order to deprive the advancing enemy forces or the
belligerent population of food, shelter, fuel, communications and other valuable
resources that may be useful for them. Scorched earth strategies regularly have a
negative impact on the civilian population left behind (→ Civilian Population in
Armed Conflict). Although not specifically defined under international law, the
term scorched earth policy concerns several areas of international humanitarian
law (→ Humanitarian Law, International).
B. Historical Background
2 In 1938, during the Second SinoJapanese War, the Chinese government used the
Yellow River as a weapon to aid its cause by opening the dikes of the river in order
to stop advancing Japanese forces. This led to a flood that destroyed thousands of
villages, corn- and rice fields and affected 12 million people an estimated 800,000
of which drowned in the floods of the river (Lary 205).
3 With extraordinary destructiveness, the strategy of scorched earth has been used
during the Second World War by the Red Army and the German Wehrmacht alike.
When the Soviet army retreated from Ukraine in 1941 in the face of the German
advance, Stalin ordered a scorched earth policy affecting Ukraine that included
the destruction and removal of thousands of factories, railway routes, bridges, farms
and forage. At the end of 1943, when the German occupying army retreated from
SCORCHED EARTH POLICY
Ukrainian territory, this time they themselves persecuted by the advancing Red
Army, Hitler also commanded a scorched earth policy, with the consequence that
whole regions and thousands of villages were burned down and valuable resources
were dismantled or destroyed. This led to great suffering amongst the civilian
population of Ukraine and other populations along the Eastern Front. One particular
consequence of the scorched earth strategy during World War II was that for the
first time in the history of warfare civilian casualties prevailed military casualties.
4 During the Second Gulf War, Iraqi forces set fire to several hundred oil wells and
pumped crude oil into the Persian Gulf at the point of retreating from Kuwait in
1991 due to the advancing Coalition of armed forces (Iraq-Kuwait War [1990-
91]). It remains controversial whether the motives for the destruction of the oil wells
were such to achieve a military advantage, as assumed, to foil a potential landing
by armed coalition forces or to destroy the direct economic benefit derived from the
oil wells for potential users.
C. Current Legal Situation under Humanitarian Law
1. Means and Methods of Warfare
5 Scorched earth policy as a method of warfare is principally limited by the relevant
rules established in order to prevent the use of weapons or methods of warfare
which are not consistent with the basic rules of international humanitarian law
determining how hostilities have to be conducted ( Warfare, Methods and
Means).
6 According to Art. 35 (1) Additional Protocol I (‘AP I’), ‘in any armed conflict, the
right of the Parties to the conflict to choose methods and means of warfare is not
unlimited.’ This customary rule was confirmed by the ICJ in its Advisory Opinion
on Legality of the Threat or Use of Nuclear Weapons ([1996] ICJ Rep 226) when
it pronounced that ‘methods and means of warfare, which would preclude any
distinction between civilian and military targets are prohibited’ (at para. 95). Art.
51 (4) (b)(c) AP I further prohibits attacks which employ a method or means of
combat which cannot be directed at a specific military objective; or attacks which
employ a method or means of combat the effects of which cannot be limited as
required by the Protocol and which consequently are of a nature to strike military
objectives and civilians or civilian objects without distinction’. Accordingly,
scorched earth strategies on enemy territory causing disproportionate collateral
damage by indiscriminate targeting of civilian objects are prohibited. The last
provision is especially crucial for scorched earth policies, limiting their lawfulness
to military attacks which are able to distinguish between the different statuses of
objects under humanitarian law.
2. Principle of Distinction
7 A frequent problem encountered in the practice of scorched earth policy is that such
a strategy might conflict with the principle of distinction. The principle of
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distinction, as codified in Art. 48 I AP I, is one of the cornerstones of international
humanitarian law. On its basis, the belligerent parties must at all times distinguish
not only between the civilian population (Civilian Population in Armed Conflict)
and → combatants but also between → civilian objects and → military objectives.
Consequently, a scorched earth policy that implies → indiscriminate attack[s],
meaning attacks ‘of a nature to strike military objectives and civilians or civilian
objects without distinction’ (Art. 51 (4) (a) AP I), is not permissible. Art. 51 (4)
(b)(c) AP I further prohibits indiscriminate attacks including those ‘which employ
a method or means of combat which cannot be directed at a specific military
objective; or attacks which employ a method or means of combat the effects of
which cannot be limited as required by the Protocol and which consequently are of
a nature to strike military objectives and civilians or civilian objects without
distinction’. In this regard, the historical example mentioned above, of the strategic
breaching of the Yellow River dyke in 1938 as part of a scorched earth policy
enforced by the Chinese government, must consequently be considered as an
infringement of Art. 54 (4). Additionally, Art. 85 (3) (b) AP I classifies an
indiscriminate attack directed in the knowledge that such an attack will cause
excessive damage to civilian objects as a grave breach and therefore as a war crime
(Art. 85 (5) AP I). Accordingly, the fundamental principle of distinction limits the
intentional use of force in the course of scorched earth policies solely against
military objectives, be it combatants, a military facility or an object used for military
purposes; civilian objects shall be left out as far as possible from attack.
8 It is controversial whether scorched earth policies in international armed conflict
are admissible when they are directed by a party against its own population (
Armed Conflict, International). This controversy stems from the fact that Geneva
Convention IV relative to the protection of civilian persons in time of war in Art. 4
(1) explicitly states that ‘Persons protected are those in the hands of a Party to
the conflict or Occupying Power of which they are not nationals’. According to this,
it is argued that the protection of civilians only extends to individuals of a different
nationality than that of the offender, with the result that own nationals could not be
considered protected persons under Geneva Convention IV (Dinstein in
Heintschel von Heinegg and Epping [2007] 149). This rather formalistic approach
was criticized by international criminal courts. The Appeals Chamber of the ICTY
in the Tadić Case stated that the nationality criterion does not comply with
‘modern inter-ethnic armed conflicts’ and that ‘the text and the drafting history of
the Convention but also the Convention´s object and purpose suggest that allegiance
to the Party to the conflict and, correspondingly, control by this Party over persons
in a given territory, may be regarded as the crucial test’ (Prosecutor v Tadić
[Judgment] ICTY-941 [15 July 1999] para. 166; Prosecutor v Delalić
[Judgement] ICTY-9621-A [20 February 2001] para. 56; Prosecutor v Katanga et
al [Decision on the Confirmation of Charges] ICC-01/0401/07 [30 September
2008] para. 289). In accordance to this and in contrast to a strict nationality
requirement, Art. 4 (1) Geneva Convention IV should be interpreted broadly
because only an extensive interpretation meets the Geneva Conventions
humanitarian purpose of protection (Ambos [2014] 149; Werle and Jessberger
SCORCHED EARTH POLICY
[2014] 430) (Humanity, Principle of). Consequently, civilians who are affected
by scorched earth policies should be protected by Art. 4 (1) GC IV when they are
caught between the fronts, regardless of the merely formal relationship between
them and the acting party. In internal armed conflict this controversy does not arise,
because the law applicable in non-international armed conflict provides protection
for persons regardless of their nationality (Armed Conflict, Non-International).
(a) Protection of Civilian Objects
9 Principally, the immunity status of civilian objects is maintained as long as they do
not turn into military objects. This would be the case, for instance, if a school is
misused by adversary combatants to stockpile weapons. Equally, topographically
exposed ground positions temporarily used for military purposes by an armed force,
for example towers, hills or exposed farms can also be military objectives if they
meet the requirements of Art. 52 (2) AP I.
10 Under the Statute of the International Criminal Court (ICC), ‘intentionally
directing attacks against civilian objects’ (Art. 8 (2) (b) (ii) ICC Statute) constitutes
a war crime in an international armed conflict. Furthermore, Art. 8 (2) (b) (v) ICC
Statute protects ‘towns, villages, dwellings or buildings which are undefended’.
Such a conduct had already been criminalized under Art. 6 (b) Charter of the
International Military Tribunal which listed the wanton destruction of cities, towns
or villages, or devastation not justified by military necessity as war crimes.
11 Insofar as → pillage of enemy, public or private property requires that it has to be
committed to private purposes (Dinstein [2010] 246), the destruction or dismantling
of buildings, facilities and goods in order to render them unusable for further
employment as part of a scorched earth strategy does not fall under it. However, the
assessment may be different when the scorching forces dismantle facilities and
requisition everything for their own use. With regard to such scenarios Art. 8 (2)
(b) (xvi) ICC Statute directly sanctions the pillaging of towns and places in
international armed conflict. The same is regulated for non-international armed
conflicts in Art. 8 (2) (e) (v) ICC Statute.
(b) Protection of Property
12 The historical examples of scorched earth strategy caused widespread destruction
of public and private property. Rules protecting personal property can be found in
the Hague Regulations Respecting the Laws and Customs of War on Land ([1898
99] 187 CTS 429 and [1907] 205 CTS 277). According to their Art. 46, the personal
property of civilians shall be protected. This obligation is also binding in states
which are not party to the Hague Conventions because it is part of customary law
(Henckaerts and Doswald-Beck [2005] 25). With regard to → enemy property, Art.
23 (g) Hague Regulations stipulates that it is especially forbidden to destroy or
seize the enemy’s property, unless such destruction or seizure be imperatively
demanded by the necessities of war. Indeed, the scope of Art. 23 (g) Hague
Regulations is limited since only hostile property is protected. It follows that
whereas the property in hostile or occupied territory must be classified as immune,
SCORCHED EARTH POLICY
the property in a party’s own territory is not included. Additionally, the destruction
of enemy property might be permissible if the destruction is imperatively required
by military necessity (Hostage Case [United States v List] [Judgment] [19
February 1948]). This benchmark is reflected by Art. 50 Geneva Convention I
(1949), Art. 51 Geneva Convention II and Art. 147 Geneva Convention IV, which
state that the extensive destruction and appropriation of property which cannot be
justified by military necessity and carried out unlawfully and wantonly are grave
breaches and therefore constitute war crimes. Accordingly, Art. 8 (2) (a) (iv) Rome
Statute of the ICC stipulates the [e]xtensive destruction and appropriation of
property, not justified by military necessity and carried out unlawfully and
wantonly as a war crime in international armed conflicts. Under Art. 8 (2) (b) (xiii)
and Art. 8 (2) (e) (xii) ICC Statute [d]estroying or seizing the enemy’s property
unless such destruction or seizure be imperatively demanded by the necessities of
war further constitutes a war crime in both international and non-international
armed conflicts.
(c) Protection of Cultural Objects
13 If destructions during scorched earth tactics affect cultural objects, some provisions
must be considered. According to Art. 4 (3) Hague Convention for the Protection
of Cultural Property in the Event of Armed Conflict (1954) theft, misappropriation
and any acts of vandalism (and, a fortiori, destruction), directed against cultural
property is prohibited. Due to its civilian status, cultural property benefits from the
prohibition of indiscriminate attacks (Art. 54 (4) (5) (b) AP I). Art. 85 (4) (d) AP I
further stipulates that under certain circumstances, the attack of cultural property
can constitute a grave breach (Cultural Property, Protection in Armed Conflict).
(d) Protection of Food and Relief Supplies
14 In so far as the destruction of resources which are essential for the survival of the
civilian population are concerned in regards to scorched earth policies, some
relevant rules must necessarily be considered.
15 Particularly, Art. 54 (2) AP I prohibits attacks against resources necessary to sustain
the civilian population, such as foodstuffs, agricultural areas for the production of
foodstuffs, crops, livestock, drinking water installations and supplies and irrigation
works, when the act is aimed at denying the resources to civilians or to civilians
and combatants. The same is stipulated by Art. 14 AP II (1977). However, the
prohibition shall not apply when the act is committed against objects that are solely
used to sustain the armed forces of the adverse party or are used in direct support
of military action (Art. 54 (3) (a) AP I). Art. 54 (3) (b) highlights that in no event
actions against the latter objects shall be taken which may be expected to leave the
civilian population with such inadequate food or water as to cause its starvation or
force its movement.
SCORCHED EARTH POLICY
3. Principle of Proportionality
16 In armed conflicts, the destruction of civilian objects is not forbidden under all
circumstances. According to the principle of proportionality, the destruction of
civilian objects, occurring as a consequence of a legitimate military attack, is lawful
when such damages are unavoidable and proportionate to the military advantage of
the attack. The principle of proportionality requires that the incidental damages
among civilians or civilian objects (‘collateral damage’) are in balance with and not
‘excessive’ to the anticipated concrete and direct military advantage (
Proportionality and Collateral Damage). Accordingly, the strategic breaching of a
dyke in order to flood a specific territory or setting fire to oil wells leading to toxic
smoke is prohibited if it ‘may be expected to cause incidental ... damage to civilian
objects which would be excessive in relation to the concrete and direct military
advantage anticipated’ (Art. 51 (5) (b) AP I; Art. 57 (2) AP I).
4. Rules aimed at Protecting the Environment during Armed
Conflict
17 As illustrated by the historical examples above, scorched earth policy as a method
of warfare may have disastrous impacts upon the environment. The strategic breach
of the Yellow River dyke exemplifies that the environment can be used as a weapon
of war by modification of its status in order to prevent the advance of belligerent
armed forces (environmental warfare). Whereas the destruction of the environment
during armed conflict is often a side-effect of military battles (environmental
collateral damage), the environmental destructions as part of scorched earth tactics
are used intentionally.
18 Methods of warfare which cause excessive damage to the environment are
explicitly taken into consideration by Arts 35 (3) and 55 (1) AP I stating that
methods or means of warfare which are intended, or may be expected to cause,
widespread, long-term and severe damage to the natural environment are
prohibited. Although the exact scope of Arts 35 and 55 is controversial (Baker 363;
Dinstein 202205), a breach of the rules demands that the damage to the natural
environment must be either intentional or expected; mere collateral damages of the
environment are not covered by the prohibitions. However, in practice, the
relevance of both rules is rather limited: the requested conditions of ‘widespread,
long-term and severe damages suggest that the threshold is very high and only
exceptional examples are taken into account (Oeter 127, 216). Furthermore, the
scope of both rules is limited as the prescribed effects must be met cumulatively.
Therefore, the threshold would not have been crossed by the Iraqi forces setting fire
to the oil wells during the 1991 Gulf War (US Department of Defense 636).
Nevertheless, the principle of proportionality, applicable to the natural environment
(Henckaerts and Doswald-Beck [2005] 143), protects the environment as an illicit
target as long as damages to the environment are disproportionate to the military
advantage (Oeter 213). Additionally, the environment is indirectly protected from
scorched earth policies by Art. 56 AP I which prohibits the military attack of works
or installations containing dangerous forces, ‘namely dams, dykes and nuclear
SCORCHED EARTH POLICY
electrical generating stations, if such attack may cause the release of dangerous
forces and consequent severe losses among the civilian population’ (
Environment, Protection in Armed Conflict).
C. Assessment
19 Protection of civilians, civilian objects and property during armed conflict from the
destructive impacts of scorched earth strategies as a tactic of war is granted on the
basis of the general principles of distinction, military necessity and proportionality,
as well as the relevant rules established in order to prevent the use of weapons or
methods of warfare which are inconsistent with the basic rules of international
humanitarian law. To the extent that the concept of scorched earth is aimed to attack
civilians or destroy civilian property and resources necessary to sustain the civilian
population, this policy is an unlawful method of warfare. With regard to the impact
of scorched earth strategies upon the natural environment, the current legal situation
is unsatisfactory. Due to the high threshold of current regulations, it seems
necessary to establish a more practical legal regime dealing with the protection of
the environment during armed conflict.
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SCORCHED EARTH POLICY
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The application and interpretation of the four Geneva Conventions of 1949 and their two Additional Protocols of 1977 have developed significantly in the sixty years since the International Committee of the Red Cross (ICRC) first published its Commentaries on these important humanitarian treaties. To promote a better understanding of, and respect for, this body of law, the ICRC commissioned a comprehensive update of its original Commentaries. Its preparation was coordinated by Jean-Marie Henckaerts, ICRC legal adviser and head of the project to update the Commentaries. The First Convention is a foundational text of international humanitarian law. It contains the essential rules on the protection of the wounded and sick, those assigned to their care, and the red cross and red crescent emblems. This article-by-article Commentary takes into account developments in the law and practice to provide up-to-date interpretations of the Convention. The new Commentary has been reviewed by humanitarian-law practitioners and academics from around the world. It is an essential tool for anyone working or studying within this field.
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A companion volume to the author's textbook War, Aggression and Self-Defence, Third Edition (Cambridge 2001), this book focuses on issues arising in the course of hostilities between States, emphasizing the most recent conflicts in Iraq and Afghanistan. Main themes considered are lawful and unlawful combatants, war crimes (including command responsibility and defenses), prohibited weapons, the distinction between combatants and civilians, legitimate military objectives, and the protection of the environment and cultural property. Many specific topics that have attracted much interest in recent hostilities are also addressed. Also available: War, Aggression and Self-Defence 0-521-79344-0 Hardback $110.00 C 0-521-79758-6 Paperback $40.00 D.
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Early in the war of resistance against Japan, the Chinese military command used a tragic version of scorched-earth tactics: they denied access to the Japanese imperial army to a vast stretch of China not by literally scorching it but by drowning it. In June 1938 the Chinese command turned the ultimate symbol of Chinese civilization, the Yellow River, into a weapon of war. The southern dyke of the River was breached at Huayuankou (Flower Garden Mouth) in Henan, 30 miles to the west of the Japanese vanguard. A cataclysmic flood swept through the breach, killing by the lowest estimate half a million people and turning millions of others into refugees. The breach of the dyke was an attempt at strategic interdiction, to limit the mobility of the Japanese army and stop it moving further west. The waters of the River were to do what soldiers had not been able to do: to halt the Japanese advance. The breaching was a strategic move born of desperation. As the Japanese armies continued their relentless advance across China, sober strategic thinking in the Chinese command gave way to a mood close to panic, in which any conceivable action could be taken to stop the Japanese advance.
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The Iran-Iraq war and the aftermath of Iraq's invasion of Kuwait (the "1991 Gulf War") provide vivid evidence that conflicts arising at least in part from disputes over natural resources can wreak remarkable abuse on the environment, whether it is attacked directly or suffers collateral damage. International law seeks to limit environment damage in times of armed conflict not only because it may harm human beings, but also because "dicatates of public conscience" and principles in its own right.
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JS Pictet (ed), The Geneva Conventions of 12 August 1949: Commentary vol 4 Geneva Convention relative to the Protection of Civilian Persons in Time of War (ICRC Geneva 1958).
Methods and Means of Combat
  • S Oeter
S Oeter, 'Methods and Means of Combat' in D Fleck (ed), The Handbook of International Humanitarian Law (3rd ed OUP Oxford 2013) 115-229.
SCORCHED EARTH POLICY SELECT DOCUMENTS Charter of the (Nuremberg) International Military Tribunal
  • G Werle
  • Jessberger
G Werle and F Jessberger, Principles of International Criminal Law (3rd edn OUP Oxford 2014). SCORCHED EARTH POLICY SELECT DOCUMENTS Charter of the (Nuremberg) International Military Tribunal (8 August 1945) 82 UNTS 284.
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 (Geneva Convention II).
Instructions for the Government of Armies of the United States in the Field' (1863) in
  • F Lieber
F Lieber 'Instructions for the Government of Armies of the United States in the Field' (1863) in D Schindler and J Toman (eds), The Laws of Armed Conflicts (4th ed Nijhoff Leiden 2004) 3-20.