Practice Relating to Rule 11. Indiscriminate Attacks

The bombardment by whatever means of towns, ports, villages or buildings which are defended is prohibited at any time (whether at night or day) when objects of military character cannot be clearly recognized.

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In cases where the [military] objectives above specified are so situated that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bombardment. 

An extension of the general rule for the protection given to civilians is that indiscriminate attacks, that is, attacks not directed at military targets but likely to strike at both military and civilian targets without distinction, are forbidden. 

An extension of the general rule for the protection given to civilians is that indiscriminate attacks, that is, attacks not directed at military targets but likely to strike at both military and civilian targets without distinction, are forbidden. 

[The 1977 Additional Protocol I] extends the definition of grave breaches to include the following … acts when committed wilfully, in violation of the relevant provisions of the protocol, and causing death or serious injury to body or health:

1. The bombardment of any legitimate target must not be “indiscriminate”. It is prohibited to carry out an attack by bombardment by any means (such as aircraft, naval fire and missiles) that treats as a single legitimate target a number of clearly separated and distinct legitimate targets in an urban area or an area containing a similar concentration of civilians or civilian objects.

2. This prohibition applies to shore bombardments by naval forces. In this respect, “shore bombardments” include bombardments from both ships and aircraft. 

I. Grave violations

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They are enumerated by the Geneva Conventions and the Additional Protocols, as well as by the Ivorian Penal Code.

They are:

to employ means or methods which are intended or of a nature … to injure military objectives, civilians, or civilian objects without distinction. The prohibition of indiscriminate warfare implies that the civilian population as such as well as individual civilians shall not be the object of attack and that they shall be spared as far as possible. 

Combat operations may only be directed against the armed forces of the enemy and other military objectives, not however against the civilian population or civilian objects. Indiscriminate attacks are therefore prohibited. 

The prohibition of attacks on civilians and civilian property includes … attacks launched indiscriminately. This includes attacks which may be expected to cause incidental civilian losses and damage excessive in relation to the concrete and direct military advantage anticipated. 

[1977] Additional Protocol I article 51 also provides for the following specific prohibitions:

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Indiscriminate attacks are prohibited. 

Indiscriminate attacks are prohibited by [1977] Additional Protocol I article 51.4. These are:

[Indiscriminate military objectives] are those in which military objectives and civilians and civilian goods are combined in such a way that the attack would cause civilian damages that would be excessive in relation to the concrete and direct military advantage expected from the attack. The following are indiscriminate attacks and therefore forbidden: … 

[Illegitimate military objectives] are targets in which the military objective is not clearly separated from civilians and civilian property. An attack on such targets would cause civilian casualties and damage that would be excessive in relation to the concrete and direct military advantage anticipated from the operation. 

The inhuman effect on civilian populations has proved to be particularly great in attacks with a surface-covering effect directed against an area containing separate military targets among the civilian population and civilian objects. Because of their mode of operations, such attacks are termed indiscriminate attacks, meaning that the effects of the weapons strike military targets, civilian persons and civilian objects without discrimination. 

An attack which is launched without making any distinction [between civilians and civilian objects on the one hand and military objectives on the other hand] and which may affect the civilian population or civilian objects in the knowledge that the attack will cause loss of human life, injuries to civilians and damage to civilian objects which would be excessive in the sense of Article 57(2)(a)(iii) [of the 1977 Additional Protocol I]. 

1.8.5. Serious violations of international humanitarian law directed against people include … launching attacks of an indiscriminate character in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects.

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2.3.5.1. During combat in an urban environment … [s]pecial attention shall be paid to the prevention of targeting the civilian population and indiscriminate attacks. 

15.15. Attacks that are not directed against military targets are prohibited.

15.15.1. There is no specific rule on indiscriminate attacks under customary law but the principle of distinction prohibits attacks that are not aimed at a specific target. 

(1) A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for life.

(2) A person (the perpetrator) commits an offence if:

Penalty for a contravention of this subsection: Imprisonment for 20 years. 

an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause loss of human life, injury to civilians or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated, without prejudice to the criminal nature of an attack whose harmful effects, even where proportionate to the military advantage anticipated, would be inconsistent with the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience. 

(1) Whoever violates the rules of international law in times of war, armed conflict or occupation and orders [or commits] an indiscriminate attack harming the civilian population …

(2) … [W]hoever violates the rules of international law in time of war, armed conflict or occupation by ordering [or committing] … indiscriminate attacks against civilian objects protected by international law. 

Crimes against humanity are grave violations of international humanitarian law committed against any civilian population before or during war.

Crimes against humanity are not necessarily linked to the state of war and can be committed not only between persons of different nationality, but even between subjects of the same State.

The grave breaches listed hereafter, affecting, by action or omission, the persons and objects protected by the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977, constitute crimes against humanity, repressed according to the provisions of the present Code, without prejudice to more severe penal provisions provided by the ordinary Penal Code:

The offences contained in the preceding article are punished with penal servitude for life.

If those contained in points 1, 2, 5, 6, 10 to 14 of the same article lead to the death or cause grave injury to the physical integrity or health of one or several persons, the perpetrators are liable to the death penalty. 

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 

Intentionally directing indiscriminate attacks against the civilian population or civilian objects in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects. 

the following acts, when they are committed intentionally and in violation of the relevant provisions of Additional Protocol (I) and cause death or serious injury to body or health: … launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects. 

Any person who in New Zealand or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence. 

an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause loss of human life, injury to civilians or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated, without prejudice to the criminal nature of an attack whose harmful effects, even where proportionate to the military advantage anticipated, would be inconsistent with the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience. 

Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment. 

(1) A person of whatever nationality commits an offence if that person, whether within or outside Sierra Leone[,] commits, aids, abets or procures any other person to commit a grave breach specified in –

(1) Any person who, whether within or outside the Republic, commits a grave breach of the [1949 Geneva] Conventions, is guilty of an offence.

(2) For the purposes of subsection (1), “a grave breach” means–

26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.

26.3. The following are war crimes:

[W]hen the conflict began in February 2011 in Libya you were called upon [by Al-Saadi Gaddafi] to provide … security services for him in Libya. …

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Now, with respect to specific examples of crimes against humanity perpetrated by the Gaddafi regime, there is quite extensive documentary evidence that has been put forward by the Minister, so I’m going to mainly focus on the atrocities committed between February and August 2011, …

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At least 16 civilians were killed in indiscriminate attacks in Misrata between April 14th and 17th in 2011, including one incident where eight people were killed while standing in line for bread.

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I am … satisfied, based on the totality of the information before me, and the findings relating to both allegations, that there are reasonable grounds to believe that you are described pursuant to both paragraphs 35(1)(a) and 37(1)(b) of the Immigration Refugee Protection Act and I am therefore issuing deportation orders against you.

As per my explanation at the outset of the hearing on January 14th, 2013, and at the beginning of this decision today, the only avenue of recourse available to you is to seek judicial review from the Federal Court of Canada and that application must be filed with the courts within 15 days of today’s date. 

[2] The Refugee Protection Division [the Panel] found that Mr. MJS was excluded from refugee protection under section 98 of the Immigration and Refugee Protection Act … and Article 1F(a) of the United Nations Convention Relating to the Status of Refugees …

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[22] The Panel also reiterated that Mr. MJS acknowledged in his testimony that he knew of the human rights violations committed by [the Group]. Earlier in its decision, the Panel found that “the documentary evidence clearly demonstrates that [the Group] committed crimes against humanity as well as war crimes in the period 1998 to 2005”, by, for example, … committing … indiscriminate attacks on civilians. …

[23] Simply because the Panel stated that some of these crimes had also been committed by [another group] does not detract from the Panel’s conclusion regarding [the Group’s] involvement in these crimes. 

The principle of distinction is complex and encompasses a number of treaty and customary norms applicable in internal armed conflicts, in addition to, in many cases, enjoying ius cogens status. These rules [include] … the prohibition against indiscriminate attacks. 

The protection of civilians against indiscriminate attacks is a norm of customary international law applicable in all international or internal armed conflicts. Indiscriminate attacks are never justified, even when non-civilians or combatants are present among a civilian population.  (footnote in original omitted)

Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst) Klein and Company Sergeant Major (Hauptfeldwebel) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter. 

[C]ivilians are not to be harmed in an indiscriminate attack; in other words, in an attack which, inter alia, is not directed against a particular military objective (see §51(4) of The First Protocol [1977 Additional Protocol I], which constitutes customary international law. 

The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.

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The accused’s position is stated to be that this Court has no jurisdiction to try him.

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… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …

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On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …

South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.

After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.

Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.

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The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …

The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …

South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …

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… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.

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To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.

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Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.

Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …

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I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

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It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. It enunciates as a basic rule in art 48:

The civilian population as such, as well as individual civilians, shall not be the object of attack. That is provided by art 51(2). Moreover, acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited. Indiscriminate attacks, also, are prohibited. They are defined as attacks which, inter alia, are not directed at a specific military objective, or which employ a method or means of combat which cannot be directed at a specific military objective. Article 52 then provides that civilian objects shall not be the object of attack or of reprisals. The Protocol explains in subart (2) of art 52 what are to be regarded as military objectives:

In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.

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To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …

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According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].

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I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed. 

In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.

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Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 

As alleged [by the appellants], the appealed order [presently under review] seems to place en emphasis, in order to terminate the proceedings, on the second section of Article 611(1) of the PC [Penal Code (1995)] … when it is clear that on the last occasion the examining magistrate also based his proceedings on the first section referring to those who carry out or order an indiscriminate attack … [T]he latter should be evaluated by the Court, as was expressed in the dissenting opinion, according to the principles of international humanitarian and customary law, and not in an anticipated manner. As a result the appealed order lacks the necessary reasoning, as it ignores the substantial grounds [raised] in the second indictment order.  [emphasis in original]

2. Article 611 of the PC effectively punishes

The appealed decision declared the termination of the proceedings … as it considered that the “facts [of] the case did not constitute an offence” … [H]owever, the proceedings carried out do not permit sharing the conclusions of the first instance tribunal; rather, the facts [denounced] merit being subsumed under the cited penal provisions and the aforementioned norms of International Humanitarian Law.  [emphasis in original]

It is a firm and incontrovertible fact that political armed struggle must be governed by the laws of war. As a result, attacks against innocent [people] or against private rights or the rights of individuals are absolutely unjustified, even where a political motive is claimed.

Thus: if such an attack against innocent [persons] and private rights is carried out with such a violence and malicious intent that it causes unnecessary suffering, havoc and terror, it would [constitute the offence of] indiscriminate terrorism, namely [those acts] that are not selective when choosing their targets and expressly target the innocent.  [emphasis in original]

The right to self-defence is not unlimited. It is subject to fundamental principles of humanity. Self-defence is not a justification … for indiscriminate attacks on the civilian population. Nor is it a justification for the use of nuclear weapons. 

Australia … [is] deeply concerned by his [the Independent Expert’s] observation that the situation for women and children in Somalia has become more precarious. In particular, we note the Independent Expert’s report of high numbers of indiscriminate attacks against civilians … . We support the Independent Expert’s call for all parties in the conflict – government and opposition groups – to respect basic principles of human rights and humanitarian law and to protect civilians from further violence. 

The attack against UNHCR in Kandahar, Afghanistan, on October 31st, serves as a reminder of the great risks for those who work tirelessly to deliver humanitarian assistance. … These attacks underscore the importance of continued and sustained cooperation between the international and Afghan security forces to ensure civilians are protected from indiscriminate acts of violence. 

Cuba expresses its strong concern at the constant deterioration of the situation in the Occupied Palestinian Territory, including East Jerusalem, owing mainly to the excessive and indiscriminate use of force by Israel against Palestinian civilians as well as many other illegal policies and practices … which violate the rights of the Palestinian people. 

Increasingly, the civilian population are the victims and direct targets of all kinds of abuses committed by armed forces involved in conflicts. The constant imperialist aggression and permanent interference in the internal affairs of third world countries, … and the indiscriminate killing of innocent civilians, are [among] the fundamental causes of current violations of international humanitarian law. 

Cuba reiterates its great concern at the constant deterioration of the situation in the Occupied Palestinian Territory, including East Jerusalem, owing mainly to the excessive and indiscriminate use of force by Israel against Palestinian civilians. 

[The] provisions, which are outlined below, are generally recognized as being an expression of customary international law. …

The purpose of international humanitarian law is to protect the victims of war as much as possible. …

It follows from API [1977 Additional Protocol I] that military attacks that do not respect the distinction between civilians and military targets are illegal because of their indiscriminate nature. 

The provisions of paragraphs 4, 5 and 7 were of a type which by their very complexity would seriously hamper the conduct of defensive military operations against an invader and prejudice the exercise of the inherent right of legitimate defence recognized in Article 51 of the Charter of the United Nations. 

… [A]ttacks which can hit military objectives and civilians or civilian objects indiscriminately are … prohibited. 

The Federal Government is aware of allegations that Israel has used phosphorous weapons in a way that violated international law. This is the subject of a number of investigations, including by Israel. The Federal Government has no information of its own on whether such weapons were used. Smoke ammunition which includes white phosphorus is not prohibited as such under international humanitarian law. But its use must comply with the general rules of international humanitarian law. Hence … an indiscriminate attack which does not distinguish between legitimate objectives and civilians … [is] prohibited. 

When [the armed forces] are called upon to deal with an internal conflict, they are bound to follow the principles regarding distinction between military objects and civilian objects so as to avoid indiscriminate attacks. The armed forces are instructed that when they provide assistance to civil authorities in dealing with internal conflicts, they must avoid indiscriminate use of force … The regulations addressed to armed police contain elaborate provisions aimed at avoiding indiscriminate attacks. 

The Government of India had hoped that military action by Israel against targets in the Gaza strip would abate. It is disappointing to note that the use of disproportionate force is resulting in a large number of civilian casualties on the one hand and the escalating violence on the other. This continued use of indiscriminate force is unwarranted and condemnable. 

Indiscriminate violence not only puts the lives of civilians in real danger, but also leads to a vicious cycle of violence. We condemn all these attacks that cause harm to the civilian population and damage civilian infrastructure, and call for their full cessation. 

8. [The delegate of Malaysia] said that …

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10. … [t]he laws of naval warfare incorporated the fundamental principles of international humanitarian law, including necessity and proportionality … The passengers and crew of the Mavi Marmara and its accompanying vessels [which were attacked by the Israel Defense Forces in May 2010] were … entitled to the protection accorded under the [1949] Fourth Geneva Convention and the indiscriminate attacks against them needed to be considered a serious violation of international humanitarian law. 

[The delegate of Malaysia] said that … Israel, as the [O]ccupying Power in the Occupied Palestinian Territory, had failed to ensure that the people of Palestine lived a life free of misery, by blatantly disregarding international law, including the [1949] Geneva Conventions … Its list of violations included … indiscriminate attacks. 

There is little evidence that the SADF took sufficient precautions to spare those civilians whom they knew were resident at Kassinga in large numbers. The fact that the operational orders for Reindeer included the instruction that “women and children must, where possible, not be shot” is evidence of the SADF’s prior knowledge of the presence of civilians. However, this apparent intention to spare their lives was rendered meaningless by the SADF’s decision to use fragmentation bombs in the initial air assault as such weapons kill and maim indiscriminately. Their use, therefore, in the face of knowledge of the presence of civilians, amounts to an indiscriminate and illegitimate use of force and a violation of Protocol I to the Geneva Conventions of 1949. The foreseeable killing of civilians at Kassinga was therefore a breach of humanitarian law. 

International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It also seeks to prohibit all means and methods of warfare which, inter alia, fail to discriminate between those taking part in the fighting and those who are not, with the emphasis on protecting the civilian population, individual civilians and civilian property. 

The deliberate targeting of civilians and the indiscriminate and excessive use of force, including suicide attacks, have become widespread in certain places, creating an atmosphere of fear aimed at further destabilizing and displacing civilian populations. In other conflict situations, militarily superior parties, including multinational forces, often respond with methods and means of warfare that violate the principles of distinction and proportionality. In such cases it is again civilians who bear the brunt.

We therefore unequivocally condemn both deliberate attacks on civilians and the loss of life as a result of the indiscriminate or disproportionate use of force, which is a gross violation of international humanitarian law. As a signatory of the Geneva Conventions of 1949 and its two Additional Protocols of 1977, South Africa wishes to underline the importance of adhering to the principles contained therein and calls for the full implementation of the commitments made by States parties to those basic tenets of international law. 

One of the most important purposes of International Humanitarian Law is to protect civilians during armed conflicts, to minimise casualties. In this regard, South Africa is on record for unequivocally condemning both deliberate attacks on civilians and the loss of life as a result of the indiscriminate or disproportionate use of force, which is a gross violation of international humanitarian law. 

Despite the unrelenting efforts of the international community, civilians continue to account for the majority of casualties in armed conflicts. Their situation becomes even more precarious when they are deliberately targeted, indiscriminately attacked or when they are viewed as of strategic value in a conflict.

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Let me also stress the Network’s strong concern over use of explosive weapons in populated areas which causes severe harm to individuals and communities. These weapons are indiscriminate within their zones of detonation and therefore can pose unacceptable risks to civilians. We call for all relevant actors to refrain from using such weapons in densely populated areas. We believe that more systematic data collection would be important in this respect. 

Article 46 [now Article 51 of the 1977 Additional Protocol I] might be considered as one of fundamental value for the whole Protocol. This article was elaborated during long negotiations in 1975 and was adopted in the same year by consensus in Committee III. 

2. … Indiscriminate Qassam rocket launches against Israeli localities by irregulars and Palestinian groups are contrary to international law and must be condemned unequivocally. For that matter, in its press release of 29 February 2008, the FDFA [Federal Department of Foreign Affairs] clearly condemned the repeated rocket launches on Sderot and Ashkelon from the Gaza strip. 

Not all Means and methods of warfare are allowed in an Armed conflict. International humanitarian law stipulates the military operations, tactics and weapons that are permissible. The two generally accepted principles of Distinction and Proportionality are the basis for a number of specific rules such as the prohibition of direct attacks on the civilian population or on Civilian objects, the prohibition of indiscriminate attacks …

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… The principle of distinction imposes limits on means and methods of warfare: any Weapon or strategy that cannot be directed exclusively at a specific military objective is prohibited.

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Even in war not everything is allowed. Various means and methods are prohibited, including … indiscriminate attacks, …

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The concept of “terrorism” has not yet been defined in International law. International law, Human rights and international humanitarian law nonetheless do prohibit many terrorism related acts and activities.

In fact, according to international humanitarian law, acts generally considered as acts of terrorism, such as … indiscriminate attacks … are prohibited both in international and non-international armed conflict. 

The humanitarian situation in Sri Lanka is of the highest concern to the Federal Council. It deplores the violations of international humanitarian law, in particular the undifferentiated and disproportional recourse to violence that has killed and wounded thousands of persons in the north of the country. 

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2. Switzerland expresses its deep concern about the deterioration of the humanitarian situation in Syria. It deplores that because of non-compliance with international humanitarian law, in particular indiscriminate and disproportionate use of force, numerous civilian persons have already been killed.

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4. International humanitarian law is applicable in non-international armed conflicts. All parties to the conflict are therefore obliged to respect its rules in all circumstances, including the rules protecting persons who are [not] or are no [longer] participating in the hostilities, as well as the rules relative to the means and methods of warfare. 

The basic obligations under international humanitarian law as regards civilian casualties in an armed conflict are set out in additional protocol I to the Geneva conventions, which also reflects customary international law. In particular, indiscriminate attacks are prohibited, and this includes any,

This obligation under international humanitarian law has been fully complied with by the United Kingdom in respect of all military operations in Iraq. 

Protection of civilians in armed conflict matters from a legal perspective, because the UK has specific obligations concerning the protection of civilians in situations where it is involved in military action. International humanitarian law (IHL) … prohibits attacks that are indiscriminate.  [emphasis in original]

There are many examples … of indiscriminate attacks of individual and collective character which both parties to the armed conflict in Croatia in 1991 and 1992 were pointing at. The mixed nature of this conflict, being both internal and international, contributed to this as well. Both parties referred to these incidents as violations of international humanitarian law. The fact that the parties did not question this norm [prohibiting indiscriminate attacks] when speaking about the behavior of the opposite side is a clear indication of their opinio juris and a confirmation that such attacks were considered prohibited. 

the responsibility of all parties and armed groups in Somalia to take appropriate steps to protect the civilian population in the country, consistent with international humanitarian, human rights and refugee law, in particular by avoiding any indiscriminate attacks on populated areas. 

Gravely concerned about the continuation of the tragic events that have taken place since 28 September 2000, including the excessive use of force by the Israeli occupying forces against Palestinian civilians, resulting in thousands of deaths and injuries,

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4. … especially condemns the excessive and indiscriminate use of force against the civilian population, including extrajudicial executions, which has resulted in more than 3,400 Palestinian deaths, including those of more than 750 children, and tens of thousands of injuries. 

Gravely concerned about the continuing detrimental impact of the events that have taken place since 28 September 2000, including the excessive use of force by the Israeli occupying forces against Palestinian civilians, resulting in thousands of deaths and injuries, and the widespread destruction of property,

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4. … especially condemns … the excessive and indiscriminate use of force against the civilian population, including extrajudicial executions. 

Gravely concerned about the continuing detrimental impact of the events that have taken place since 28 September 2000, including the excessive use of force by the Israeli occupying forces against Palestinian civilians, resulting in thousands of deaths and injuries, the widespread destruction of property and vital infrastructure and the internal displacement of civilians,

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4. … especially condemns … the excessive and indiscriminate use of force against the civilian population, including extrajudicial executions. 

Recalls, in accordance with international humanitarian law, that indiscriminate attacks against civilians, including children, are prohibited and that they shall not be the object of attack, including by way of reprisal or excessive use of force, condemns these practices, and demands that all parties immediately put an end to them. 

Over the past few months, indiscriminate as well as summary killings … have been reported in the course of attacks targeting entire villages … At such times, principles of humanitarian law are especially important as they seek to protect the most vulnerable groups – those who are not involved in military operations – from direct or indiscriminate attack or being forced to flee. 

Although a number of Bosnian Serb attacks on Sarajevo occur in response to firing by forces of the army of Bosnia and Herzegovina from positions situated close to highly sensitive civilian locations, most attacks would appear to be indiscriminate.  

There is evidence that the Dubrovnik authorities, (aided by UNESCO observers), appear to have been scrupulous about keeping weapons out of the Old Town, that the besieging forces could see virtually everything that was going on in the Old Town, and that the Old Town was clearly subject to indiscriminate, and possibly even deliberate, targeting. Therefore, this conclusion will also be the subject of a recommendation for further investigation with a view to prosecution. 

The Government of the Federal Republic of Yugoslavia has not stopped the use of indiscriminate violence and brutal repression against its own citizens, which constitute serious violations of human rights and international humanitarian law. 

The prohibition against targeting the civilian population does not exclude the possibility of civilian casualties incidental to an attack aimed at legitimate military targets. However, indiscriminate attacks, that is attacks that affect civilians or civilian objects and military objects without distinction, may also be qualified as direct attacks on civilians.  [footnote in original omitted]

The Court … finds that there is sufficient evidence of a reliable quality to support the DRC’s [Democratic Republic of the Congo’s] allegation that the UPDF [Uganda People’s Defence Force] failed to protect the civilian population and to distinguish between combatants and non-combatants in the course of fighting against other troops, especially the FAR [Rwandan Armed Forces]. According to the report of the inter-agency assessment mission to Kisangani … the armed conflict between Ugandan and Rwandan forces in Kisangani led to “fighting spreading into residential areas and indiscriminate shelling occurring for 6 days … Over 760 civilians were killed, and an estimated 1,700 wounded. More than 4,000 houses were partially damaged, destroyed or made uninhabitable. Sixty-nine schools were shelled, and other public buildings were badly damaged. Medical facilities and the cathedral were also damaged during the shelling, and 65,000 residents were forced to flee the fighting and seek refuge in nearby forests.” MONUC’s [United Nations Mission in the DRC] special report on the events in Ituri, January 2002–December 2003 … states that on 6 and 7 March 2003, “during and after fighting between UPC [Union of Congolese Patriots] and UPDF in Bunia, several civilians were killed, houses and shops were looted and civilians were wounded by gunshots … Stray bullets reportedly killed several civilians; others had their houses shelled.” … In this context, the Court notes that indiscriminate shelling is in itself a grave violation of humanitarian law. 

Attacks, even when they are directed against legitimate military targets, are unlawful if conducted using indiscriminate means or methods of warfare, or in such a way as to cause indiscriminate damage to civilians. 

40. Between August 1993 and November 1995 [the accused] aided and abetted the planning, preparation, or execution of a military campaign of artillery and mortar shelling and sniping onto civilian areas of Sarajevo and upon its civilian population, killing and wounding thousands of civilians.

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42. The Sarevo Romanija Corps conducted a protracted campaign of shelling and sniping upon Sarajevo during which civilians were either specifically targeted or were the subject of reckless fire into areas where civilians were known to have been.

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47. [For his omissions in relation to crimes perpetrated in Zagreb when] [o]n 2 May 1995 and 3 May 1995 Milian Martić [President of the Republic of Serbian Krajina and Supreme Commander of the Army of the Serbian Krajina] planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation, and execution of the shelling of civilian areas in the city of Zagreb and upon its civilian population.

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51. The shelling [of Zagreb] was not justified by military necessity. The affected locations were either specifically targeted or the result of reckless fire into areas where civilians were known to have been. 

From on or about 10 August 1994 to on or about 21 November 1995, Dragomir Milošević, as Commander of Bosnian Serb forces comprising or attached to the Sarajevo Romanija Corps and/or forces affiliated with the VRS, conducted a coordinated and protracted campaign of sniper attacks upon the civilian population of Sarajevo, killing and wounding a large number of civilians of all ages and both sexes, such attacks by their nature involving the deliberate and/or indiscriminate targeting of civilians with direct fire weapons. 

The attack may only be directed at a specific military objective. The military objective must be identified as such and clearly designated and assigned. The attack shall be limited to the assigned military objective. 

In the camps of Nahr el Bared and Bedaoui, and in certain sectors of the city of Tripoli, civilians are at the mercy of indiscriminate shelling … The ICRC insists that the presence of armed elements among the civilian population does not justify the indiscriminate shelling of women, children and old people. 

The ICRC once again earnestly appeals to the parties concerned to end immediately the indiscriminate shelling of civilians and civilian property, which is an unacceptable violation of the most elementary humanitarian rules, and urges them to do everything in their power to ensure that these rules are henceforth duly respected. 

launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, which is excessive in relation to the concrete and direct military advantage anticipated. 

The deletion of the prohibition against indiscriminate attacks in the simplified Protocol II suggests that para. 2 [of Article 13] be examined carefully to determine whether it covers any type of indiscriminate attacks covered by paras. 4 and 5 of Art. 51 of Protocol I. It is certainly arguable that attacks against densely populated places which are not directed at military objectives, those which cannot be so directed, and the area bombardments prohibited by para. 5(a) of Art. 51 are inferentially included within the prohibition against making the civilian population the object of attack. Their deletion may be said to be part of the simplification of the text.