Practice Relating to Rule 7. The Principle of Distinction between Civilian Objects and Military Objectives

In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. Therefore, it is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering and, besides, in order to guarantee the protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives. 

210. Although not a basic principle, distinction is said to be a related principle and seeks to ensure that only legitimate military objects are attacked. Distinction has two components. The first, relating to personnel, seeks to maintain the distinction between combatants and non-combatants or civilian and military personnel. The second component distinguishes between legitimate military targets and civilian objects.

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504. The law of armed conflict establishes a requirement to distinguish between combatants and civilians, and between military objectives and civilian objects. This requirement imposes obligations on all parties to a conflict to establish and maintain the distinction. …

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913. The basic rule in respect of civilians which flows from this is that a distinction must be made between the civilian population and combatants, and between civilian objects and military objectives, in order that military operations will only be directed against military objectives. 

2.11 Although not a basic principle, distinction is said to be a related principle and seeks to ensure that only legitimate military objects are attacked. Distinction has two components. The first, relating to personnel, seeks to maintain the distinction between combatants and non-combatants or civilian and military personnel. The second component distinguishes between legitimate military targets and civilian objects. Military operations must only be conducted against military objectives, including combatants. Non-combatants and civilian objects are protected from attack, that is, they are not legitimate objects of attack. LOAC therefore requires that belligerents maintain the clear distinction between armed forces and civilians taking no direct part in hostilities; that is, between combatants and non-combatants, and between objects that might legitimately be attacked and those protected from attack.

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5.4. The LOAC establishes a requirement to distinguish between combatants and civilians, and between military objectives and civilian objects. This requirement imposes obligations on all parties to a conflict to establish and maintain the distinction …

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9.13. … a distinction must be made between the civilian population and combatants, and between civilian objects and military objectives, in order that military operations will only be directed against military objectives. 

It must be emphasized that [a responsibility of] command regarding the law of armed conflict and international humanitarian law is to:

The principle of distinction imposes an obligation on commanders to distinguish between legitimate targets and civilian objects and the civilian population. It is of primary importance when selecting targets. 

To ensure respect for and protection of the civilian population and civilian objects, commanders shall at all times distinguish between … civilian objects and military objectives. 

1. Distinction. The principle of distinction imposes an obligation on commanders to distinguish between legitimate targets and civilian objects and the civilian population. It is of primary importance when selecting targets.

2. This obligation is, of course, dependent on the quality of the information available to commanders at the time decisions are made. Commanders must make reasonable, good faith efforts to gather intelligence and to review the intelligence available to them. 

1. To ensure respect for and protection of the civilian population and civilian objects, commanders shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives.

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1. The protection of civilians and civilian objects is a fundamental principle of the LOAC. Parties to a conflict have a duty to distinguish between civilians and combatants as well as between civilian objects and military objectives. 

1 Distinction. As a general rule civilians and civilian objects shall not be the object of attack (acts of violence against the adversary, whether in offence or defence). Targets shall be limited strictly to military objectives. 

The Law of War is based on three fundamental principles:

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NB: For the soldier, the principle of distinction is the most important. 

II. The fundamental principles of IHL

Just as military operations are based on principles concerning attack, defence, withdrawal, etc., the law of armed conflicts contains a set of well-defined principles. These concrete principles reflect the realities of conflicts. They represent a balance between the principle of humanity and military necessity, and they are valid at all times, in all places, and in all circumstances. It is essential that these rules are known by all combatants. They must permanently be taken into consideration in every activity of assessment, planning, and military training or operation. The following principles can be found throughout the texts of the law of armed conflicts.

II.1. Distinction

At all times, a distinction must be clearly made between combatants and civilians or the civilian population as such …

In the same way, one must always distinguish between military objectives, which can be attacked, and civilian objects, which must be respected. The term “object” covers all types of objects, be they public or private, fixed or mobile. 

Chapter 2. Combatants and objectives

In order to ensure respect for and protection of the civilian population and civilian objects, military leaders must at all times distinguish between civilian populations and combatants, and between civilian objects and military objectives. 

Always make a difference between:

The principle of discrimination, also known as the principle of precaution, requires belligerents to distinguish military objectives that may be attacked, from civilian objects and populations that must not be the object of any wilful voluntary attack. 

The law of [w]ar rests on three fundamental principles:

The attacking party is bound by duty to distinguish between military objectives and civilian objects, and must take into account the presence of civilian objects when planning an attack.

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The laws of war sets down several distinctions mentioned earlier. The most important of them is the distinction between military targets and civilian objects. 

It is the duty of the attacker to distinguish between military targets and civilian targets, and the attacker should take into account the presence of civilian targets when planning the attack. No area in which military targets are combined with civilian targets may be considered as merely another target. 

The principle of distinction, also sometimes called the principle of identification, imposes an obligation on commanders to distinguish between legitimate military objectives and civilian objects and the civilian population when conducting military operations, particularly when selecting targets. 

Commanders must take all necessary measures and ensure that their subordinates distinguish between … objects that are considered military objectives and those that are not, both in the conduct of operations and in their behaviour during engagements. 

1. Know how to distinguish a civilian object from a military objective. There are references that deal with the International Humanitarian Law and the Law Governing Armed Conflicts. Yet the best tool in distinguishing a civilian object from a military objective is your common sense, good judgment and conscience. 

While getting military units ready for combat operations and controlling them during hostilities commanders shall be guided by the principles of international humanitarian law: the principles of legality, distinction, proportionality, humanity and military necessity.

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The principle of distinction means making distinction, under any circumstances, between the civilian population and servicemen, as well as between civilian objects and military objectives, which helps ensure protection of civilian persons and objects during combat operations and concentrate the force’s effort against the enemy military objectives. 

The aim of the instruction of law of war within the armed forces is to ensure that, in fulfilling their mission, each and every member of them respects the fundamental rules of the law, which is based on the distinction that must be made at all times between military objectives and civilian persons and objects, and protects all civilians and persons not or no longer involved in combat actions, irrespective of the situation, place, time or any other circumstances. 

The fundamental norms/val[u]es which underlie the LOAC [law of armed conflict] are:

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- Distinction. This principle entails that, during any conflict situation, one should always distinguish between military and civilian personnel and/or objects, and also between what is permitted and what is prohibited wrt [with regard to] weapons and actions. 

A distinction is made between military objectives and civilian objects ([1977]Additional Protocol I article 52). Civilian objects are protected and only military objectives may be made the object of an attack. 

The principles of military necessity, distinction, proportionality and (the prevention of) unnecessary suffering form the basis for all targeting considerations undertaken in the absence of specific guidelines set forth under international and domestic law.

Targeting involves the careful application of the aforementioned principles, as well as an appreciation of what constitutes a valid military objective. 

Commanders have a specific responsibility to take the necessary precautions in attacks in order to avoid or minimise loss of civilian life or damage to civilian property collateral to attacks on military objectives. (Articles 48 and 49 of Additional Protocol I.) These responsibilities are:

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159 Hostilities must be directed exclusively against combatants and military objectives. Respect for this rule is only possible if combatants and military objectives can be distinguished from protected persons and objects. 

Principle of distinction means that during preparation for and conduct of combat a clear distinction must be made between civilians and combatants [and] between civilian objects and military objectives with a view to ensuring protection of the civilian population and civilian objects from the consequences of hostilities and to concentrating the actions of forces exclusively against the enemy’s military objects. 

15.9. Attacks are to be directed only against objects or areas which, at the time the attack is launched, are of tactical or strategic military importance.

15.9.1. There is no definition of military objectives or attacks in the treaty law dealing with non-international armed conflicts. Nevertheless, the definitions used in respect of international armed conflicts should be treated as applicable. 

Since military operations are to be conducted only against the enemy’s armed forces and military objectives, there must be a clear distinction … between objects that might legitimately be attacked and those that are protected from attack. The principle of distinction … separates legitimate targets, namely military objectives, from civilian objects.  

15.9. Attacks are to be directed only against objects or areas which, at the time the attack is launched, are of tactical or strategic military importance so as to amount to military objectives. 

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]. 

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. 

[W]ith regard to the conduct of hostilities, it is important to note that IHL is ruled by fundamental principles, such as the principles of distinction, limitation and proportionality. Indeed, … the principle of distinction imposes on weapon bearers the obligation to distinguish in their military actions … between military objectives and civilian objects. 

[T]he essential principles of international humanitarian law have acquired ius cogens status, based on the fact that the international community as a whole has recognised their peremptory and imperative nature … Among the essential principles of international humanitarian law with ius cogens status applicable in internal armed conflicts … [is] … the principle of distinction. 

The principle of distinction, one of the cornerstones of international humanitarian law, flows directly from the obligation to protect the civilian population from the effects of war as in times of armed conflict it is only acceptable to weaken the enemy’s military potential.  (footnote in original omitted)

The general duty to distinguish between civilians and combatants is an essential duty binding the parties to any non-international armed conflict to differentiate at all times between civilians and combatants in order to protect civilians and their property. Indeed, parties to a conflict are bound to make every effort to distinguish between military objectives and … civilian property. This rule is found in international treaties applicable in internal armed conflicts and is binding on Colombia. It forms part of customary international humanitarian law and has attained ius cogens status.  [footnote in original omitted]

Opposite the combatants and military objectives stand the civilians and civilian objectives. Military attack directed at them is forbidden. Their lives and bodies are protected from the dangers of combat, provided that they themselves do not take a direct part in the combat. That customary principle is worded as follows:

This approach – which protects the lives, bodies, and property of civilians who are not taking a direct part in the armed conflict – passes like a thread throughout the caselaw of the Supreme Court. 

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. 

SECTION I – GENERAL PROTECTION AGAINST THE EFFECTS OF HOSTILITIES

CHAPTER I – BASIC RULE AND FIELDS OF APPLICATION

Article 48 – Basic rule

The targets that on each occasion were attacked with home made bombs at midnight were a mosque in Soweto, railway tracks in Soweto resulting in the death of a woman and injuries to her family, the bridge over the Umtamvuna River between the Eastern Cape and Natal and the Lanseria airport. Where the attempts were unsuccessful, and time mechanisms were also set to go off at midnight, targets included a taxi rank in Soweto and a Buddhist Temple in Bronkhorstspruit. However, two workers were injured in Bronkhorstspruit when the bomb was handled and were hospitalised. These targets cannot with the best will in the world be labelled as military targets

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… The core remains that only the targeting of military objects is permissible. The targeting of civilian objects is in conflict with the provisions of [the 1977 Additional] Protocol I. 

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. 

[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. The central provision in this regard is API [1977 Additional Protocol] Article 48, which states that: “Parties to the conflict shall at all times distinguish between […] civilian objects and military objectives …”. 

[France] is a party to the 1977 Additional Protocol I to the 1949 Geneva Conventions, which defines the major fundamental principles of protection of the civilian population against the effects of hostilities, in particular the prohibition of superfluous injury and the principle of discrimination … France considers this document to be a fundamental pillar of international humanitarian law and wishes it to become universal as soon as possible, in order to allow for the requirements of humanity during armed conflicts to be better respected. 

[O]ne of the essential principles of international humanitarian law is that a distinction must be made at all times and in all circumstances between … military targets and civilian targets, the latter to be protected. There are few conflicts in which that principle is fully respected. 

The first core principle of the Law of Armed Conflict, as reflected both in treaty law and in customary international law, is that “the Parties to the conflict shall at all times distinguish between … civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” The principle imposes obligations on both parties to an armed conflict. 

[1977] Additional Protocol I, art. 48. Although the State of Israel is not a party to the Additional Protocols to the Geneva Conventions, it accepts that this provision, as with certain others addressing the principles of distinction and proportionality, accurately reflects customary international law. See Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02 at § 20 (11 December 2005).

[A] commander’s intent is critical in reviewing the principle of distinction during armed conflict. Where it is believed in good faith, on the basis of the best available intelligence, that a civilian building has been misused as a sanctuary for military fighters, military intelligence, or the storage and manufacture of military assets, the commander has a legitimate basis for using force against the site. This is so even where judgment is based on limited information in a fluid battlefield situation.  [emphasis in original]

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 …

11. [In the case of the attacks by the Israel Defense Forces on the Mavi Marmara and five accompanying vessels in May 2010] … [n]aval forces were … under an obligation to distinguish … between civilian and military objectives. 

Article 85 entitled “Principle of Humanity”, contained in Title IV on Operations [of the Royal Ordinances for the Armed Forces (2009)] clearly embodies the spirit of the [1949] Geneva Convention and its [1977] Additional Protocols, as it provides that “[the] … conduct [of members of the armed forces] in any conflict or military operation must conform to the applicable rules of the international treaties on international humanitarian law to which Spain is a party”.

That is further developed in Chapter VI on Ethics in Operations, which goes into specific duties under international humanitarian law … the principle of the distinction … between civilian property and military targets. 

International humanitarian law distinguishes between Civilian objects and Military objectives, prohibiting acts of violence against the former. … Civilian objects are all objects which are not military objectives.

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International humanitarian law protects the civilian population and prohibits attacks against Civilians and Civilian objects. One of its ground rules is the principle of distinction: the parties to a conflict are obliged to conduct military operations exclusively against Military objectives and must therefore always distinguish between Civilians and Combatants as well as between Civilian objects and Military objectives. …

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International humanitarian law distinguishes between Civilian objects and military objectives. … Under international humanitarian law military personnel must at all times give full consideration to the nature of a potential target and opt exclusively for those that qualify as genuine military objectives. 

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.

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7. [Switzerland] recalls that in the conduct of military operations, all feasible precautions must be taken with a view to avoid incidental loss of civilian life[,] injury to civilians and damage to civilian objects and collateral damage to civilian property. All parties are subject to the obligation to respect the principles of distinction, proportionality and precaution. 

In armed conflicts, strikes carried out with armed drones must respect the rules of the conduct of hostilities as stipulated by international humanitarian law, including the principles of distinction, proportionality and precaution, and must therefore not be directed against civilians or civilian objects. For each strike, it is thus necessary to verify that these principles were respected. 

The community of States cannot remain indifferent to the human suffering caused by armed conflicts. It was in direct response to this fundamental concern that the CCW [1980 Convention on Certain Conventional Weapons] and its protocols were adopted, with a view to prohibiting or limiting the use of certain specific types of weapons known to inflict superfluous injury or unnecessary suffering, or to strike indiscriminately.

In this regard, Switzerland is deeply concerned by the alleged use of weapons in Syria falling within the ambit of the CCW and its respective protocols, such as the alleged use of anti-personnel mines as well as the alleged use of incendiary weapons in populated areas causing severe human suffering. We call upon all parties to the conflict to comply with their obligations under international law, in particular the principles of distinction, precaution, and proportionality. 

The Geneva Conventions contain no provisions expressly regulating targeting in armed conflict. The Hague Regulations of 1907 and customary international law do, however, incorporate the twin principles of distinction between military and civilian objects, and of proportionality so far as the risk of collateral civilian damage from an attack on a military objective is concerned. These principles and associated rules of international law were observed at all times by coalition forces in the planning and execution of attacks against Iraq. 

[T]his Administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:

In U.S. operations against al-Qaeda and its associated forces – including lethal operations conducted with the use of unmanned aerial vehicles – great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted.  [emphasis in original]

In evaluating the official position of [the] FRY, it is important to point out that during October 1991 [the] Chief of General Staff of the YPA issued two orders instructing troops to strictly comply with rules of humanitarian law … The fact that the YPA had sent a commission of inquiry to Dubrovnik to establish the effects of [the] shelling indicates the awareness of the need to respect the distinction between civilian objects and military objectives. Opinio juris existed, however, the relevant rule was not respected in practice. 

The provisions of [the 1977 Additional] Geneva Protocol I cited … express customary international humanitarian law. Those provisions … emphasize the importance of distinguishing between … civilian objects and military objectives.  (footnote in original omitted)

In violation of the laws and customs of war, and in particular of the essential principle that military targets must be distinguished from civilian persons and objects, the Iraqi armed forces have continued to bomb Iranian civilian zones.