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

4.03 Protection of civilian and civilian objects. The prohibition of attacking civilian persons or civilian objects comprises all acts of violence, whether offensive or defensive. Indiscriminate attacks are included in such prohibition.

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4.45 … Objects of a civilian nature shall not be subject to attack nor reprisal. 

Non-combatants and civilian objects are protected from attack, that is, they are not legitimate objects of attack. The law of armed conflict 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. 

2.11 … Non-combatants and civilian objects are protected from attack, that is, they are not legitimate objects of attack …

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9.17 Military operations may only be directed against military objectives and not against the civilian population and civilian objects. …

9.18 It follows from the general rule that it is forbidden to attack the civilian population, individual civilians and civilian objects as a deliberate method of warfare. 

Specially protected objects [including civilian objects] may not:

Lesson 1 Basic notions of IHL

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The principle of distinction specifies who and what can be attacked and who and what cannot be attacked.

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- Who and what cannot be attacked?

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. 

[P]ersons and objects entitled to protection under international humanitarian law may not be attacked, if these persons are not engaged in hostile actions, and the objects are not used (not prepared to be used) for military purposes. 

The fundamental norms/val[u]es which underlie the LOAC are:

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

197. … Attacks against the civilian population or their property are prohibited at any time and in any place. …

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225. Indiscriminate attacks, i.e. attacks which cannot distinguish between protected persons/objects and military objectives, as well as attacks directed against protected persons/objects or acts of revenge are prohibited in any place and at any time.

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234 Violations of the international law of armed conflict are punished according to the provisions of the Swiss Penal Code or the Military Criminal Code.

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236 Under Art. 109 of the Military Criminal Code, any person who violates the provisions of international treaties on the conduct of war and the protection of persons and goods or other recognized laws and customs of war is liable to imprisonment of up to three years or in serious cases of up to 20 years. In minor cases, disciplinary sanctions apply.

237 The following in particular are criminal offences: … harmful acts against internationally protected persons and objects[.]  [emphasis in original]

In defended towns and localities modern methods of bombardment will inevitably destroy many buildings and sites which are not military objectives. Such destruction, if incidental to the bombardment of military objectives is not unlawful. For example the bombardment of a war factory area may well destroy the houses of workers living in that area. If, on the other hand, bombardment is directed solely against a non-military objective, it is unlawful. 

In addition to the grave breaches of the Geneva Conventions of 1949, the following acts are representative of situations involving individual criminal responsibility: … (4) aerial bombardment for the deliberate purpose of … destroying protected areas, buildings or objects. 

Avoid harming civilian property unless necessary to save US lives. Do not attack traditional civilian objects, such as houses, unless they are being used by the enemy for military purposes and neutralization assists in mission accomplishment. 

a. Text. “Any person subject to this chapter who intentionally engages in an attack upon a civilian object that is not a military objective shall be punished as a military commission under this chapter may direct.”

b. Elements.

(1) The accused engaged in an attack;

(2) The object of the attack was civilian property, that is, property that was not a military objective;

(3) The accused intended such civilian property to be an object of the attack;

(4) The accused knew or should have known that such property was not a military objective; and

(5) The attack took place in the context of and was associated with armed conflict.

c. Comment. The intent required for this offense precludes its applicability with regard to collateral damage or death, damage, or injury incident to a lawful attack.

d. Maximum punishment. Confinement for 20 years. 

a. Text. “Any person subject to this chapter who intentionally engages in an attack upon a civilian object that is not a military objective shall be punished as a military commission under this chapter may direct.”

c. Comment. The intent required for this offense precludes its applicability with regard to collateral damage or death, damage, or injury incident to a lawful attack.

d. Maximum punishment. Confinement for 20 years. 

A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for 15 years. 

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

[The following are] considered as war crimes:

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B. Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of international law, namely, any of the following acts:

“War crimes” means crimes which are committed as part of a plan or policy or as part of a large-scale commission of such crimes, in particular:

Whoever commits a war crime is punished with life imprisonment.

War crimes are:

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. 

A member of the military or police shall be imprisoned for a period of no less than eight and no more than 15 years if he or she in the context of an international or non-international armed conflict:

A member of the military or the police shall be punished with deprivation of liberty of not less than six years and not more than twenty-five years if, in a state of emergency and when the Armed Forces assume control of the internal order, he or she:

Notwithstanding of the value of the subject matter and the address of the parties to proceedings, offences related to looting and damaging of property committed between October 1, 1990 and December 31, 1994, which were within the jurisdiction of Gacaca Courts shall be tried by the Mediation Committees applying laws governing these committees regardless that they were committed by civilians, gendarmes or soldiers. Offenders shall be ordered to pay compensation. 

anyone who, during an armed conflict, … attacks … civilian objects of the adverse party causing their destruction, provided the objects do not, in the circumstances ruling at the time, offer a definite military advantage nor make an effective contribution to the military action of the adversary. 

1. Anyone who in the event of an armed conflict commits or orders to be committed any of the following acts shall be punished with four to six years’ imprisonment:

2. … In all other cases mentioned in the above article, the higher sentence can be imposed when extensive and important destructions are caused to the property, objects or installations or [the acts] are of extreme gravity. 

Subject to provisions of the Criminal Act of 1991, shall be punished with imprisonment for a term not exceeding twenty years, whoever knowingly and voluntarily violates the laws and customs regulating armed conflicts, intentionally, and without military necessity:

Articles 112–114 apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.

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1 The penalty shall be a custodial sentence of not less than three years for any person who in the context of an armed conflict directs an attack against:

Articles 264d–264j apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.

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1 The penalty shall be a custodial sentence of not less than three years for any person who in the context of an armed conflict directs an attack against:

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(b) OFFENSES. – The following offenses shall be triable by military commission under this chapter at any time without limitation:

Ҥ 950t. Crimes triable by military commission

“The following offenses shall be triable by military commission under this chapter at any time without limitation:

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:

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. 

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 systematic destruction of the infrastructure of these countries … are [among] the fundamental causes of current violations of international humanitarian law. 

Damage to property [caused by Hizbullah’s missile attacks] was also heavy: in total, some 12,000 civilian buildings were damaged, among them about 400 public buildings, while about 2,000 private homes and apartments were completely destroyed. In addition, 23 schools, four kindergartens and two community centers were damaged. During the conflict, hospitals were damaged in Nahariya, Haifa, Safed and Mizra. One of them – a psychiatric hospital – had to be evacuated.

Significant damage was also inflicted on infrastructure: sewage plants were damaged and, in some cases, sewage had to be released into the sea and atmosphere (by burning). Over 50 km of roads were damaged and 2 km² of cultivated forest, as well as 40 km² of natural woodland, were destroyed by fires caused by the missiles. All these clearly constitute civilian objects, which are protected from attack by international law, and whose destruction served no military purpose whatsoever. 

RENAMO’s behaviour, namely … launching offensives against civilian targets, in a deliberate strategy of conquest of territories and strategic positions … constitutes a grave and systematic violation that seriously jeopardizes the General Peace Agreement. 

Norway strongly condemns Israel’s shelling of the Headquarters of the United Nations Relief and Works Agency in Gaza. UNRWA is the lifeline and the safety net for hundreds of thousands of Palestinians. UNRWA has continued to deliver assistance to Palestinian refugees under dangerous circumstances throughout this conflict. Norway also strongly condemns Israel’s shelling of the al-Quds Hospital of the Palestinian Red Crescent. Such attacks are completely unacceptable and contrary to international law. 

In situations of armed conflict, while the primary responsibility of the protection of civilians rests with the State, we equally remind non-State actors and the United Nations, including peacekeepers and other humanitarian actors, to prioritize the protection of civilians. Rwanda therefore calls upon the parties to fully observe strict compliance with international law, to avoid targeting civilian objects, to stop militarizing camps and to allow access to humanitarian assistance. 

[W]e welcome the expansion of the trigger mechanism for punitive measures against those committing recurrent attacks on schools and hospitals. We are concerned about the emerging trend of such attacks. We call on all parties involved in conflict to abide by international humanitarian law and to refrain from attacks against civilian targets, particularly those where children might be present. 

1. In its press release of 7 March 2008, the FDFA [Federal Department of Foreign Affairs] condemned in the strongest terms the terrorist attack against an institute of Talmudic studies in Jerusalem …

2. Attacks directed against … civilian objects are a clear violation of international humanitarian law. 

International humanitarian law distinguishes between Civilian objects and Military objectives, prohibiting acts of violence against the former. …

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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, …

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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.

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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 strikes against the civilian population or Civilian [o]bjects, … , are prohibited both in international and non-international armed conflict. …

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War crimes are grave breaches of the provisions of the Geneva Conventions of 1949 protecting persons and objects[,] as well as other serious violations of the laws and customs that apply to an international or non-international Armed conflict. War crimes include notably: … wilful attacks against Civilians and against Civilian objectives[.] 

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 United States considers the obligations to protect natural, civilian, and cultural property to be customary international law … Cultural property, civilian objects, and natural resources are protected from intentional attack so long as they are not utilized for military purposes. 

- by attacks on civilian targets, and by inflicting damage, injuries and losses to civilians and civilian objects, [the respective States had] acted against the Federal Republic of Yugoslavia in breach of [their] obligation to spare the civilian population, civilians and civilian objects. 

Condemns all acts of violence against civilians, including the bombardment by Israeli military forces of Lebanese civilians causing extensive loss of life and injuries, including among children, immense destruction of homes, properties, agricultural lands and vital civilian infrastructure, and the displacement of up to one million Lebanese civilians and outflows of refugees fleeing heavy shelling and bombardment directed against the civilian population, thus exacerbating the magnitude of human suffering in Lebanon. 

Guided by the Charter of the United Nations, relevant human rights instruments and international humanitarian law, in particular the Hague Conventions of 1899 and 1907 on the Laws and Customs of War on Land which prohibit attacks and bombardment of civilian populations and objects and lay down obligations for general protection against dangers arising from military operations against civilian objects, hospitals, relief materials and means of transportation,

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3. Also condemns the Israeli bombardment of vital civilian infrastructure resulting in extensive destruction and heavy damage to public and private properties;

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6. Calls upon Israel to stop immediately military operations against the civilian population and civilian objects resulting in death and destruction and serious violations of human rights. 

The concealment of Bosnian Government forces among civilian property may have caused the attraction of fire from the Bosnian Serb Army which may have resulted in legitimate collateral damage. There is enough apparent damage to civilian objects in Sarajevo to conclude that either civilian objects have been deliberately targeted or they have been indiscriminately attacked. 

in the conduct of hostilities, every effort is made – in addition to the total ban on directing attacks against the civilian population as such or against civilians not taking a direct part in hostilities or against civilian objects – … to protect civilian objects including cultural property, places of worship and diplomatic facilities. 

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 Peoples’ Defence Forces] 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 [Forces Armées Rwandaises]. 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 … 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.” 

85. The Majority notes that, while international humanitarian law offers protection to all civilians in both international armed conflict and armed conflict not of an international character, the same cannot be said of all civilian objects, in respect of which protection differs according to the nature of the conflict. Whereas article 52 of API [the 1977 Additional Protocol I] provides for “general protection of civilian objects” during international armed conflict, such broad protection is not explicitly provided under [the 1977] Additional Protocol II, which only affords protection to a limited number of civilian objects. The negotiators of the Statute were certainly aware of this marked difference between international armed conflict and armed conflict not of an international character. Accordingly, the war crime of attacking civilian objects described in article 8 (2)(b)(ii) has no equivalent in article 8 (2)(e) of the Statute, which pertains to armed conflict not of an international character.

86. During discussions within the Preparatory Commission for the International Criminal Court, the Governments of Belgium, Costa Rica, Finland, Hungary, the Republic of Korea, South Africa and the Permanent Observer Mission of Switzerland to the United Nations submitted to the Working Group on Elements of Crimes a paper prepared by the International Committee of the Red Cross (ICRC) on, inter alia, the elements of article 8(2)(e)(iii) of the Statute. In this document it was argued that, although there is no comparable provision under APII [the 1977 Additional Protocol II] to article 52 of API, “the indication found in [the latter] for when an object is no longer entitled to protection as a civilian object might be of relevance in a non-international armed conflict as well”.  [footnotes in original omitted]

The protection of civilians in time of armed conflict, whether international or internal, is the bedrock of modern humanitarian law … Indeed, it is now a universally recognised principle, recently restated by the International Court of Justice [in the Nuclear Weapons case], that deliberate attacks on civilians or civilian objects are absolutely prohibited by international humanitarian law. 

Prohibited attacks are those launched deliberately against … civilian objects in the course of an armed conflict and are not justified by military necessity. They must have caused … extensive damage to civilian objects. Such attacks are in direct contravention of the prohibitions expressly recognised in international law including the relevant provisions of Additional Protocol I. 

65. [A]ttacks in violation of Articles 51 [Protection of the civilian population] and 52 [General protection of civilian objects] of Additional Protocol I are clearly unlawful even without causing serious harm. …

66. [However, t]he Appeals Chamber finds that at the time the unlawful attack occurred in this case, there was no basis for finding that, as a matter of customary international law, State practice or opinio iuris translated the prohibitions under Articles 51 and 52 of Additional Protocol I into international crimes, such that unlawful attacks were largely penalized regardless of the showing of a serious result. State practice was not settled as some required the showing of serious injury, death or damage as a result under their national penal legislation, while others did not.

67. … [T]he Appeals Chamber is not satisfied that at the relevant time, a violation of Articles 51 and 52 of Additional Protocol I incurred individual criminal responsibility under Article 3 of the [1993 ICTY] Statute without causing death, serious injury to body or health, or results listed in Article 3 of the Statute, or being of the same gravity. 

[I]n principle, the crime of unlawful attack on civilian objects does not require proof of a specific amount of civilian destruction as long as there is evidence which proves beyond reasonable doubt that civilian objects were deliberately attacked. However, in a circumstantial case such as the present one, the scale of civilian destruction may be relevant to determine whether an attack is aimed at civilian objects. 

Three of the crimes to which [the accused] has pleaded guilty entail violations of the duty incumbent upon soldiers to direct their operations only against military objectives. In order to comply with this duty, the military must distinguish civilians from combatants and refrain from targeting the former. The other three crimes entail violations of the duty to distinguish civilian objects from military objectives and not to attack protected objects. 

18. At the time of the adoption of the Additional Protocols, the overwhelming majority of states regarded the principles enunciated in Articles 51 and 52 of Additional Protocol I and in Article 13 of Additional Protocol II as general humanitarian principles. These latter are embodied in some States’ military manuals and contrary practice has consistently met disapproval.

19. The drafting history of the Additional Protocols also clearly indicates the opinio juris of the States … Article 52 entitled “General Protection of Civilian Objects” states that civilian objects enjoy protection from attack and reprisals and contains three paragraphs. These three paragraphs state a general principle of international humanitarian law that civilian objects must not be subject to military attacks. This rule is the necessary pendent of Article 51 of Additional Protocol I, and is a reaffirmation of a similar provision contained in the Geneva Convention IV. 

[T]he Trial made no error in its finding that, as the Appeals Chamber understood it, the principles prohibiting attacks on civilians and unlawful attacks on civilian objects stated in Articles 51 and 52 of Additional Protocol I and Article 13 of Additional Protocol II are principles of customary international humanitarian law. Customary international law establishes that a violation of these principles entails individual criminal responsibility. 

62. … [C]ivilian objects enjoy a similar level of protection as a civilian population. Article 52 of the Additional Protocol I stipulates that “[c]ivilian objects shall not be the object of attack or of reprisals” and “civilian objects are all objects which are not military objectives”. “Military objectives” are limited to “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage.” In case of doubt as to whether an object is used for civilian or military purposes, this object shall be presumed not to be used for military purposes.

63. The jurisprudence of the Tribunal identifies the following elements of this crime: actus reus – an attack launched against civilian objects and causing damage to those objects; mens rea – “an attack must have been conducted intentionally in the knowledge, or when it was impossible not to know, that […] civilian property [was] being targeted”. 

223. The offence of attacking civilian objects is a breach of a rule of international humanitarian law. As already ruled by the Chamber in the present case and upheld by the Appeals Chamber, Article 52, referred to in respect of the count of attacking civilian objects, is a reaffirmation and reformulation of a rule that had previously attained the status of customary international law.

224. The Chamber observes that the prohibition of attacks on civilian objects is set out only in Article 52 of Additional Protocol I, referred to in relation to Count 5. Additional Protocol II does not contain provisions on attacking civilian objects. Nonetheless, as the Appeals Chamber found, the rule prohibiting attacks on civilian objects has evolved to become applicable also to conflicts of an internal nature. The Appeals Chamber noted that already during the Spanish Civil War the tendency to disregard the distinction between international and internal armed conflicts could be observed. Both the republican Government and third States insisted that certain rules applicable to international wars applied also to that war. Among those rules there was the prohibition of attacks on non-military objectives. The Appeals Chamber further referred to the 1970 General Assembly resolution concerning the protection of civilians in “armed conflicts of all types”. In that resolution the General Assembly affirmed a number of basic principles, including the prohibition of making dwellings and other installations used only by civilian populations, as well as places and areas designated for the sole protection of civilians, the object of military operations. The Chamber therefore concludes that despite the lack of a provision similar to Article 52 in Additional Protocol II, the general rule prohibiting attacks on civilian objects also applies to internal conflicts.

225. … [T]he Chamber notes that the prohibition of attacks on civilian objects is aimed at protecting those objects from the danger of being damaged during an attack. It further reiterates that a prohibition against attacking civilian objects is a necessary complement to the protection of civilian populations. The Chamber observes that in the above-mentioned 1970 resolution of the General Assembly the prohibition of making civilian dwellings and installations the object of military operations was listed among the “basic principles for the protection of civilian populations in armed conflicts”. Those principles were reaffirmed because of the “need for measures to ensure the better protection of human rights in armed conflicts”. The General Assembly also emphasised that civilian populations were in “special need of increased protection in time of armed conflicts”. The principle of distinction, which obliges the parties to the conflict to distinguish between civilian objects and military objectives, was considered “basic” by the drafters of Additional Protocol I. The Chamber therefore finds that the prohibition at issue is a rule protecting important values. Similarly to what it has found in respect of the attacks on civilians, the Chamber considers that, in view of the fundamental nature of this prohibition, any attack against civilian objects, even if it did not cause any damage, can be considered a serious violation of international humanitarian law. All the same, the Chamber recalls that the requirement of seriousness contains also the element of gravity of consequences for the victim. The Chamber is of the view that, unlike in the case of attacks on civilians, the offence at hand may not necessarily meet the threshold of “grave consequences” if no damage occurred. Therefore, the assessment of whether those consequences were grave enough to bring the offence into the scope of the Tribunal’s jurisdiction under Article 3 of the [1993 ICTY] Statute should be carried out on the basis of the facts of the case. The Chamber observes that in the present case it is alleged that the attacks against civilian objects, with which the Accused is charged, did incur damage to those objects. It will thus pursue the examination of the case on the assumption that the attacks as charged in the Indictment did bring about grave consequences for their victims. … The Chamber would only need to return to the analysis of applicability of Article 3 of the Statute if the evidence on the alleged damage were to fail to demonstrate the validity of the Prosecution allegations to such an extent as to render it questionable whether the consequences of the attack were grave for its victims. 

considering the obligations incumbent upon combatants to distinguish and target exclusively military objectives, the Appeals Chamber finds Milošević’s argument regarding the proportion of civilians present in areas “replete with military objectives” unpersuasive.  (footnote in original omitted)

Attacks which are not directed against military objectives (particularly attacks directed against the civilian population) … may constitute the actus reus for the offence of unlawful attack [as a violation of the laws and customs of war]. The mens rea for the offence is intention or recklessness, not simple negligence.  

The concept of general protection [in Article 13(1) of the 1977 Additional Protocol II], however, is broad enough to cover protections which flow as necessary inferences from other provisions of Protocol II. Thus, while there is no explicit provision affording general protection for civilian objects other than the special objects covered by Arts. 14 to 16, the protection against direct attack of para. 2 also precludes attacks against civilian objects used as dwellings or otherwise occupied by civilians not then supporting the military effort. The definition of civilian objects in Art. 52(2) of Protocol I provides the basis for construing the extent of such protection of civilian objects. 

It is a basic rule of customary international law that civilians and civilian objects must never be made the targets of an attack. This rule applies in all circumstances including in the midst of full-scale armed conflict. Due to its customary nature it is binding on all parties. Israel is prohibited from attacking civilians and civilian objects. Palestinians are also prohibited from targeting Israeli civilians, including settlers who are not bearing arms, and civilian objects.