Practice Relating to Rule 12. Definition of Indiscriminate Attacks

Additional Protocol I
According to Article 51(4)(a) of the 1977 Additional Protocol I, attacks “which are not directed at a specific military objective” and consequently “are of a nature to strike military objectives and civilians or civilian objects without distinction” are indiscriminate. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 51(4)(a). Article 51 was adopted by 77 votes in favour, one against and 16 abstentions. CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 163.
Protocol II to the Convention on Certain Conventional Weapons
Article 3(3)(a) of the 1980 Protocol II to the Convention on Certain Conventional Weapons defines the indiscriminate use of mines, booby-traps and other devices as any placement of such weapons “which is not on, or directed at, a military objective”. 
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 10 October 1980, Article 3(3)(a).
Amended Protocol II to the Convention on Certain Conventional Weapons
Article 3(8)(a) of the 1996 Amended Protocol II to the Convention on Certain Conventional Weapons defines the indiscriminate use of mines, booby-traps and other devices as any placement of such weapons “which is not on, or directed against, a military objective”. 
Protocol on Prohibitions on the Use of Mines, Booby-Traps and Other Devices, as amended, to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 3 May 1996, Article 3(8)(a).
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 51(4)(a) of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 51(4)(a) of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
San Remo Manual
Paragraph 42(b)(i) of the 1994 San Remo Manual states: “It is forbidden to employ methods or means of warfare which are indiscriminate in that they are not … directed against a specific military objective.” 
Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, Prepared by international lawyers and naval experts convened by the International Institute of Humanitarian Law, Cambridge University Press, Cambridge, 1995, § 42(b)(i).
Australia
Australia’s Commanders Guide (1994) states: “Indiscriminate attacks are those which: (a) are not directed at a specific military objective.” 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 956(a).
Australia
Australia’s Defence Force Manual (1994) defines indiscriminate attacks as “attacks which are not directed against a specific military objective”. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 502(b)(1).
Australia
Australia’s LOAC Manual (2006) defines indiscriminate attacks as attacks “which are not directed against a specific military objective”. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.2.
The manual further defines such attacks as “attacks not directed at military targets but likely to strike at both military and civilian targets without distinction”. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 9.22.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) defines indiscriminate attacks as “attacks which are not directed at a specific military objective”. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 27.
Benin
Benin’s Military Manual (1995) defines indiscriminate attacks as “attacks which are not directed at military objectives and which will probably strike at military objectives and civilian objects without distinction”. 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule III, p. 13.
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting:
Indiscriminate attacks are those that may strike legitimate targets and civilians or civilian objects without distinction. They are prohibited. Indiscriminate attacks are:
a. those which are not directed at a specific legitimate target. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 416.1.a.
Canada
Canada's LOAC Manual (1999) states:
Indiscriminate attacks are those that may strike legitimate targets and civilians or civilian objects without distinction. They are prohibited. Indiscriminate attacks are:
a. those which are not directed at a specific target. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-3, § 22(a).
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police): “Indiscriminate attacks … are attacks which are not directed specifically against military objectives”. 
Central African Republic, Le Droit de la Guerre, Fascicule No. 3: Formation pour l’obtention du Brevet d’Armes No. 1, du Brevet d’Armes No. 2 et le stage d’Officier de Police Judiciaire (OPJ), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter III, Section 1.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book IV (Instruction of heads of division and company commanders):
Indiscriminate attacks are those that can strike legitimate objectives as well as civilians and civilian objects without distinction. They are prohibited. They are:
- attacks which are not directed at a specific legitimate objective. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 28; see also p. 50.
Germany
Germany’s Military Manual (1992) states: “Indiscriminate firing and bombardment means attacks … which are not directed at a specific military objective.” 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten KonfliktenHandbuch, August 1992, § 455.
Ecuador
Ecuador’s Naval Manual (1989) states: “Any weapon may serve an unlawful purpose when it is directed against noncombatants and other protected persons and objects.” 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 9.1.
Israel
Israel’s Manual on the Laws of War (1998) states: “In any attack it is imperative to verify that the attack will be directed against a specific military target.” 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 37.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
In any attack, it is a duty to ensure that:
- The attack is directed against specific military targets. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 26.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Kenya
Kenya’s LOAC Manual (1997) defines indiscriminate attacks as “attacks which are not directed at a specific military objective and which are likely to strike at military objectives and civilian objects without distinction”. 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 4, p. 3.
Netherlands
The Military Manual (1993) of the Netherlands states:
Indiscriminate attacks are prohibited. Indiscriminate attacks are attacks which can strike military objectives and civilians or civilian objects without distinction. Additional Protocol I mentions a few concrete forms of indiscriminate attacks:
- Attacks which are not directed at a specific military objective.
The determination of the objective must therefore precede the attack. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-4.
Netherlands
The Military Manual (2005) of the Netherlands states:
Indiscriminate attacks are prohibited. This means attacks which, in their implementation, do not distinguish between military objectives and civilians. In AP I [1977 Additional Protocol I], some more specific forms of indiscriminate attack are listed:
- attacks not directed at a specific military objective. The objective must therefore be determined before proceeding to attack;
Iraq’s SCUD rocket attacks on towns in Israel and Saudi Arabia during the second Gulf War (1990–91) are considered an example of indiscriminate attacks. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0515.
New Zealand
New Zealand’s Military Manual (1992) states: “Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) those which are not directed at a specific military objective”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 517.
Nigeria
The Report on the Practice of Nigeria states: “Nigeria’s notion of indiscriminate attacks are those attacks or firepower directed against non-military objectives as found in paragraphs (f) and (g) of the [Operational Code of Conduct (1967)].” 
Report on the Practice of Nigeria, 1997, Chapter 1.4, referring to Operational Code of Conduct for Nigerian Armed Forces, Federal Military Government of Nigeria, July 1967, §§ f–g.
Peru
Peru’s IHL Manual (2004) states: “Attacks are considered to be indiscriminate if they are not directed at a specific military objective”. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 29.j.
Peru
Peru’s IHL and Human Rights Manual (2010) states: “Attacks are indiscriminate if they are not directed at a specific objective”. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 30(j), p. 243.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states: “Indiscriminate attacks are … those which are not directed at a specific military objective.” 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 54.
South Africa
South Africa’s Medical Services Military Manual states: “Indiscriminate attacks … do not take into consideration the basic distinction of protection between military and civilian objectives.” 
South Africa, Medical Services Military Manual – Humanitarian Law, South African Medical Service Academy in Voortrekkerhoogte, s.d., § 40.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
[1977] Additional Protocol I article 51 also provides for the following specific prohibitions:
- Indiscriminate attacks.
- Indiscriminate attacks are:
- Attacks that are not directed at a specific military objective;
And consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.  
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, p. 118.
The manual also states:
- Indiscriminate attacks are prohibited by Additional Protocol I article 51.4. These are:
- Those that are not directed at a specific military target. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 3, p. 183.
Spain
Spain’s LOAC Manual (1996) states: “ Indiscriminate attacks are those … which are not directed at a specific military objective”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, División de Operaciones, 18 March 1996, Vol. I, § 4.4.c.
Spain
Spain’s LOAC Manual (2007) includes in its definition of indiscriminate attacks “attacks that are not directed at a specific military objective”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 4.4.c.
Sweden
Sweden’s IHL Manual (1991) states: “According to Article 54, paragraph 4, [of the 1977 Additional Protocol I,] indiscriminate attacks are: a) attacks that are not directed at a specific military objective”. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.5, p. 45.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states: “Indiscriminate attacks, i.e. attacks which cannot distinguish between protected persons/objects and military objectives, … are prohibited in any place and at any time.” 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance for the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, § 225.
(emphasis in original)
Togo
Togo’s Military Manual (1996) defines indiscriminate attacks as “attacks which are not directed at military objectives and which will probably strike at military objectives and civilian objects without distinction”. 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule III, p. 13.
Ukraine
Ukraine’s IHL Manual (2004) states: “Indiscriminate attacks are … those which are not directed at a specific military objective and may cause unjustified losses among the population or damage to civilian objects.” 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 2.4.3.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) defines indiscriminate attacks as “attacks which are not directed at a military objective and which are likely to strike at military objectives and civilian objects without distinction”. 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 4, p. 15, § 5(j).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
Indiscriminate attacks are:
(a) “those which are not directed at a specific military objective”;
“and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.23.1(a); see also §§ 12.22 (air operations) and 13.28 (maritime warfare).
United States of America
The US Air Force Pamphlet (1976) states:
The extent to which a weapon discriminates between military objectives and protected persons and objects depends usually on the manner in which the weapon is employed rather than on the design qualities of the weapon itself. Where a weapon is designed so that it can be used against military objectives, its employment in a different manner, such as against the civilian population, does not make the weapon itself unlawful. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 6-3(c).
United States of America
The US Naval Handbook (1995) states: “Any weapon may be set to an unlawful purpose when it is directed against noncombatants and other protected persons and objects.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 9.1.
United States of America
The US Naval Handbook (2007) states that indiscriminate attacks include “attacks that are not directed at a specific military objective (e.g., Iraqi SCUD missile attacks on Israeli and Saudi cities during the Persian Gulf War)”. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 5.3.2.
South Africa
South Africa’s Prohibition or Restriction of Certain Conventional Weapons Act (2008) states:
6.(1) No person may use or direct any mine, booby-trap or other device–
(e) in an indiscriminate manner–
(i) which is not on or directed against a military objective[.] 
South Africa, Prohibition or Restriction of Certain Conventional Weapons Act, 2008, Section 6(e)(i).
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
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.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… 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. …
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.
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. …
… 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.
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.
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. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
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:
“In order to ensure respect for, and 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 objectives and military objectives and accordingly shall direct their operations only against military objectives.”
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:
“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 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.
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. …
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].
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. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
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.
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:
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 of customary international law.
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. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
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. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Colombia
The Report on the Practice of Colombia notes that the government describes direct attacks on civilians as indiscriminate attacks. Reports describing the aerial shelling of houses in a conflict zone and bombardments that directly and exclusively affect the civilian population forcing it to move are provided as examples of indiscriminate attacks. 
Report on the Practice of Colombia, 1998, Chapter 1.4, referring to Defensoría del Pueblo, Informe de Comisión Municipio de Miraflores, Queja 9500280, pp. 7 and 15 and Defensoría del Pueblo, Cuarto informe anual del defensor del pueblo al congreso de Colombia, Santafé de Bogotá, September 1997, p. 43.
Denmark
In 2008, in a joint cost benefit analysis of a possible introduction of a national moratorium on all cluster munitions, Denmark’s Ministry of Defence and Ministry of Foreign Affairs stated:
[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. Such indiscriminate attacks are defined in API Article 51(4).  
Denmark, Ministry of Defence and Ministry of Foreign Affairs, A Cost Benefit Analysis of a Possible Introduction of a National Danish Moratorium on All Cluster Munitions, 1 April 2008, p. 15.
India
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, India stated that indiscriminate attacks are generally defined as including “those that are not directed at any single military objective”. 
India, Written statement submitted to the ICJ, Nuclear Weapons case, 20 June 1995, p. 3.
Jordan
Prior to the adoption in 1992 of UN General Assembly Resolution 47/37 on the protection of the environment in times of armed conflict, Jordan and the United States submitted a memorandum to the Sixth Committee of the UN General Assembly entitled “International Law Providing Protection to the Environment in Times of Armed Conflict”. The memorandum stated:
It is a war crime to employ acts of violence not directed at specific military objectives, to employ a method or means of combat which cannot be directed at a specific military objective, or to employ a means or method of combat the effects of which cannot be limited as required by the law of armed conflict. 
Jordan and United States, International Law Providing Protection to the Environment in Times of Armed Conflict, annexed to Letter dated 28 September 1992 to the Chairman of the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/47/3, 28 September 1992, § 1(g).
Jordan
The Report on the Practice of Jordan cites as an example of indiscriminate attacks those which are not directed at a specific military objective. 
Report on the Practice of Jordan, 1997, Chapter 1.4.
Mexico
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, Mexico stated: “In accordance with international humanitarian law, indiscriminate attacks are those that can reach both military targets and civilians.” 
Mexico, Written statement submitted to the ICJ, Nuclear Weapons case, 19 June 1995, § 77(d).
Nigeria
The Report on the Practice of Nigeria states that it is the opinio juris of Nigeria that “the prohibition of direct attacks on civilians and the adherence to the notion of abolition of indiscriminate attacks are part of customary international law”. 
Report on the Practice of Nigeria, 1997, Chapter 1.4.
Rwanda
On the basis of replies by army officers to a questionnaire, the Report on the Practice of Rwanda defines indiscriminate attacks as those which are carried out without making a distinction between military and civilian objectives. As examples of indiscriminate attacks, the report cites attacks on enemy positions located in an area inhabited by civilians and the shooting into a crowd because an enemy is hidden somewhere in the middle of it. 
Report on the Practice of Rwanda, 1997, Replies by Rwandan army officers to a questionnaire, Chapter 1.4.
United Kingdom of Great Britain and Northern Ireland
In 1991, in a report submitted to the UN Security Council on operations in the Gulf War, the United Kingdom criticized Iraq for launching indiscriminate missile attacks against civilians. 
United Kingdom, Letter dated 13 February 1991 to the President of the UN Security Council, UN Doc. S/22218, 13 February 1991, pp. 1–2.
United States of America
In 1991, in a report submitted to the UN Security Council on operations in the Gulf War, the United States denounced the continued indiscriminate launching of surface-to-surface missiles at civilian targets. 
United States, Letter dated 5 March 1991 to the President of the UN Security Council, UN Doc. S/22341, 8 March 1991, p. 1.
United States of America
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense accused Iraq of “indiscriminate Scud missile attacks”. 
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 635.
United States of America
Prior to the adoption in 1992 of UN General Assembly Resolution 47/37 on the protection of the environment in times of armed conflict, Jordan and the United States submitted a memorandum to the Sixth Committee of the UN General Assembly entitled “International Law Providing Protection to the Environment in Times of Armed Conflict”. The memorandum stated:
It is a war crime to employ acts of violence not directed at specific military objectives, to employ a method or means of combat which cannot be directed at a specific military objective, or to employ a means or method of combat the effects of which cannot be limited as required by the law of armed conflict. 
Jordan and United States, International Law Providing Protection to the Environment in Times of Armed Conflict, annexed to Letter dated 28 September 1992 to the Chairman of the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/47/3, 28 September 1992, § 1(g).
United States of America
In its written statement submitted to the ICJ in the Nuclear Weapons (WHO) case in 1994, the United States stated: “It is unlawful to conduct any indiscriminate attack, including those employing weapons that are not … directed at a military objective.” 
United States, Written statement submitted to the ICJ, Nuclear Weapons (WHO) case, 10 June 1994, p. 27.
United States of America
In submitting the 1996 Amended Protocol II to the Convention on Certain Conventional Weapons to Congress for advice and consent to ratification, the US President stated that the prohibition of indiscriminate use of mines, booby-traps and other devices as defined in Article 3(8)(a) of the Protocol “is already a feature of customary international law that is applicable to all weapons”. 
United States, Message from the US President transmitting Protocols II, III and IV to the Convention on Certain Conventional Weapons to the Senate for consent to ratification, Treaty Doc. 105-1, Washington, D.C., 7 January 1997, Tab (A), p. 13.
United States of America
According to the Report on US Practice, it is the opinio juris of the United States that indiscriminate attacks include attacks which are not directed at a military objective. 
Report on US Practice, 1997, Chapter 1.4.
UN Secretary-General
In 1990, in a report on UNIFIL in Lebanon, the UN Secretary-General described the following incident:
A further serious incident occurred at dawn on 21 December 1989, when the DFF [De Facto Forces] compound in Al Qantarah in the Finnish battalion sector directed tank, mortar and heavy machine-gun fire indiscriminately in all directions in response to the firing of an anti-tank round by unidentified armed elements … The incident was strongly protested to IDF [Israel Defense Forces]. 
UN Secretary-General, Report on UNIFIL, UN Doc. S/21102, 25 January 1990, § 22.
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992)
In 1994, in its final report on grave breaches of the Geneva Conventions and other violations of IHL committed in the former Yugoslavia, the UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992) stated:
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. 
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, UN Doc. S/1994/674, 27 May 1994, Annex, § 206.
No data.
Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts
A report on the work of Committee III of the CDDH stated:
The main problem was that of defining the term “indiscriminate attacks”. There was general agreement that a proper definition would include the act of not directing an attack at a military objective, the use of means or methods of combat which cannot be directed at a specific military objective, and the use of means or methods of combat the effects of which cannot be limited as required by the protocol. 
CDDH, Official Records, Vol. XV, CDDH/215/Rev.1, Second Session, Report of Committee III, 3 February–18 April 1975, p. 274, § 55.
International Criminal Tribunal for the former Yugoslavia
In its final report to the ICTY Prosecutor in 2000, the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia stated:
Attacks which are not directed against a military objective (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. 
ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, The Hague, 14 June 2000, § 28.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “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.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 428.
Americas Watch
In 1985, in a report on violations of the laws of war in Nicaragua, Americas Watch listed the following kinds of attacks among those that “are prohibited by applicable international law rules”:
4.Direct attacks against individual or groups of unarmed civilians where no legitimate military objective, such as enemy combatants or war materiel, is present. Such attacks are indiscriminate.
5.Direct attacks against towns, villages, dwellings or buildings dedicated to civilian purposes where no military objective is present. Such attacks are also indiscriminate. 
Americas Watch, Violations of the Laws of War by Both Sides in Nicaragua: 1981–1985, New York, March 1985, p. 34.
Africa Watch
In 1989, in a report on violations of the laws of war in Angola, Africa Watch listed the following kinds of attacks and uses of landmines among those that “should be prohibited in the conduct of hostilities”:
A. Direct attacks, by ground or air, and direct use of weapons against individuals or groups of unarmed civilians where no legitimate military objectives, such as enemy combatants or war material, are present. Such attacks and uses of these weapons are indiscriminate.
B. Direct attacks, by ground or air, and direct weapons use against civilian objects dedicated to civilian purposes, such as towns, villages, dwellings, buildings, agricultural areas for the production of civilian foodstuffs, and drinking water sources, where no military objective is present. This type of attack and weapons use is similarly indiscriminate. 
Africa Watch, Angola: Violations of the Laws of War by Both Sides, New York, April 1989, p. 140.
International Institute of Humanitarian Law
The Commentary on Rule A1 of the Rules of International Humanitarian Law Governing the Conduct of Hostilities in Non-international Armed Conflicts, adopted in 1990 by the Council of the International Institute of Humanitarian Law, defines indiscriminate attacks as “attacks launched at or affecting the civilian population without discrimination”. 
International Institute of Humanitarian Law, Rules of International Humanitarian Law Governing the Conduct of Hostilities in Non-international Armed Conflicts, Commentary on Rule A1, IRRC, No. 278, 1990, p. 388.