Practice Relating to Rule 12. Definition of Indiscriminate Attacks

Note: For practice concerning weapons that are by nature indiscriminate, see Rule 71.
Additional Protocol I
According to Article 51(4)(c) of the 1977 Additional Protocol I, attacks “which employ a method or means of combat the effects of which cannot be limited as required by this Protocol” 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)(c). 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.
New Delhi Draft Rules
Article 14 of the 1956 New Delhi Draft Rules states:
Without prejudice to the present or future prohibition of certain specific weapons, the use is prohibited of weapons whose harmful effects – resulting in particular from the dissemination of incendiary, chemical, bacteriological, radioactive or other agents – could spread to an unforeseen degree or escape, either in space or in time, from the control of those who employ them, thus endangering the civilian population. 
Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, drafted by the International Committee of the Red Cross, September 1956, submitted to governments for their consideration on behalf of the 19th International Conference of the Red Cross, New Delhi, 28 October–7 November, Res. XIII, Article 14.
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)(c) 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)(c) 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)(ii) of the 1994 San Remo Manual provides: “[I]t is forbidden to employ methods or means of warfare which … (b) are indiscriminate, in that … (ii) their effects cannot be limited as required by international law as reflected in this document.” 
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)(ii).
Australia
Australia’s Defence Force Manual (1994) states: “Indiscriminate attacks are those: … (3) the effects of which cannot be limited, as required by LOAC.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 502(b)(3) (“the effect of which cannot be limited, as required by LOAC).
Australia
Australia’s Commanders’ Guide (1994) states: “Indiscriminate attacks are those which: … c. employ a method or means of combat the effects of which cannot be limited as required by LOAC.” 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 956(c)
Australia
Australia’s LOAC Manual (2006) states that indiscriminate attacks are those “the effect of which cannot be limited, as required by the LOAC”. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.2.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) states in its chapter on the conduct of hostilities: “The expression ‘indiscriminate attacks’ means: … c. those which cannot be limited as required by the [1977 Additional Protocol I].” 
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. 28.
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:
c. those which employ a method or means of combat, the effects of which cannot be limited as required by the LOAC. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-3, § 22(c)
In a section on indiscriminate weapons and ammunition, the manual states:
A weapon is indiscriminate if it might strike or affect legitimate targets and civilians or civilian objects without distinction. Therefore, a weapon that cannot be directed at a specific legitimate target or the effects of which cannot be limited as required by the LOAC is prohibited. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 5-2, § 11.
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:
those which employ a method or means of combat, the effects of which cannot be limited as required by the LOAC. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 416.1.
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 likely to affect not only military objectives but also civilian objects, without distinction”. 
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, Introduction, 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 employ a method or means of combat the effects of which cannot be limited as required by the LOAC. 
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 see also p. 50.
Germany
Germany’s Military Manual (1992) states: “Indiscriminate firing and bombardment means attacks … c. whose intended effects cannot be limited to the 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
Israel
Israel’s Manual on the Laws of War (1998) states: “In any attack it is imperative to verify that the attack will not employ means of warfare whose impact cannot be controlled.” 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 37; see also pp. 11–12.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
In any attack, it is a duty to ensure that:
- The attack will not activate resources whose effects are uncontrollable. 
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).
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 employ means or methods the effects of which cannot be limited as required by Additional Protocol I. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-4 (“which cannot be limited as required by Additional Protocol I”).
Netherlands
The Military Manual (2005) of the Netherlands states:
[I]t is forbidden to use means and combat methods where the effects cannot be limited to combatants and military targets, and which affect civilians and civilian targets. This is defined as the use of indiscriminate means or indiscriminate attack. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0228.
In its chapter on behaviour in battle, the manual 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 that employ a method or means the effects of which cannot be limited as required by AP I.
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: … c. those which employ a method or means of combat the effects of which cannot be limited as required by [the 1977 Additional Protocol I].” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 509(4).
The manual further states: “Weapons which cannot be directed at military objectives or the effects of which cannot be limited are prohibited.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 517.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
Indiscriminate attacks are … those which employ a method or means of combat which … cannot ensure the required limitation of their effect and the respect of the principle of distinction. 
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 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 employ a method or means of combat of which the effect cannot be limited, as required by this Protocol;
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, 1April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 118–119.
The manual also states:
Indiscriminate attacks are prohibited by Additional Protocol I article 51.4. These are:
- Those which employ a method or means of combat the effects of which cannot be limited as required by Additional Protocol I. Means or methods of combat which can be used perfectly legitimately in some situations can be unlawful in other circumstances, eg, methods and means that might be lawful in an unpopulated desert could be indiscriminate in a densely populated city. 
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: “Prohibited indiscriminate attacks are: … those which employ a method or means of combat the effect of which cannot be limited as required by [the 1977 Additional Protocol I].” 
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 employ a method or means of combat that has effects that cannot be limited”. 
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 51, paragraph 4, [of the 1977 Additional Protocol I,] indiscriminate attacks are: … c. those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol.” 
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.
Ukraine
Ukraine’s IHL Manual (2004) states: “Indiscriminate attacks are … attacks that fail to conform to principles of international humanitarian law”. 
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 Manual (2004) states:
Indiscriminate attacks are:
(c) “those which employ a method or means of combat the effects of which cannot be limited as required” by Additional Protocol I;
“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; see also §§ 12.22 (air operations) and 13.28 (maritime warfare).
United States of America
The US Air Force Pamphlet (1976) states:
Some weapons, though capable of being directed only at military objectives, may have otherwise uncontrollable effects so as to cause disproportionate civilian injuries or damage. Biological warfare is a universally agreed illustration of such an indiscriminate weapon. Uncontrollable effects, in this context, may include injury to the civilian population of other states as well as injury to an enemy’s civilian population. Uncontrollable refers to effects which escape in time or space from the control of the user as to necessarily create risks to civilian persons or objects excessive in relation to the military advantage anticipated. International law does not require that a weapon’s effects be strictly confined to the military objectives against which it is directed, but it does restrict weapons whose foreseeable effects result in unlawful disproportionate injury to civilians or damage to civilian objects. 
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 (2007) states that indiscriminate attacks include “attacks that employ a method or means of combat, the effects of which cannot be limited as required by the law of armed conflict (e.g., bombing an entire large city when the object of attack is a small enemy garrison in the city)”. 
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.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) prohibits “blind weapons” the effects of which “cannot be controlled during their use”. 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 102.
No data.
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.
Spain
In 2010, in the Couso case, which concerned the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America, the Criminal Chamber of Spain’s Supreme Court referred to norms of IHL relevant to the case under review, including Article 51(4)(c) of the 1977 Additional Protocol I. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 2, p. 14.
Canada
At the CDDH, Canada stated:
The definition of indiscriminate attack contained in paragraph 4 of Article 46 [now Article 51 of the 1977 Additional Protocol I] is not intended to mean that there are means of combat the use of which would constitute an indiscriminate attack in all circumstances. It is our view that this definition takes account of the circumstances, as evidenced by the examples listed in paragraph 5 to determine the legitimacy of the use of means of combat. 
Canada, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 179.
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) …
… According to the rules of international law, the use of weapons in areas with a high concentration of civilians, for example in urban areas, can be described as an indiscriminate attack and thus contravene international law. The degree of risk that the use of a given weapons constitutes an arbitrary attack is closely linked to the issue of the weapon’s precision and technical reliability. The lesser the accuracy and reliability, the more likely it is that the use of a weapon will have the character of an arbitrary attack. 
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. 15–16.
Germany, Federal Republic of
At the CDDH, the Federal Republic of Germany stated:
The definition of indiscriminate attacks contained in paragraph 4 of Article 46 [now Article 51 of the 1977 Additional Protocol I] is not intended to mean that there are means of combat the use of which would constitute an indiscriminate attack in all circumstances. Rather, the definition is intended to take account of the fact that the legality of the use of means of combat depends upon circumstances, as shown by the examples listed in paragraph 5. Consequently the definition does not prohibit as indiscriminate any specific weapon. 
Germany, Federal Republic of, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, pp. 187–188.
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 with effects which cannot be limited”. 
India, Written statement submitted to the ICJ, Nuclear Weapons case, 20 June 1995, p. 3.
Italy
At the CDDH, Italy stated:
There was nothing in paragraph 4 [of Article 46, now Article 51 of the 1977 Additional Protocol I] to show that certain methods or means of combat were prohibited in all circumstances by the Protocol except where an explicit prohibition was established by international rules in force for the State concerned with regard to certain weapons or methods. 
Italy, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 164, § 122.
Jordan
Prior to the adoption of UN General Assembly Resolution 47/37 in 1992 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”, which provided:
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).
Mexico
At the CDDH, Mexico stated: “The protection of the civilian population and civilian objects must be universally recognized, even at the cost of restricting the use of means and methods of warfare, the effects of which cannot be confined to specific military targets.” Mexico believed Article 51 of the 1977 Additional Protocol I to be so essential that it “cannot be the subject of any reservations whatsoever since these would be inconsistent with the aim and purpose of Protocol I and undermine its basis”.  
Mexico, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, pp. 192–193.
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).
United Kingdom of Great Britain and Northern Ireland
At the CDDH, the United Kingdom stated:
The definition of indiscriminate attacks given in [Article 51(4) of the 1977 Additional Protocol I] was not intended to mean that there were means of combat the use of which would constitute an indiscriminate attack in all circumstances. The paragraph did not in itself prohibit the use of any specific weapon, but it took account of the fact that the lawful use of means of combat depended on the circumstances. 
United Kingdom, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 164, § 119.
United States of America
In 1972, the General Counsel of the US Department of Defense stated:
Existing laws of armed conflict do not prohibit the use of weapons whose destructive force cannot be limited to a specific military objective. The use of such weapons is not proscribed when their use is necessarily required against a military target of sufficient importance to outweigh inevitable, but regrettable, incidental casualties to civilians and destruction of civilian objects … I would like to reiterate that it is recognized by all states that they may not lawfully use their weapons against civilian population[s] or civilians as such, but there is no rule of international law that restrains them from using weapons against enemy armed forces or military targets. The correct rule of international law which has applied in the past and continued to apply to the conduct of our military operations in Southeast Asia is that “the loss of life and damage to property must not be out of proportion to the military advantage to be gained”. 
United States, Letter from J. Fred Buzhardt, General Counsel of the Department of Defense, to Senator Edward Kennedy, Chairman of the Subcommittee on Refugees of the Committee on the Judiciary, 22 September 1972, AJIL, Vol. 67, 1973, p. 124.
United States of America
According to the Report on US Practice, at the 1974 Lucerne Conference of Government Experts on Weapons which may Cause Unnecessary Suffering or have Indiscriminate Effects, the United States rejected any effort to label weapons indiscriminate merely because they were likely to affect civilians as well as military objectives. The correct rule was that the law of war prohibits attacks which entail a high risk of civilian casualties clearly disproportionate to the military advantage sought. 
Report on US Practice, 1997, Chapter 1.4; Statement of 25 September 1974 at the Conference of Government Experts on Weapons which may Cause Unnecessary Suffering or have Indiscriminate Effects, Lucerne, 24 September–18 October 1974, reprinted in Arthur W. Rovine, Digest of United States Practice in International Law, 1974, Department of State Publication 8809, Washington, D.C., 1975, p. 713.
United States of America
Course material from the US Army War College states:
The Law of War does not ban the use of weapons when their effects cannot be strictly confined to the specific military objective. But this rule is true only so long as the rule of proportionality is not violated. However, a weapon which is incapable of being controlled, and thus will cause incidental damage without any reasonable likelihood of gaining a military advantage, is illegal. 
US Army War College Selected Readings, Advanced Course, Law for the Joint Warfighter, Vol. II, Second edition, 1989, p. 170.
United States of America
In 1992, a legal review by the US Department of the Air Force of the legality of extended range anti-armour munition stated:
International law also forbids the use of weapons or means of warfare which are “indiscriminate.” A weapon is indiscriminate if it cannot be directed at a military objective or if, under the circumstances, it produces excessive civilian casualties in relation to the concrete and direct military advantage anticipated. 
United States, Department of the Air Force, The Judge Advocate General, Legal Review: Extended Range Antiarmor Munition (ERAM), 16 April 1992, § 4.
United States of America
Prior to the adoption of UN General Assembly Resolution 47/37 in 1992 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”, which provided:
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 1993, in its report to Congress on the protection of natural and cultural resources during times of war, the US Department of Defense stated:
Finally, with the poor track record of compliance with the law of war by some nations, the United States has a responsibility to protect against threats that may inflict serious collateral damage to our own interests and allies. These threats can arise from any nation that does not have the capability or desire to respect the law of war. One example is Iraq’s indiscriminate use of SCUDs during the Iran–Iraq War and the Gulf War. These highly inaccurate theater ballistic missiles can cause extensive collateral damage well out of proportion to military results. 
United States, Department of Defense, Report to Congress on International Policies and Procedures Regarding the Protection of Natural and Cultural Resources During Times of War, 19 January 1993, p. 203.
No data.
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. Many but not all of those who commented were of the view that the definition was not intended to mean that there are means or methods of combat whose use would involve an indiscriminate attack in all circumstances. Rather, it was intended to take account of the fact that means or methods of combat which can be used perfectly legitimately in some situations could, in other circumstances, have effects that would be contrary to some limitations contained in the Protocol, in which event their use in those circumstances would involve an indiscriminate attack. 
CDDH, Official Records, Vol. XV, CDDH/215/Rev.1, Second session, Report of Committee III, 3 February–18 April 1975, p. 274, § 55.
International Conference of the Red Cross (1981)
The 24th International Conference of the Red Cross in 1981 adopted a resolution on disarmament, weapons of mass destruction and respect for non-combatants in which it urged parties to armed conflicts “not to use methods and means of warfare that cannot be directed against specific military targets and whose effects cannot be limited”. 
24th International Conference of the Red Cross, Manila, 7–14 November 1981, Res. XIII, § 1.
No data.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “Belligerent Parties and their armed forces shall abstain from using weapons whose harmful effects go beyond the control, in time or place, of those employing them.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 912(c).
Institute of International Law
In a resolution adopted during its Edinburgh Session in 1969, the Institute of International Law stated:
Existing international law prohibits the use of all weapons which, by their very nature, affect indiscriminately both military objectives and non-military objects, or both armed forces and civilian populations. In particular, it prohibits the use of weapons the destructive effect of which is so great that it cannot be limited to specific military objectives or is otherwise uncontrollable (self-generating weapons) as well as of “blind” weapons.  
Institute of International Law, Edinburgh Session, Resolution on the Distinction between Military Objectives and Non-military Objects in General and Particularly the Problems Associated with Weapons of Mass Destruction, 9 September 1969, § 7.