Practice Relating to Rule 12. Definition of Indiscriminate Attacks

Indiscriminate attacks are those that may strike legitimate targets and civilians or civilian objects without distinction. They are prohibited. Indiscriminate attacks are:

Indiscriminate attacks are those that may strike legitimate targets and civilians or civilian objects without distinction. They are prohibited. Indiscriminate attacks are:

Indiscriminate attacks are those that can strike legitimate objectives as well as civilians and civilian objects without distinction. They are prohibited. They are:

In any attack, it is a duty to ensure that:

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:

…

The determination of the objective must therefore precede the attack. 

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:

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. 

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

…

- Indiscriminate attacks.

- Indiscriminate attacks are prohibited by Additional Protocol I article 51.4. These are:

Indiscriminate attacks are:

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. 

6.(1) No person may use or direct any mine, booby-trap or other device–

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:

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.

…

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. 

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:

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

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

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

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

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

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

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

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

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).  

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. 

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. 

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]. 

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. 

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. 

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. 

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. 

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. 

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. 

Indiscriminate attacks are those that may strike legitimate targets and civilians or civilian objects without distinction. They are prohibited. Indiscriminate attacks are:

Indiscriminate attacks are those that may strike legitimate targets and civilians or civilian objects without distinction. They are prohibited. Indiscriminate attacks are:

Indiscriminate attacks are those that can strike legitimate objectives as well as civilians and civilian objects without distinction. They are prohibited. They are:

Weapons that are incapable of being controlled in the sense that they can be directed at a military target are forbidden as being indiscriminate in their effect … A weapon is not indiscriminate simply because it may cause incidental or collateral civilian casualties, provided such casualties are not foreseeably excessive in light of the expected military advantage to be gained. 

In any attack, it is a duty to ensure that:

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:

[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. 

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:

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. 

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

…

- Indiscriminate attacks.

And consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. 

- Indiscriminate attacks are prohibited by Additional Protocol I article 51.4. These are:

Indiscriminate military objectives are those in which military objects and civilian and civil objects cannot be distinguished and therefore attacking them will cause civilian damages excessive in relation to the direct military advantage anticipated. Indiscriminate attacks are prohibited. Indiscriminate attacks are those:

Indiscriminate attacks are:

The existing law of armed conflict does not prohibit the use of weapons whose destructive force cannot strictly be confined to the specific military objective. Weapons are not unlawful simply because their use may cause incidental casualties to civilians and destruction of civilian objects. Nevertheless, particular weapons or methods of warfare may be prohibited because of their indiscriminate effects … Indiscriminate weapons are those incapable of being controlled, through design or function, and thus they can not, with any degree of certainty, be directed at military objectives. 

Weapons that are incapable of being controlled enough to direct them against a military objective … are forbidden. A weapon is not unlawful simply because its use may cause incidental or collateral casualties to civilians, as long as those casualties are not foreseeably excessive in light of the expected military advantage. 

Weapons that are incapable of being controlled (i.e., directed at a military target) are forbidden as being indiscriminate in their effect … A weapon is not indiscriminate simply because it may cause incidental or collateral civilian casualties, provided such casualties are not foreseeably excessive in light of the expected military advantage to be gained. 

attacks that employ a method or means of combat that cannot be directed at a specific military objective (e.g., declaring an entire city a single military objective and attacking it by bombardment when there are actually several distinct military objectives throughout the city that could be targeted separately). 

6. (1) No person may use or direct any mine, booby-trap or other device–

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:

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.

…

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.  

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:

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

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

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

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

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

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

The definition of indiscriminate attack contained in paragraph 4 of Article 46 [now Article 51of 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. 

[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). 

The prohibition of indiscriminate attacks or of attacks which employed methods or means of combat that could not be directed at a specific military objective was of the utmost importance, since it re-established the priority of humanitarian principles over the uncontrolled development and barbarous use of highly sophisticated weapons and means of warfare, which from the outset disregarded the fundamental rights of the human being. 

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. 

The Federal Government has no reliable information on the use of such ammunition. The use of means of warfare which cannot be directed against a specific military objective, so-called indiscriminate attacks, would be prohibited … This would depend not only on the type of ammunition but also on the circumstances of their use. 

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. 

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. 

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. 

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. 

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. 

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. 

A weapon must be discriminating, or capable of being controlled (i.e., it can be directed against intended targets). Those weapons which cannot be employed in a manner which distinguishes between lawful combatants and noncombatants violate these principles. Indiscriminate weapons are prohibited by customary international law and treaty law. 

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. 

The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets … In conformity with the aforementioned principles, humanitarian law, at a very early stage, prohibited certain types of weapons either because of their indiscriminate effect on combatants and civilians … Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law. 

Very important also … is the requirement of humanitarian law that weapons may not be used which are incapable of discriminating between civilian and military targets.

The requirement that a weapon be capable of differentiating between military and civilian targets is not a general principle of humanitarian law specified in the 1899, 1907 or 1949 law, but flows from the basic rule that civilians may not be the target of attack … It may be concluded that a weapon will be unlawful per se if it is incapable of being targeted at a military objective only, even if collateral damage occurs. 

[I]ndiscriminate attacks, that is attacks which affect civilians or civilian objects and military objects without distinction, may also be qualified as direct attacks on civilians. In this regard, a direct attack against civilians can be inferred from the indiscriminate character of the weapon used. 

[T]he Trial Chamber correctly stated the applicable law when it held that “a direct attack against civilians can be inferred from the indiscriminate weapon used.” The Trial Chamber also stated the requirement that “the attacks resulted in death or serious bodily injury within the civilian population at the time of such attacks”.  [footnotes in original omitted]

From on or about 10 August 1994 to on or about 21 November 1995, Dragomir Milošević, as Commander of Bosnian Serb forces comprising or attached to the Sarajevo Romanija Corps and/or forces affiliated with the VRS [Army of Republika Srpska], conducted a campaign of artillery and mortar and modified air bomb shelling onto civilian areas of Sarajevo and upon its civilian population. The shelling attacks on Sarajevan civilians were deliberate, indiscriminate, and/or excessive and disproportionate to the concrete and direct military advantage anticipated. In particular … given the inherent inability of modified airbombs to engage specific targets, their deployment could only have been intended to cause civilian casualties. The campaign of shelling resulted in over a thousand civilians being killed or injured. 

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.  

Indiscriminate attacks are those that may strike legitimate targets and civilians or civilian objects without distinction. They are prohibited. Indiscriminate attacks are:

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. 

Indiscriminate attacks are those that may strike legitimate targets and civilians or civilian objects without distinction. They are prohibited. Indiscriminate attacks are:

Indiscriminate attacks are those that can strike legitimate objectives as well as civilians and civilian objects without distinction. They are prohibited. They are:

In any attack, it is a duty to ensure that:

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:

[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. 

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:

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. 

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. 

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

…

- Indiscriminate attacks.

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

Indiscriminate attacks are:

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. 

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:

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.

…

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. 

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:

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

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

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

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

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

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

The 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. 

[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. 

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. 

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. 

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. 

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. 

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”. 

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. 

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. 

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. 

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. 

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. 

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.