Rule 11. Indiscriminate Attacks
Rule 11. Indiscriminate attacks are prohibited.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The prohibition of indiscriminate attacks is set forth in Article 51(4) of Additional Protocol I.[1] At the Diplomatic Conference leading to the adoption of the Additional Protocols, France voted against Article 51 because it deemed that paragraph 4 by its “very complexity would seriously hamper the conduct of defensive military operations against an invader and prejudice the inherent right of legitimate defence recognized in Article 51 of the Charter of the United Nations”.[2] Upon ratification of Additional Protocol I, however, France did not enter a reservation with respect to the prohibition of indiscriminate attacks. At the Diplomatic Conference leading to the adoption of the Additional Protocols, Mexico stated that Article 51 was 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”.[3] The prohibition of indiscriminate attacks is also contained in Protocol II and Amended Protocol II to the Convention on Certain Conventional Weapons.[4]
A large number of military manuals specify that indiscriminate attacks are prohibited.[5] Numerous States have adopted legislation making it an offence to carry out such attacks.[6] The prohibition is supported by official statements and reported practice.[7] This practice includes that of States not, or not at the time, party to Additional Protocol I.[8]
In their pleadings before the International Court of Justice in the Nuclear Weapons case and Nuclear Weapons (WHO) case, several States invoked the prohibition of indiscriminate attacks in their assessment of whether an attack with nuclear weapons would violate international humanitarian law.[9]
When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to respect the prohibition of indiscriminate attacks, the States concerned (Egypt, Iraq, Israel and Syrian Arab Republic) replied favourably.[10]
The prohibition of indiscriminate attacks was included in the draft of Additional Protocol II but was dropped at the last moment as part of a package aimed at the adoption of a simplified text.[11] As a result, Additional Protocol II does not contain this rule as such, even though it has been argued that it is included by inference within the prohibition against making the civilian population the object of attack contained in Article 13(2).[12] This rule has been included in more recent treaty law applicable in non-international armed conflicts, namely Amended Protocol II to the Convention on Certain Conventional Weapons.[13] In addition, the prohibition has been included in other instruments pertaining also to non-international armed conflicts.[14]
Military manuals which are applicable in or have been applied in non-international armed conflicts specify the prohibition of indiscriminate attacks.[15] Numerous States have adopted legislation making it an offence to carry out such attacks in any armed conflict.[16] A number of official statements pertaining to non-international armed conflicts refer to this rule.[17] The pleadings before the International Court of Justice in the Nuclear Weapons case referred to above were couched in general terms applicable in all armed conflicts.
No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged violations of this rule have generally been condemned by States, irrespective of whether the conflict was international or non-international.[18] The United Nations and other international organizations have also condemned violations of this rule, for example, in the context of the conflicts in Afghanistan, Bosnia and Herzegovina, Burundi, Chechnya, Kosovo, Nagorno-Karabakh and Sudan.[19]
The jurisprudence of the International Criminal Tribunal for the Former Yugoslavia provides further evidence of the customary nature of the prohibition of indiscriminate attacks in both international and non-international armed conflicts.[20]
The 25th International Conference of the Red Cross in 1986 deplored “the indiscriminate attacks inflicted on civilian populations … in violation of the laws and customs of war”.[21] The ICRC has reminded parties to both international and non-international armed conflicts of their duty to abstain from indiscriminate attacks.[22]
[1] Additional Protocol I, Article 51(4) (adopted by 77 votes in favour, one against and 16 abstentions) (cited in Vol. II, Ch. 3, § 1).
[2] France, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols (ibid., § 73).
[3] Mexico, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols (ibid., § 228).
[4] Protocol II to the Convention on Certain Conventional Weapons, Article 3(3) (ibid., § 4); Amended Protocol II to the Convention on Certain Conventional Weapons, Article 3(8) (ibid., § 4).
[5] See, e.g., the military manuals of Argentina (ibid., §§ 12–13), Australia (ibid., §§ 12 and 14), Belgium (ibid., § 12), Benin (ibid., § 12), Cameroon (ibid., § 15), Canada (ibid., §§ 12 and 16), Ecuador (ibid., § 17), France (ibid., § 12), Germany (ibid., § 18), India (ibid., § 19), Indonesia (ibid., § 12), Israel (ibid., §§ 12 and 21), Italy (ibid., § 22), Kenya (ibid., § 12), Netherlands (ibid., §§ 12 and 23), New Zealand (ibid., §§ 12 and 24), Russian Federation (ibid., § 26), South Africa (ibid., §§ 12 and 27), Spain (ibid., § 12), Sweden (ibid., § 12), Switzerland (ibid., § 29), Togo (ibid., § 12) and United Kingdom (ibid., § 12).
[6] See, e.g., the legislation of Armenia (ibid., § 32), Australia (ibid., § 34), Belarus (ibid., § 35), Belgium (ibid., § 36), Bosnia and Herzegovina (ibid., § 37), Canada (ibid., § 38), China (ibid., § 39), Colombia (ibid., § 40), Cook Islands (ibid., § 41), Croatia (ibid., § 42), Cyprus (ibid., § 43), Estonia (ibid., § 45), Georgia (ibid., § 46), Indonesia (ibid., § 47), Ireland (ibid., § 48), Lithuania (ibid., § 51), Netherlands (ibid., § 52), New Zealand (ibid., § 53), Niger (ibid., § 55), Norway (ibid., § 56), Slovenia (ibid., § 57), Spain (ibid., § 58), Sweden (ibid., § 59), Tajikistan (ibid., § 60), United Kingdom (ibid., § 61), Yugoslavia (ibid., § 62) and Zimbabwe (ibid., § 63); see also the draft legislation of Argentina (ibid., § 32), El Salvador (ibid., § 44), Jordan (ibid., § 49), Lebanon (ibid., § 50) and Nicaragua (ibid., § 54).
[7] See, e.g., the statements of Bosnia and Herzegovina (ibid., § 66), Botswana (ibid., § 67), Finland (ibid., § 72), Monitoring Group on the Implementation of the 1996 Israel-Lebanon Ceasefire Understanding, consisting of France, Israel, Lebanon, Syrian Arab Republic and United States (ibid., § 75), Germany (ibid., § 76), Islamic Republic of Iran (ibid., § 79), Iraq (ibid., §§ 80–81), Malaysia (ibid., § 83), Poland (ibid., § 89), Slovenia (ibid., § 91), South Africa (ibid., § 92), Sweden (ibid., § 93), Syrian Arab Republic (ibid., § 94), United Kingdom (ibid., §§ 95–97), United States (ibid., § 98) and Yugoslavia (ibid., § 100) and the reported practice of Malaysia (ibid., § 84).
[8] See, e.g., the practice of China (ibid., § 39), France (ibid., § 74), India (ibid., § 19), Indonesia (ibid., § 12), Islamic Republic of Iran (ibid., § 79), Iraq (ibid., § 80), Israel (ibid., §§ 12 and 21), Kenya (ibid., § 12), Malaysia (ibid., §§ 83–84), South Africa (ibid., § 92), United Kingdom (ibid., §§ 12 and 95–97) and United States (ibid., §§ 30 and 98).
[9] See. e.g., the pleadings of Australia (ibid., § 65), India (ibid., § 77), Mexico (ibid., § 85), New Zealand (ibid., § 86) and United States (ibid., § 99).
[10] See ICRC, The International Committee’s Action in the Middle East (ibid., § 139).
[11] Draft Additional Protocol II submitted by the ICRC to the Diplomatic Conference leading to the adoption of the Additional Protocols, Article 26(3) (ibid., § 3).
[12] Michael Bothe, Karl Joseph Partsch, Waldemar A. Solf (eds.), New Rules for Victims of Armed Conflicts, Martinus Nijhoff, The Hague, 1982, p. 677.
[13] Amended Protocol II to the Convention on Certain Conventional Weapons, Article 3(8) (cited in Vol. II, Ch. 3, § 4).
[14] See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia, § 6 (ibid., § 6); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, § 2.5 (ibid., § 7); San Remo Manual, § 42 (ibid., § 8); Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines, Part III, Article 2(4) (ibid., § 10); UN Secretary-General’s Bulletin, Section 5.5 (ibid., § 11).
[15] See, e.g., the military manuals of Australia (ibid., §§ 12 and 14), Benin (ibid., § 12), Ecuador (ibid., § 17), Germany (ibid., § 18), India (ibid., §§ 19–20), Italy (ibid., § 22), Kenya (ibid., § 12), South Africa (ibid., §§ 12 and 27) and Togo (ibid., § 12).
[16] See, e.g., the legislation of Armenia (ibid., § 33), Belarus (ibid., § 35), Belgium (ibid., § 36), Bosnia and Herzegovina (ibid., § 37), Colombia (ibid., § 40), Croatia (ibid., § 42), Estonia (ibid., § 45), Georgia (ibid., § 46), Lithuania (ibid., § 51), Niger (ibid., § 55), Norway (ibid., § 56), Slovenia (ibid., § 57), Spain (ibid., § 58), Sweden (ibid., § 59), Tajikistan (ibid., § 60) and Yugoslavia (ibid., § 62); see also the draft legislation of Argentina (ibid., § 32), El Salvador (ibid., § 44), Jordan (ibid., § 49) and Nicaragua (ibid., § 54).
[17] See, e.g., the statements of Germany (ibid., § 76), India (ibid., §§ 77–78), Malaysia (ibid., §§ 83–84) and Slovenia (ibid., § 91).
[18] See, e.g., the statements of Bosnia and Herzegovina (ibid., § 66), Botswana (ibid., § 67), Islamic Republic of Iran (ibid., § 79), Iraq (ibid., §§ 80–81), Malaysia (ibid., § 83), Slovenia (ibid., § 91), South Africa (ibid., § 92), United Kingdom (ibid., §§ 95–97), United States (ibid., § 98) and Yugoslavia (ibid., § 100).
[19] See, e.g., UN Security Council, Res. 1199 (ibid., § 102) and Statement by the President (ibid., § 103); UN General Assembly, Res. 40/137 (ibid., § 106), Res. 48/153, 49/196 and 50/193 (ibid., § 107), Res. 51/112 (ibid., § 108), Res. 53/164 (ibid., § 109), Res. 55/116 (ibid., § 110); UN Commission on Human Rights, Res. 1987/58 and 1995/74 (ibid., § 111), Res. 1992/S-2/1 and 1993/7 (ibid., § 112), Res. 1994/75 and 1995/89 (ibid., § 113), Res. 1995/77, 1996/73, 1997/59 and 1998/67 (ibid., § 114), Res. 1998/82 (ibid., § 115), Res. 2000/58 (ibid., § 116); Council of Europe, Committee of Ministers, Declaration on Nagorno-Karabakh (ibid., § 125) and Declaration on Bosnia and Herzegovina (ibid., § 126); Council of Europe, Parliamentary Assembly, Res. 1055 (ibid., § 127); EC, Ministers of Foreign Affairs, Declaration on Yugoslavia (ibid., § 128); EC, Statement on the bombardment of Goražde and Declaration on Yugoslavia (ibid., § 129); EU, Council of Ministers, Council Regulation EC No. 1901/98 (ibid., § 130); European Council, SN 100/00, Presidency Conclusions (ibid., § 131).
[20] ICTY, Tadić case, Interlocutory Appeal (ibid., § 134) Kordić and Čerkez case, Decision on the Joint Defence Motion (ibid., § 136) and Kupreškić case, Judgment (ibid., § 137).
[21] 25th International Conference of the Red Cross, Res. I (ibid., § 133).
[22] See, e.g., the practice of the ICRC (ibid., §§ 139–142, 144–154 and 156–157).
