Practice Relating to Rule 6. Civilians’ Loss of Protection from Attack

Additional Protocol I
Article 50(1) of the 1977 Additional Protocol I provides: “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” 
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 50(1). Article 50 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 161.
Additional Protocol II (draft)
Article 25(4) of the draft Additional Protocol II, adopted by Committee III of the CDDH, provided: “In case of doubt as to whether a person is a civilian, he or she shall be considered to be a civilian”. 
CDDH, Official Records, Vol. XV, CDDH/215/Rev.1, 3 February–18 April 1975, p. 320.
This draft provision was adopted by consensus by Committee III. 
CDDH, Official Records, Vol. XV, CDDH/215/Rev.1, 3 February–18 April 1975, p. 290, § 121.
Eventually, however, it was deleted in the plenary by consensus. 
CDDH, Official Records, Vol. VII, CDDH/SR.52, 6 June 1977, p. 135.
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 50(1) 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 50(1) 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.
Argentina
Argentina’s Law of War Manual (1989) states: “In case of doubt about the qualification of a person, that person must be considered to be civilian.” 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 4.02(1).
Australia
Australia’s Defence Force Manual (1994) states: “In cases of doubt about civilian status, the benefit of the doubt is given to the person concerned.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 914.
Australia
Australia’s LOAC Manual (2006) states: “In cases of doubt about civilian status, the benefit of the doubt must be given to the person concerned.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.33.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “In case of doubt about the status of a person, that person must be considered to be a civilian.” 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 82.
Cameroon
Cameroon’s Instructor’s Manual (1992) states: “The benefit of the doubt confers upon a person the status of civilian.” 
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 17.
Cameroon
Cameroon’s Instructor’s Manual (2006) states: “Persons who do not belong to the Armed Forces and do not participate in a ‘levée en masse’ are considered civilians. In situations of doubt, civilian status should be accorded to the person in question.” 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 92, § 352.11; see also p. 134, § 412.11.
Canada
Canada’s LOAC Manual (1999) states: “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4–5, § 38.
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting: “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 429.
Canada
Canada’s Use of Force Manual (2008), in a section entitled “Principles and rules governing the use of force that directly relates to the conduct of armed conflict”, states: “Doubt rule. A person or object must not be attacked unless there is a reasonable belief that the person or object to be attacked is a military objective. In cases of doubt, a person is presumed to be a civilian …”. 
Canada, Use of Force for CF Operations, Canadian Forces Joint Publication, Chief of the Defence Staff, B-GJ-005-501/FP-001, August 2008, § 112.3.
Colombia
Colombia’s Instructors’ Manual (1999) states: “In case of doubt whether a person is civilian or not, that person must be considered to be civilian.” 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 16.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers): “Civilians must not be attacked. A civilian is a person who is not a member of the armed forces. In case of doubt, a person must be treated as a civilian.” 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 31; see also Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 21.
Croatia
Croatia’s LOAC Compendium (1991) states that, in case of doubt, persons have to be considered as civilians. 
Croatia, Compendium Law of Armed Conflicts, Republic of Croatia, Ministry of Defence, 1991, p. 6.
Dominican Republic
The Dominican Republic’s Military Manual (1980) states:
All persons participating in military operations or activities are considered combatants [and proper targets for attack]. Those who do not participate in such actions are non-combatants. This distinction is not always easy to make. Uniformed, armed soldiers are easily recognizable. However, guerrillas often mix with the civilians, perform undercover operations, and dress in civilian clothes. Alertness and caution must guide you in deciding who is a combatant. 
Dominican Republic, La Conducta en Combate según las Leyes de la Guerra, Escuela Superior de las FF. AA. “General de Brigada Pablo Duarte”, Secretaría de Estado de las Fuerzas Armadas, May 1980, p. 3.
Hungary
Hungary’s Military Manual (1992) states that, in case of doubt, persons have to be considered as civilians. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 17.
Ireland
Ireland’s Basic LOAC Guide (2005) states: “In case of doubt as to the status of [a] person … [they] shall be assumed to be civilian.” 
Ireland, Basic Guide to the Law of Armed Conflict, TP/TRG/01-2005, Director of Defence Forces Training, Department of Defence, July 2005, p. 10.
(emphasis in original)
Kenya
Kenya’s LOAC Manual (1997) states: “In case of doubt whether a person is a civilian or not, that person shall be considered a civilian.” 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 10.
Madagascar
Madagascar’s Military Manual (1994) states: “In case of doubt about the status of a person, that person shall be considered to be civilian.” 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 2-SO, § B.
Netherlands
The Military Manual (1993) of the Netherlands states: “In case of doubt whether a person is civilian, that person is considered to be a civilian.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-2.
Netherlands
The Military Manual (2005) of the Netherlands states: “If there is any doubt whether someone is a civilian, he or she is treated as a civilian.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0505.
In its chapter on the protection of the civilian population, the manual states: “If there is any uncertainty whether someone is a genuine civilian, this person is given the benefit of the doubt pending proof to the contrary, and must be treated as a civilian.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0805.
Philippines
The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) notes in its glossary: “Civilian person – means any person who does not belong to the armed forces and does not take part in a ‘levee en masse.’ In case of doubt whether a person is a civilian or not, that person shall be considered as a civilian.” 
Philippines, Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law, A Practical Guide for Internal Security Operations, 2006, p. 67, Glossary.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states: “In case of doubt whether a person is a civilian, that person shall be considered a civilian.” 
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, § 1.
South Africa
South Africa’s LOAC Manual (1996) contains a rule identical to that in Article 50(1) of the 1977 Additional Protocol I. 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 24(c). This manual is also included in Chapter 4 of the Draft Civic Education Manual of 1997.
South Africa
South Africa’s Revised Civic Education Manual (2004) states: “In cases of doubt as to whether a person is a civilian or not, that person shall be considered to be a civilian.” 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 47(c).
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
- In cases of doubt whether a person is a civilian, that person shall be considered to be a civilian (article 50.1 [1977] Additional Protocol I).
Conclusion
- If any doubt exists whether a person is a civilian, the person shall be considered to be a civilian.
Civilians
What is a “Civilian”?
- The wide application of the definition of “civilian” is enhanced by the provisions of article 50.1 of Additional Protocol I, which determines that in cases of doubt whether a person is a civilian, that person shall be considered to be a civilian.
It is clear that this extensive definition of “civilian population” and the presumption of a person being a civilian can cause practical difficulty for tactical military commanders, especially in guerrilla type conflicts. Complete and proper intelligence will be invaluable for such commanders to assist them in determining the status of persons who they might encounter and who are ostensibly civilians. Other factors that might be of assistance are circumstantial factors, such as the person’s behaviour, location and appearance in relation to other circumstances. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 53, 56–57 and 113–114; see also p. 123 and Learning Unit 3, p. 183.
[emphasis in original]
Spain
Spain’s LOAC Manual (1996) contains a rule identical to that in Article 50(1) of 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, § 4.5.b.(1).
Spain
Spain’s LOAC Manual (2007) states: “If there is any doubt about whether a person is a civilian or not, that person must be presumed to be a civilian.” 
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, § 4.5.b.(1).(b).
Sweden
Sweden’s IHL Manual (1991) states: “Where there is doubt whether a person is to be considered as a combatant or as a civilian, the person shall be considered as a civilian.” 
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. 42.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “Civilians are persons who are not members of the armed forces. In cases of doubt, persons are considered to be civilians.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.3.1.
The manual specifies:
In the practical application of the principle of civilian immunity and the rule of doubt, (a) commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time, (b) it is only in cases of substantial doubt after this assessment about the status of the individual in question, that the latter should be given the benefit of the doubt and treated as a civilian, and (c) the rule of doubt does not override the commander’s duty to protect the safety of troops under his command or to preserve the military situation. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.3.4.
United States of America
According to the Report on US Practice, the US military manuals do not adopt the position that in case of doubt a person shall be considered as civilian. 
Report on US Practice, 1997, Chapter 1.1, referring to: Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 60; Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 5-3; and The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 11.3.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states: “In case of doubt a person shall be considered as a civilian until proven otherwise.” 
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, § 67(3).
Croatia
On the basis of Croatia’s Constitution (1990) and Defence Law (1993), the Report on the Practice of Croatia states that Article 50 of the 1977 Additional Protocol I is directly applicable in Croatia’s internal legal order. 
Report on the Practice of Croatia, 1998, Answers to additional questions on Chapter 1, referring to Constitution, 1990, Article 134 and Defence Law, 1993, Article 39.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 50(1), is a punishable offence. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108(b).
Germany
In 2010, in the Fuel Tankers case, the Federal Prosecutor General at Germany’s Federal Court of Justice investigated whether war crimes or other crimes under domestic law had been committed in the course of an airstrike which was ordered by a colonel (Oberst) of the German armed forces against two tankers transporting fuel for the International Security Assistance Force in Afghanistan stolen by the Taliban near Kunduz and which resulted in the deaths of a number of civilians. The Federal Prosecutor General stated:
Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst) Klein and Company Sergeant Major (Hauptfeldwebel) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter. 
Germany, Federal Court of Justice, Federal Prosecutor General, Fuel Tankers case, Decision, 16 April 2010, p. 1.
The Federal Prosecutor General also stated:
Criminal responsibility under § 211 StGB [i.e. for murder under Germany’s Penal Code]
b)
Colonel (Oberst) Klein’s actions were lawful under international law and therefore justified under domestic criminal law …
cc)
Even considering the fact that the bombing killed civilians to be protected under the international law of armed conflict, the order to attack was lawful under international law.
(1)
… International humanitarian law … prohibits … attacks … against a military objective if at the time of the order to attack the anticipated civilian damage is out of proportion (“excessive” see Art. 51 para. 5 sub-para. b AP [1977 Additional Protocol] I to the anticipated concrete and direct military advantage (see ICRC Customary International Humanitarian Law, 2005 – hereafter ICRC Customary IHL [Study] – p. 46ff). …
(3)
The anticipated civilian collateral damages are also to be assessed from the perspective of the attacker at the time of the attack, rather than with hindsight according to the actual unfolding of events (see also the wording of Art. 51 para. 5 sub-para. b AP I … “may be expected”; ICRC Customary IHL [Study] p. 50 …). … The international law of armed conflict requires that in case of doubt a person is to be considered a civilian (see Art. 50 para. 1 sentence 2 AP I). However, there is no such case of doubt if – as is the case here – there are sufficient indications, considering the concrete circumstances, that the persons concerned are a legitimate objective of a military attack; absolute certainty is not necessary. 
Germany, Federal Court of Justice, Federal Prosecutor General, Fuel Tankers case, Decision, 16 April 2010, pp. 63–66.
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. …
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.
Djibouti
In 2010, in the History and Geography Textbook for 8th Grade, Djibouti’s Ministry of National Education and Higher Education, in an exercise asking students to identify IHL violations, provided the following example:
[A soldier reports:] “Quite often, soldiers exchange their uniforms for civilian clothes. How can we then know who is really a civilian? In such cases, if you attack a village, you must kill everything that moves.” 
Djibouti, Ministry of National Education and Higher Education, History and Geography Textbook for 8th Grade, 2010, p. 201.
The ministry also stated: “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” 
Djibouti, Ministry of National Education and Higher Education, History and Geography Textbook for 8th Grade, 2010, p. 201; see also p. 203.
Djibouti
In 2011, in the History and Geography Textbook for 9th Grade, Djibouti’s Ministry of National Education and Vocational Training stated: “In case of doubt about the status of a person, that person shall be considered to be a civilian.” 
Djibouti, Ministry of National Education and Vocational Training, History and Geography Textbook for 9th Grade, 2011, p. 211.
Egypt
On the basis of a proposal submitted by Egypt during the CDDH, the Report on the Practice of Egypt states: “To ensure more protection for civilians, Egypt is of the opinion that in case of doubt as to whether a person is a civilian, he or she shall be deemed to be so.” 
Report on the Practice of Egypt, 1997, Chapter 1.1, referring to Statement by Egypt at the CDDH, Official Records, Vol. IV, CDDH/III/33, 15 March 1974, p. 73.
France
Upon ratification of the 1977 Additional Protocol I, France stated:
The rule set out in the second sentence of the first paragraph of Article 50 [of the 1977 Additional Protocol I] cannot be interpreted as requiring a commander to take a decision which, according to the circumstances and information available to him, might not be compatible with his duty to ensure the safety of the troops under his command or to preserve his military situation, in conformity with other provisions of [the 1977 Additional Protocol I]. 
France, Declarations and reservations made upon ratification of the 1977 Additional Protocol I, 11 April 2001, § 9.
Malaysia
The Report on the Practice of Malaysia refers to the presumption of civilian character, adding that it governed the behaviour of the armed forces during the campaign against the communist insurgency. 
Report on the Practice of Malaysia, 1997, Answers to additional questions on Chapter 1.1.
Nigeria
The Report on the Practice of Nigeria states that a presumption of civilian character is held in case of doubt. It adds that during the Nigerian civil war, “the Federal Forces in situations of such doubt did not off-handedly indict or take away individuals of such doubtful civilian character”. They subjected such individuals to a test, in order to determine
the degree of hardness of … their fingers used in handling the trigger. Those found with hardened fingers were presumed to be soldiers (combatants). Although this is an unscientific method of identification, it nonetheless shows that Nigerian practice does not prima facie attribute the status of combatant to individuals of doubtful civilian character. 
Report on the Practice of Nigeria, 1997, Answers to additional questions on Chapter 1.1.
United Kingdom of Great Britain and Northern Ireland
Upon ratification of the 1977 Additional Protocol I, the United Kingdom expressed its understanding of the presumption of civilian character as only applicable
in cases of substantial doubt still remaining after the assessment [of the information from all sources which is reasonably available to military commanders at the relevant time] has been made, and not as overriding a commander’s duty to protect the safety of troops under his command or to preserve his military situation, in conformity with other provisions of [the 1977 Additional Protocol I]. 
United Kingdom, Declarations and reservations made upon ratification of the 1977 Additional Protocol I, 28 January 1998, § h.
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Commons, the UK Secretary of State for Defence, Mr Hoon, stated in reply to a question by a Member:
Alan Simpson (Nottingham, South): There have been some civilian casualties for which I am sure that even the Secretary of State would accept that there is a clear line of responsibility. They would include the seven women and children who were killed at a checkpoint and the 15 members of a single family who were killed when their lorry was attacked by an Apache helicopter. Will the Secretary of State tell the House whether current UK rules of engagement allow for such attacks on civilians; whether the rules of engagement for UK troops differ from those of US troops; whether he will place in the House of Commons Library the details of the two sets of rules of engagement; and whether he will confirm that, as has happened previously, any UK troops who were involved in instances of unjustified killings of civilians would be likely to face criminal charges?
Mr. Hoon: We do not comment in detail on rules of engagement, and certainly not on those of the United States. I would be a lot more persuaded by my hon. friend’s observations if, at the same time as mentioning the tragic deaths of seven women and children, he had also mentioned the deaths of the four US marines who were killed in a deliberate car bomb attack, perpetrated by a fanatic. In such circumstances, it is perhaps perfectly understandable – although I am not excusing it in any sense at all – that soldiers who are having to deal with a difficult situation at a checkpoint and who know that four of their comrades have been killed in that way are perhaps reacting in a way that we might not want them to. That is not to say that the accounts that have been given, again, by particular journalists are necessarily the only version of events that we should all accept. An investigation is going on into what went on at the checkpoints, and it is important that we await the outcome of that before judging the facts quite so prejudicially. 
United Kingdom, House of Commons, Statement by the Secretary of State for Defence, Hansard, 3 April 2003, Vol. 402, Debates, col. 1085.
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International Criminal Court
In its decision on the confirmation of charges in the Mbarushimana case in 2011, the ICC Pre-Trial Chamber I stated: “The term ‘civilian’[,] in accordance with article 50(1) of the AP I [1977 Additional Protocol I], applies to anyone who is not a combatant, and in case of doubt, the person shall be considered to be a civilian.” 
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, § 148
The charges against Mr Mbarushimana related to alleged war crimes and crimes against humanity. The Pre-Trial Chamber did not confirm the charges. 
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, § 340.
In its judgment of 30 May 2012, the ICC Appeals Chamber confirmed that decision and dismissed the appeal. 
ICC, Mbarushimana case, Judgment on Appeal, 30 May 2012.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Galić case in 2003, the ICTY Trial Chamber stated, inter alia:
The presence of individual combatants within the population does not change its civilian character. In order to promote the protection of civilians, combatants are under the obligation to distinguish themselves at all times from the civilian population; the generally accepted practice is that they do so by wearing uniforms, or at least a distinctive sign, and by carrying their weapons openly. In certain situations it may be difficult to ascertain the status of particular persons in the population. The clothing, activity, age, or sex of a person are among the factors which may be considered in deciding whether he or she is a civilian. A person shall be considered to be a civilian for as long as there is a doubt as to his or her real status. The Commentary to Additional Protocol I explains that the presumption of civilian status concerns “persons who have not committed hostile acts, but whose status seems doubtful because of the circumstances. They should be considered to be civilians until further information is available, and should therefore not be attacked”. The Trial Chamber understands that a person shall not be made the object of attack when it is not reasonable to believe, in the circumstances of the person contemplating the attack, including the information available to the latter, that the potential target is a combatant. 
ICTY, Galić case, Judgment, 5 December 2003, § 50.
International Criminal Tribunal for the former Yugoslavia
In the Strugar case before the ICTY in 2003, the accused, a Commander in the Yugoslav People’s Army (JNA), was charged, inter alia, with attacks on civilians as a violation of the laws or customs of war (Article 3 of the 1993 ICTY Statute), for his role in conducting a military campaign against the Dubrovnik region of Croatia. 
ICTY, Strugar case, Third Amended Indictment, 10 December 2003, §§ 14–18, Count 3.
In its judgment in 2008, the Appeals Chamber considered the mens rea requirement for the crime of attacks on civilians as a violation of the laws or customs of war (Article 3 of the 1993 ICTY Statute), stating:
As specified by the Trial Chamber in the Galić case,
For the mens rea recognized by [1977] Additional Protocol I to be proven, the Prosecution must show that the perpetrator was aware or should have been aware of the civilian status of the persons attacked. In case of doubt as to the status of a person, that person shall be considered to be a civilian. However, in such cases, the Prosecution must show that in the given circumstances a reasonable person could not have believed that the individual he or she attacked was a combatant. Galić case, Judgement, § 55]. 
ICTY, Strugar case , Judgment on Appeal, 17 July 2008, § 271.
[footnotes in original omitted]
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Dragomir Milošević case in 2007, the ICTY Trial Chamber stated:
The generally accepted practice is that combatants distinguish themselves by wearing uniforms, or, at the least, a distinctive sign, and by carrying their weapons openly. Other factors that may help determine whether a person is a civilian include his or her clothing, activity, age or sex. In cases of doubt whether a person is a civilian, that person shall be considered to be a civilian. As stated in the Commentary on Additional Protocol I, the presumption of civilian status applies to:
“[p]ersons who have not committed hostile acts, but whose status seems doubtful because of the circumstances. They should be considered to be civilians until further information is available, and should therefore not be attacked.” 
ICTY, Dragomir Milošević case, Judgment, 12 December 2007, § 946.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “In case of doubt whether a person is a civilian or not, that person shall be considered as a civilian.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 52.
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