Practice Relating to Rule 13. Area Bombardment

Additional Protocol I
Article 51(5)(a) of the 1977 Additional Protocol I provides:
Among others, the following types of attacks are to be considered as indiscriminate:
a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians and civilian objects. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 51(5)(a). Article 51 was adopted by 77 votes in favour, one against and 16 abstentions. CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 163.
Additional Protocol II (draft)
Article 26(3)(a) of the draft Additional Protocol II submitted by the ICRC to the CDDH provided that it was forbidden “to attack without distinction, as one single objective, by bombardment or any other method, a zone containing several military objectives, which are situated in populated areas and are at some distance from each other”. 
CDDH, Official Records, Vol. I, Part Three, Draft Additional Protocols, June 1973, p. 40.
Committee III of the CDDH amended this proposal and adopted the amended proposal, by 25 votes in favour, 13 against and 24 abstentions, while Article 26 as a whole was adopted by Committee III by 44 votes in favour, none against and 22 abstentions. 
CDDH, Official Records, Vol. XIV, CDDH/III/SR.37, 4 April 1975, pp. 390 and 391, §§ 14 and 15.
The adopted text provided:
An attack by bombardment by any methods or means which treats as a single military objective a number of clearly separate and distinct military objectives located in a city, town, village, or other area containing a concentration of civilians or civilian objects is to be considered as indiscriminate. 
CDDH, Official Records, Vol. XV, CDDH/215/Rev.1, 3 February–18 April 1975, p. 321.
Eventually, however, the proposal to retain this paragraph was rejected in the plenary by 30 votes in favour, 25 against and 34 abstentions. 
CDDH, Official Records, Vol. VII, CDDH/SR.52, 6 June 1977, p. 134.
Amended Protocol II to the Convention on Certain Conventional Weapons
Article 3(9) of the 1996 Amended Protocol II to the Convention on Certain Conventional Weapons provides: “Several clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians and civilian objects are not to be treated as a single military objective.” 
Protocol on Prohibitions on the Use of Mines, Booby-Traps and Other Devices, as amended, to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 3 May 1996, Article 3(9).
Hague Rules of Air Warfare
Article 24(3) of the 1923 Hague Rules of Air Warfare provides:
The bombardment of cities, towns, villages, dwellings or buildings not in the immediate neighbourhood of the operations of land forces is prohibited. In cases where [military objectives] are so situated, that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bombardment. 
Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare, Part II, drafted by a Commission of Jurists, The Hague, December 1922–February 1923, Article 24(3).
New Delhi Draft Rules
Article 10 of the 1956 New Delhi Draft Rules provides:
It is forbidden to attack without distinction, as a single objective, an area including several military objectives at a distance from one another where elements of the civilian population, or dwellings, are situated in between the said military objectives. 
Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, drafted by the International Committee of the Red Cross, September 1956, submitted to governments for their consideration on behalf of the 19th International Conference of the Red Cross, New Delhi, 28 October–7 November, Res. XIII, Article 10.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 51(5)(a) of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 51(5)(a) of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
Australia
Australia’s Commanders’ Guide (1994) states: “Indiscriminate attacks [include] those which … employ any methods or means which treat, as a single military object, a number of clearly separated military objectives in an area where there is a concentration of civilians”. 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 956(d).
Australia
Australia’s Defence Force Manual (1994) states:
An example of an indiscriminate attack would be to bomb a city, town, village or area as though it were a single military objective when it contains a number of separate and distinct military objectives mixed in with a similar concentration of civilians and civilian objects. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 502(b)(3).
Australia
Australia’s LOAC Manual (2006) states:
An example of an indiscriminate attack would be to bomb a city, town, village or area as though it were a single military objective when it contains a number of separate and distinct military objectives mixed in with a similar concentration of civilians and civilian objects. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.2.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) prohibits “bombardment which treats as a single military objective a certain number of military objectives clearly separated and distinct and located in an area containing a similar concentration of civilian persons and objects”. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 28.
Benin
Benin’s Military Manual (1995) provides that “carpet bombings are an example of indiscriminate attack” and are, as such, prohibited. 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule III, p. 13.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states that “an attack which treats as a single military objective a number of clearly separated and distinct [military] objectives located in a town, village, or other area containing a similar concentration of civilians and civilian objects, is prohibited”. 
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. 63.
Cameroon
Cameroon’s Instructor’s Manual (2006), under the heading “Civilian Victims of Armed Conflict”, lists “bombarding and destroying civilian objects” as an example of “conduct that is prohibited and remains contrary to the law of armed conflict and international humanitarian law during all military operations, whether in offence or in defence”. 
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. 60, § 252; see also p. 86, § 342.
Under the same heading, the manual also lists “conducting bombardments of residential areas” as another example of conduct prohibited by the law of armed conflict. 
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. 60, § 252; see also p. 86, § 342 and p. 258, § 613.
The manual further states: “Blind bombardments are formally prohibited just like any other disproportionate attack.” 
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. 59, § 251; see also p. 85, § 341, p. 230, § 542 and p. 259, § 614.
Canada
Canada’s LOAC Manual (1999) gives the following as an example of an indiscriminate attack and, as such, prohibited:
An attack by bombardment by any methods or means which treats as a single legitimate target a number of clearly separated and distinct legitimate targets located in a city, town, village or other area containing a similar concentration of civilians or civilian objects. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-3, §§ 22 and 23(a); see also p. 6-3, § 28 (land warfare) and pp. 8-5/8-6, § 38 (naval warfare).
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting:
1. Indiscriminate attacks are those that may strike legitimate targets and civilians or civilian objects without distinction. They are prohibited …
2. The following are examples of indiscriminate attacks:
a. an attack by bombardment by any methods or means which treats as a single legitimate target a number of clearly separated and distinct legitimate targets located in a city, town, village or other area containing a similar concentration of civilians or civilian objects. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 416.1 and 2.a.
In its chapter on land warfare, the manual states:
The bombardment of any legitimate target must not be “indiscriminate.” It is prohibited to carry out an attack by bombardment by any means (aircraft, artillery, mortars, naval fire, missiles, etc.) that treats as a single legitimate target a number of clearly separated and distinct legitimate targets in an urban area or an area containing a similar concentration of civilians or civilian objects. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 613.1.
In its chapter on naval warfare, the manual states:
1. The bombardment of any legitimate target must not be “indiscriminate”. It is prohibited to carry out an attack by bombardment by any means (such as aircraft, naval fire and missiles) that treats as a single legitimate target a number of clearly separated and distinct legitimate targets in an urban area or an area containing a similar concentration of civilians or civilian objects.
2. This prohibition applies to shore bombardments by naval forces. In this respect, “shore bombardments” include bombardments from both ships and aircraft. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 827.1.–2.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police) that “carpet bombing is an example of an indiscriminate attack.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 3: Formation pour l’obtention du Brevet d’Armes No. 1, du Brevet d’Armes No. 2 et le stage d’Officier de Police Judiciaire (OPJ), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter III, Section 1.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book IV (Instruction of heads of division and company commanders):
Indiscriminate attacks are those that can strike legitimate objectives as well as civilians and civilian objects without distinction. They are prohibited. …
Examples of indiscriminate attacks:
- a bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 28–29.
Croatia
Croatia’s Commanders’ Manual (1992) provides: “Distinct objectives and targets within or in close vicinity to civilian objects shall be attacked separately.” 
Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, § 51.
Germany
Germany’s Military Manual (1992) states that, when “a number of clearly separated and distinct military objectives located in a built-up area are attacked as if they were one single military objective”, it constitutes an indiscriminate attack and is, as such, prohibited. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten KonfliktenHandbuch, August 1992, §§ 454 and 456.
Israel
Israel’s Manual on the Laws of War (1998) provides: “It is forbidden to regard an area with mixed military objectives and civilian objects as a single target area.” 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 38.
Israel
Israel’s Manual on the Rules of Warfare (2006) states: “Bombing a city … will not necessarily weaken the enemy’s army, it will merely cause unnecessary suffering, and such actions are morally tainted on humanitarian grounds.” 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 8.
The manual further states: “No area in which military targets are combined with civilian targets may be considered as merely another target.” 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 27.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Italy’s LOAC Elementary Rules Manual (1991) stipulates that “distinct objectives within or in close vicinity to civilian objects shall be attacked separately”. 
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 51.
Kenya
Kenya’s LOAC Manual (1997) provides that “area bombardment is an example of an indiscriminate attack” and is, as such, prohibited. 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 4, p. 3.
Madagascar
Madagascar’s Military Manual (1994) states: “Distinct objectives, aims and targets within or in close vicinity to civilian objects shall be attacked separately.” 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 6-O, § 22.
Netherlands
The Military Manual (1993) of the Netherlands provides that “attacks (by bombardment) which treat as a single military objective a number of clearly separated and distinct military objectives located in a city, village or area containing a concentration of civilians or civilian objects” are an example of indiscriminate attacks and, as such, prohibited. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-4.
Netherlands
The Military Manual (2005) of the Netherlands states:
The following attacks are also considered indiscriminate:
- what is known as carpet bombing. In AP I [1977 Additional Protocol I], this is described as attacks (by bombing) which treat as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0516.
New Zealand
New Zealand’s Military Manual (1992) states that “an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects” is an indiscriminate attack and, as such, prohibited. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 517(1)(5)(a) (land warfare) and § 630(1)(5)(a) (air warfare).
Peru
Peru’s IHL Manual (2004) states:
It is prohibited to launch an attack that treats a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects as a single military objective. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 29.m.
The manual also states: “Scattered military objectives in densely populated areas must be treated as separate targets and attacked separately.” 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 29.k.(2).
The manual further states:
Any bombardment of cities, towns, villages, habitations and buildings which are not situated in the immediate vicinity of the operations of the land forces is forbidden. Should the specified objectives be so situated that they could not be bombed without an undiscriminating bombardment of the civilian population occurring as a result, the aircraft must abstain from bombing. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 172.e.
Peru
Peru’s IHL and Human Rights Manual (2010) states: “It is prohibited to launch an attack that treats as a single military objective various clearly separated and distinct military objectives situated in a city, town, village or any other area with a similar concentration of civilians and civilian objects.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 30(m), p. 244.
The manual further states: “Scattered military objectives in densely populated areas must be considered as separate military objectives and attacked separately.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 30(k)(2), p. 243.
The manual further states:
The bombardment of towns, villages, habitations and buildings which are not in the immediate proximity of the operations of the land forces is prohibited. Should the specified objectives be so situated that they could not be bombed without an undiscriminating bombardment of the civilian population occurring as a result, the aircrafts must abstain from bombing. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 63(e), p. 343 .
In its Glossary of Terms, the manual also states: “Indiscriminate Bombardments … [a]re indiscriminate attacks against military objectives without consideration to the proximity of civilians in the area.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, p. 398.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
It is prohibited to attack as a single military objective (target) a number of clearly separated and distinct military objectives (targets) located in a built-up area or place containing a concentration of protected persons and objects, and launch any indiscriminate attacks. 
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, § 21; see also § 54.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
[1977] Additional Protocol I article 51.5 specifically states that, amongst others, the following types of attacks are indiscriminate:
- An attack by bombardment by any method or means which treats a number of clearly separated and distinct military objectives located in a city, town, village or other area containing [a] similar concentration of civilian[s] or civilian objects as a single military objective[.]  
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, p. 119.
Spain
Under Spain’s LOAC Manual (1996), an attack launched while “considering as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a concentration of civilians and civilian objects” is an indiscriminate attack and, as such prohibited. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, División de Operaciones, 18 March 1996, Vol. I, § 4.4.d.
Spain
Spain’s LOAC Manual (2007) states:
An attack that treats a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects as a single military objective is considered to be an indiscriminate attack and therefore prohibited. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 4.4.d.
Sweden
Sweden’s IHL Manual (1991) states:
If the military objectives are located in a densely-populated area which has been evacuated only to a limited extent if at all, area bombardment may not be employed since this would be a breach of the basic rule prohibiting indiscriminate attack. Moreover, area bombardment would most probably lead to excessive injury and losses, and would thus be a breach of the proportionality rule. 
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. 47.
Switzerland
Switzerland’s Basic Military Manual (1987) notes that “area bombardments are prohibited”. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 29, commentary.
Togo
Togo’s Military Manual (1996) provides that “carpet bombings are an example of indiscriminate attack” and, as such, prohibited. 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule III, p. 13.
Ukraine
Ukraine’s IHL Manual (2004) states:
It is prohibited to attack as a single target (objective) several clearly separated and distinct military objectives located in a city, village or other area containing a concentration of persons and objects protected by international humanitarian law. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 2.4.2.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) stipulates that “area bombardment is an example of an indiscriminate attack” and is, as such, prohibited. 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 4, p. 15, § 5(j).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
The following are examples of indiscriminate attacks:
a. “an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.23.2.
United States of America
The US Air Force Pamphlet (1976) quotes Article 24(3) of the 1923 Hague Rules of Air Warfare, specifying, however, that “they do not represent existing customary law as a total code”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 5-2(c).
The Pamphlet also restates the opinion of a legal scholar concerning target area bombing:
Any legal justification of target-area bombing must be based on two factors. The first must be the fact that the area is so preponderantly used for war industry as to impress that character on the whole of the neighborhood, making it essentially an indivisible whole. The second factor must be that the area is so heavily defended from air attack that the selection of specific targets within the area is impracticable.
In such circumstances, the whole area might be regarded as a defended place from the standpoint of attack from the air, and its status, for that purpose, is assimilated to that of a defended place attacked by land troops. In the latter case, the attacking force may attack the whole of the defended area in order to overcome the defense, and incurs no responsibility for unavoidable damage to civilians and nonmilitary property caused by the seeking-out of military objectives in the bombardment. Legal justification for target-area bombing would appear to rest upon analogous reasoning. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 5-2(d), referring to Morris Greenspan, The Modern Law of Land Warfare, University of California Press, Berkeley, 1959, p. 336.
The Pamphlet states, however: “In fact, the use of target area bombing in populated areas has always been controversial.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 5-2(d), footnote 9, referring to James M. Spaight, Air Power and War Rights, Longmans, Green and Co., London/New York/Toronto, Third edition, 1947, p. 272 and Julius Stone, Legal Controls of International Conflict, Garland Publishing, New York/London, 1973, p. 627.
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).
Finland
Finland’s Criminal Code (1889), as amended in 2008, provides that any person who “attacks undefended civilian targets or bombs them” shall be “sentenced for a war crime to imprisonment for at least one year or for life”. 
Finland, Criminal Code, 1889, as amended in 2008, Chapter 11, Section 5(1)(10).
(emphasis in original)
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1977 Additional Protocol I, including violations of Article 51(5)(a), 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).
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.
26.3. The following are war crimes:
38. Launching attacks by using weapons and methods of combat that do not allow to distinguish between military and non-military objectives or between combatants and persons such as, for example, the area bombardment of towns. 
Uruguay, Law on Cooperation with the ICC, 2006, Article 26.2 and 26.3.38 .
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.
Spain
In 2010, in the Couso case, which concerned the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America, the Criminal Chamber of Spain’s Supreme Court referred to norms of IHL relevant to the case under review, including Article 51(5)(a) of the 1977 Additional Protocol I. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 2, p. 14.
Canada
At the CDDH, Canada stated that it supported the comments made by the United States (see infra). 
Canada, Statement at the CDDH, Official Records, Vol. XIV, CDDH/III/SR.31, 14 March 1975, p. 308, § 58.
Denmark
In 2008, in a joint cost benefit analysis of a possible introduction of a national moratorium on all cluster munitions, Denmark’s Ministry of Defence and Ministry of Foreign Affairs stated:
[The] provisions, which are outlined below, are generally recognized as being an expression of customary international law. …
The purpose of international humanitarian law is to protect the victims of war as much as possible. …
It follows from API [1977 Additional Protocol I] that military attacks that do not respect the distinction between civilians and military targets are illegal because of their indiscriminate nature. Such indiscriminate attacks are defined in API … Article 51([5]). 
Denmark, Ministry of Defence and Ministry of Foreign Affairs, A Cost Benefit Analysis of a Possible Introduction of a National Danish Moratorium on All Cluster Munitions, 1 April 2008, p. 15–16.
Egypt
At the CDDH, Egypt stated that it supported the comments made by the United States (see infra). 
Egypt, Statement at the CDDH, Official Records, Vol. XIV, CDDH/III/SR.31, 14 March 1975, p. 308, § 56.
France
In 2009, the Minister of Foreign and European Affairs of France, in a statement calling for the respect of international humanitarian law, which provided examples of serious violations that had recently occurred in several armed conflicts around the world, noted: “[B]oth Israel and Hamas have used weapons that have indiscriminate effects, since aerial bombing … [was] not used in such a manner as to spare civilians.” 
France, Minister of Foreign and European Affairs, “The Savaging of Humanitarian Law”, New York Times, 28 January 2009, p. 2.
Ireland
In 2009, Ireland’s Minister for Foreign Affairs, in a written response to a question on the situation in Sri Lanka, stated: “I believe that an independent review should consider the allegations of serious breaches of international humanitarian law in the course of the conflict, including intensive shelling by Government forces in areas in which significant numbers of civilians were trapped”. 
Ireland, Dáil Eireann (House of Deputies), Minister for Foreign Affairs, Written Answers – Foreign Conflicts (3), Dáil Eireann debates Vol. 690 No. 1, 23 September 2009.
Lebanon
On the basis of an interview with an adviser of the Lebanese Ministry of Foreign Affairs, the Report on the Practice of Lebanon defines indiscriminate attacks as all bombardments which target an entire zone instead of a precise location. 
Report on the Practice of Lebanon, 1998, Interview with an adviser of the Lebanese Ministry of Foreign Affairs, Chapter 1.4.
United Arab Emirates
At the CDDH, the United Arab Emirates stated that it fully agreed with the remarks made by Egypt (see infra). 
United Arab Emirates, Statement at the CDDH, Official Records, Vol. XIV, CDDH/III/SR.31, 14 March 1975, p. 308, § 61.
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 stated:
Coalition operations are clearly continuing. I made that clear in my statement, and I do not think that any Member of the House would expect me to anticipate the nature of those operations save to say that whatever targets are addressed will be targets associated with Saddam Hussein’s regime. I made that clear yesterday to the House, and I repeat it again today. We will not engage in indiscriminate so-called carpet bombing. Each of the targets will be individually addressed and attacked. 
United Kingdom, House of Commons, Statement by the Secretary of State for Defence, Hansard, 21 March 2003, Vol. 401, Debates, cols. 1214–1215.
United States of America
During the CDDH, the US delegation stated that the words “clearly separated” referred
not only to a separation of two or more military objectives, which could be observed or which were usually separated, but to include the element of a significant distance. Moreover, that distance should be at least sufficiently large to permit the individual military objectives to be attacked separately. 
United States, Statement at the CDDH, Official Records, Vol. XIV, CDDH/III/SR.31, 14 March 1975, p. 307, § 50.
UN Commission on Human Rights
In a resolution adopted in 2003 on the question of the violation of human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights stated that it was:
Gravely concerned at the continued deterioration of the situation in the occupied Palestinian territory and at the gross violations of human rights and international humanitarian law, in particular … the shelling of Palestinian residential districts from warplanes, tanks and Israeli battleships, the conducting of incursions into towns and camps and the killing of men, women and children there as was the case lately in the camps of Jenin, Balata, Khan Younis, Rafah, Ramallah, Gaza, Nablus, al-Birah, al-Ama’ri, Jabaliya, Bethlehem, Dheisheh, Hay al-Daraj and Hay al-Zaitoun in the city of Gaza. 
UN Commission on Human Rights, Res. 2003/6, 15 April 2003, preamble, voting record: 33-5-15.
No data.
Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts
According to the Report of Committee III of the CDDH, the phrase “bombardment by any methods or means” in Article 51(5)(a) of the 1977 Additional Protocol I referred to “all attacks by fire, and the use of any type of projectile except for direct fire by small arms”. 
CDDH, Official Records, Vol. XV, CDDH/215/Rev.1, Second session, Report of Committee III, 3 February–18 April 1975, p. 275, § 56.
The term “concentration of civilians” in the same Article meant “such a concentration as to be similar to a city, town, or village. Thus, a refugee camp or a column of refugees moving along a road would be examples of such a similar concentration.” 
CDDH, Official Records, Vol. XV, CDDH/407/Rev.1, Fourth session, Report of Committee III, 17 March–10 June 1977, p. 455, § 28.
No data.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that “an attack is prohibited which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilian persons or civilian objects”. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 428.
ICRC
In an appeal launched in 1973, the ICRC urged all the belligerents in the conflict in the Middle East (Egypt, Iraq, Israel and the Syrian Arab Republic) to observe forthwith, in particular, the provisions of, inter alia, Article 47(3)(a) of the draft Additional Protocol I, which stated that “it is forbidden to attack without distinction, as one single objective, by bombardment or any other method, a zone containing several military objectives, which are situated in populated areas, and are at some distance from each other”. All governments concerned replied favourably. 
ICRC, The International Committee’s Action in the Middle East, IRRC, No. 152, 1973, pp. 584–585.
No data.