Practice Relating to Rule 18. Assessment of the Effects of Attacks

Note: For practice concerning the principle of proportionality in general, see Rule 14, Section A.
Additional Protocol I
Article 57(2)(a)(iii) of the 1977 Additional Protocol I provides that, with respect to attacks, the following precautions shall be taken:
Those who plan or decide upon an attack shall … refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 
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 57(2)(a)(iii). Article 57 was adopted by 90 votes in favour, none against and 4 abstentions. CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 211.
Second Protocol to the Hague Convention for the Protection of Cultural Property
Article 7 of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property states:
Without prejudice to other precautions required by international humanitarian law in the conduct of military operations, each Party to the conflict shall:
(c) refrain from deciding to launch any attack which may be expected to cause incidental damage to cultural property protected under Article 4 of the Convention which would be excessive in relation to the concrete and direct military advantage anticipated. 
Second Protocol for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, Article 7.
New Delhi Draft Rules
Article 8(b) of the 1956 New Delhi Draft Rules states:
The person responsible for ordering or launching an attack shall, first of all:
(b) take into account the loss and destruction which the attack, even if carried out with the precautions prescribed under Article 9, is liable to inflict upon the civilian population. He is required to refrain from the attack if, after due consideration, it is apparent that the loss and destruction would be disproportionate to the military advantage anticipated. 
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 8(b).
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 57 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 57 of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
San Remo Manual
Paragraph 46(d) of the 1994 San Remo Manual provides:
An attack shall not be launched if it may be expected to cause collateral casualties or damage which would be excessive in relation to the concrete and direct military advantage anticipated from the attack as a whole. 
Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, Prepared by international lawyers and naval experts convened by the International Institute of Humanitarian Law, Cambridge University Press, Cambridge, 1995, § 46(d).
Argentina
Argentina’s Law of War Manual (1989) states:
Those who plan or decide upon an attack shall, as far as possible, abstain from deciding to launch an attack … if it becomes apparent that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 
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, § 4.07(1).
Australia
Australia’s Defence Force Manual (1994) states that those responsible for deciding upon an attack must refrain from “launching any attack which may be expected to cause collateral injury, or collateral damage, which would be excessive in relation to the concrete and direct military advantage anticipated”. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 556(f); see also Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 957(c).
Australia
Australia’s LOAC Manual (2006) states that it is the duty of Australian Defence Force commanders to refrain “from launching any attack which may be expected to cause collateral injury, or collateral damage, which would be excessive in relation to the concrete and direct military advantage anticipated”. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.61.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) states:
Everything possible must be done to avoid incidental damage to civilian objects and loss of civilian life: when this damage and this loss appears to be excessive in relation to the anticipated military advantage, the attack must not take place. 
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) states: “Precautions must be taken in order to minimize civilian losses and damage to civilian objects. These precautions include respect for the rules of proportionality.” 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule II, p. 6.
Cameroon
Cameroon’s Instructor’s Manual (1992) states:
The principle of proportionality rests on the prohibition to launch attacks which will cause losses to civilian populations and damage to civilian objects which are excessive in relation to the anticipated military advantage. 
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. 83.
Cameroon
Cameroon’s Instructor’s Manual (2006), under the heading “Precautions Required by the Law of Armed Conflict and International Humanitarian Law”, states with regard to the planning stage: “[E]nsure that an action does not cause civilian losses or damage that would be excessive in relation to the importance of the result anticipated from the entire operation.” 
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. 223, § 224.
Canada
Canada’s LOAC Manual (1999) states:
Commanders, planners and staff officers have … to refrain from launching any attack which may be expected to cause collateral civilian damage which would be excessive in relation to the concrete and direct military advantage anticipated (proportionality test). 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-3, § 24.
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting:
1. Under the LOAC commanders, planners and staff officers have the following obligations:
c. to refrain from launching any attack which may be expected to cause collateral civilian damage which would be excessive in relation to the concrete and direct military advantage anticipated (proportionality test). 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 417.1.c.
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):
A military commander who has been assigned a mission will have to take into consideration a number of elements when taking decisions. He will need intelligence about anything that could help him accomplish the mission. He then has to consider any precautions that will have to be taken to comply with the law. Lastly, he will have to analyse the prevailing tactical situation. 
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 II, Section II.
Also in Volume 3, the manual further states:
When analysing the tactical situation military commanders must consider all the specific prevailing circumstances, including military and humanitarian considerations. Military commanders must also consider any precautionary measures relative to the dangers to which a military action may expose civilian persons and objects.
Before taking his final decision a military commander has to assess the possible outcomes of his evaluation.
In doing so he has to take into account:
- the constraints resulting from his mission, in particular any military necessity that may arise;
- the precautions required under the law of war;
- the expected cost of the proposed action (likely losses among his own men, civilian losses, material damages). 
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 II, Section II, § 2.3, and Section III.
Ecuador
Ecuador’s Naval Manual (1989) states:
Naval commanders must take all reasonable precautions … In each instance, the commander must determine whether incidental injuries and collateral damage would be excessive, on the basis of an honest and reasonable estimate of the facts available to him. 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 8.1.2.1.
France
France’s LOAC Manual (2001) provides:
Those who plan or decide upon an attack shall … refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 49; see also p. 89.
Germany
Germany’s Military Manual (1992) states:
Before engaging an objective, every responsible military leader shall … refrain from launching any attack which may be expected to cause incidental injury and damage to civilian life and objects which would be excessive in relation to the concrete and direct military advantage anticipated. 
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, § 457.
Israel
Israel’s Manual on the Laws of War (1998) states: “The commander is required to refrain from an attack that is expected to inflict harm on the civilian population that is disproportionate to the expected military gain.” 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 40.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
The rules of war have laid down a number of rules of engagement in a theatre of war containing civilians:
- Even if it is not possible to isolate civilians from the military target and there is no choice but to attack, the commanding officer is required to refrain from conducting an attack that could be expected to cause the civilian population damage that is disproportionate to the expected military gain. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, pp. 27–28.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Netherlands
The Military Manual (1993) of the Netherlands states: “During the selection of targets and the preparation of attacks, an attack must be renounced if it can be expected that it may cause damage which is excessive in relation to the anticipated military advantage.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-11.
Netherlands
The Military Manual (2005) of the Netherlands states:
0542. When selecting objectives and preparing to attack, the attacker must:
- refrain from an attack which may be expected to result in collateral damage on a scale which would be excessive in relation to the expected military advantage.
0543. When not to attack
An attack should not proceed when an obvious lack of proportion appears to exist between expected military advantage and expected collateral damage. The decisive factor is whether a normally alert attacker, in receipt of and acting on due information, could have expected the excessive damage among the civilian population and civilian objects.
0546. When attacking mixed objects … it must be carefully considered whether the military advantage expected from eliminating the military element of the mixed objective outweighs the damage done to the civilian population, by damaging or destroying the civilian element of the mixed object or ending its civilian function. In any case, the disabling or destruction of the military element must yield a clear military advantage (cf. AP I [1977 Additional Protocol I] Article 52). In addition, the civilian population must not be excessively affected (cf. AP I Article 51).  
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 0542, 0543 and 0546.
New Zealand
New Zealand’s Military Manual (1992) states:
Those who plan or decide upon an attack shall … refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 518(1).
Nigeria
Nigeria’s Military Manual (1994) states:
Precaution shall be taken to minimise civilian casualties and damage and the precaution comprises the respect for the rule of proportionality (civilian casualties not being excessive in relation to the military advantage anticipated). 
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 45, § 16(b).
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Precautions in Attack
- Do not attack if the loss of life and destruction of property will be excessive in relation to the direct and concrete military advantage to be gained. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 3, p. 182.
Spain
Spain’s LOAC Manual (1996) states:
It shall not be decided to launch an attack when, from the information available at the time of the decision, it may be expected to cause damage to civilian persons and/or objects which would be excessive in relation to the concrete and direct military advantage anticipated from the attack as a whole and not only from isolated parts thereof. 
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, § 2.5.b.
Spain
Spain’s LOAC Manual (2007) states:
The decision to launch an attack must not be implemented when, based on information available at the time the decision is taken, it could be expected to lead to casualties among the civilian population or cause damage to civilian property which would be excessive in relation to the military advantage anticipated from the attack considered as a whole and not only from isolated or specific parts of the attack. 
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, § 2.5.b.
Sweden
Sweden’s IHL Manual (1991) states:
If the attack may be expected to entail such large losses in human life, injury to civilians or damage to civilian property, or a combination of these, that they may be judged excessive in relation to the anticipated concrete and direct advantage, the commander shall refrain from attacking. 
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. 71.
Togo
Togo’s Military Manual (1996) states: “Precautions must be taken in order to minimize civilian losses and damage to civilian objects. These precautions include respect for the rules of proportionality.” 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule II, p. 6.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) provides that “those who plan or decide upon an attack” shall
refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.32; see also § 13.32 (maritime warfare).
United States of America
The US Air Force Pamphlet (1976) states:
Those who plan or decide upon an attack must refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 5-3(c)(1)(b)(i)(c).
United States of America
The US Naval Handbook (1995) states:
Naval commanders must take all reasonable precautions … In each instance, the commander must determine whether incidental injuries and collateral damage would be excessive, on the basis of an honest and reasonable estimate of the facts available to him. 
United States, 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), § 8.1.2.1.
United States of America
The US Naval Handbook (2007) states:
Naval commanders must take all reasonable precautions … In each instance, the commander must determine whether the anticipated incidental injuries and collateral damage would be excessive, on the basis of an honest and reasonable estimate of the facts available to him. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.3.1.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states that “an attack undertaken with disproportionate means on a military objective of lesser importance in an urban settlement, which would lead to big casualties among the civilian population, is contrary to the international law of war”. 
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, § 72(2).
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 57(2)(a)(iii), 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).
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.
Indonesia
On the basis of an interview with a senior officer of the armed forces, the Report on the Practice of Indonesia states that the Indonesian armed forces normally observe the precautions listed in Article 57 of the 1977 Additional Protocol I.  
Report on the Practice of Indonesia, 1997, Interview with a senior officer of the Indonesian armed forces, Chapter 1.6.
Iraq
According to the Report on the Practice of Iraq, the target should not induce the use of excessive force because the possible harm to civilians or undue damage to their possessions might exceed the specific military purpose. On the basis of a press conference given by the President of Iraq in 1980, the report considers that this means acting with only the degree of force necessary to achieve the specific military objective. The aim is to give due regard to humanitarian requirements and to lessen civilian suffering. 
Report on the Practice of Iraq, 1998, Chapter 1.5, referring to Press Conference of the President, 10 November 1980, Encyclopedia of the Iraqi-Iranian War, Vol. I, p. 318.
Netherlands
According to the Government of the Netherlands, commanders have to take all the precautionary measures required by Article 57 of the 1977 Additional Protocol I when carrying out an attack. 
Netherlands, Lower House of Parliament, Memorandum in response to the report on the ratification of the Additional Protocols, 1985–1986 Session, Doc. 18 277 (R 1247), No. 6, 16 December 1985, p. 7, § 17.
Switzerland
In 2005, Switzerland withdrew its reservations to Articles 57 and 58 of the 1977 Additional Protocol I. 
Switzerland, Withdrawal of reservations to the 1977 Additional Protocol I, 17 June 2005.
Switzerland
Switzerland’s ABC of International Humanitarian Law (2009) states:
Proportionality
The principle of proportionality applies to every aspect of the conduct of hostilities. … Before launching an attack there is an obligation to assess whether or not the impact on the civilian population is excessive in relation to the concrete and direct military advantage anticipated. 
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, pp. 13–14.
Syrian Arab Republic
The Report on the Practice of the Syrian Arab Republic asserts that the Syrian Arab Republic considers Article 57 of the 1977 Additional Protocol I to be part of customary international law. 
Report on the Practice of the Syrian Arab Republic, 1997, Chapter 1.6.
United Kingdom of Great Britain and Northern Ireland
In 1991, in reply to a question in the House of Lords concerning the use of conventional weapons against nuclear facilities, chemical weapons plants and dumps, and petrochemical enterprises situated in towns or cities, the UK Minister of State, Foreign and Commonwealth Office, stated:
International law requires that, in planning an attack on any military objective, account is taken of certain principles. These include the [principle] … that an attack should not be launched if it can be expected to cause civilian losses which would be disproportionate to the military advantage expected from the attack as a whole. 
United Kingdom, House of Lords, Statement by the Minister of State, Foreign and Commonwealth Office, 4 February 1991, Hansard, Vol. 525, Written Answers, col. 37.
United Kingdom of Great Britain and Northern Ireland
In 1991, in response to a question in the Defence Committee of the UK House of Commons on whether or not there were occasions during the Gulf War when he decided that it would not be appropriate for the Royal Air Force to attack a particular target, Air Vice Marshal Wratten stated:
Yes, there were such occasions. In particular, when we were experiencing collateral damage, such as it was, and some of the targets were in locations where with any weapon system malfunction severe collateral damage would have resulted inevitably, then there were one or two occasions that I chose not to go against those targets, but they were very few and far between and they were not – and this is the most important issue – in my judgment and in the judgment of the Americans of a critical nature, that is to say, they were not fundamental to the timely achievement of the victory. Had that been the case, then regrettably, irrespective of what collateral damage might have resulted, one would have been responsible and had a responsibility for accepting those targets and for going against them. 
United Kingdom, Statement of Air Vice Marshall Wratten, Minutes of Evidence taken before the Defence Committee, 22 May 1991, p. 38, § 274.
United States of America
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:
Some targets were specifically avoided because the value of destruction of each target was outweighed by the potential risk to nearby civilians or, as in the case of certain archaeological and religious sites, to civilian objects. 
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 622.
Zimbabwe
The Report on the Practice of Zimbabwe states that the provisions of Article 57 of the 1977 Additional Protocol I would be regarded as customary by Zimbabwe because of its adoption of the Geneva Conventions Amendment Act, which incorporates Additional Protocol I into Zimbabwe’s law and practice. 
Report on the Practice of Zimbabwe, 1998, Chapter 1.6.
No data.
No data.
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International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kupreškić case in 2000, the ICTY Trial Chamber stated that Article 57 of the 1977 Additional Protocol I was now part of customary international law, not only because it specified and fleshed out general pre-existing norms, but also because it did not appear to be contested by any State, including those who had not ratified the Protocol. 
ICTY, Kupreškić case, Judgment, 14 January 2000, § 524.
With reference to the Martens Clause, the Trial Chamber held:
The prescriptions of … [Article 57 of the 1977 Additional Protocol I] (and of the corresponding customary rules) must be interpreted so as to construe as narrowly as possible the discretionary power to attack belligerents and, by the same token, so as to expand the protection accorded to civilians. 
ICTY, Kupreškić case, Judgment, 14 January 2000, § 525.
International Criminal Tribunal for the former Yugoslavia
In its final report to the ICTY Prosecutor in 2000, the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia stated:
In determining whether or not the mens rea requirement [intention or recklessness, for the offence of unlawful attack under Article 3 of the 1993 ICTY Statute] has been met, it should be borne in mind that commanders deciding on an attack have duties:
c) to refrain from launching attacks which may be expected to cause disproportionate civilian casualties or civilian property damage. 
ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, The Hague, 14 June 2000, §§ 21 and 28.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Galić case in 2003, the ICTY Trial Chamber stated:
One type of indiscriminate attack violates the principle of proportionality. The practical application of the principle of distinction requires that those who plan or launch an attack take all feasible precautions to verify that the objectives attacked are neither civilians nor civilian objects, so as to spare civilians as much as possible. Once the military character of a target has been ascertained, commanders must consider whether striking this target is “expected to cause incidental loss of life, injury to civilians, damage to civilian objectives or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” If such casualties are expected to result, the attack should not be pursued. The basic obligation to spare civilians and civilian objects as much as possible must guide the attacking party when considering the proportionality of an attack. In determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack. 
ICTY, Galić case, Judgment, 5 December 2003, § 58.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
When planning actions that could endanger civilian persons and objects, the same extent of care and precautions which are to be taken in the conduct of operations must be also taken at this stage. The precautions comprise respect for the rule of proportionality. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, §§ 390 and 458.
ICRC
In an appeal issued in October 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 50(1)(a) of the draft Additional Protocol I, which stated in part:
Those who plan or decide upon an attack shall ensure that the objectives to be attacked … may be attacked without incidental losses in civilian lives and damage to civilian objects in their vicinity being caused or that at all events those losses or damage are not disproportionate to the direct and substantial military advantage anticipated. [Proposal I]
All the governments concerned replied favourably. 
ICRC, The International Committee’s Action in the Middle East, IRRC, No. 152, 1973, pp. 584–585.
Human Rights Watch
Following NATO’s air campaign in the Federal Republic of Yugoslavia in 1999, Human Rights Watch criticized NATO’s decision to attack the Novi Sad bridge and six other bridges during which civilian deaths occurred. According to Human Rights Watch, these bridges were road bridges and most were urban or town bridges that were not major routes of communications. As a result, “the risk in terms of civilian casualties in attacking urban bridges, or in attacking during daylight hours, is ‘excessive in relation to the concrete and direct military advantage anticipated,’ the standard of proportionality codified in Protocol I, art. 57”. 
Human Rights Watch, Civilian Deaths in the NATO Air Campaign, New York, 7 February 2000, p. 11.