Practice Relating to Rule 42. Works and Installations Containing Dangerous Forces
Section A. Attacks against works and installations containing dangerous forces and against military objectives located in their vicinity
South Africa’s LOAC Manual (1996) provides:
The LOAC grants particular protection to the following categories of persons and targets which are termed “protected targets” … Protected places include the following: … installations containing dangerous forces (e.g. dams and nuclear electrical power stations).
South Africa’s Revised Civic Education Manual (2004) states: “Protected places include … installations containing dangerous forces (e.g. dams and nuclear electrical power stations).”
The manual also provides that “[a]ny unlawful attack on a clearly recognised … work or installation containing dangerous forces” is a grave breach of the law of armed conflict and a war crime.
South Africa’s LOAC Teaching Manual (2008) states:
2.1 Basic Categories of Persons and Objects recognised under the LOAC [law of armed conflict]
Specifically Protected Persons and Objects recognised under the LOAC
The following persons and objects fall within the specifically protected category under the LOAC:
- Works/installations containing dangerous forces.
Specifically Protected Persons and Objects
The LOAC grants particular protection to specific categories of persons and objects, The reason for this special protection corresponds with the general aim of the LOAC, to wit, to allow commanders to wage war against the enemy with maximum effect, but at the same time to minimise the suffering of those who are caught up in a war without being any threat to the warring parties.
Persons who are specifically protected are persons who do not participate in hostilities and objects specifically protected are those that are not used for combat purposes. Such persons and objects are not used in attacks and cannot properly defend themselves against attacks.
Special Protection in the Civilian Field
- The special protection regarding protection of civilians and civilian objects is aimed at[:]
- Ensuring the protection of a large number of civilians by prohibiting attacks;
- Against works or installations containing dangerous forces (e.g. [d]ams, dykes, nuclear power plants, etc).
2.5 Specific Protection: Cultural Objects, Places of Worship, Works Containing Dangerous Forces
Works or Installations Containing Dangeorus Forces
- Since historic times, man has attempted to release natural and/or artificial forces to strike at his enemy.
Protection of Works or Installations Containing Dangerous Forces ( Additional Protocol [I] Article 56)
- “Works and installations containing dangerous forces” are works/installations whose attack may cause the release of dangerous forces and consequent severe losses of life and property of the civilian population, e.g. [d]ams, dykes and nuclear power stations.
- Such works and installations may not be made the object of attack.
- This prohibition even applies where such objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.
- Other military objectives located at or in the vicinity of these works or installations may also not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.
- However, the special protection against the attack of works and installations containing dangerous forces shall cease:
- For a Dam or a Dyke
- Only if it is used[:]
- For other than its normal function; and
- In regular, significant and direct support of military operations; and
- If such attack is the only feasible way to terminate such support.
- For a Nuclear Electrical Generating Station
- Only if it provides electric power in regular, significant and direct support of military operations; and
- If such attack is the only feasible way to terminate such support.
- For Other Military Objectives Located at or in the Vicinity of these Works or Installations
- Only if they are used in regular, significant and direct support of military operations;
- And if such attack is the only feasible way to terminate such support.
- In all cases (including where the special protection against the attack of works and installations containing dangerous forces have ceased), the civilian population and individual civilians shall remain entitled to all the protection accorded them by international law, including the protection of the precautionary measures provided for in article 57 Additional Protocol I.
- If the protection ceases and any of the works, installations or military objectives mentioned above is attacked, all practical precautions must be taken to avoid the release of the dangerous forces.
Non-International Armed Conflicts. Note should be taken of article 15 of [the 1977] Additional Protocol II, which grants protection of works and installations containing dangerous forces during civil wars.
The LOAC grants special recognition and protection to specific types of civilian objects, to wit, to cultural objects of high cultural value, religious objects of high spiritual value, marked cultural and spiritual objects and works or installations containing dangerous forces.
Works or installations containing dangerous forces, to wit, dams, dykes and nuclear electrical generating stations whose attack may cause the release of dangerous forces and consequent severe losses of life and property of the civilian population, are protected against being made the object of an attack. Similar protection is granted during civil wars.
The special protection against the attack of works and installations containing dangerous forces shall cease if it is used for other than its normal function or in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support. In all cases (including where the special protection against the attack of works and installations containing dangerous forces have ceased), the civilian population and individual civilians shall remain entitled to all the protection accorded them by international law, including the protection of the precautionary measures provided for in article 57. If the protection ceases and any of the works, installations or military objectives mentioned above is attacked, all practical precautions must be taken to avoid the release of the dangerous forces.
[emphasis in original]
The manual also states:
5.1 War Crimes and Grave Breaches of the LOAC
- Additional Protocol I article 85 provides further examples of grave breaches, in that it stipulates that the following shall be regarded as grave breaches when committed wilfully, and causing death or serious injury to body or health:
- Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects[.]
South Africa’s Implementation of the Geneva Conventions Act (2012) states:
5. Breach of Conventions and penalties
(1) Any person who, whether within or outside the Republic, commits a grave breach of the [1949 Geneva] Conventions, is guilty of an offence.
(2) For the purposes of subsection (1), “a grave breach” means –
(e) a grave breach referred to in Article … 85 of [the 1977 Additional] Protocol I.
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  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.
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
[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