Practice Relating to Rule 7. The Principle of Distinction between Civilian Objects and Military Objectives

In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. Therefore, it is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering and, besides, in order to guarantee the protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives. 

210. Although not a basic principle, distinction is said to be a related principle and seeks to ensure that only legitimate military objects are attacked. Distinction has two components. The first, relating to personnel, seeks to maintain the distinction between combatants and non-combatants or civilian and military personnel. The second component distinguishes between legitimate military targets and civilian objects.

…

504. The law of armed conflict establishes a requirement to distinguish between combatants and civilians, and between military objectives and civilian objects. This requirement imposes obligations on all parties to a conflict to establish and maintain the distinction. …

…

913. The basic rule in respect of civilians which flows from this is that a distinction must be made between the civilian population and combatants, and between civilian objects and military objectives, in order that military operations will only be directed against military objectives. 

2.11 Although not a basic principle, distinction is said to be a related principle and seeks to ensure that only legitimate military objects are attacked. Distinction has two components. The first, relating to personnel, seeks to maintain the distinction between combatants and non-combatants or civilian and military personnel. The second component distinguishes between legitimate military targets and civilian objects. Military operations must only be conducted against military objectives, including combatants. Non-combatants and civilian objects are protected from attack, that is, they are not legitimate objects of attack. LOAC therefore requires that belligerents maintain the clear distinction between armed forces and civilians taking no direct part in hostilities; that is, between combatants and non-combatants, and between objects that might legitimately be attacked and those protected from attack.

…

5.4. The LOAC establishes a requirement to distinguish between combatants and civilians, and between military objectives and civilian objects. This requirement imposes obligations on all parties to a conflict to establish and maintain the distinction …

…

9.13. … a distinction must be made between the civilian population and combatants, and between civilian objects and military objectives, in order that military operations will only be directed against military objectives. 

It must be emphasized that [a responsibility of] command regarding the law of armed conflict and international humanitarian law is to:

The principle of distinction imposes an obligation on commanders to distinguish between legitimate targets and civilian objects and the civilian population. It is of primary importance when selecting targets. 

To ensure respect for and protection of the civilian population and civilian objects, commanders shall at all times distinguish between … civilian objects and military objectives. 

1. Distinction. The principle of distinction imposes an obligation on commanders to distinguish between legitimate targets and civilian objects and the civilian population. It is of primary importance when selecting targets.

2. This obligation is, of course, dependent on the quality of the information available to commanders at the time decisions are made. Commanders must make reasonable, good faith efforts to gather intelligence and to review the intelligence available to them. 

1. To ensure respect for and protection of the civilian population and civilian objects, commanders shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives.

…

1. The protection of civilians and civilian objects is a fundamental principle of the LOAC. Parties to a conflict have a duty to distinguish between civilians and combatants as well as between civilian objects and military objectives. 

1 Distinction. As a general rule civilians and civilian objects shall not be the object of attack (acts of violence against the adversary, whether in offence or defence). Targets shall be limited strictly to military objectives. 

The Law of War is based on three fundamental principles:

…

NB: For the soldier, the principle of distinction is the most important. 

II. The fundamental principles of IHL

Just as military operations are based on principles concerning attack, defence, withdrawal, etc., the law of armed conflicts contains a set of well-defined principles. These concrete principles reflect the realities of conflicts. They represent a balance between the principle of humanity and military necessity, and they are valid at all times, in all places, and in all circumstances. It is essential that these rules are known by all combatants. They must permanently be taken into consideration in every activity of assessment, planning, and military training or operation. The following principles can be found throughout the texts of the law of armed conflicts.

II.1. Distinction

At all times, a distinction must be clearly made between combatants and civilians or the civilian population as such …

In the same way, one must always distinguish between military objectives, which can be attacked, and civilian objects, which must be respected. The term “object” covers all types of objects, be they public or private, fixed or mobile. 

Chapter 2. Combatants and objectives

In order to ensure respect for and protection of the civilian population and civilian objects, military leaders must at all times distinguish between civilian populations and combatants, and between civilian objects and military objectives. 

Always make a difference between:

The principle of discrimination, also known as the principle of precaution, requires belligerents to distinguish military objectives that may be attacked, from civilian objects and populations that must not be the object of any wilful voluntary attack. 

The law of [w]ar rests on three fundamental principles:

The attacking party is bound by duty to distinguish between military objectives and civilian objects, and must take into account the presence of civilian objects when planning an attack.

…

The laws of war sets down several distinctions mentioned earlier. The most important of them is the distinction between military targets and civilian objects. 

It is the duty of the attacker to distinguish between military targets and civilian targets, and the attacker should take into account the presence of civilian targets when planning the attack. No area in which military targets are combined with civilian targets may be considered as merely another target. 

The principle of distinction, also sometimes called the principle of identification, imposes an obligation on commanders to distinguish between legitimate military objectives and civilian objects and the civilian population when conducting military operations, particularly when selecting targets. 

Commanders must take all necessary measures and ensure that their subordinates distinguish between … objects that are considered military objectives and those that are not, both in the conduct of operations and in their behaviour during engagements. 

1. Know how to distinguish a civilian object from a military objective. There are references that deal with the International Humanitarian Law and the Law Governing Armed Conflicts. Yet the best tool in distinguishing a civilian object from a military objective is your common sense, good judgment and conscience. 

While getting military units ready for combat operations and controlling them during hostilities commanders shall be guided by the principles of international humanitarian law: the principles of legality, distinction, proportionality, humanity and military necessity.

…

The principle of distinction means making distinction, under any circumstances, between the civilian population and servicemen, as well as between civilian objects and military objectives, which helps ensure protection of civilian persons and objects during combat operations and concentrate the force’s effort against the enemy military objectives. 

The aim of the instruction of law of war within the armed forces is to ensure that, in fulfilling their mission, each and every member of them respects the fundamental rules of the law, which is based on the distinction that must be made at all times between military objectives and civilian persons and objects, and protects all civilians and persons not or no longer involved in combat actions, irrespective of the situation, place, time or any other circumstances. 

The fundamental norms/val[u]es which underlie the LOAC [law of armed conflict] are:

…

- Distinction. This principle entails that, during any conflict situation, one should always distinguish between military and civilian personnel and/or objects, and also between what is permitted and what is prohibited wrt [with regard to] weapons and actions. 

A distinction is made between military objectives and civilian objects ([1977]Additional Protocol I article 52). Civilian objects are protected and only military objectives may be made the object of an attack. 

The principles of military necessity, distinction, proportionality and (the prevention of) unnecessary suffering form the basis for all targeting considerations undertaken in the absence of specific guidelines set forth under international and domestic law.

Targeting involves the careful application of the aforementioned principles, as well as an appreciation of what constitutes a valid military objective. 

Commanders have a specific responsibility to take the necessary precautions in attacks in order to avoid or minimise loss of civilian life or damage to civilian property collateral to attacks on military objectives. (Articles 48 and 49 of Additional Protocol I.) These responsibilities are:

158 …

159 Hostilities must be directed exclusively against combatants and military objectives. Respect for this rule is only possible if combatants and military objectives can be distinguished from protected persons and objects. 

Principle of distinction means that during preparation for and conduct of combat a clear distinction must be made between civilians and combatants [and] between civilian objects and military objectives with a view to ensuring protection of the civilian population and civilian objects from the consequences of hostilities and to concentrating the actions of forces exclusively against the enemy’s military objects. 

15.9. Attacks are to be directed only against objects or areas which, at the time the attack is launched, are of tactical or strategic military importance.

15.9.1. There is no definition of military objectives or attacks in the treaty law dealing with non-international armed conflicts. Nevertheless, the definitions used in respect of international armed conflicts should be treated as applicable. 

Since military operations are to be conducted only against the enemy’s armed forces and military objectives, there must be a clear distinction … between objects that might legitimately be attacked and those that are protected from attack. The principle of distinction … separates legitimate targets, namely military objectives, from civilian objects.  

15.9. Attacks are to be directed only against objects or areas which, at the time the attack is launched, are of tactical or strategic military importance so as to amount to military objectives. 

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]. 

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]. 

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. 

[W]ith regard to the conduct of hostilities, it is important to note that IHL is ruled by fundamental principles, such as the principles of distinction, limitation and proportionality. Indeed, … the principle of distinction imposes on weapon bearers the obligation to distinguish in their military actions … between military objectives and civilian objects. 

[T]he essential principles of international humanitarian law have acquired ius cogens status, based on the fact that the international community as a whole has recognised their peremptory and imperative nature … Among the essential principles of international humanitarian law with ius cogens status applicable in internal armed conflicts … [is] … the principle of distinction. 

The principle of distinction, one of the cornerstones of international humanitarian law, flows directly from the obligation to protect the civilian population from the effects of war as in times of armed conflict it is only acceptable to weaken the enemy’s military potential.  (footnote in original omitted)

The general duty to distinguish between civilians and combatants is an essential duty binding the parties to any non-international armed conflict to differentiate at all times between civilians and combatants in order to protect civilians and their property. Indeed, parties to a conflict are bound to make every effort to distinguish between military objectives and … civilian property. This rule is found in international treaties applicable in internal armed conflicts and is binding on Colombia. It forms part of customary international humanitarian law and has attained ius cogens status.  [footnote in original omitted]

Opposite the combatants and military objectives stand the civilians and civilian objectives. Military attack directed at them is forbidden. Their lives and bodies are protected from the dangers of combat, provided that they themselves do not take a direct part in the combat. That customary principle is worded as follows:

This approach – which protects the lives, bodies, and property of civilians who are not taking a direct part in the armed conflict – passes like a thread throughout the caselaw of the Supreme Court. 

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. It enunciates as a basic rule in art 48:

The civilian population as such, as well as individual civilians, shall not be the object of attack. That is provided by art 51(2). Moreover, acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited. Indiscriminate attacks, also, are prohibited. They are defined as attacks which, inter alia, are not directed at a specific military objective, or which employ a method or means of combat which cannot be directed at a specific military objective. Article 52 then provides that civilian objects shall not be the object of attack or of reprisals. The Protocol explains in subart (2) of art 52 what are to be regarded as military objectives:

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. 

SECTION I – GENERAL PROTECTION AGAINST THE EFFECTS OF HOSTILITIES

CHAPTER I – BASIC RULE AND FIELDS OF APPLICATION

Article 48 – Basic rule

The targets that on each occasion were attacked with home made bombs at midnight were a mosque in Soweto, railway tracks in Soweto resulting in the death of a woman and injuries to her family, the bridge over the Umtamvuna River between the Eastern Cape and Natal and the Lanseria airport. Where the attempts were unsuccessful, and time mechanisms were also set to go off at midnight, targets included a taxi rank in Soweto and a Buddhist Temple in Bronkhorstspruit. However, two workers were injured in Bronkhorstspruit when the bomb was handled and were hospitalised. These targets cannot with the best will in the world be labelled as military targets

…

… The core remains that only the targeting of military objects is permissible. The targeting of civilian objects is in conflict with the provisions of [the 1977 Additional] Protocol I. 

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:

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]

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. 

While the core challenges in the protection of civilians identified in the previous reports of the Secretary-General still need our sustained attention, the new report also identifies several protection policy priorities that need to be explored. In particular the following “emerging” issues would benefit from our attention, and the Group of Friends stands ready to act as a platform to advance them. …

…

… [O]n the issue of lethal autonomous weapons systems (LAWS), the Group is of the view that further discussions are needed and it welcomes the fact that the issue will be examined in Geneva in May 2014, in the framework of the CCW [Convention on Certain Conventional Weapons]. The Group hopes that such discussions will also examine the issue with due consideration to the protection of civilians as part of a comprehensive debate including legal, military operational, technological and ethical perspectives. In time discussion should focus on the relevance of such systems to the protection of civilians, in particular in the context of IHL and with regard to the principles of distinction, precaution and proportionality. 

While the core challenges in the protection of civilians identified in the previous reports of the Secretary-General still need our sustained attention, the new report also identifies several protection policy priorities that need to be explored. In particular the following “emerging” issues would benefit from our attention, and the Group of Friends stands ready to act as a platform to advance them. …

…

… [O]n the issue of lethal autonomous weapons systems (LAWS), the Group is of the view that further discussions are needed and it welcomes the fact that the issue will be examined in Geneva in May 2014, in the framework of the CCW [Convention on Certain Conventional Weapons]. The Group hopes that such discussions will also examine the issue with due consideration to the protection of civilians as part of a comprehensive debate including legal, military operational, technological and ethical perspectives. In time discussion should focus on the relevance of such systems to the protection of civilians, in particular in the context of IHL and with regard to the principles of distinction, precaution and proportionality. 

While the core challenges in the protection of civilians identified in the previous reports of the Secretary-General still need our sustained attention, the new report also identifies several protection policy priorities that need to be explored. In particular the following “emerging” issues would benefit from our attention, and the Group of Friends stands ready to act as a platform to advance them. …

…

… [O]n the issue of lethal autonomous weapons systems (LAWS), the Group is of the view that further discussions are needed and it welcomes the fact that the issue will be examined in Geneva in May 2014, in the framework of the CCW [Convention on Certain Conventional Weapons]. The Group hopes that such discussions will also examine the issue with due consideration to the protection of civilians as part of a comprehensive debate including legal, military operational, technological and ethical perspectives. In time discussion should focus on the relevance of such systems to the protection of civilians, in particular in the context of IHL and with regard to the principles of distinction, precaution and proportionality. 

While the core challenges in the protection of civilians identified in the previous reports of the Secretary-General still need our sustained attention, the new report also identifies several protection policy priorities that need to be explored. In particular the following “emerging” issues would benefit from our attention, and the Group of Friends stands ready to act as a platform to advance them. …

…

… [O]n the issue of lethal autonomous weapons systems (LAWS), the Group is of the view that further discussions are needed and it welcomes the fact that the issue will be examined in Geneva in May 2014, in the framework of the CCW [Convention on Certain Conventional Weapons]. The Group hopes that such discussions will also examine the issue with due consideration to the protection of civilians as part of a comprehensive debate including legal, military operational, technological and ethical perspectives. In time discussion should focus on the relevance of such systems to the protection of civilians, in particular in the context of IHL and with regard to the principles of distinction, precaution and proportionality. 

[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. The central provision in this regard is API [1977 Additional Protocol] Article 48, which states that: “Parties to the conflict shall at all times distinguish between […] civilian objects and military objectives …”. 

[France] is a party to the 1977 Additional Protocol I to the 1949 Geneva Conventions, which defines the major fundamental principles of protection of the civilian population against the effects of hostilities, in particular the prohibition of superfluous injury and the principle of discrimination … France considers this document to be a fundamental pillar of international humanitarian law and wishes it to become universal as soon as possible, in order to allow for the requirements of humanity during armed conflicts to be better respected. 

[D]uring hostilities in Gaza last summer, civilians, including children, bore the brunt of the suffering … hospitals and schools were severely damaged or destroyed, including UN facilities. …

These facts … are utterly disturbing and raise serious concern about the observance of the rules of international humanitarian law, including the [principle] of distinction … and respect for international human rights law. 

[O]ne of the essential principles of international humanitarian law is that a distinction must be made at all times and in all circumstances between … military targets and civilian targets, the latter to be protected. There are few conflicts in which that principle is fully respected. 

While the core challenges in the protection of civilians identified in the previous reports of the Secretary-General still need our sustained attention, the new report also identifies several protection policy priorities that need to be explored. In particular the following “emerging” issues would benefit from our attention, and the Group of Friends stands ready to act as a platform to advance them. …

…

… [O]n the issue of lethal autonomous weapons systems (LAWS), the Group is of the view that further discussions are needed and it welcomes the fact that the issue will be examined in Geneva in May 2014, in the framework of the CCW [Convention on Certain Conventional Weapons]. The Group hopes that such discussions will also examine the issue with due consideration to the protection of civilians as part of a comprehensive debate including legal, military operational, technological and ethical perspectives. In time discussion should focus on the relevance of such systems to the protection of civilians, in particular in the context of IHL and with regard to the principles of distinction, precaution and proportionality. 

While the core challenges in the protection of civilians identified in the previous reports of the Secretary-General still need our sustained attention, the new report also identifies several protection policy priorities that need to be explored. In particular the following “emerging” issues would benefit from our attention, and the Group of Friends stands ready to act as a platform to advance them. …

…

… [O]n the issue of lethal autonomous weapons systems (LAWS), the Group is of the view that further discussions are needed and it welcomes the fact that the issue will be examined in Geneva in May 2014, in the framework of the CCW [Convention on Certain Conventional Weapons]. The Group hopes that such discussions will also examine the issue with due consideration to the protection of civilians as part of a comprehensive debate including legal, military operational, technological and ethical perspectives. In time discussion should focus on the relevance of such systems to the protection of civilians, in particular in the context of IHL and with regard to the principles of distinction, precaution and proportionality. 

The first core principle of the Law of Armed Conflict, as reflected both in treaty law and in customary international law, is that “the Parties to the conflict shall at all times distinguish between … civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” The principle imposes obligations on both parties to an armed conflict. 

[1977] Additional Protocol I, art. 48. Although the State of Israel is not a party to the Additional Protocols to the Geneva Conventions, it accepts that this provision, as with certain others addressing the principles of distinction and proportionality, accurately reflects customary international law. See Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02 at § 20 (11 December 2005).

[A] commander’s intent is critical in reviewing the principle of distinction during armed conflict. Where it is believed in good faith, on the basis of the best available intelligence, that a civilian building has been misused as a sanctuary for military fighters, military intelligence, or the storage and manufacture of military assets, the commander has a legitimate basis for using force against the site. This is so even where judgment is based on limited information in a fluid battlefield situation.  [emphasis in original]

While the core challenges in the protection of civilians identified in the previous reports of the Secretary-General still need our sustained attention, the new report also identifies several protection policy priorities that need to be explored. In particular the following “emerging” issues would benefit from our attention, and the Group of Friends stands ready to act as a platform to advance them. …

…

… [O]n the issue of lethal autonomous weapons systems (LAWS), the Group is of the view that further discussions are needed and it welcomes the fact that the issue will be examined in Geneva in May 2014, in the framework of the CCW [Convention on Certain Conventional Weapons]. The Group hopes that such discussions will also examine the issue with due consideration to the protection of civilians as part of a comprehensive debate including legal, military operational, technological and ethical perspectives. In time discussion should focus on the relevance of such systems to the protection of civilians, in particular in the context of IHL and with regard to the principles of distinction, precaution and proportionality. 

While the core challenges in the protection of civilians identified in the previous reports of the Secretary-General still need our sustained attention, the new report also identifies several protection policy priorities that need to be explored. In particular the following “emerging” issues would benefit from our attention, and the Group of Friends stands ready to act as a platform to advance them. …

…

… [O]n the issue of lethal autonomous weapons systems (LAWS), the Group is of the view that further discussions are needed and it welcomes the fact that the issue will be examined in Geneva in May 2014, in the framework of the CCW [Convention on Certain Conventional Weapons]. The Group hopes that such discussions will also examine the issue with due consideration to the protection of civilians as part of a comprehensive debate including legal, military operational, technological and ethical perspectives. In time discussion should focus on the relevance of such systems to the protection of civilians, in particular in the context of IHL and with regard to the principles of distinction, precaution and proportionality. 

8. [The delegate of Malaysia] said that …

…

10. … [t]he laws of naval warfare incorporated the fundamental principles of international humanitarian law, including necessity and proportionality …

11. [In the case of the attacks by the Israel Defense Forces on the Mavi Marmara and five accompanying vessels in May 2010] … [n]aval forces were … under an obligation to distinguish … between civilian and military objectives. 

While the core challenges in the protection of civilians identified in the previous reports of the Secretary-General still need our sustained attention, the new report also identifies several protection policy priorities that need to be explored. In particular the following “emerging” issues would benefit from our attention, and the Group of Friends stands ready to act as a platform to advance them. …

…

… [O]n the issue of lethal autonomous weapons systems (LAWS), the Group is of the view that further discussions are needed and it welcomes the fact that the issue will be examined in Geneva in May 2014, in the framework of the CCW [Convention on Certain Conventional Weapons]. The Group hopes that such discussions will also examine the issue with due consideration to the protection of civilians as part of a comprehensive debate including legal, military operational, technological and ethical perspectives. In time discussion should focus on the relevance of such systems to the protection of civilians, in particular in the context of IHL and with regard to the principles of distinction, precaution and proportionality.  

[D]uring hostilities in Gaza last summer, civilians, including children, bore the brunt of the suffering … hospitals and schools were severely damaged or destroyed, including UN facilities. …

These facts … are utterly disturbing and raise serious concern about the observance of the rules of international humanitarian law, including the [principle] of distinction … and respect for international human rights law. 

Article 85 entitled “Principle of Humanity”, contained in Title IV on Operations [of the Royal Ordinances for the Armed Forces (2009)] clearly embodies the spirit of the [1949] Geneva Convention and its [1977] Additional Protocols, as it provides that “[the] … conduct [of members of the armed forces] in any conflict or military operation must conform to the applicable rules of the international treaties on international humanitarian law to which Spain is a party”.

That is further developed in Chapter VI on Ethics in Operations, which goes into specific duties under international humanitarian law … the principle of the distinction … between civilian property and military targets. 

Humanitarian law is based on a number of fundamental principles. They are apparent in current treaties and customary law and express the core of humanitarian law. They concern the principles of distinction, proportionality and precaution, the prohibition on causing superfluous damage and unnecessary suffering and the principle of non-discrimination as well as the so called Martens Clause. 

[D]uring hostilities in Gaza last summer, civilians, including children, bore the brunt of the suffering … hospitals and schools were severely damaged or destroyed, including UN facilities. …

These facts … are utterly disturbing and raise serious concern about the observance of the rules of international humanitarian law, including the [principle] of distinction … and respect for international human rights law. 

International humanitarian law distinguishes between Civilian objects and Military objectives, prohibiting acts of violence against the former. … Civilian objects are all objects which are not military objectives.

…

International humanitarian law protects the civilian population and prohibits attacks against Civilians and Civilian objects. One of its ground rules is the principle of distinction: the parties to a conflict are obliged to conduct military operations exclusively against Military objectives and must therefore always distinguish between Civilians and Combatants as well as between Civilian objects and Military objectives. …

…

International humanitarian law distinguishes between Civilian objects and military objectives. … Under international humanitarian law military personnel must at all times give full consideration to the nature of a potential target and opt exclusively for those that qualify as genuine military objectives. 

4. International humanitarian law is applicable in non-international armed conflicts. All parties to the conflict are therefore obliged to respect its rules in all circumstances, including the rules protecting persons who are [not] or are no [longer] participating in the hostilities, as well as the rules relative to the means and methods of warfare.

…

…

7. [Switzerland] recalls that in the conduct of military operations, all feasible precautions must be taken with a view to avoid incidental loss of civilian life[,] injury to civilians and damage to civilian objects and collateral damage to civilian property. All parties are subject to the obligation to respect the principles of distinction, proportionality and precaution. 

In armed conflicts, strikes carried out with armed drones must respect the rules of the conduct of hostilities as stipulated by international humanitarian law, including the principles of distinction, proportionality and precaution, and must therefore not be directed against civilians or civilian objects. For each strike, it is thus necessary to verify that these principles were respected. 

The community of States cannot remain indifferent to the human suffering caused by armed conflicts. It was in direct response to this fundamental concern that the CCW [1980 Convention on Certain Conventional Weapons] and its protocols were adopted, with a view to prohibiting or limiting the use of certain specific types of weapons known to inflict superfluous injury or unnecessary suffering, or to strike indiscriminately.

In this regard, Switzerland is deeply concerned by the alleged use of weapons in Syria falling within the ambit of the CCW and its respective protocols, such as the alleged use of anti-personnel mines as well as the alleged use of incendiary weapons in populated areas causing severe human suffering. We call upon all parties to the conflict to comply with their obligations under international law, in particular the principles of distinction, precaution, and proportionality. 

The Geneva Conventions contain no provisions expressly regulating targeting in armed conflict. The Hague Regulations of 1907 and customary international law do, however, incorporate the twin principles of distinction between military and civilian objects, and of proportionality so far as the risk of collateral civilian damage from an attack on a military objective is concerned. These principles and associated rules of international law were observed at all times by coalition forces in the planning and execution of attacks against Iraq. 

While the core challenges in the protection of civilians identified in the previous reports of the Secretary-General still need our sustained attention, the new report also identifies several protection policy priorities that need to be explored. In particular the following “emerging” issues would benefit from our attention, and the Group of Friends stands ready to act as a platform to advance them. …

…

… [O]n the issue of lethal autonomous weapons systems (LAWS), the Group is of the view that further discussions are needed and it welcomes the fact that the issue will be examined in Geneva in May 2014, in the framework of the CCW [Convention on Certain Conventional Weapons]. The Group hopes that such discussions will also examine the issue with due consideration to the protection of civilians as part of a comprehensive debate including legal, military operational, technological and ethical perspectives. In time discussion should focus on the relevance of such systems to the protection of civilians, in particular in the context of IHL and with regard to the principles of distinction, precaution and proportionality. 

[T]his Administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:

In U.S. operations against al-Qaeda and its associated forces – including lethal operations conducted with the use of unmanned aerial vehicles – great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted.  [emphasis in original]

While the core challenges in the protection of civilians identified in the previous reports of the Secretary-General still need our sustained attention, the new report also identifies several protection policy priorities that need to be explored. In particular the following “emerging” issues would benefit from our attention, and the Group of Friends stands ready to act as a platform to advance them. …

…

… [O]n the issue of lethal autonomous weapons systems (LAWS), the Group is of the view that further discussions are needed and it welcomes the fact that the issue will be examined in Geneva in May 2014, in the framework of the CCW [Convention on Certain Conventional Weapons]. The Group hopes that such discussions will also examine the issue with due consideration to the protection of civilians as part of a comprehensive debate including legal, military operational, technological and ethical perspectives. In time discussion should focus on the relevance of such systems to the protection of civilians, in particular in the context of IHL and with regard to the principles of distinction, precaution and proportionality. 

In evaluating the official position of [the] FRY, it is important to point out that during October 1991 [the] Chief of General Staff of the YPA issued two orders instructing troops to strictly comply with rules of humanitarian law … The fact that the YPA had sent a commission of inquiry to Dubrovnik to establish the effects of [the] shelling indicates the awareness of the need to respect the distinction between civilian objects and military objectives. Opinio juris existed, however, the relevant rule was not respected in practice. 

The provisions of [the 1977 Additional] Geneva Protocol I cited … express customary international humanitarian law. Those provisions … emphasize the importance of distinguishing between … civilian objects and military objectives.  (footnote in original omitted)

In violation of the laws and customs of war, and in particular of the essential principle that military targets must be distinguished from civilian persons and objects, the Iraqi armed forces have continued to bomb Iranian civilian zones. 

210. … Military operations must only be conducted against enemy armed forces and military objects. Non-combatants and civilian objects are protected from attack, that is, they are not legitimate objects of attack. The law of armed conflict therefore requires that belligerents maintain the clear distinction between armed forces and civilians taking no direct part in hostilities; that is, between combatants and non-combatants, and between objects that might legitimately be attacked and those protected from attack.

…

524. Only military objectives are legitimate objects of attack. During an armed conflict, and subject to the overriding considerations of proportionality and unnecessary suffering, the ADF [Australian Defence Force] may target any military objective.

…

531. There is a fundamental rule that parties to a conflict must direct their operations only against military objectives. …

…

913. The basic rule in respect of civilians which flows from this is that a distinction must be made between the civilian population and combatants, and between civilian objects and military objectives, in order that military operations will only be carried out against military objectives. 

2.11 … Military operations must only be conducted against military objectives, including combatants.

…

5.26 Only military objectives are legitimate objects of attack. During an armed conflict, and subject to the overriding considerations of proportionality and unnecessary suffering, the ADF [Australian Defence Force] may target any military objective.

…

5.35 There is a fundamental rule that parties to a conflict must direct their operations only against military objectives.

…

9.13 … [A] distinction must be made between the civilian population and combatants, and between civilian objects and military objectives, in order that military operations will only be directed against military objectives. 

An attack is legitimate if it is directed against:

…

[Naval] bombardment may only target a military objective. 

…

…

Every opening of fire must be preceded by an identification of the aircraft … Consequently, attacks must only be directed against enemy military aircraft. 

1. Rule # 1 is the cornerstone of the Law of Armed Conflict. It is consistent with and in fact reflects two of the Principles of War, namely “selection and maintenance of the aim” and “economy of effort.” Any deviation from the military aim jeopardizes the mission. Thus, whether you are involved in defensive or offensive operations, your effort must be directed toward the continued maintenance of the aim. It would be considered a waste of resources to engage forces that are not hostile or that have been rendered incapable of further hostilities, or to attack objectives or other objects not used for a military purpose. It is unlawful as well as unsound from an operational point of view.

…

3. Force used during operations must be directed against opposing forces and military objectives. Therefore, civilians not taking part in hostilities must not be targeted. Rule #1 not only makes sense morally but also helps to ensure the most efficient use of military resources. In simple terms, “warriors fight warriors.” 

Lesson 1 Basic notions of IHL

…

The principle of distinction specifies who and what can be attacked and who and what cannot be attacked.

- Who and what can be attacked?

…

Lesson 3. Rules of behaviour in combat

…

[Basic Rule No. 3]:

Only fight enemy combatants, and only attack military objectives.

[Observation]:

- These two rules follow from the principle of distinction, which determines whom to attack during an armed conflict. 

The principle of discrimination, also known as the principle of precaution, requires belligerents to distinguish military objectives that may be attacked, from civilian objects and populations that must not be the object of any wilful voluntary attack. 

In any attack, it is a duty to ensure that:

Direct attacks are permitted against enemy objectives whose total or partial destruction offers a definite military advantage, and, in particular, against Armed Forces and military camps, the works and military establishments, the works and the equipment for defence, deposits, offices, installations, communication lines and means that are used by Armed Forces. 

8. [The delegate of Malaysia] said that …

…

10. … [t]he laws of naval warfare incorporated the fundamental principles of international humanitarian law, including necessity and proportionality …

11. [In the case of the attacks by the Israel Defense Forces on the vessel “Mavi Marmara” and five accompanying vessels in May 2010] … [n]aval forces were … under an obligation to … limit attacks to military objectives. 

The underlying idea of this body of law [i.e. IHL] is to humanize war. The three main principles established to this end … [include]:

when carrying out an assigned mission, weapons should be used only against the adversary and its military objectives;

persons and objects entitled to protection under international humanitarian law may not be attacked, if these persons are not engaged in hostile actions, and the objects are not used (nor prepared to be used) for military purposes. 

1. As was said in a previous learning unit, the most important distinction in the LOAC [law of armed conflict] is the distinction between combatants and non-combatants. Only combatants and military objectives may be made the object of attack …

…

A distinction is made between military objectives and civilian objects ([1977] Additional Protocol I article 52). Civilian objects are protected and only military objectives may be made the object of an attack. 

The following precautions are mandatory to all applications of combat power against hostile targets or forces:

- The factors to be considered when deciding whether a target is a legitimate target, are:

283. Bombardment and siege of defended localities are legitimate means of warfare. …

…

288. In defended towns and localities modern methods of bombardment will inevitably destroy many buildings and sites which are not military objectives. Such destruction, if incidental to the bombardment of military objectives is not unlawful. For example the bombardment of a war factory area may well destroy the houses of workers living in that area. If, on the other hand, bombardment is directed solely against a non-military objective, it is unlawful. 

The requirement that attacks be limited to military objectives results from several requirements of international law. The mass annihilation of enemy people is neither humane, permissible, nor militarily necessary. The Hague Regulations prohibit destruction or seizure of enemy property “unless such destruction or seizure be imperatively demanded by the necessities of war.” Destruction as an end in itself is a violation of international law, and there must be some reasonable connection between the destruction of property and the overcoming of enemy military forces. Various other prohibitions and the Hague Regulations and Hague Convention IX further support the requirement that attacks be directed only at military objectives. 

An object that meets the definition of a military objective may be attacked even if the object, such as an electric power plant, also serves civilian functions, subject to the requirement to avoid excessive incidental injury and collateral damage. 

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. 

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. It enunciates as a basic rule in art 48:

The civilian population as such, as well as individual civilians, shall not be the object of attack. That is provided by art 51(2). Moreover, acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited. Indiscriminate attacks, also, are prohibited. They are defined as attacks which, inter alia, are not directed at a specific military objective, or which employ a method or means of combat which cannot be directed at a specific military objective. Article 52 then provides that civilian objects shall not be the object of attack or of reprisals. The Protocol explains in subart (2) of art 52 what are to be regarded as military objectives:

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. 

SECTION I – GENERAL PROTECTION AGAINST THE EFFECTS OF HOSTILITIES

CHAPTER I – BASIC RULE AND FIELDS OF APPLICATION

Article 48 – Basic rule

The targets that on each occasion were attacked with home made bombs at midnight were a mosque in Soweto, railway tracks in Soweto resulting in the death of a woman and injuries to her family, the bridge over the Umtamvuna River between the Eastern Cape and Natal and the Lanseria airport. Where the attempts were unsuccessful, and time mechanisms were also set to go off at midnight, targets included a taxi rank in Soweto and a Buddhist Temple in Bronkhorstspruit. However, two workers were injured in Bronkhorstspruit when the bomb was handled and were hospitalised. These targets cannot with the best will in the world be labelled as military targets

…

… The core remains that only the targeting of military objects is permissible. The targeting of civilian objects is in conflict with the provisions of [the 1977 Additional] Protocol I. 

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:

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]

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. 

It is the understanding of Australia that the first sentence of paragraph 2 of Article 52 is not intended to, nor does it, deal with the question of incidental or collateral damage resulting from an attack directed against a military objective. 

It is the understanding of the Government of Canada in relation to Article 52 that … the first sentence of paragraph 2 of the Article is not intended to, nor does it, deal with the question of incidental or collateral damage resulting from an attack directed against a military objective. 

[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. The central provision in this regard is API [1977 Additional Protocol] Article 48, which states that: “Parties to the conflict … shall direct their operations only against military objectives.” 

Under international humanitarian law, attacks must be limited to military objectives. 

is a restatement of the basic rule contained in Article 43 [now Article 48], namely that the Parties to a conflict shall direct their operations only against military objectives. It does not deal with the question of collateral damage caused by attacks directed against military objectives. 

The first sentence of paragraph 2 of [Article 52] prohibits only such attacks as may be directed against non-military objectives. Such a sentence does not deal with the question of collateral damage caused by attacks directed against military objectives. 

International humanitarian law distinguishes between Civilian objects and Military objectives, prohibiting acts of violence against the former. …

…

International humanitarian law protects the civilian population and prohibits attacks against Civilians and Civilian objects. One of its ground rules is the principle of distinction: the parties to a conflict are obliged to conduct military operations exclusively against Military objectives and must therefore always distinguish between Civilians and Combatants as well as between Civilian objects and Military objectives. …

…

International humanitarian law distinguishes between Civilian objects and military objectives. … Under international humanitarian law military personnel must at all times give full consideration to the nature of a potential target and opt exclusively for those that qualify as genuine military objectives.  [emphasis in original]

as dealing with the question of incidental damage caused by attacks directed against military objectives. In its view, the purpose of the first sentence of the paragraph was to prohibit only such attacks as might be directed against non-military objectives. 

It is the understanding of the United Kingdom that … the first sentence of paragraph 2 [of Article 52] prohibits only such attacks as may be directed against non-military objectives; it does not deal with the question of collateral damage resulting from attacks directed against military objectives. 

The military campaign is crafted around the principle of minimum use of force. We attack only military objectives and combatants subject to the constraints of proportionality. If there is any expectation that harm will be caused to civilians, this must not be excessive when set against the direct and concrete military advantage anticipated from the attack. 

4.03 Protection of civilian and civilian objects. The prohibition of attacking civilian persons or civilian objects comprises all acts of violence, whether offensive or defensive. Indiscriminate attacks are included in such prohibition.

…

4.45 … Objects of a civilian nature shall not be subject to attack nor reprisal. 

Non-combatants and civilian objects are protected from attack, that is, they are not legitimate objects of attack. The law of armed conflict therefore requires that belligerents maintain the clear distinction between armed forces and civilians taking no direct part in hostilities; that is, between combatants and non-combatants, and between objects that might legitimately be attacked and those protected from attack. 

2.11 … Non-combatants and civilian objects are protected from attack, that is, they are not legitimate objects of attack …

…

9.17 Military operations may only be directed against military objectives and not against the civilian population and civilian objects. …

9.18 It follows from the general rule that it is forbidden to attack the civilian population, individual civilians and civilian objects as a deliberate method of warfare. 

Specially protected objects [including civilian objects] may not:

Lesson 1 Basic notions of IHL

…

The principle of distinction specifies who and what can be attacked and who and what cannot be attacked.

…

- Who and what cannot be attacked?

The principle of discrimination, also known as the principle of precaution, requires belligerents to distinguish military objectives that may be attacked, from civilian objects and populations that must not be the object of any wilful voluntary attack. 

[P]ersons and objects entitled to protection under international humanitarian law may not be attacked, if these persons are not engaged in hostile actions, and the objects are not used (not prepared to be used) for military purposes. 

The fundamental norms/val[u]es which underlie the LOAC are:

A distinction is made between military objectives and civilian objects (Additional Protocol I article 52). Civilian objects are protected and only military objectives may be made the object of an attack. 

197. … Attacks against the civilian population or their property are prohibited at any time and in any place. …

…

225. Indiscriminate attacks, i.e. attacks which cannot distinguish between protected persons/objects and military objectives, as well as attacks directed against protected persons/objects or acts of revenge are prohibited in any place and at any time.

…

234 Violations of the international law of armed conflict are punished according to the provisions of the Swiss Penal Code or the Military Criminal Code.

…

236 Under Art. 109 of the Military Criminal Code, any person who violates the provisions of international treaties on the conduct of war and the protection of persons and goods or other recognized laws and customs of war is liable to imprisonment of up to three years or in serious cases of up to 20 years. In minor cases, disciplinary sanctions apply.

237 The following in particular are criminal offences: … harmful acts against internationally protected persons and objects[.]  [emphasis in original]

In defended towns and localities modern methods of bombardment will inevitably destroy many buildings and sites which are not military objectives. Such destruction, if incidental to the bombardment of military objectives is not unlawful. For example the bombardment of a war factory area may well destroy the houses of workers living in that area. If, on the other hand, bombardment is directed solely against a non-military objective, it is unlawful. 

In addition to the grave breaches of the Geneva Conventions of 1949, the following acts are representative of situations involving individual criminal responsibility: … (4) aerial bombardment for the deliberate purpose of … destroying protected areas, buildings or objects. 

Avoid harming civilian property unless necessary to save US lives. Do not attack traditional civilian objects, such as houses, unless they are being used by the enemy for military purposes and neutralization assists in mission accomplishment. 

a. Text. “Any person subject to this chapter who intentionally engages in an attack upon a civilian object that is not a military objective shall be punished as a military commission under this chapter may direct.”

b. Elements.

(1) The accused engaged in an attack;

(2) The object of the attack was civilian property, that is, property that was not a military objective;

(3) The accused intended such civilian property to be an object of the attack;

(4) The accused knew or should have known that such property was not a military objective; and

(5) The attack took place in the context of and was associated with armed conflict.

c. Comment. The intent required for this offense precludes its applicability with regard to collateral damage or death, damage, or injury incident to a lawful attack.

d. Maximum punishment. Confinement for 20 years. 

a. Text. “Any person subject to this chapter who intentionally engages in an attack upon a civilian object that is not a military objective shall be punished as a military commission under this chapter may direct.”

c. Comment. The intent required for this offense precludes its applicability with regard to collateral damage or death, damage, or injury incident to a lawful attack.

d. Maximum punishment. Confinement for 20 years. 

A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for 15 years. 

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

[The following are] considered as war crimes:

…

B. Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of international law, namely, any of the following acts:

“War crimes” means crimes which are committed as part of a plan or policy or as part of a large-scale commission of such crimes, in particular:

Whoever commits a war crime is punished with life imprisonment.

War crimes are:

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]. 

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]. 

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. 

A member of the military or police shall be imprisoned for a period of no less than eight and no more than 15 years if he or she in the context of an international or non-international armed conflict:

A member of the military or the police shall be punished with deprivation of liberty of not less than six years and not more than twenty-five years if, in a state of emergency and when the Armed Forces assume control of the internal order, he or she:

Notwithstanding of the value of the subject matter and the address of the parties to proceedings, offences related to looting and damaging of property committed between October 1, 1990 and December 31, 1994, which were within the jurisdiction of Gacaca Courts shall be tried by the Mediation Committees applying laws governing these committees regardless that they were committed by civilians, gendarmes or soldiers. Offenders shall be ordered to pay compensation. 

anyone who, during an armed conflict, … attacks … civilian objects of the adverse party causing their destruction, provided the objects do not, in the circumstances ruling at the time, offer a definite military advantage nor make an effective contribution to the military action of the adversary. 

1. Anyone who in the event of an armed conflict commits or orders to be committed any of the following acts shall be punished with four to six years’ imprisonment:

2. … In all other cases mentioned in the above article, the higher sentence can be imposed when extensive and important destructions are caused to the property, objects or installations or [the acts] are of extreme gravity. 

Subject to provisions of the Criminal Act of 1991, shall be punished with imprisonment for a term not exceeding twenty years, whoever knowingly and voluntarily violates the laws and customs regulating armed conflicts, intentionally, and without military necessity:

Articles 112–114 apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.

…

1 The penalty shall be a custodial sentence of not less than three years for any person who in the context of an armed conflict directs an attack against:

Articles 264d–264j apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.

…

Art. 264d

1 The penalty shall be a custodial sentence of not less than three years for any person who in the context of an armed conflict directs an attack against:

…

(b) OFFENSES. – The following offenses shall be triable by military commission under this chapter at any time without limitation:

Ҥ 950t. Crimes triable by military commission

“The following offenses shall be triable by military commission under this chapter at any time without limitation:

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:

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. It enunciates as a basic rule in art 48:

The civilian population as such, as well as individual civilians, shall not be the object of attack. That is provided by art 51(2). Moreover, acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited. Indiscriminate attacks, also, are prohibited. They are defined as attacks which, inter alia, are not directed at a specific military objective, or which employ a method or means of combat which cannot be directed at a specific military objective. Article 52 then provides that civilian objects shall not be the object of attack or of reprisals. The Protocol explains in subart (2) of art 52 what are to be regarded as military objectives:

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. 

SECTION I – GENERAL PROTECTION AGAINST THE EFFECTS OF HOSTILITIES

CHAPTER I – BASIC RULE AND FIELDS OF APPLICATION

Article 48 – Basic rule

The targets that on each occasion were attacked with home made bombs at midnight were a mosque in Soweto, railway tracks in Soweto resulting in the death of a woman and injuries to her family, the bridge over the Umtamvuna River between the Eastern Cape and Natal and the Lanseria airport. Where the attempts were unsuccessful, and time mechanisms were also set to go off at midnight, targets included a taxi rank in Soweto and a Buddhist Temple in Bronkhorstspruit. However, two workers were injured in Bronkhorstspruit when the bomb was handled and were hospitalised. These targets cannot with the best will in the world be labelled as military targets

…

… The core remains that only the targeting of military objects is permissible. The targeting of civilian objects is in conflict with the provisions of [the 1977 Additional] Protocol I. 

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:

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]

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. 

Increasingly, the civilian population are the victims and direct targets of all kinds of abuses committed by armed forces involved in conflicts … The constant imperialist aggression and permanent interference in the internal affairs of third world countries, … [and] the systematic destruction of the infrastructure of these countries … are [among] the fundamental causes of current violations of international humanitarian law. 

Damage to property [caused by Hizbullah’s missile attacks] was also heavy: in total, some 12,000 civilian buildings were damaged, among them about 400 public buildings, while about 2,000 private homes and apartments were completely destroyed. In addition, 23 schools, four kindergartens and two community centers were damaged. During the conflict, hospitals were damaged in Nahariya, Haifa, Safed and Mizra. One of them – a psychiatric hospital – had to be evacuated.

Significant damage was also inflicted on infrastructure: sewage plants were damaged and, in some cases, sewage had to be released into the sea and atmosphere (by burning). Over 50 km of roads were damaged and 2 km² of cultivated forest, as well as 40 km² of natural woodland, were destroyed by fires caused by the missiles. All these clearly constitute civilian objects, which are protected from attack by international law, and whose destruction served no military purpose whatsoever. 

RENAMO’s behaviour, namely … launching offensives against civilian targets, in a deliberate strategy of conquest of territories and strategic positions … constitutes a grave and systematic violation that seriously jeopardizes the General Peace Agreement. 

Norway strongly condemns Israel’s shelling of the Headquarters of the United Nations Relief and Works Agency in Gaza. UNRWA is the lifeline and the safety net for hundreds of thousands of Palestinians. UNRWA has continued to deliver assistance to Palestinian refugees under dangerous circumstances throughout this conflict. Norway also strongly condemns Israel’s shelling of the al-Quds Hospital of the Palestinian Red Crescent. Such attacks are completely unacceptable and contrary to international law. 

In situations of armed conflict, while the primary responsibility of the protection of civilians rests with the State, we equally remind non-State actors and the United Nations, including peacekeepers and other humanitarian actors, to prioritize the protection of civilians. Rwanda therefore calls upon the parties to fully observe strict compliance with international law, to avoid targeting civilian objects, to stop militarizing camps and to allow access to humanitarian assistance. 

[W]e welcome the expansion of the trigger mechanism for punitive measures against those committing recurrent attacks on schools and hospitals. We are concerned about the emerging trend of such attacks. We call on all parties involved in conflict to abide by international humanitarian law and to refrain from attacks against civilian targets, particularly those where children might be present. 

1. In its press release of 7 March 2008, the FDFA [Federal Department of Foreign Affairs] condemned in the strongest terms the terrorist attack against an institute of Talmudic studies in Jerusalem …

2. Attacks directed against … civilian objects are a clear violation of international humanitarian law. 

International humanitarian law distinguishes between Civilian objects and Military objectives, prohibiting acts of violence against the former. …

…

Not all Means and methods of warfare are allowed in an Armed conflict. International humanitarian law stipulates the military operations, tactics and weapons that are permissible. The two generally accepted principles of Distinction and Proportionality are the basis for a number of specific rules such as the prohibition of direct attacks on the civilian population or on Civilian objects, …

…

International humanitarian law protects the civilian population and prohibits attacks against Civilians and Civilian objects. One of its ground rules is the principle of distinction: the parties to a conflict are obliged to conduct military operations exclusively against Military objectives and must therefore always distinguish between Civilians and Combatants as well as between Civilian objects and Military objectives. …

…

International humanitarian law distinguishes between Civilian objects and military objectives. … Under international humanitarian law military personnel must at all times give full consideration to the nature of a potential target and opt exclusively for those that qualify as genuine military objectives.

…

The concept of “terrorism” has not yet been defined in International law. International law, Human rights and international humanitarian law nonetheless do prohibit many terrorism related acts and activities. In fact, according to international humanitarian law, acts generally considered as acts of terrorism, such as strikes against the civilian population or Civilian [o]bjects, … , are prohibited both in international and non-international armed conflict. …

…

War crimes are grave breaches of the provisions of the Geneva Conventions of 1949 protecting persons and objects[,] as well as other serious violations of the laws and customs that apply to an international or non-international Armed conflict. War crimes include notably: … wilful attacks against Civilians and against Civilian objectives[.] 

In armed conflicts, strikes carried out with armed drones must respect the rules of the conduct of hostilities as stipulated by international humanitarian law, including the principles of distinction, proportionality and precaution, and must therefore not be directed against civilians or civilian objects. For each strike, it is thus necessary to verify that these principles were respected. 

The United States considers the obligations to protect natural, civilian, and cultural property to be customary international law … Cultural property, civilian objects, and natural resources are protected from intentional attack so long as they are not utilized for military purposes. 

- by attacks on civilian targets, and by inflicting damage, injuries and losses to civilians and civilian objects, [the respective States had] acted against the Federal Republic of Yugoslavia in breach of [their] obligation to spare the civilian population, civilians and civilian objects. 

Condemns all acts of violence against civilians, including the bombardment by Israeli military forces of Lebanese civilians causing extensive loss of life and injuries, including among children, immense destruction of homes, properties, agricultural lands and vital civilian infrastructure, and the displacement of up to one million Lebanese civilians and outflows of refugees fleeing heavy shelling and bombardment directed against the civilian population, thus exacerbating the magnitude of human suffering in Lebanon. 

Guided by the Charter of the United Nations, relevant human rights instruments and international humanitarian law, in particular the Hague Conventions of 1899 and 1907 on the Laws and Customs of War on Land which prohibit attacks and bombardment of civilian populations and objects and lay down obligations for general protection against dangers arising from military operations against civilian objects, hospitals, relief materials and means of transportation,

…

3. Also condemns the Israeli bombardment of vital civilian infrastructure resulting in extensive destruction and heavy damage to public and private properties;

…

6. Calls upon Israel to stop immediately military operations against the civilian population and civilian objects resulting in death and destruction and serious violations of human rights. 

The concealment of Bosnian Government forces among civilian property may have caused the attraction of fire from the Bosnian Serb Army which may have resulted in legitimate collateral damage. There is enough apparent damage to civilian objects in Sarajevo to conclude that either civilian objects have been deliberately targeted or they have been indiscriminately attacked. 

in the conduct of hostilities, every effort is made – in addition to the total ban on directing attacks against the civilian population as such or against civilians not taking a direct part in hostilities or against civilian objects – … to protect civilian objects including cultural property, places of worship and diplomatic facilities. 

The Court … finds that there is sufficient evidence of a reliable quality to support the DRC’s [Democratic Republic of the Congo’s] allegation that the UPDF [Uganda Peoples’ Defence Forces] failed to protect the civilian population and to distinguish between combatants and non-combatants in the course of fighting against other troops, especially the FAR [Forces Armées Rwandaises]. According to the report of the inter-agency assessment mission to Kisangani … the armed conflict between Ugandan and Rwandan forces in Kisangani led to “fighting spreading into residential areas and indiscriminate shelling occurring for 6 days … More than 4,000 houses were partially damaged, destroyed or made uninhabitable. Sixty-nine schools were shelled, and other public buildings were badly damaged. Medical facilities and the cathedral were also damaged during the shelling, and 65,000 residents were forced to flee the fighting and seek refuge in nearby forests.” 

85. The Majority notes that, while international humanitarian law offers protection to all civilians in both international armed conflict and armed conflict not of an international character, the same cannot be said of all civilian objects, in respect of which protection differs according to the nature of the conflict. Whereas article 52 of API [the 1977 Additional Protocol I] provides for “general protection of civilian objects” during international armed conflict, such broad protection is not explicitly provided under [the 1977] Additional Protocol II, which only affords protection to a limited number of civilian objects. The negotiators of the Statute were certainly aware of this marked difference between international armed conflict and armed conflict not of an international character. Accordingly, the war crime of attacking civilian objects described in article 8 (2)(b)(ii) has no equivalent in article 8 (2)(e) of the Statute, which pertains to armed conflict not of an international character.

86. During discussions within the Preparatory Commission for the International Criminal Court, the Governments of Belgium, Costa Rica, Finland, Hungary, the Republic of Korea, South Africa and the Permanent Observer Mission of Switzerland to the United Nations submitted to the Working Group on Elements of Crimes a paper prepared by the International Committee of the Red Cross (ICRC) on, inter alia, the elements of article 8(2)(e)(iii) of the Statute. In this document it was argued that, although there is no comparable provision under APII [the 1977 Additional Protocol II] to article 52 of API, “the indication found in [the latter] for when an object is no longer entitled to protection as a civilian object might be of relevance in a non-international armed conflict as well”.  [footnotes in original omitted]

The protection of civilians in time of armed conflict, whether international or internal, is the bedrock of modern humanitarian law … Indeed, it is now a universally recognised principle, recently restated by the International Court of Justice [in the Nuclear Weapons case], that deliberate attacks on civilians or civilian objects are absolutely prohibited by international humanitarian law. 

Prohibited attacks are those launched deliberately against … civilian objects in the course of an armed conflict and are not justified by military necessity. They must have caused … extensive damage to civilian objects. Such attacks are in direct contravention of the prohibitions expressly recognised in international law including the relevant provisions of Additional Protocol I. 

65. [A]ttacks in violation of Articles 51 [Protection of the civilian population] and 52 [General protection of civilian objects] of Additional Protocol I are clearly unlawful even without causing serious harm. …

66. [However, t]he Appeals Chamber finds that at the time the unlawful attack occurred in this case, there was no basis for finding that, as a matter of customary international law, State practice or opinio iuris translated the prohibitions under Articles 51 and 52 of Additional Protocol I into international crimes, such that unlawful attacks were largely penalized regardless of the showing of a serious result. State practice was not settled as some required the showing of serious injury, death or damage as a result under their national penal legislation, while others did not.

67. … [T]he Appeals Chamber is not satisfied that at the relevant time, a violation of Articles 51 and 52 of Additional Protocol I incurred individual criminal responsibility under Article 3 of the [1993 ICTY] Statute without causing death, serious injury to body or health, or results listed in Article 3 of the Statute, or being of the same gravity. 

[I]n principle, the crime of unlawful attack on civilian objects does not require proof of a specific amount of civilian destruction as long as there is evidence which proves beyond reasonable doubt that civilian objects were deliberately attacked. However, in a circumstantial case such as the present one, the scale of civilian destruction may be relevant to determine whether an attack is aimed at civilian objects. 

Three of the crimes to which [the accused] has pleaded guilty entail violations of the duty incumbent upon soldiers to direct their operations only against military objectives. In order to comply with this duty, the military must distinguish civilians from combatants and refrain from targeting the former. The other three crimes entail violations of the duty to distinguish civilian objects from military objectives and not to attack protected objects. 

18. At the time of the adoption of the Additional Protocols, the overwhelming majority of states regarded the principles enunciated in Articles 51 and 52 of Additional Protocol I and in Article 13 of Additional Protocol II as general humanitarian principles. These latter are embodied in some States’ military manuals and contrary practice has consistently met disapproval.

19. The drafting history of the Additional Protocols also clearly indicates the opinio juris of the States … Article 52 entitled “General Protection of Civilian Objects” states that civilian objects enjoy protection from attack and reprisals and contains three paragraphs. These three paragraphs state a general principle of international humanitarian law that civilian objects must not be subject to military attacks. This rule is the necessary pendent of Article 51 of Additional Protocol I, and is a reaffirmation of a similar provision contained in the Geneva Convention IV. 

[T]he Trial made no error in its finding that, as the Appeals Chamber understood it, the principles prohibiting attacks on civilians and unlawful attacks on civilian objects stated in Articles 51 and 52 of Additional Protocol I and Article 13 of Additional Protocol II are principles of customary international humanitarian law. Customary international law establishes that a violation of these principles entails individual criminal responsibility. 

62. … [C]ivilian objects enjoy a similar level of protection as a civilian population. Article 52 of the Additional Protocol I stipulates that “[c]ivilian objects shall not be the object of attack or of reprisals” and “civilian objects are all objects which are not military objectives”. “Military objectives” are limited to “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage.” In case of doubt as to whether an object is used for civilian or military purposes, this object shall be presumed not to be used for military purposes.

63. The jurisprudence of the Tribunal identifies the following elements of this crime: actus reus – an attack launched against civilian objects and causing damage to those objects; mens rea – “an attack must have been conducted intentionally in the knowledge, or when it was impossible not to know, that […] civilian property [was] being targeted”. 

223. The offence of attacking civilian objects is a breach of a rule of international humanitarian law. As already ruled by the Chamber in the present case and upheld by the Appeals Chamber, Article 52, referred to in respect of the count of attacking civilian objects, is a reaffirmation and reformulation of a rule that had previously attained the status of customary international law.

224. The Chamber observes that the prohibition of attacks on civilian objects is set out only in Article 52 of Additional Protocol I, referred to in relation to Count 5. Additional Protocol II does not contain provisions on attacking civilian objects. Nonetheless, as the Appeals Chamber found, the rule prohibiting attacks on civilian objects has evolved to become applicable also to conflicts of an internal nature. The Appeals Chamber noted that already during the Spanish Civil War the tendency to disregard the distinction between international and internal armed conflicts could be observed. Both the republican Government and third States insisted that certain rules applicable to international wars applied also to that war. Among those rules there was the prohibition of attacks on non-military objectives. The Appeals Chamber further referred to the 1970 General Assembly resolution concerning the protection of civilians in “armed conflicts of all types”. In that resolution the General Assembly affirmed a number of basic principles, including the prohibition of making dwellings and other installations used only by civilian populations, as well as places and areas designated for the sole protection of civilians, the object of military operations. The Chamber therefore concludes that despite the lack of a provision similar to Article 52 in Additional Protocol II, the general rule prohibiting attacks on civilian objects also applies to internal conflicts.

225. … [T]he Chamber notes that the prohibition of attacks on civilian objects is aimed at protecting those objects from the danger of being damaged during an attack. It further reiterates that a prohibition against attacking civilian objects is a necessary complement to the protection of civilian populations. The Chamber observes that in the above-mentioned 1970 resolution of the General Assembly the prohibition of making civilian dwellings and installations the object of military operations was listed among the “basic principles for the protection of civilian populations in armed conflicts”. Those principles were reaffirmed because of the “need for measures to ensure the better protection of human rights in armed conflicts”. The General Assembly also emphasised that civilian populations were in “special need of increased protection in time of armed conflicts”. The principle of distinction, which obliges the parties to the conflict to distinguish between civilian objects and military objectives, was considered “basic” by the drafters of Additional Protocol I. The Chamber therefore finds that the prohibition at issue is a rule protecting important values. Similarly to what it has found in respect of the attacks on civilians, the Chamber considers that, in view of the fundamental nature of this prohibition, any attack against civilian objects, even if it did not cause any damage, can be considered a serious violation of international humanitarian law. All the same, the Chamber recalls that the requirement of seriousness contains also the element of gravity of consequences for the victim. The Chamber is of the view that, unlike in the case of attacks on civilians, the offence at hand may not necessarily meet the threshold of “grave consequences” if no damage occurred. Therefore, the assessment of whether those consequences were grave enough to bring the offence into the scope of the Tribunal’s jurisdiction under Article 3 of the [1993 ICTY] Statute should be carried out on the basis of the facts of the case. The Chamber observes that in the present case it is alleged that the attacks against civilian objects, with which the Accused is charged, did incur damage to those objects. It will thus pursue the examination of the case on the assumption that the attacks as charged in the Indictment did bring about grave consequences for their victims. … The Chamber would only need to return to the analysis of applicability of Article 3 of the Statute if the evidence on the alleged damage were to fail to demonstrate the validity of the Prosecution allegations to such an extent as to render it questionable whether the consequences of the attack were grave for its victims. 

considering the obligations incumbent upon combatants to distinguish and target exclusively military objectives, the Appeals Chamber finds Milošević’s argument regarding the proportion of civilians present in areas “replete with military objectives” unpersuasive.  (footnote in original omitted)

Attacks which are not directed against military objectives (particularly attacks directed against the civilian population) … may constitute the actus reus for the offence of unlawful attack [as a violation of the laws and customs of war]. The mens rea for the offence is intention or recklessness, not simple negligence. 

The concept of general protection [in Article 13(1) of the 1977 Additional Protocol II], however, is broad enough to cover protections which flow as necessary inferences from other provisions of Protocol II. Thus, while there is no explicit provision affording general protection for civilian objects other than the special objects covered by Arts. 14 to 16, the protection against direct attack of para. 2 also precludes attacks against civilian objects used as dwellings or otherwise occupied by civilians not then supporting the military effort. The definition of civilian objects in Art. 52(2) of Protocol I provides the basis for construing the extent of such protection of civilian objects. 

It is a basic rule of customary international law that civilians and civilian objects must never be made the targets of an attack. This rule applies in all circumstances including in the midst of full-scale armed conflict. Due to its customary nature it is binding on all parties. Israel is prohibited from attacking civilians and civilian objects. Palestinians are also prohibited from targeting Israeli civilians, including settlers who are not bearing arms, and civilian objects. 

During all military operations, whether in offence or in defence, certain conduct remains prohibited under the law of armed conflict and international humanitarian law.

Examples:

…

g. … civilian population centers … shall be protected and shall not be attacked except when they are used for military purposes. 

The term “civilian objects” would normally include cities, towns and villages as such but not military objectives within those places. It also includes … buildings and facilities used by civilians (so long as they do not fall within the definition of military objectives) such as housing estates and houses; apartment blocks and flats; factories and workshops producing goods of no military significance; offices, shops, markets and warehouses; farms and stables; schools, museums, places of worship and other similar buildings. 

Do not fire into civilian populated areas or buildings which are not defended or being used for military purposes. [S]chools … will not be engaged except in self-defense. Do not attack traditional civilian objects, such as houses, unless they are being used by the enemy for military purposes and neutralization assists in mission accomplishment. 

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]. 

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]. 

Internally displaced persons who return to their place of habitual residence or who have resettled in another part of the country have a right to:

90 … [T]he defendant … is accused of [committing a] war crime by [carrying out] attacks against buildings that do not constitute military objectives, which is a punishable act according to article 8(2)(e)(iv) [of the 1998 ICC Statute] …

91 … [T]he war crime addressed by this article is defined as the act of attacking and destroying buildings of common and/or public use, unless such attacks and destructions are imperatively demanded by military necessities.

92. In view of the [2000 ICC] Elements of Crimes, [this] war crime requires, in addition to a link between the crime and the existence of an armed conflict not of an international character, and the awareness by the perpetrator of the factual circumstances that established the existence of this conflict, that the following five elements be present:

Attack shall be understood here in the sense of article 49(1) of the [1977] Additional Protocol I … , which defines attacks as “acts of violence against the adversary, whether in offence or in defence”.

93 … [I]n the present case, during the attacks launched against Nyankunde and Groupement Musedzo respectively on 5 and 12 September by FRPI Ngiti militiamen, the destructive attacks were deliberately directed against buildings which did not constitute military objectives, in particular buildings dedicated to … education.

…

96 … [T]hose buildings were damaged or destroyed because they were targeted by the Ngiti combatants …

97 … [S]uch attacks were launched against buildings in both places during a period where there was an armed conflict not of an international character in the territory of Irumu, in Ituri, situated in the Eastern Province of the Democratic Republic of the Congo.

98 … [T]he FRPI leaders who planned and ordered the above-mentioned attacks, as well as all Ngiti militiamen and combatants of the political-military movement who materially committed the attacks, were aware of the existence of an armed conflict of this nature in Ituri and had the intention to direct such attacks against those buildings knowing that they did not constitute military objectives. This proves the existence of the intentional or mental element which constitutes the direct and special dolus according to article 30 of the [1998 ICC] … Statute.

99 … [T]herefore, this Court finds that there is sufficient evidence to establish substantial grounds to believe that these attacks which constitute war crimes were intentionally launched against buildings which were not military objectives in Nyankunde and Groupement Musedzo by the FRPI Ngiti combatants with the support, authorization, blessing and/or lack of control by the leaders of this political-military movement called FRPI, including the defendant. 

[T]he constitutional provisions of the Democratic Republic of the Congo, namely articles 153(4) and 215 of 18 February 2006 [Constitution], authorize both civil and military courts and tribunals to apply duly ratified international agreements and treaties, and give them higher authority than domestic legislation. This constitutional authorization combined with the self-executing nature of the … [1998 ICC] Statute justify the direct application of this treaty by Congolese courts and tribunals. 

President Hamid Karzai … summoned top NATO commander, Gen. John Allen, and the US Ambassador to Afghanistan to the presidential palace for an extraordinary security meeting for explanation on military operations in the provinces that led to civilian casualties.

…

President Karzai underlined that Afghanistan signed the Strategic Partnership Agreement with the United States with the aim to prevent such incidents from happening again and to safeguard people’s lives. …

In response, Gen. Allen said he personally takes personal responsibility for the incidents and agreed on the president’s suggestions that they will not bombard[…] the civilian areas … anymore.

President Karzai reminded Gen. Allen and Ambassador Crocker that civilian casualties and bombing villages were neither acceptable in the past nor is that acceptable today. 

The Friends Group is pleased with the work undertaken by the Security Council, in the last few years, in progressively strengthening the protection framework for children affected by armed conflict. …

Members of the Friends Group have reliably called on the Security Council to strengthen its protection framework even more and consistently called for all six grave violations committed against children in armed conflict to be included amongst the Security Council Resolution 1612 [of 2005] listing criteria. The Friends Group has supported a progressive approach in this regard and therefore commends the Security Council in filling an important gap in the child protection framework by including attacks against schools and hospitals as the latest trigger through the resolution it will adopt today [Resolution 1998(2011)].

For the Friends Group, a new trigger such as this not only includes in the annexes to the Secretary General’s reports on children and armed conflict those parties to armed conflict that, in contravention of applicable international law, engage in attacks against schools and hospitals, but also those who engage in threats or attacks against schoolchildren, patients, educational or medical personnel. 

We strongly believe that the adoption today of a new resolution on children and armed conflict will increase the profile [of] the grave violation of attacks against schools and hospitals just as the adoption of Resolution 1882 raised the profile of rape and sexual violence against children and Resolution 1612 on the recruitment and use of children in hostilities. 

Over the past year the situation in the Occupied Palestinian Territory, including East Jerusalem, continued to deteriorate. Israel continues to violate international law, human rights and international humanitarian law.

As a result of Israel’s operation “Cast Lead” at the end of 2008 and beginning of 2009, it is estimated that 280 of the 641 schools in Gaza suffered damage and 18 were destroyed. More than half of the inhabitants of Gaza are under the age of 18 and the interruption to their education as a result of the damage caused during the Operation and as a result of the Israeli blockade is having a devastating effect.  [emphasis in original]

For more than 150 years, the international community has been in agreement that warfare should be made less inhumane, through the rules and principles of international humanitarian law. Civilians should be protected in armed conflict. … However, these rules and principles are challenged and sometimes even ignored. … This is for instance the case in Syria (and Iraq) where … schools are being made the actual targets of warfare. This must stop. 

For more than 150 years, the international community has been in agreement that warfare should be made less inhumane, through the rules and principles of international humanitarian law. Civilians should be protected in armed conflict. … However, these rules and principles are challenged and sometimes even ignored. … This is for instance the case in Syria (and Iraq) where … schools are being made the actual targets of warfare. This must stop.  

[O]ne of the essential principles of international humanitarian law is that a distinction must be made at all times and in all circumstances between … military targets and civilian targets, the latter to be protected. There are few conflicts in which that principle is fully respected.

…

During the Israeli offensive in Gaza, there were several strikes in areas apparently devoid of any identifiable military target, and in particular that of Dec. 27, which hit the Gaza Training College, and the series of bombardments on Jan. 6 aimed at schools run by UNRWA (the UN Relief and Works Agency for Palestinian Refugees). 

During the reporting period, the Government of Georgia has been consistently continuing its policy aimed at ensuring full enjoyment of the rights provided in the Covenant for the entire State population. To this end, the obstacles of outstanding gravity were imposed by the war with the Russian Federation in August 2008 and subsequent occupation of two regions – Abkhazia, Georgia and the Tskhinvali region/South Ossetia, Georgia. From … early 2008, the security and human rights situation in the mentioned regions tangibly aggravated … The terrorizing and discriminatory acts included, but were not limited to the occasional incidents of armed attacks on the ethnic Georgian villages … [and] their heavy shelling in the immediate lead-up to the war. 

I wish to remind you, first of all, that since the armed conflict began the Iranian side has continually resorted to the bombing of our frontier towns and villages and other civilian targets and for a long time persisted in denying it even after the facts had been verified by the United Nations mission … I would also like to remind you that, in June 1983, on behalf of Iraq I took the initiative of proposing the conclusion under international auspices of an agreement between Iran and Iraq under which the two parties would refrain from bombing civilian targets … I therefore have the pleasure to inform you that the Iraqi Government accepts your proposal on condition that Iran is committed thereby, and that you make effective arrangements as soon as possible to supervise the implementation by the two parties of their commitments. 

In the course of more than three and a half years since the beginning of this war, Iraq has repeatedly attacked our residential areas in contravention of all international and humanitarian principles … The Government of the Islamic Republic of Iran, however, in order to show its good faith, responds positively to your proposal on ending attacks on residential areas … I deem it necessary to underline that the good will shown by the Islamic Republic of Iran in response to your proposal to stop attacks on civilian areas is conditional on the total ending of the Iraqi régime’s criminal acts of bombarding Iranian cities. 

In accordance with the same principles governing its foreign policy and consistent with the very strong and clear position adopted against bombardment of civilian areas in Iraq by allied forces, the Islamic Republic of Iran cannot remain but alarmed at numerous reports of horrifying attacks by government forces against innocent civilians. 

For more than 150 years, the international community has been in agreement that warfare should be made less inhumane, through the rules and principles of international humanitarian law. Civilians should be protected in armed conflict. … However, these rules and principles are challenged and sometimes even ignored. … This is for instance the case in Syria (and Iraq) where … schools are being made the actual targets of warfare. This must stop. 

[W]e are deeply concerned about the escalation of the crisis in Gaza as a result of Israel’s military operation … [and] the destruction of infrastructure, including United Nations schools … from Israeli fire. Those actions are absolutely inappropriate and are flagrant violations of international law.  

The Draft Mapping Report alleges, in paragraphs 200 and 202 respectively, that “On 20 October 1996, units of the AFDL [Alliance of Democratic Forces for the Liberation of Congo]/APR [Rwandan Patriotic Army] from Bwegera and the Rwandan town of Bugarama attacked the Kamanyola refugee camp in the Walungu territory, killing an unknown number of refugees …” and “… On 2 November 1996, AFDL/APR units attacked the Kashusha/INERA camp in the Kabare territory with heavy weapons, killing hundreds of refugees…”. In line with the RPA’s [Rwandan Patriotic Army’s] concept of operation, the refugee camps were never attacked as such. The setup of the refugee camps in South Kivu was such that the Ex-FAR [Rwanda Armed Forces, the national armed forces of Rwanda before July 1994]/Interahamwe provided a perimeter defense with trenches. There were also inner defensive positions inside the camps. Whenever an RPA advance was detected, the Ex-FAR/Interahamwe forward defenses would attack the advancing RPA force to avoid being encircled. In the process, the refugee population would flee. This is precisely what happened in Kamanyola, Kashusha, Inela, ADI-Kivu and other camps. The casualties reported in those particular camps were a result of fierce fighting between the RPA and the Ex-FAR/Interahamwe. 

[W]e welcome the expansion of the trigger mechanism for punitive measures against those committing recurrent attacks on schools and hospitals. We are concerned about the emerging trend of such attacks. We call on all parties involved in conflict to abide by international humanitarian law and to refrain from attacks against civilian targets, particularly those where children might be present. 

The Friends Group is pleased with the work undertaken by the [UN] Security Council, in the last few years, in progressively strengthening the protection framework for children affected by armed conflict. …

Members of the Friends Group have reliably called on the [UN] Security Council to strengthen its protection framework even more and consistently called for all six grave violations committed against children in armed conflict to be included amongst the [UN] Security Council Resolution 1612 [of 2005] listing criteria. The Friends Group has supported a progressive approach in this regard and therefore commends the [UN] Security Council in filling an important gap in the child protection framework by including attacks against schools and hospitals as the latest trigger through the resolution it will adopt today [Resolution 1998(2011)].

For the Friends Group, a new trigger such as this not only includes in the annexes to the Secretary General’s reports on children and armed conflict those parties to armed conflict that, in contravention of applicable international law, engage in attacks against schools and hospitals, but also those who engage in threats or attacks against schoolchildren, patients, educational or medical personnel. 

Despite the unrelenting efforts of the international community, civilians continue to account for the majority of casualties in armed conflicts. Their situation becomes even more precarious when they are deliberately targeted, indiscriminately attacked or when they are viewed as of strategic value in a conflict. …

…

… Moreover, the effective protection of civilians requires that health-care facilities, schools, teaching staff, transport, humanitarian personnel and people seeking medical treatment are unconditionally spared from attacks and acts of displacement. 

83. In accordance with resolution 1612 and Section VI, paragraph 2 of the Terms of Reference of the Working Group of the [UN] Security Council on children and armed conflict, the TFMR [Task Force for Monitoring and Reporting] will focus on violations against children affected by armed conflict …

84. … [V]iolations and abuses committed against children affected by armed conflict including … attacks against schools … will … be addressed. 

For more than 150 years, the international community has been in agreement that warfare should be made less inhumane, through the rules and principles of international humanitarian law. Civilians should be protected in armed conflict. … However, these rules and principles are challenged and sometimes even ignored. … This is for instance the case in Syria (and Iraq) where … schools are being made the actual targets of warfare. This must stop. 

The current situation in Gaza cries out to us the importance of the issue we are discussing today. …

…

Furthermore, last week, Switzerland called for an independent inquiry into the allegations of violations of international law committed during these hostilities, including the attacks on two schools run by UNRWA [United Nations Relief and Works Agency]. In this context, it is essential that light be cast on all allegations of violations committed by all parties. 

International humanitarian law also clearly prohibits attacks against the civilian population. This also applies to abductions, suicide attacks against markets, mosques or schools, as well as torture and other acts of terrorism. Only attacks against military objectives come within the framework of international humanitarian law, even if these take the form of suicide attacks.  [footnote in original omitted]

Members of the Friends Group have reliably called on the [UN] Security Council to strengthen its protection framework even more and consistently called for all six grave violations committed against children in armed conflict to be included amongst the Security Council Resolution 1612 [of 2005] listing criteria. The Friends Group has supported a progressive approach in this regard and therefore commends the Security Council in filling an important gap in the child protection framework by including attacks against schools and hospitals as the latest trigger through the resolution it will adopt today [Resolution 1998 (2011)].

For the Friends Group, a new trigger such as this not only includes in the annexes to the Secretary General’s reports on children and armed conflict those parties to armed conflict that, in contravention of applicable international law, engage in attacks against schools and hospitals, but also those who engage in threats or attacks against schoolchildren, patients, educational or medical personnel. 

ASEAN … remains deeply concerned about the fact that growing number[s] of children continue to be affected by grave violations in armed conflicts … We particularly condemn the increasing cases of abduction of children and attacks targeting schools and hospitals. 

The members of the Security Council continue to deplore the violation of international humanitarian law and other laws of armed conflict. They express their deepening concern over the widening of the conflict through the escalation of attacks on purely civilian targets, on merchant shipping and oil installations of the littoral States. 

The members of the Security Council … strongly deplore the escalation of the hostilities between [Iran and Iraq], particularly against civilian targets and cities that have taken a heavy toll in human lives and caused vast material destruction, in spite of the declared readiness of the belligerent parties to cease such attacks. 

Dwellings and other installations that are used only by civilian populations should not be the object of military operations. Places or areas designated for the sole protection of civilians, such as hospital zones or similar refuges, should not be the object of military operations. 

Severe destruction of Chechen towns and villages with consequent displacement of a large proportion of the civilian population is a conspicuous feature of military actions in the Republic this year as in 1995. In this context, the Commission calls for an immediate and permanent cessation of the bombardment of civilian towns and villages that is still continuing. The Commission strongly deplores this and the serious destruction of installations and infrastructure used by civilians. 

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 neighbourhoods by warplanes, tanks and Israeli battleships. 

Expresses its deep concern regarding the seriousness of the ongoing violations of human rights and international humanitarian law in Darfur, including armed attacks on the civilian population and humanitarian workers, widespread destruction of villages, and continued and widespread violence, in particular gender-based violence against women and girls, as well as the lack of accountability of perpetrators of such crimes. 

Reaffirms that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 is applicable to the Palestinians and to the Palestinian and other Arab territories occupied by Israel, and that Israel’s violation of the provisions of these Conventions, by … attacking and destroying properties and homes, are war crimes under international law. 

Reaffirms that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 is applicable to the Palestinians and to the Palestinian and other Arab territories occupied by Israel, and that Israel’s violation of the provisions of these Conventions, by … attacking and destroying properties and homes, are crimes of war under international law. 

Deliberate military attacks on civilian areas cannot be condoned by the international community … Therefore, I call upon the Governments of the Republic of Iraq and of the Islamic Republic of Iran to declare to the Secretary-General of the United Nations that each undertakes a solemn commitment to end, and in the future refrain from initiating, deliberate military attacks, by aerial bombardment, missiles, shelling or other means, on purely civilian population centres. 

In violation of the laws and customs of war, and in particular of the essential principle that military targets must be distinguished from civilian persons and objects, the Iraqi armed forces have continued to bomb Iranian civilian zones. The result was loss of human life on a large scale, and widespread destruction of strictly civilian objects. 

Belligerent non-military aircraft, whether public or private, flying within the jurisdiction of their own state, are liable to be fired upon unless they make the nearest available landing on the approach of enemy military aircraft. 

Belligerent non-military aircraft, whether public or private, are liable to be fired upon, if they fly (1) within the jurisdiction of the enemy, or (2) in the immediate vicinity thereof and outside the jurisdiction of their own state or (3) in the immediate vicinity of the military operations of the enemy by land or sea.  

(a) engaging in acts of war on behalf of the enemy, e.g., laying mines, minesweeping, laying or monitoring acoustic sensors, engaging in electronic warfare, intercepting or attacking other civil aircraft, or providing targeting information to enemy forces;

(b) acting as an auxiliary aircraft to an enemy’s armed forces, e.g., transporting troops or military cargo, or refuelling military aircraft;

(c) being incorporated into or assisting the enemy’s intelligence-gathering system, e.g., engaging in reconnaissance, early warning, surveillance, or command, control and communications missions;

(d) flying under the protection of accompanying enemy warships or military aircraft;

(e) refusing an order to identify itself, divert from its track, or proceed for visit and search to a belligerent airfield that is safe for the type of aircraft involved and reasonably accessible, or operating fire control equipment that could reasonably be construed to be part of an aircraft weapon system, or on being intercepted clearly manoeuvring to attack the intercepting belligerent military aircraft;

(f) being armed with air-to-air or air-to-surface weapons; or

(g) otherwise making an effective contribution to military action. 

Civilian vessels, aircraft, vehicles and buildings may be lawfully attacked if they contain combatant personnel, military equipment, supplies or are otherwise associated with combat activity inconsistent with their civilian status. 

Civil aircraft in flight (including state aircraft which are not military aircraft) should not be attacked. They are presumed to be carrying civilians who may not be made the object of direct attack. If there is doubt as to the status of a civil aircraft, it should be called upon to clarify that status. If it fails to do so, or is engaged in non civil activities, such as ferrying troops, it may be attacked. Civil aircraft should avoid entering areas which have been declared combat zones by the belligerents.

Civil aircraft which have been absorbed into a belligerent’s air force and are being ferried from the manufacturer to a belligerent for this purpose, may be attacked. 

6.39 Enemy merchant vessels. Enemy merchant vessels may only be attacked if they meet the definition of military objective.

…

6.40 Enemy civil aircraft. Enemy civil aircraft may likewise only be attacked if they meet the definition of a military objective.

…

6.44 Classes of vessels exempt from attack. The following classes of enemy vessels are exempt from attack:

6.56 The destruction of enemy passenger vessels carrying only civilian passengers is prohibited at sea. 

8.56 Civil aircraft in flight (including state aircraft, which are not military aircraft) should not be attacked. They are presumed to be carrying civilians who may not be made the object of direct attack. If there is doubt as to the status of a civil aircraft, it should be called upon to clarify that status. If it fails to do so, or is engaged in non-civil activities, such as ferrying troops, it may be attacked. Civil aircraft should avoid entering areas that have been declared conflict zones by the belligerents.

8.57 Civil aircraft, which have been absorbed into a belligerent’s air force and are being ferried from the manufacturer to a belligerent for this purpose, may be attacked.

…

8.59 Civil aircraft on the ground may only be attacked in accordance with the normal rules relating to military objectives. However, since they may be used for transporting troops or supplies, their status will frequently depend upon the prevailing military situation. 

Foreign civilian aircraft may be attacked when escorted by enemy military aircraft. When flying alone they can be ordered to modify their route or to land or alight on water for inspection … If a foreign civilian aircraft refuses to modify its route or to land or alight on water, it may be attacked after due warning. 

Civil aircraft (including state aircraft which are not military aircraft) in flight should not be attacked. They are presumed to be carrying civilians who may not be made the object of direct attack. If there is doubt as to the status of civil aircraft, it should be called upon to clarify that status. If it fails to do so, or is engaged in support of military activities, such as ferrying troops, it may be attacked. Civil aircraft should avoid entering areas which have been declared combat zones by the belligerents, since this increases the risk of their being attacked. 

Civil aircraft (including state aircraft which are not military aircraft) in flight should not be attacked. They are presumed to be carrying civilians who may not be made the object of direct attack. If there is doubt as to the status of civil aircraft, it should be called upon to clarify that status. If it fails to do so, or is engaged in support of military activities, such as ferrying troops, it may be attacked. Civil aircraft should avoid entering areas that have been declared combat zones by the belligerents, since this increases the risk of their being attacked. 

It is especially important to avoid attacking merchant ships and civilian aircraft of no military importance.

…

…

In contrast [to ships that are military objectives], the following ships may be neither captured nor attacked:

However, in case of doubt a ship can reasonably be stopped and searched to ascertain its status. If it refuses to stop or resists being visited and searched it may be destroyed after a warning to this effect has been given.

Normally, neutral warships are not military objectives for the belligerent forces unless they refuse to be visited and searched, as described above.

Unless they enter prohibited national airspace, foreign aircraft other than enemy military aircraft, must not be attacked.

Foreign civilian aircraft may be attacked if they are escorted by enemy military aircraft.

If civilian aircraft are flying alone they may be ordered to change their route, or to land or alight on water for inspection. If the inspection reveals that the aircraft contains personnel or objects of military importance or breaches the law of war in some other way, or if the foreign civilian aircraft refuses to alter its route or to land, it can be attacked after due warning has been given.

The above also applies to neutral military aircraft. 

Civil passenger vessels at sea and civil airliners in flight are subject to capture but are exempt from destruction. Although enemy lines of communication are generally legitimate military targets in modern warfare, civilian passenger vessels at sea, and civil airliners in flight, are exempt from destruction, unless at the time of the encounter they are being utilized by the enemy for a military purpose (e.g., transporting troops or military cargo) or refuse to respond to the directions of the intercepting warship or military aircraft. Such passenger vessels in port and airliners on the ground are not protected from destruction. 

if such [aircraft] do not comply with conditions lawfully imposed upon them, if they abuse their mission or are engaged in any other activity bringing them under the definition of a military objective … Such aircraft may be requested to land on ground or water to be searched. 

Subject to prohibitions and restrictions on access to national air space, foreign aircraft except enemy military aircraft may not be attacked. Foreign civilian aircraft may be attacked:

Foreign civilian aircraft can be ordered to modify their route or to land or alight on water for inspection … If a foreign civilian aircraft refuses to modify its route or to land or alight on water, it may be attacked after due warning. The provisions of this part governing foreign civilian aircraft can be applied by analogy to neutral military aircraft. 

Civilian vessels, aircraft, vehicles and buildings may be lawfully attacked if they contain combatant personnel or military equipment or supplies or are otherwise associated with combat activity inconsistent with their civilian status and if collateral damage would not be excessive under the circumstances. 

Civil aircraft (including State aircraft which are not military aircraft) in flight should not be attacked. They are presumed to be carrying civilians who may not be made the object of direct attack. If there is doubt as to the status of a civil aircraft, it should be called upon to clarify that status. If it fails to do so, or is engaged in non-civil activities, such as ferrying troops, it may be attacked. Civil aircraft should avoid entering areas which have been declared combat zones by the belligerents, since this increases the risk of their being attacked. 

(a) Enemy merchant vessels

(b) Enemy civil aircraft

a. The following classes of enemy vessels cannot be attacked:

…

a. Enemy merchant vessels

b. Enemy civil aircraft

113. War-ships shall not destroy any enemy civil ships or otherwise divert it from its destination, except for the following cases:

Prior to using force against a civil vessel the war-ship shall provide for the security of passengers and crew, of the documents and papers, unless the war-ship is in danger of being sunk by an enemy war-ship, escort ship or aircraft.

114. Destruction of the enemy passenger vessels carrying only civilians is prohibited at sea. For the safety of the passengers, such vessels shall be diverted to an appropriate area or port in order to complete capture. 

Foreign civilian aircraft may be attacked when escorted by enemy military aircraft. When flying alone they can be ordered to modify their route or to land or alight on water for inspection … If a foreign civilian aircraft refuses to modify its route or to land or alight on water, it may be attacked after due warning. 

If identified as a civil aircraft, air transport in flight should not be the object of attack, unless at the time it represents a valid military objective such as when there is an immediate military threat or use. An unauthorized entry into a flight restriction zone might in some conflicts be deemed an immediate military threat. Wherever encountered, enemy civil aircraft are subject to instruction in order to verify status and preclude their involvement … Civil aircraft on the ground, as objects of attack, are governed by the rules of what constitutes a legitimate military objective as well as the rules and principles relative to aerial bombardment. As sources of airlift they may, under the circumstances ruling at the time, qualify as important military objectives. Civil aircraft entitled to protection include nonmilitary state aircraft and a state owned airline. The principle of law and humanity protecting civilians and civilian objects from being objects of attack as such, protects civil aircraft in flight, because civil aircraft are presumed to transport civilians. Such an aircraft is not subject to attack in the absence of a determination that it constitutes a valid military objective. 

Civil passenger vessels at sea and civil airliners in flight are subject to capture but are exempt from destruction. Although enemy lines of communication are generally legitimate military targets in modern warfare, civilian passenger vessels at sea, and civil airliners in flight, are exempt from destruction, unless at the time of the encounter they are being utilized by the enemy for a military purpose (e.g., transporting troops or military cargo) or refuse to respond to the directions of the intercepting warship or military aircraft. Such passenger vessels in port and airliners on the ground are not protected from destruction. 

Civilian passenger vessels at sea and civil airliners in flight are subject to capture but are exempt from destruction. Although enemy lines of communication are generally legitimate military targets in modern warfare, civilian passenger vessels at sea, and civil airliners in flight, are exempt from destruction, unless at the time of the encounter they are being utilized by the enemy for a military purpose (e.g., transporting troops or military cargo) or refuse to respond to the directions of the intercepting warship or military aircraft. Such passenger vessels in port and airliners on the ground are not protected from destruction. 

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]. 

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]. 

1. Anyone who in the event of an armed conflict commits or orders to be committed any of the following acts shall be punished with four to six years’ imprisonment:

2. … In all other cases mentioned in the above article, the higher sentence can be imposed when extensive and important destructions are caused to the property, objects or installations or [the acts] are of extreme gravity. 

SECTION I – GENERAL PROTECTION AGAINST THE EFFECTS OF HOSTILITIES

CHAPTER I – BASIC RULE AND FIELDS OF APPLICATION

Article 48 – Basic rule

The targets that on each occasion were attacked with home made bombs at midnight were a mosque in Soweto, railway tracks in Soweto resulting in the death of a woman and injuries to her family, the bridge over the Umtamvuna River between the Eastern Cape and Natal and the Lanseria airport. Where the attempts were unsuccessful, and time mechanisms were also set to go off at midnight, targets included a taxi rank in Soweto and a Buddhist Temple in Bronkhorstspruit. However, two workers were injured in Bronkhorstspruit when the bomb was handled and were hospitalised. These targets cannot with the best will in the world be labelled as military targets

…

… The core remains that only the targeting of military objects is permissible. The targeting of civilian objects is in conflict with the provisions of [the 1977 Additional] Protocol I. 

8. [The delegate of Malaysia] said that …

…

10. … [t]he laws of naval warfare incorporated the fundamental principles of international humanitarian law, including necessity and proportionality …

11. [In the case of the attacks by the Israel Defense Forces on the Mavi Marmara and five accompanying vessels in May 2010] … Clear justification needed to be provided for unprovoked attacks on neutral vessels. 

The Security Council strongly deplores the shooting down by the Cuban air force of two civil aircraft on 24 February 1996, which apparently has resulted in the death of four persons.

The Security Council recalls that according to international law, as reflected in article 3 bis of the International Convention on Civil Aviation of 7 December 1944 added by the Montreal Protocol of 10 May 1984, States must refrain from the use of weapons against civil aircraft in flight and must not endanger the lives of persons on board and the safety of aircraft. States are obliged to respect international law and human rights norms in all circumstances. 

the use of weapons against civil aircraft in flight as being incompatible with elementary considerations of humanity, the rules of customary international law as codified in article 3 bis of the Chicago Convention, and the standards and recommended practices set out in the annexes of the Convention. 

Guided by the Charter of the United Nations, relevant human rights instruments and international humanitarian law, in particular the Hague Conventions of 1899 and 1907 on the Laws and Customs of War on Land which prohibit attacks and bombardment of civilian populations and objects and lay down obligations for general protection against dangers arising from military operations against civilian objects, hospitals, relief materials and means of transportation. 

Subject to prohibitions and restrictions on access to national air space, foreign aircraft, except enemy military aircraft, may not be attacked. Foreign civilian aircraft may be attacked:

Foreign civilian aircraft can be ordered to modify their route or to land or alight on water for inspection … If a foreign civilian aircraft refuses to modify its route or to land or alight on water, it may be attacked after due warning.