Practice Relating to Rule 21. Target Selection

Additional Protocol I
Article 57(3) of the 1977 Additional Protocol I states:
When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 57(3). Article 57 was adopted by 90 votes in favour, none against and 4 abstentions. CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 211.
New Delhi Draft Rules
Article 8(a) of the 1956 New Delhi Draft Rules states:
When the military advantage to be gained leaves the choice open between several objectives, [the person responsible for ordering or launching an attack] is required to select the one, an attack on which involves least danger for the civilian population. 
Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, drafted by the International Committee of the Red Cross, September 1956, submitted to governments for their consideration on behalf of the 19th International Conference of the Red Cross, New Delhi, 28 October–7 November, Res. XIII, Article 8(a).
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 57 of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 57 of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
Australia
Australia’s Defence Force Manual (1994) states:
Objects and axes of attack should be chosen to minimise collateral damage wherever possible. Where a similar military advantage may be gained by attacking any one of several military objectives, the attack should be made against the objective which is likely to cause the least collateral damage. The same principle applies to choosing axes of advance or attack where more than one practicable and reasonable axis is available. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 552; see also Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 957(f).
Australia
Australia’s LOAC Manual (2006) states:
Objects and axes of attack should be chosen to minimise collateral damage wherever possible. Where a similar military advantage may be gained by attacking any one of several military objectives, the attack should be made against the objective that is likely to cause the least collateral damage. The same principle applies to choosing axes of advance or attack where more than one practicable and reasonable axis is available. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.57.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Benin
Benin’s Military Manual (1995) states: “The military commander must choose the solution that represents the least danger for civilians and civilian objects.” 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule III, p. 10.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “When a choice is possible between several military objectives, the objective or tactic must be chosen which poses the least danger to civilians and civilian objects.” 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 10; see also pp. 23, 33, 63, 64 and 81.
Canada
Canada’s LOAC Manual (1999) states:
The proportionality test must be used in the selection of any target. Proportionality and multiple targets: Where a choice is possible between several legitimate targets for obtaining a similar military advantage, the target to be selected shall be the one on which an attack would be expected to cause the least civilian casualties and damage to civilian objects. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-3, §§ 18 and 19; see also p. 7-5, § 49 (air to land operations).
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting:
414. Proportionality and multiple targets
1. Where a choice is possible between several legitimate targets for obtaining a similar military advantage, the target to be selected shall be the one on which an attack would be expected to cause the least civilian casualties and damage to civilian objects. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 414.1.
In its chapter on air warfare, the manual states:
When a choice is possible between several legitimate targets for obtaining a similar military advantage, the target to be selected shall be the one where the attack may be expected to cause the least danger to civilian lives and to civilian objects. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 716.5.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book IV (Instruction of heads of division and company commanders):
When a choice is possible between several legitimate military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève , Ministère de la Défense, Forces Armées Nationales, November 2007, p. 28.
Croatia
Croatia’s LOAC Compendium (1991) gives the following instruction: “When your mission affords alternative objectives and targets, choose the course likely to cause minimum civilian casualties and damage.” 
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 43; see also p. 41.
Croatia
Croatia’s Commanders’ Manual (1992) states: “Within tactically equivalent alternatives, the directions, objectives and targets of attack shall be chosen so as to cause the least civilian damage.” 
Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, § 50; see also § 66.
France
France’s LOAC Summary Note (1992) states: “The commander must select the tactical solution which will cause the least civilian losses and damage to civilian objects.” 
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 5.2.
Germany
Germany’s Military Manual (1992) states:
Before engaging an objective, every responsible military leader shall, when a choice is possible between several military objectives of equal importance, engage that objective the attack on which may be expected to cause the least incidental injury or damage. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 457.
Hungary
Hungary’s Military Manual (1992) gives the following instruction: “When your mission affords alternative objectives and targets, choose the course likely to cause minimum civilian casualties and damage.” 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 69; see also p. 66.
Italy
Italy’s LOAC Elementary Rules Manual (1991) states: “Within tactically equivalent alternatives, the directions, objectives and targets of attack shall be chosen so as to cause the least civilian damage.” 
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 50; see also § 66.
Kenya
Kenya’s LOAC Manual (1997) states:
When a choice is possible between several military objectives for attaining a similar military advantage, the objective to be selected shall be that objective, the attack on which would cause the least danger to civilian persons and objects. 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 4, p. 8.
Madagascar
Madagascar’s Military Manual (1994) states: “The military commander must choose the solution which will cause the least civilian losses and damage to civilian objects.” 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 5-O, § 39.
In this respect, the manual specifies that: “Among tactically equivalent alternatives, the direction, objective, aim and target of an attack must be chosen in order to cause the least civilian damage possible.” 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 6-O, § 21.
Netherlands
The Military Manual (1993) of the Netherlands states: “When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-11.
Netherlands
The Military Manual (2005) of the Netherlands states:
When a choice is possible between various military objectives, to attain equal military advantage, the objective chosen should be that where the attack can be expected to pose least danger to the lives of the civilian population and civilian objects. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0544.
In its chapter on non-international armed conflict, the manual states: “Where operational choices exist, they [participants in an internal armed conflict] should select the target which poses the least danger to civilian lives and civilian objects.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1046.
New Zealand
New Zealand’s Military Manual (1992) states:
When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 518(1).
Nigeria
Nigeria’s Military Manual (1994) provides: “Where there is a choice as to which of the general targets can be attacked, the objective to be selected shall be that which would cause the least danger to civilian persons and objects.” 
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, pp. 43–44, § 14.
Peru
Peru’s IHL Manual (2004) states: “Where there is a choice between a number of military objectives and they offer a similar military advantage, the one that is likely to cause the least danger to the civilian population and civilian property should be chosen.” 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 29.l.
Peru
Peru’s IHL and Human Rights Manual (2010) states: “Where there is a choice between a number of military objectives and they offer a similar military advantage, the one that, if attacked, is likely to cause the least danger to the civilian population and civilian property should be chosen.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 30(l), p. 243.
Spain
Spain’s LOAC Manual (1996) states:
When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, División de Operaciones, 18 March 1996, Vol. I, § 4.4.b; see also §§ 2.3.b.(1), 10.8.e.(2) and 10.8.f.(1).
Spain
Spain’s LOAC Manual (2007) states that “when a choice is possible between several military objectives for obtaining a similar military advantage, the objective expected to cause the least danger to civilian lives and civilian objects must be chosen”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 4.4.b; see also §§ 2.3.b.(1) and 4.3.
Sweden
Sweden’s IHL Manual (1991) considers that:
In certain circumstances it is possible to reduce the risk to the civilian population and to civilian property if the military commander selects a different objective, from which he can achieve about the same military advantage as from the prime objective. In many situations, however, it is impossible to denote an alternative objective, for which reason the rule concerning second-line objectives has been given the reservation mentioned by way of introduction: “when a choice is possible”. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.5, p. 72.
Togo
Togo’s Military Manual (1996) states: “The military commander must choose the solution that represents the least danger for civilians and civilian objects.” 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule III, p. 10.
Ukraine
Ukraine’s IHL Manual (2004) states:
When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 2.4.2.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “Where there is a choice between different military objectives whose attack will yield the same military advantage, the one whose attack is expected to cause the least incidental damage should be chosen.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.32.
United States of America
The US Air Force Pamphlet (1976) states: “When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that which may be expected to cause the least danger to civilian lives and to civilian objects.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 5-3(c)(1)(c).
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) provides that if there is a choice between several military objectives for obtaining the same military advantage, military commanders must select the one which represents the least potential risk for the civilian population, “provided this does not particularly increase the danger to members of the armed forces undertaking the attack”. 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 72(3).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 57(3), is a punishable offence. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108(b).
Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
The precautionary principle is the cornerstone of a number of specific rules which are all considered to have attained customary status and to be applicable in internal armed conflicts … Among these rules is … the obligation to select the objective of an attack which may be expected to cause the least danger to civilian lives and to civilian objects when a choice is possible between several military objectives for obtaining a similar military advantage. 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 99.
[footnote in original omitted]
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Spain
In 2010, in the Couso case, which concerned the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America, the Criminal Chamber of Spain’s Supreme Court referred to norms of IHL relevant to the case under review, including Article 57(3) of the 1977 Additional Protocol I. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 2, p. 15.
Indonesia
On the basis of an interview with a senior officer of the armed forces, the Report on the Practice of Indonesia states that the Indonesian armed forces normally observe the precautions listed in Article 57 of the 1977 Additional Protocol I. 
Report on the Practice of Indonesia, 1997, Interview with a senior officer of the Indonesian armed forces, Chapter 1.6.
Islamic Republic of Iran
The Report on the Practice of the Islamic Republic of Iran states, with reference to the Iran–Iraq War: “Iran claimed that targets … [were] chosen in a way that the least casualties to civilians would be inflicted. In Iran’s view, low damage for Iraqi civilians was the proof this claim.” 
Report on the Practice of the Islamic Republic of Iran, 1997, Chapter 1.6.
Israel
The Report on the Practice of Israel states: “In principle, when a choice is possible between several military objectives for obtaining a similar military advantage, the IDF [Israel Defense Forces] will select the military target representing the least potential risk for the civilian population.” 
Report on the Practice of Israel, 1997, Answers to additional questions on Chapter 1.6.
Jordan
The Report on the Practice of Jordan notes that a booklet on the law of armed conflict prepared by the ICRC is used by military commanders. The booklet refers to the obligation to choose a target in the light of the obligation to minimize damage to civilians or civilian objects. 
Report on the Practice of Jordan, 1997, Chapter 1.6.
Malaysia
According to the Report on the Practice of Malaysia, the obligation to select, if a choice is available, the target representing the least potential risk for the civilian population forms part of Malaysian practice. 
Report on the Practice of Malaysia, 1997, Answers to additional questions on Chapter 1.6.
Netherlands
According to the Government of the Netherlands, commanders have to take all the precautionary measures required by Article 57 of the 1977 Additional Protocol I when carrying out an attack. 
Netherlands, Lower House of Parliament, Memorandum in response to the report on the ratification of the Additional Protocols, 1985–1986 Session, Doc. 18 277 (R 1247), No. 6, 16 December 1985, p. 7, § 17.
Syrian Arab Republic
The Report on the Practice of the Syrian Arab Republic asserts that the Syrian Arab Republic considers Article 57 of the 1977 Additional Protocol I to be part of customary international law. 
Report on the Practice of the Syrian Arab Republic, 1997, Chapter 1.6.
United States of America
On 16 April 1986, in the context of US attacks on Libyan targets, the US President stated that “these targets were carefully chosen, both for their direct linkage to Libyan support of terrorist activities and for the purpose of minimizing collateral damage and injury to innocent civilians”. 
United States, Identical letters dated 16 April 1986 from the US President to the Speaker of the House and the President of the Senate concerning US airstrikes against Libya on 14 April 1986, reprinted in Marian Nash (Leich), Cumulative Digest of United States Practice in International Law, 1981–1988, Department of State Publication 10120, Washington, D.C., 1993–1995, p. 3405.
United States of America
In 1991, in response to an ICRC memorandum on the applicability of IHL in the Gulf region, the US Department of the Army stated:
The language of Article 57(3) of [the 1977 Additional] Protocol I … is not part of customary law. The provision applies “when a choice is possible …;” it is not mandatory. An attacker may comply with it if it is possible to do so, subject to mission accomplishment and allowable risk, or he may determine that it is impossible to make such a determination. 
United States, Message from the Department of the Army to the legal adviser of the US Army forces deployed in the Gulf, 11 January 1991, § 8(H), Report on US Practice, 1997, Chapter 1.6.
Zimbabwe
The Report on the Practice of Zimbabwe states that the provisions of Article 57 of the 1977 Additional Protocol I would be regarded as customary by Zimbabwe because of its adoption of the Geneva Conventions Amendment Act, which incorporates the 1977 Additional Protocol I into Zimbabwe’s law and practice. 
Report on the Practice of Zimbabwe, 1998, Chapter 1.6.
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International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kupreškić case in 2000, the ICTY Trial Chamber stated that Article 57 of the 1977 Additional Protocol I was now part of customary international law, not only because it specified and fleshed out general pre-existing norms, but also because it did not appear to be contested by any State, including those who had not ratified the Protocol. 
ICTY, Kupreškić case, Judgment, 14 January 2000, § 524.
With reference to the Martens Clause, the Trial Chamber held:
The prescriptions of … [Article 57 of the 1977 Additional Protocol I] (and of the corresponding customary rules) must be interpreted so as to construe as narrowly as possible the discretionary power to attack belligerents and, by the same token, so as to expand the protection accorded to civilians. 
ICTY, Kupreškić case, Judgment, 14 January 2000, § 525.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which would cause the least danger to civilian persons and objects.
To reduce civilian casualties and damage, equivalent alternative objectives and targets shall be selected whenever the mission given permits. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, §§ 429 and 456.
ICRC
In an appeal issued in October 1973, the ICRC urged all the belligerents in the conflict in the Middle East (Egypt, Iraq, Israel and the Syrian Arab Republic) to observe forthwith, in particular, the provisions of, inter alia, Article 50(3) of the draft Additional Protocol I, which stated: “When a choice is possible between several objectives, for obtaining a similar military advantage, the objective to be selected shall be that which will occasion the least danger to civilian lives and to civilian objects.” All the governments concerned replied favourably. 
ICRC, The International Committee’s Action in the Middle East, IRRC, No. 152, 1973, pp. 584–585.
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