Practice Relating to Rule 11. Indiscriminate Attacks
Germany’s Soldier’s Manual (1991) states that it is prohibited to use means or methods of warfare which are intended or of a nature “to harm military objectives and civilians or civilians objects without distinction”.
Under Germany’s Military Manual (1992), it is prohibited
to employ means or methods which are intended or of a nature … to injure military objectives, civilians, or civilian objects without distinction. The prohibition of indiscriminate warfare implies that the civilian population as such as well as individual civilians shall not be the object of attack and that they shall be spared as far as possible.
The manual provides that grave breaches of IHL are in particular “launching an indiscriminate attack in the knowledge that such attack will have adverse effects on civilian life and civilian objects”.
Germany’s Soldiers’ Manual (2006) states:
Combat operations may only be directed against the armed forces of the enemy and other military objectives, not however against the civilian population or civilian objects. Indiscriminate attacks are therefore prohibited.
In 2010, in the Fuel Tankers case, the Federal Prosecutor General at Germany’s Federal Court of Justice investigated whether war crimes or other crimes under domestic law had been committed in the course of an airstrike which was ordered by a colonel (Oberst) of the German armed forces against two tankers transporting fuel for the International Security Assistance Force in Afghanistan stolen by the Taliban near Kunduz and which resulted in the deaths of a number of civilians. The Federal Prosecutor General stated:
Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst
) Klein and Company Sergeant Major (Hauptfeldwebel
) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter.
The Federal Prosecutor General also stated that “international humanitarian law … prohibits indiscriminate attacks.”
In 1993, in response to a question in Parliament about the situation in Sudan, the German Court stated that “during military operations, instances occur over and again which violate the international law of war [such as] … the indiscriminate bombing of villages”.
In 2009, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) titled “Investigation of serious violations of international humanitarian law in the recent Gaza war”, Germany’s Federal Government wrote:
9. How does the Federal Government assess the firing of rockets from towns and villages in Southern Israel by armed Palestinian groups in Gaza under international law?
Which specific provisions of international humanitarian law were violated by the Palestinian side?
… [A]ttacks which can hit military objectives and civilians or civilian objects indiscriminately are … prohibited.
The Federal Government also stated:
14. Can the Federal Government confirm or deny that ammunition with white phosphorous has been used in densely populated areas (e.g. Gaza City) and against civilian installations (e.g. the UN), and how does the Federal Government assess such use under international humanitarian law?
The Federal Government is aware of allegations that Israel has used phosphorous weapons in a way that violated international law. This is the subject of a number of investigations, including by Israel. The Federal Government has no information of its own on whether such weapons were used. Smoke ammunition which includes white phosphorus is not prohibited as such under international humanitarian law. But its use must comply with the general rules of international humanitarian law. Hence … an indiscriminate attack which does not distinguish between legitimate objectives and civilians … [is] prohibited.