Practice Relating to Rule 11. Indiscriminate Attacks
South Africa’s LOAC Manual (1996) states: “Attacks which do not discriminate between military and civilian targets are forbidden.”
The manual also provides that “launching an indiscriminate attack which affects the civilian population or civilian objects in the knowledge that such attack will cause loss of life, injury to civilians and damage to certain civilian objects” is a grave breach.
South Africa’s Revised Civic Education Manual (2004) states: “Attacks which do not discriminate between military and civilian targets are forbidden.”
The manual also provides that an “[i]ndiscriminate attack affecting the civilian population or civilian objects in the knowledge that such an attack will cause excessive civilian casualties and damage” is a grave breach of the law of armed conflict and a war crime.
South Africa’s LOAC Teaching Manual (2008) states:
 Additional Protocol I article 51 also provides for the following specific prohibitions:
- Indiscriminate attacks.
Protection of protected persons entails the following:
Indiscriminate attacks are prohibited.
The manual also states:
Indiscriminate attacks are prohibited by  Additional Protocol I article 51.4. These are:
- Those which employ a method or means of combat the effects of which cannot be limited as required by Additional Protocol I. Means or methods of combat which can be used perfectly legitimately in some situations can be unlawful in other circumstances, eg, methods and means that might be lawful in an unpopulated desert could be indiscriminate in a densely populated city.
South Africa’s Implementation of the Geneva Conventions Act (2012) states:
5. Breach of Conventions and penalties
(1) Any person who, whether within or outside the Republic, commits a grave breach of the [1949 Geneva] Conventions, is guilty of an offence.
(2) For the purposes of subsection (1), “a grave breach” means–
(e) a grave breach referred to in Article … 85 of [the 1977 Additional] Protocol I.
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the  Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. It enunciates as a basic rule in art 48:
“In order to ensure respect for, and 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 objectives and military objectives and accordingly shall direct their operations only against military objectives.”
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:
“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 this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus
and/or opinio juris
have not been met. See Petane
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus
has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris
In its five-volume report on “gross violations of human rights” committed between 1960 and 1993, the South African Truth and Reconciliation Commission noted that the killing of more than 600 people in a 1978 attack by the South Africa Defence Force (SADF) on the South Western Africa People’s Organisation (SWAPO) base/refugee camp at Kassinga in Angola constituted a breach of IHL. It stated:
There is little evidence that the SADF took sufficient precautions to spare those civilians whom they knew were resident at Kassinga in large numbers. The fact that the operational orders for Reindeer
included the instruction that “women and children must, where possible, not be shot” is evidence of the SADF’s prior knowledge of the presence of civilians. However, this apparent intention to spare their lives was rendered meaningless by the SADF’s decision to use fragmentation bombs in the initial air assault as such weapons kill and maim indiscriminately. Their use, therefore, in the face of knowledge of the presence of civilians, amounts to an indiscriminate and illegitimate use of force and a violation of Protocol I to the Geneva Conventions of 1949. The foreseeable killing of civilians at Kassinga was therefore a breach of humanitarian law.
In 2010, in a statement at the Tenth Annual Regional Seminar on the Implementation of International Humanitarian Law in Pretoria, South Africa’s Deputy Minister of the Department of International Relations and Cooperation stated:
International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It also seeks to prohibit all means and methods of warfare which, inter alia, fail to discriminate between those taking part in the fighting and those who are not, with the emphasis on protecting the civilian population, individual civilians and civilian property.
In 2010, in a statement before the UN Security Council during an open debate on the protection of civilians in armed conflict, South Africa’s Minister of International Relations and Cooperation stated:
The deliberate targeting of civilians and the indiscriminate and excessive use of force, including suicide attacks, have become widespread in certain places, creating an atmosphere of fear aimed at further destabilizing and displacing civilian populations. In other conflict situations, militarily superior parties, including multinational forces, often respond with methods and means of warfare that violate the principles of distinction and proportionality. In such cases it is again civilians who bear the brunt.
We therefore unequivocally condemn both deliberate attacks on civilians and the loss of life as a result of the indiscriminate or disproportionate use of force, which is a gross violation of international humanitarian law. As a signatory of the Geneva Conventions of 1949 and its two Additional Protocols of 1977, South Africa wishes to underline the importance of adhering to the principles contained therein and calls for the full implementation of the commitments made by States parties to those basic tenets of international law.
In 2011, in an opening statement at the Eleventh Annual Regional Seminar on the Implementation of International Humanitarian Law in Pretoria, South Africa’s Deputy Minister of International Relations and Cooperation stated:
One of the most important purposes of International Humanitarian Law is to protect civilians during armed conflicts, to minimise casualties. In this regard, South Africa is on record for unequivocally condemning both deliberate attacks on civilians and the loss of life as a result of the indiscriminate or disproportionate use of force, which is a gross violation of international humanitarian law.
In 2013, in a statement before the UN Security Council during an open debate on the protection of civilians in armed conflict, made on behalf of the members of the Human Security Network and on behalf of South Africa as an observer, the deputy permanent representative of Chile stated:
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.
Let me also stress the Network’s strong concern over use of explosive weapons in populated areas which causes severe harm to individuals and communities. These weapons are indiscriminate within their zones of detonation and therefore can pose unacceptable risks to civilians. We call for all relevant actors to refrain from using such weapons in densely populated areas. We believe that more systematic data collection would be important in this respect.