Practice Relating to Rule 10. Civilian Objects’ Loss of Protection from Attack

Additional Protocol I
Article 52(3) of the 1977 Additional Protocol I states:
In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used. 
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 52(3). Article 52 was adopted by 79 votes in favour, none against and 7 abstentions. CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 168.
Amended Protocol II to the Convention on Certain Conventional Weapons
Article 3(8)(a) of the 1996 Amended Protocol II to the Convention on Certain Conventional Weapons provides:
In case of doubt as to whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used. 
Protocol on Prohibitions on the Use of Mines, Booby-Traps and Other Devices, as amended, to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 3 May 1996, Article 3(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 52(3) 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 52(3) 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.
San Remo Manual
Paragraph 58 of the 1994 San Remo Manual provides: “In case of doubt whether a vessel or aircraft exempt from attack is being used to make an effective contribution to military action, it shall be presumed not to be so used.” The commentary on this paragraph states: “This rule, the so-called rule of doubt, imposes an obligation on a party to the conflict to gather and assess relevant information before commencing an attack.” 
Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, Prepared by international lawyers and naval experts convened by the International Institute of Humanitarian Law, Cambridge University Press, Cambridge, 1995, § 58 and commentary.
Argentina
Argentina’s Law of War Manual (1989) provides: “In case of doubt concerning the military use of an object which is usually dedicated to civilian purposes, that object must be considered as civilian.” 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 4.45; see also § 4.02(2).
Australia
Australia’s Defence Force Manual (1994) states: “In cases of doubt whether an object which is normally dedicated to civilian purposes, such as a church, is being used to make an effective contribution to military action, it should be presumed to be a civilian object.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 528; see also § 530 and Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 976.
Australia
Australia’s LOAC Manual (2006) states: “In cases of doubt whether objects which are normally dedicated to civilian purposes, such as a church, are being used to make an effective contribution to military action, they are presumed to be civilian objects.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.32.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Benin
Benin’s Military Manual (1995) states: “Whenever there is a doubt concerning the nature of an objective, it must be considered as a civilian object.” 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule I, p. 13.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “In case of doubt, the object in question must be considered to be a civilian object.” 
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. 53.
The Regulations further states: “In case of doubt, an object which is normally subjected to civilian use must be considered to be civilian in character.” 
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. 85.
The Regulations also states: “In case of doubt about the civilian character of an object, it must be presumed not to be utilized in a way that effectively contributes to the adversary’s action.” 
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. 19; see also Part I bis, p. 35.
Cameroon
Cameroon’s Instructor’s Manual (1992) states that in case of doubt as to whether an object is military or civilian in character, it should be considered as a civilian object. 
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 17.
Cameroon
Cameroon’s Instructor’s Manual (2006) states: “In case of doubt [as to the nature of an object], a civilian object retains its civilian character.” 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 92, § 352.13; see also p. 134, § 412.13.
Canada
Canada’s LOAC Manual (1999) states:
In the case of doubt as to whether an object which is normally dedicated to civilian purposes (such as a place of worship, a house or other dwelling, or a school) is being used to make an effective contribution to military action, it shall be presumed not to be so used. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-5, § 38.
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting:
In the case of doubt as to whether an object which is normally dedicated to civilian purposes (such as a place of worship, a house or other dwelling, or a school) is being used to make an effective contribution to military action, it shall be presumed not to be so used. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 429.
Canada
Canada’s Use of Force Manual (2008), in a section entitled “Principles and rules governing the use of force that directly relates to the conduct of armed conflict”, states:
Doubt rule. A person or object must not be attacked unless there is a reasonable belief that the person or object to be attacked is a military objective. In cases of doubt, a person is presumed to be a civilian, and the use of an object normally dedicated to civilian purposes is presumed to be of a nature other than that constituting an effective contribution to military action, unless and until the contrary is established. 
Canada, Use of Force for CF Operations, Canadian Forces Joint Publication, Chief of the Defence Staff, B-GJ-005-501/FP-001, August 2008, § 112.3.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 1 (Basic and team leader instruction): “If there is any doubt as to the nature of an object it must be considered a civilian object.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 1: Formation élémentaire toutes armés (FETA), formation commune de base (FCB), certificat d’aptitude technique No. 1 (Chef d’équipe), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter II, Section I, § 4.
Colombia
Colombia’s Instructors’ Manual (1999) states: “In case of doubt all objects which are normally dedicated to civilian purposes must be considered civilian.” 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 16.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers):
III.1. Civilian objects
By civilian objects, one means all objects which are not military objectives. …
In all cases, the essential question is to know what use is being made of the object in question. In case of doubt, each object, until the contrary is proven, must be regarded as a civilian object. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 32–33; see also Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 21 and 28–29.
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides: “In case of doubt, an object which is normally designated to civilian purposes keeps its civilian character.” 
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. 35.
Croatia
Croatia’s LOAC Compendium (1991) affirms that in case of doubt as to whether an object is military or civilian in character, it should be considered as a civilian object. 
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 7.
France
France’s LOAC Manual (2001) states: “In case of doubt, an object usually affected to a civilian use must be considered as civilian and shall not be attacked.” 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 90.
Germany
Germany’s Military Manual (1992) provides: “An objective which is normally dedicated to civil purposes shall, in case of doubt, be assumed not to be used in a way to make an effective contribution to military action, and therefore be treated as a civilian object.” 
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 KonfliktenHandbuch, August 1992, § 446.
Hungary
Hungary’s Military Manual (1992) affirms that in case of doubt, objects must be considered to be civilian. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 18.
Ireland
Ireland’s Basic LOAC Guide (2005) states: “In case of doubt as to the status of … [an] object, it shall be assumed to be civilian.” 
Ireland, Basic Guide to the Law of Armed Conflict, TP/TRG/01-2005, Director of Defence Forces Training, Department of Defence, July 2005, p. 10.
Israel
Israel’s Manual on the Laws of War (1998) states: “In cases where there is doubt as to whether a civilian object has turned into a military objective, the [1977] Additional Protocols state that one is to assume that it is not a military objective unless proven otherwise.” 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 38.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
In the case of incidents in which there is a doubt as to whether the target changed its status from civilian to military, the Additional Protocols determine that it should be assumed that it is not a military target unless proven otherwise. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 27.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Kenya
Kenya’s LOAC Manual (1997) states: “In case of doubt whether an object which is normally dedicated to civilian purposes (e.g. a place of worship, a house or other dwelling, a school) is a military objective, it shall be considered as a civilian object.” 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 11.
Madagascar
Madagascar’s Military Manual (1994) states: “In case of doubt, an object which is usually dedicated to civilian purposes (such as a place of worship, school, house or other type of dwelling) will be considered as civilian.” 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 2-SO, § D.
Mexico
Mexico’s IHL Guidelines (2009) states: “In case of doubt, an object should be considered to be civilian.” 
Mexico, Cartilla de Derecho Internacional Humanitario, Ministry of National Defence, 2009, § 2.
Netherlands
The Military Manual (1993) of the Netherlands states: “In case of doubt whether an object which usually serves civilian purposes, such as a house, a school, a church, is used for military purposes, it must be assumed to be a civilian object.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-3.
Netherlands
The Military Manual (2005) of the Netherlands states: “In the event of doubt whether an object normally used for civilian purposes, e.g., a house, a school, a church, is being used for military purposes, it must be assumed that it is a civilian object.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0513.
New Zealand
New Zealand’s Military Manual (1992) states: “If there is a substantial doubt concerning whether an object normally used for civilian purposes is, in the circumstances, a military objective, it shall be presumed not to be a military objective.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 524(3); see also §§ 516(7) and 623(7) (following the language of Article 52(3) of the 1977 Additional Protocol I more closely).
Nigeria
Nigeria’s Military Manual (1994) provides that when “hospital ships, coastal rescue craft, ships sailing under special agreements … are of a dubious status, i.e., when it is uncertain whether it is a military objective or not, in that case, it may be stopped and searched so as to establish its status”. 
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 45, § 16(d).
Philippines
The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) notes in its glossary:
Civilian objects – any object which is not a military objective. Objects which are normally civilian objects can, according to the military situation, become military objectives (e.g. house or bridge tactically used by the defender and thus a target for an attacker). In case of doubt whether an object which is normally dedicated to civilian purposes (e.g. a place of worship, a house or dwelling, a school) is a military objective or not, it shall be considered as a civilian object. 
Philippines, Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law, A Practical Guide for Internal Security Operations, 2006, p. 67, Glossary.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Buildings and material used for civil defence purposes and shelters provided for the civilian population are civilian objects and fall under the protection given by article 52 of [the 1977] Additional Protocol I, to wit:
- In case of doubt whether an object, which is normally dedicated to civilian purposes, is being used to make an effective contribution to military action, it shall be presumed not to be so used. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, p. 81.
The manual also states:
“Civilian objects” is defined in Additional Protocol I article 52. In cases of doubt whether an object that is normally dedicated to civilian purposes, such as a place of worship, a house or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 3, p. 183.
Spain
Spain’s LOAC Manual (1996) states: “In case of doubt, an object which is normally dedicated to civilian purposes, such as a house, a school or a place of worship, must be considered to be a civilian object.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 4.2.b.(2); see also § 2.3.b.(1).
Spain
Spain’s LOAC Manual (2007) states: “If there is any doubt, based on the information available at the time about whether an object normally used for civilian purposes, such as a dwelling, a school or a place of worship, is a military objective, it must be presumed to be a civilian object.” 
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, § 4.2.b.(2); see also § 2.3.b.(1).
Sweden
Sweden’s IHL Manual (1991) states:
During military operations it may often be difficult to establish within a short space of time whether property should be classified as a civilian object or a military objective. To avoid meaningless destruction as far as possible, a so-called dubio rule is included in Article 52 [of the 1977 Additional Protocol I]. This states that in case of doubt whether an object which is normally dedicated to civilian purposes is being used in the adversary’s military activity, it shall be presumed that it is not being so used. Among such normally civilian objects are mentioned particularly places of worship, houses and other dwellings, and schools. 
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. 55.
Togo
Togo’s Military Manual (1996) states: “Whenever there is a doubt concerning the nature of an objective, it must be considered as a civilian object.” 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule I, p. 14.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “In cases of doubt, objects are to be considered as civilian.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.24.3.
In its chapter on air operations, the manual states: “In case of doubt whether a vessel or aircraft exempt from attack is being used to make an effective contribution to military action, it shall be presumed not to be so used.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 12.33.
United States of America
The US Air Force Pamphlet (1976) states:
In case of doubt whether an object which is normally dedicated to civilian purposes, such as a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used. 
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(a)(1)(b).
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 52(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).
South Africa
South Africa’s Prohibition or Restriction of Certain Conventional Weapons Act (2008) states:
6. (1) No person may use or direct any mine, booby-trap or other device –
(e) in an indiscriminate manner –
(i) which is not on or directed against a military objective, and in case of doubt as to whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be [so] used. 
South Africa, Prohibition or Restriction of Certain Conventional Weapons Act, 2008, Section 6(e).
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 52(3) of the 1977 Additional Protocol I. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 2, p. 15.
Egypt
Upon signature of the 1998 ICC Statute, Egypt declared:
Civilian objects [referred to in Article 8, paragraph 2(b) of the Statute] must be defined and dealt with in accordance with the provisions of [the 1977 Additional Protocol I] and, in particular, article 52 thereof. In case of doubt, the object shall be considered to be civilian. 
Egypt, Declarations made upon signature of the 1998 ICC Statute, 26 December 2000, § 4(b).
Iraq
The Report on the Practice of Iraq states that the practice adopted by the Iraqi armed forces is that in case of doubt concerning the nature of objects, they must be considered as civilian objects. 
Report on the Practice of Iraq, 1998, Reply by the Iraqi Ministry of Defence to a questionnaire, July 1997, Chapter 1.3.
Israel
The Report on the Practice of Israel states:
In principle, in cases of significant doubt as to whether a target is legitimate or civilian, the decision would be to refrain from attacking the target. It should be stressed that the introduction of the adjective “significant” in this context is aimed at excluding those cases in which there exists a slight possibility that the definition of the target as legitimate is mistaken. In such cases, the decision whether or not to attack rests with the commander in the field, who has to decide whether or not the possibility of mistake is significant enough to warrant not launching the attack. 
Report on the Practice of Israel, 1997, Chapter 1.3.
Israel
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated:
A dual use objective may be attacked if reliable, conclusive and up-to-date information confirms that it serves the military activities of the enemy, and subject to the principle of proportionality. In case of doubt, such objective shall be presumed to be civilian. 
Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, § 223.
Malaysia
The Report on the Practice of Malaysia does not expressly mention the presumption in favour of the civilian character in the list of norms applicable to the country’s armed forces, but it states that this principle is applied in practice since civilian property is not considered as a military objective. This principle is said to conform to the practice aimed at winning the hearts and minds of the civilian population during the communist insurgency period. 
Report on the Practice of Malaysia, 1997, Answers to additional questions on Chapter 1.3.
Mexico
At the CDDH, Mexico stated that it believed Article 47 of the draft Additional Protocol I (now Article 52) to be so essential that it “cannot be the subject of any reservations whatsoever since these would be inconsistent with the aim and purpose of Protocol I and undermine its basis”. 
Mexico, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 193.
United States of America
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense commented thus on Article 52(3) of the 1977 Additional Protocol I:
This language, which is not a codification of the customary practice of nations, causes several things to occur that are contrary to the traditional law of war. It shifts the burden for determining the precise use of an object from the party controlling that object (and therefore in possession of the facts as to its use) to the party lacking such control and facts, i.e. from defender to attacker. This imbalance ignores the realities of war in demanding a degree of certainty of an attacker that seldom exists in combat. It also encourages a defender to ignore its obligation to separate the civilian population, individual civilians and civilian objects from military objectives, as the Government of Iraq illustrated during the Persian Gulf War. 
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 627.
Noting that the US Naval Handbook does not refer to such presumption, the Report on US Practice concludes that the US Government does not acknowledge the existence of a customary principle requiring a presumption of civilian character in case of doubt. 
Report on US Practice, 1997, Chapter 1.3.
No data.
No data.
Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts
At the CDDH, an exception to the presumption of civilian status was submitted. It provided that the presumption of civilian use for objects which are normally dedicated to civilian purposes would not apply “in contact zones where the security of the armed forces requires a derogation from this presumption”. Such an exception was defended on the grounds that “infantry soldiers could not be expected to place their lives in great risk because of such a presumption and that, in fact, civilian buildings which happen to be in the front lines usually are used as part of the defensive works”. The exception was criticized by other delegates on the ground that “it would unduly endanger civilian objects to permit any exceptions to the presumption”. 
CDDH, Official Records, Vol. XV, CDDH/III/224, Report to Committee III on the Work of the Working Group, pp. 331–332.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Galić case in 2003, the ICTY Trial Chamber stated:
In case of doubt as to whether an object which is normally dedicated to civilian purposes is being used to make an effective contribution to military action, it shall be presumed not to be so used. The Trial Chamber understands that such an object shall not be attacked when it is not reasonable to believe, in the circumstances of the person contemplating the attack, including the information available to the latter, that the object is being used to make an effective contribution to military action. 
ICTY, Galić case, Judgment, 5 December 2003, § 51.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “In case of doubt whether an object which is normally dedicated to civilian purposes (e.g. a place of worship, a house or other dwelling, a school) is a military objective, it shall be considered as a civilian object.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 59; see also § 464 (ships of dubious status).
No data.